Regulations Committee

Wednesday, 9:00 a.m.
May 23, 2012

Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road, Austin, TX  78744

Commissioner Chairman T. Dan Friedkin, Committee Chair
Ross Melinchuk, Committee Liaison

Approval of Previous Meeting Minutes

  1. Request Permission to Review Rules
    • Chapter 51-Executive
    • Chapter 52-Wildlife and Fisheries
    • Chapter 55-Law Enforcement
    • Chapter 60-Maintenance Review
    • Chapter 61-Design and Construction
    Staff: Ann Bright
  2. Boater Education Deferral Rules-Request Permission to Publish Proposed Rules in the Texas Register
    Staff: Tim Spice
  3. Quail Management — Regulatory Recommendation
    Staff:  Robert Perez
  4. Floating Cabins Permit Rules — Recommended Adoption of Proposed Changes (Action Item No. 12)
    Staff:  Cody Jones

Committee Agenda Item No. 1
Presenter:  Ann Bright

Regulation Committee
Request Permission to Review Rules
May 23, 2012

I.       Executive Summary:  Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years.

II.      Discussion:  A state agency’s review of a rule must include an assessment of whether the reasons for initially adopting the rule continue to exist.  Under the requirements of this statute, the Texas Parks and Wildlife Department (TPWD) must now review the following chapters of Title 31, Administrative Code:

Chapter 51, Executive
Chapter 52, Wildlife and Fisheries
Chapter 55, Law Enforcement
Chapter 60, Maintenance Review
Chapter 61, Design and Construction

With Commission approval, TPWD staff will publish a Notice of Intent to Review for public comment in the Texas Register.


Committee Agenda Item No. 2
Presenters:  Tim Spice
Jeff Parrish

Regulations Committee
Boater Education Deferral Rule and Fee
May 23, 2012

I.      Executive Summary:  This item seeks permission to publish proposed amendments to exempt a customer of a licensed boat dealer, manufacturer or distributor from the boater education requirement while showing, testing or demonstrating a boat; implement a boater education deferral program; and, establish a fee for obtaining a boater education deferral.  The boater education deferral would be a one-time, three-day exemption from the mandatory boater education requirements and would be available at a proposed fee of $10.

II.      Discussion:    Under Parks and Wildlife Code, §31.109, no person born on or after September 1, 1993 may operate a vessel (including a personal watercraft or motorboat) powered by a motor of greater than 15 horsepower, or a windblown vessel over 14 feet in length on public waters unless that person possesses evidence of successful completion of a boater education course approved by the department or “proof of completion of the requirements to obtain a vessel operator’s license issued by the United States Coast Guard.”  Under the provisions of House Bill 1395, enacted by the 82nd Texas Legislature, Regular Session (2011), Parks and Wildlife Code, §31.110 was amended to require the department to establish a boater education deferral program by rule, and to allow the Commission to exempt from the boater education requirement a customer of a business engaged in testing, showing, or demonstrating boats.

The proposed amendment would make a one-time, three-consecutive-day deferral of the boater education requirements of Parks and Wildlife Code, §31.109, available for a fee of $10.  The proposed amendment would also exempt from the boater education requirement a customer of a business that is engaged in showing, testing, or demonstrating a boat.

            Attachments-2

1.   Exhibit A-Proposed Boater Education Deferral Rule

2.   Exhibit B-Proposed Boater Education Deferral Fee


Committee Agenda Item No. 2
Exhibit A

BOATER EDUCATION RULES

MANDATORY BOATER EDUCATION DEFERRAL PROGRAM

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §51.81, concerning Mandatory Boater Education.

         Under Parks and Wildlife Code, §31.109, no person born on or after September 1, 1993 may operate a personal watercraft or motorboat powered by a motor of greater than 15 horsepower, or a windblown vessel over 14 feet in length on public waters unless that person possesses evidence of successful completion of a boater education course approved by the department or “proof of completion of the requirements to obtain a vessel operator’s license issued by the United States Coast Guard.” Under the provisions of House Bill 1395, enacted by the 82nd Texas Legislature, Regular Session (2011), Parks and Wildlife Code, §31.110 was amended to require the department to establish a boater education deferral program by rule.

         The proposed amendment would make a one-time, three-consecutive-day deferral of the boater education requirements of Parks and Wildlife Code, §31.109 regarding boater education, available for a fee of $10, to persons who are 18 years of age or older. The proposed rulemaking to establish the fee is published elsewhere in this issue of the Texas Register.

         In developing the proposed rule, the department considered that the word “deferral” means a delay or postponement, as opposed to an exemption. In addition, the department considered that the purpose of boater education is to make public waters safer for all persons who use them.  On that basis, the department is proposing a boater education deferral that is a one-time opportunity that will extend for no more than 72 consecutive hours.  The proposal is designed to provide a deferral program while also preserving the public safety benefits of boater education. The 72-hour duration of the boater education deferral will cover three consecutive days, since weekends, especially 3-day holiday weekends, are typically the times of heaviest water recreation.

         The proposed amendment would make the deferral available only to persons who are 18 years of age or older.  The age requirement is intended to provide for a minimum level of maturity for persons who obtain the boater education deferral.   A person who is 18 years of age is considered an adult for most purposes.

         Additionally, the proposed amendment would prohibit a person who has purchased a boater-education deferral from supervising the operation of a vessel by another person. Under Parks and Wildlife Code, §31.110(2), a person who meets certain criteria may supervise another person who has not completed boater education. The department does not believe that a person who is required to complete boater education, but is authorized to operate a vessel as a result of the deferral should be allowed to supervise another operator.

         The proposed amendment also provides an exception from the mandatory boater education requirement for persons operating a vessel that is being shown, tested, or demonstrated under a dealer’s, distributor’s, or manufacturer’s license. This exemption is authorized by Parks and Wildlife Code §31.110(a)(4).

2. Fiscal Note.

         Mr. Tim Spice, Boater Education Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Those implications will be positive for the state, since the proposed rule in conjunction with the proposed rulemaking to establish the fee, published elsewhere in this issue of the Texas Register, requires anyone who wishes to obtain a boater education deferral to purchase it at a cost of $10. The $10 fee amount was selected because it is identical to the fee amount for hunter education deferral provided in 31 Tex. Admin. Code §53.50(b)(2).

         Since the boater education deferral program is a new program, the department is unable to accurately predict the number of persons who will purchase the boater education deferral in each of the next five years.  As a result, the department is unable to accurately predict the revenue increase associated with the proposed rule.   Over the previous five fiscal years (FY7-FY11), between 8,200 and 10,900 persons per year have taken boater education courses in Texas, with a five-year average of 9,573 persons per year.  Not all persons who took boater education courses were required to take the courses in order to operate a vessel.  Also, not all persons who took boater education courses would be eligible for the deferral.

         By comparison, the hunter education deferral has been available since 2004.  During that period, the number of persons who have obtained the hunter education deferral represents about 34% of the persons who have taken hunter education.  Applying that ratio to the average number of person who have taken boater education (34% of 9,573), would result in an estimate of 3,255.  If 3,255 persons obtain a boater education deferral at a cost of $10/each, the total revenue to the state would be $32,550.  However, as noted above, it is impossible to accurately predict the number of persons who will obtain a boater education deferral.  A number of factors may also influence this number, including, but not limited to weather conditions.

         There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

            Mr. Spice 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 rules that are in compliance with the requirements of Parks and Wildlife Code.

         (B) There will be an adverse economic effect on persons required to comply with the rule as proposed; namely, the fee of $10 for the purchase of a boater education deferral.

         (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 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. The proposal impacts individuals who may wish to operate a motor boat or personal water craft, but would not have a direct impact on small or microbusinesses, although businesses that sell or rent motor boats and personal watercraft could see an indirect positive since the proposal could result in more persons being eligible to operate vessels.  Since the proposed rule does not directly affect small businesses or microbusinesses, 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. There will be no fiscal implications for persons required to comply with the rule as proposed.

         (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 rules may be submitted to Tim Spice, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8141 (e-mail: tim.spice@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §31.110, which requires the commission to establish a boater education deferral program by rule and allows the commission to exempt from the boater education requirement a customer of a business engaged in testing, showing, or demonstrating boats.

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

         §51.81. Mandatory Boater Education.

                 (a) All courses approved for certification and equivalency exam processes must be approved by the department using minimum national standards as means of approval.

                 (b) Courses and equivalency exams shall consist of the following subjects:

                         (1) Boats — boat uses, capacities, trailers, equipment, numbering, titling;

                         (2) Boating safety — accident causes, prevention and emergency procedures;

                         (3) Boating operation — preparation, float plans, navigation rules, navigation aids, local hazards and weather; and

                         (4) State laws — Texas Water Safety Act, Boating While Intoxicated (BWI) Laws, violation prevention and basic boating responsibilities.

                 (c) The course is successfully completed when the student:

                         (1) attends at least six hours of training;

                         (2) is evaluated by the instructor as acceptable in attitude, knowledge and skill; and

                         (3) scores a minimum of 70% on a course exam prescribed by the department.

                 (d) In lieu of a course, a person may complete an equivalency exam process consisting of a multiple-choice exam proctored by an agent appointed by the department or accessed through a department-sponsored web site.

                         (1) Home study and equivalency exam passage shall be set at a minimum 80 percent passing score.

                         (2) A person who fails the exam may retake it one time at least 24 hours after the time of first completion.

                 (e) The minimum age for certification is 12 years of age.

                 (f) The department shall:

                         (1) train and certify boater education instructors upon completion of an application, game warden interview and proof of student and instructor course completion;

                         (2) administer all records of certifications; and

                         (3) approve the standard form for a boater education identification to be issued to a person who successfully completes a boater education course or equivalency exam.

                 (g) In addition to those exemptions established in Parks and Wildlife Code, §31.110, and authorized in §31.108(b), persons who have successfully completed a "voluntary boater education course" previously administered or approved by the department are exempt from the requirements established in this subchapter.

                 (h) A person 18 years of age or older may obtain a one-time deferral from the boater-education requirements of Parks and Wildlife Code, §31.109, after paying the fee established in §53.50 of this title (relating to Training and Certification Fees) to the department.

                          (1) A deferral under this subsection does not authorize any person to supervise the operation of a vessel by any other person.

                         (2) A boater education deferral is valid for three consecutive days beginning on the date of purchase.

                                 (i)  A person who is a customer of a business engaged in showing, testing, or demonstrating boats under Parks and Wildlife Code Section 31.041 (d) is exempt from the boater education course requirement while showing, testing, or demonstrating a boat.

         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



Committee Agenda Item No. 2
Exhibit B

BOATER EDUCATION RULES

BOATER EDUCATION DEFERRAL FEE

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §53.50, concerning Training and Certification Fees. The proposed amendment would establish a fee of $10 for a one-time deferral of boater education course requirements.

         Under Parks and Wildlife Code, §31.109, no person born on or after September 1, 1993 may operate a personal watercraft or motorboat powered by a motor of greater than 15 horsepower, or a windblown vessel over 14 feet in length on public waters unless that person possesses evidence of successful completion of a boater education course approved by the department or “proof of completion of the requirements to obtain a vessel operator’s license issued by the United States Coast Guard.” Under the provisions of House Bill 1395, enacted by the 82nd Texas Legislature, Regular Session (2011), Parks and Wildlife Code, §31.110 was amended to require the department to establish a boater education deferral program by rule. The proposed rulemaking to establish the boater education deferral program, published elsewhere in this issue of the Texas Register, would allow a person to purchase a deferral of boater education requirements. This proposed amendment would establish the fee amount for the deferral.

2. Fiscal Note.

                 Mr. Tim Spice, Boater Education Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Those implications will be positive for the state, since the proposed rule in conjunction with the proposed rulemaking to establish the deferral option, published elsewhere in this issue of the Texas Register, requires anyone who wishes to obtain a boater education deferral to purchase it at a cost of $10. The $10 fee amount was selected because it is identical to the fee amount for hunter education deferral provided in 31 Tex. Admin. Code §53.50(b)(2).

         Since the boater education deferral program is a new program, the department is unable to accurately predict the number of persons who will purchase the boater education deferral in each of the next five years.  As a result, the department in unable to accurately predict the revenue increase associated with the proposed rule.   Over the previous five fiscal years (FY7-FY11), between 8,200 and 10,900 persons per year have taken boater education courses in Texas, with a five-year average of 9,573 persons per year.  Not all persons who took boater education courses were required to take the courses in order to operate a vessel.  Also, not all persons who took boater education courses would be eligible for the deferral.

         By comparison, the hunter education deferral has been available since 2004.  During that period, the number of persons who have obtained the hunter education deferral represents about 34% of the persons who have taken hunter education.  Applying that ratio to the average number of person who have taken boater education (34% of 9,573), would result in an estimate of 3,255.  If 3,255 persons obtain a boater education deferral at a cost of $10/each, the total revenue to the state would be $32,550.  However, as noted above, it is impossible to accurately predict the number of persons who will obtain a boater education deferral.  A number of factors may also influence this number, including, but not limited to weather conditions.

         There will be no fiscal implications for other units of state or local government.

3. Public Benefit/Cost Note.

         Mr. Spice 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 accurate rules with respect to fee amounts.

         (B) There will be an adverse economic effect on persons required to comply with the rule as proposed; namely, the fee of $10 for the purchase of a boater education deferral.

         (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 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.  The proposal impacts individuals who may wish to operate a motor boat or personal water craft, but would not have a direct impact on small or microbusinesses, although businesses that sell or rent motor boats and personal watercraft could see an indirect positive since the proposal could result in more persons being eligible to operate vessels.  Since the proposed rule does not affect small businesses or microbusinesses, 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. There will be no fiscal implications for persons required to comply with the rule as proposed.

         (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 rules may be submitted to Tim Spice, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8141 (e-mail: tim.spice@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §31.110, which requires the commission to establish a boater education deferral program by rule.

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

         §53.50. Training and Certification Fees.

                 (a) – (b) (No change.)

                 (c) Boater education fees.

                         (1) As used in this subsection, an "agent" is a person or entity (approved in accordance with department guidelines) acting on behalf of the department in the administration of a boater education course or course equivalency examination in accordance with department guidelines.

                         (2) Except as provided in paragraph (4) of this subsection, an agent shall collect a $10 per person examination or course fee and forward that fee to the department within 30 days after the examination or course is administered.

                         (3) In addition to the examination or course fee described in paragraph (2) of this subsection, an agent may charge and keep a service fee in an amount established in a fee schedule approved by the director, which shall not exceed $25.

                         (4) An agent providing an Internet-based boater education course and examination is exempt from the requirement to collect and forward to the department the $10 examination or course fee.

                         (5) The fees established in this subsection apply only to course content necessary to satisfy the minimum requirements for boater education certification in Texas. Nothing in this subsection shall be construed to prohibit an agent from providing and charging a fee for enhanced content.

                         (6) The fee for obtaining a boater-education deferral is $10.

         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



Committee Agenda Item No. 3
Presenter:  Robert Perez

Regulations Committee
Quail Management-Regulatory Recommendation
May 23, 2012

I.       Executive Summary:  This item is a briefing on staff recommendations regarding management approaches to recovery of quail populations.

II.      Discussion:  At the January 2012 meeting of the Regulations Committee, Wildlife Division staff presented a range of potential changes to quail regulations, including the staff recommendation.  At that time the Committee elected to defer action and directed staff to convene a select group of researchers and scientists to assess the department’s scientific processes with respect to quail.  At the March 2012 meeting of the Regulations Committee, Wildlife Division staff presented the results of the external science review.  The Committee directed staff to prepare a regulatory recommendation for presentation at the May meeting.  Staff will provide the Committee with an analysis of the efficacy of regulatory actions on quail recovery and a recommendation.










































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