Commission Agenda Item No. 7
Presenters:  Nancy Herron
Tim Spice

Action
Implementation of Legislation during the 82nd Texas Legislative Session
House Bill 3722 – Boater Education Fees
November 2, 2011

I.       Executive Summary:  This item seeks adoption of a proposed amendment to increase the fee that may be charged and retained by third-party entities for providing boater education courses.  The proposed amendment is necessary to implement the provisions of House Bill 3722, enacted by the 82nd Texas Legislature.

II.      Discussion:  The Texas Water Safety Act (Parks and Wildlife Code, Chapter 31) requires certain persons to complete an approved boater education course before legally being able to operate certain vessels in public waters.  Approved boater education courses are offered through agents appointed by the department.  Most people who take the Texas boater education course do so via an online course provided by agents appointed by the department.  The department has determined that the current statutory limit of $3 on the service fee that agents are allowed to collect and keep is not sufficient for agents to continue to provide the course.  In order to provide a reasonable incentive for agents to continue to provide this valuable and convenient service, the department proposes to increase the service fee to an amount determined by the department’s executive director, but not higher than $25, which is consistent with most other states and is believed to provide sufficient incentive for persons to continue to act as agents of the department for purposes of providing boater education.

Staff was authorized at the May 2011 meeting of the Regulations Committee to publish proposed rules required or authorized by legislation enacted by the 82nd Legislature.  The proposed amendments were published in the July 22, 2011 issue of the Texas Register (36 TexReg 4632-4633).  Staff will present a summary of public comment at the time of the meeting.

            Attachments — 2

  1. Exhibit A – Proposed Rules
  2. Exhibit B – Boater Education Fees

Commission Agenda Item No. 7
Exhibit A

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
HOUSE BILL 3722 – BOATER EDUCATION FEES
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.50, concerning Training and Certification Fees. The proposed amendment would establish a definition of “agent”, establish the $10 statutory examination or course fee for boater education training in rule, and allow an agent of the department who provides boater education instruction to charge and retain a per-person service fee in an amount established in a fee schedule approved by the department’s executive director, which shall not exceed $25.  The proposal would also exempt an agent providing an Internet course from the requirement to collect and forward to the department the $10 examination or course fee.

         The Texas Water Safety Act (Parks and Wildlife Code, Chapter 31), as amended by House Bill 1395 (HB1395), enacted by the 82nd Texas Legislature, requires persons born after September 1, 1993 to complete an approved boater education course before legally being able to operate a vessel of more than 15 horsepower, a windblown vessel of more than 14 feet in length, or a personal watercraft alone in public water.

         Parks and Wildlife Code, §31.108 allows the department to appoint agents to administer a boater education course or course equivalency examination.  Section 31.108 requires agents to collect and forward to the department a $10 course or examination fee and allows agents to collect and retain an additional $3 service fee.  Section 31.108 also allows the commission by rule to provide exemptions to the boater education requirements that are consistent with public safety in the operation of vessels.

         House Bill 3722 (HB 3722), enacted by the 82nd Texas Legislature, Regular Session, 2011, amended Parks and Wildlife Code, §31.108 to allow the Parks and Wildlife Commission to set the service fee that may be collected and retained by an agent.  The department has determined that the current $3 limit on the service fee that agents are allowed to collect and keep is not sufficient for agents to continue to provide boater education instruction and must be increased in order to ensure that this valuable, effective, and convenient service continues to be widely available.  The proposal would set the service fee at an amount established by a fee schedule approved by the executive director, but not more than $25.  The service fee amount was determined by conducting a survey of other states with similar boating education requirements. The survey indicated that boater education certification fees in Texas are the lowest in the nation, and that the median fee is $24.50. The department therefore proposes a service fee not to exceed $25, which is consistent with most other states and is believed to provide sufficient incentive for persons to continue to act as agents of the department for purposes of providing boater education.  The proposal authorizes the executive director to establish a service fee schedule to account for the varying costs among course delivery methods.

         In order to encourage the development and enhance the availability of Internet boater education courses, the proposal exempts the providers of Internet courses from the requirement to collect and submit to the department the $10 course or examination fee.  Boater education courses have been empirically proven to result in lower accident rates, which yields public benefits in many different ways. Exempting Internet course providers from the requirement to collect and forward a service fee to the department, will help to ensure that boater education is affordable and widely available.  Additionally, since boater education in Texas is mandatory for certain age groups and the department is required under Parks and Wildlife Code, §31.108(a)(4) to ensure that boater education courses and examinations are available in each county in the state, exempting Internet course providers from the $10 course or examination fee will help to ensure the availability of the course from the private sector and assist the department in carrying out is statutory obligations.

         The proposed amendment also clarifies that the proposal is not intended to prevent boater education providers who are agents of the department from offering and charging additional fees for course work that exceeds the standards established by the department.  The department recognizes that some providers may seek to offer enhanced courses for an additional fee.  Enhanced boater education courses may act to further the goals of boater safety.  Therefore, the department wishes to ensure that the proposes rules to not interfere with efforts to offer such additional course work.

2. Fiscal Note.

         Ms. Nancy Herron, Education Director, 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 state government, if any, as a result of enforcing or administering the rule, as the total annual revenue from boater education instruction fees is less than $30,000. Additionally, there are no fiscal implications associated with the service fees imposed by proposed amendments, as they are retained by the individual providing boater education instruction, not by the department.

3. Public Benefit/Cost Note.

         Ms. Herron 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 the continued availability of convenient boater education certification and the continued public safety benefits associated with reduced accident rates, insurance costs, and enforcement costs that are proven to result from boater education courses.

         (B) There will be an adverse economic effect on persons required to comply with the boater education requirements since the rule as proposed could result in an increase of up to $23 in the cost of enrolling in a the boater education course.

         (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. The department has determined that any economic impacts on small businesses or microbusinesses will be positive; therefore, 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 Nancy Herron, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4362 (e-mail: nancy.herron@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of House Bill 3722, 82nd Texas Legislature, Regular Session (2011), which amended Parks and Wildlife Code, §31.108 to authorize the commission to set a service fee that may be collected and kept by agents of the department who provide boater education instruction, and under Parks and Wildlife Code, §31.108(b), which authorizes the commission by rule to create exemptions from boater education requirements imposed by statute to the extent the exemptions are consistent with promoting public safety in the operation of vessels.

         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 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), 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 a boater education provider from providing and charging a fee for enhanced content.

         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


Commission Agenda Item No. 7
Exhibit B

Boater Education Fees

Online Boater Education Fees nationally:

Lowest Fee: $14.95

Highest Fee: $50.00

Median: $24.73

Approving this item will allow the executive director to set a service fee up to $25. Staff intend on expanding the list of Texas-approved course options. Suggested rates for Texas Boater Education Certification Course starting in January 2012:

In-person Course Student Fee

$20 ($10 state fee; $10 provider service fee)

Online Course Student Fee

No Charge up to $20 (waive $10 state fee; vendors keep up to $20)

The course options are contingent upon provider courses maintaining Nation Boating Safety Law Administrators’ (NASBLA) approval and meeting Texas standards.

 


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