Commission Agenda Item No. 9
Presenter:  Scott Boruff

Action
Boater Education Deferral Program and Fees
November 8, 2012

I.       Executive Summary:  This item seeks adoption of proposed rules affecting mandatory boater education in Texas.  The proposed rules would:

II.      Discussion:  Under Parks and Wildlife Code, §31.109, no person born on or after September 1, 1993 may operate a personal watercraft, 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, proof of completion of the requirements to obtain a vessel operator’s license issued by the United States Coast Guard, or is exempt by commission rule.  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, 15-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 persons engaged in showing, testing, or demonstrating a boat from boater education requirements.

The Regulations Committee at its May 2012, meeting authorized staff to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the October 5, 2012, issue of the Texas Register (37 TexReg 7947-7950).  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 amendments to §51.81, concerning Mandatory Boater Education, and §53.50, concerning Training and Certification Fees, with changes as necessary to the proposed text as published in the October 5, 2012, issue of the Texas Register (37 TexReg 7947-7950).”

Attachments – 2

  1. Exhibit A – Proposed Boater Education Rules
  2. Exhibit B – Proposed Fee Rule

Commission Agenda Item No. 9
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.

         In 1997, the 75th Texas Legislature enacted House Bill (H.B.) 966, which amended Parks and Wildlife Code, Chapter 31 (commonly referred to as the Texas Water Safety Act) by adding §31.109, which required all boat operators born after September 1, 1984 to successfully complete an approved boater education course before operating certain vessels (vessels powered by a motor of 10 horsepower or more; windblown vessels of over 14 feet in length, and personal watercraft) on public waters. H.B. 966 also amended the Water Safety Act by adding §31.110, which stipulated that a person is not required to comply with the mandatory boater education requirements of §31.109 if, among other things, that person is at least 18 years of age or was exempt by rule of the commission.

            In 2009 the 81st Texas Legislature enacted HB 3108, which mandated the creation of an advisory panel to “study the current state of recreation safety on public waters in Texas and to make recommendations to the governor, the lieutenant governor, and the speaker of the house of representatives for improving safety.” In 2010 the advisory panel submitted the required report.  In this report, the panel found, among other things, that watercraft operator education will help to better prepare the operator to have a safe and successful experience on the water, that education will improve the safety of all passengers in the craft, and that with a more educated operator, passengers will be more directed to safety by the informed operator.  The panel also recommended that the legislature “continue the current Texas mandatory program,” but “remove the 18 years of age exemption” and “reset the born-on-date to September 1, 1993, which permits an ongoing phase-in corresponding to the current 17 year-old cap, and avoids significant state expenditures to catch up previously exempted age groups.”  In addition, the panel recommended that the legislature grant authority to the department to “establish an integrated temporary free deferral program for liveries, new boat sales, and dealer business purposes (show, demonstrate, and test).”

         Following the submission of the interim report, the 82nd Texas Legislature in 2011 enacted H.B. 1395, which amended several provisions of the Water Safety Act.  Section 31.109, as amended by H.B. 1395, provides that 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.” H.B. 1395 also eliminated the exemption from the boater education requirements for persons who are at least 18 years of age.  Persons born prior to September 1, 1993 (generally persons who are older than 19 year of age as of September 1, 2012), would not be subject to the boater education requirements of §31.110.

         H.B. 1395 also amended §31.110, to list five situations in which a person who would otherwise be subject to the mandatory boater education requirement is not required to comply with the mandatory boater education requirements of §31.109.  Two of the five situations in which a person is exempt from the boater education requirements apply only if authorized by a rule enacted by the Texas Parks and Wildlife Commission (the Commission).  Specifically, a person may be exempt from the boater education requirements if that person is exempt by rules of the commission as a customer of a business engaged in renting, showing, demonstrating, or testing boats, or if that person is otherwise exempt by rule of the commission.

         H.B. 1395 also amended §31.110 to require the department by rule to establish a boater education deferral program.  The boater education deferral program must be available at no cost to boat dealers, manufacturers, and distributors.  Therefore, the proposed rules establish a deferral program and a temporary exemption from the boater education requirements for persons who have obtained the boater education deferral, and provide an exemption for persons engaged in showing, testing, or demonstrating a boat, which will result in an exemption for boat dealers, manufacturers, and distributors.

         The proposed amendment would establish a one-time, 15-consecutive-day (from the day of purchase through midnight of the fifteenth day following purchase) deferral of the boater education requirements of Parks and Wildlife Code, §31.109 (regarding mandatory 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. The department intends to make the deferral available for purchase through the department’s license sales system.  As a result, a deferral could be purchased at any of approximately 1,700 locations statewide, or through the TPWD website (www.tpwd.state.tx.us).  In addition, a deferral could be purchased by telephone during business hours or at any time via the department’s website.

         In developing the proposed rule, the department considered that the word “deferral” means a delay or postponement, as opposed to an exemption. The panel recommendation also referenced a “temporary” deferral program.  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 15 days.  The proposal is designed to provide a deferral program while also preserving the public safety benefits of boater education.

         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 on a vessel that is being shown, tested, or demonstrated under a dealer’s, distributor’s, or manufacturer’s license. As noted above, Parks and Wildlife Code §31.110(a)(4) provides that a person may be exempt from the boater education requirements if that person is exempt by rule of the commission as a customer of a business engaged in renting, showing, demonstrating, or testing boats.  Under the proposed rule, a person who is renting a boat would not be exempt from the boater education requirements, but would be able to purchase a deferral.  However, under the proposed rule, a person who is a customer of a business engaged in showing, demonstrating, or testing boats would be exempt from the mandatory boater education requirements.

         Parks and Wildlife Code, §31.041(d) provides for the use of the license of a boat dealer, distributor and/or manufacturer when showing, demonstrating or testing a boat. Since a customer of a business who is showing, testing or demonstrating a boat is generally under the supervision of a representative of the dealer, distributor or manufacturer, there are fewer safety concerns. Department boating accident records indicate that during the period from 2007 to the current time, there were 12 accidents involving vessels with an “AA” registration. (Vessels being shown, tested, or demonstrated have a special registration, which is also valid for 15 days following the sale of a vessel by a dealer.)  These 12 accidents resulted in 13 injuries and one fatality. The department has determined that because of the low accident rate, customers involved in the show, test, or demonstration of boats should therefore be exempt from boater education requirements while engaged in those activities.

         The proposed rule requires all persons other than those involved in the show, test, or demonstration of vessels to either complete the mandatory boater education course or obtain the one-time deferral. This includes persons who rent vessels from a vessel livery. The department has determined, based on water safety data, that to be consistent with the legislative directive to improve boating safety, it is necessary to require persons who rent vessels to either have obtained boater education certification or the one-time boater education deferral.  There are 602,729 registered vessels in Texas, 940 of which are registered as livery (rental) vessels; therefore, rental vessels comprise .155% of all registered vessels in the state. Boating safety statistics indicate that during the period from 2007 to the current time, rented vessels were involved in 263 of 1220 (22%) of reported boating accidents, 126 of 665 (19%) of reported accident-related injuries, and 11 of 225 (5%) of boating-accident fatalities. Department statistics for the last five years also indicate that out of 263 boating accidents involving rented vessels, only three (1%) involved operators who had completed a department-approved boating education class. Although Parks and Wildlife Code, §31.111, requires vessel liveries to provide some safety instruction to customers (to include the provisions of the Water Safety Act, the operational characteristics of the rented vessel, and boating regulations that apply in the area where the rented or leased vessel will be operated), the department concludes that requiring persons who rent vessels to either complete a department-approved boater education class or obtain the proposed deferral would result in increased water safety. The proposed 15-day duration of the boater education deferral will cover the period of a standard two-week vacation and is also consistent with the time frame for a person to transfer the registration of a boat purchased from a dealer, distributor, or manufacturer.

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 TAC §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, §11.027, which authorizes the commission to by rule establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the code, and §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, Chapters 11 and 31.

         §51.81. Mandatory Boater Education.

                 (a) – (h) (No change.)

                 (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 15 consecutive days beginning on the date of purchase and ending at midnight of the fifteenth day following purchase.

                 (i) A person engaged in showing, testing, or demonstrating boats under Parks and Wildlife Code §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. 9
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 of $10 for the deferral.   The department intends to make the deferral available for purchase through the department’s license sales system.  As a result, a deferral could be purchased at any of approximately 1,700 locations statewide, or through the TPWD website (www.tpwd.state.tx.us).  In addition, a deferral could be purchased by telephone during business hours.

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 TAC §53.50(b)(2).  In addition, a fee in the amount of $10 is a minimal fee to cover department costs in administering the boater education deferral program.

         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 adversely 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, §11.027, which authorizes the commission to by rule establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the code, and §31.110, which requires the commission to establish a boater education deferral program by rule.

         The proposed amendment affects Parks and Wildlife Code, Chapter 11 and 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


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