Commission Agenda Item No. 3
Presenter: Ann Bright

Action
Adoption of Minor Rule Amendments to Implement Legislation
November 7, 2013

I.       Executive Summary:  TPWD staff is seeking adoption of minor amendments to TPWD regulations necessitated by legislation enacted by the 83rd Texas Legislature (2013).

II.     Discussion:  Staff is recommending adoption of the following amendments which make minor conforming changes to TPWD regulations as a result of legislation enacted by the 83rd Texas Legislature (2013):

Parks and Wildlife Code §31.021 authorizes TPWD to prescribe the location of identification numbers on vessels. HB 115 requires vessel registration numbers to be displayed anywhere on the forward half of the vessel, provides for alternative display of registration numbers for vessels whose hull or superstructure architecture creates visibility issues with respect to registration identification, and replaces the word “validation” with the word “registration.”  The proposed amendments conform TPWD’s regulations to these modified requirements.

Government Code, Chapter 2260 requires state agencies to adopt rule regarding the contract dispute resolution process described in Government Code Chapter 2260.  HB 586 added Civil Practice and Remedies Code, Chapter 114, regarding certain claims for breach of a written contract for engineering, architectural, or construction services or for materials related to engineering, architectural, or construction services.  Such claims are excluded from the provisions of Government Code Chapter 2260.  The proposed amendments reflect the exclusion of those claims from the process set out in Government Code Chapter 2260.

Parks and Wildlife Code §31.108 requires TPWD to adopt regulations to administer the boater education program and to provide for an equivalency examination in lieu of completion of the boater education course.  HB 597 requires that a boater education course or equivalency examination include information on how to prevent the spread of exotic harmful or potentially harmful aquatic plants, fish, and shellfish, and to include information on department-approved methods for cleaning boats, boat motors; fishing and other equipment, and boat trailers.  The proposed amendments conform TPWD’s regulations to these modified requirements.

TPWD’s rules implementing the off-highway vehicle program as required by Parks and Wildlife Code, Chapter 29, define “off highway motorcycle” by reference to the Transportation Code.  HB 1044 modified the cross reference to the Transportation Code in Parks and Wildlife Code Chapter 29.  In reviewing this modification, staff noted a cross-reference error in the definition of “off highway motorcycle” in TPWD’s rules.  The proposed amendment corrects that error.

HB 2649/SB 1342 amended Parks and Wildlife Code, §43.062, to provide that violation of a rule relating to a reporting requirement under a permit to trap, transport and transplant game animals and game birds (a Triple T permit) is a Class C Parks and Wildlife misdemeanor, rather than a Class B Parks and Wildlife misdemeanor.  The proposed amendment would add a reference to the punishment prescribed for a Class C Parks and Wildlife Code misdemeanor in Parks and Wildlife Code §12.406.

As required by Government Code Chapter 2110, TPWD has adopted rules regarding agency advisory committees, including the San Jacinto Historical Advisory Board.  These rules reference a representative from the Battleship Texas Commission.  HB 3163 amended Parks and Wildlife Code, §22.012, to replace the Battleship Texas Commission (which no longer exists) with the Battleship Texas Foundation.  The proposed amendment makes a conforming change to the TPWD’s rule.

HB 1718 amended Parks and Wildlife Code, §42.001 to allow terminally ill individuals who are participating in an event sponsored by a charitable organization to qualify as residents for purposes of purchasing a hunting license, upon approval of the executive director.  The proposed amendment modifies to TPWD rules regarding proof of residency to address this change and make other conforming changes.

III.    Recommendation:  The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to §§51.81, 51.200, 51.642, 53.90-53.91, 55.1, 59.231, and 65.119, as published in the October 4, 2013, issue of the Texas Register (38 Tex.Reg. 6864-6866, 6870-6874), with changes as necessary to the proposed text.”

Attachments – 7

  1. Exhibit A – Proposed Rule Amendment (§§53.90, 53.91)
  2. Exhibit B – Proposed Rule Amendment (§51.200)
  3. Exhibit C – Proposed Rule Amendment (§51.81)
  4. Exhibit D – Proposed Rule Amendment (§59.231)
  5. Exhibit E – Proposed Rule Amendment (§65.119)
  6. Exhibit F – Proposed Rule Amendment (§51.642)
  7. Exhibit G – Proposed Rule Amendment (§55.1)

Commission Agenda Item No. 3
Exhibit A

LEGISLATION REQUIRED OR AUTHORIZED BY LEGISLATION
HOUSE BILL 115
VESSEL REGISTRATION RULES
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §53.90, concerning Display of Registration Validation Sticker, and §53.91, concerning Documented Vessels.  The proposed amendments would implement statutory changes enacted by the 83rd Texas Legislature (Regular Session) and make additional changes for purposes of grammatical sense.

         Under Parks and Wildlife Code, §31.021, each vessel on the water of the state is required to be numbered unless specifically exempted. Under Parks and Wildlife Code, §31.032, the department is authorized to prescribe the manner in which identification numbers and validation decals are placed on a vessel. The provisions of current §53.90 require vessel registration numbers to be displayed on the bow of a vessel.

         House Bill 115 (H.B. 115), enacted by the 83rd Texas Legislature (Regular Session), amended Parks and Wildlife Code, §31.021, to require vessel registration numbers to be displayed anywhere on the forward half of the vessel, provided for alternative display of registration numbers for vessels whose hull or superstructure architecture creates visibility issues with respect to registration identification, and replaced the word “validation” with the word “registration.”

         The proposed amendment to §53.90 would replace references to the bow of a vessel with references to the forward half of a vessel, remove the word “validation” wherever it occurs, and replace the word “sticker” with the word “decal,” which is the term used in the statute. The proposed amendment would also restructure the section in the interest of clarity and readability. As currently written, the grammatical sense of the rule places the onus of regulatory compliance on the vessel, which is an inanimate object. The proposed amendment would reword the section so that it is clear that the section applies to persons operating vessels.

         The proposed amendment to §53.91 would remove the word “validation” wherever it occurs and re-word the section for grammatical sense for reasons set forth in the discussion of the proposed amendment to §53.90.

2. Fiscal Note.

         Cody Jones, State Boating Law Administrator, 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 and local governments as a result of enforcing or administering the rules.

3. Public Benefit – Cost Note.

         Mr. Jones 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 easier identification of vessels by marine safety enforcement officers.

         (B) 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 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 the rules as proposed would not affect any small or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006. There will be no adverse economic effect on persons required to comply with the rules as proposed.

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

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

         (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 rules.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted to http://www.tpwd.state.tx.us/business/feedback/public comment or Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, §31.032, which authorizes the department to prescribe the manner in which identification numbers and validation decals are placed on a vessel.

         The proposed amendments affect Parks and Wildlife Code, Chapter 31, Subchapter B.

         §53.90. Display of Registration [Validation] Sticker.

                 (a) Except as provided in this section or Parks and Wildlife Code, §31.022, no person may operate or give permission to operate any vessel on the water of this state unless the vessel is documented through the United States Coast Guard or displays the state-assigned TX numbers as prescribed in this section.

                 (b) No person required to register a vessel may dock, moor, or store the vessel on the water of this state unless the vessel is in compliance with the provisions of this section and the provisions of Parks and Wildlife Code, Chapter 31 that apply to required numbering.

                 (c) The registration decal for a documented vessel shall be placed on the forward half of each side of the vessel. On a vessel configured so that a number on the hull or superstructure is not easily visible, the number must be painted on or attached to a backing plate that is attached to the forward half of the vessel so that the number is visible from each side of the vessel.[Documented vessels are required to display the registration validation sticker on both sides of the bow and maintain current documentation through the United States Coast Guard or display the state-assigned TX numbering series with the decal.] The following are exempt from registration requirements:

                         (1) commercial tugboats;

                         (2) vessels exceeding 115 feet in length; and

                         (3) pilot or crew boats transporting freight, supplies, or personnel to or from cargo ships, freighters, or offshore oil infrastructure.

                 (d)[(b)] For the purposes of this section, vessel length is the length of the vessel listed on the United States Coast Guard national documentation.

                 (e)[(c)] Vessels registered as antique boats are permitted to display the registration decal[validation sticker] on the left portion of the windshield. In the absence of a windshield, the registration decal[validation sticker] must be attached to the certificate of number and made available for inspection when the boat is operated on public water.

         §53.91. Documented Vessels.

                 (a) A registration[New vessels that have applied for documentation may acquire a certificate of number and validation] decal may be obtained at any TPWD boat registration office. At the time of application, applicants must present:

                         (1) a properly completed registration application on a form supplied by the department;

                         (2) a copy of:

                                  (A) the current documentation from the U. S. Coast Guard National Vessel Documentation Center (USCGNVDC) or their website in the applicant’s name; or

                                  (B) the application for initial documentation with the USCGNVDC in the applicant’s name;

                         (3) payment of any tax required under Tax Code, Chapter 160, or verification of payment; and

                         (4) payment of the appropriate registration fee as required by Parks and Wildlife Code, §31.026, and §53.16 of this title (relating to Vessel, Motor, and Marine Licensing Fees).

                 (b) A certificate of number and registration decal for a used [Used] or previously documented vessel may be obtained[vessels may acquire a certificate of number and validation decal] at any TPWD boat registration office. At the time of application, applicants must present:

                         (1) a properly completed registration application on a form supplied by the department;

                         (2) a copy of:

                                  (A) the current documentation from the U. S. Coast Guard National Vessel Documentation Center (USCGNVDC) or their website in the previous owner’s name, or the applicant’s name; or

                                  (B) the lapsed documentation from the USCGNVDC or their website in the previous owner’s name and the application for current documentation with the USCGNVDC in the applicant’s name;

                         (3) payment of any tax required under Tax Code, Chapter 160, or verification of payment; and

                         (4) payment of the appropriate registration fee as required by Parks and Wildlife Code, §31.026, and §53.16 of this title [(relating to Vessel, Motor, and Marine Licensing Fees)].

                 (c) Renewal of certificate of number and registration[validation] decal for a documented vessel may be obtained[acquired] at any TPWD boat registration office. At the time of application, applicants must present:

                         (1) a properly completed registration application or renewal notice on a form supplied by the department, or a hand written request;

                         (2) a copy of the current documentation from the U.S. Coast Guard National Vessel Documentation Center (USCGNVDC) or their website in the current owner’s name;

                         (3) for vessels greater than 65 feet in length for the first registration renewal, verification of payment under Tax Code, Chapter 151, or verification from the TPWD boat system; and

                         (4) payment of the appropriate registration fee as required by §53.16 of this title [(relating to Vessel, Motor, and Marine Licensing Fees)].

                 (d) A registration decal is not required for a vessel used as a tender for direct transportation between a mother ship and the shore [is not required to display a validation decal], provided:

                         (1) the vessel is equipped with propulsion machinery of less than 10 horsepower;

                         (2) is owned by the owner of a vessel for which a valid certificate of number has been issued and displays the registration number of that vessel followed by the suffix "1" (i.e. TX-1234-AB-1) in the manner specified by Parks and Wildlife Code, §31.031; and

                         (3) is used for no purpose other than direct transportation between a mother ship and the shore.

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


Commission Agenda Item No. 3
Exhibit B

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
HOUSE BILL 586
CONTRACT DISPUTE RESOLUTION RULES
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §51.200, concerning Applicability. The proposed amendment would add contracts described in Civil Practice and Remedies Code, Chapter 114, to the list of the types of contracts to which the provisions of the department’s rules in Chapter 51, Subchapter J, do not apply.

         Government Code, Chapter 2260 sets out the procedure for handling certain contract claims against the state.  The department’s rules in Chapter 51, Subchapter J, set out the procedure for handling claims against the department asserted under Government Code, Chapter 2260.  The 83rd Texas Legislature (Regular Session) enacted House Bill (H.B.) 586, which amended the Civil Practice and Remedies Code by adding Chapter 114 to address certain design and construction claims arising under written contracts with state agencies. Under the provisions of H.B. 586, “a claim for breach of a written contract for engineering, architectural, or construction services or for materials related to engineering, architectural, or construction services brought by a party to the written contract, in which the amount in controversy is not less than $250,000, excluding penalties, costs, expenses, prejudgment interest, and attorney’s fees” that arises under a contract executed on or after September 1, 2013 is subject to the provisions of new Civil Practice and Remedies Code, Chapter 114, as added by H.B. 586, rather than Government Code, Chapter 2260.   Therefore, it is necessary to amend the department’s rules to exclude such contract claims from the department’s rule implementing Government Code, Chapter 2260.

         Under the department’s current rule, eight categories of contract types are exempted from the provisions of Chapter 51, Subchapter J. The proposed amendment adds contracts described in Civil Practice and Remedies Code, Chapter 114, to the list.

2. Fiscal Note.

         Ann Bright, General Counsel, 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 government as a result of enforcing or administering the proposed amendment.

3. Public Benefit/Cost Note.

         Ms. Bright 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 regulations.

         (B) 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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed, because the proposed amendment is for the sole purpose of conforming the department’s rules to recently enacted legislation.

         (C) 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.

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (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 http://www.tpwd.state.tx.us/business/feedback/public_comment or Ann Bright, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8558 (e-mail: ann.bright@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Government Code, §2260.052(c),  which requires each unit of state government with rulemaking authority to develop rules to govern the negotiation and mediation of contract claims against the state, and Parks and Wildlife Code, §11.0171, which requires the commission to adopt by rule policies and procedures for soliciting and awarding contracts.

         The proposed amendment affects Government Code, Chapter 2260 and Parks and Wildlife Code, Chapter 11.

6. Text.

         §51.200. Applicability.

                 (a) (No change.)

                 (b) This subchapter does not apply to contracts:

                         (1) – (6) (No change.)

                         (7) within the exclusive jurisdiction of federal courts or regulatory bodies; [or]

                         (8) that are solely and entirely funded by federal grant monies other than for a project defined in 51.201(10) of this title (relating to Definitions); or

                         (9) subject to Civil Practice and Remedies Code, Chapter 114.

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


Commission Agenda Item No. 3
Exhibit C

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
HOUSE BILL 597
MANDATORY BOATER EDUCATION PROGRAM
PROPOSAL PREAMBLE

1. Introduction.

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

         The 83rd Texas Legislature enacted House Bill (H.B.) 597, which amended Parks and Wildlife Code, Chapter 31 (commonly referred to as the Texas Water Safety Act) by adding §31.108(a-1), which requires a boater education course or equivalency examination to include information on how to prevent the spread of exotic harmful or potentially harmful aquatic plants, fish, and shellfish, including department-approved methods for cleaning boats, boat motors; fishing and other equipment, and boat trailers.

            Under Parks and Wildlife Code, §31.109, all boat operators born after September 1, 1993 are required to successfully complete an approved boater education course before operating certain vessels (vessels powered by a motor of more than 15 horsepower; windblown vessels of over 14 feet in length, and personal watercraft) on public waters. Under department rules (31 Tex.Admin.Code §51.81) a boater education course or equivalency examination shall consist of boats (uses, capacities, trailers, equipment, numbering, and titling), boating safety (accident causes, prevention, and emergency procedures), boating operation (preparation, float plans, navigation rules, navigation aids, local hazards and weather), and state laws (Texas Water Safety Act, Boating While Intoxicated (BWI) Laws, violation prevention, and basic boating responsibilities). The proposed amendment would add the provisions required by H.B. 597.

2. Fiscal Note.

            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 no fiscal implications to state or local government as a result of enforcing or administering the rule.

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 an increased awareness of the negative impacts of invasive species and steps that the boating public can take to minimize those impacts.

         (B) 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 does not impact individuals who may wish to operate a motor boat or personal water craft or small 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.

         (C) 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.

         (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 Comment.

         Comments on the proposed rules may be submitted to http://www.tpwd.texas.gov/business/feedback/public_comment or 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, §31.108, which requires the commission to adopt rules to administer a boater education program.

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

         §51.81. Mandatory Boater Education.

                 (a) (No change.)

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

                         (1) – (2) (No change.)

                         (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; and

                         (5) Information on how to prevent the spread of exotic harmful or potentially harmful aquatic plants, fish, and shellfish, including department-approved methods for cleaning:

                                  (1)  a boat;

                                  (2)  a boat’s motor;

                                  (3)  fishing and other equipment; and

                                  (4)  a boat trailer.

                 (c) – (i) (No change.)

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


Commission Agenda Item No. 3
Exhibit D

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
OFF-HIGHWAY VEHICLE TRAIL AND RECREATIONAL AREA PROGRAM
SENATE BILL 487, HOUSE BILL 1044
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §59.231, concerning the Off-Highway Vehicle Trail and Recreational Area Program.

         The proposed amendment would correct an inaccurate reference to the Transportation Code in subsection (a). The proposed amendment is a result of the passage of House Bill 1044  and Senate Bill 487 by the 83rd Texas Legislature (Regular Session), which amended Parks and Wildlife Code, §29.001, relating to the operation of all-terrain vehicles and recreational off-highway vehicles. The proposed amendment would amend §59.231 to refer to the definition of “motorcycle” in Transportation Code, §502.001.

2. Fiscal Note.

         Steve Thompson, Off-Highway Vehicle Program Manager, has determined that for each of the first five years that the rule as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the proposed amendment.

3. Public Benefit/Cost Note.

         Mr. Thompson 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 cross-references in department regulations.

         (B) 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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed, because the proposed amendment is nonsubstantive.

         (C) 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.

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (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 http://www.tpwd.state.tx.us/business/feedback/public comment or Steve Thompson, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8230 (e-mail: steve.thompson@tpwd.texas.gov).

5. Request for Public Comment.

         The amendment is proposed under Parks and Wildlife Code, §29.010, which authorizes the commission to adopt rules necessary to implement the provisions of Parks and Wildlife Code, Chapter 29.

         The proposed amendment affects Parks and Wildlife Code, Chapter 29.

6. Text.

         §59.231.  Off-Highway Vehicle Trail and Recreational Area Program.

                 (a) Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned by Parks and Wildlife Code.

                         (1) Off-highway motorcycle — a vehicle meeting the definition of a motorcycle in Transportation Code, §502.001[§502.001(12)], that is not registered for use on a public roadway.

                         (2) Public land — Any land on which an off-highway decal is required under Parks and Wildlife Code, §29.003.

                 (b) No person shall operate an off-highway vehicle on public land in this state unless an off-highway decal has been affixed to the off-highway vehicle.

                 (c) An off-highway vehicle decal does not authorize any person to:

                         (1) enter public land or operate an off-highway vehicle on public land if entry or use of an off-highway vehicle is otherwise prohibited; or

                         (2) operate an off-highway vehicle on a public roadway.

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


Commission Agenda Item No. 3
Exhibit E

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
PERMITS TO TRAP, TRANSPORT, AND TRANSPLANT GAME ANIMALS AND GAME BIRDS
SENATE BILL 1432, HOUSE BILL 2649
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §65.119, concerning Penalties.

         Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes the department to issue permits to trap, transport, and transplant game animals and game birds, urban white-tailed deer removal permits, and permits to trap and transport surplus white-tailed deer. Prior to September 1, 2013, Parks and Wildlife Code, §43.062, mandated that any violation of Subchapter E or a permit issued under Subchapter E constituted a Class B Parks and Wildlife Code misdemeanor. The 83rd Texas Legislature (Regular Session) enacted Senate Bill (S.B.) 1342 and House Bill (H.B.) 2649, which amended Parks and Wildlife Code, §43.062, to provide that a violation of a rule relating to a reporting requirement for a permit issued under Subchapter E or a term of a permit issued under Subchapter E is a Class C Parks and Wildlife Code misdemeanor. The proposed amendment would add a reference to the punishments prescribed for a Class C Parks and Wildlife Code misdemeanor.

2. Fiscal Note.

         Robert Macdonald, Regulations Coordinator, 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 government as a result of enforcing or administering the proposed amendment, which is nonsubstantive.

3. Public Benefit/Cost Note.

         Mr. Macdonald 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 cross-references in department regulations.

         (B) 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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed, because the proposed amendment is nonsubstantive.

         (C) 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.

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (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 http://www.tpwd.state.tx.us/business/feedback/public comment or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8230 (e-mail: robert.macdonald@tpwd.texas.gov).

5. Request for Public Comment.

         The amendment is proposed under Parks and Wildlife Code, §§43.061(f), 43.0661(c), and 43.062(k), which authorize the commission to promulgate rules necessary to implement the provisions of Chapter 43, Subchapter E.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter E.

6. Text.

         §65.119. Penalties. A person who violates a provision of this subchapter, a condition of any permit issued pursuant to this subchapter, or any provision of Parks and Wildlife Code, Chapter 43, Subchapter E, commits an offense and is subject to the penalties prescribed by Parks and Wildlife Code, §12.405 or §12.406, as applicable.

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


Commission Agenda Item No. 3
Exhibit F

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
HOUSE BILL 3163
SAN JACINTO HISTORICAL ADVISORY BOARD
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §51.642, concerning San Jacinto Historical Advisory Board (SJHAB). The proposed amendment would implement the provisions of House Bill 3163, enacted by the 83rd Texas Legislature (Regular Session), which amended Parks and Wildlife Code, §22.012, to rename the Battleship Texas Commission the Battleship Texas Foundation. The proposed amendment would also correct a typographical error.

2. Fiscal Note.

         Ann Bright, General Counsel, 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 government as a result of enforcing or administering the proposed amendment.

3. Public Benefit/Cost Note.

         Ms. Bright 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 regulations.

         (B) 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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed, because the proposed amendment is nonsubstantive.

         (C) 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.

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (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 http://www.tpwd.state.tx.us/business/feedback/public comment or Ann Bright, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8558 (e-mail: ann.bright@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Government Code, Chapter 2110, which requires that rules be adopted regarding each state agency advisory committee.

         The proposed amendment affects Government Code, Chapter 2110.

6. Text.

         §55.642. San Jacinto Historical Advisory Board (SJHAB).

                 (a) (No change.)

                 (b) The SJHAB shall consist of five members, which shall include the chairman of the Battleship Texas Foundation[Commission], the president of the San Jacinto Museum of History Association, and, three members of the public. The public members are appointed by the governor for staggered six-year terms expiring in odd-numbered years. One or[ore] more of the public members may be selected from the San Jacinto Chapter of the Daughters of the Republic of Texas.

                 (c) – (e) (No change.)

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


Commission Agenda Item No. 3
Exhibit G

RULES REQUIRED OR AUTHORIZED BY LEGISLATION
HOUSE BILL 1718
PROOF OF RESIDENCY REQUIREMENTS
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §55.1, concerning Proof of Residency. The proposed amendment would implement the provisions of House Bill 1718, enacted by the 83rd Texas Legislature (Regular Session), which amended Parks and Wildlife Code, §42.001, to allow terminally ill individuals who are participating in an event sponsored by a charitable organization to qualify as residents for purposes of purchasing a hunting license, provided approval of the executive director of the department has been obtained. The proposed amendment adds §55.1(8) to provide for the department’s executive director to authorize the issuance of a resident hunting license to a nonresident who is terminally ill and participating in an event sponsored by a charitable organization.  The proposed amendment also makes conforming changes to §55.1(5) and (6).   It should be noted that the reference to §53.3(b) in the proposed changes to §55.1(5) and 55.1(6) relates to a proposed amendment to §53.3 published elsewhere in this edition of the Texas Register.

2. Fiscal Note.

            Justin Halvorsen, Budget Analyst, 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 as a result of enforcing or administering the proposed amendment. However, the department is unable to accurately estimate of potential license sales volume resulting from the sale of resident hunting licenses to nonresidents who are terminally ill and participating in an event sponsored by a charitable organization is impossible, since the department does not collect data on the health status of persons purchasing nonresident licenses, does not track hunting opportunity provided by charitable organizations; and cannot precisely characterize revenue implications because there is more than one type of nonresident hunting license and only one resident hunting license. However, based on anecdotal information, the department believes that the number of licenses sold under the rule will be less than 100. To provide an estimate that captures the likely revenue implications, the department assumes that if 100 persons obtained a license pursuant to the proposed amendment, and all such license sales represent the difference between the most expensive nonresident license (the general nonresident hunting license — $315) and the resident general hunting license ($25), which yields an estimated revenue loss of $29,000.

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

3. Public Benefit/Cost Note.

         Mr. Halvorsen 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 regulations.

         (B) 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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed. There will be a positive economic effect on any nonresident who is authorized to purchase a resident hunting license because nonresident licenses are more expensive than the equivalent license for resident hunters.

         (C) 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.

         (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (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 http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §42.001(1)(D), which allows terminally ill individuals who are participating in an event sponsored by a charitable organization to qualify as residents for purposes of purchasing a hunting license, provided approval of the executive director of the department has been obtained, and §42.006, which authorizes the commission to prescribe requirements relating to the possession of a license issued under the provisions of Chapter 42.

         The proposed amendment affects Parks and Wildlife Code, Chapter 42.

6. Text.

         §55.1. Proof of Residency. The requirements of this section are in addition to any requirements of Parks and Wildlife Code, Chapters 42 and 46.

                 (1) – (4) (No change.)

                 (5) Except for active-duty members of the armed forces of the United States, and  nonresidents described in paragraph (8) of this section, §53.3(b) of this title (relating to Combination Hunting and Fishing License Packages), and §53.4(b) of this title (relating to Lifetime Licenses), the department will not issue a resident license or permit to any person if any proof of residency presented to the department indicates residency anywhere other than Texas.

                 (6) Except for active-duty members of the armed forces of the United States, and  nonresidents described in paragraph (8) of this section, §53.3(b) of this title, and §53.4(b) of this title, a person who claims residency in any other state for any purpose is not a Texas resident for the purposes of obtaining a resident license or permit from the department.

                 (7) (No change.)

                 (8) The executive director may authorize the issuance of a resident hunting license to a nonresident who is terminally ill and participating in an event sponsored by a charitable organization.

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


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