Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 51.
EXECUTIVE
Subchapter O. ADVISORY COMMITTEES
The Texas Parks and Wildlife Department (the department) proposes
new §§51.601, 51.606 - 51.611, 51.621 - 51.624, 51.631, 51.632,
51.641 - 51.643, 51.651, 51.652, 51.661, 51.662, and 51.671 - 51.674, concerning
advisory committees.
The proposed new sections are necessary to implement the requirements of
Government Code, Chapter 2110, and Parks and Wildlife Code, §11.0162.
The Texas Parks and Wildlife Code authorizes the Chairman of the Texas Parks
and Wildlife Commission (the commission) to appoint advisory committees and
to "adopt rules that set the membership, terms of service, qualifications,
operating procedures, and other standards to ensure the effectiveness of an
advisory committee appointed under this section." Tex. Parks & Wild. Code §11.0162.
An advisory committee is a committee, council, commission, board, or task
force or other entity with multiple members that has as its primary function
advising a state agency in the executive branch of state government. Tex.
Gov’t Code §2110.001.
For a number of years, the department has sought advice from interested
persons and groups about the functions of the departments. Such input is important
as the commission and the department carry out the agency’s mission.
The formation of advisory committees is an efficient and effective method
of obtaining necessary and useful input. The proposed rules are intended to
ensure compliance with Government Code, Chapter 2110, and to formalize the
structure of department advisory groups. The department does not reimburse
advisory committee members for their expenses or otherwise compensate advisory
committee members.
There are two types of advisory committees used by the department, those
advisory committees that advise the chairman and commission on matters of
interest, and those advisory committees that advise the department on a day-to-day
basis. Proposed new §§51.601, 51.612 - 51.617, 51.621 - 51.625,
51.631, 51.632, 51.641 - 51.643, 51.651, 51.652, and 51.661 are rules governing
the committees advising the department, and proposed new §§51.671
- 51.674 are rules governing the committees advising the chairman and the
commission.
Under Government Code, Chapter 2110, unless otherwise provided by specific
statute, for each official advisory committee, a state agency must adopt rules
that (1) state the purpose of the committee; (2) describe the manner in which
the committee will report to the agency; and (3) establish the date on which
the committee will automatically be abolished, unless the advisory committee
has a specific duration established by statute. Tex. Gov’t Code §§2110.005,
2110.008. Government Code, Chapter 2110, also requires that the state agency
advised by the advisory committee annually evaluate each advisory committee’s
work, usefulness and costs related to the committee’s existence, including
the cost of agency staff time spent in support of the committee’s activities.
Tex. Gov’t Code §2110.006.
The membership of a state agency advisory committee is also addressed by
Government Code. An advisory committee must be composed of a reasonable number
of members, not to exceed 24. Unless otherwise provided by specific statute,
the composition of the advisory committee must provide a balanced representation
between: (1) industries or occupations regulated or directly affected by the
state agency and; (2) consumers of services provided by the state agency or
by the industries or occupations regulated by the state agency. Tex. Gov’t
Code §2110.002.
Unless otherwise provided by statute, an advisory committee will continue
its existence after the date established for the committee's abolishment only
through amendment to the agency’s rules regarding the advisory committee.
If a date for abolishment is not set by rule or by statute, the advisory committee
will be abolished on the fourth anniversary of the date of its creation, or
September 1, 2005. Tex. Gov’t Code §2110.008. An advisory committee
that state or federal law has specifically created is considered to have been
created on the effective date of that law unless the law specifically provides
for a different date of creation. Tex. Gov’t Code §2110.007.
Effective September 1, 2005, all department advisory groups appointed by
the chairman of the commission (the chairman) will be abolished. Likewise,
the terms of all current advisory group or task force members appointed by
the chairman will expire on September 1, 2005. After the effective date of
the proposed rules, the chairman may appoint members to the advisory committees
established by these rules.
Because the San Jacinto Advisory Board and the Operation Game Thief Committee
are established by statute and members are appointed by the governor and the
executive director, respectively, these committees and their members’
terms will not expire on September 1, 2005. Similarly, the Statewide Trails
Advisory Committee and the Game Warden Academy Advisory Committee are also
established by statute, although the members of these two committees are appointed
by the chairman. Therefore, the Statewide Trails Advisory Committee and the
Game Warden Academy Advisory will not expire on September 1, 2005, but the
terms of their members will expire September 1, 2005. The San Jacinto Advisory
Board, the Operation Game Thief Committee, the Statewide Trails Advisory Committee
and the Game Warden Academy Advisory Committee are all addressed in the proposed
rules.
Proposed new §51.601, concerning General Requirements, establishes
the general requirements for department advisory committees. Unless otherwise
provided, the general requirements would apply to all department advisory
committees established by rule. In addition, the proposed rules provide specific
requirements for each department advisory committee, including membership,
terms and other requirements.
The San Jacinto Advisory Board, the Texas Statewide Trails Advisory Committee,
the Game Warden Advisory Committee and the Operation Game Thief Advisory Committee
are required by statute. The proposed new rules regarding these statutorily
mandated advisory committees are intended to merely track the requirements
of the statutes establishing or requiring those committees.
The proposed new rules would establish six advisory committees involving
wildlife issues. The White-tailed Deer Advisory Committee, as addressed in
proposed new §51.606, will advise the department on issues relevant to
white-tailed deer and all programs involving white-tailed deer management
in Texas. The Game Bird Advisory Board, as addressed in proposed new §51.607,
will advise the department regarding the management, research, and habitat
acquisition needs of game birds and migratory game birds, the development
and implementation of game bird and migratory game bird regulations, research,
and management, and education and communications with various constituent
groups and individuals interested in game birds and migratory game birds.
The Texas Quail Council, as addressed in proposed new §51.608, will advise
the department on matters pertaining to the implementation of the Texas Quail
Conservation Initiative, including recommendations on matters pertaining to
the regulation, management, research, and funding needs with respect to the
four species of quail that occur in Texas. The Private Lands Advisory Board,
as addressed in proposed new §51.609, will advise the department on matters
pertaining to wildlife programs, management, and research on private lands
in Texas. The Bighorn Sheep Advisory Committee, as addressed in proposed new §51.610,
will advise the department on problems, alternatives, solutions and goals
regarding the restoration of desert bighorn sheep to Texas. The Wildlife Diversity
Advisory Committee, as addressed in proposed new §51.611, will advise
the department on management, research and outreach activities related to
nongame and rare species in the State of Texas.
The proposed new rules would establish five advisory committees involving
coastal fisheries issues. The Artificial Reef Advisory Committee, as described
in proposed new §51.621, will advise the department regarding the Artificial
Reef Program. The Blue Crab Advisory Committee, as addressed in proposed new §51.622,
will advise the department regarding the preparation and formulation of rules
and regulations necessary to carry out the department’s Blue Crab Management
Plan. The Oyster Advisory Committee, as addressed in proposed new §51.623,
will advise the department regarding preparation and formulation of rules
and regulations necessary to carry out the department’s Oyster Management
Plan. The Shrimp Advisory Committee, as addressed in proposed new §51.624,
will advise the department regarding preparation and formulation of rules
and regulations necessary to carry out the department’s Shrimp Management
Plan.
The proposed new rules would establish two advisory committees involving
freshwater fisheries issues. The Freshwater Fisheries Advisory Board, as addressed
in proposed new §51.631, will advise the department regarding all matters
pertaining to freshwater fisheries management and research in the State of
Texas. The Texas Rivers Conservation Advisory Committee, as addressed in proposed
new §51.632, will advise the department regarding the needs of natural
riverine resources while providing abundant recreational opportunities for
the public.
The proposed new rules would establish three advisory committees involving
state parks issues, two of which are statutorily required. The Texas Statewide
Trails Advisory Board, as addressed in proposed new §51.641, in compliance
with United States Code, Title 23, §206, will advise the department regarding
distribution of federal National Recreational Trail Funds to state and local
sponsors of trail projects and will assist in the development of educational
materials to inform the public about trail opportunities. The San Jacinto
Historical Advisory Board, as addressed in proposed new §51.642, pursuant
to Texas Parks and Wildlife Code, Chapter 22, Subchapter B, will review the
policies and operations of the San Jacinto Battleground and will advise the
department on the proper historical development of the battleground. The Historic
Sites Advisory Committee, as addressed in proposed new §51.643, will
advise the department regarding issues related to the state historic sites
and provide a mechanism for department staff and interested parties to exchange
information and address the needs of state historic sites.
The proposed new rules would establish two advisory committees involving
law enforcement issues, both of which are statutorily required. The Operation
Game Thief Committee, as addressed in proposed new §51.651 pursuant to
Parks and Wildlife Code, §12.202, will administer the operation game
thief funds and make reward payments and death benefit payments from that
fund. The Game Warden Academy Advisory Committee, as addressed in proposed
new §51.652, pursuant to Texas Occupations Code, §1701.252, will
develop a curriculum for the Game Warden Academy.
The proposed new rules would establish two advisory committee involving
communications issues. An Expo Advisory Committee, as addressed in proposed
new §51.661, will be appointed each year and will advise the department
regarding the planning and operation of the Texas Parks and Wildlife Expo,
an event to encourage and increase participation in hunting, fishing, and
outdoor recreation and build awareness and support for the conservation of
natural, cultural and historic resources. An Outreach, Interpretation, and
Education Advisory Committee, as addressed in proposed new §51.662, will
be appointed each year and will advise the department regarding efforts to
educate and encourage Texans to experience, learn, and take an active role
in conserving natural and cultural resources.
The proposed new rules would establish four advisory committees to advise
the chairman and the commission on a variety of issues. A State Parks Advisory,
as addressed in proposed new §51.671, will be appointed to advise the
chairman and commission regarding state parks. A Coastal Resources Advisory
Committee, as addressed in proposed new §51.672, will be appointed to
advise the chairman and commission regarding issues that cross fishery and
geographic boundaries on the coast of Texas. A Land Resources Advisory Committee,
as addressed in proposed new §51.673, will be appointed to advise the
chairman and commission regarding land resources. An Aquatic Resources Advisory
Committee, as addressed in proposed new §51.674, will be appointed to
advise the chairman and commission regarding aquatic resources.
The following groups are expressly exempt from the requirements of Government
Code, Chapter 2110, and are therefore not included in these rules: the Finfish
License Management Review Board, established in Parks and Wildlife Code, §47.073(f);
the Shrimp License Management Review Board, established in Parks and Wildlife
Code, §77.118 (f); and the Crab License Management Review Board, established
in Parks and Wildlife Code, §78.103 (f).
Ann Bright, General Counsel, has determined that for each of the first
five years the rules as proposed are in effect, there will be no fiscal implications
to state or local government as a result of enforcing or administering the
rules beyond those currently existing.
Ms. Bright has also determined that for each of the first five years the
rules as proposed are in effect, the public benefit anticipated as a result
of enforcing or administering the rules as proposed will be to ensure proper
management and effective use of department advisory committees.
The proposed new rules will result in no adverse economic effects to small
or micro businesses.
The department has not filed a local impact statement with the Texas Workforce
Commission as required by the Administrative Procedures Act, §2001.022,
as the agency has determined that the rules as proposed will not impact local
economies.
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.
The department has determined that Government Code, §2001.0225 (Regulatory
Analysis of Major Environmental Rules) does not apply to the proposed rules.
Comments on the proposed rules may be submitted by phone, written correspondence
or e-mail to Ann Bright, Texas Parks and Wildlife Department, 4200 Smith School
Road, Austin, Texas 78744; (512) 389-8558; or ann.bright@tpwd.state.tx.us.
1.
GENERAL REQUIREMENTS
31 TAC §51.601
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.601.General Requirements.
(a)
Definitions. The following words and terms, when used
in this subchapter, shall have the following meaning, unless the context clearly
indicates otherwise.
(1)
Advisory committee--a committee, council, commission,
board, or task force or other entity with multiple members that has as its
primary function advising the department.
(2)
Chairman--the chairman of the Texas Parks and Wildlife
Commission.
(3)
Commission --the Texas Parks and Wildlife Commission.
(4)
Department--the Texas Parks and Wildlife Department.
(5)
Director--the Executive Director of the Texas Parks and
Wildlife Department.
(b)
Creation. The Chairman may appoint advisory committees
to advise the commission on issues within the jurisdiction of the department
or the commission.
(c)
Function. Unless otherwise provided by law, an advisory
committee will address only those matters about which advice is sought. An
advisory committee will have no authority to establish agency policy.
(d)
Expiration of advisory committee. Unless expressly provided
in this subchapter or other law, each department advisory committee will expire
on the fourth anniversary of the date of its creation. The date of creation
shall be the date on which the rule establishing the advisory committee is
effective.
(e)
Membership. The chairman may, in his or her sole discretion,
appoint individuals to serve on an advisory committee. Membership in an advisory
committee will not exceed 24 (excluding ex officio members). Unless otherwise
provided by specific statute, membership of each advisory committee shall
be balanced to ensure representation of industries or occupations regulated
or directly affected by the department and consumers of services provided
by the department or by the industries or occupations regulated by the department
to which the advisory committee relates. Each advisory committee shall include
at least one department employee as an ex officio member. Members may be subject
to removal and/or replacement at the discretion of the Chairman.
(f)
Term of members. Unless expressly provided in this subchapter
or other law, each member to an agency advisory committee will serve a term
of four years. The terms may be staggered. Members’ terms will expire
at the end of four years or upon the termination of the advisory committee,
whichever is earlier. Members may be reappointed. Members serve at the will
of the chairman and may be removed at any time by the chairman. The terms
of members appointed prior to September 1, 2005, expire on September 1, 2005.
(g)
Presiding officer. The presiding officer of each advisory
committee shall be selected by the members of the advisory committee from
its membership. The chairman may make a recommendation to the advisory committee
regarding the presiding officer.
(h)
Subcommittees. The chairman may also appoint one or more
subcommittees of an advisory committee, so long as the membership of the advisory
committee, including any subcommittees does not exceed 24.
(i)
Meetings. Each committee shall meet at least once a year,
but may meet as often as necessary. The department ex officio member of the
each advisory committee shall work with the presiding officer to schedule
advisory committee meetings and provide adequate notice to department staff
and to other members.
(j)
Reports. On or before October 1 of each year of its existence,
each advisory committee shall submit a report to the department. Upon receipt
of the report, the department shall evaluate the advisory committee’s
work, usefulness and costs related to the committee’s existence, including
the cost of agency staff time spent in support of the committee’s activities.
Each report shall included the following:
(1)
a summary or minutes of meetings conducted during the
previous fiscal year (September 1-August 30);
(2)
a summary of recommendations from the advisory committee;
and
(3)
other information determined by the advisory committee
or the Chairman to be appropriate and useful.
(k)
Expenses. Members of each advisory committee will serve
without compensation or reimbursement for travel or other out-of-pocket expenses.
(l)
Rules. For each advisory committee appointed, the commission
shall adopt rules that address the purpose of the advisory committee and membership
qualifications. Such rules may also address the terms of service, operating
procedures, and other standards to ensure the effectiveness of an advisory
committee appointed under this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502797
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §§51.606 - 51.611
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.606.White-tailed Deer Advisory Committee (WTDAC).
(a)
The WTDAC is created to advise the department on issues
relevant to white-tailed deer and all programs involving white-tailed deer
management in Texas, including problems, options, goals and planning regarding
white-tailed deer.
(b)
The WTDAC consists of no more than 24 members. The composition
of the White-tailed Deer Advisory Committee shall represent, at a minimum:
(1)
the ecological range of white-tailed deer in Texas;
(2)
landowners;
(3)
conservation and management organizations; and
(4)
hunters.
(c)
The WTDAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.607.Game Bird Advisory Board (GBAB).
(a)
The GBAB is created to advise the department regarding
the following :
(1)
the management, research and habitat acquisition needs
of game birds and migratory game birds.
(2)
development and implementation of game bird and migratory
game bird regulations, research, and management.
(3)
education and communications with various constituent
groups and individuals interested in game birds and migratory game birds.
(b)
The GBAB consists of 10 members selected from members
of the general public with an interest in game bird and migratory game bird
management.
(c)
The GBAB shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.608.Texas Quail Council (TQC).
(a)
The TQC is created to advise the department on matters
pertaining to the implementation of the Texas Quail Conservation Initiative,
including the following:
(1)
regulation, management, research, and funding needs regarding
the four species of quail that occur in Texas and
(2)
management, research and habitat acquisition needs of
game birds and migratory game birds.
(3)
education and communications with various constituent
groups and individuals interested in the quail species of Texas.
(b)
The TQC consists of no more than 24 members. The composition
of the Texas Quail Council shall represent:
(1)
the ecological range of quail species in Texas;
(2)
landowners;
(3)
conservation organizations;
(4)
representatives of appropriate state and federal agencies;
and
(5)
quail hunters.
(c)
The TQC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.609.Private Lands Advisory Board (PLAB).
(a)
The PLAB is created to advise the department on all matters
pertaining to wildlife programs, management, and research on private lands
in Texas, including the following:
(1)
the development of an ecosystem approach to management
of habitats;
(2)
financing options for private lands programs;
(3)
development and dissemination of information regarding
management and research of wildlife habitat and ecosystems; and
(4)
any other matters at the request of the chairman.
(b)
The PLAB shall be composed of not fewer than 5 or more
than 24 members representing private landowners from the various ecological
regions of the state.
(c)
The PLAB shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.610.Bighorn Sheep Advisory Committee (BSAC).
(a)
The BSAC is created to advise the department about problems,
alternatives, solutions, and goals regarding the restoration of desert bighorn
sheep to Texas.
(b)
The BSAC consists of no more than 24 members. The composition
of the BSAC will be comprised of the following:
(1)
at least two members of the Texas Bighorn Society;
(2)
at least two persons who own land in the historic range
of desert bighorn sheep;
(3)
university faculty and staff as necessary and appropriate;
and
(4)
representatives of government agencies as necessary and
appropriate.
(c)
The BSAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.611.Wildlife Diversity Advisory Committee (WDAC).
(a)
The WDAC shall advise the department on matters pertaining
to management, research, and outreach activities related to nongame and rare
species in the State of Texas, including the following:
(1)
development and implementation of the wildlife diversity
related projects, grants, and policy;
(2)
wildlife diversity conservation and regulations;
(3)
education and communications with various constituent
groups and individuals interested in wildlife diversity in the state of Texas.
(b)
The WDAC consists of no more than 20 members representing
landowner and conservation organizations in Texas.
(c)
The WDAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502798
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §§51.621 - 51.624
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.621.Artificial Reef Advisory Committee (ARAC).
(a)
The ARAC is created to advise the department regarding
the ongoing Artificial Reef Program.
(b)
The ARAC shall consist of no more than 10 members of the
public who have an interest in the artificial reef program.
(c)
The ARAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.622.Blue Crab Advisory Committee (BCAC).
(a)
The BCAC is created to advise the department regarding
the preparation and formulation of rules and regulations necessary to carry
out the Blue Crab Management Plan.
(b)
The BCAC shall consist of no more than 10 members of the
public who have an interest in the blue crab management program.
(c)
The BCAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.623.Oyster Advisory Committee (OAC).
(a)
The OAC is created to advise the department regarding
the preparation and formulation of rules and regulations necessary to carry
out the Oyster Management Plan.
(b)
The OAC shall consist of no more than 10 members of the
public who have an interest in the oyster program.
(c)
The OAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.624.Shrimp Advisory Committee (SAC).
(a)
The SAC is created to advise the department regarding
the preparation and formulation of rules and regulations necessary to carry
out the Shrimp Management Plan.
(b)
The SAC shall consist of no more than 15 members of the
public who have an interest in shrimp issues.
(c)
The SAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502799
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §51.631, §51.632
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.631.Freshwater Fisheries Advisory Board (FFAB).
(a)
The FFAB is created for the purpose of advising the department
regarding all matters pertaining to freshwater fisheries management and research
in the state. The Board shall also advise the department regarding the following:
(1)
the development and implementation of freshwater fisheries
management programs throughout the state;
(2)
the development of management and research priorities;
(3)
the development of priorities for expenditures of angler
financed programs; and
(4)
the dissemination of information regarding freshwater
fisheries management and research.
(b)
The FFAB shall consist of at least 6, but not more than
24 individuals representing the state's freshwater angling public, the aquaculture
industry, the freshwater fishing industry, fisheries educators, and conservation
groups. Each member shall serve two-year or four-year terms as designated
by the chairman, and terms may be staggered to ensure continuity.
(c)
The FFAB shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.632.Texas Rivers Conservation Advisory Board (TRCAB).
(a)
The TRCAB is created to advise the department regarding
the needs of natural riverine resources while providing abundant recreational
opportunities for the public. The advisory committee’s responsibilities
include the following:
(1)
serving as a sounding group for the public’s interest;
(2)
assisting department staff in evaluating aquatic conservation
program strengths, weaknesses, and needs; and
(3)
providing advice and guidance to the department concerning
program goals and objectives.
(b)
The TRCAB shall consist of 16 members, which shall include
the following:
(1)
three private landowner representatives;
(2)
six natural resource conservation organizations;
(3)
four recreation representatives;
(4)
one retail business; and
(5)
two state/federal agency representatives.
(c)
The TRCAB shall comply with the requirements of §51.601
of this title (relating to General Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502800
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §§51.641 - 51.643
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.641.Texas Statewide Trails Advisory Board (TSTAB).
(a)
The TSTAB is created in compliance with United States
Code, Title 23, §206, to advise the department regarding the distribution
of federal National Recreational Trail Funds to state and local sponsors of
trail projects and to assist in the development of educational materials to
inform the public about trail opportunities.
(b)
The TSTAB shall consist of 10 members, which shall include
representatives with a diverse range of trail-related interests, which may
include pedestrian activities, including wheelchair use; skating or skateboarding;
equestrian activities, including carriage driving; nonmotorized snow-trail
activities; bicycling or use of other human-powered vehicles; aquatic or water
activities; and motorized vehicular activities, including all-terrain vehicle
riding, motorcycling, snowmobiling, use of off-road light trucks, or use of
other off-road motorized vehicles.
(c)
So long as the department receives federal National Recreational
Trail Funds, the TSTAB shall continue unless otherwise abolished by statute.
(d)
Unless otherwise required by law, the TSTAB shall comply
with the requirements of §51.601 of this title (relating to General Requirements).
§51.642.San Jacinto Historical Advisory Board (SJHAB).
(a)
The SJHAB is created pursuant to Texas Parks and Wildlife
Code, Chapter 22, Subchapter B, to review the policies and operations of the
San Jacinto Battleground and to advise the department on the proper historical
development of the battleground.
(b)
The SJHAB shall consist of five members, which shall include
the chairman of the Battleship Texas 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 ore more of the public members may be
selected from the San Jacinto Chapter of the Daughters of the Republic of
Texas.
(c)
The SJHAB shall continue until abolished by statute.
(d)
The SJHAB shall meet quarterly.
(e)
Unless otherwise required by Texas Parks and Wildlife
Code, Chapter 22, Subchapter B, the SJHAB shall comply with the requirements
of §51.601 of this title (relating to General Requirements).
§51.643.Historic Sites Advisory Committee (HSAC).
(a)
The HSAC is created to advise the department regarding
the issues related to state historic sites and the needs of the state historic
sites.
(b)
The HSAC shall consist of up to 11 members who shall include
professionals in the following fields: historic sites education, museums management,
historic architecture, history, archeology, and related disciplines.
(c)
The HSAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502801
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §51.651, §51.652
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.651.Operation Game Thief Committee (OGTC).
(a)
The OGTC is created pursuant to Parks and Wildlife Code, §12.202,
for the purpose of administering the operation game thief funds and to make
reward payments and death benefit payments from that fund.
(b)
The OGTC shall consist of 11 members appointed by the
director in accordance with Parks and Wildlife Code, §12.202. Members
shall serve staggered terms of six years, expiring on January 31 of each odd-numbered
year. The director shall appoint the chairman of the OGTC. The director or
a department employee designated by the director shall serve as secretary
to the OGTC.
(c)
The OGTC shall continue until abolished by statute.
(d)
Unless otherwise provided by Parks and Wildlife Code, §12.202,
the OGTC shall comply with the requirements of §51.601 of this title
(relating to General Requirements).
§51.652.Game Warden Academy Advisory Committee (GWAAC).
(a)
The GWAAC is created pursuant to Occupations Code, §1701.252
for the purpose of developing a curriculum for the Game Warden Academy.
(b)
The GWAAC shall consist of no more than 24 members. At
least one third of the members of the Game Warden Academy Advisory Committee
shall be public members that meet the qualifications required of a public
member of the Texas Commission on Law Enforcement Office Standards and Education
under Occupations Code, §1701.052.
(c)
The GWAAC shall continue until abolished by statute.
(d)
Unless otherwise provided by this section or by Occupations
Code, §1701.252, or the rules of Texas Commission on Law Enforcement
Office Standards and Education, including 37 TAC §215.7, the GWAAC shall
comply with the requirements of §51.601 of this title (relating to General
Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502802
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §51.661, §51.662
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.661.Expo Advisory Committee (EAC).
(a)
The EAC shall be appointed each year to advise the department
regarding the planning and operation of the Texas Parks and Wildlife Expo,
an event to encourage and increase participation in hunting, fishing and outdoor
recreation and build awareness and support for the conservation of natural,
cultural and historic resources.
(b)
The EAC shall consist of no more than 24 members, which
shall include representatives from the sporting goods industry, organized
youth groups, marketing organizations, and conservation organizations. Each
member shall serve until November 30th of the calendar year in which the member
is appointed.
(c)
The EAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.662.Outreach, Interpretation, and Education Advisory Committee (OIEAC).
(a)
The OIEAC is appointed to advise the department regarding
efforts to educate and encourage Texans to experience, learn, and take an
active role in conserving Texas’ natural and cultural resources.
(b)
The OIEAC shall consist of no more than 24 members.
(c)
The OIEAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502803
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §§51.671 - 51.674
The new rules are proposed under the authority of Parks and
Wildlife Code, §11.0162 and Government Code, §§2110.005, 2110.008.
The proposed new rules affect Parks and Wildlife Code, §11.0162.
§51.671.State Parks Advisory Committee (SPAC).
(a)
The SPAC is appointed to advise the chairman and the commission
regarding state parks.
(b)
The SPAC shall consist of no more than 24 members.
(c)
The SPAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.672.Coastal Resources Advisory Committee (CRAC).
(a)
The CRAC is created to advise the chairman and the commission
on issues that cross fishery and geographic boundaries on the coast of Texas.
(b)
The CRAC shall consist of no more than 10 members composed
of members in the public who have an interest in coastal resources issues.
(c)
The CRAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.673.Land Resources Advisory Committee (LRAC).
(a)
The LRAC is appointed to advise the chairman and the commission
on issues affecting land resources.
(b)
The LRAC shall consist of no more than 24 members.
(c)
The LRAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
§51.674.Aquatic Resources Advisory Committee (ARAC).
(a)
The ARAC is appointed to advise the chairman and the commission
regarding aquatic resources.
(b)
The ARAC shall consist of no more than 24 members.
(c)
The ARAC shall comply with the requirements of §51.601
of this title (relating to General Requirements).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502804
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department (the department) proposes
amendments to §§53.3, 53.5, and 53.60, concerning stamps, stamp
fees, and license and fee exemptions.
The proposed amendments are necessary to implement the requirements of
Senate Bill 1192 and House Bill 1076, as enacted by the 79th Texas Legislature.
Senate Bill 1192 reorganized the department’s game bird stamps, creating
two new stamps from the current three. The white-winged dove stamp ($7) and
waterfowl stamp ($7) are combined to create a single migratory game bird stamp.
The fee for the stamp is $7. The stamp is required for the hunting of any
migratory game bird (ducks, geese, teal, doves, coots, rails, gallinules,
and sandhill cranes). The turkey stamp is eliminated and replaced by an upland
game bird stamp ($7), which is required for the hunting of any non-migratory
game bird (turkey, quail, pheasant, chachalaca, and prairie chicken). The
legislation took effect June 20, meaning the stamp reorganization will be
effective for the 2005-2006 hunting season, which begins September 1, 2005.
House Bill 1076 requires the department to waive the fees for hunting and
fishing licenses for a Texas resident on active duty as a member of the United
States armed forces. In keeping with the waiver of license fees mandated by
the legislature, the department also believes that it is appropriate to waive
stamp fees for Texas residents on active duty in the United States armed forces.
The proposed amendment to §53.3, concerning Combination Hunting and
Fishing License Packages, would comport current language to reflect the creation
of the new stamps and the elimination of the repealed stamps, and would add
a new Texas resident active duty military super-combination hunting and "all
water" fishing package to the list of licenses available from the department.
The amendment is necessary to adjust the composition of the department’s
combination-license packages to reflect the creation of the new stamps and
the elimination of existing stamps and to implement the provisions of Senate
Bill 1192 and House Bill 1076, enacted by the 79th Texas Legislature.
The proposed amendment to §53.5, concerning Recreational Hunting Licenses,
Stamps, and Tags, would establish by rule the fees associated with the new
stamps and eliminate references and fees for stamps that no longer exist as
a result of legislative action. The amendment also eliminates a reference
to the bonus deer tag, which no longer exists. The amendment is necessary
to implement the provisions of Senate Bill 1192.
The proposed amendment to §53.60, concerning Stamps, would revise
the list of stamps to reflect the new stamp structure created by the legislature,
and delete references to the turkey, white-winged dove, and state waterfowl
stamps. Currently, §53.60 authorizes the executive director to exempt
certain persons from purchasing or possessing the listed stamps, exempts persons
under the age of 17 and lifetime resident hunting license holders from purchasing
or possessing the listed stamps, exempts a person with a lifetime resident
combination hunting and fishing license from purchasing or possessing the
listed stamps, exempts a qualified disabled veteran from purchasing or possessing
the listed stamps, and lists the stamps contained in the collectors edition
stamp package. The proposed amendment would remove references to the turkey,
white-winged dove, and state waterfowl stamps, insert references to the upland
game bird stamp and the migratory game bird stamp, and provide an exemption
to stamp requirements for active-duty members of the United States armed forces
who are Texas residents.
Robert Macdonald, regulations coordinator, has determined that for each
of the first five years the rules as proposed are in effect, there will be
fiscal implications to state government as a result of enforcing or administering
the rules. The department estimates a revenue loss of approximately $659,670
as a result of the waiver of stamp fees for Texas residents on active-duty
military service. The estimate was derived by multiplying the estimated number
of Texas residents on active-duty status (107,000) by the percentage of the
general population of Texas residents who purchase a hunting (5.55%) or fishing
license (15%), which produces the estimated number of Texas residents on active-duty
likely to obtain the license package (21,989). This figure was then multiplied
by the discounted price of the stamps contained in the "super combo" license
package ($30). The department does not have empirical data on purchases of
license types or stamps by active duty military personnel; therefore, for
comparative purposes, the department assumes that in prior years active duty
military personnel who purchased licenses or stamps purchased the "super combo"
package rather than individual licenses and stamps.
There will be no fiscal implications to units of local government. The
portion of the amendments that effect stamp reorganization will not result
in fiscal implications to state or local governments, since the upland and
migratory game bird stamps and fees are created by statute and not by this
rulemaking.
Mr. Macdonald also has determined that for each of the first five years
the rules as proposed are in effect, the public benefit anticipated as a result
of enforcing or administering the rules as proposed will be to ensure that
the department’s rules regarding stamps and fees are accurate, and that
the department is in compliance with the directives and intent of the legislature.
The proposed amendments will not result in adverse economic effects on
small or microbusinesses or persons required to comply with the rules.
The department has not filed a local impact statement with the Texas Workforce
Commission as required by Government Code, §2001.022, as the agency has
determined that the rules as proposed will not impact local economies.
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.
The department has determined that Government Code, §2001.0225 (Regulatory
Analysis of Major Environmental Rules) does not apply to the proposed rules.
Comments on the proposed rules may be submitted by phone, written correspondence
or e-mail to Ann Bright, Texas Parks and Wildlife Department, 4200 Smith School
Road, Austin, Texas 78744; (512) 389-8558; or ann.bright@tpwd.state.tx.us.
Subchapter A. FEES
1.
LICENSE, PERMIT, AND BOAT AND MOTOR FEES
31 TAC §53.3, §53.5
The amendments are proposed under the authority of Senate
Bill 1192, which amended Parks and Wildlife Code, Chapter 43, by adding Subchapter
S, which authorizes the commission to establish the fee for a stamp issued
under the subchapter and to exempt a person or class of persons by rule from
the stamp requirements of the subchapter; Parks and Wildlife Code, Chapter
43, Subchapter I, which authorizes the commission to exempt a person from
the stamp requirement of the subchapter; Chapter 43, Subchapter M, which authorizes
the commission to exempt a person from the stamp requirement of the subchapter;
Chapter 43, Subchapter U, which authorizes the commission to exempt a person
from the stamp requirement of the subchapter; and Chapter 50, which authorizes
the commission to establish fees for combination licenses or license packages.
The proposed amendments affect Parks and Wildlife Code, Chapters 43 and
50.
§53.3.Combination Hunting and Fishing License Packages.
Combination hunting and fishing license packages may be priced at an
amount less than the sum of the license and stamp prices of the individual
licenses and stamps included in the package.
(1)
Resident combination hunting and freshwater fishing package--$47.
Package consists of a resident hunting license, a resident fishing license
and a freshwater fish stamp;
(2)
Resident combination hunting and saltwater fishing package--$52.
Package consists of a resident hunting license, a resident fishing license,
a saltwater sportfishing stamp, and a red drum tag;
(3)
Resident combination hunting and "all water" fishing package--$57.
Package consists of a resident hunting license, a resident fishing license,
a freshwater fish stamp, a saltwater sportfishing stamp, and a red drum tag;
(4)
Resident senior combination hunting and freshwater fishing
package--$15. Package consists of a resident hunting license, a resident fishing
license and a freshwater fish stamp;
(5)
Resident senior combination hunting and saltwater fishing
package--$20. Package consists of a resident hunting license, a resident fishing
license, a saltwater sportfishing stamp, and a red drum tag;
(6)
Resident senior combination hunting and "all water" fishing
package--$25. Package consists of a resident hunting license, a resident fishing
license, a freshwater fish stamp, a saltwater sportfishing stamp, and a red
drum tag;
(7)
Resident super combination hunting and "all water" fishing
package--$64. Package consists of a resident hunting license,
a migratory
game bird stamp, an upland game bird stamp,
[
(8)
Resident senior super combination hunting and "all water"
fishing package--$30. Package consists of a resident hunting license,
a migratory game bird stamp, an upland game bird stamp,
[
(9)
Resident disabled veteran super combination hunting and
"all water" fishing package--$0. Package consists of a resident hunting license,
a migratory game bird stamp, an upland game bird stamp,
[
(10)
Texas resident active duty
military super combination hunting and "all water" fishing package--$0. Package
consists of a resident hunting license, an upland game bird stamp, a migratory
game bird stamp, an archery stamp, a resident fishing license, a freshwater
fish stamp, and a saltwater sportfishing stamp with a red drum tag; and
(11)
[
§53.5.Recreational Hunting Licenses, Stamps, and Tags.
(a)
Hunting licenses:
(1)
resident hunting--$23;
(2)
special resident hunting--$6. Valid for residents under
17 years of age, residents who are 65 years of age or older, and nonresident
hunters who are under 17 years of age on the date of license purchase;
(3)
replacement hunting--$10;
(4)
general nonresident hunting--$300;
(5)
nonresident special hunting--$125;
(6)
nonresident five-day special hunting--$45;
(7)
nonresident spring turkey hunting--$120; and
(8)
nonresident banded bird hunting--$25.
(b)
Hunting stamps and tags:
(1)
upland game bird
[
(2)
migratory game bird
[
(3)
archery hunting--$7[
[
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502805
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §53.60
The amendment is proposed under authority of Senate Bill 1192,
which amended Parks and Wildlife Code, Chapter 43, by adding Subchapter S,
which authorizes the commission to establish the fee for a stamp issued under
the subchapter and to exempt a person or class of persons by rule from the
stamp requirements of the subchapter; Parks and Wildlife Code, Chapter 43,
Subchapter I, which authorizes the commission to exempt a person from the
stamp requirement of the subchapter; Chapter 43, Subchapter M, which authorizes
the commission to exempt a person from the stamp requirement of the subchapter;
Chapter 43, Subchapter U, which authorizes the commission to exempt a person
from the stamp requirement of the subchapter; and Chapter 50, which authorizes
the commission to establish fees for combination licenses or license packages.
The proposed amendment affects Parks and Wildlife Code, Chapters 43 and
50.
§53.60.Stamps.
(a)
Stamp form. Stamp sizes and formats shall be prescribed
by the executive director.
(b)
Stamp Design. An artist's original rendition will be the
basic design. Stamps issued by an automated system may be an alternate design
as prescribed by the executive director.
(c)
Stamp Manner of Issuance. The stamp will be issued upon
payment of the prescribed fee in a manner determined by the executive director.
(d)
Stamp Purchase Identification and Possession Requirements.
(1)
A person may hunt without a required state hunting stamp
in immediate possession if the person has acquired a stamp electronically
(including by telephone) and has a valid authorization number in possession.
Authorization numbers shall only be valid for 20 days from purchase date.
(2)
A person may fish without a required fishing stamp in immediate
possession if the person has acquired a stamp electronically (including by
telephone) and has a valid authorization number in possession. Authorization
numbers shall only be valid for 20 days from purchase date.
(3)
A state hunting or fishing stamp issued in an automated
manner to a person using the stamp is valid for hunting or fishing purposes
without the user's signature on its face.
(e)
Stamp Exemptions.
(1)
The commission grants the executive director authority
to exempt persons participating in any event organized for the primary purpose
of promoting participation in fishing or hunting activities from the requirement
to purchase or possess the following stamps:
(A)
migratory game bird stamp
[
(B)
archery hunting stamp;
(C)
upland game bird stamp
[
[
(D)
[
(E)
[
(2)
All nonresident spring turkey hunting license holders are
exempt from requirements for acquisition and possession of the
upland
game bird
[
(3)
Special resident hunting license holders who are under
17 years of age on the date of license purchase and all lifetime resident
hunting license holders are exempt from requirements for acquisition and possession
of the following stamps:
(A)
migratory game bird stamp
[
(B)
upland game bird stamp; and
[
(C)
archery hunting stamp
.
[
[
(4)
All lifetime resident combination hunting and fishing license
holders are exempt from requirements for acquisition and possession of the
following stamps:
(A)
migratory game bird stamp
[
(B)
upland game bird stamp
[
(C)
archery hunting stamp;
[
(D)
[
(E)
[
(5)
All lifetime resident fishing license holders are exempt
from requirements for acquisition and possession of the following stamps;
(A)
saltwater sportfishing stamp;
(B)
freshwater fishing stamp.
(6)
All persons meeting the definition of a qualified disabled
veteran under the provisions of Parks and Wildlife Code, §42.012(c),
are exempt from the fees for the following stamps:
(A)
migratory game bird stamp
[
(B)
upland game bird stamp
[
[
(C)
[
(D)
[
(E)
[
(7)
All Texas residents on active
duty in the armed forces of the United States (including members of the Reserves
and National Guard on active duty) are exempt from the fees for the following
stamps:
(A)
migratory game bird stamp;
(B)
upland game bird stamp;
(C)
archery;
(D)
saltwater fishing; and
(E)
freshwater fishing.
(f)
Obsolete Stamps and Decals. An obsolete stamp is a stamp
that is not valid.
(1)
Obsolete stamps and decals shall be sold for informational
purposes, either at an established fee for collector's edition stamp package,
or at face value for individual stamps, plus a processing charge sufficient
to recover shipment, postage, and sales tax.
(2)
Stamps and decals shall remain on sale for a maximum of
one fiscal year after expiration. During the second year, obsolete stamps
and decals shall be sold only by book.
(3)
Previous issues of Nongame and Endangered Species stamps
may be made available for sale at $10 for individual stamps or decals, and
$75 or less for a complete set of the 11 stamps issued from 1985 through 1995.
The department may sell a limited number of collector's sets of the 11 stamps
issued from 1985 through 1995, framed and mounted, for $300 or less per set.
The department may add to this price a processing charge sufficient to recover
shipment, postage, and sales tax. The Department may give away earlier issues
of decals and use previously issued stamps in merchandise items that are offered
for sale or as promotional items.
(g)
Nongame and Endangered Species stamps issued during and
after 1996 are one of seven stamps issued as collectors series set and are
subject to the same rules as other obsolete stamps.
(1)
The executive director may maintain a limited number of
stamps and decals of each type and year.
(2)
All other obsolete stamps and decals shall be destroyed.
(h)
Collector's edition stamp package.
(1)
A collector's edition stamp package shall consist of one
each of the following stamps:
(A)
migratory game bird stamp
[
(B)
upland game bird stamp
[
(C)
nongame stamp;
(D)
archery stamp;
[
(E)
[
(F)
[
(2)
Stamps in the package are not valid for hunting or fishing.
(3)
Fee for the package shall be $10 wholesale price and $20
retail price plus applicable sales tax.
(i)
In addition to the freshwater fishing stamp, the department
may make available a collectible freshwater habitat stamp for a fee of $5.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502806
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department (TPWD) proposes new §53.91,
concerning Documented Vessels, and an amendment to §53.110, concerning
Marine Dealer, Distributors, and Manufacturers. Under Parks and Wildlife Code,
Chapter 31, the owner of each vessel requiring numbering by this state shall
file an application for a number with the department, an authorized agent
of the department, or a county tax assessor-collector.
Proposed new §53.91 prescribes the process and documentation necessary
to register a new, used, or previously documented vessel. The proposed new
section is necessary to establish procedures for vessel documentation and
registration that are consistent with those used in other states. Given the
commercial and recreational interrelationships between Texas and other states
with respect to boats, boating, and boat sales, the department believes it
is important to implement standardized practices to insure that the interactions
between regulatory agencies, commercial entities, and the public are similar
to what occurs or is normal in other states.
In addition to stipulating the required documentation for registration,
the proposed new section would also establish a maximum period of 15 days
during which the purchaser of a vessel would be allowed to operate the vessel
under the dealer’s number without having filed an application for a
certificate of number. The new section is necessary to provide for lawful
use of an unregistered vessel between the time a vessel is purchased and the
issuance of a certificate of number.
The proposed new section also makes an exception to the applicability of
the rule to a vessel used as a tender for direct transportation between a
mother ship and the shore and provides for the marking for such vessels. The
amendment is necessary to provide for a scenario in which a vessel is used
only as a ferry between a registered vessel and shore and separate vessel
registration is not necessary for the purposes of the subchapter because of
such use.
The amendment to §53.110, concerning Marine Dealers, Distributors,
and Manufacturers, clarifies the application requirements for persons seeking
to acquire a dealer’s license and establishes procedures for the denial
of license issuance, denial of license renewal, license suspension, and license
revocation of marine dealer, distributor, and manufacturer licenses by the
department. The amendment is necessary as a result of the passage of Senate
Bill 489 by the 79th Texas Legislature, Regular Session. Under the terms of
S.B. 489, persons holding a dealer’s, distributor’s, or manufacturer’s
license issued by the department must enter into a license agreement with
the department; and the department is authorized to establish license suspension
and revocation procedures.
The proposed amendment also introduces definitions for ‘contest,’ ‘demonstrate,’ ‘event,’ ‘recreational
purposes,’ ‘show,’ and ‘test’ in order to create
unambiguous terms for purposes of applicability, enforcement, and compliance.
Under Parks and Wildlife Code, §31.041, a licensee may use a dealer’s,
distributor’s, or manufacturer’s number to show, demonstrate,
or test on the water of this state instead of securing a certificate of number
for each vessel; however, the vessel cannot be used for recreational purposes
or for participation in a contest or event. The meaning of ‘recreational
use’ is problematic. Before buying a vessel for a given purpose or purposes,
a prospective purchaser understandably would want to evaluate the vessel’s
performance at given applications. For a fishing vessel, this would mean using
the vessel to go fishing; for a skiing vessel, it would mean towing a skier.
Such instances of use are clearly connected to the process of shopping for
and evaluating a vessel and are not purely recreational. The amendment is
necessary to provide clear differentiation between allowed and prohibited
uses of vessels by licensees and prospective customers.
The amendment also adds a provision to the application requirements for
a marine dealer’s license to address licensure of persons whose businesses
are not confined to a fixed physical location, such as commission-sale brokers
who at any given time may be attempting to sell vessels located on the water
in different parts of the state. The proposed amendment would require persons
engaged in such types of businesses to furnish to the department the physical
address, phone number, and management/ownership information for vessels not
physically located at the permanent business location of the licensee. The
amendment is necessary to ensure that the department’s rules encompass
the variety of business models that may be affected by the requirements of
Parks and Wildlife Code, Chapter 31.
The proposed amendment also adds clarifying language to the list of documentation
required to be maintained by licensees. Under current subsection (g), copies
of any and all documents, forms, and agreements applicable to a particular
sale are required to be retained for department inspection. The proposed amendment
inserts additional language to clarify that acts such as consignment, transfer
of ownership titling, titling and registration, and documentation activities
are all considered to be a part of sales activities. The amendment is necessary
to clarify exactly what activities require a person to obtain a dealer’s
license.
The proposed amendment also stipulates that an applicant must sign a license
agreement with the department indicating that the person agrees to abide by
all applicable statutes and regulations as a condition of license issuance.
The amendment is necessary to ensure that the full range of possible activities
contemplated by the legislative intent of Parks and Wildlife Code, Chapter
31, is explicitly acknowledged in the rule, and to comply with the mandates
of S.B. 489, which requires licensees to enter into a license agreement with
the department.
The proposed amendment also establishes criteria and procedures for revocation
and suspension of licenses. The amendment implements Senate Bill 489, enacted
by the 79th Texas Legislature, which authorizes the commission to adopt rules
governing revocation and suspension of licenses. The amendment is necessary
to protect the public, and the boating public in particular, by creating a
mechanism for the department to prevent persons who have not met the appropriate
standards from operating a business regulated by the department. The rule
provides for notice and hearing when the department determines that a license
should be revoked or suspended. The provisions are necessary to provide a
fair opportunity to be heard to those who may lose their license, and are
necessary to meet due process requirements.
Ms. Frances Stiles, Assistant Director of Revenue, has determined that
for each of the first five years that the rules as proposed are in effect,
there will be minimal implications to state government as a result of enforcing
or administering the rules. The department would incur costs related to administrative
hearings necessitated in the event of suspension or revocation procedures.
The costs are believed to be minimal, but cannot be quantified, as there is
no way to predict, for purposes of estimation, the nature, scope, or range
of future administrative hearings, if any, and no empirical data upon which
to base to an estimate. Additional positive revenue impacts could be created
by the sale of validation cards under the provisions of proposed §65.110(g);
however, the cards are not mandatory and the department has no empirical data
upon which to base an estimate. There will be no fiscal implications for units
of local government as a result of administering the rules as proposed.
Ms. Stiles also has determined that for each of the first five years the
rules as proposed are in effect, the public benefit anticipated as a result
of enforcing or administering the rules as proposed will be the improved ability
of the department to protect consumers and the safety of the boating public.
There may be a negligible economic effect on small businesses, microbusinesses,
and persons required to comply with the rules as proposed, in the form of
compliance with the requirements of §53.110(b)(7), which requires dealers
to maintain a list of marinas where floating inventory is maintained; (g)(7),
which requires dealers to maintain a log of all validation card usage by the
dealer. The cost of compliance is unquantifiable but believed to be negligible.
The department has not drafted a local employment impact statement under
the Administrative Procedures Act, §2001.022, as the agency has determined
that the rules as proposed will not impact local economies.
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.
Comments on the proposed rules may be submitted to Frances Stiles, Texas
Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744;
(512) 389-4860 (e-mail: frances.stiles@tpwd.state.tx.us).
Subchapter E. DISPLAY OF BOAT REGISTRATION
31 TAC §53.91
The new section is proposed under the authority of Senate
Bill 489, 79th Texas Legislature, Regular Session, which amended Parks and
Wildlife Code, Chapter 31, to authorize the commission to prescribe license
requirements and establish license revocation and suspension procedures, and
Parks and Wildlife Code, §31.0412, which authorizes the commission to
adopt rules regarding dealer’s, distributor’s, and manufacturer’s
licenses, including application forms, application and renewal procedures,
and reporting and recordkeeping requirements.
The proposed new section affects Parks and Wildlife Code, Chapter 31.
§53.91.Documented Vessels.
(a)
An original or renewal certificate of number and validation
decal for a new, used, or previously documented vessel may be acquired 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
(B)
a copy of the application for initial documentation with
the USCGNVDC;
(3)
payment of any tax required under Tax Code, or verification
of payment; and
(4)
payment of the appropriate registration fee as required
by §53.16 of this title (relating to Vessel, Motor, and Marine Licensing
Fees);
(b)
A purchased vessel may be used by the purchaser under the
dealer’s number of the seller for a period of no more than 15 consecutive
days from the date of purchase prior to filing an application for a certificate
of number.
(c)
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 legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502807
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §53.110
The amendment is proposed under the authority of Senate Bill
489, 79th Texas Legislature, Regular Session, which amended Parks and Wildlife
Code, Chapter 31, to authorize the commission to prescribe license requirements
and establish license revocation and suspension procedures, and Parks and
Wildlife Code, §31.0412, which authorizes the commission to adopt rules
regarding dealer’s, distributor’s, and manufacturer’s licenses,
including application forms, application and renewal procedures, and reporting
and recordkeeping requirements.
The proposed amendment affects Parks and Wildlife Code, Chapter 31.
§53.110.Marine Dealer, Distributors, and Manufacturers.
(a)
The following words and terms, when used in this subchapter,
shall have the following meanings, unless the context clearly indicates otherwise.
(1)
Broker--A person not employed
by a licensee but who acts as an intermediary or assists in the sale, sale
on consignment, display for sale, purchase, trade, or transfer of a vessel,
motorboat, or outboard motor in exchange for a fee, commission, or other consideration
more than five times per year. For the purposes of this subchapter, a broker
is a dealer.
(2)
Consignment--The sale or offer for sale by a
person other than the owner under terms of a verbal or written authorization
from the owner.
(3)
Contest--A competition for
a prize offering.
(4)
Demonstrate--To use a vessel
for the purpose of furnishing an example or illustration of practical application
to a customer.
(5)
Event--A planned or scheduled
gathering or activity involving the use of vessels, but does not include promotional
participation involving the showing of vessels by a licensee, or representative
of a licensee, acting within the scope of the licensee’s legitimate
business activities, provided the duration of the participation is less than
72 consecutive hours.
(6)
Recreational purposes--Any
activity not connected with the sale or exchange of a vessel or outboard motor.
(7)
Show--The exhibit or display
a vessel by a licensee for a legitimate business purpose.
(8)
Test--Any use of a vessel by
which a licensee, or representative of a licensee, acting within the scope
of the licensee’s legitimate business activities, evaluates the operational
worthiness of the vessel.
(b)
A person shall apply for a license as a dealer by submitting
a properly completed, department-approved application form, accompanied by
the following:
(1)
the fee prescribed by law for each license requested;
(2)
photographs clearly showing:
(A)
the permanent sign
at the location designated in the
application as the applicant’s permanent place of business,
clearly
indicating the name of the business;
(B)
the front of the business with public access; and
(C)
space sufficient for office, service area
(if applicable)
, and display of products
(if applicable)
;
(3)
a copy of the Tax Permit issued by the Comptroller under
Chapter 151, Tax Code;
(4)
verification of all assumed name(s), if applicable, in
the form of assumed name certificate(s) on file with the Secretary of State
or county clerk;
(5)
a photocopy of the current driver's license or Department
of Public Safety identification of the owner, president or managing partner
of the business[
(6)
a list of dealer agreements
; and
[
(7)
if the applicant maintains
floating inventory, a list of marinas where floating inventory is displayed
for sale. The list must account for no less than 90% of the inventory and
must identify, at a minimum:
(A)
the name and physical address of each marina;
(B)
the management personnel at each marina; and
(C)
the phone number for each marina.
(c)
A person shall apply for a license as a distributor or
manufacturer by submitting a properly completed, department-approved application
form accompanied by the following:
(1)
the fee prescribed by law for each license requested;
(2)
verification of all assumed name(s), if applicable, in
the form of assumed name certificate(s) on file with the Secretary of State
or county clerk;
(3)
a complete list of manufacturers represented by a distributorship;
and
(4)
a complete list of distributors, dealers, and manufacturers.
(d)
The department may issue a license under this subchapter
if:
(1)
the applicant submits a complete application form and required
attachments; and
(2)
the applicant signs a department-provided
license
agreement
[
(e)
A license holder shall notify the department in writing
within 10 days if there is any change of:
(1)
ownership;
(2)
business name;
(3)
physical location;
(4)
dealer agreement;
(5)
distributors, dealers, or representatives; or
(6)
address or phone information.
(f)
The licenses issued under this subchapter to dealers must
be publicly displayed at all times in the place of business
for which
the license is issued
.
(g)
At all times that a vessel
is on the water for the purposes of showing, demonstrating, or testing, a
department-issued validation card bearing the dealer’s license number
must be aboard the vessel and made available for inspection at the request
of any department employee acting in the scope of official duties.
(1)
The department shall issue one validation card
with each license.
(2)
Additional validation cards may be purchased
by the licensee upon payment of a fee in the amount specified by §53.16(a)(3)
of this title (relating to Vessel, Motor, and Marine Licensing Fees) per card.
(3)
A licensee shall maintain a current daily log
accounting for each use of each validation card issued to the licensee. The
log required by this section shall be retained for a period of two years and
shall be made available at the request of any department employee acting within
the scope of official duties. At a minimum, the log shall indicate, for each
use of a validation card:
(A)
the date and time of use;
(B)
the specific purpose of the use;
(C)
the name of the person using the validation
card;
(D)
a state-issued driver’s license or identification
card number; and
(E)
the name of the person authorizing the use of
the validation card, if authorized by any person other than the licensee.
(4)
A validation card is not valid if the dealer’s
permit for which it is issued is not valid.
(h)
[
(1)
date of purchase;
(2)
date of sale;
(3)
hull identification number and/or motor identification
number;
(4)
name and address of person selling, trading or consigning
to the dealer;
(5)
name and address of person purchasing from the dealer;
(6)
name and address of selling dealer individual if vessel
and/or outboard motor is offered for sale by consignment;
(7)
a copy of the vessel/outboard motor title/registration
receipt;
(8)
copies of any and all documents, forms, and agreements
applicable to a particular sale
, consignment, transfer of ownership titling,
titling and registration, or documentation through the U.S. Coast Guard,
including,
but not limited to title applications, work-up sheets, Manufacturer's Certificates
of Origin, titles or photocopies of the front and back of titles, factory
invoices, sales contracts, retail installment agreements, buyer's orders,
bills of sale, waivers, or other agreements between the seller and purchaser;
and
(9)
copies of written consignment agreements or power of attorney
for vessels, motorboats, or outboard motors.
(i)
The department may suspend
or revoke a license under this subchapter if:
(1)
the licensee has been finally convicted or received
deferred adjudication for a violation of Parks and Wildlife Code, Chapter
31, or a rule adopted under that chapter;
(2)
the licensee has violated Parks and Wildlife
Code, Chapter 31, or a rule adopted under that chapter;
(3)
the licensee made a false or misleading statement
in connection with the original or renewal application for the license, either
in the formal application itself or in any other written instrument relating
to the application submitted to the commission or its officers or employees;
(4)
the licensee is indebted to the state for taxes,
fees, or payment of penalties imposed by Parks and Wildlife Code, Chapter
31, or a rule adopted under that chapter;
(5)
the applicant or licensee was previously the
holder of a license issued under this subchapter that was revoked for cause
and never reissued by the department, or that was suspended for cause and
the terms of the suspension have not been fulfilled;
(6)
the applicant or licensee was previously a partner,
stockholder, director, or officer controlling or managing a partnership, corporation,
or store location whose license issued under this subsection was revoked for
cause and never reissued, or was suspended for cause and the terms of the
suspension have not been fulfilled;
(7)
the business does not intend to be open to all
members of the public nor during normal business hours;
(8)
the licensee or an employee of the licensee
has obtained, or attempted to obtain, any money, commission, fee, barter,
exchange or other compensation by fraud, deception or misrepresentation; or
(9)
the licensee or an employee of the licensee
is finally convicted or receives deferred adjudication for a violation of
any federal or state law relating to the sale, distribution, financing, registration,
taxing, or insuring of a vessel.
(j)
Provisions governing the revocation
or suspension of a license are as follows.
(1)
Before suspending or revoking a license under
this subchapter, the staff of the executive director of the department (executive
director) shall provide notice by certified mail to the licensee’s last
known address of the department’s intent to revoke or suspend the license.
Within 30 days of the date of the letter, the licensee may request an administrative
hearing. The hearing request must be in writing and addressed to: Manager
of Boat Titling, Registration, and Marine Licensing, Texas Parks and Wildlife
Department, 4200 Smith School Rd., Austin, TX 78744. For a hearing request
to be valid, the department must receive the hearing request within 30 days
of the date of the letter notifying the licensee of the department’s
intent to revoke or suspend the license. If no hearing request is received
within this time frame, the executive director shall make a final decision
whether to revoke or suspend the license.
(2)
Timely hearing requests shall be referred by
the department to the State Office of Administrative Hearings (SOAH) for adjudication.
(3)
The department shall provide notice of the hearing
date to the licensee by certified mail at the licensee’s last known
address at least ten days prior to the hearing date.
(4)
The licensee shall be responsible for all hearing
costs to SOAH, including but not limited to transcript and court reporting
costs incurred by the department. Prior to the beginning of the hearing, at
the request of department, the SOAH judge shall require the licensee to post
a bond in an amount set by the SOAH judge, payable to the department and conditioned
on prompt payment of hearing costs. Failure to post the requested bond prior
to the start of the hearing shall result in default by the licensee.
(5)
The failure of the licensee to appear at the
hearing shall entitle the department’s staff to request issuance of
a default proposal for decision or order by the judge.
(6)
At the conclusion of the hearing, SOAH shall
prepare a proposal for decision in accordance with SOAH rules. The proposal
for decision shall be submitted to the department’s deputy executive
director for administration, who will make the final decision on whether to
revoke or suspend the license.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on July 11, 2005.
TRD-200502808
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
Subchapter A. PROOF OF RESIDENCY REQUIREMENTS
31 TAC §55.1
The Texas Parks and Wildlife Department (the department)
proposes new §55.1, concerning Proof of Residency. Under current statutes,
there is no single standard for authoritatively establishing the residency
status of a person for the purpose of obtaining resident licenses and permits.
The term ‘resident’ is defined in several places in the Texas
Parks and Wildlife Code to mean a person that has resided in Texas for the
six-month period immediately preceding an application for a license or permit.
However, for the purposes of licenses issued under Parks and Wildlife Code,
Chapters 42 and 46, the term ‘resident’ includes members of the
United States armed forces on active duty, dependents of members of the United
States armed forces on active duty; and members of any other category of individuals
that the commission by regulation designates as residents.
House Bill 1636, enacted by the 79th Texas Legislature, Regular Session,
added Parks and Wildlife Code, §11.004, which authorizes the Parks and
Wildlife Commission to prescribe by rule the proof required to demonstrate
residency in this state for the purpose of obtaining a license or permit issued
by the department. The proposed new rule sets forth the documentation and
combinations of documentation acceptable to the department for determining
or proving residency for the purposes of obtaining a resident license or permit.
The department would like to note that the provisions of the proposed new
section will not necessarily be used to screen license purchasers at the time
of purchase; rather, they will be used as a definitive standard to determine
residency if questions arise regarding eligibility, or in the prosecution
of criminal acts. The proposed new rule is necessary to provide a single,
unambiguous standard that can be universally applied to all licenses and permits
issued by the department.
Mr. Robert Macdonald, regulations coordinator, has determined that for
each of the first five years the rule as proposed is in effect, there will
be no fiscal implications to state or local governments as a result of enforcing
or administering the rule.
Mr. Macdonald also has determined that for each of the first five years
the rule as proposed is in effect, the public benefit anticipated as a result
of enforcing or administering the rule will be a uniform standard for determining
residency standards for the purpose of obtaining a license or permit issued
by the department.
The proposed rule will not result in adverse economic effects on small
or microbusinesses or persons required to comply with the rule.
The department has not filed a local impact statement with the Texas Workforce
Commission as required by Government Code, §2001.022, as the agency has
determined that the rule as proposed will not impact local economies.
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.
The department has determined that Government Code, §2001.0225 (Regulatory
Analysis of Major Environmental Rules) does not apply to the proposed rule.
Comments on the proposed rule may be submitted by phone, written correspondence
or e-mail to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith
School Road, Austin, Texas 78744; (512) 389-4775; or robert.macdonald@tpwd.state.tx.us.
The new section is proposed under the authority of House Bill
1636, enacted by the 79th Texas Legislature, Regular Session, which authorizes
the Parks and Wildlife Commission to prescribe by rule the proof required
to demonstrate residency in this state for the purpose of obtaining a license
or permit issued by the department.
The proposed new section affects Parks and Wildlife Code, Chapter 11.
§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. In this section, "applicant"
means a person applying for a license or permit issued by the department.
(1)
Proof that an applicant has resided continuously in Texas
for more than six months immediately before applying for a resident license
or permit issued by the department shall consist of any four of the following:
(A)
a current property tax statement indicating that the applicant
is the owner of homestead property in Texas;
(B)
a valid drivers license issued by the Texas Department
of Public Safety not less than six months prior to the application to the
department for a resident license or permit;
(C)
the most recent six months of utility bills (from a single
utility) showing the applicant’s name and a physical address in Texas;
(D)
the most recent six months of paycheck receipts showing
the applicant’s name and a physical address in Texas;
(E)
a current Texas voter registration certificate showing
the applicant’s name and a physical address in Texas, issued not less
than six months prior to an application to the department for a license or
permit;
(F)
the person’s most recent tax return statement from
the Internal Revenue Service showing the applicant’s name and a physical
address in Texas;
(G)
a current vehicle registration showing the applicant’s
name and a physical address in Texas, issued not less than six months prior
to an application to the department for a license or permit;
(H)
military service record(s) indicating that the applicant’s
home of record is in Texas at the time of application;
(I)
military service record(s) indicating that the applicant
had been assigned to a duty station in Texas for the six months immediately
prior to the time of application;
(J)
a passport issued by the United States of America, showing
the applicant’s name and a physical address in Texas; or
(K)
a statement from the person’s parole board or probation
officer attesting to the fact that the person has continuously resided in
Texas for the six months immediately preceding the application for a license
or permit.
(2)
If an applicant is under the age of 25 and living in another
state for educational purposes, proof that the applicant has resided continuously
in Texas for more than six months immediately before applying for a license
or permit issued by the department shall consist of:
(A)
a notarized statement to the effect that the person is
a dependent of a Texas resident; and
(B)
a tuition receipt or other official evidence that the person
is currently enrolled as a non-resident in an educational institution located
in another state.
(3)
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.
(4)
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.
(5)
Upon determination by the department that a person who
obtained a resident license or permit was not eligible to obtain the license
or permit, the department shall notify the person that the license is void
and shall be surrendered to the department. A person that the department determines
has obtained a resident license or permit unlawfully is subject to criminal
prosecution.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502809
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
Subchapter A. STATEWIDE OYSTER FISHERY PROCLAMATION
31 TAC §58.11, §58.22
The Texas Parks and Wildlife Department proposes amendments
to §58.11, concerning Definitions, and §58.22, concerning Commercial
Fishing.
Responsibility for adopting rules covering the taking, attempting to take,
possession, purchase, and sale of oyster resources in the salt waters of Texas
is set forth in Parks and Wildlife Code, Chapter 76. Currently, Parks and
Wildlife Code, §76.001, defines a "barrel" and "box" for the purposes
of measuring take in the oyster fishery; however, neither of these terms reflect
the way oysters are packaged on vessels or purchased at the dock. The proposed
amendment to §58.11 would add a definition for the term ‘sack.’
The purpose of defining a sack as a measure of take is to place statutory
volumes in a context understandable to fishermen in the terminology of the
trade. The proposed amendment creates a standardized measurement (110 pounds
of oysters, including the sack, equals the volume of one box as defined by
statute). The proposed amendment is intended to make it easier for fishermen
to comply with limits and easier for game wardens to enforce them. The proposed
amendment also makes the definition consistent with that used in the Health
and Safety Code, §436.103(b), as it relates to the "sack" tax currently
collected in the oyster industry.
The amendment to §58.22 replaces the term ‘barrel’ with
the term ‘sack’ throughout the section.
Following extensive discussions with the department’s Oyster Advisory
Committee, the department proposes to reduce the daily limit of oysters from
50 barrels (150 sacks) of culled oysters to 90 sacks and to convert 2 barrels
of unculled oysters in possession to 6 sacks to reflect the changed units.
The purpose of this action is to promote efficiency in utilizing oyster resources
by providing a more stable price structure for oysters taken throughout the
duration of the open season. The proposed rulemaking, if adopted, is expected
to lengthen the productive part (in terms of sacks per vessel landed) of the
season. If landings are more stable, a more stable average price throughout
the season could be expected, which should create overall economic benefits
for the industry. An argument could be made that catching more sacks per trip
will increase efficiency and create more catch per unit of effort leading
to greater net profits. If price did not decline during these early harvest
peaks that might in fact be the case; however, dealers have indicated that
prices decline due to the high harvest levels at the beginning of the season.
The 2004 oyster season would be a good example of a volatile market. Landings
declined during the season from an initial average of 7,973 sacks per day
(November 2003) to an average 2,868 sacks per day by the last month of the
season (April 2004). The corresponding average price per sack in November
2003 was $14.11 per sack and the average of April 2004 was $15.28 per sack.
This indicates the price at the beginning of the season was 7% lower than
the price at the end of the season without accounting for any quality differences
that may occur between the fall and spring season for oysters. If a fisherman
who could catch 150 sacks per day at the beginning the season maintained this
proportion of the catch throughout the season, only fifty-three sacks per
day would be caught in the last month. Gross receipts would begin the season
at $2,115 per day and drop to $824 per day by the end of the season.
In contrast, the 2003 oyster season would be an example of a more stable
market. Landings declined slightly during the season from an initial average
of 5,753 sacks per day (November 2002) to an average 3,595 sacks per day by
the last month of the season (April 2003). The corresponding average price
per sack in November 2002 was $14.42 per sack and the average of April 2003
was $14.47 per sack. If a fisherman who could catch 150 sacks of oysters per
day at the beginning the season maintained this proportion of the catch throughout
the season, landings (total sacks) would be approximately 18% higher than
total landings during the 2004 season example above. Gross receipts would
begin the season at $2,163 per day and end the season at $1,356 per day, and
total gross receipts under this scenario would be 19.7% higher than total
gross receipts under the 2004 example above.
The proposed rulemaking is made under the assumption that to receive the
benefits of a stable market in a majority of future seasons, the fisherman’s
daily harvest must be reduced from the current level of 150 sacks per day
to the proposed bag limit of 90 sacks of oysters per day so that the total
available oysters in Texas bays would be reduced at a slower rate through
the season than can be routinely obtained with the higher bag limit. Intuitively,
this would suggest a significant reduction in gross receipts due to the significant
reduction in bag. However, the behavior of the market it self provides benefits
to the fisherman. If a fisherman during the 2003 season (i.e., used as the
stable example above) could catch 90 sacks of oysters per day at the beginning
the season and maintain this average catch rate throughout the season, landings
(total sacks) would be roughly equivalent to the total landings during the
2004 season example above. However, gross receipts would begin the season
at $1,298 per day and end the season at $1,301 per day, and total gross receipts
under this scenario would be 1.6% higher than total earnings under the 2004
example above. Fishermen will be impacted by this proposal; however, it is
expected that the benefits to fishermen will offset the negative impacts of
a reduced bag on early season efficiency.
Reducing the amount of oysters taken by an individual boat alone would
not accomplished this or any other management goal had not the 79th Legislature
limited the number of boats allowed to fish for oysters. Therefore, the proposed
rulemaking is consistent with the industry’s recommendations to limit
the number of commercial oyster boat licenses that may be issued for use in
Texas waters.
Robin Riechers, Director of Science and Policy, has determined that for
each of the first five years the rules as proposed are in effect, there will
be positive implications to state government and no fiscal implications to
local governments as a result of administering or enforcing the proposed rules.
The rules as proposed will simplify the enforcement of the sack limit and
create a standard "sack weight" equivalent to the "sack weight" used in the
Health and Safety Code. A greater level of enforcement is expected with the
new definition of a sack.
Mr. Riechers also has determined that for each of the first five years
the rules as proposed are in effect, the public benefit anticipated as a result
of enforcing or administering the rules as proposed will be more effective
enforcement of rules to protect the oyster resources of the state, a more
stable and viable oyster industry, and rules that are clearer, more concise,
more accurate, and more user friendly. The enhanced price stability throughout
the season and the overall increase in total revenue is expected to outweigh
any reductions in efficiency which may happen early in the season.
There will not be an adverse economic effect on small businesses, microbusinesses,
or persons required to comply with the rules as proposed. The department anticipates
that the proposed rules will result in a reduction in harvest in the early
part of the season, which has traditionally been much higher than the later
part of the season. However, by stabilizing harvest, the department anticipates
that the proposed rule will reduce the decline in late season harvest experienced
in recent years, thus offsetting any fiscal impacts experienced in the early
season.
The department has not drafted a local employment impact statement under
Government Code, §2001.022, as the agency has determined that the rules
as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory
Analysis of Major Environmental Rules), does not apply to the proposed rules.
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.
Comments on the proposal may be submitted to Jerry L. Cooke, Texas Parks
and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512)
389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.
The amendments are proposed under Parks and Wildlife Code, §61.052,
which requires the commission to regulate the means, methods, and places in
which it is lawful to hunt, take, or possess game animals, game birds, or
aquatic animal life in or from the places covered by the chapter, §76.301,
which authorizes the commission to regulate the taking, possession, purchase,
and sale of oysters.
The proposed amendments affect Parks and Wildlife Code, Chapters 61 and
76.
§58.11.Definitions.
The following words and terms, when used in the subchapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1) - (12)
(No change.)
(13)
Sack of oysters--A volume
of oysters equivalent to a box that weighs no more than 110 pounds including
the sack.
§58.22Commercial Fishing.
(a) - (b)
(No change.)
(c)
Possession Limits. It is unlawful while taking or attempting
to take oysters for pay or the purpose of sale, barter, or exchange or any
other commercial purpose to have on board any licensed commercial oyster boat:
(1)
more than
90 sacks
[
(2)
more than
6 sacks
[
(d)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502810
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
Subchapter A. PARK ENTRANCE AND PARK USER FEES
31 TAC §59.2
The Texas Parks and Wildlife Department (the department)
proposes an amendment to §59.2, concerning Park Entrance and Use Fees.
The amendment would implement an entrance fee range $1 - $15 for the Battleship
Texas State Historic Site.
The department establishes a fee range, consisting of an upper and lower
value, for each type of facility or service (or combination thereof), which
may vary from site to site. The purpose of the fee-range approach is to provide
the flexibility for the department to make incremental adjustments to the
fee structure from time to time (within the approved ranges) in response to
changing conditions over a multi-year period. The fee range proposed by the
department was determined by analysis of user demographics, benefit, demand,
and comparability with other providers of similar facilities and/or services
operated under similar conditions, and leisure industry trends.
The proposed amendment is necessary to provide additional funding to maintain
the current level of park services at the Battleship Texas for the benefit
of the public.
Mr. Walt Dabney, Parks Division Director, 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 as proposed. The current entrance fees at the Battleship Texas State
Historic Site, under the fee range prescribed by §59.2(e) are: $7.00
for persons 13 years of age and older, $4.00 for persons 65 years of age and
older, free admission to persons under the age of 13, and discounted entrance
fees for groups. Upon adoption of this rulemaking, the fees and the fee structure
will change. The department will implement increased fees below the proposed
maximum of the fee range under a new fee structure. The new fees will be $10
per person. There will be additional discounted visitation in the form of
persons who visit the site under the State Parks Pass, the totals for which
are unquantifiable, but who will pay a $5.00 fee. The department estimates
that approximately 145,900 persons will visit the site in each of the first
five years that the new fee range is in effect. The maximum possible revenue
per year that could be generated under the proposed new fee range would be
$1,288,340. This estimate was derived by subtracting the total visitation
revenue of 2004 ($900,160) from the estimated total visitation revenue for
2006, calculated at the maximum per-person price of $15. ($2,188,500). The
estimate is an approximate value representing the total possible revenue increase
under the proposed rule.
There will be no fiscal implications for units of local governments.
Mr. Dabney also has determined that for each of the first five years the
rule as proposed is in effect, the public benefit anticipated as a result
of enforcing or administering the rule as proposed will be the continuation
of Battleship Texas State Historic Site services at current levels for public
enjoyment and benefit.
There will be no adverse economic effects on small businesses or microbusinesses
as a result of administering or enforcing the proposed rule. The economic
effect on persons required to comply with the rule as proposed will be the
cost of the fee to enter the site.
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.
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.
Comments on the proposed rule may be submitted to Mike Crevier, Texas Parks
and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512)
389-8560 or 1-800-792-1112 extension 8560 (e-mail: mike.crevier @tpwd.state.tx.us).
The amendment is proposed under Parks and Wildlife Code, §13.015,
which authorizes the department to charge and collect park user fees for park
services, and requires the commission to set the fees.
The proposed amendment affects Parks and Wildlife Code, Chapter 13.
§59.2.Park Entrance and Use Fees.
(a)
An entrance/day use permit fee will be levied at state
parks. The fee will grant entry and presence privileges for a specific 24-hour
period or part thereof, regardless of the number of times of entry during
the valid period. At the end of each 24-hour period, the fee will become due
for the succeeding 24-hour period or part thereof.
(b)
An annual entrance/day use permit fee in the range of $50-$100
may apply at certain state parks where entrance fees are prescribed. The annual
permit will admit all occupants of a private, noncommercial vehicle, but will
not apply to commercial, quasi-public, or public buses, or other such vehicles.
(c)
Annual entrance permits are not valid for commercial purposes,
conducted tours, for fishing privileges on fishing piers, or at parks where
entrance fees are not prescribed.
(d)
A Youth Group Annual Entrance Permit may be purchased by
youth organizations composed of individuals age 18 and under for an annual
fee of $50-$300. The group must be designated as a nonprofit organization.
The permit is valid for entry at all recreational parks and historic sites
managed by Texas Parks and Wildlife Department. No more than 50 persons, including
a reasonable number of adult supervisors as determined by the site manager
will be admitted with each permit. The number of vehicles or the number of
individual persons per historic site may be limited by the park manager. An
additional permit(s) is required if the group exceeds 50 persons. Permit is
valid for 12 months from date of purchase. To purchase the group permit, eligible
organizations must submit an application along with the required fee to Texas
Parks and Wildlife Headquarters, any state park, or other office designated
by the department for approval. The permit authorizes entry of vehicles carrying
group members provided the adult sponsor presents the permit(s) at the park
entrance and identifies each vehicle carrying group members.
(e)
An entrance fee of $1.00-$7.00 will apply on a per person
basis at parks designated by the department. Where variable entrance and use
fees are authorized by the commission, they may be set on an individual park
basis.
(f)
An entrance fee of $1.00-$15
per person will apply at the Battleship Texas State Historic site.
(g)
[
(h)
[
(i)
[
(j)
[
(1)
disabled veteran's of Texas license plate receipt;
(2)
veteran's award letter (which establishes the degree of
service-connected disability);
(3)
tax exemption letter for Texas veterans.
(k)
[
(l)
[
(1)
Eligibility requirements. To be eligible to receive a parklands
passport under this section, an individual with a physical or mental impairment
that substantially limits one or more major life activities must:
(A)
have been medically determined to be disabled as a result
of such mental or physical impairment (including blindness) for purposes of
receiving benefits under the Social Security Act; and
(B)
be currently receiving such benefits.
(2)
Application procedure. An individual applying for a parklands
passport under this subsection shall:
(A)
apply in person at Texas Parks and Wildlife Department
Headquarters or at any park or other office designated by the department;
(B)
submit positive identification and either an Award of Benefits
Letter, or a Statement of Benefits, from the Social Security Administration
attesting to the applicant's permanent disability;
(C)
submit an affidavit or attestation in a form approved by
the Department certifying that the applicant meets the requirements of paragraph
(1) of this subsection.
(3)
Privileges. A parklands passport used for the purposes
of this subsection shall discount entry fees to State Parks for the individual
pass holder for a period of one year from the date of issuance. The discount
will be 50% of the established park entry fee, rounded up to the nearest whole
dollar amount. The pass shall be nontransferable, but shall also authorize
discounted entry for one person accompanying the pass holder, if the pass
holder needs assistance while visiting the State Park. For the purposes of
this subsection, "accompanying" means entering a park simultaneously with
the pass holder.
(m)
[
(n)
[
(o)
[
(p)
[
(q)
[
(r)
[
(1)
for day use, the time period encompassing the day-use opening
and closing hours of the park on the date on which admission is paid; and
(2)
for overnight use, a 24-hour period beginning at 2 p.m.
on the date admission is paid unless otherwise established at sites where
circumstances or conditions warrant alternative timeframes.
(s)
[
(t)
[
(u)
[
(v)
[
(w)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502811
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
31 TAC §59.221
The Texas Parks and Wildlife Department (TPWD) proposes new §59.221,
concerning Acceptance of Gratuities. House Bill 2685, enacted by the 79th
Texas Legislature (Regular Session), added new Parks and Wildlife Code, §11.0262,
which provides that an employee of the state parks division of the department
may accept a gratuity if the employee, as a primary job duty, serves food
or beverages in a restaurant, cafeteria, or other food service establishment
located within a state park that is owned and operated by the department,
provided the employee has been authorized by the department to accept gratuities
and reports the gratuities according to department rules.
The proposed new section would implement the requirements of H.B. 2685
by requiring the department to authorize those employees eligible to receive
gratuities as a consequence of their department duties and by establishing
the department policy with respect to the reporting of gratuities received
by department employees. The proposed new section would require that employees
be authorized by the executive director to receive gratuities as a consequence
of their job duties. The proposed new section also would stipulate that employees
authorized to receive gratuities and the department will follow all applicable
laws and policies with respect to the reporting and recordkeeping of income
from to the acceptance of gratuities.
Walt Dabney, Parks Division Director, 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. Based on 2004 pre-tax restaurant sales, the department will incur
an estimated expense of $34,782 per year due to FICA tax withholding. The
department derived this estimate by taking the 2004 pre-tax restaurant sales
($303,110), multiplying that figure by the customary gratuity of 15%, and
multiplying the resulting number ($45,466.50) by the department’s share
of FICA withholding tax (7.65%).
There will be no fiscal implications for units of local governments.
Mr. Dabney also has determined that for each of the first five years the
rule as proposed is in effect, the public benefit anticipated as a result
of enforcing or administering the rule as proposed will be compliance with
the directives of the legislature.
There will be no adverse economic effect on small businesses, microbusinesses,
or persons required to comply with the rule as proposed.
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.
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.
Comments on the proposed rule may be submitted to Mike Crevier, Texas Parks
and Wildlife Department 4200 Smith School Road, Austin, Texas 78744; (512)
389-8560 (e-mail: mike.crevier@tpwd.state.tx.us).
The new section is proposed under Parks and Wildlife Code, §11.0262,
as added by House Bill 2685, 79th Texas Legislature, Regular Session, which
authorizes the commission to adopt rules necessary to implement the requirements
of the section.
The proposed new section affects Parks and Wildlife Code, Chapter 11.
§59.221.Acceptance of Gratuities.
(a)
No employee of the department may accept a gratuity offered
by a customer of a restaurant, cafeteria, or other food service establishment
operated by the department unless the employee has been authorized to do so
by the executive director.
(b)
An employee authorized under subsection (a) of this section
to accept gratuities shall follow the policies of the department and all applicable
laws of the United States and the State of Texas applicable to the reporting
of gratuities.
(c)
The department shall follow all applicable laws of the
United States and the State of Texas applicable to the reporting of gratuities
received by department employees under the provisions of this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 11, 2005.
TRD-200502812
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 389-4775
Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION
1.
GENERAL PROVISIONS
2.
WILDLIFE
3.
COASTAL FISHERIES
4.
INLAND FISHERIES
5.
STATE PARKS
6.
LAW ENFORCEMENT
7.
COMMUNICATIONS
8.
COMMITTEES OF THE COMMISSION
Chapter 53.
FINANCE
a turkey stamp, a
white-wing dove stamp, a state waterfowl stamp,
] an archery stamp, a
resident fishing license, a freshwater fish stamp, and a saltwater sportfishing
stamp with a red drum tag;
a turkey
stamp, a white-wing dove stamp, a state waterfowl stamp,
] an archery
stamp, a resident fishing license, a freshwater fish stamp, and a saltwater
sportfishing stamp with a red drum tag;
a turkey
stamp, a white-wing dove stamp, a state waterfowl stamp,
] an archery
stamp, a resident fishing license, a freshwater fish stamp, and a saltwater
sportfishing stamp with a red drum tag; and
(10)
] Replacement combination or
replacement super combination packages--$10 except for a replacement disabled
veteran super combination hunting and "all water" fishing package
or
a Texas resident active duty military super combination hunting and "all water"
fishing package,
which shall be replaced at no charge.
turkey
]--
$7
[
$5
];
white-winged dove
]--$7;
and
;
]
(4)
state waterfowl--$7.; and]
(5)
bonus deer tag--$10
].
Subchapter B. STAMPS
white-winged
dove stamp
];
turkey stamp
];
(D)
state waterfowl stamp;]
(E)
] saltwater sportfishing stamp;
and
(F)
] freshwater fishing stamp.
turkey
] stamp.
white-winged
dove stamp
];
turkey stamp;
]
; and
]
(D)
state waterfowl stamp;]
white-winged
dove stamp
];
turkey stamp
];
(D)
state waterfowl stamp;]
(E)
] saltwater sportfishing stamp;
and
(F)
] freshwater fishing stamp.
state waterfowl
];
turkey
];
(C)
white-winged dove;]
(D)
] archery;
(E)
] saltwater fishing; and
(F)
] freshwater fishing.
turkey stamp
];
white-winged dove
stamp
];
(E)
state waterfowl stamp;]
(F)
] saltwater sportfishing stamp;
and
(G)
] freshwater fishing stamp.
Chapter 53.
FINANCE
Subchapter G. MARINE DEALERS, DISTRIBUTORS, AND MANUFACTURERS
; and
]
.
]
affidavit
] stating
that the applicant agrees
to comply with all applicable state laws,
[
full compliance with
state law
] including Occupation Code, Chapter 2352, concerning Franchise
Agreements, when required.
(g)
] A license holder must keep
a complete record available for inspection in the place of business relating
to all vessels, motorboats, and outboard motors purchased, sold, or displayed
for sale for a minimum of 24 months. Content of records must include the:
Chapter 55.
LAW ENFORCEMENT
Chapter 58.
OYSTERS AND SHRIMP
50 barrels
] of
culled oysters of legal size; or
two barrels
] of
unculled oysters while on the reef.
Chapter 59.
PARKS
(f)
] The executive director may,
at his discretion, temporarily waive any entrance fees or conditions thereof
established in this section at any park when circumstances adversely affect
public enjoyment of the recreational opportunities normally available. The
executive director may discount or waive entrance fees in order to enhance
utilization or promote the future use of existing facilities. The executive
director may designate other department personnel to discount or waive entrance/day
use fees.
(g)
] No entrance fee will be charged
or collected at parks unless the department deems it feasible to collect the
fees.
(h)
] Persons entering parks by boat,
bicycle, or on foot are authorized to use a valid annual park entrance permit
receipt in lieu of paying an individual entrance fee. An individual presenting
a receipt must be the same person to whom the annual permit was issued. Individuals
eligible for park entry as specified herein may be accompanied by as many
as five other persons to enter by boat, bicycle, or on foot.
(i)
] Persons whose date of birth
is before September 1, 1930, and veterans of the armed services of the United
States who, as a result of military service, have a service-oriented disability
as defined by the Veterans Administration, consisting of the loss of the use
of a lower extremity or of a 60% disability rating and who are receiving compensation
from the United States government because of the disability, will be issued
a state parklands passport at no cost upon application and not be required
to pay an entrance fee at state parks. A resident of this state whose birth
date is after August 31, 1930, and who is also a holder and in possession
of a valid state parklands passport shall pay 50% of the normal entrance fee
rounded to the nearest higher whole dollar. Non-residents of this state whose
birth date is after August 31, 1930, shall pay the normal entrance fee. State
parklands passports will be issued to eligible persons at state parks and
the Austin headquarters. A driver's license, birth certificate, military discharge
papers, or any other suitable identification considered sufficient proof for
establishing the age and identity of an individual must be presented at the
time the passport is issued to persons 65 years of age and over. Disabled
veterans must establish eligibility by presenting one of the following:
(j)
] A holder of a state parklands
passport whose date of birth is before September 1, 1930 may enter the park
without payment of an entrance fee. All residents of this state whose date
of birth is after August 31, 1930, and who are also the holders and in possession
of a state parklands passport may enter a park site upon payment of 50% of
the normal entrance fee for that site, rounded to the nearest higher whole
dollar. This passport does not exempt the holder from payment of fees for
facility use or participation in certain activities required in some units
of the state park system.
(k)
] An individual with a documented
physical or mental impairment may be issued a parklands passport under the
provisions of this section.
(l)
] A replacement for a state parklands
passport may be issued when the original registration is lost, stolen, or
damaged.
(m)
] Entrance fees established in
subsections (b) and (d) of this section will apply to all private aircraft
and noncommercial motorized vehicles, which includes all vehicles with two
or more wheels. Commercial, quasi-public, or public buses or other vehicles
do not qualify for annual pass benefits.
(n)
] Persons entering parks by bus,
where entrance and use fees are charged on a per-person basis, will be charged
normal entrance/day use fees.
(o)
] Students, teachers, bus drivers,
and children on group, school-sponsored visits to historic sites or parks
for educational purposes may enter at the rate of $1.00-$5.00 per person at
historic sites or at a park where day-use entrance and use fees are charged.
The group or class must be accompanied by an adult supervisor(s). The $1.00-$5.00
per person fee applies to individuals from all public or private schools,
colleges, and universities offering accredited courses.
(p)
] Persons entering parks on foot,
bicycle, or by boat where entrance and use fees are charged will be charged
standard per-person entrance/day use fees.
(q)
] The valid time period for daily
entrance fees will be:
(r)
] At the discretion of the executive
director, any person or persons may be exempted from the provisions of this
section if the entry of such person or persons to a park or parks is necessary
or desirable in order to provide a service for the state. The executive director
is authorized to issue such entrance fee waivers under certain circumstances
and conditions.
(s)
] The executive director is authorized
to establish an entrance fee in accordance with these sections at any site
hereafter established as a state park when such action is deemed appropriate
and in accord with applicable statutes.
(t)
] When an annual or seasonal
permit is offered for entrance in lieu of a daily fee, the executive director
is authorized to establish a fee for a replacement and/or a duplicate permit.
(u)
] Any fees established in this
section may be waived or reduced at the discretion of the executive director
or his/her designee for public use of a park during special events or exhibitions.
(v)
] The executive director may
designate the amount of use fee and entrance fee within the total amount provided
for by this section.
Subchapter I. GRATUITIES
Chapter 65.
WILDLIFE