Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 53.
FINANCE
The Texas Parks and Wildlife Commission adopts new §53.91, concerning
Documented Vessels, and an amendment to §53.110, concerning Marine Dealer,
Distributors, and Manufacturers, with changes to the proposed text as published
in the September 30, 2005, issue of the
Texas Register
(30 TexReg 6235).
The change to §53.91 alters the text of subsection (c)(3) to insert
the word 'Chapter' into the reference to the Tax Code.
The change to §53.110 adds language to subsection (b) to clarify that
an employee or representative of a marine dealer is not required to obtain
a permit. The change also adds language to subsection (i) to acknowledge that
the department will consider good-faith efforts to comply with the subchapter
when contemplating the initiation of action to suspend or revoke a license.
The change also eliminates proposed subsection (k), which would have prohibited
the use of non-registered vessels under license to a manufacturer, dealer,
or distributor to advertise or promote any entity or product other than the
manufacturer of the vessel or the business for which the license was issued.
New §53.91, which prescribes the process and documentation necessary
to register a new or used vessel, and the process and documentation necessary
to renew a registration, is necessary to establish procedures for improved
customer service by allowing the submission of pending documentation for purposes
of initial registration of a vessel. The amendment allows a new owner to obtain
registration for operation of a vessel on public waters while awaiting federal
documentation to be processed.
The new section also creates an exception to the applicability of the rule
to vessels used as tenders for direct transportation between a mother ship
and the shore and provides for the marking for such vessels. This portion
of the new section is necessary to provide for scenarios in which a vessel
is used only as a ferry between a registered vessel and the shore. Separate
vessel registration for such vessels is not necessary for the purposes of
the subchapter.
The amendment to §53.110, concerning Marine Dealers, Distributors,
and Manufacturers, is necessary to clarify the types of activities regulated
by the subchapter and to set forth the application requirements for persons
seeking to acquire a dealer's, manufacturer's, or distributor's license. Under
Parks and Wildlife Code, Chapter 31, a person engaged in the business of buying,
selling, selling on consignment, displaying for sale, or exchanging at least
five vessels, motorboats, or outboard motors during a calendar year is a dealer
and therefore required to have a license issued by the department.
The amendment is also necessary to clarify license display requirements.
The current rule requires that a license be displayed at all times. The amendment
as adopted makes clear that the license must be displayed at all times at
the location for which the license was issued, and not at any other location.
The current rule contemplates marine dealers who maintain inventory at
a showroom or other fixed place of business. However, the department has determined
that there are dealers who maintain inventory on the water at various marinas
and moorages. The amendment therefore adds a provision to the application
requirements for a marine dealer's license to address licensure of persons
who display or list vessels or outboard motors not kept at a single 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 amendment
requires persons engaged in such types of businesses to furnish to the department
the physical address of the office, the physical address, phone number, and
management/ownership information for at least five marinas where vessels are
expected to be moored. This portion of the amendment is necessary to ensure
that the department's rules encompass the variety of business models that
are affected by the requirements of Parks and Wildlife Code, Chapter 31. The
amendment also requires an applicant to provide an explanatory note if the
applicant expects to keep inventory at fewer than five marinas.
The amendment as adopted 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 and as such the records
of those activities are required to be retained. The amendment is necessary
to clarify exactly what activities require a person to obtain a dealer's license.
The 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 Senate Bill 489,
enacted by the 79th Texas Legislature, Regular Session, which requires licensees
to enter into a license agreement with the department.
The amendment also establishes criteria and procedures for revocation and
suspension of licenses. The amendment implements additional provisions of
S.B. 489 that authorize 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.
New §53.91, will function by prescribing the process and documentation
necessary to register a new or used vessel and the process and documentation
necessary to renew a registration.
The amendment to §53.110, concerning Marine Dealers, Distributors,
and Manufacturers, will function by delineating the types of activities regulated
by the subchapter, setting forth the application requirements for persons
seeking to acquire a dealer's, manufacturer's, or distributor's license, prescribing
license display requirements, establishing documentation requirements, and
providing a mechanism for the revocation and suspension of licenses.
The department received three comments concerning adoption of the rules.
One commenter requested that language be added to clarify that an employee
or representative of a marine dealer is not required to obtain a permit, provided
the employer has obtained a permit. The department agrees with the comment
and has made the change accordingly.
One commenter requested that the department consider good-faith efforts
to comply with the subchapter when contemplating the initiation of action
to suspend or revoke a permit. The department agrees with the comment and
has made the change accordingly.
One commenter opposed adoption of the proposed provision to prohibit the
use of non-registered vessels under license to a manufacturer, dealer, or
distributor to advertise or promote any entity or product other than the manufacturer
of the vessel or the business for which the license was issued. The commenter
did not elaborate. The department agrees with the comment and has made the
change accordingly.
The Gulf Coast Yacht Brokers and the Boating Trades Association of Texas
commented in support of the rules as adopted.
Subchapter E. DISPLAY OF BOAT REGISTRATION
31 TAC §53.91
The amendment and new section are adopted 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.
§53.91.Documented Vessels.
(a)
New vessels that have applied for documentation may acquire
a certificate of number and validation decal at any TPWD boat registration
office. At the time of application, applicants must present:
(1)
a properly completed registration application on a form
supplied by the department;
(2)
a copy of:
(A)
the current documentation from the U. S. Coast Guard National
Vessel Documentation Center (USCGNVDC) or their website in the applicant's
name; or
(B)
the application for initial documentation with the USCGNVDC
in the applicant's name;
(3)
payment of any tax required under Tax Code, Chapter 160,
or verification of payment; and
(4)
payment of the appropriate registration fee as required
by Parks and Wildlife Code, §31.026, and §53.16 of this title (relating
to Vessel, Motor, and Marine Licensing Fees).
(b)
Used or previously documented vessels may acquire a certificate
of number and validation decal at any TPWD boat registration office. At the
time of application, applicants must present:
(1)
a properly completed registration application on a form
supplied by the department;
(2)
a copy of:
(A)
the current documentation from the U. S. Coast Guard National
Vessel Documentation Center (USCGNVDC) or their website in the previous owner's
name, or the applicant's name; or
(B)
the lapsed documentation from the USCGNVDC or their website
in the previous owner's name and the application for current documentation
with the USCGNVDC in the applicant's name;
(3)
payment of any tax required under Tax Code, Chapter 160,
or verification of payment; and
(4)
payment of the appropriate registration fee as required
by Parks and Wildlife Code, §31.026, and §53.16 of this title (relating
to Vessel, Motor, and Marine Licensing Fees).
(c)
Renewal of certificate of number and validation decal for
a 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 or renewal
notice on a form supplied by the department, or a hand written request;
(2)
a copy of the current documentation from the U.S. Coast
Guard National Vessel Documentation Center (USCGNVDC) or their website in
the current owner's name;
(3)
for vessels greater than 65 feet in length for the first
registration renewal, verification of payment under Tax Code, Chapter 151,
or verification from the TPWD boat system; and
(4)
payment of the appropriate registration fee as required
by §53.16 of this title (relating to Vessel, Motor, and Marine Licensing
Fees).
(d)
A 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 adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on January 30, 2006.
TRD-200600462
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 19, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 389-4775
31 TAC §53.110
The amendment is adopted 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.
§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.
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.
(b)
Any person or entity, including a person or entity purporting
to be a broker or brokerage house, 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 is considered to be engaged in the business of buying,
selling, selling on consignment, displaying for sale, or exchanging a vessel
for the purposes of this subchapter. Any person or entity, including a person
or entity purporting to be a broker or brokerage house, engaged in any activity
described above is subject to the provisions of this subchapter.
(c)
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 (not applicable
to floating inventory or listings), and display of vessels, motorboats, or
outboard motors (not applicable to floating inventory or listings);
(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; and
(6)
a list of dealer agreements; and
(7)
if the applicant is to maintain floating inventory or listings
at a location other than that designated as the applicant's permanent place
of business, a record of at least five marinas where floating inventory or
listings are expected to be displayed. If the applicant contemplates using
less than five marinas, then the application shall include an explanatory
statement. The record must identify, at a minimum, the name, physical address,
and telephone for each marina.
(d)
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.
(e)
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
stating that the applicant agrees to comply with all applicable state laws,
including Occupation Code, Chapter 2352, concerning Franchise Agreements,
when required.
(f)
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.
(g)
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.
(h)
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:
(1)
date of purchase;
(2)
date of sale;
(3)
hull identification number and/or motor identification
number;
(4)
name and address of person selling to the dealer;
(5)
name and address of person purchasing from the dealer;
(6)
name and address of selling dealer or 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, listing, 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 adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on January 30, 2006.
TRD-200600463
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 19, 2006
Proposal publication date: September 30, 2005
For further information, please call: (512) 389-4775
Chapter 523.
AGRICULTURAL AND SILVICULTURAL WATER QUALITY MANAGEMENT
Subchapter G. MARINE DEALERS, DISTRIBUTORS, AND MANUFACTURERS
Part 17.
TEXAS STATE SOIL AND WATER CONSERVATION BOARD