PART 1. GENERAL LAND OFFICE
CHAPTER 9. EXPLORATION AND LEASING OF STATE OIL AND GAS
The Texas General Land Office (GLO) adopts amendments to §9.11, relating to Geophysical and Geochemical Exploration Permits; §9.22, relating to Leasing Procedures; §9.31, relating to General Provisions; §9.35 relating to Producing the State Lease; §9.37 relating to Offset Well Obligations and Compensatory Royalties; §9.81 relating to Pooling and Unitizing of State Property; §9.91 relating to General Provisions; §9.92 relating to Release; and §9.93 relating to Assignments. The amendments are adopted without changes to the proposal as published in the May 15, 2009, issue of the Texas Register (34 TexReg 2878) and will be not be republished.
BACKGROUND, REASONED JUSTIFICATION, AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
The purpose of the amendments is to clarify the rules, delete redundant language found in the rules, change certain permissive rules to mandatory rules and conform the rules to other existing rules located in Chapter 9. The amendments will enable the GLO to administer the energy rules more concisely, fairly and efficiently.
§9.11 Geophysical and Geochemical Exploration Permits
The amendments to §9.11 (relating to Geophysical and Geochemical Exploration Permits) incorporate nonsubstantive amendments to §9.11(c)(6).
§9.22 Leasing Procedures
The amendments to §9.22 (relating to Leasing Procedures) incorporate nonsubstantive amendments to §§9.22(2)(E)(iv), 9.22(2)(F)(xii), and 9.22(5)(C)(ii)(IV).
§9.31 General Provisions
The amendments to §9.31 (relating to General Provisions) incorporate the deletion of §9.31(a)(3) because this portion of the rule is no longer applicable due to subsequently amended rules. The amendment to §9.31(b)(2) clarifies the definition of "drilling operations". The amendment to §9.31(b)(6) clarifies the definition of "producing in paying quantities".
§9.35 Producing The State Lease
The amendments to §9.35 (relating to Producing The State Lease) incorporate the deletion and replacement of §9.35(a)(2), which would permit the use of full well stream meters in lieu of separators with the submittal of appropriate data and the approval of GLO staff and the deletion and replacement of §9.35(a)(3), which would clarify when GLO staff approval for surface commingling is required.
§9.37 Offset Well Obligations and Compensatory Royalties
The amendment to §9.37 (relating to Offset Well Obligations and Compensatory Royalties) mandates that §9.37(b)(1) of this rule is no longer permissive but is now mandatory. A person obligated to drill an offset well, who is certain that an encroaching well cannot be draining state property, must send a written explanation to the GLO. The amendment to §9.37(b)(3) would allow the Land Commissioner to appoint a designee to send an agreement letter to a person complying with §9.37(b)(1).
§9.81 Pooling and Unitizing of State Property
The amendments to §9.81 (relating to Pooling and Unitizing of State Property) incorporates nonsubstantive amendments.
§9.91 General Provisions
The amendments to §9.91 (relating to General Provisions) incorporate the deletion of §9.91(c)(3) in order to eliminate redundant language from this portion of the rule. The amendment to §9.91(c)(5)(C) clarifies the Commissioner's legal authority to act when an operator does not comply with lease requirements.
§9.92 Release
The amendments to §9.92 (relating to Release) incorporates nonsubstantive amendments to §9.92(b)(2).
§9.93 Assignments
The amendments to §9.93 (relating to Assignments) incorporates nonsubstantive amendments to §9.93(a)(2).
FISCAL IMPACTS
Larry Laine, Deputy Land Commissioner and Chief Clerk, has determined that for each year of the first five years that the adopted amendments will be in effect, there will be no fiscal implications for state government as a result of enforcing or administering the amendments.
PUBLIC BENEFIT/COST ANALYSIS
Larry Laine has determined that for each year of the first five years the adopted amendments are to be in effect, the public benefit will be improved operation of the GLO and better conservation of state resources. The GLO does not anticipate incurring any additional costs as a result of administering the adopted rule amendments. There will be no fiscal implications for local governments.
SMALL BUSINESS ANALYSIS
There may be some economic cost to small businesses, micro-businesses, and individuals based on the adopted amendments. The total costs for an individual, small business, or micro-business associated with compliance will vary depending on the different situations and choices made by each individual, small business, or micro-business. Further, the GLO does not have information on these businesses' gross receipts, sales revenues, or labor costs. Therefore, the GLO is not able to determine the exact cost of compliance
EMPLOYMENT IMPACT
Larry Laine does not anticipate any employment impact as a result of administering the adopted rule amendments.
PUBLIC COMMENT
The GLO did not receive any comments on the amendments.
SUBCHAPTER B. ISSUING EXPLORATION PERMITS AND OIL AND GAS LEASES
STATUTORY AUTHORITY
The amendments are adopted under the Texas Natural Resources Code, §§31.051(3), 32.062(a), 32.205, and 33.064, which give the Commission and the board the authority to make, adopt and enforce suitable rules consistent with the law.
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 July 20, 2009.
TRD-200902968
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Effective date: August 9, 2009
Proposal publication date: May 15, 2009
For further information, please call: (512) 475-1859
STATUTORY AUTHORITY
The amendments are adopted under the Texas Natural Resources Code, §§31.051(3), 32.062(a), 32.205, and 33.064, which give the Commission and the board the authority to make, adopt and enforce suitable rules consistent with the law.
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 July 20, 2009.
TRD-200902969
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Effective date: August 9, 2009
Proposal publication date: May 15, 2009
For further information, please call: (512) 475-1859
STATUTORY AUTHORITY
The amendments are adopted under the Texas Natural Resources Code, §§31.051(3), 32.062(a), 32.205, and 33.064, which give the Commission and the board the authority to make, adopt and enforce suitable rules consistent with the law.
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 July 20, 2009.
TRD-200902970
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Effective date: August 9, 2009
Proposal publication date: May 15, 2009
For further information, please call: (512) 475-1859
STATUTORY AUTHORITY
The amendments are adopted under the Texas Natural Resources Code, §§31.051(3), 32.062(a), 32.205, and 33.064, which give the Commission and the board the authority to make, adopt and enforce suitable rules consistent with the law.
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 July 20, 2009.
TRD-200902971
Trace Finley
Deputy Commissioner, Policy and Governmental Affairs
General Land Office
Effective date: August 9, 2009
Proposal publication date: May 15, 2009
For further information, please call: (512) 475-1859
CHAPTER 53. FINANCE
SUBCHAPTER A. FEES
The Texas Parks and Wildlife Commission adopts the repeal of §53.18 and amendments to §§53.2 - 53.17 and 53.30, concerning Fees. The amendment to §53.16, concerning Vessel, Motor, and Marine Licensing Fees, is adopted with changes to the proposed text as published in the April 24, 2009, issue of the Texas Register (34 TexReg 2581). The repeal of §53.18 and the amendments to §§53.2 - 53.15, 53.17, and 53.30 are adopted without changes and will not be republished.
The change to §53.16, concerning Vessel, Motor, and Marine Licensing Fees, establishes a registration fee of $150 for Class 3 vessels. As proposed, the fee would have increased to $200.
The repeal of §53.18 and the amendments to §§53.10, 53.14 - 53.17 and 53.30 are either wholly or in part necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review. The remaining portions of the rulemaking increase fees for a number of commercial and recreational licenses and permits, as well as for boat registration and titling.
The amendments that implement fee increases are necessary because the department has determined additional funds are needed to maintain current levels of service to the public. Fees for the majority of the license and permits have not been increased since 2003. An analysis of operational expenses since the last fee increase indicates that aggregate major expenses (Salaries and Wages, Other Personnel Costs, Professional Fees and Services, Fuels and Lubricants, Consumable Supplies, Utilities, Travel, Building Rentals, Machine Rentals, Other Operating Expense, and Capital Expenditures) have increased at approximately 6.1% per year. Therefore, the department has determined that a fee increase is necessary. The fees as adopted, except where noted, have been increased by 5%, rounded up to the nearest whole dollar. This calculation is intended to provide the department with the minimum amount of revenue necessary to maintain current operations.
The repeal of §53.18, concerning Other Fees, is necessary because the contents of §53.18 have been transferred to §53.16, concerning Vessel, Motor, and Marine Licensing Fees. The repeal is nonsubstantive in nature and does not remove, create, alter, or increase any fees.
The amendment to §53.2, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules, establishes a fee of $100 for reinstatement or re-issuance of a license or permit that has been denied or revoked by the department. The amendment is necessary because the department incurs a cost in maintaining systems to document and track the status of persons who are not eligible for licensure or permit issuance because of criminal convictions, civil penalties, or failure to pay child support. At the current time there are 7,415 license and permit restrictions being tracked by the department. The fee will help to offset the cost to the department of maintaining those systems and will have the additional benefit of encouraging people to avoid activities that could lead to license or permit denial or revocation.
The amendment to §53.3, concerning Combination Hunting and Fishing License Packages, increases the fee for the resident combination hunting and freshwater fishing package (from $47 to $50), the resident combination hunting and saltwater fishing package (from $52 to $55), the resident combination hunting and "all-water" fishing package (from $57 to $60), the resident senior combination hunting and freshwater fishing package (from $15 to $16), the resident senior combination hunting and saltwater fishing package (from $20 to $21), the resident senior combination hunting and "all-water" fishing package (from $25 to $26); the resident super combination hunting and "all-water" fishing package (from $64 to $68), and the resident senior super combination hunting and "all-water" fishing package (from $30 to $32).
The amendment to §53.4, concerning Lifetime Licenses, changes the name of the license from the "lifetime resident hunting and fishing license" to the "lifetime resident super combination hunting and all-water fishing license package." The amendment increases the fee for the lifetime resident combination hunting and fishing license (from $1,000 to $1,800), the lifetime resident hunting license (from $600 to $1,000), the lifetime resident fishing license (from $600 to $1,000), and the upgrade from a lifetime resident hunting or fishing license to the lifetime resident super combination hunting and all-water fishing license (from $400 to $800). The fee increase is necessary because the department has determined that at current fee values, the sales of lifetime licenses result in long-term revenue loss for the department. For instance, the fees for a hunting license and all required stamps would currently total $44. The lifetime hunting license ($600) therefore represents approximately 13.6 years of license purchases. Thus, when a person purchases a lifetime hunting license under the current fee, the department loses revenue beginning the 14th year following purchase, since that person will never purchase another license or stamp. For the lifetime fishing license, this figure is 15.8 years, and for the lifetime combination license, the figure is 15.6 years. The fee increases will delay revenue loss to the department by extending the average time period to approximately 25 years. Also, the fees for the lifetime licenses were not increased in 2003 during the last fee increase, and have not been increased since 1996. The amendment also implements eligibility requirements and a fee for entering a computerized drawing for a lifetime hunting and fishing super combination license package that includes a one-year subscription to the Texas Parks and Wildlife Magazine. Participation is limited to persons 16 years of age or older, and each entry is $5. Winners may transfer the license to another person, who must be a Texas resident, within 30 days of being notified of winning. The lifetime license drawing is intended to generate additional revenue to defray the operating expenses of the department.
The amendment to §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags, increases the fee for the resident hunting license (from $23 to $25), the senior resident hunting license (from $6 to $7), the youth hunting license (from $6 to $7), the general nonresident hunting license (from $300 to $315), the nonresident special hunting license (from $125 to $132), the nonresident five-day special hunting license (from $45 to $48), the nonresident spring turkey hunting license (from $120 to $126), and the nonresident banded bird hunting license (from $25 to $27).
The amendment to §53.6, concerning Recreational Fishing Licenses, Stamps, and Tags, increases the fee for the resident fishing license (from $23 to $25), the special resident "all-water" fishing license (from $6 to $7), the senior resident fishing license (from $6 to $7), the "year-from-purchase" resident fishing license (from $30 to $32), and the non-resident fishing license (from $50 to $53), the resident freshwater fishing package (from $28 to $30), the resident saltwater fishing package (from $33 to $35), the resident "all-water" fishing package (from $38 to $40), the senior resident freshwater fishing package (from $11 to $12), the senior resident saltwater fishing package (from $16 to $17), the senior resident "all-water" fishing package (from $21 to $22), the resident "year-from-purchase all-water" fishing package (from $45 to $47), the resident one-day "all-water" fishing license (from $10 to $11), the non-resident freshwater fishing package (from $55 to $58), the non-resident saltwater fishing package (from $60 to $63), the non-resident "all-water" fishing package (from $65 to $68), the non-resident one-day "all-water" fishing license (from $15 to $16), the individual bait-shrimp trawl tag (from $35 to $37) and the saltwater trotline tag (from $4 to $5). Although the amendment to §53.6 provides for an increase in the resident and non-resident fishing licenses, these licenses are only sold as part of freshwater, saltwater, or "all water" fishing license packages. The freshwater fishing packages include the fishing license and the $5 freshwater stamp. The saltwater fishing packages include the fishing license and the $10 saltwater stamp. "All-water" license packages consist of the fishing license, the freshwater stamp, and the saltwater stamp. The freshwater stamp and the saltwater stamp fees are not being increased by this proposal.
The fees in §53.6 for the senior resident "all-water" fishing package, the resident "year-from-purchase all-water" fishing package, and the non-resident "all-water" fishing package represent an increase of 5%, but were rounded down to the nearest dollar rather than up to the nearest dollar. The price of a fishing license package must be the sum of the individual items in the package. Since the department did not raise the fees for stamps, the 5% fee increase on the license portion of the package, rounded up to the next whole dollar amount, yields a price in excess of the sum of the individual items; therefore, the fee amounts were rounded down.
The amendment to §53.7, concerning Furbearing Animal Licenses and Permits, increases the fee for the resident trapper's license (from $18 to $19), the non-resident trapper's license (from $300 to $315), the resident wholesale fur dealer's permit (from $180 to $189), the non-resident wholesale fur dealer's permit (from $250 to $263), and the furbearing animal propagation permit (from $90 to $95).
The amendment to §53.8, concerning Alligator Licenses, Permits, Stamps, and Tags, increases the fee for the wild-caught alligator hide tag (from $20 to $21), the alligator import permit (from $100 to $105), the alligator management tag (from $5 to $6), the alligator export fee (from $4 to $5), the farm-raised alligator hide tag (from $4 to $5), the commercial WMA alligator hide tag (from $120 to $126), the alligator farmer's permit (from $240 to $252), the alligator nest stamp (from $60 to $63), the resident retail alligator dealer's permit (from $120 to $126), the non-resident retail alligator dealer's permit (from $480 to $504), the resident wholesale alligator dealer's permit (from $240 to $252), and the non-resident wholesale alligator dealer's permit (from $960 to $1,008).
The amendment to §53.9, concerning Falconry Permits, increases the fee for the apprentice falconer's permit and renewal (one-year: from $20 to $21; two-year: from $40 to $42; three-year: from $60 to $63); the general falconer's permit and renewal (from $120 to $126); master falconer's permit and renewal (from $180 to $189); the nonresident raptor trapper's permit (from $360 to $378); and the raptor propagator permit (from $60 to $63). Falconry permits may be issued on a one-year, two-year, or three-year basis. At the current time, only the apprentice falconry permits are issued on other than a three-year basis.
The amendment to §53.10, concerning Public Hunting and Fishing Permits and Fees, adds new §53.10(a)(5) to relocate the fee for the mentored hunting permit from current §53.17(c). The amendment is necessary in order to ensure that all fees affecting public hunting permits are located in the same section. This change is nonsubstantive; however, the amendment also increases the fees for the special standard-period hunting permit (from $75 to $80), the daily (regular) hunting permit (from $15 to $20), the special extended period hunting permit (from $125 to $130), the competitive hunting dog field trial permit fees (10 or less participants: from $100 per day to $105 per day, 11-25 participants: from $200 per day to $210 per day, 26-50 participants: from $300 per day to $315 per day, 51-75 participants: from $400 to $420 per day, 76 or more participants: from $500 per day to $525 per day. The fees for the special standard-period hunting permit, the daily (regular) hunting permit and the special extended period hunting permit diverge from the 5% increase (rounded up to the nearest whole dollar) formula. Because many of these permits are issued manually at wildlife management areas and state parks, it is not always possible for department staff to make change, which is also a fiscal control issue. Therefore, the fees in question were rounded up or down to the nearest ten-dollar increment.
The amendment to §53.11, concerning Commercial Hunting Licenses and Permits, increases the fee for hunting lease licenses as follows: less than 500 acres (from $75 to $79), more than 500 acres but less than 1,000 acres (from $140 to $147), and 1,000 acres or more (from $240 to $252). The amendment also increases the fee for the wildlife management association area hunting lease licenses as follows: less than 10,000 acres (from $36 plus $5 per participating landowner to $38 plus $6 per participating landowner), between 10,000 and 50,000 acres (from $72 plus $5 per participating landowner to $76 plus $6 per participating landowner), over 50,000 acres (from $144 plus $5 per participating landowner to $152 plus $6 per participating landowner). The amendment would increase the fee for the private bird hunting area license (from $80 to $84) and the field trial permit (from $60 to $63).
The amendment to §53.12, concerning Commercial Fishing Licenses and Tags, increases the fees in §53.12(b)(1) for the resident commercial oyster boat license (from $420 to $441), the resident sport oyster boat license (from $12 to $13), the resident commercial oyster boat captain's license (from $30 to $32), the resident commercial oyster fisherman's license (from $120 to $126), the non-resident commercial oyster boat license (from $1,680 to $1,764), the non-resident sport oyster boat license (from $48 to $51), the non-resident commercial oyster boat captain's license (from $120 to $126), and the non-resident commercial oyster fisherman's license (from $300 to $315).
The amendment to §53.12 alters subsection (a)(1) and (3) to increase the fees for the resident commercial bait-shrimp boat license/transfer (from $348 to $366), the nonresident commercial bait-shrimp boat license/transfer (from $750 to $788), the resident commercial shrimp boat captain's license (from $30 to $50), and the non-resident commercial shrimp boat captain's license (from $120 to $126). The amendment to §53.12 also alters subsection (c)(1) to increase the resident commercial fishing boat license (from $25 to $27), the nonresident commercial fishing boat license (from $25 to $100), the resident general commercial fisherman's license (from $24 to $26), the resident commercial mussel and clam fisherman's license (from $36 to $38), the resident shell buyer's license (from $120 to $126), the non-resident general commercial fisherman's license (from $180 to $189), the non-resident commercial mussel and clam fisherman's license (from $960 to $1,008), the non-resident shell buyer's license (from $1,800 to $1,890). The amendment to §53.12 alters subsection (d) to increase the resident commercial crab fisherman's license/transfer (from $600 to $630), and the non-resident commercial crab fisherman's license/transfer (from $2,400 to $2,520).
The fee increase in §53.12(c)(1)(A) for the nonresident commercial fishing boat licenses is greater than 5% (rounded upward to the nearest whole dollar). Parks and Wildlife Code, §47.007(e), requires a fee of not less than $60 for the nonresident commercial fishing boat license; however the commercial fishing boat license was inadvertently eliminated in 2007 as a result of a license simplification initiative. At the time, the nonresident commercial fishing boat license was $72. Because the fee is required by statute, the license and the fee have been reinstated. The fee amount, however, has been increased to $100 rather than at a 5% increase (rounded upward to the nearest whole dollar) because the department has determined that this license is underpriced in comparison to other, similar commercial vessel fees.
The fee increase in §53.12(a)(1)(D) for the resident commercial shrimp boat captain's license is also greater than 5%. Prior to 1995, deckhands on commercial shrimp boats were required to possess a general commercial fisherman's license. Senate Bill 814, enacted by the 74th Texas Legislature in 1995, created the commercial shrimp boat captain's license in Parks and Wildlife Code §77.0351 and amended Parks and Wildlife Code §47.002 to remove the requirement that deckhands possess a commercial fisherman's license. This change resulted in a loss of revenue for the department because multiple people (who formerly were required to purchase a license individually) could work under a single license. At that time, the fee for the resident commercial shrimp boat captain's license was $25. The current fee of $30 was implemented in 2002. Under Parks and Wildlife Code, §77.0351, the department may not establish a fee of greater than $50 for the resident commercial shrimp boat captain's license. The amendment to §53.12(a)(1)(D) implements the statutory maximum fee, and is necessary to replace a portion of the revenue lost since 1995 as a result of the removal of the requirement that deckhands possess a commercial fisherman's license.
The amendment to §53.12 does not increase the fee amounts for the resident and nonresident commercial gulf shrimp boat licenses in §53.12(a)(1)(A) and (E), or the resident and nonresident commercial bay shrimp boat licenses in §53.12(a)(1)(B) and (F), but does adjust those fees to reflect the total price paid by the purchaser. Purchasers of resident and nonresident commercial gulf shrimp boat licenses and resident and nonresident commercial bay shrimp boat licenses are required to pay a shrimp marketing account surcharge imposed by Parks and Wildlife Code, §77.002(c). The shrimp marketing account surcharge is 10% of the fee amounts in effect for those licenses in 1995. The shrimp marketing account surcharge, which is set out for informational purposes in §53.12(a)(2), is not increased by this rulemaking. Although the amendment does not alter the fees for the resident and nonresident commercial gulf shrimp boat licenses or the resident and nonresident commercial bay shrimp boat licenses, the amendment does reflect the total fee paid by license purchasers, which includes the shrimp marketing account surcharge.
The amendment to §53.13, concerning Business Licenses and Permits (Fishing), increases the fee for the wholesale fish dealer's truck license (from $510 to $590), the individual bait dealer's license (from $36 to $38), the bait dealer's place of business/building license (from $36 to $38), the bait dealer's place of business/vehicle license (from $36 to $38), the bait shrimp dealer's license (from $204 to $215), the finfish import permit (from $90 to $95), the freshwater fishing guide license (from $125 to $132), the resident all-water fishing guide license (from $200 to $210), and the non-resident all-water fishing guide license (from $1,000 to $1,050). The retail fish dealer, retail fish dealer's truck, wholesale fish dealer, and the wholesale fish dealer's truck licenses are required to include the shrimp marketing account surcharge, discussed previously in connection with the amendments to §53.12(a)(1). The shrimp marketing account surcharge for these licenses, which is set out for informational purposes in §53.13(b), is not increased by the rulemaking. The amendment increases the fee for the wholesale fish dealer's truck license, but $51 of that increase is to reflect the shrimp marketing account surcharge. The amendment does not increase the base fee amounts for the retail fish dealer's, the retail fish dealer's truck, and wholesale fish dealer's licenses, but adjusts the retail fish dealer, retail fish dealer's truck, wholesale fish dealer, and the wholesale fish dealer's truck licenses to reflect the current total price paid by the purchaser, including the shrimp marketing account surcharge imposed by Parks and Wildlife Code, §77.002(c).
The amendment to §53.14, concerning Deer Management and Removal Permits, eliminates subsection (b) because the Trap, Transport, and Transplant permit is not restricted to deer. The contents of subsection (b) have been relocated to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The amendment also updates terminology to reflect legislative changes. House Bill 1308, enacted by the 80th Texas Legislature, amended Parks and Wildlife Code, Chapter 43, Subchapter L, to change the term "scientific breeder" to "deer breeder." These changes are nonsubstantive; however, the amendment also increases the antlerless and spike buck deer control permit application processing fee (from $360 to $378).
The amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits, adds new subsection (a) to contain the fees associated with the Trap, Transport, and Transplant Permit, which was relocated from §53.14, concerning Deer Management and Removal Permits. The amendment is necessary because the Trap, Transport, and Transplant permit is not restricted to deer. These changes are nonsubstantive. However, the amendment to §53.15 also increases the fees for the game animal breeder's license (from $75 to $79), the Class 1 commercial game bird breeder's license (from $180 to $189), and the Class 2 commercial game bird breeder's license (from $25 to $27), the resident nongame permit (from $18 to $19), the nonresident nongame permit (from $60 to $63), the resident nongame dealer permit (from $60 to $63); the nonresident nongame dealer permit (from $240 to $252), the nongame species sales permit (from $200 to $210); the nongame species sales permit renewal (from $200 to $210), the zoological collection permit application (from $150 to $158), the scientific research permit application (from $50 to $53), the educational display permit application (from $50 to $53), the exotic species permit fee for new, renewed or amended application requiring facility inspection (from $250 to $263), the exotic species permit fee for renewed or amended application not requiring facility inspection (from $25 to $27), the exotic species permit fee for renewal application received more than one year after renewal date (from $250 to $263), the triploid grass carp permit application (from $15 to $16, but does not alter the $2 fee per triploid grass carp requested), the exotic species interstate transport permit application fee--individual (from $25 to $27), the exotic species interstate transport permit application fee--annual (from $100 to $105), the aerial management permit (from $200 to $210), the offshore aquaculture permit or renewal-from $1,500 to $1,575, and the double-crested cormorant control permit (from $12 to $13).
The amendment to §53.16, concerning Vessel, Motor, and Marine Licensing Fees, incorporates the contents of former §53.18, which has been repealed. The amendment also eliminates current §53.16(d)(1), which has expired on its own terms and is no longer necessary. These changes are nonsubstantive; however, the amendment also would increases the registration fee for a Class A livery vessel (from $30 to $32), a Class A vessel (from $30 to $32), a Class 1 vessel (from $50 to $53), a Class 2 vessel (from $70 to $110) and a Class 3 vessel (from $90 to $150). The amendment also increases the titling fee for a certificate of title (from $25 to $27), a bonded certificate of title (from $35 to $37), an expedited certificate of title for a vessel or motor (from $35 to $37), a certified ownership history report for a vessel or motor (from $10 to $11), a party boat annual inspection (from $125 to $132), a party boat operator's license (from $125 to $132), the party boat operator's license renewal (from $50 to $53), the party boat operator's replacement/update license (from $50 to $53), the marine dealer, distributor or manufacturer's license/license transfer (from $500 to $525), an additional marine dealer, distributor or manufacturer's decal/card (from $120 to $126), a marine, dealer or manufacturer's change of location transfer (from $10 to $11), an update or correction to current license information (from $3 to $4), and duplicate/transfer fees for vessel transfer of ownership, vessel duplicate certificate of number, and vessel duplicate decals (from $10 to $11). The increase for registration fees (two-year period of validity) would implement a 5% (rounded upward to the nearest whole dollar) increase for Class A and Class 1 vessels, which is consistent with other fee increases in this rulemaking; however, the fee increases for registering Class 2 and Class 3 vessels would implement larger fee increases. The fee for registering a Class 2 vessel (a vessel 26-40 feet in length) increases from $70 to $110 (57%), and the fee for registering a Class 3 vessel (a vessel of greater than 40 feet in length) increases from $90 to $150 (66.7%). The fee increases for Class 2 and Class 3 vessels are necessary because although Class 2 and Class 3 vessels constitute only 3.2% of the vessels registered in Texas, the department has determined that registration fees for larger vessels in Texas have been underpriced compared to the registration fees paid in the other states on the Gulf of Mexico (all of which are similar to Texas in terms of the type of boating opportunity available) for similar, smaller vessels. For instance, in Florida the two-year registration fee for the equivalent of a Class 2 vessel is $166. In Louisiana, the fee for an equivalent vessel is $128. In Alabama, the fee is $150. For the equivalent of a Class 3 vessel, these fees are $325, $192, and $200, respectively.
The amendment to §53.17, concerning Miscellaneous Fees, removes current subsection (c), which has been relocated to §53.10, concerning Public Hunting and Fishing Permits and Fees. The amendment is necessary to locate all fees for public hunting permits in a single section.
The amendment to §53.30, concerning Facility Admissions and Fees, nonsubstantively redesignates the fees listed in paragraph (1) in order to make the structure of the rule consistent with other rules.
The purpose of the amendments is to generate additional revenue sufficient to allow the department to continue to maintain current levels of service to the public. The department considered several alternatives to achieve the purpose of the rules while minimizing adverse impacts. The department considered leaving current fee amounts as they are; however, the department would be unable to maintain current levels of service and would be forced to reduce or eliminate programs and personnel. The department also considered the possibility of additional revenue sources, such as the fee to enter a drawing for a free resident lifetime super combination hunting and fishing license package implemented by this rulemaking, but concluded that such approaches do not come close to achieving the purpose of the rule, and in fact produce additional revenue at a very modest level. Although the amendment includes a fee to enter a drawing for a free resident lifetime super combination hunting and fishing license package, that revenue source alone is insufficient to maintain current levels of service to the public. Another alternative the department considered was to restrict fee increases to recreational licenses only, but since all users--including commercial licensees and permittees--benefit from the resource management and enforcement activities provided by the department, the department concluded that not only would restricting fee increases to recreational licenses not produce the desired result of the rulemaking, which is to generate revenue sufficient to maintain current operations and services, but it would also be unfair to other users who also pay for department services.
The department received comments from 151 persons opposing adoption of the proposed amendments that increased recreational license fees. The 151 commenters articulated 185 specific reasons or rationales for oppositions. Those reasons and rationales, accompanied by the department's response to each, follow.
Forty-four commenters opposed adoption and stated that fees should not be raised because of the state of the economy. The department agrees that the present economic climate is difficult for many people, but disagrees that the increases to recreational license fees (most of which are less than $5) create financial hardship for users. The department notes as well that it is not immune to the current economic downturn. The fee increase is necessary to allow the department to continue to provide current levels of service. No changes were made as a result of the comments.
Forty-one commenters opposed adoption and stated that the department should stop waste/impose austerity measures to reduce operating expenses, rather than increase fees. The department agrees with the comment and responds that it has implemented a 2.5 per cent budget cut and eliminated popular events such as the annual Wildlife Expo. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the department should recover money that was used by the legislature to fund other state agencies. The department disagrees that the legislature has used revenue that was or otherwise would have been in department accounts for any other purpose, and responds that the legislature, not the department, establishes the budget for state government. No changes were made as a result of the comments.
Seven commenters opposed adoption and stated that people don't need more taxes. The department disagrees with the comments and responds that fees for licenses and permits are not taxes. License fees are paid by the users of the resources and thus reduce the need to fund agency activities through taxes. No changes were made as a result of the comments.
Three commenters opposed adoption and stated that fees should not be increased as long as the legislature does not appropriate all sporting goods tax revenue to the department. The department disagrees with the comment and responds that the legislature, not the department, establishes the budget for state government and appropriates funds from various revenue sources to the various state agencies. No changes were made as a result of the comments.
Three commenters opposed adoption and stated that the department should not recoup budget shortfalls at the expense of sportsmen. The department disagrees with the comment and responds that the fee increases are intended to offset increased costs associated with providing services and programs to the public. The department also notes that sportsmen are not the only constituents impacted by the fee increase. No changes were made as a result of the comments.
Nineteen commenters opposed adoption and stated that fees should not be increased because of the high cost of gas, leases, food, ammunition, boat ramp fees, trailer titling, and other expenses related to hunting and fishing. The department disagrees that the adoption is inappropriate and responds that the department has also experienced increased costs. If license fees remained constant while costs increased, the department at some point would be unable to effectively discharge its duties. Also, for all but a few of the increases, the amount of the increase is modest. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the department should raise additional revenue by increasing nonresident fees rather than resident fees. The department disagrees with the comments and responds that the rule as adopted increases fees for nonresidents. However, even a significant increase in nonresident fees, without an increase to other fees, would not generate sufficient revenue to meet the goals of the fee increase. No changes were made as a result of the comments.
One commenter opposed adoption and stated that rather than raising fees for hunting licenses, fees should be imposed on "ranches that charge extreme prices for animals that belong to the people." The department disagrees with the comment and responds that the department has only the revenue mechanism created for it by the legislature, which, at the current time, does not include the authority to impose fees based on the prices charged by private landowners for hunting access. The department also notes that several of the fee increase will impact ranch owners, such as the amendment to §53.11 which increases the fees for hunting lease licenses. No changes were made as a result of the comment.
One commenter opposed adoption and stated that fees have increased disproportionately and should "only be increased where specific benefits are designated." The department disagrees with the comment and responds that fees have not increased disproportionately. There have been two fee increases since 1987. In 1995, the fee for a hunting or fishing license was increased from $13 to $19 and the discounted super-combination license was instituted at $49; in 2003, the fees were increased from $19 to $23 for the individual licenses and the super combo was increased to $64. In each case, fees were increased only to the extent necessary for the department to deliver programs and activities expected by the public or required by law. The department does not believe that present or previous fee increases are disproportionate either in the magnitude of the increase or the effect on users. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that higher license fees drive people away from hunting and fishing. The department disagrees with the comment and responds that although it is mindful that fee increases may lead to non-participation in some cases, the department is careful to raise license fees only when necessary and only to the degree that is necessary. Since the fees on the most popular licenses will increase by only a few dollars, the department does not believe that the fee increase will have a significant impact on hunting and fishing license sales. No changes were made as a result of the comment.
Nine commenters opposed adoption and stated that fees should be lowered. The department disagrees with the comment and responds that if the department were to reduce fee amounts, it would be unable to continue to provide services and programs expected by the public. No changes were made as a result of the comments.
One commenter opposed adoption and stated that fees have gone up dramatically, particularly with the implementation of special stamps. The department disagrees with the comment and responds that there have been two fee increases since 1987. In 1995, the fee for a hunting or fishing license was increased from $13 to $19 and the discounted super-combination license was instituted at $49; in 2003, the fees were increased from $19 to $23 for the individual licenses and the super combo was increased to $64. In each case, fees were increased only to the extent necessary for the department to deliver programs and activities expected by the public or required by law. Stamp fees have remain unchanged since 2003. The department points out that the current fee increase does not include stamp fees. The department does not believe that present or previous fee increases qualify as "dramatic," and notes that fees have increased at a rate less than inflation over the last 20 years. No changes were made as a result of the comment.
One commenter opposed adoption and stated that fee increases should be paid by persons who lease more than 100 acres for deer hunting. The department disagrees with the comment and responds that even a significant increase to hunting lease license fees, in the absence of increases to license fees, would not generate sufficient the revenue necessary to meet the goals of the fee increase. The department also notes that the amendment to §53.11, concerning Commercial Hunting Licenses and Permits, does increase the fee for hunting lease licenses. No changes were made as a result of the comment.
One commenter opposed adoption and stated that he resented having to acquire an upland game bird stamp to hunt quail on his own property. The department disagrees with the comment and responds that the fee for the upland game bird stamp is not affected by this rulemaking. No changes were made as a result of the comment.
One commenter opposed adoption and stated that he resented having to by a saltwater fishing stamp when he goes to the coast. The department disagrees with the comment and responds that the fee for the saltwater fishing stamp is not affected by this rulemaking. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the excessive number of special permits "makes it dramatically more expensive and confusing to sportsmen and is counter to the idea of expanding hunting and fishing to potential sportsmen." The department responds that the proposal does not impact the number or types of stamps required for hunting and fishing. No changes were made as a result of the comment.
One commenter opposed adoption and stated that fee increases only encourage people to engage in activities without purchasing a license. The department disagrees with the comment and responds that a person who makes a decision to engage in an activity without acquiring a required license is violating the law. Since the fees on the most popular licenses will increase by only a few dollars, the department does not believe that the fee increase will have a significant impact on hunting and fishing license sales or will result in an increase in persons engaging in activities without purchasing the required license. The department does not encourage anyone to violate the law. No changes were made as a result of the comment.
One commenter opposed adoption and stated that fees for the super-combo license should not be increased. The department disagrees with the comment and responds that the philosophy behind the fee increase is that a uniform increase, borne by all users equally, is the most efficient and equitable manner of increasing revenue, since all users benefit equally from the services and activities provided to and for them. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the increases should be larger, especially for nonresident licenses and permits. The department disagrees with the comment and responds that the intent of the department is to raise fees only to the extent that is necessary, including fees for nonresidents. No changes were made as a result of the comment.
Three commenters opposed adoption and stated the legislature diverts funds intended for the department. The department disagrees with the comments and responds that revenue that is legally dedicated to the department continues to be dedicated to the department. No changes were made as a result of the comments.
Twelve commenters opposed adoption and stated that the department should charge landowners for Managed Lands Deer Permits (MLDs) instead of raising license fees. The department disagrees with the comment and responds that the MLD program is an incentive-based program designed to encourage landowners and land managers to learn about and engage in good habitat management. In exchange for accepting a harvest quota established by the department and agreeing to conduct specific management practices, landowners are offered an extended season and enhanced bag limits. The department issued approximately 225,000 MLD permits last year. Participation in the MLD program is not mandatory, so the imposition of a fee for MLD permits could lead to reduced participation. Also, the intent of the fee increase is to increase fees for current permits and licenses. Except for the license reinstatement fee and the fee to enter the lifetime license drawing, no new fees are being added by the rules. No changes were made as a result of the comment.
One commenter opposed adoption and stated that he could not support a fee increase because he is unhappy with public hunting opportunity. The department disagrees with the comment and responds that the rules as adopted do not affect public hunting opportunity. No changes were made as a result of the comment.
One commenter opposed adoption and stated that nonresidents should be required to buy a license in order to participate in drawings for public hunts. The department disagrees with the comment and responds that the rules as adopted affect the fees charged for various licenses and permits, not the administration of the public hunting program. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should "close state parks and wildlife management areas until the governor gets the message." The department disagrees with the comment and responds that closure of state parks and wildlife management areas is not feasible or necessary and that the purpose of the rulemaking is to generate additional revenue needed by the department to maintain current levels of service. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the legislature should "stop robbing our Pitman Robert and stamp fees for special projects and the general fund." The department disagrees with the comment and responds that Pittman-Robertson funds and stamp funds are only expended on projects and activities that legally qualify for the expenditure of such funds. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that the non-resident raptor trapping permit fee far exceeds all other recreational permits, and that combined with the required nonresident hunting license, it is cost-prohibitive for nonresidents to travel to Texas to trap a raptor. The department disagrees with the comments and responds that the nonresident raptor trapping permit was increased five per cent, rounded upwards to the nearest whole dollar, which is the same formula that was used for most of the other licenses. No changes were made as a result of the comments.
One commenter opposed adoption and stated that there should be a discount license for nonresident seniors. The department disagrees with the comment and responds that in establishing the minimum fees for nonresident licenses, the legislature established a system with higher license fees for nonresidents than for residents and did not provide a discount for senior nonresidents. The proposed rulemaking continues that system. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the current super combination license fee "should more than cover the funds necessary to maintain current levels of service to the public." The department disagrees with the comment and responds that the revenue generated by a super combination license alone is insufficient to cover the department's increased costs. Unless the department generates additional revenue, it will not be able to continue to deliver current levels of service and will be forced to eliminate programs and/or employees. No changes were made as a result of the comment.
One commenter opposed adoption and stated that falconry permits are too high and that the fees support a permit program rather than a management program. The department disagrees with the comment and responds that falconry permit fees are used to fund both the administration of the permitting office that issues them and the various research and management initiatives undertaken by the wildlife diversity program that directly or indirectly benefit native birds of prey. No changes were made as a result of the comment.
Seven commenters opposed adoption and stated that the nonresident raptor trapping permit fee should be $70, which is comparable to the national average. The department disagrees with the comment and responds that that the national average for raptor trapping permits is substantially higher than $70. A quick check of nine states (CA, WI, UT, WY, NV, CT, KY, ID, and OK) indicates an average fee of $158 for a nonresident raptor trapping permit, and many states do not allow the practice at all. Texas operates one of the largest, if not the largest, falconry permit programs in the country and thus incurs a significant cost for program administration and enforcement, which is recouped through fees. The department also notes that the primary target species in Texas for nonresident trappers is the Harris' hawk. Since Texas is one of the very few states that allows nonresidents to trap Harris' hawks, it is a popular destination for out-of-state breeders/trappers. Although sale of wild-caught raptors is illegal, captive-bred offspring can be sold in most states and countries. First-generation captive-bred Harris' hawks can bring $700 or more at sale. The department therefore maintains that the fee as adopted is appropriate. No changes were made as a result of the comments.
One commenter opposed adoption and stated that he was opposed to government spending. The department disagrees with the comment and responds that the fee increase is intended to allow the department to continue to carry out its mission. Also, the department notes that it has undertaken some cost-cutting measures as described above. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee increases will cause an increase in poaching. The department disagrees with the comment and responds that a person who makes a decision to violate hunting or angling laws is liable to be cited and prosecuted. Since the fees on the most popular licenses will increase by only a few dollars, the department does not believe that the fee increase will have a significant impact on hunting and fishing license sales or will result in an increase in persons engaging in illegal activities. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department spends too much money on steel shot studies. The department disagrees with the comment and responds that conducting scientific studies regarding wildlife is a component of the department's responsibilities. Also, eliminating or reducing the funds dedicated to a single study would not provide sufficient savings to enable the department to effectively discharge its duties. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the proposed fee increases will drive hunters and anglers to other states. The department disagrees with the comment and responds that out-of-state hunting and fishing license fees are more expensive for Texas residents than in-state licenses are, and that the fee increases. Since the fees on the most popular licenses will increase by only a few dollars, the department does not believe that the fee increase will result in Texas residents choosing to hunt or fish in other states. No changes were made as a result of the comment.
One commenter opposed adoption and stated that he is opposed to federal encroachment. The department disagrees that the rules as adopted are a result of federal requirements or result in federal control of state affairs. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should cut its payroll by five per cent. The department disagrees with the comment and responds that a that although a payroll reduction could result in significant savings, such a reduction would have a significant negative impact on the department's ability to deliver critical services and carry out its statutory obligations. However, the department has undertaken cost-cutting measures, including a reduction of its budget by 2.5%, cancellation of the annual Wildlife Expo, and other austerity measures, but a fee increase is still necessary to maintain current levels of service. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee increases should not apply to seniors. The department disagrees with the comment and responds that the fee increase for recreational licenses is distributed equitably across user groups. The department is cognizant of the financial pressures faced by license buyers. However, since most fees for seniors are already discounted, the overall increase for seniors in most cases is less than two dollars. No changes were made as a result of the comment.
One commenter opposed adoption and stated that hunting and fishing are God-given rights that the state has turned into a privilege. The department disagrees with the comment and responds that under Texas law, hunting and fishing licenses are considered privileges. The department is charged by state law with regulating hunting and fishing and is authorized to establish fees for hunting and fishing licenses. The amendments merely adjust these fees as authorized by law. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that license fees have skyrocketed. The department disagrees with the comments and responds that there have been two fee increases since 1987. In 1995, the fee for a hunting or fishing license was increased from $13 to $19 and the discounted super-combination license was instituted at $49; in 2003, the fees were increased from $19 to $23 for the individual licenses and the super combo was increased to $64. In each case, fees were increased only to the extent necessary for the department to deliver programs and activities expected by the public or required by law. Stamp fees have remain unchanged since 2003. The department points out that the current fee increase does not include stamp fees. The department does not believe that present or previous fee increases qualify as "dramatic," and in fact would point out that fees have increased at a rate less than inflation over the last 20 years. No changes were made as a result of the comments.
One commenter opposed adoption and stated that rather than increase fees on people who cannot afford it, the department should impose a fee of $50 on all hunters and anglers who travel farther than 75 miles to hunt or fish. The department disagrees with the comment and responds that not only does it not have the statutory authority to impose fees on the basis of distance traveled to hunt or fish, the administrative and infrastructure costs of operating such a system would be greater than revenue benefits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the current fee amounts are more than adequate to conduct department operations. The department disagrees with the comment and responds that an analysis of department operational expenses since the last fee increase indicates that aggregate major expenses have increased at approximately 6.1% per year since the last fee increase. Therefore current fee amounts are not adequate to continue to conduct department operations. As a result, the fee increases included in the amendments are necessary. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should impose fees on organizers of and participants in fishing tournaments, because they exploit a public resource at no cost, introduce exotic species that harm native fish and cost money to eradicate, and mistreat fish. The department disagrees with the comment and responds that it does not have the statutory authority to regulate fishing tournaments. No changes were made as a result of the comment.
The department received 37 comments supporting adoption of the proposed amendments increasing the recreational license fees.
The department received 68 comments opposing adoption of the fee increases for lifetime licenses. Of those commenters, 35 articulated specific reasons or rationales for oppositions. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that the lifetime license fees should remain as they are, because people pay a large amount up front for them. The department disagrees with the comment and responds that the intent of the lifetime licenses is to offer the consumer who intends to hunt and fish for many years an attractive, one-time opportunity to purchase lifetime privileges at a potential discount. At the current time, the payoff point for the various lifetime licenses is 15 years or less, after which the department loses revenue, since the person never purchases another license. The department believes that the payoff point should be between 20 and 25 years. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should cut its budget rather than raise fees. The department agrees with the comment and responds that it has implemented a 2.5 per cent budget cut and eliminated popular events such as the annual Wildlife Expo. No changes were made as a result of the comments.
One commenter opposed adoption and stated that a 25-year payoff would discourage people older than 30 from buying one. The department disagrees with the comment and responds that the average life expectancy of an American is 77.7 years of age; thus, the purchaser of a lifetime super combination license at age 30 would save $494 versus purchases of an annual super combination hunting and fishing license. No changes were made as a result of the comment.
Seven commenters opposed adoption and stated that fees should not be increased because of the economy. The department agrees that the present economic climate is difficult for many people, but disagrees that the increases to lifetime license fees create a financial hardship for users, since the license is not mandatory and if purchased will result in a lower cost for hunting and/or fishing privileges over time. The department notes as well that it is not immune to the current economic downturn. The fee increase is necessary to allow the department to continue to provide current levels of service. No changes were made as a result of the comments.
Fourteen commenters opposed adoption and stated that the increase was too large. The department disagrees with the comments and responds that the increases as adopted are the minimum necessary to allow the department to continue to provide current levels of service to the public. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the increase for the lifetime licenses was inconsistent with the increases for other licenses and that the increase as proposed would "result in only about eight years of "free" licenses." The department disagrees with the comment and responds that the department believes that the payoff point for a lifetime license should be between 20 and 25 years. After the payoff point, the license purchaser has reaped a benefit in excess of the cost of the license. The number of "free" years will depend on the license purchaser's age at the time of purchase and the purchaser's life span. To achieve a 20-25 year payoff, the department has determined that fees must be increased by greater than the five per cent increase (rounded up to the nearest dollar) applied to most other licenses, primarily because the fees for lifetime licenses have not been increased in 13 years. No changes were made as a result of the comment.
One commenter opposed adoption of the increase in lifetime licenses and stated that fee increases only encourage people to engage in activities without purchasing license. The department disagrees with the comment and responds that a person who makes a decision to engage in an activity without acquiring a required license is violating the law. The decision to purchase a lifetime license, as opposed to an annual license is a choice to be made by the individual license purchaser. Although the percentage increase in the lifetime license fees is greater than other licenses, the fees on the most popular licenses will increase by only a few dollars. Therefore, the department does not believe that the fee increase will have a significant impact on hunting and fishing license sales or will result in an increase in persons engaging in activities without purchasing the required license. The department does not encourage anyone to violate the law. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fees should be established at a 20-year payoff. The department responds that the rule as adopted accomplishes a payoff point of between 20-25 years. No changes were made as a result of the comment.
One commenter opposed adoption and stated that "the fact that the state would not get it is irrelevant because the state would have the funds to use for years." The department disagrees and notes that the revenue generated by the sale of a lifetime license, in most instances, is less than the revenue that would have been generated if the lifetime license purchaser had instead purchased a license each year during the purchaser's lifetime. The department believes that the payoff point for a lifetime license should be between 20 and 25 years. After the payoff point, the license purchaser has reaped a benefit in excess of the cost of the license. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should be investing the initial purchase price, as well as realizing that some people who purchase lifetime licenses will move out of state and not hunt here anymore, or stop hunting (and therefore purchasing annual licenses). The commenter stated that the department shouldn't have to rely on such language as "revenue loss" to define a person who supports the state by purchasing a lifetime license. The department disagrees with the comment and responds that all revenue from the sale of lifetime licenses is in fact deposited in the lifetime license endowment account. The department also responds that the revenue generated by the sale of a lifetime license, in most instances, is less than the revenue that would have been generated if the lifetime license purchaser had instead purchased a license each year during the purchaser's lifetime. Therefore, it is not inaccurate to state that the department loses revenue on lifetime licenses. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that a 25-year payoff is not reasonable. The department disagrees with the comment and responds that a 25-year payoff is reasonable. The average life expectancy of an American is 77.7 years of age. Therefore, a 25 year payout would cover roughly one-half of an average person's expected adult years. After the payoff point, the license purchaser has reaped a benefit in excess of the cost of the license. The amount of that benefit will depend on the license purchaser's age at the time of purchase and the purchaser's life span. No changes were made as a result of the comment.
One commenter opposed adoption and stated that if the department is that worried about revenue loss, it should stop selling lifetime licenses. The department disagrees with the comment and responds that the intent of the lifetime licenses is to offer the consumer who intends to hunt and fish for many years an attractive, one-time opportunity to purchase lifetime privileges at a potential discount. At the current time, the payoff point for the various lifetime licenses is 15 years or less, after which the department loses revenue, since the person never purchases another license. The department believes that the payoff point should be between 20 and 25 years, or roughly half of a normal adult lifespan. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the lifetime licenses should not exist. The department disagrees with the comment and responds that the lifetime license is expressly authorized by the Parks and Wildlife Code. Also, there are good reasons to offer lifetime licenses, including convenience, economic savings, and above all, the opportunity to ensure that youth will be able to afford to hunt and fish. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the lifetime license fees should not be increased because of the high cost of gas, leases, food, ammunition, and other expenses related to hunting and fishing. The department disagrees with the comment and responds that the department has also experienced increased costs. If license fees remained constant while costs increased, the department at some point would be unable to effectively discharge its duties. No changes were made as a result of the comments.
One person opposed adoption of the lifetime license fee increase and stated that the entire reason for offering the lifetime licenses is for people to save money. The department agrees with the comment and notes that the fee increase will provide for a 20-25 year payout. After the payoff point, the license purchaser has reaped a benefit in excess of the cost of the license. No changes were made as a result of the comment.
The department received 15 comments supporting adoption of the proposed amendments to the lifetime license.
The department received 24 comments opposing fee increases for commercial licenses and permits. Of those commenters, 11 articulated specific reasons or rationales for oppositions. Those comments, accompanied by the department's response to each, follow.
One person opposed adoption and stated that more taxes are not needed. The department disagrees with the comments and responds that fees for licenses and permits are not taxes, because payment is not mandatory and there is a privilege granted. No changes were made as a result of the comments.
One commenter opposed adoption and stated that fees should not be increased because of the economy. The department agrees that the present economic climate is difficult for many people, but disagrees that the increases to commercial license fees will create financial hardship for users, since commercial licenses allow the use of public resources for profit. The increase to any given commercial license is relatively small. The department notes as well that it is not immune to the current economic downturn. The fee increase is necessary to allow the department to continue to provide current levels of service. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that the department should cut the budget instead of raising fees. The department agrees with the comment and responds that it has implemented a 2.5 per cent budget cut and eliminated popular events such as the annual Wildlife Expo. However, the savings realized by cost reduction measures are insufficient to enable the department to effectively discharge its duties. No changes were made as a result of the comments.
One commenter opposed adoption and stated that rather than raising fees for hunting licenses, fees should be imposed on "ranches that charge extreme prices for animals that belong to the people." The department disagrees with the comment and responds that the department has only the revenue mechanism created for it by the legislature, which, at the current time, does not include the authority to impose fees based on the prices charged by private landowners for hunting access. The department also notes that the amendments to §53.11, concerning Commercial Hunting Licenses and Permits, does increase the fee for hunting lease licenses. No changes were made as a result of the comment.
Three commenters opposed adoption and stated that commercial license fees were too low. The department disagrees with the comment and responds that at the current time, fees for commercial licenses are believed to be equitable. No changes were made as a result of the comment.
One commenter opposed adoption and stated that fee increases only encourage people to engage in activities without purchasing a license. The department disagrees with the comment and responds that a person who makes a decision to engage in an activity without acquiring a required license is violating the law. Since the fees on the most popular licenses will increase by only a few dollars, the department does not believe that the fee increase will have a significant impact on hunting and fishing license sales or will result in an increase in persons engaging in activities without purchasing the required license. The department does not encourage anyone to violate the law. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there are too many laws on the books, and that for every new law introduced, two old laws should have to be removed. The commenter stated that by reducing the number of laws the department "can save money by not carrying out regulatory demands." The department disagrees with the comment and responds that number of laws imposing regulatory obligations on the department is within the purview of the Texas Legislature and beyond the scope of thee rules. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the cormorant depredation permit should be free. The commenter stated that because the department does not perform a service or management, the fee is really a tax. The department disagrees with the comment and responds that the department incurs a cost in providing the cormorant depredation permit. The department also responds that fees for licenses and permits are not taxes, because payment is not mandatory and there is a privilege granted. No changes were made as a result of the comment.
The department received 29 comments supporting adoption of the amendments to commercial license fees, as proposed.
The department received 43 comments opposing the proposed fee increases for boat registration and titling. Of those commenters, 13 articulated specific reasons or rationales for oppositions. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that the department should recover money that was used by the legislature to fund other state agencies. The department disagrees and responds that the legislature, not the department, establishes the appropriations to state agencies. Also, each biennium, the department does seek funding from the legislature by submitting a Legislative Appropriations Request. However, appropriations from the legislature are dependent on fund balances and revenues. The fee increase will help ensure that the department's fund balances and revenue are sufficient to carry out the agency's responsibilities. No changes were made as a result of the comments.
Three commenters opposed adoption and stated that the department should cut its budget rather than increase fees. The department agrees with the comment and responds that it has implemented a 2.5 per cent budget cut and eliminated popular events such as the annual Wildlife Expo. However, the savings realized by cost reduction measures are insufficient to enable the department to effectively discharge its duties. No changes were made as a result of the comments.
One commenter opposed adoption of the boat fee increases and stated that that rather than raising fees for hunting licenses, fees should be imposed on "ranches that charge extreme prices for animals that belong to the people." The department disagrees with the comment and responds that the department has only the revenue mechanism created for it by the legislature, which, at the current time, does not include the authority to impose fees based on the prices charged by private landowners for hunting access. The department also notes that the amendments to §53.11, concerning Commercial Hunting Licenses and Permits, does increase the fee for hunting lease licenses. No changes were made as a result of the comment.
Three commenters opposed adoption of the boat fee increases and stated that fees should not be increase because of the economy. The department agrees that the present economic climate is difficult for many people, but disagrees that the increases to boat titling and licensing fees create financial hardship for users, since the fee increases represent a small fraction of the operational cost of a vessel. The department notes as well that it is not immune to the current economic downturn. The fee increase is necessary to allow the department to continue to provide current levels of service. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the department has not justified "increased recordkeeping" fees. The department disagrees with the comment and responds that amendments do not include an "increased recordkeeping" fee. No changes were made as a result of the comment.
One commenter opposed adoption and stated that boat titling and registration fees should be higher. The department disagrees with the comment and responds that at the current time it believes that the fees as adopted are appropriate to fund continued operations with regard to boat titling and registration. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the proposed fee increases are excessive and there should be a fair, across-the-board increase. Another commenter opposed adoption and stated that the proposed fee increase for large boats was excessive. The department disagrees that the fee increases are excessive. The department notes that most classes of vessels are subject to an across-the-board 5% increase (rounded up to the nearest dollar). However, the proposed fee increase for the largest vessels is greater. The fee increases for Class 2 and Class 3, which are larger vessels, are 57% and 66.7%, respectively. The department has determined that registration fees for larger vessels in Texas have been underpriced compared to the registration fees paid in the other states on the Gulf of Mexico (all of which are similar to Texas in terms of the type of boating opportunity available) for similar, smaller vessels. For instance, in Florida the two-year registration fee for the equivalent of a Class 2 vessel is $166. In Louisiana, the fee for an equivalent vessel is $128. In Alabama, the fee is $150. For the equivalent of a Class 3 vessel, these fees are $325, $192, and $200, respectively. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department does not enforce current titling rules, so an increase is unnecessary. The department disagrees with the comment and responds that titling regulations are enforced. No changes were made as a result of the comment.
The department received 23 comments supporting adoption of the proposed amendment to the boat titling and registration fee rules.
The department received 11 comments opposing the proposed special drawing for a lifetime special super combination license package. Of those commenters, four articulated specific reasons or rationales for oppositions. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that the proposal was "a cheap lottery scheme." The department disagrees with the comment and responds that the department is authorized by §11.0271 and §11.0272, Parks and Wildlife Code to conduct such drawings without violating the gambling prohibitions in §47.02 of the Penal Code. The intent of the rule is to generate additional revenue by creating an affordable opportunity for people to potentially acquire lifetime license privileges. No changes were made as a result of the comment.
One commenter opposed adoption and stated that nonresidents should be allowed to participate. The department disagrees with the comment and responds that under Parks and Wildlife Code, there is no provision for a nonresident lifetime license. No changes were made as a result of the comment.
One commenter opposed adoption and stated that transfers should not be allowed. The department disagrees with the comment and responds that intent of the rule is to generate additional revenue by creating an affordable opportunity for people to potentially acquire lifetime license privileges, and to be able to make a gift of those privileges, if they so desire, provided the gift is made within 30 days after the winner is notified by the department. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department was initiating a lottery for a lifetime license at the same time it is increasing fees for the lifetime license. The department agrees with the comment, but notes that the drawing is authorized by the Parks and Wildlife Code and the Penal Code. No changes were made as a result of the comment.
The department received 48 comments supporting adoption of the proposed amendment creating a special drawing for a lifetime special super combination license package.
The department received 16 comments opposing the proposed new application fee for reinstatement of license privileges that have been revoked or denied. Of those commenters, five articulated specific reasons or rationales for oppositions. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that the rule is not necessary. The department disagrees with the comment and responds that the department incurs an expense in excluding people from and reinstating them to the licensing system as a consequence of court orders. The department believes that law-abiding hunters and anglers should not have to bear the cost of a system that monitors offenders and that it is only fair that offenders bear that burden. No changes were made as a result of the comment.
One commenter opposed adoption and stated that persons who have had license privileges revoked or denied should not be allowed to have those privileges reinstated. The department disagrees with the comment and responds that a person who has discharged all requirements of the court related to penalties should be allowed to purchase a license. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the proposed rule was an interference with peoples' lives and that failure to pay child support has nothing to do with deer hunting. The department disagrees with the comment and responds that under the Texas Family Code, Chapter 232, upon notification from the court or the Attorney General that a license suspension is in effect for a person's failure to pay child support, the department may not issue a license to that person. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee for reinstatement of a license should be 100 times the cost of the license. The department disagrees with the comment and responds that the intent of the reinstatement application fee is not punitive, but simply to address the administrative cost for reinstating licenses. No changes were made as a result of the comment.
One commenter opposed adoption and stated that people who are subject to license revocation or denial should have the opportunity to go before an independent board for an appeal process. The department disagrees that a separate appeal process is necessary. The department denies or revokes a license only as a consequence of a court order or as otherwise provided by law. In most instances, the denial or revocation has been the result of some sort of process. The department also notes that the process for denial or revocation of a license is not the subject of the amendment. No changes were made as a result of the comment.
The department received 47 comments supporting adoption of the proposed amendment regarding a reinstatement fee.
DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
31 TAC §§53.2, 53.3, 53.5 - 53.17
The amendments are adopted under the authority of Parks and Wildlife Code:
Chapter 11: §11.027, which authorizes the commission to establish a fee to cover costs associated with the review of an application for a permit required by the code; to sell any item in the possession of the department in which the state has title, or acquire and resell items if a profit can be made, to charge a fee for the use of a credit card to pay a fee assessed by the department in an amount reasonable and necessary to reimburse the department for the costs involved in the use of the card, and a fee for entering, reserving, or using a facility or property owned or managed by the department; §11.0271, which authorizes the department to establish participation fees, not to exceed $25 per species for each participant on an application, in drawings for special hunting programs, packages, or events that exceed the costs of operating the drawing only if the fees charged are designated for use in the management and restoration efforts of the specific wildlife program implementing each special hunting program, package, or event; §11.0272, which authorizes the commission to approve participation fees, not to exceed $25 per species or event for each participant on an application, in drawings for special fishing or other special programs, packages, or events the costs of which exceed the costs of operating the drawing only if the receipts from fees charged are designated for use in the management and restoration efforts of the specific fishery or resource program implementing each special fishing or other special program, package, or event;
Chapter 31; §31.026, which authorizes the department to charge a fee for an original or renewal certificate of number for a vessel; §31.030, which authorizes the department to impose a fee for duplicate certificates and decals; §31.039, which authorizes the commission to charge a fee for access to ownership and other records; §31.0412, which authorizes the commission to adopt fees for dealer's, distributor's, and manufacturer's licenses, duplicates of those licenses, and transfers of those licenses; §31.048, which authorizes the commission to establish fees for the issuance of a title for a boat or motor or notation of a security interest, lien, or other encumbrance; and §31.177, which requires the commission to establish fees party boat licenses and inspections;
Chapter 42: §42.012, which authorizes the commission to establish a fee for a resident hunting license; §42.0121, which authorizes the commission to establish a fee for a lifetime resident hunting license; §42.014, which authorizes the commission to establish a fee for a nonresident special hunting license; §42.0141, which authorizes the commission to establish a fee for a general nonresident hunting license; §42.0142, which authorizes the commission to establish a fee for banded bird hunting licenses; §42.0143, which authorizes the commission to establish a fee for a nonresident five-day special hunting license; and §42.0144, which authorizes the commission to establish a fee for a nonresident spring turkey hunting license;
Chapter 43: §43.022, which authorizes the commission to establish a fee for permits for scientific, educational, and zoological permits; §43.044, which authorizes the commission to establish a fee for hunting lease licenses; §43.0722, which authorizes the commission to establish a fee for a private bird hunting area license; §43.0764, which authorizes the commission to establish a fee for a field trial permit; §43.110, which authorizes the commission to establish a fee for a permit that authorizes the management of wildlife or exotic animals by the use of aircraft; §43.554, which authorizes the commission to establish a fee for a permit to allow a licensed fish farmer to take a specified quantity of fish brood stock from specified public water;
Chapter 44: §44.003, which authorizes the commission to establish a fee for a game breeder's license;
Chapter 45: §45.003, which authorizes the commission to establish a fee for commercial game bird breeder's licenses;
Chapter 46: §46.004, which authorizes the commission to establish fees for a resident fishing license, a nonresident fishing license, and a lifetime resident fishing license; §46.005, which authorizes the commission to establish the period of validity and a fee for resident and nonresident temporary sportfishing licenses; §46.006, which authorizes the commission to establish a fee for duplicate fishing licenses and tags; §46.007, which authorizes the commission to establish a period of validity for fishing licenses and tags; and §46.0085, which authorizes the commission to issue tags for finfish;
Chapter 47: §47.002, which authorizes the commission to establish a fee for a resident or nonresident general commercial fisherman's license; §47.004, which authorizes the commission to establish a fee for a fishing guide license; §47.007, which authorizes the commission to establish a fee for a commercial fishing boat license; §47.009, which authorizes the commission to establish a fee for a wholesale fish dealer's truck license; §47.014, which authorizes the commission to establish a fee for bait dealer's licenses; and §47.075, which authorizes the commission to establish a fee for a commercial finfish fisherman's license;
Chapter 49: §49.014, which authorizes the commission to establish a fee for any falconry, raptor propagation, or nonresident trapping permit;
Chapter 50: §50.001, which authorizes the commission to establish combination licenses and packages and the fees for each;
Chapter 65: §65.003, which authorizes the commission to establish a fee for permits that govern the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of alligators, alligator eggs, or any part of an alligator;
Chapter 66: §66.007, which authorizes the commission to establish rules governing permits to import, possess, sell, or place into water of this state exotic harmful or potentially harmful fish, shellfish, or aquatic plants; §66.017, which authorizes the commission to establish the period of validity for licenses, permits, and tags issued under the authority of Chapter 66; §66.018, which authorizes the commission to establish a fee for a crab trap tag; §66.020, which authorizes the commission to establish a fee for permits authorizing the sale and purchase of protected fish; §66.206, which authorizes the commission to establish a fee for tags for trotlines used in public salt water;
Chapter 67: §67.0041, which authorizes the commission to establish a fee for permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife;
Chapter 71: §71.002, which authorizes the commission to establish a fee for a resident or nonresident trapper's license, a resident or nonresident wholesale fur dealer's license, and a fur-bearing animal propagation permit;
Chapter 76: §76.104, which authorizes the commission to establish a fee for a commercial oyster boat license, a sport oyster boat license, a commercial oyster fisherman's license, a commercial oyster boat captain's license, a commercial oyster boat license for a boat that is not numbered under Chapter 31 or does not have a certificate of documentation issued by the United States Coast Guard that lists an address in Texas for the boat owner, a sport oyster boat license for a boat that is not numbered under Chapter 31 or does not have a certificate of documentation issued by the United States Coast Guard that lists an address in Texas for the boat owner, a fee for a nonresident commercial oyster fisherman's license, and a nonresident commercial oyster boat captain's license; §76.1041, which authorizes the commission to establish requirements for the design and display of a commercial oyster boat license;
Chapter 77: which authorizes the commission to establish a fee for a resident or nonresident commercial shrimp boat captain's license issued by the department; §77.043, which authorizes the commission to establish a fee for a bait-shrimp dealer's license; §77.048, which authorizes the commission to establish a fee for an individual bait-shrimp trawl; §77.033, which authorizes the commission to establish fees for commercial bait shrimp licenses; and §77.115, which authorizes the commission to establish fees for the transfer of commercial bait shrimp licenses;
Chapter 78: §78.002, which authorizes the commission to establish a fee for a resident or nonresident commercial mussel and clam fisherman's license; §78.003, which authorizes the commission to establish a fee for a resident or nonresident shell buyer's license; §78.004, which authorizes the commission to establish a fee for the export of mussels or clams or mussel or clam shells; and §78.105, which authorizes the commission to establish a fee for a crab boat license;
Chapter 81: §81.403, which authorizes the commission to establish a fee for a permit for the hunting of wildlife or for any other use in wildlife management areas; and
Penal Code, §47.02, which provides a defense to prosecution for actions consisting entirely of participation in a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the department.
§53.16.Vessel, Motor, and Marine Licensing Fees.
(a) Registration fees. After the initial registration of a vessel, the vessel may be registered electronically by credit card by agreeing to pay an applicable credit card handling or convenience fee in addition to the normal registration fee.
(1) livery vessel-Class A--$32;
(2) vessel-Class A--$32;
(3) vessel-Class 1--$53;
(4) vessel-Class 2--$110;
(5) vessel-Class 3--$150;
(b) Titling fees:
(1) certificate of title--$27;
(2) administrative surcharge for expedited title to a vessel (in addition to applicable fee)--$37;
(3) administrative surcharge for expedited title to a motor (in addition to applicable fee)--$37; and
(4) bonded certificate of title--$37.
(c) Duplicate/transfer fees:
(1) vessel-transfer of ownership--$11;
(2) vessel-duplicate certificate of number--$11;
(3) vessel-duplicate decals--$11.
(d) Marine dealer/distributor/manufacturer fees:
(1) marine dealer, distributor or manufacturer license (includes licensee validation card (with decal) for recreational purposes or participation in contests or events)--$525;
(2) marine dealer, distributor or manufacturer ownership transfer of license--$525;
(3) marine dealer, distributor or manufacturer location transfer--$11;
(4) marine dealer, distributor or manufacturer information update/license correction--$4;
(5) additional marine dealer, manufacturer, or distributor's licensee validation card (with decal) for recreational purposes or participation in contests or events--$126; and
(6) replacement card marine dealer, manufacturer, or distributor's licensee validation card (with decal)--$11.
(e) Report fees:
(1) certified history report of ownership for vessel or outboard motor--$11;
(2) accident/water fatality report up to five pages in length--$5; and
(3) accident/water fatality report over five pages in length--$10.
(f) Party boat fees:
(1) annual party boat inspection--$132 (if the inspection is performed by a department-approved entity, $60 may be retained by the inspecting entity);
(2) initial application for party boat operator license--$132;
(3) party boat operator license renewal application--$53;
(4) replacement party boat operator license to for lost, damaged, destroyed, or stolen license--$53.
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 July 21, 2009.
TRD-200902983
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 15, 2009
Proposal publication date: April 24, 2009
For further information, please call: (512) 389-4775
The amendment is adopted under Parks and Wildlife Code, §11.0271, which authorizes the department to establish participation fees, not to exceed $25 per species for each participant on an application, in drawings for special hunting programs, packages, or events that exceed the costs of operating the drawing only if the fees charged are designated for use in the management and restoration efforts of the specific wildlife program implementing each special hunting program, package, or event; §11.0272, which authorizes the commission to approve participation fees, not to exceed $25 per species or event for each participant on an application, in drawings for special fishing or other special programs, packages, or events the costs of which exceed the costs of operating the drawing only if the receipts from fees charged are designated for use in the management and restoration efforts of the specific fishery or resource program implementing each special fishing or other special program, package, or event; and §42.0121, which authorizes the commission to establish a fee for a lifetime resident hunting 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 July 21, 2009.
TRD-200902984
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2009
Proposal publication date: April 24, 2009
For further information, please call: (512) 389-4775
The repeal is adopted under Parks and Wildlife Code, Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the code, and to set and charge a fee for the use of a credit card to pay a fee assessed by the department in an amount reasonable and necessary to reimburse the department for the costs involved in the use of the card; and under Parks and Wildlife Code, §31.0412, which authorizes the commission to establish rules concerning the issuance and price of validation cards permitting the limited and temporary use of vessels for recreational purposes or participation in contests or events and to adopt rules regarding dealer's, distributor's, and manufacturer's licenses, including application forms, application and renewal procedures, and reporting and recordkeeping requirements.
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 July 21, 2009.
TRD-200902982
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: April 24, 2009
For further information, please call: (512) 389-4775
The amendment is adopted under Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee for entering, reserving, or using a facility or property owned or managed by the department.
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 July 21, 2009.
TRD-200902985
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2009
Proposal publication date: April 24, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts the repeal of §59.75 and §59.134, amendments to §§59.41 - 59.47, 59.61 - 59.64, and 59.131 - 59.133, and new 59.134, concerning State Parks. New §59.134 is adopted with changes to the proposed text as published in the February 20, 2009, issue of the Texas Register (34 TexReg 1187). The repeal of §59.75 and §59.134 and the amendments to §§59.41 - 59.47, 59.61 - 59.64, and 59.131 - 59.133 are adopted without changes and will not be republished.
The change to §59.134, concerning Rules of Conduct, alters subsections (j) and (q). As proposed, subsection (j) prohibited unaccompanied overnight visitation by "a person older than 15 years, but younger than 17 years." The provision is intended to apply to 15 and 16-year olds. The change would make this clear by referring to persons "15 years or older, but less than 17 years." As proposed, subsection (q)(2) prohibits the use of certain water supplies at state parks (water bodies, fountains, etc., intended for recreational use) for bathing, laundering, and washing dishes, pets, or vehicles. The change makes clear that this prohibition applies to trailers, as well.
The repeals, amendments, and new section are necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review.
The repeal of §59.75, concerning Coastal Management Program, is necessary because it is duplicative of other department rules. The department is already required by the Coastal Coordination Act and other department regulations, as well as General Land Office regulations to perform the activities listed in the rule. Texas Natural Resources Code §§33.201 - 33.212; see 31 Texas Administrative Code §§69.91, 69.93, 501.1 - 501.34;
The repeal of §59.134, concerning Rules of Conduct, is necessary because the department is restructuring and reorganizing its contents in new §59.134.
The amendment to §59.41, concerning General Statement, alters subsection (c) to acknowledge that other state agencies also acquire and manage historic sites. Specifically, in accordance with House Bill 12, as enacted by the 80th Texas Legislature (2007), 18 State Historic Sites were transferred from the department of the Texas Historical Commission. Similarly, Senate Bill 1659, also enacted by the 80th Texas Legislature, transferred the Texas State Railroad to the Texas State Railroad Authority. Previously, by House Bill 2025, enacted by the 79th Texas Legislature (2005), the National Museum of the Pacific War, formerly known as the Fleet Admiral Chester W. Nimitz Memorial Naval Museum was transferred to the Texas Historical Commission.
The amendment to §59.42, concerning Chronology and Thematic Organization, alters subsection (a) to replace the word "balanced" with the word "full" with respect to interpretation of the heritage of Texas. The amendment is necessary because "full" better describes the goal of department interpretive programs that all aspects of Texas heritage will be addressed.
The amendment to §59.43, concerning Acquisition Guidelines, alters subsection (a)(4) to remove the term "aboriginal" and replace it with a reference to "pre-European contact inhabitants." The amendment is necessary to replace obsolete terminology with modern terminology.
The amendment to §59.44, concerning Development Guidelines, alters subsection (c)(1) to eliminate a reference to the General Services Commission, which no longer exists, and replace it with a reference to the Texas Comptroller of Public Accounts and the Texas Facilities Commission, which assumed duties formerly performed by the General Services Commission.
The amendment to §59.45, concerning Methods of Additional Funding Other Than Departmental, eliminates subsection (b), which required the executive director to present applications for non-departmental sources of funding to the commission for consideration prior to department acceptance of such funds. The provision is being eliminated as duplicative. Commission approval and/or acknowledgment of donations over $500 is required by statute and by other department regulations. Texas Government Code §575.003; Texas Parks and Wildlife Code §13.001(b); 31 Texas Administrative Code §51.70 and §51.71.
The amendment to §59.46, concerning Maintenance Guidelines, adds the phrase "and other professional standards" to subsection (a) to acknowledge that the standards of the U.S. Department of the Interior concerning treatment of historic properties are not the sole source of department information concerning the subject. For example, Texas Antiquities Code, Texas Administrative Code, and department procedures also apply.
The proposed amendment to §59.47, concerning Personnel Selection and Training Guidelines, would replace the word "prehistory" with the word "archeology" in paragraph (4) to replace an obsolete term with a more accurate reference to a professional discipline.
The proposed amendment to §59.61, concerning General Objectives (regarding administration of the state parks system), would replace the phrase "purpose and scope" with the term "mission," replace a reference to "public lands" with a reference to the "state park system," and revise the section to qualify that the department's stewardship of the state parks system is based on sustainability and best management practices in the interest of encouraging the citizens of the state to understand and appreciate the state's cultural, historical and natural heritage. The proposed amendment also eliminates archaic capitalization conventions in the word "state." The amendment is necessary to specifically identify the state park system as the entity being addressed in the rule, to acknowledge modern developments in state park system management, and to eliminate obsolete grammatical usage.
The proposed amendment to §59.62, concerning Parks and Wildlife Land Classification--Policy, would alter paragraph (1) to refer to lands "managed or operated as state parks" rather than lands "owned or leased by Texas Parks and Wildlife Department, except coastal preserves, scientific areas, fish hatcheries, boat ramps and administrative properties" with respect to the classification policy. The department is required by Parks and Wildlife Code to "establish a classification system for state parks and wildlife management areas that categorizes wildlife management areas, parks, or a portion of parks as wildlife management areas, recreational areas, natural areas, or historical sites." Texas Parks and Wildlife Code §13.001(b). The subject of Chapter 59 is state parks. Therefore, the applicability of the section is being narrowed to primarily focus on those lands managed or operated as unites of the state parks. However, to ensure that the required department property classifications are included, the amendment includes a reference to department properties classified as wildlife management areas, as addressed in Chapter 65, Subchapter H.
The amendment to §59.62 also clarifies that management and operation of units of the state park system will be in accordance with the classification system and appropriate management plans developed for each unit of the state park system. The amendment also eliminates language concerning public input regarding park management plans and public hunting that is duplicative of the Parks and Wildlife Code and other department regulations. Parks and Wildlife Code, §13.020, requires a public hearing before the commission approves a park master development plan. Similarly, rules regarding hunting on public lands, including state parks, are addressed in Chapter 65, Subchapter H. Also, state parks are scheduled for public hunting activities by action of the commission on an annual basis in a public meeting conducted in accordance with the Texas Open Meetings Act (Government Code, Chapter 551).
The amendment to §59.62(3) adds "cultural resource preservation" to the items addressed by management plans. Cultural resource preservation has always been an important consideration, and the amendment is intended to make this explicit.
The amendment to §59.62 also eliminates former paragraph (5), which is an unnecessary explanation of terms such as "may" and "shall" that are commonly understood without elaboration. It is the department's intent that such phrases be interpreted in accordance with rules of statutory construction, including those contained in Government Code, Chapters 311 and 312.
The amendment to §59.63, concerning Definitions, modernizes and clarifies the definitions in the section. The word "title" is replaced with the word "chapter" to clarify that the terms defined are for the purpose of Chapter 59, rather than the entirety of Title 31 of the Texas Administrative Code.
The amendment eliminates former paragraph (1) because the term "ecoregions" is not used in the rules.
The amendment alters former paragraph (2), redesignated as paragraph (1), to clarify that "low impact use" in some instances may result in irreversible impacts that are within acceptable limits of change.
The amendment to former paragraph (3), redesignated as paragraph (2) amends the definition of a "management plan" to replace the reference to "Parks and Wildlife lands" with a narrower reference to lands "within the state park system" which is a more accurate description of applicability.
The amendment to former paragraphs (4) and (5), redesignated as paragraphs (3) and (4), respectively, clarifies that "natural biodiversity" and "natural communities" are understood to mean plants and animals indigenous to Texas and the interaction of those plants and animals.
The amendment to former paragraph (6), redesignated as paragraph (5), replaces a reference to "Public Hunting Lands Hunting and Fishing Proclamation" with a reference to the "Public Lands Proclamation," which is the correct title of that document.
The amendment to former paragraph (7), redesignated as paragraph (6), implements a broad definition of "public use." The former definition simply lists a number of common activities, giving the impression that "public use" is constituted by those activities irrespective of the individual management priorities of individual units of the state parks system. The new definition simply states that public use is resource-oriented recreation under the operational rules of the department.
The amendment to former paragraph (8), redesignated as paragraph (7), clarifies that "resource-oriented recreation" must be consistent with applicable rules and policies, which acknowledges that recreational activity on state parks is managed.
The amendment to former paragraph (9), redesignated as paragraph (8), clarifies that "sound biological management" must be science-based and incorporate best management practices. The amendment affirms the department's commitment to the management of biological resources in a responsible manner.
The amendment to former paragraph (10), redesignated as paragraph (9) amends the definition of "sustainability" to expressly acknowledge that the department's intent is to measure the effect of management regimes on the "sustainability" of natural assets in the state park system.
The amendment to former paragraph (11), redesignated as paragraph (10), clarifies that "wilderness-type experience" is meant to be a true experience in a natural setting and insert a hyphen in the term.
The amendment to §59.64, concerning Classification and Guidelines, modernizes the section. Classification of department lands is required by Parks and Wildlife Code, §13.001(b). The amendment eliminates former subsection (a) and all other references to "game management areas," which is an archaic term. The department does not operate any game management areas. The department does operate wildlife management areas, which are governed under Parks and Wildlife Code, Chapter 81, and 31 TAC Chapter 65, Subchapter H.
The amendment to former subsection (b), redesignated as subsection (a), replaces the term "recreational area" with the term "State Park." Under the classification system required by statute, areas under the administration of the state park system are classified as state parks, state natural areas, state historic sites, or state park and historic sites. The term "recreational area" is no longer used. The amendment also alters former subsection (b)(2)(B), redesignated as subsection (a)(2)(B), to remove the general guideline establishing a ratio of one developed acre to four undeveloped acres with respect to development intensity on state parks. The ratio in the former rule is identified as a guideline, and the management goals of state parks currently address development intensity on a park-specific basis and generally exceed the ratio. The amendment to former subsection (b)(3)(A), redesignated as (a)(3)(A), qualifies that the department's goals in any park experience, in addition to recreational enjoyment, should also be aimed at educating users about park resources. The amendment to former subsection (b)(3)(B), redesignated as subsection (a)(3)(B), clarifies that economic efficiency includes cost-recovery, which allows the department to incorporate fees that are consistent with the cost to the department of providing recreational opportunities for users. The amendment also modifies paragraph (5) to acknowledge that recreational activity on any given park must be appropriate to the natural, cultural and scenic features of the park.
The amendment to former subsection (c), redesignated as subsection (b), replaces the term "natural areas" with the term "State Natural Areas," which is the term used in the names of these types of facilities under the jurisdiction of the department.
The amendment to former subsection (d), redesignated as subsection (c), replaces the term "historic area" with the term "State Historic Site" to more appropriately address the fact that the state operates specific sites, rather than areas and to more closely align this term with Parks and Wildlife Code, §13.0053(b), which prohibits the reference to historic sites as "historic parks." References to state historic sites are added throughout the subsection to ensure clarity. The amendment also replaces an outdated reference to statutory law with a reference to the Parks and Wildlife Code in former subsection (d)(1)(A), redesignated as (c)(1)(A).
The amendment to former subsection (d)(3)(A), redesignated as (c)(3)A), removes the term "all," which is unnecessary. The amendment to paragraph (3)(A) also removes the term "representation," which is redundant because the term "interpretation" by definition includes representation.
The amendment to former subsection (d)(3)(B), redesignated as (c)(3)(B), clarifies that aesthetic integrity is an important consideration in the operation of a state historic site, as the aesthetic characteristics of a site are an inherent component of historical importance. The amendment also replaces the term "design intent" with the term "character defining elements" in order to more completely describe the nature of elements that should not be obscured in the development and operation of historic sites. The amendment also replaces the term "resource oriented" with "sustainability" and "resource oriented" which are terms that are altered under the amendment to §59.63, concerning Definitions.
The amendment to §59.64 adds new subsection (d) to delineate guidelines for the selection, development, operation, use, and management of sites that are operated as hybrid state parks and historic sites. A state park and historic site is an area established for the preservation, interpretation and public use of prehistoric and historic resources of statewide or national significance that also offers substantial recreational opportunities for visitors.
New subsection (d)(1) establishes that state parks and historic sites be designated by the Parks and Wildlife Commission, using criteria established for state park and historic site classification.
New subsection (d)(2) addresses development of facilities classified as a state park and historic site. New subsection (d)(2)(A) establishes that development of recreational features within a state park and historic site should only be provided when there is a demonstrated demand for these facilities and/or when such features facilitate additional appreciation of the historic resource. Such features should be located where they are not detrimental to the overall historical significance of the site, and the natural environment. The department's intent is to balance the historical significance of a site with recreational uses that would not obscure or detract from that significance. New subsection (d)(2)(B) provides that the intensity of recreational development at a state park and historic site should be within the carrying capacity of the resource. Similarly, facility design and construction materials should be aesthetically pleasing, and when feasible, consistent with the character of the historical feature. The amendment is intended to provide a broad guideline to ensure that development of a resource is consistent with its overall historical character and capacity for multiple uses.
New subsection (d)(3) addresses the operation of a state park and historic sites. New subsection (d)(3)(A) requires that preservation, interpretation, restoration, and/or reconstruction activities be in accord with documented historical, archeological and architectural information. In a similar vein, new subsection (d)(3)(B) specifies that the historical and aesthetic integrity of a historic site should be preserved, and encroachments from conflicting uses or facilities should be avoided. Original material and character-defining elements should not be obscured or destroyed to facilitate interpretation, or promote visitor convenience except when unavoidable to comply with rules or statutes pertaining to health, safety or architectural barriers. The intent of the new paragraph is to preserve to the greatest extent possible the unique aspects of a site that inform and define its cultural significance.
New subsection (d)(4) addresses use of state park and historic sites. New subsection (d)(4)(A) establishes that state park and historic sites provide for appropriate and sustainable resource-oriented recreation or public use that is not detrimental to the long-term stewardship of the cultural and natural resources. The intent of the new paragraph is to ensure that public use not degrade the essential qualities of the site that make it valuable and significant. New subsection (d)(4)(B) provides that state park and historic sites be used to provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area and as sound biological management, location, physical conditions, safety and other public uses permit. It is the policy of the commission that multiple use of department lands be afforded in order to maximize the value of those lands to the public.
New subsection (d)(5) addresses management of state park and historic sites. New subsection (d)(5)(A) stipulates that state park and historic sites be managed to insure the continued conservation of significant cultural features and natural resources. New subsection (d)(5)(B) stipulates that natural resource management should maintain and restore natural communities and biodiversity consistent with the primary goals of the site. New subsection (d)(5)(B) stipulates that sites be managed in accordance with a site management plan. The intent of the new subsection is to acknowledge that the department has a duty to provide for the continued availability of important cultural and natural sites for the future enjoyment of the public.
The amendments to §§59.131, 59.132 and 59.133 update state park system operational rules. The operational rules govern the required conduct of individuals enjoying state park system sites.
The amendment to §59.131, concerning Definitions, consists of several components. The term "chapter" is replaced with the term "subchapter" to reduce confusion regarding terms that may be used differently in other parts of Chapter 59.
The definition of "all terrain vehicle" in former paragraph (1) has been deleted and a modified definition has been included in the definition of "motor vehicle" in new paragraph (11).
A new definition of "bicycle" has been added as new paragraph (2). This definition is based on the definition in Transportation Code, §541.201.
A new definition for "camping" has been added as new paragraph (5) to describe the activities constituting camping in a state park facility.
A new definition of "equine" has been added as new paragraph (9).
The definition of "motorcycle" in former paragraph (1) has been deleted and a modified definition has been included in the definition of "motor vehicle" in new paragraph (11).
A new definition of "motor vehicle" has been added as new paragraph (11). In addition to a general reference to a "motor powered vehicle," the new definition references the Transportation Code definition for an all-terrain vehicle, a motorcycle, a golf cart, a moped, a neighborhood electric vehicle, a pocket bike or mini-motorbike, and a motor assistance scooter. An electric bicycle is also included in the definition. However, the definition clarifies that "motor vehicle" does not include a wheelchair, a motorized wheelchair or a motorized mobility device. A "motorized mobility device" is defined in new paragraph (12) based on the definition contained in Transportation Code, §542.009.
A definition of "pet" has been added as new paragraph (15) to refer to domesticated companion animals and to clarify that dangerous wild animals, wildlife, livestock, any species that is not normally domesticated, and any species that may not be legally possessed are not considered a "pet" under this subchapter.
The definition of "public place" in former paragraph (13) has been redesignated as new paragraph (17), and clarifies that "public place" does not include the interior spaces of cabins, shelters, and other enclosures reserved or used by visitors. The term "public place" is used in new §59.134(b), which prohibits the consumption or display of an alcoholic beverage in a public place. The intent of the amended definition of "public place" is to more clearly delineate the areas in parks not considered to "public places." The department allows the responsible consumption of alcohol so long as there is no consumption or display of alcohol in a public place and such consumption does not disrupt the enjoyment of other park visitors.
The definition of "public nudity" in former paragraph (14) is being eliminated. The contents of this subsection are incorporated in new §59.134(n) to clarify the prohibited conduct.
The definition of "state park" in former paragraph (15), which has been redesignated as new paragraph (18), has been modified to conform with changes to §59.64, regarding classification of facilities within the state park system. The definition of "state park" in this subchapter now refers to all classifications of facilities in the state parks system, specifically, state parks, state historic sites, state natural areas and state park and historic sites.
The definition of "unattended pet" in former paragraph (16), which had been redesignated as new paragraph (19), clarifies that an "unattended pet" is a pet not under the control of the person responsible for the pet.
The definition of "wildlife" in former paragraph (17), which has been redesignated as new paragraph (20), has been revised based on the definition of "wild" in reference to animals as contained in Parks and Wildlife Code, §1.101.
The amendment to §59.132, concerning General Rules, modifies subsection (b) to clarify that department employees, peace officers and emergency personnel may be exempt from the requirements of Chapter 59, Subchapter F, rather than all of Chapter 59, as necessary to carry out their official duties.
The amendment adds new subsection (c) to clarify that the director may suspend state parks operational rules by written order in response to a natural disaster or similar emergency. In the event of a natural disaster or other emergency, such as the recent hurricanes along the Texas coast, it may be necessary to waive the requirements of this subchapter to protect persons and property, or provide assistance to dislocated persons or other similar assistance.
The amendment to former subsection (d), redesignated as subsection (c), corrects a grammatical error regarding pronoun agreement.
The amendment to §59.133, concerning Closing Hours and Overnight Use, alters subsection (a) to clarify that closing hours and opening hours on state parks must be established by written order of the executive director of the department. The intent of the amendment is to provide a record of established closing and opening hours to avoid confusion and misunderstandings. The amendment also alters subsection (b) to remove unnecessary language and add clarity. The change to subsection (b) is nonsubstantive.
New §59.134, concerning Rules of Conduct, retains many of the same elements contained in former §59.134, which has been repealed; however, new §59.134 makes a number of organizational changes to consolidate rules addressing similar subjects in an effort to make the rules more reader-friendly and intuitive. For example, the new rule consolidates into separate subsections rules regarding minors, animals, cultural and natural resources, motor vehicles and use of state park facilities. Similarly, the subsections have been organized alphabetically to facilitate location of rules by subject matter.
Also, throughout the new section, the phrase "for any person" is added to the phrase "it is an offense." The change is necessary to clearly tie personal involvement to an action defined as an offense, which assists in law enforcement activities and prosecutions for alleged unlawful behavior.
New §59.134(a), regarding abandoned and unattended property, makes it an offense for any person to abandon a vehicle or other personal property, or to leave any type of property unattended in a manner that creates an unsafe condition or to leave property unattended or in an undesignated location after park closing hours. This provision is similar to former §59.134(w), which it replaces.
New §59.134(b), regarding alcoholic beverages, makes it an offense for any person to consume or display an alcoholic beverage in public or to sell alcoholic beverages in a state park. This provision is similar to former subsection (w), which it replaces; however, new subsection (b) prohibits a person from displaying any alcoholic beverage in public, regardless of whether the container is open. The definition of "public place" is addressed in the §59.131(16).
New §59.134(c), regarding animals, includes provisions regarding pets, equines, and wildlife, all of which are defined in the amendment to §59.131. New subsection (c) makes it an offense for any person to bring into or possess within a state park, or to release into a state park any animal, unless otherwise authorized by the subsection. New subsection (c)(1), regarding equines, requires that persons handle equines in a state park in a way that is safe for the person and the equine and to ensure protection of the state park's natural and cultural resources. New subsection (c)(2) requires persons possessing pets in a state park do so in a manner that does not harm the state park or interfere with other persons' enjoyment of the park. The department does not wish to ban pets from state parks, so staff has determined that it is necessary to create a provision to require persons who bring pets to state parks to take responsibility for cleaning up after them. Similarly, there are areas on many state parks where pets are inappropriate, such as dining facilities, swimming pools, and other areas where pets pose health threats or can be a danger. Such areas are clearly marked or identified in park literature, and it is necessary to clearly provide for an offense if pets are brought into such areas. Subsection (c)(2) does make an allowance for a trained assistance animal accompanying a person with a disability. This provision is similar to former subsections (e) and (bb), which it replaces.
New §59.134(d), regarding arms and firearms, makes it an offense for any person to display or discharge a firearm in a state park except in connection with a public hunting event in a state park or by order of the director. This provision is similar to former subsection (f), which it replaces; however, the new subsection eliminates provisions prohibiting possession of a firearm, which is intended to provide more consistency with the concealed weapon permit laws. Also, provisions regarding the discharge of a projectile into a park have been eliminated. Parks and Wildlife Code, §62.0121, as amended by the 79th Texas Legislature (2005) creates an offense for a person engaging in hunting or recreational shooting to discharge a firearm across a property line.
New §59.134(e), regarding closed areas, makes it an offense for any person to interfere with development, construction or management of a state park or to remain in a state park that has been closed. This provision is very similar to former subsection (i), which it replaces.
New §59.134(f), regarding entrance and user fees, makes it an offense for any person to enter a state park without satisfying the fee requirements. This subsection is unchanged from former subsection (a), which it replaces.
New §59.134(g), regarding facilities use, makes it an offense for any person to use state park facilities in an inappropriate manner. Specifically, this subsection prohibits keeping, using, or arranging motor vehicles, trailers, camping and other equipment except as otherwise authorized, exceeding the use limit of a facility, and remaining past the established check-out times. This provision is similar to former subsections (b) and (aa), which it replaces.
New §59.134(h), regarding fires, firewood, smoking and fireworks, makes it an offense for any person to build a fire, smoke, gather firewood, or possess fireworks in a state park, except where expressly authorized; however, portable gas-fueled camp stoves are permitted in designated areas. The new rule clearly states that portable gas-fueled camp stoves are lawful in designated campsites or picnic areas, which is necessary to provide allowances for fire sources that are highly controlled. The new rule also specifically allows park personnel to prohibit open fires when the department has determined that a fire danger exists or when a burn ban has been instituted by local government ordinance, which is necessary to address situations in which the temporary or persistent danger of open fires to a park, staff, or visitors necessitates the prohibition of their construction. The new section also creates a stipulation that the gathering of firewood is by permit only. Staff has attempted on an informal basis to discourage the collection of firewood by park visitors; however, there have been instances where such encouragement has been ignored, and the department therefore believes that the creation of an offense is justified. In many parks, firewood is simply not available and the collection of firewood is injurious to vegetative communities, the wildlife that uses vegetative communities, and the aesthetic value of vegetation to visitors. The new section also stipulates that it is an offense to leave a fire unattended. Unattended fires are a serious potential source of danger to parks, staff, and visitor, and the department believes it is necessary to prohibit them. This provision is similar to former subsection (d), which it replaces.
New §59.134(i), regarding metal detectors, makes it an offense for any person to operate a metal detector in a state park unless authorized by permit. This provision is similar to former subsection (l), which it replaces.
New §59.134(j), regarding minors, addresses supervision requirements for minors and the responsibilities of persons supervising minors. The department uses the provisions of Penal Code, §22.041, to require that all children under 15 years of age be supervised by a parent, legal guardian, or other responsible adult over the age of 17. For minors between the ages of 15 and 17, the department desires to allow entry and overnight privileges if the person is accompanied by a parent or guardian, if the person possesses written consent from a parent or legal guardian, if the person is part of a group that is supervised by a responsible adult, or if the person is legally married. This subsection provides that "overnight hours" is the time between the state parks' closing time and opening time. This subsection also clarifies that supervision of a minor requires at least one adult for every 15 persons required to be supervised. Also, the subsection clarifies that the person supervising a person under age 17 is responsible for the conduct of the person under age 17. The department's intent is to allow minors to use and enjoy state parks, but only under safe and supervised conditions. This provision is similar to former subsections (u) and (m), which it replaces.
New §59.134(k), regarding motor vehicles, addresses prohibited conduct regarding operation of a motor vehicle, parking, speed limits, traffic and trail use. The new subsection requires vehicles and trailers to be confined to designated roads and parking areas and creates an offense for operating a vehicle in a state park if the vehicle is not licensed and inspected as required by Texas motor vehicle laws, except as specifically authorized by permit. The department has determined that vehicles that are not licensed or inspected as required by state law are a safety hazard to staff and visitors and should be prohibited except by permit, such as vehicle use by disabled persons during public hunting activities. The new subsection also requires compliance with applicable speed limits and the operation of a vehicle in a way that ensures safety and does not interfere with other users' enjoyment of a state park. The new subsection is intended to provide more explicit detail in the description of the sorts of places to which the rule applies. This provision is similar to former subsections (p), (n), (s), and (r), which it replaces.
New §59.134(l), regarding natural and cultural resources, makes it an offense for any person to disturb or destroy plant life, geological features or cultural features in a state park and prohibit the transplantation of plants in state parks. There have been incidents in which persons have attempted to plant various types of vegetation in state parks. In order to protect the environment in state parks, the department must prohibit introductions of plant life, which could be injurious by spreading pathogens or disease or pernicious by displacing or adversely affecting native vegetation. The department believes it is necessary to add additional detail to this definition in order to make completely clear that cultural resources include buildings, structures, cultural features, rock art, and artifacts. The new section allows the disturbance of cultural artifacts by written order of the executive director, which would be necessary only in rare instances in which such disturbance is an unavoidable consequence of some other necessary activity. This provision is similar to former subsections (c), (cc), and (dd), which it replaces.
New §59.134(m), regarding peace and quiet, makes it an offense for any person to create disturbances within a state park or to create excessive noise, which is noise that is capable of negatively affecting other park users. Additionally, the new subsection allows the department to establish specific allowable noise levels for specific parks or parts of parks by written order of the director. The new subsection is necessary because the enjoyment of park visitation can be ruined by loud, obnoxious, or unwanted intrusions of noise. To keep noise at a level that does not negatively affect other park users, the department has determined that it is necessary to provide for an offense for creating noise capable of negatively affecting other park users, and, if necessary, to establish noise levels in specific places by order of the executive director. This provision is similar to former subsection (v), which it replaces.
New §59.134(n), regarding public nudity, makes it an offense for any person to appear nude in a state park. This provision is similar to former subsection (h), and former §59.131(14) which it replaces.
New §59.134(o), regarding soliciting, makes it an offense for any person to solicit funds or sell items on a state park unless authorized by the director. This provision is similar to former subsection (k), which it replaces.
New §59.134(p), regarding water recreation, makes it an offense for any person to swim, boat, or participate in other water recreation except in authorized areas at authorized times. This provision also prohibits glass containers in swimming areas. This provision is similar to former subsections (x) and (y), which it replaces.
New §59.134(q), regarding water, wastewater, sewage, and garbage, makes it an offense for any person to use or dispose of water or trash in a state park unless otherwise authorized. This provision is similar to former subsections (ee) and (ff), which it replaces.
The amendments to §§59.41 - 59.47 will function to correct and update terminology; eliminate unnecessary and obsolete references, and improve the accuracy and clarity of rules governing the acquisition and development of historic sites, buildings and structures.
The amendments to §§59.61 - 59.64 will function to eliminate unnecessary and obsolete references, correct inaccuracies, and standard terminology and structure for rules addressing the classification and development of lands within the state park system.
The amendments to §§59.131 - 59.133 and new 59.134 will function by updating, clarifying, and modernizing rules governing public conduct on state parks.
The department received five comments opposing adoption of the proposed amendments and new section. All five commenters offered a specific rationale or explanation for opposing adoption. Those comments, accompanied by the department's response to each, follow.
One commenter opposed adoption and stated that elimination of references to wildlife management areas in the proposed amendment to §59.64 should not occur because hunters and anglers fund wildlife management activities and non-consumptive users do not. The department disagrees with the comment and responds that the language being removed does not refer to "wildlife management areas," but to "game management areas," a term that is obsolete. The department does not operate any facilities referred to as game management areas. Also, a specific reference to wildlife management areas is included in §59.62(6). No changes were made as a result of the comment.
One commenter opposed adoption and stated that there is no need to remove the term "aboriginal" from the rules. The department disagrees with the comment and responds that the term "aboriginal" is no longer used in the professional literature to refer generally to indigenous peoples. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should be split into two agencies, one for parks and one for fish and wildlife. The department disagrees with the comment and responds that the organization of the department is determined by the legislature and cannot be modified by the commission.
One commenter opposed adoption and stated that nudity should be allowed if others are not present. The department disagrees with the comment and responds that in the interest of having rules that respect the sensibilities of the majority of park users an absolute standard that prohibits nudity is necessary. No changes were made as a result of the comment.
One commenter opposed adoption and stated that proposed §59.64(c) and (d) permits staff to evade the intent of the rule, does not take into account mandatory provisions in the Parks and Wildlife Code or the role of the Texas Historical Commission, and does not provide a formal role for closely-related nonprofit partners when decisions create adverse effects on the historic integrity of historic sites. The commenter recommended that the word "should" be replaced with the word "must" throughout the rules in order to provide the clarity that is necessary to ensure that the characteristics and values of historic sites that make them historic are protected and preserved under the department's stewardship without regard to competing objectives, agendas, and policies. The commenter stated that if the historic preservation objectives merely "should" be followed, then the regulations will allow the means for staff to evade the objectives at discretion when competing objectives intervene. The department disagrees with the comment and responds that the use of the word "should" is intended to convey that the guidelines for classification of sites (State Park, State Historic Site, State Natural Area or State Park and Historic Site) are intended as general guidelines since not all sites will neatly fit into a specific category. The classification of a site is based on the classification that is most suited to the qualities of a property. For example, a historic property should have the qualities noted. However, because these areas were often acquired by the department long after the notable events occurred, these qualities may not all be intact. Section 59.64 addresses classification of properties, not operational actions. No changes were made as a result of the comment.
One commenter stated that proposed §59.64 regarding classification of sites allows affected nonprofits the option of not complying with certain portions of the regulations that pertain to transparency and accountability obligations. The department disagrees and responds that the amendments are not intended to address the transparency and accountability obligations of TPWD's nonprofit partners. The department's nonprofit partner rules were not the subject of this rulemaking. Parks and Wildlife Commission, not nonprofit groups, determine the classification of a site. Also, as noted above, the intent of §59.64 is to address site classification, not operation. No changes were made as a result of the comment.
One commenter opposed adoption and stated that "the proposed regulations cite to Parks and Wildlife Code Section 13.005, but do not implement the mandatory provisions in subsections (b) and (c) thereof with respect to the use, development, operation, and management of historic sites by TPWD. This statute is not discretionary or qualified by what "should" occur, but instead provides directives on the development, operation, use, and management activities of historic sites by stating in part: "(b) The department shall restore and maintain each historical site acquired under this section for the benefit of the general public. . . . (c) The department shall formulate plans for the preservation and development of historical sites. Before formulating a plan for a specific site, the department shall conduct an archeological survey of the site. In formulating plans, the department shall: (1) consider the results from the archeological survey for the site if the plan is for a specific site; (2) consider the resources necessary to manage a site; and (3) meet with and consider comments made by the Texas Historical Commission." The commenter stated that to avoid any suggestion that the mandatory nature of this statute is discretionary, the historic preservation regulations must include language that incorporates these directives as mandatory staff policy." The department disagrees with the comment and responds that because the statutory provisions to which the commenter refers are just that--statutory provisions--the department is required to obey them and there is no need to repeat those provisions in rule. No changes were made as a result of the comment.
One commenter opposed adoption and stated that although the proposed rules acknowledge that some historic sites are now under the jurisdiction of the Texas Historic Commission (THC), the proposed regulations ignore the critical role that THC is required to play in the selection, use, operation, development, and management of historic sites under TPWD's jurisdiction as mandated by Parks and Wildlife Code Sections 13.005(a) (c) and (d) (formulating preservation plans and the selection of historic sites) and 13.0051 (required coordination with THC regarding preservation plans). The commenter also stated that the proposed amendments ignore the role that THC plays with respect to the Texas Antiquities Code and Section 106. The department disagrees with the comment and responds that the provisions of the Texas Antiquities Code (Natural Resources Code, Chapter 191) and Section 106 (16 U.S.C. §470f) are set out in statute and it is therefore redundant and unnecessary to repeat those requirements in rule. No changes were made as a result of the comment.
SUBCHAPTER C. ACQUISITION AND DEVELOPMENT OF HISTORIC SITES, BUILDINGS AND STRUCTURES
The amendments are adopted under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; §13.0145, which authorizes the commission to enforce speed limits.
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 July 21, 2009.
TRD-200902987
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; §13.0145, which authorizes the commission to enforce speed limits.
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 July 21, 2009.
TRD-200902988
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
The repeal is adopted under the authority of 31 TAC §505.30, which requires the department to make consistency determinations regarding the Coastal Management Plan.
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 July 21, 2009.
TRD-200902989
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
The amendments and new section are adopted under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; §13.0145, which authorizes the commission to enforce speed limits.
§59.134.Rules of Conduct in Parks.
(a) Abandoned and unattended property. It is an offense for any person to:
(1) abandon a vehicle or other personal property;
(2) leave a vehicle, boat, barge, or other property unattended in a unit of the state park system in such a manner as to create a hazardous or unsafe condition; or
(3) leave property unattended in a state park without having received prior permission from the director or to leave a vehicle unattended after the closing hour, unless such person is legally in the park after closing, and unless he has parked the vehicle in a place designated by the director or he has prior permission from the director.
(b) Alcoholic beverages. It is an offense for any person to:
(1) consume or display an alcoholic beverage in a public place; or
(2) sell alcoholic beverages within a state park.
(c) Animals. Except as provided in this subsection, it is an offense for any person to bring into a state park, possess while in a state park, or release into a state park any species of animal. A pet or equine may be brought into and possessed within a state park as provided in this subsection.
(1) Equine. It is an offense for any person to:
(A) ride, drive, lead, or keep equines, except in designated areas;
(B) ride equines in a manner that is dangerous to a person or animal;
(C) allow equines to stand unattended or insecurely tied; or
(D) hitch equines to a tree, shrub, or structure in any manner that may cause damage.
(2) Pets. It is an offense for any person to:
(A) bring into, possess, or permit to roam within a state park a pet, unless the pet is secured by a leash not exceeding six feet in length, confined in a vehicle, or confined in a suitable cage;
(B) bring into or possess within a state park an unattended pet;
(C) fail to immediately collect and properly dispose of fecal material deposited by a pet for which a person is responsible. For purposes of this paragraph, "properly dispose" means to deposit fecal material in an appropriate solid waste collection container;
(D) bring a pet into an area where pets are prohibited;
(E) permit a pet (except a trained assistance animal accompanying a person with a disability) to enter into or remain in any building or enclosure designated for public use including, but not limited to, a restaurant, snack bar, cabin, lodge room, restroom, park store, shelter, refectory building, amphitheater, administration building, or railroad coach;
(F) permit a pet in the water of a designated swimming area or to permit a pet animal (except a trained assistance animal accompanying a person with a disability) within the land or beach area adjacent to the water of a designated swimming area; or
(G) possess a noisy, vicious, or dangerous pet, or a pet which creates a disturbance to or hazard within a state park;
(3) Wildlife. It is an offense for any person to:
(A) harm, harass, disturb, trap, confine, catch, possess, or remove any wildlife, or portions of wildlife from a unit of the state park system, except by a permit issued by the director or as provided by the Parks and Wildlife Code, Chapter 62, Subchapter D;
(B) release any fish into the waters of any state park, except as authorized by the Parks and Wildlife Code; or
(C) feed or offer food to any wildlife or exotic wildlife, or to leave food unsecured in a manner that makes the food available to wildlife or exotic wildlife, unless specifically authorized by the department. The feeding of birds may be permitted on a park-by-park basis as prescribed by the department.
(d) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm in a state park, unless:
(1) the person is participating in a public hunting activity within the state park that has been authorized by written order of the director so long as the person is in compliance with the applicable public hunting rules and regulations; or
(2) the person has been authorized by written order of the director.
(e) Closed Area. It is an offense for any person to:
(1) prevent or interfere with development, construction, or management of a state park; or
(2) enter or remain in an area of a state park that has been closed by the director for any reason, including security, safety, preservation, or restoration.
(f) Entrance and User Fees: It is an offense for any person to enter, use, or occupy a facility in any portion of a state park for which a fee has been established, unless the person has first paid the fee or satisfied the requirements of the fee, has received an entrance/use permit issued by the department, and has attached the permit to their vehicle as and when required by the permit. If the office is closed, payment must be made according to posted instructions or signage.
(g) Facilities Use. It is an offense for any person to:
(1) use an area or facility for any purpose contrary to its designated purpose; or
(2) keep, use, or arrange a motor vehicle, trailer, camping, or other equipment except as specified by the director. All vehicles and trailers are restricted to designated roads and parking areas, unless otherwise specified by permit;
(3) enter into, or remain in, an area or facility for which a public use limit has been established when such action will have the effect of exceeding the established limitations;
(4) exceed the public use limit establishing a maximum number of persons and, if appropriate, the number and type of motor vehicles, trailers, and equipment permitted to enter into, or remain in, a designated area or facility at any time;
(5) continue to occupy a facility past check-out time when a check-out time has been established by the director; or
(6) engage in camping except as authorized by permit in areas designated or marked for that purpose.
(h) Fires, Firewood, Smoking and Fireworks. Portable gas-fueled camp stoves may be used in designated campsites or picnic areas; however, it is an offense for any person to:
(1) light, build, or maintain a fire within a state park except in a facility or device provided, maintained, or designated for such purposes or to smoke or build fires when an extreme fire hazard has been posted by the department or a burn ban has been instituted by local government ordinance;
(2) gather firewood except when authorized by permit;
(3) leave a fire unattended; or
(4) possess within a state park any fireworks, explosives, or similar devices capable of explosion, or to discharge, set off, or cause to be discharged in or into a state park any such device or substance, except with written authorization from the director.
(i) Metal detector. It is an offense for any person to operate or use a metal detector, except as authorized by permit.
(j) Minors and children.
(1) A person younger than 15 years who enters a state park, must be supervised by a parent, legal guardian, or other responsible adult over the age of 17 years at all times.
(2) A person 15 years or older, but younger than 17 years may not enter or remain in a state park during overnight hours unless:
(A) the person is supervised by a parent, legal guardian or other responsible person over the age of 17 years;
(B) the person furnishes written consent of a parent or legal guardian to park personnel at the state park headquarters. For purposes of this subsection, written consent consists of a statement from a parent or legal guardian authorizing the person to enter the park and stating the full name, residence address, and telephone number of the parent or legal guardian; or
(C) the person is legally married.
(3) For purposes of this subsection, a person who is required by this subsection to be supervised and is part of a group will be considered supervised by a parent, legal guardian or other responsible person if there is at least one supervising adult over the age of 17 years for every 15 persons for whom supervision is required by this subsection.
(4) For purposes of this subsection, "overnight hours" is the time between a state park's closing time and opening time.
(5) It is an offense for a parent, legal guardian or other responsible person charged with supervision of a person under 17 years of age to permit the person under 17 years of age to violate a regulation contained in this subchapter.
(k) Motor Vehicle Use, Possession and Operation.
(1) Operation. It is an offense for any person to:
(A) operate a motor vehicle in a state park except on roads, driveways, parking areas, and areas designated as open for motor vehicle use;
(B) operate a motor vehicle in a state park if the motor vehicle is not licensed and inspected as required by the Texas Transportation Code or other law regarding the operation of motor vehicles, except as specifically authorized by permit; or
(C) operate a motor vehicle in a state park in a manner not authorized by the Texas Transportation Code or other laws regarding the operation of motor vehicles.
(2) Parking. It is an offense for any person to:
(A) park a motor vehicle or trailer in a state park except in areas designed, constructed, or designated for that purpose; or
(B) park, store, or leave a motor vehicle or trailer in violation of this section when signs have been posted in the affected areas.
(3) Speed Limit. It is an offense for any person to drive a motor vehicle within a state park at a speed:
(A) greater than is reasonable or prudent, having due regard for the traffic and the road conditions then existing;
(B) that endangers the safety of persons or property; or
(C) that exceeds the posted speed limit in any portion of the state park system.
(4) Traffic. It is an offense for any person to:
(A) operate a motor vehicle in a state park between the park closing hour and 6 a.m. opening hour, except for emergency or necessary purposes; or
(B) operate a motor vehicle in an indiscriminate or unnecessary manner (cruising).
(5) Trail use. It is an offense for any person to operate or use a motor vehicle or a bicycle on an unpaved road, trail, or path not designated and posted for use by such a motor vehicle or bicycle or use the trail in a manner that is dangerous to a person or animal.
(l) Natural and Cultural Resources.
(1) Plant life. It is an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director.
(2) Geological features. It is an offense for any person to take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director.
(3) Cultural resources. It is an offense for any person to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director.
(m) Peace and quiet. It is an offense for any person to:
(1) disturb other persons in sleeping quarters or in campgrounds between the hours of 10 p.m. and 6 a.m.;
(2) cause, create, or contribute to any noise which is broadcast, or caused to be broadcast, into sleeping quarters or campgrounds, or which emits sound beyond the person's immediate campsite, between the hours of 10 p.m. and 6 a.m., whether by shouting or singing, by using a radio, phonograph, television, or musical instrument, or by operating mechanical or electronic equipment;
(3) use electronic equipment, including electrical speakers, at a volume which emits sound beyond the immediate individual camp or picnic site at any time without specific permission of the director; or
(4) create a disturbance capable of negatively affecting other park users by causing excessive noise by any means. Specific allowable noise levels for specific parks or parts of parks may be established by written order of the director.
(n) Public Nudity. It is an offense for any person to disrobe or appear nude in public. Females are considered to be disrobed when their breasts below the top of the areola are exposed except when nursing a baby.
(o) Soliciting. It is an offense for any person to solicit funds or donation of any item, or offer to sell any goods, wares, merchandise, liquid, or edibles, or render any service for hire, or distribute written material, in a state park, except by authority of a concession agreement approved by the director.
(p) Water Recreation. It is an offense for any person to:
(1) engage in water skiing, surf boarding while being towed, towing a person or a similar device, or operate a motorized ski device on lakes of less than 650 surface acres located in a state park;
(2) enter water or swim in an area closed for that activity;
(3) swim at night unless otherwise posted;
(4) introduce, carry into, or possess, use, break, dispose of, throw, or abandon any glass container in the water of a swimming area, swimming pool, or in the beach area adjacent to the water of a swimming area;
(5) moor, dock, or berth a boat or any other object between the hours of 10 p.m. and 6 a.m., except in mooring areas designated by the director; or
(6) moor, dock, or berth a commercial vessel at any part of a state park except by permit from the director.
(q) Water, Wastewater, Sewage, and Garbage. It is an offense for any person to:
(1) deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water;
(2) use any water fountain, drinking fountain, pool, sprinkler, reservoir, lake or any other water body contained in the park for bathing, laundering, and washing dishes, pets, or vehicles (including trailers);
(3) deposit fish parts at any location except park fish cleaning facilities;
(4) discard, deposit, or dump garbage in a state park, except for:
(A) garbage generated inside the park during the course of park visitation; or
(B) an amount of garbage consistent with what ordinarily would accumulate in a vehicle in the course of a day's travel;
(5) dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel; or
(6) use water provided by the state park for purposes other than drinking, washing or culinary uses.
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 July 21, 2009.
TRD-200902991
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
The repeal is adopted under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; and §13.0145, which authorizes the commission to enforce speed limits.
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 July 21, 2009.
TRD-200902990
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: September 1, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
SUBCHAPTER A. STATEWIDE HUNTING AND FISHING PROCLAMATION
DIVISION 1.GENERAL PROVISIONS
The Texas Parks and Wildlife Department Commission adopts an amendment to §65.10, concerning Possession of Wildlife Resources, without changes to the proposed text as published in the April 24, 2009, issue of the Texas Register (34 TexReg 2592).
The amendment modifies the current tagging and documentation requirements for deer and antelope. Under Parks and Wildlife Code, §42.018, a deer or antelope carcass must remain tagged until it reaches a final destination and is finally processed; however, this provision may be modified or eliminated by commission rule. Under Parks and Wildlife Code, §42.0177, the commission may modify or eliminate the tagging requirements established in Parks and Wildlife Code, §42.018.
Parks and Wildlife Code, §42.001 defines "carcass" as "the body of a dead deer or antelope . . . that has not been processed more than by quartering;" "final destination" as a person's permanent residence or a cold storage or processing facility; "final processing" as the processing of a carcass more than by quartering; and "quartering" as "the processing of an animal into not more than two hindquarters each having the leg bone attached to the hock and two forequarters each having the leg portion to the knee attached to the shoulder blade. The term also includes removal of two back straps and trimmings from the neck and rib cage."
The department has become aware that the practice of freezing an entire bone-in quarter for later consumption is technically problematic, because under the current law, tagging requirements remain in effect until the carcass has been processed "beyond quartering," which means, among other things, the removal of bones. Therefore, a quarter with the bone still in it must remain tagged. Also problematic is the requirement to maintain tagging or documentation after a deer has reached a cold storage or processing facility where the pertinent information is recorded in a cold-storage record book. In order to remedy these anomalies the amendment modifies the statutory tagging requirements to provide that the tagging and documentation requirements for a carcass cease when the carcass is at a final destination other than a cold storage or processing facility that is required to maintain a record book under the provisions of Parks and Wildlife Code, §62.029 and the forequarters, hindquarters, and back straps have been completely severed from the carcass. For a cold storage or processing facility required to maintain a record book under the provisions of Parks and Wildlife Code, §62.029, tagging requirements cease when the forequarters, hindquarters, and back straps have been completely severed from the carcass and the information required by Parks and Wildlife Code, §62.029 has been entered into the required record book.
The rule as adopted will function by establishing an unambiguous standard for determining when tagging and documentation requirements for deer and antelope cease.
The department received six comments opposing adoption of the proposed amendment. None of the commenter elaborated a reason or rationale for oppositions. The department disagrees with the comments. No changes were made as a result of the comments.
The department received 73 comments supporting adoption of the proposed amendment.
No groups or associations commented in favor of or opposed to adoption of the proposed amendment.
The amendment is adopted under the authority of Parks and Wildlife Code, §42.0188, which authorizes the commission to modify or eliminate the tagging requirements of Parks and Wildlife Code, §42.018.
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 July 21, 2009.
TRD-200902986
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: April 24, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts amendments to §§65.190, 65.201, and 65.202, concerning Public Lands Proclamation, and §65.256, concerning the Bobcat Proclamation. Section 65.190, concerning Application, is adopted with changes to the proposed text as published in the February 20, 2009, issue of the Texas Register (34 TexReg 1219). Sections 65.201, 65.202, and §65.256 are adopted without changes and will not be republished.
The change to §65.190 corrects an inaccurate reference to the unit number indicated for the Justin Hearst WMA, which should be Unit 721, not Unit 731.
The amendments are necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review.
The amendment to §65.190, concerning Application, adds the McGillvray and Leona McKie Muse Wildlife Management Area (WMA) to the list of named WMAs to which the provisions of the subchapter apply. The Muse WMA was donated to the department in 2008 and is named in honor of the donors. The amendment also would rename Peach Point WMA as the Justin Hurst WMA. Justin Hurst began his career with the department as a biologist, became a game warden, and was killed in the line of duty in 2008. Peach Point WMA has been renamed in his honor. See, Tex. H.B. 12, §53, 80th Tex. Leg., R.S. (2007).
The amendment to §65.201, concerning Motor Vehicles, alters subsection (d) to stipulate that persons using motor vehicles or off-road vehicles to assist a disabled hunter must remain within normal speaking distance of the person being assisted unless such use is otherwise authorized or the person is using the vehicle or off-road vehicle to return to a designated road or trail. The rules allowing the use of motor vehicles and off-road vehicles to assist disabled hunters are not intended to provide able-bodied persons a privilege that is not available to other able-bodied hunters. The amendment is necessary to ensure that motor vehicle and off-road vehicles use for assisting disabled hunters be confined to assisting the disabled hunter.
The amendment to §65.202, concerning Minors Hunting on Public Lands, replaces the word "minor" with the word "youth" and retitles the section to refer to "public hunting lands." The word "minor" is normally used to refer to a person below the age of 18, which is the age of legal majority. Tex. Fam. Code §101.003. Since the rules refer to individuals under the age of 12 years, the term "youth" is more accurate. The amendment requires youth under the age of 12 to be accompanied by a permitted adult when hunting. The amendment relaxes the supervision requirements for a youth age 12 or older who has completed hunter education, so long as a supervising adult is on the public hunting area. The amendment is intended to allow some autonomy for responsible youths, while also ensuring appropriate supervision.
The amendment to §65.256, concerning Penalties, corrects an inaccurate reference to statutory provisions for penalties. The current rule refers to Parks and Wildlife Code, Chapter 71. Chapter 71 governs furbearing animals; however bobcats are classified by statute as nongame under Chapter 67.
The department received no comments concerning adoption of the proposed amendments.
SUBCHAPTER H. PUBLIC LANDS PROCLAMATION
31 TAC §§65.190, 65.201, 65.202
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 81, which authorizes the department to develop, maintain, and operate, wildlife management areas and public hunting lands and to prescribe the means, methods, and conditions for the taking of game or fish during an open season in wildlife management areas or public hunting lands.
§65.190.Application.
(a) This subchapter applies to all activities subject to department regulation on lands designated by the department as public hunting lands, regardless of the presence or absence of boundary markers. Public hunting lands are acquired by lease or license, management agreements, trade, gift, and purchase. Records of such acquisition are on file at the Department's central repository.
(b) On U.S. Forest Service Lands designated as public hunting lands (Alabama Creek, Bannister, Caddo, Lake McClellan Recreation Area, Moore Plantation, and Sam Houston National Forest WMAs) or any portion of Units 902 and 903, persons other than hunters are exempt from the provisions of this subchapter, except for the provisions of §65.199(15) of this title (relating to General Rules of Conduct).
(c) On U.S. Army Corps of Engineer Lands designated as public hunting lands (Cooper, Dam B, Granger, Pat Mayse, Ray Roberts, Somerville, and White Oak Creek WMAs), persons other than hunters and equestrian users are exempt from requirements for an access permit.
(d) On state park lands designated as public hunting lands, access for fishing and recreational use is governed by state park regulations.
(e) Public hunting lands include, but are not limited to, the following:
(1) Alabama Creek WMA (Unit 904);
(2) Alazan Bayou WMA (Unit 747);
(3) Atkinson Island WMA;
(4) Bannister WMA (Unit 903);
(5) Big Lake Bottom WMA (Unit 733);
(6) Black Gap WMA (Unit 701);
(7) Caddo Lake WMA (Unit 730);
(8) Caddo National Grasslands WMA (Unit 901);
(9) Candy Abshier WMA;
(10) Cedar Creek Islands WMA (includes Big Island, Bird Island, and Telfair Island Units);
(11) Chaparral WMA (Unit 700);
(12) Cooper WMA (Unit 731);
(13) D.R. Wintermann WMA;
(14) Dam B WMA--includes Angelina-Neches Scientific Area (Unit 707);
(15) Designated Units of the Las Palomas WMA;
(16) Designated Units of Public Hunting Lands Under Short-Term Lease;
(17) Designated Units of the Playa Lakes WMA;
(18) Designated Units of the State Park System;
(19) Elephant Mountain WMA (Unit 725);
(20) Gene Howe WMA (Unit 755)--includes Pat Murphy Unit (Unit 706);
(21) Granger WMA (Unit 709);
(22) Guadalupe Delta WMA (Unit 729)--includes Mission Lake Unit (720), Guadalupe River Unit (723), Hynes Bay Unit (724), and San Antonio River Unit (760);
(23) Gus Engeling WMA (Unit 754);
(24) James Daughtrey WMA (Unit 713);
(25) J.D. Murphree WMA (Unit 783);
(26) Justin Hurst WMA (Unit 721);
(27) Keechi Creek WMA (Unit 726);
(28) Kerr WMA (Unit 756);
(29) Lake McClellan Recreation Area (Unit 906);
(30) Lower Neches WMA (Unit 728)--includes Old River Unit and Nelda Stark Unit;
(31) Mad Island WMA (Unit 729);
(32) Mason Mountain WMA (Unit 749);
(33) Matador WMA (Unit 702);
(34) Matagorda Island WMA (Unit 722);
(35) McGillvray and Leona McKie Muse WMA (Unit 750);
(36) M.O. Neasloney WMA;
(37) Moore Plantation WMA (Unit 902);
(38) Nannie Stringfellow WMA (Unit 716);
(39) North Toledo Bend WMA (Unit 615);
(40) Old Sabine Bottom WMA (Unit 732);
(41) Old Tunnel WMA;
(42) Pat Mayse WMA (Unit 705);
(43) Ray Roberts WMA (Unit 501);
(44) Redhead Pond WMA;
(45) Richland Creek WMA (Unit 703);
(46) Sam Houston National Forest WMA (Unit 905);
(47) Sierra Diablo WMA (Unit 767);
(48) Somerville WMA (Unit 711);
(49) Tawakoni WMA (Unit 708);
(50) Walter Buck WMA (Unit 757);
(51) Welder Flats WMA;
(52) White Oak Creek WMA (Unit 727); and
(53) Other numbered units of public hunting lands.
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 July 21, 2009.
TRD-200902992
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
The amendment is adopted under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
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 July 21, 2009.
TRD-200902993
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts an amendment to §65.610 and §65.612, concerning Deer Breeder Permits, with changes to the proposed text as published in the February 20, 2009, issue of the Texas Register (34 TexReg 1221).
The changes add the phrase "issued by the department" to §65.610(b)(7) and §65.612(b)(2) and (3). The change is necessary to ensure that there is no confusion as to what is meant by the phrase "valid permit."
The amendments allow for the sale or donation of deer by a deer breeder to the holder of a valid educational display permit or zoological permit issued by the department, either by transfer or as a consequence of the termination, suspension, or revocation of a deer breeder permit. Currently, the holder of a deer breeder permit may transfer a deer held under the permit to certain persons and for certain purposes set out §65.610. However, the current list does not include the holder of a zoological or educational display permit issued by the department. Similarly, the current rule allows the disposition of breeder deer upon the loss of a breeder permit by sale or donation to certain persons set out §65.612. Although the transfer to the holder of a zoological permit is permitted, transfer to the holder of an educational display permit it not. Allowing the transfer of a deer held under a breeder permit to the holder of an educational display or zoological permit would be beneficial to those permit holders. Therefore, the department sees no reason not to allow such a practice. The amendments also stipulate that such sales and donations are final and irreversible, which is necessary to ensure the integrity of the department's ability to maintain accurate records of deer held by deer breeders.
The department received one comment opposing adoption of the proposed rule. The commenter stated that deer breeding should not be permitted because it is privatization of wildlife and there should be no additional way for breeders to dispose of stock. The department disagrees and responds that under Parks and Wildlife Code, Chapter 43, Subchapter L, the department is required to "issue a permit to a qualified person to possess live breeder deer in captivity." This is a statutory provision and cannot be modified or eliminated by the department. The department also responds that the key element of concern as far as disposition is concerned is that the department be able to accurately track the movement of deer into and out of deer breeder facilities. Since the amendment as adopted authorizes the movement of deer between parties that have been permitted by the department and are subject to reporting and recordkeeping requirements, the department is satisfied that it will be able to monitor deer movements from deer breeder facilities. No changes were made as a result of the comment.
The department received 17 comments supporting adoption of the proposed rule.
The amendments are adopted under the authority of Parks and Wildlife Code, §43.357, which authorizes the commission to make regulations governing procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer.
§65.610.Transfer of Deer.
(a) General requirement. No person may remove breeder deer from or accept breeder deer into a permitted facility unless a valid transfer permit on a form provided by the department has been activated as provided in this section.
(b) Transfer by deer breeder. The holder of a valid deer breeder's permit may transfer legally possessed breeder deer:
(1) to or from another deer breeder as a result of sale, purchase or other arrangement;
(2) to or from another deer breeder on a temporary basis for breeding purposes;
(3) to or from another person on a temporary basis for nursing purposes;
(4) to an individual who purchases or otherwise lawfully obtains the deer for purposes of release but does not possess a deer breeder's permit;
(5) to an individual for the purpose of obtaining medical attention, provided the breeder deer do not leave this state;
(6) to a facility authorized under Subchapter D of this chapter (relating to Deer Management Permit) to receive buck deer on a temporary basis; or
(7) to the holder of a valid educational display or zoological permit issued by the department. A transfer under this paragraph is final; breeder deer donated to the holder of an educational display or zoological permit may not be returned to any breeder facility.
(c) Transfer by person other than deer breeder. An individual who does not possess a deer breeder's permit may possess deer under a transfer permit if the individual is transporting breeder deer within the state and the breeder deer were legally purchased or obtained from a deer breeder.
(d) Release.
(1) The department may authorize the release of breeder deer for stocking purposes if the department determines that the release of breeder deer will not detrimentally affect existing populations or systems.
(2) Breeder deer lawfully purchased, possessed, or obtained for stocking purposes may be held in captivity for no more than 30 days:
(A) to acclimate the breeder deer to habitat conditions at the release site;
(B) when specifically authorized by the department;
(C) if they are not hunted prior to release; and
(D) if the temporary holding facility is physically separate from any deer breeding facility and the breeder deer being temporarily held are not commingled with breeder deer being held in a deer breeding facility. Breeder deer removed from a deer breeding facility to a temporary holding facility shall not be returned to any deer breeding facility. Except as provided in Parks and Wildlife Code, §43.363, no breeder deer shall be released from a temporary holding facility during an open season or the 10-day period immediately preceding an open season.
(e) Transfer permit.
(1) A transfer permit is valid for 48 consecutive hours from the time of activation.
(2) A transfer permit authorizes the transfer of breeder deer to one and only one receiver.
(3) A transfer permit is activated only by:
(A) notifying the Law Enforcement Communications Center in Austin prior to the transport of any breeder deer; or
(B) utilizing the department's web-based activation mechanism prior to the transport of any breeder deer.
(4) No person may possess a live breeder deer at any place other than within a permitted facility unless that person also possesses on their person a department-issued transfer permit legibly indicating, at a minimum:
(A) the species, sex, and unique number of each breeder deer in possession;
(B) the source and destination facilities, or, if applicable, the specific release location for each breeder deer in possession;
(C) the date and time that the permit was activated.
(5) Not later than 48 hours following the completion of all activities under a transfer permit, the permit shall be:
(A) legibly completed and faxed to the Wildlife Division in Austin by the person designated on the permit as the party responsible for notification of the department; or
(B) completed and submitted using the department's web-based permit-completion mechanism.
(6) A deer breeder may transport breeder deer without a transfer permit from a permitted facility to a licensed veterinarian, provided:
(A) the transport occurs by the most feasible direct route;
(B) the breeder deer are not removed from the means of transportation at any point between the permitted facility and the veterinary facility; and
(C) the breeder deer do not leave this state.
(f) Marking of vehicles and trailers. No person may possess, transport, or cause the transportation of breeder deer in a trailer or vehicle under the provisions of this subchapter unless the trailer or vehicle exhibits an applicable inscription, as specified in this subsection, on the rear surface of the trailer or vehicle. The inscription shall read from left to right and shall be plainly visible at all times while possessing or transporting breeder deer upon a public roadway. The inscription shall be attached to or painted on the trailer or vehicle in block, capital letters, each of which shall be of no less than six inches in height and three inches in width, in a color that contrasts with the color of the trailer or vehicle. If the person is not a deer breeder, the inscription shall be "TXD". If the person is a deer breeder, the inscription shall be the deer breeder serial number issued to the person.
§65.612.Disposition of Deer.
(a) Upon termination, suspension, or revocation of a deer breeder's permit, the permittee shall dispose of all breeder deer covered by the permit.
(b) Breeder deer may be disposed of by:
(1) sale or donation to another deer breeder;
(2) sale or donation to a holder of a zoological permit issued by the department;
(3) sale or donation to the holder of an educational display permit issued by the department; or
(4) release to the wild as specifically authorized by the department.
(c) Breeder deer still in possession 30 days following termination, revocation, or suspension of a permit shall be disposed of at the discretion of the department.
(d) Disposition of all breeder deer shall be at the expense of the permittee.
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 July 21, 2009.
TRD-200902994
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 10, 2009
Proposal publication date: February 20, 2009
For further information, please call: (512) 389-4775