31 TAC §§25.4, 25.7, 25.8, 25.12, 25.15, 25.16
The Texas General Land Office (Land Office) proposes amendments
to §25.4, relating to Notification of Available Funds, §25.7, relating
to Requirements for Eligibility--City, §25.8, relating to Requirements
for Eligibility--County, §25.12, relating to Eligible Costs, §25.15,
relating to Payment Procedures, and §25.16, relating to Billing.
Chapter 61, Subchapter C, Natural Resources Code, allocates responsibility
for cleaning the beaches of this state, provides for reimbursement of local
government beach cleaning expenditures, and protects local control over the
maintenance and administration of Texas' public beaches. Funds appropriated
for the state's share are administered by the Texas General Land Office for
the purpose of reimbursing eligible coastal cities and counties for beach
cleaning and maintenance expenses, using a formula based on past expenditures
for cleaning and maintaining gulf beaches and on the total linear footage
of gulf beach cleaned and maintained.
The amendment to §25.4, relating to Notification of Available Funds,
changes the name of the section to "Allocation of Available Funds" to more
accurately reflect the subject matter and delete the requirement of notification
to applicants for beach maintenance reimbursement funds of the amount of funds
available. The notification was originally provided to cities and counties
participating in the program in order to provide these jurisdictions with
information to plan their budgets. As the program has matured, participants
can estimate their expected reimbursement based on previous years' reimbursement
making formal notification unnecessary.
The amendments to §25.7, relating to Requirements for Eligibility--City,
and §25.8, relating to Requirements for Eligibility--County, clarify
the minimum sanitation facility requirements for at least one beach park that
a city or county must establish, maintain, and administer in order to be eligible
for approval of beach maintenance reimbursement funding as provided in §61.069(5),
Natural Resources Code. The amendment requires a participating city or county
to provide sanitation facilities that include toilets and a potable water
supply. The toilets may either be permanent facilities or portable facilities,
provided that they are adequate to accommodate the average heavy use period
of the park.
The amendment to §25.12, relating to Eligible Costs, clarifies the
provisions relating to eligibility of administrative costs for reimbursement.
Participants are not allowed to claim reimbursement of administrative costs
by simply adding 10% to other costs. In order to be eligible for reimbursement,
the administrative expenses incurred must be reasonable and directly related
to beach cleaning or beach maintenance.
The amendment to §25.15, relating to Payment Procedures, change the
requirements for reimbursement on a quarterly basis to semiannually for participants
who qualify for no greater than two-thirds reimbursement under the Natural
Resources Code, §§61.068-61.070. Participants who qualify for 40%
reimbursement under the Natural Resources Code, §61.080 and §61.081,
will be reimbursed semiannually rather than annually. These changes will allow
the agency to administer the program more efficiently.
The amendment to §25.16, relating to Billing, changes the name of
the section to "Reimbursement Requests" to more accurately reflect the subject
matter and add a provision requiring that reimbursement requests be submitted
to the agency no later than 60 days after the end of each quarter of the state
fiscal year in which the expenses are incurred. The Land Office has the discretion
to deny a reimbursement request that is not submitted on a timely basis and
may reallocate the available funds to other participants on a pro rata basis.
Bill Peacock, Deputy Commissioner for the Coastal Resources Program Area,
has determined that for the first five-year period that the proposed rulemaking
is in effect there will be no fiscal implications for state government. There
will be fiscal implications for the local governments as a result of enforcing
or administering the sections as amended if a participating local government
fails to make a timely reimbursement request or fails to comply with the requirements
for sanitation facilities for at least one beach park. It is estimated that
participating local governments may experience a loss of revenue in the form
of all or part of its beach maintenance reimbursements for each year of the
first five-year period that the proposed amended rules are in effect if the
local government fails to make a timely reimbursement request. Beach maintenance
reimbursements in fiscal year 2003 ranged from approximately $7,000 to $290,000.
A local government that is not already in compliance with the beach park sanitation
facility requirements may experience increased costs in the first year that
the rules, as amended, are in effect estimated at $59,000 to $75,000 representing
the cost to install permanent toilets and a potable water supply, or approximately
$10,000 per year representing the cost to provide portable toilets. However,
the cost to the local government of providing such facilities would be mitigated
because it would also be a reimbursable expense under the beach maintenance
program. In addition, sources of grant funds for such expenses are listed
on the web site of the Land Office at www.glo.state.tx.us.
Mr. Peacock also has determined that for each year of the first five-year
period the proposed rulemaking is in effect, the public benefit will be that
the Land Office will be able to administer the beach maintenance reimbursement
program more efficiently as a result of the deletion of obsolete requirements
for notification of available funds and the clarification of provisions for
reporting periods, payment frequency, and eligible administrative expenses.
Finally, the clarification of sanitation requirements for beach parks will
benefit the health and safety of the members of the public who utilize the
beach parks. Mr. Peacock has determined that there will be no additional cost
of compliance for small or large businesses or individuals.
The Land Office has determined that the proposed rulemaking will have no
adverse local employment impact that requires an impact statement pursuant
to the Government Code, §2001.022.
The Land Office has evaluated the proposed rulemaking action in light of
the regulatory analysis requirements of Texas Government Code, §2001.0225,
and determined that the action is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
the statute. "Major environmental rule" means a rule, the specific intent
of which is to protect the environment or reduce risks to human health from
environmental exposure and that may adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment,
or the public health and safety of the state or a sector of the state. The
proposed amendments to Chapter 25 are not anticipated to adversely affect
in a material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state because the proposed rulemaking implements legislative requirements
in Natural Resources Code, §61.075, providing that the General Land Office
shall distribute the state share of funding for beach maintenance expenses
to cities and counties in a fair and impartial manner and under procedures
and accounting methods to be adopted by the Land Office.
The proposed rulemaking is not subject to review and certification for
consistency with the Texas Coastal Management Program (CMP) pursuant to 31
TAC §505.11(a)(1), relating to the Actions and Rules Subject to the Coastal
Management Program and Texas Natural Resources Code, §33.2051, relating
to agency rulemaking actions subject to review and certification for consistency
with the CMP.
The Land Office has evaluated the proposed rulemaking in accordance with
Texas Government Code, §2007.043(b), and §2.18 of the Attorney General's
Private Real Property Rights Preservation Act Guidelines, to determine whether
a detailed takings impact assessment is required. The General Land Office
has determined that the proposed rulemaking does not affect private real property
in a manner that requires real property owners to be compensated as provided
by the Fifth and Fourteenth Amendments to the United States Constitution or
Article I, Sections 17 and 19, of the Texas Constitution. Furthermore, the
General Land Office has determined that the proposed rulemaking would not
affect any private real property in a manner that restricts or limits the
owner's right to the property that would otherwise exist in the absence of
the rule amendments. The Land Office has determined that the proposed rulemaking
will not result in a taking of private property and that there are no adverse
impacts on private real property interests.
To comment on the proposed rulemaking, please send a written comment to
Deborah Cantu, Texas Register Liaison, Texas General Land Office, P.O. Box
12873, Austin, Texas 78711, facsimile number (512) 463-6311 or e-mail to deborah.cantu@glo.state.tx.us.
Written comments must be received no later than 30 days from the date of publication
of this proposal.
The amendments are proposed under the Texas Natural Resources
Code, §61.067(e), providing that the commissioner of the General Land
Office with the authority to adopt rules necessary to perform its duties under
the Subchapter C, Chapter 61, Texas Natural Resources Code, concerning maintenance
of the public beaches; Texas Natural Resources Code, §61.069, requiring
applicants for reimbursement to provide for establishment, maintenance, and
administration of at least one beach park by the city or county which meets
the minimum requirements of size and facilities as determined by the General
Land Office; and Natural Resources Code, §61.075, providing that the
General Land Office shall distribute the state share of funding for beach
maintenance expenses to cities and counties in a fair and impartial manner
and under procedures and accounting methods to be adopted by the Land Office.
Texas Natural Resources Code, §§61.061 - 61.083 are affected
by the proposed amendments.
§25.4. Allocation [ Notification ] of Available Funds.
[
(a)
]
The agency shall use the following formula
for calculating the amount of funds available to each city and county for
the fiscal year for which they seek reimbursement. Seventy-five percent of
funds available for distribution shall be allocated by determining each participant's
proportionate share of total participant expenditures during the two fiscal
years preceding the year for which participant is applying for reimbursement.
Twenty-five percent of the funds available for distribution shall be allocated
by determining each participant's proportionate share of total linear footage
of gulf beach which the participants will clean and maintain pursuant to project
agreements authorized in §25.11 of this title (relating to Project Agreement).
[(b)
All cities and counties which qualify
for state funds and have submitted timely applications as required by §25.6
of this title (relating to Application for Funds Assistance) will be notified
of the amount of state funds available to the city or county 30 days after
the application deadline designated by the agency pursuant to §25.6 of
this title.]
§25.7.Requirements for Eligibility--City.
Any city applying for state financial assistance under the Natural
Resources Code, §§61.068 - 61.070, must meet the following requirements:
(1) - (5)
(No change.)
(6)
provide for the establishment, maintenance, and administration
of at least one beach park by such city which shall meet the following minimum
requirements of size and facilities:
(A)
(No change.)
(B)
have adequate sanitation facilities to accommodate the
average heavy use period of the park
including, but not limited to, toilets
and a potable water supply
;
(C) - (D)
(No change.)
(7) - (8)
(No change.)
§25.8.Requirements for Eligibility--County.
Any county applying for state financial assistance under the Natural
Resources Code, §§61.068 - 61.070, must meet the following requirements:
(1) - (5)
(No change.)
(6)
provide for the establishment, maintenance, and administration
of at least one beach park by such county which shall meet the following requirements
of size and facilities:
(A)
(No change.)
(B)
have adequate sanitation facilities to accommodate the
average heavy use period of the park
including, but not limited to, toilets
and a potable water supply
;
(C) - (D)
(No change.)
(7) - (8)
(No change.)
§25.12.Eligible Costs.
(a)
(No change.)
(b)
A participant is not eligible to receive state funds for
administrative costs in excess of 10% of the total amount of reimbursement
received from the state by the participant.
In order to receive reimbursement
for administrative expenses, the expenses incurred must be reasonable and
directly related to beach cleaning or beach maintenance.
(c) - (e)
(No change.)
§25.15.Payment Procedures.
(a)
Payments to participants will be made on a reimbursable
basis, and the amount of payment will be computed by the agency. Participants
who qualify for no greater than two-thirds reimbursement under the Natural
Resources Code, §§61.068 - 61.070, will be reimbursed
semiannually
[
quarterly
].
(b)
Participants who qualify for 40% reimbursement under the
Natural Resources Code, §61.080 and §61.081, will be reimbursed
semiannually
[
annually
].
§25.16. Reimbursement Requests [ Billing ].
(a)
Reimbursement requests
[
Billing
]
will consist of a breakdown of project cost elements and will be in a summary
format requiring minimal supporting detail.
(b)
The agency reserves the right to require full documentation
if deemed necessary.
(c)
Reimbursement request
[
Billing
] records,
certification, and all documentation substantiating
reimbursement requests
[
billings
] will be maintained in the office of the county
or city internal auditor or if the county or city does not have an internal
auditor, in the office of its chief financial officer.
(d)
All
reimbursement request
[
billing
]
and certification documents will be provided by the agency.
(e)
Reimbursement requests must be submitted
to the agency no later than sixty (60) days after the end of each quarter
of the state fiscal year in which the expenses are incurred. Failure to submit
reimbursement requests on a timely basis may result, at the sole discretion
of the agency, in a denial of reimbursement for the expenses incurred during
the applicable period and a reallocation of the available funds in accordance
with §25.4 of this title (relating to Allocation of Available Funds)
to other participants that have submitted timely reimbursement requests.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on June 14, 2004.
TRD-200403850
Larry L. Laine
Chief Clerk, Deputy Land Commissioner
General Land Office
Earliest possible date of adoption: July 25, 2004
For further information, please call: (512) 305-8598