Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
Subchapter A. FEES
Division 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The Texas Parks and Wildlife Department proposes an amendment to §53.2, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules and §53.5, concerning Recreational Hunting License, Stamps, and Tags.
The proposed amendment to §53.2 would clarify terminology to reduce confusion. The current rules provide that "persons may acquire recreational hunting and/or fishing licenses and stamps electronically (including by telephone) from the department or its designated representatives by agreeing to pay a convenience fee of up to $5 per license in addition to the normal license or stamp fee." The proposed amendment would eliminate the phrase "(including by telephone)," which is redundant, since a sale over the telephone is by definition electronic in nature. In fact, almost all licenses and stamps sold by the department are sold electronically, via telephone, the Internet, or the department's automated point-of-sale system.
The proposed amendment to §53.5, concerning Recreational Hunting License, Stamps, and Tags, would add the Federal Migratory Bird Hunting and Conservation Stamp, commonly referred to as the "federal duck stamp," to the list of stamps sold by the department.
Under federal law, no person 16 years of age or older may hunt waterfowl in the United States without having acquired a federal duck stamp. For many years the federal duck stamp had to be physically purchased at certain federal offices and department law enforcement offices. The U.S. Fish and Wildlife Service recently made it possible for individual states to enter into agreements with the federal government to sell the federal duck stamp electronically (Electronic Duck Stamp Act of 2005, P.L. 109-266). With the passage of Senate Bill 1668 by the 80th Legislature, the department received the statutory authority to sell the federal duck stamp through the use of automated equipment and point-of-sale system, and the department has therefore chosen to enter into an agreement with the federal government to sell the federal duck stamp through the department's license deputies and website beginning with the 2007-2008 license year. The cost of the federal duck stamp will be $17, which includes the $15 federal fee, a $1 federal fee for the cost of mailing a physical stamp to the customer, and a $1 fee to cover the agency's transaction costs and commissions to license deputies.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the rule as proposed is in effect, there will be minimal fiscal implications to state or local governments as a result of enforcing or administering the rule as proposed. The department pays a per-transaction fee to the license vendor that operates the department's automated licensing system and a per-item fee to agents commissioned by the department to sell licenses, permits, and tags. The cost to the department of issuing the federal duck stump is dependent on whether the stamp is bought as part of another transaction or bought as a stand-alone item; however, the department expects that the overwhelming preponderance of waterfowl hunters will purchase a federal duck stamp at the same time that they purchase their hunting license and state stamp. The department pays the provider of the automated license system $.76 per transaction, meaning that approximately one-third of the transaction fee would be for the federal stamp, or approximately $.25. In addition, the department pays a commission of $.75 per transaction to most of the authorized license deputy selling licenses and stamps to the public on behalf of the department. The department has rounded that figure to the nearest dollar to make transactions, accounting, and commission payments less cumbersome. Therefore, the cost to the department of selling the stamp will be $.01 per stamp. In 2006, the department sold approximately 545,000 state migratory game bird stamps. Using those numbers, the maximum cost to the department would be $5,450; however, the actual total will be less, since the department estimates that as many as half of all persons who purchase the state migratory stamp do not hunt waterfowl. Thus, the department concludes that the fiscal impact to the department will be somewhere around $2,200, or approximately revenue-neutral.
Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the convenience of one-stop shopping for all licenses, permits, and stamps needed to lawfully hunt in this state.
There will be no adverse economic effect on small businesses or microbusinesses, as the rule will not affect businesses. There will be an effect on persons required to comply with the rule as proposed, namely the $17 fee for the stamp.
The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
Comments on the proposed rules may be submitted to Jason Martinson, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4609 (e-mail: jason.martinson@tpwd.state.tx.us).
The amendments are proposed under the provisions of Senate Bill 1668 as enacted by the 80th Texas Legislature, which authorizes the department to issue a license, stamp, tag, permit, or another similar item authorized by the code or federal law through the use of automated equipment and a point-of-sale system; Parks and Wildlife Code, §12.701, which allows the department to authorize the issuance of a license, stamp, permit, or tag by a license deputy; Parks and Wildlife Code, §12.702, which authorizes the commission to set collection and issuance fees by rule for a license, stamp, tag, permit, or other similar item issued under any chapter of the code; and 31 TAC §53.2, which authorizes the department to charge a convenience fee of up to $5 per hunting or fishing license or per stamp when purchased electronically.
The amendments affects Parks and Wildlife Code, Chapter 12.
§53.2.License Issuance Procedures, Fees, Possession, and Exemption Rules.
(a) - (b) (No change.)
(c) Issuance of licenses and stamps electronically (including by telephone).
(1) A person may acquire recreational hunting and/or
fishing licenses electronically [
(including by telephone)
]
from the department or its designated representatives by agreeing
to pay a convenience fee of up to $5 per license in addition to the
normal license fee.
(2) A person may acquire recreational hunting and/or
fishing stamps electronically [
(including by telephone)
]
from the department or its designated representatives by agreeing
to pay a convenience fee of up to $5 per stamp order in addition to
the normal stamp fee(s). This fee shall not be charged if a license
is acquired during the same transaction.
(d) - (e) (No change.)
§53.5.Recreational Hunting Licenses, Stamps, and Permits.
(a) (No change.)
(b) Hunting stamps and tags:
(1) upland game bird--$7;
(2) migratory game bird--$7; [
and
]
(3) archery hunting--$7
; and
[
.
]
(4) Federal Migratory Bird Hunting and Conservation Stamp--$17.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 9, 2007.
TRD-200702907
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 19, 2007
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department proposes new §53.18, concerning Other Fees.
The proposed new section would provide for electronic registration of vessels by credit card and establish a fee for validation card/decals sets that permit the limited and temporary use of untitled vessels for recreational purposes or participation in contests or events under a marine dealer, distributor or manufacturer license.
In the future, the department will be able to provide boat registration renewal services over the Internet if the customer agrees to pay a convenience fee for handling payments made by credit card. Proposed new §53.18(a) would allow the electronic payment of vessel registration renewal fees, including any handling fees assessed by the credit card company. The proposed new subsection is necessary to provide greater customer service to the general public and alleviate the longer wait times at TPWD offices prior to holidays.
House Bill 3764 as enacted by the 80th Texas Legislature, amended Parks and Wildlife Code, §31.041, to authorize the department to establish rules concerning the issuance and price of validation cards permitting the limited and temporary use of untitled vessels for recreational purposes or participation in contests or events under a marine dealer, distributor or manufacturer license. Proposed rules governing the use, display, and recordkeeping with respect to the validation cards are in another rulemaking published elsewhere in this issue of the Texas Register.
One validation card and decal (card/decal set) would be included at no additional costs with the purchase of a marine dealer, distributor, or manufacturer license. Proposed new §53.18(b) would establish the fee for additional card/decal sets at $120 per set. The fee for replacing a lost of destroyed validation card would be $10.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule as proposed. With respect to the convenience fee for electronic vessel registration by credit card, the fee charged to the customer will be a pass-through fee. Thus, there will be no fiscal impact on the department.
With respect to the fee for a validation card/decal set, the fee amount of $120 was derived by taking the maximum fee amount currently charged by the department to register and title a vessel, which is $115, and adding $5 to recoup administrative costs associated with the printing of validation cards and decals.
The fee of $10 to replace a lost or damaged validation card is established to recover the department's costs in printing and mailing the replacement card to the customer.
The revenue from the sale of validation card/decal sets will be approximately equivalent to the revenue that would be realized were each vessel used to show, test, or demonstrate to be registered and titled. Therefore, the fiscal impact of the proposed amendment is revenue neutral. There will be no additional costs to the department for enforcement of the rule, as the department's law enforcement officers currently enforce the existing statutory provisions governing the showing, testing, or demonstration of unregistered vessels and the new rule is not expected to result in appreciable additional time or effort related to those enforcement activities.
Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be greater customer service and the ability of vessel dealers, distributors, and manufacturers to more fully demonstrate the capabilities of vessels to the public and the increased ability of consumers contemplating the potential purchase of a vessel to be able to better determine the suitability of the vessel to their needs.
There will be an adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed. The department believes that most if not all dealers, distributors, and manufacturers qualify as small businesses or microbusinesses. A dealer, distributor, or manufacturer's license includes one validation card/decal set at no additional cost, so no licensee will be unable to show, test, or demonstrate vessels for a recreational purpose or in a contest or event; however if a licensee desires to simultaneously show, test, or demonstrate multiple vessels for a recreational purpose or in a content or event, the licensee will incur a minimum cost of $120 per additional vessel. The economic cost of compliance is the same for the largest and the smallest businesses affected by the rule. For a business employing one employee, the cost of compliance would be between $120 per employee per validation card purchased. For a business employing 20 employees, the cost of compliance would be $3 per employee per validation card purchased. For a business employing 100 employees, the cost of compliance would be between $0.12 per employee per validation card purchased.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
Comments on the proposed rule may be submitted to Al Campos, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4624 (e-mail: alfonso.campos@tpwd.state.tx.us).
The new section is proposed under the authority of 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 House Bill 3764, 80th Texas Legislature, Regular Session, which amended Parks and Wildlife Code, Chapter 31, to authorize 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.
The proposed new section affects Parks and Wildlife Code, Chapters and 11 and 31.
§53.18.Other Fees.
(a) Fees for Electronic Registration of Vessels. After the initial registration of a vessel, the vessel may be registered electronically by credit card by agreeing to pay any applicable credit card handling or convenience fees in addition to the normal registration fee.
(b) Marine dealer, manufacturer, or distributor's licensee validation card (with decal) for recreational purposes or participation in contests or events:
(1) original--included at no additional cost with purchase of marine dealer, manufacturer, or distributor's license.
(2) additional card--$120; and
(3) replacement card--$10.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 9, 2007.
TRD-200702906
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 19, 2007
For further information, please call: (512) 389-4775
Subchapter E. SHOW, TEST, AND DEMONSTRATION OF VESSELS
The Texas Parks and Wildlife Department proposes new §55.130, concerning Show, Test, or Demonstration of Vessel.
The proposed new rule would allow the limited temporary use of non-registered vessels by dealers, distributors, and manufacturers for recreational purposes or for participation in contests or events. House Bill 3764, enacted by the 80th Texas Legislature, amended Parks and Wildlife Code, Chapter 31, to allow the Texas Parks and Wildlife 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. Prior to the passage of House Bill 3764, a dealer, distributor, or manufacturer of vessels was able to show, demonstrate, or test a vessel without securing a certificate of number for the vessel, but the showing, testing, or demonstration could not involve the use of the vessel for recreational purposes or for participation in a contest or event.
Proposed new §55.130(a) would restate the statutory provision allowing the show, test, or demonstration of a vessel by a licensed dealer, distributor, or manufacturer.
Proposed new §55.130(b) would prohibit the use of a dealer, distributor, or manufacturer license to show, test, or demonstrate a vessel for recreational purposes or for participation in a contest or event except as provided in the subchapter. The provision is necessary in order to delineate the circumstances under which a dealer, distributor, or manufacturer may show, test, or demonstrate a vessel for recreational purposes or for participation in a contest or event.
Proposed new §55.130(c) would allow a dealer, distributor, or manufacturer to use an untitled or unregistered vessel for recreational purposes or for participation in a contest or event, provided the licensee has a validation card/decal set issued by the department, displays them in the prescribed manner, and does not use a card/decal set for more than six consecutive days or more than 12 days in any calendar month. The provision is necessary to allow for the "limited and temporary use of vessels for recreational purposes or participation in contests or events" as authorized under the terms of H.B. 3764. The department considered that "limited and temporary," in the absence of a statutory definition, must be understood in the context of preventing the full-time, permanent use of an untitled or unregistered vessel for recreational purposes or for participation in contests or events. The department then considered that the most likely show, test, or demonstration uses of vessels for recreational purposes or for participation in a contest or events would be for fishing tournaments, "poker runs," water-skiing competitions, and similar events that typically do not last longer than a holiday weekend. The department concluded that the six-consecutive-day limit, coupled with a limit on the maximum number of days of use per month, is sufficient to allow for thorough showing, testing, or demonstration of a vessel for a potential buyer, while still satisfying the legislative requirement for "limited and temporary" character.
Proposed new §55.130(d) would require that a validation card be made available upon the request of any peace officer, marine safety enforcement officer, or department employee acting within the scope of official duties. The provision is necessary to provide a method for enforcement and administrative personnel to quickly determine if a person operating an untitled or unregistered vessel is in fact authorized to do so.
Proposed new subsection (e) would provide that one validation card/decal set be included at no additional cost to the purchaser of a dealer, distributor, or manufacturer license, and that additional card/decal sets could be purchased from the department. The proposed new section also provides that decals would not be available separately. The provision is necessary to provide a mechanism for dealers, distributors, and manufacturers to show, test, and demonstrate multiple vessels simultaneously. However, because card/decal units are uniquely numbered and the decals are pre-printed, there is no way to replace damaged, defaced, or destroyed decals; thus, if a decal needs to be replaced, the licensee would have to purchase a card/decal unit.
Proposed new §55.130(f) would require licensees to maintain a daily log accounting for all usage of validation decals and cards under a license. The provision is necessary because the department must be able to determine, if necessary, that the licensee has complied with the maximum use provisions of no more than six consecutive days and no more than 12 days in a calendar month. The proposed subsection also would require that the log be retained for not less than two years and made available upon the request of any peace officer, marine safety enforcement officer, or department employee acting within the scope of official duties. The provision is necessary to provide a method for enforcement and administrative personnel to quickly determine that a licensee has complied or is complying with the maximum provisions of the subchapter.
Proposed new §55.130(g) would provide that a validation card/decal set is not valid unless the corresponding license is valid and that a validation card/decal set expires on the last day of the last month that a license is valid. The provision is necessary to prevent confusion and possible unethical conduct. By establishing a specific period of validity, the department intends that there be no question as to whether a given validation card/decal set is lawful to use.
Proposed new §55.130(h) would provide that nothing in the rule authorizes the use of a licensee's number or a validation card and validation decals for purposes not related to the legitimate business activities of the licensee. The proposed new subchapter would define "legitimate business activities" to mean the sale, transfer, exchange, service, or transportation of a vessel or outboard motor.
Mr. Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be minimal implications to state government as a result of enforcing or administering the rules. The department will incur costs related to the printing of validation cards and decals, but the fee assessed for additional decals should cover those costs. There will be no additional costs to the department for enforcement of the rule, as the department's law enforcement officers currently enforce the existing statutory provisions governing the showing, testing, or demonstration of unregistered vessels and the new rule is not expected to result in appreciable additional time or effort related to those enforcement activities.
There will be no fiscal implications for units of local government as a result of administering the rules as proposed.
Mr. Macdonald also has determined that for each of the first five years the rule as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the ability of vessel dealers, distributors, and manufacturers to more fully demonstrate the capabilities of vessels to the public and the increased ability of consumers contemplating the potential purchase of a vessel to be able to better determine the suitability of the vessel to their needs.
There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed; however, in another rulemaking published elsewhere in this issue, the department is proposing a fee of $120 for each validation card/decal set. The department's small and microbusiness impact statement for that rulemaking is reproduced here as a courtesy.
The fee amount of $120 for a validation card/decal set was derived by taking the maximum fee amount currently charged by the department to register and title a vessel, which is $115, and adding $5 to recoup administrative costs associated with the printing of validation cards and decals.
The fee of $10 to replace a lost or damaged validation card is established to recover the department's costs in printing and mailing the replacement card to the customer.
The revenue from the sale of validation cards and decals will be approximately equivalent to the revenue that would be realized were each vessel used to show, test, or demonstrate to be registered and titled. Therefore, the fiscal impact of the proposed amendment is revenue neutral. There will be no additional costs to the department for enforcement of the rule, as the department's law enforcement officers currently enforce the existing statutory provisions governing the showing, testing, or demonstration of unregistered or untitled vessels and the new rule is not expected to result in appreciable additional time or effort related to those enforcement activities.
The department believes that most if not all dealers, distributors, and manufacturers qualify as small businesses or microbusinesses. A dealer, distributor, or manufacturer's license includes a validation card/decal, so no licensee will be unable to show, test, or demonstrate vessels for a recreational purpose or in a contest or event; however if a licensee desires to simultaneously show, test, or demonstrate multiple vessels for a recreational purpose or in a content or event, the licensee will incur a minimum cost of $120 per additional vessel. The economic cost of compliance is the same for the largest and the smallest businesses affected by the rule. For a business employing one employee, the cost of compliance would be between $120 per employee per validation card purchased. For a business employing 20 employees, the cost of compliance would be $3 per employee per validation card purchased. For a business employing 100 employees, the cost of compliance would be between $0.12 per employee per validation card purchased.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
Comments on the proposed rules may be submitted to Al Campos, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4624 (e-mail: alfonso.campos@tpwd.state.tx.us).
The new section is proposed under the authority of House Bill 3764, 80th Texas Legislature, Regular Session, which amended Parks and Wildlife Code, Chapter 31, to authorize the commission to establish rules concerning the issuance and price of validation cards and decals 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.
The proposed new section affects Parks and Wildlife Code, Chapter 31.
§55.130.Show, Test, or Demonstration of Vessel.
(a) A licensed dealer, distributor, or manufacturer (hereinafter "licensee") may use the licensee's number to show, demonstrate, or test a vessel on the water of this state without acquiring a certificate of number and registration decals. The licensee's number shall be attached, affixed, or inscribed on both sides of the vessel in an easily visible location. The use of removable signs which can be temporarily but firmly attached to the vessel is permissible.
(b) A licensee may not use the licensee's number for the use of a vessel on the water of this state for recreational purposes or for participation in contests or events, except as permitted in this subchapter.
(c) On a limited and temporary basis, a licensee, or person or persons authorized by the licensee, may use a vessel for recreational purposes or participation in contests or events only if:
(1) the licensee's number is either temporarily or permanently attached, affixed, or inscribed on both sides of the vessel in an easily visible location;
(2) a department-issued validation decal is either temporarily or permanently prominently displayed on both sides of the vessel in an easily visible location;
(3) a department-issued validation card is aboard the vessel; and
(4) the temporary use does not occur on more than six consecutive days, and does not occur on more than twelve days in any calendar month.
(d) A validation card must immediately be made available for inspection upon the request of any peace officer, marine safety officer, or department employee acting within the scope of their official duties.
(e) A dealer, distributor, or manufacturer license shall include one validation card and two validation decals, which shall be issued at the time the license is issued. Additional validation cards may be purchased separately upon payment of the fee specified in §53.18 of this title (relating to Other Fees). Each additional validation card includes two validation decals. Validation decals may not be purchased separately.
(f) A licensee shall maintain at the licensee's place of business a current daily log accounting for each use of each validation card issued to the licensee. The log shall be retained for a period of two years and must immediately be made available for inspection during normal business hours at the request of any peace officer, marine safety officer, or department employee acting within the scope of their official duties. The log shall indicate, for each use of a validation card:
(1) the date and location of the use;
(2) the hull identification number of the vessel;
(3) the specific business purpose of the recreational use, contest, or event;
(4) the name, address, and driver's license number or state-issued identification card number of the person or persons authorized by the licensee to operate the vessel; and
(5) the name of licensee's agent authorizing use of the validation card.
(g) A validation card is not valid if the corresponding license is not valid. A validation card and corresponding validation decals expire on the last day of the last month that a dealer, distributor, or manufacturer license is valid.
(h) Nothing in this subchapter authorizes the use of a licensee's number or a validation card and validation decals for purposes not related to the legitimate business activities of the licensee. "Legitimate business activities" means the sale, transfer, exchange, service, or transportation of a vessel or outboard motor.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 9, 2007.
TRD-200702905
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 19, 2007
For further information, please call: (512) 389-4775
Subchapter K. ACCEPTANCE OF DONATED LAND
The Texas Parks and Wildlife Department proposes new §59.330, concerning Eligibility of Donated Land for Acceptance and Inclusion in State Park System. The new section implements the requirements of House Bill 12, enacted by the 80th Texas Legislature. House Bill 12 amended Parks and Wildlife Code, Chapter 13, by adding §13.0075, which requires the commission to adopt criteria by rule for determining the eligibility of real property that is donated to the department for inclusion in the state park system.
Among the purposes of the state park system is the management and conservation of natural and cultural resources and providing outdoor recreational opportunities, contact with and understanding of the natural world, and awareness of the diverse cultural and historical resources that make Texas unique. The state parks system consists of state parks, state natural areas and state historic sites.
The proposed new rule would establish eligibility criteria for the acceptance of land donated for inclusion in the state park system. To be considered for inclusion in the state parks system, the prospective donation should substantively address specific criteria. To that end, the proposed new rule would establish six general categories for evaluating the suitability of donated land for inclusion in the state park system: contiguity to existing parkland, recreational value, natural resource value, historical value, and size, as well as ancillary values. To some extent, the criteria are interrelated, but if a prospective donation satisfies any criteria, it is a candidate for inclusion in the state park system.
In general, the department will consider accepting lands that are near, adjacent to, or within the boundaries of existing parkland in order to expand, consolidate, or augment the values of existing parkland. In the department's view, this is a prudent practice. In most instances, the addition of land to existing park facilities will not significantly increase the department's operating costs since the added land usually can be managed by existing staff. Also, the acceptance of land adjacent to existing parkland often helps to address access issues, provide a buffer to development, and preserve or enhance the values of existing parkland.
The recreational value of donated land is a high priority. The types of features that the public typically finds appealing are those that allow for popular outdoor activities. One of the most appealing features is water. In many parts of Texas, the climate is conducive to swimming, boating, and fishing almost year round. Therefore, the presence of a water feature capable of sustaining recreational use is an important factor in considering the acceptance of a donation. Along the same lines, lands that present interesting or aesthetically pleasing landscape features are typically high-demand areas for recreation, including hiking, camping, and nature viewing. This also would include other features such as caverns and sinkholes, and areas offering impressive or panoramic views of the surrounding countryside. Similarly, cultural resources are important. Archeologically or architecturally significant structures or buildings that relate to pre-European and colonial heritage or that are representative of a particular era or way of life are an important tool in informing and educating the public about the people who made Texas home in preceding generations. A potential donation offering significant additional opportunity for these activities would therefore be attractive to the department.
Natural resource value is also an important factor to consider in a donation. Texas is ecologically varied, encompassing mountains, deserts, prairies, karst topography, coniferous forests, wetlands, and coastal areas which are habitats for hundreds of species of animals and plants as well as for humans past and present. A prospective donation that offered the opportunity to significantly enhance the department's inventory with regard to natural resource value would therefore be considered for acceptance.
Texas has a rich past that is reflected in and informs the present. Property that has significant historical value is therefore useful in illustrating the cultural themes of Texas or national heritage, the political, economic, military, or social history of Texas, or aspects of historic or prehistoric people and events. Prospective donations that would help the department in reflecting the rich heritage of the state would therefore be considered for acceptance.
The department will also consider accepting prospective donations of land if the property offers significant ancillary value, but otherwise does not substantially satisfy the other criteria. For instance, if a piece of land functions as a travel corridor or harbor for wildlife, offers an impressive view, or is in an important or critical watershed, the department would consider acceptance. Also, the department will consider land that would function as a buffer between development and existing parkland.
The size of a prospective property is important. A large parcel of land that satisfies the criteria of the proposed new rule, provided it is not irreparably damaged, polluted, or would require large amounts of money to be made fit for recreational opportunity, is preferred, but a small parcel could be accepted if it meets any of the criteria established by the proposed new rule.
As noted, the listed criteria are often interrelated. For example, many of the features that contribute to the recreational value or natural resource value of land also contribute to historical or interpretive value of the land. For example, while water features may contribute to land's recreational value, a water feature may also provide an opportunity to educate the public about the role of water in sustaining Texas' natural resources. Likewise, landscape features and cultural resources that contribute to land's recreational value, also contribute to the land's natural resource value and enhance the department's ability to provide lessons in science and history. Similarly, land that is contiguous to existing parkland may also address ancillary values, by enhancing viewsheds or providing buffers from development.
Subsection (b) of the proposed new rule provides that in addition to the criteria established in this section, the department will consider whether the acceptance of the donated land for inclusion in the state parks system would contribute to the goals established in the department's Land and Water Resources Conservation and Recreation Plan. In 2001, the 77th Texas Legislature enacted Parks and Wildlife Code, §11.104, directing the department to develop a Land and Water Resources Conservation and Recreation Plan (the Plan). In November 2002, the first Plan was adopted. A revised Plan was adopted by the Commission in January 2005. The Plan is intended to provide strategic direction for the department. Among other things, the Plan addresses conservation and recreation priorities for the department.
Subsection (c) of the proposed new rule would clarify that this rule is intended to address only the acceptance of donated land for inclusion in the state parks system. The department may accept land or an interest in land for purposes other than inclusion in the state parks system. For example, the department may accept real property for purposes of wildlife management, operation of a fish hatchery, or law enforcement training.
Subsection (d) of the proposed new rule would stipulate that the department is not compelled to accept a prospective donation simply because the land meets one or more of the criteria of the new rule. If some provision of the donation such as a deed restriction or covenant would preclude the effective use of the land as parkland, or if the acceptance of the property would result in an increase in operating or maintenance costs, the department could choose not to accept the donation.
Subsection (e) of the proposed new rule would clearly stipulate that the decision to accept or decline donated land for inclusion in the state park system would be solely at the discretion of the Texas Parks and Wildlife Commission. The department does not wish for the proposed new rule to suggest to anyone that land can be donated to or declined by any entity other than the body that is statutorily constituted for that purpose.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule as proposed.
Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the establishment of criteria to inform the public and assist the department in its decision-making process regarding the acceptance of donated land to be included in the state parks system as directed by the Texas Legislature.
There will be no adverse economic effect on small businesses or microbusinesses, as the rule will not affect businesses.
The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as the department has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
Comments on the proposed rules may be submitted to Ted Hollingsworth, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4520 (e-mail: ted.hollingsworth@tpwd.state.tx.us).
The new rule is proposed under the provisions of House Bill 12 as enacted by the 80th Texas Legislature, which requires the commission to adopt criteria by rule for determining the eligibility of real property that is donated to the department for inclusion in the state park system.
The amendment affects Parks and Wildlife Code, Chapter 13.
§59.330.Eligibility of Donated Land for Acceptance and Inclusion in State Park System.
(a) Any land donated to the department is eligible to be included in the state park system, provided the acceptance of the land substantially satisfies elements of one or more of the following criteria.
(1) Contiguity with existing land in the state parks system. The donated land is near, adjacent to, or within the boundaries of an existing unit of the state parks system.
(2) Recreational value. The donated land possesses a high potential for providing popular or critical opportunities for recreational enjoyment of the natural world by the public. Such potential is characterized by:
(A) water features such as springs, creeks, bayous, rivers, lakes, or coastline;
(B) landforms such as mountains, hills, canyons, etc., that are suitable for hiking, camping, or other types of outdoor use that are typically sought after or enjoyed by the public;
(C) underground features such as caves, caverns, or sinkholes;
(D) significant cultural resources;
(E) significant aesthetic resources, such as views or panoramas; or
(3) Natural resource value. The donated land:
(A) contains a high-value natural feature or features;
(B) is habitat for rare or endangered species of plants or animals;
(C) reflects a representative ecosystem of the state or could be restored or managed to reflect a natural ecosystem; or
(D) significant geological or paleontological resources.
(4) Historical or Interpretive value. The donated land provides historical or interpretive value consistent with the department's Land and Water Resources Conservation and Recreation Plan.
(5) Ancillary values. The donated land offers or contains significant or valuable:
(A) viewsheds;
(B) wildlife corridors;
(C) watersheds; or
(D) buffers from development for existing parkland.
(6) Size. The department shall consider the size of a donated parcel of land as it relates to the factors set forth in paragraphs (1) - (5) of this subsection.
(A) Small parcels (less than 500 acres) should be contiguous to existing properties in the state park system to be considered for acceptance, unless the value of the parcel in terms of the criteria listed in paragraphs (1) - (5) of this section is such that the department has a compelling interest in accepting the land as a donation.
(B) Large parcels (greater than 500 acres) need not be contiguous to existing properties within the state park system to be considered for acceptance, provided that acquisition is consistent with the department's Land and Water Resources Conservation and Recreation Plan.
(b) In addition to the criteria established in subsection (a) of this section, the department will consider whether the acceptance of the donated land for inclusion in the state parks system would contribute to the goals established in the department's Land and Water Resources Conservation and Recreation Plan.
(c) Nothing in this section is intended to address or limit the acceptance of donated lands for purposes other than inclusion in the state parks system.
(d) Regardless of whether the property meets the criteria in subsection (a) of this section, the department may decline to accept the donation of any parcel of land. The reasons for declining a prospective donation may include, but are not limited to, lack of adequate access, deed restrictions, use agreements, previous land uses, operating and maintenance costs or any other factors would make the use of the land impractical or problematic with respect to the department's mission.
(e) No donated land will be added to the state park system unless the land is formally accepted by the Texas Parks and Wildlife Commission voting in open session. The Texas Parks and Wildlife Commission, in its sole discretion, may accept or decline any proposed donations of land for inclusion in the state park system.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 9, 2007.
TRD-200702904
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 19, 2007
For further information, please call: (512) 389-4775