PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
SUBCHAPTER A. PROCEDURES FOR THE ADOPTION OF RULES
The Texas Parks and Wildlife Commission adopts an amendment to §51.3, concerning Consideration and Disposition of petitions for rulemaking, without changes to the proposed text as published in the October 3, 2008, issue of the Texas Register (33 TexReg 8298).
The amendment is 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.
Under the provisions of Government Code, §2001.021, an interested person by petition may request that a state agency adopt a rule; and each state agency is required to prescribe by rule the form for such petitions and the procedure for the submission, consideration, and disposition of petitions.
Under current rule, all petitions received by the department are forwarded to each member of the commission, accompanied by the staff recommendation to either initiate rulemaking or deny the petition. If within 50 days after the date the department received the petition no commissioner requests that the department initiate rulemaking, the petition is considered denied.
The amendment to subsection (d) alters the current procedure by requiring the executive director, in instances when the staff recommendation is to initiate rulemaking, to place the item on the agenda of a commission meeting. The amendment is intended to streamline the petition process by allowing staff to place items on the agenda instead of having to potentially wait up to 50 days for a response from the commission. The amendment also removes the requirement that the department verify that each commissioner has received petition materials sent to them. The amendment is necessary because the department has determined that it is unnecessary and duplicative. The department mails petition packages to the address on file with the department for each commissioner. If the mail is not deliverable, it will be returned to the department and the department will investigate the problem. Also, many commissioners choose to receive department communications via fax or e-mail rather than by overland mail. Again, if a fax number or e-mail address is inoperable, the department will contact the involved commissioner to rectify the problem.
The amendment to subsection (e) is nonsubstantive, adding language to make the subsection grammatically parallel to the changes made to subsection (d). The amendment also creates new subsection (g), which allows the executive director to deny a petition if the petition seeks essentially the same action as a petition that has been denied within the preceding six months. The amendment is necessary to avoid burdening staff and commissioners with repetitious and unnecessary administrative activities.
The rule as adopted will function by streamlining the department's process for addressing petitions for rulemaking and by making the process more efficient.
The department received no comments opposing adoption of the proposed amendment.
The department received six comments supporting adoption of the proposed amendment.
No groups or associations commented on the adoption of the proposed amendment.
The amendment is adopted under the authority of Government Code, §2001.021, which requires each state agency to prescribe by rule the form for petitions for adoption of rules and the procedure for submission, consideration, and disposition of such petitions.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 13, 2009.
TRD-200900167
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 2, 2009
Proposal publication date: October 3, 2008
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts an amendment to §51.70, concerning Gifts to the Department, without changes to the proposed text as published in the October 3, 2008, issue of the Texas Register (33 TexReg 8299).
The amendment is 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.
Under Government Code, §575.003, a state agency that has a governing board may accept a gift of cash or property valued at greater than $500 only if the agency has the authority to accept the gift and a majority of the board, in an open meeting, acknowledges the acceptance of the gift not later than the 90th day after the date the gift is accepted. Under Parks and Wildlife Code, §11.026, the department may accept gifts of property or money in support of any department purpose authorized by the Parks and Wildlife Code. Under Parks and Wildlife Code, §11.0182, the commission is required to adopt policies by rule to govern fund-raising activities by department employees on behalf of the department with respect to gifts of greater than $500.
The amendment alters the current rule to allow the executive director of the department or his or her designee to contingently accept gifts of money or property of more than $500, in accordance with the commission's budget policy, prior to the formal acknowledgment of such gifts by the commission. The commission meets five times per year. The amendment allows the department to more efficiently and immediately utilize gifts in support of agency functions between commission meetings.
The amendment also replaces the word "delegate" with the word "designee" to correct an inaccurate term.
The amendment will function by allowing department to more efficiently and immediately utilize gifts in support of agency functions between commission meetings.
The department received one comment opposing adoption of the proposed rule. The commenter stated that organizations make gifts to the department in order to receive preferential regulatory treatment. The department disagrees with the comment and responds that a gift to the department does not result in special treatment or advantage for the organization or person making the gift. No changes were made as a result of the comment.
The department received five comments supporting adoption of the proposed amendment.
No groups or associations commented for or against adoption of the rule.
The amendment is adopted under the authority of Parks and Wildlife Code, §11.0182, which requires the commission to adopt policies by rule to govern fund-raising activities by department employees on behalf of the department with respect to gifts of greater than $500.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 13, 2009.
TRD-200900168
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 2, 2009
Proposal publication date: October 3, 2008
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts an amendment to §51.80, concerning Hunter Education Course and Instructors, without changes to the proposed text as published in the October 3, 2008, issue of the Texas Register (33 TexReg 8300).
The amendment is 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 establishes a minimum test score of 80 for persons who take the hunter education course online or by home study. The current rule requires a minimum score of 70 on the examination, which is based on the traditional, classroom-style of study personally supervised by a certified hunter education instructor. The intent of the amendment is to create a slightly higher standard for persons who take the course on-line or by correspondence, options that do not include the supervision of a hunter education instructor.
The amendment will function by establishing a minimum score for hunter education certification by persons who take the hunter education course on-line or by correspondence.
The department received three comments opposing adoption of the proposed amendment. Each commenter expressed a rationale or explanation for opposing adoption. The comments, accompanied by the agency's response to each, are as follows.
One commenter stated that people should not be penalized for taking the hunter education course online and that the amendment hinders rather than furthers the goals of hunter education. The department disagrees with the comment and responds that the rule as adopted is not a penalty and is intended to recognize that on-line and correspondence delivery modes that are not supervised by department-certified instructors should have a slightly higher standard in order to ensure that the course materials have been absorbed by the student. The department also responds that there are no data to suggest that on-line or correspondence courses result in less effective hunter education. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should also require persons who take the hunter education course by classroom instruction to score at least 80% on the examination to be certified. The department disagrees with the comment and responds that a passing score of 70% is believed to be sufficient for persons who have taken the classroom version of the hunter education course because the course is conducted by a certified instructor. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the standard should be the same for all methods of course delivery. The department disagrees with the comment and responds that on-line and correspondence delivery modes that are not supervised by department-certified instructors should have a slightly higher standard in order to ensure that the course materials have been absorbed by the student. The same commenter also stated that "as the years pass, the minimum age for the required certification should as well. i.e. Sept. 1, 1971 would change each consecutive year with a minimum age being constant rather than staying the same and possibly deterring sportsmen from enjoying the sport." The department is unable to determine exactly what the commenter is suggesting, but responds that persons who were 17 years of age or older as of September 1, 1988 are exempt from hunter education requirements by statute (Parks and Wildlife Code, §62.014(d) and the commission cannot modify or eliminate that requirement. No changes were made as a result of the comment.
The department received 20 comments supporting adoption of the proposed amendment.
No groups or associations commented on the adoption of the proposed amendment.
The rule is adopted under the authority of Parks and Wildlife Code, §62.014, which authorizes the department to adopt rules necessary to implement the hunter education program.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 13, 2009.
TRD-200900169
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 2, 2009
Proposal publication date: October 3, 2008
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts an amendment to §52.101, concerning Purpose and Scope, without changes to the proposed text as published in the October 3, 2008, issue of the Texas Register (33 TexReg 8301).
The amendment is 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 removes the term "undesignated head" and replaces it with the word "chapter." The former is an artifact of a naming convention that is no longer used in the Texas Administrative Code. The amendment also retitles the chapter. The new chapter title is "Stocking Policy," to more accurately reflect the contents of the chapter.
The amendment will function by ensuring that the department's rules employ accurate terminology and title language.
The department received no comments concerning adoption of the proposed amendment.
The amendment is adopted under Parks and Wildlife Code, §§1.012, 12.001, 12.013 - 12.015, and 66.015, which provide the Parks and Wildlife Commission with the authority to promulgate regulations governing the stocking of wildlife in the state.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 13, 2009.
TRD-200900170
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 2, 2009
Proposal publication date: October 3, 2008
For further information, please call: (512) 389-4775
SUBCHAPTER E. GUIDELINES FOR ADMINISTRATION OF TEXAS LOCAL PARKS, RECREATION, AND OPEN SPACE FUND PROGRAM
The Texas Parks and Wildlife Commission adopts amendments to §§61.133 - 61.139, concerning Guidelines for Administration of Texas Local Parks, Recreation, and Open Space Fund Program, without changes to the proposed text as published in the October 3, 2008, issue of the Texas Register (33 TexReg 8301).
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 amendments to §§61.133 - 61.136, 61.138, and 61.139 implement a new definition of "low-income status." Prior to this year, the rules defined "low-income status" as the "USDA National School Lunch Program Income Eligibility Guidelines federal poverty definition midpoint." The department in a rulemaking earlier this year replaced that definition with a generic definition that recognized low-income status as "any federal determination of low-income status." The department has since learned that the generic definition is too broad. The amendment defines "low-income" as "median income or lower according to the most recent U.S. census (Median Household Income by State)," which the department has determined is an appropriate standard that can be easily determined by grant applicants seeking to provide recreation and parks services to low-income populations.
The amendment to §61.137, concerning Grants for Regional Parks Grant Programs, consists of several changes.
The amendment to §61.137(a)(2) clarifies that the acquisition priority category includes the development of natural resource areas in addition to their acquisition.
The amendment to §61.137(a)(2) and (3) adds qualifying language to clarify that the term "appropriate development," as used in the section, means development that is consistent with sound ecological management and stewardship of natural resources. The department's primary mission includes the conservation, management, and protection of natural resources. The department believes it is necessary to assist other entities in furthering that mission.
The amendment to §61.137(b)(3) alters a reference to the funding source used by the department to award grants for regional parks. The current rule refers to the "availability of TRPA funds," (Texas Recreation and Parks Account) which, though technically correct, is too broad. The amendment instead references "federal Land and Water Conservation Fund" funds, since the regional parks grants program is entirely funded by the federal Land and Water Conservation Fund.
The amendment to §61.137(b)(6)(A)(iii) provides a more detailed description of what the department evaluates when it considers project proposals that contemplate the acquisition of land for conservation areas and provides that points will not be awarded for proposed acquisitions that are intended to satisfy mitigation requirements. The current rule simply allows for the award of points for prospective acquisitions that would be used as "conservation areas." The department is interested in providing guidance to applicants as to what constitutes "conservation" for the purpose of award. Therefore, the amendment implements qualifying language to clarify that project proposals contemplating the acquisition of land as conservation areas will be evaluated on the extent to which the acquisition would preserve or conserve vulnerable natural resources, ecological processes, or rare, threatened, or endangered species of vegetation or wildlife. The intent of the amendment is to provide guidance as to what can be reasonably considered "conservation." The amendment also provides that points will not be awarded for proposed acquisitions that are intended to satisfy mitigation requirements. The department reasons that if some other, unrelated action by an entity has resulted in the entity's legal obligation to obtain mitigation property, the regional park grants program is not a suitable vehicle for that purpose. The regional park grants program is intended to recognize and assist with free-will conservation efforts and is not intended to function as a funding source for entities that are required to obtain property as a consequence of some other action. The amendment also increases the point award potential from five points to 15 points. The department believes that it is necessary to increase the point potential to emphasize the importance of conservation areas within the context of land acquisition.
The amendment to §61.137(b)(6)(A)(v) provides that projects proposing to offer managed natural resource access must do so in a responsible manner. The amendment is necessary to ensure that an applicant does not offer more or inappropriate access to a natural resource than what is biologically or ecologically acceptable.
Similarly, the amendment to §61.137(b)(6)(B)(i) clarifies that the development of water-based resources is understood by the department to mean development that is consistent with sound ecological management and stewardship. The department does not intend to award points to projects that are antithetical to the department's mission.
The amendment to §61.137(b)(6)(B)(iii) clarifies that conservation of aquatic habitat includes the proposed acquisition of habitat.
The amendment to §61.137(b)(6)(C) eliminates the dedication of publicly owned non-parkland as match contribution and removes irrelevant language. The regional parks grants program is completely funded by the federal Land and Water Conservation Fund. Federal Land and Water Conservation Fund money cannot be matched with public lands. The amendment also clarifies that match must be provided by local units of government to qualify for the award of points. The intent of the section is to encourage the planning and provision of recreational opportunity on a regional scale, which by definition makes coordination and participation among various local units of government desirable. Additionally, the current rule language refers to "sources other than sponsor." The source of match is irrelevant, so long as it is not public land. The amendment to subparagraph (C) also reduces the potential points award from 15 to 5 for the category, because the proposed amendment adds a new §61.137(b)(6)(G) to award points for projects that encourage and reward public/private partnerships. Thus, the scoring coefficient in subparagraph (C) is lowered to compensate for the new category of award.
The amendment to §61.137(b)(6)(F) conditions the award of points under the category of sustainable conservation, allowing for award based in significance of conservation activities, diversity, and/or cost. "Green" technologies or processes are an effective way to restore or maintain ecological integrity of natural systems and reduce operational costs of recreational sites, but are expensive to implement. The department wishes to give additional weight to proposals that would embrace these more efficient and beneficial approaches.
The amendment to §61.137(b)(6) adds a new subparagraph (G) to create a separate priority category for proposal elements that involve commitments of funds or resources from private or non-profit sources. Under current rule, commitments of funds or resources from any source were evaluated as a single criterion under §61.137(b)(6)(C). The department has determined that segregating the commitment of public resources from private resources is necessary because the department cannot accept publicly-owned land as program match under federal Land and Water Conservation Fund funding rules.
The amendment to §61.137(b)(6) adds a new subparagraph (H) to allow for the award of points based on the degree to which a proposed project would support the department's Land and Water Resources Conservation and Recreation Plan (Plan). The Plan is the core guidance document that drives all of the department's efforts in conservation, management, and recreation.
The rules as adopted will function by providing a uniform method for the submission, analysis, comparison, and ranking of competitive grant applications submitted by local communities seeking parks and recreation funding assistance from the department, and by providing clear and concise definitions that will aid in the administration of the programs governed by the rules.
The department received one comment opposing adoption of the proposed rules. The commenter stated that the funding of "earmarked" projects by the Legislature should be eliminated in order to maintain the integrity of the competitive scoring system identified. The department disagrees with the comment and responds that no specific projects are "earmarked" for funding by the legislature. The legislature created and provides the funding for the Texas Recreation and Parks Account for the specific purpose of funding local parks grants assistance under rules promulgated by the Texas Parks and Wildlife Commission. Those rules are the only basis for project award. No changes were made as a result of the comment.
The department received three comments supporting adoption of the proposed amendments.
No groups or associations commented concerning adoption of the proposed amendments.
The amendments are adopted under Parks and Wildlife Code, Chapter 24, which requires the department to adopt regulations for grant assistance.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 13, 2009.
TRD-200900171
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: February 2, 2009
Proposal publication date: October 3, 2008
For further information, please call: (512) 389-4775
CHAPTER 363. FINANCIAL ASSISTANCE PROGRAMS
The Texas Water Development Board (Board) adopts amendments to §363.16, regarding Pre-design Funding Option, and §363.1005, regarding Approval of Engineering Feasibility Report, without changes to the proposed text as published in the December 12, 2008, issue of the Texas Register (33 TexReg 10133).
The adopted amendments to §363.16 and §363.1005 allow the Board to provide funds under the pre-design funding option to applicants from the Board's storage acquisition program and state participation program, including reservoir projects. The pre-design funding option allows the Board to make a commitment for all phases of a project, and to release funds for planning, design, and construction after the prerequisites have been met for each phase, as specified in the terms of the Board's commitment. Previously, §363.16 and §363.1005 did not provide for a Board commitment under the pre-design funding option to fund the planning, design, and construction of storage acquisition and state participation projects, including reservoirs. The original purpose of the limitation was an effort to cull out projects due to very limited funds. It resulted in only projects with completed environmental assessments and preliminary engineering reports being eligible to receive a commitment for construction funds. With expanded funding for State Water Plan projects, these amendments remove this restriction, which is accounting for reduced demand for these funds. The Water Infrastructure Fund, which does not have the same restriction, currently is over-subscribed for the same period of time. Thus, these amendments provide more flexibility for the Board to commit to storage acquisition and state participation projects, including reservoirs.
The adopted amendment to §363.16(b) deletes storage acquisition, state participation, and reservoir projects from the list of financial assistance programs that are currently not eligible for the pre-design funding option. The purpose of allowing for pre-design funding of storage acquisition and state participation projects is to make funding more accessible and thus encourage the use of these funding programs. Under the rule as previously written, applicants for storage acquisition and state participation funding could not obtain a Board commitment until a certain amount of planning has been completed because these types of projects were not eligible for the pre-design funding option under §363.16.
The adopted amendment to §363.1005(a) clarifies that the Executive Administrator must approve the engineering feasibility report before presenting a State Participation application to the Board for commitment, except for pre-design funding. The Board does not make a commitment to fund State Participation projects until the engineering feasibility report is approved in accordance with §363.1005, which means that the appropriate environmental determinations have been completed, the project has been determined to be cost effective, and the applicant has agreed to incorporate all mitigating measures directed by the Executive Administrator. The adopted amendment to §363.1005 allows for a Board commitment to fund a State Participation project under the pre-design option without the Executive Administrator first approving the engineering feasibility report.
No comments were received regarding the proposed amendments.
SUBCHAPTER A. GENERAL PROVISIONS
DIVISION 2. GENERAL APPLICATION PROCEDURES
The adopted amendment is authorized pursuant to Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 15, 2009.
TRD-200900196
Kenneth L. Petersen
General Counsel
Texas Water Development Board
Effective date: February 4, 2009
Proposal publication date: December 12, 2008
For further information, please call: (512) 463-8061
The adopted amendment is authorized pursuant to Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 15, 2009.
TRD-200900197
Kenneth L. Petersen
General Counsel
Texas Water Development Board
Effective date: February 4, 2009
Proposal publication date: December 12, 2008
For further information, please call: (512) 463-8061
DIVISION 1. ECONOMICALLY DISTRESSED AREAS PROGRAM
31 TAC §§363.503 - 363.506, 363.510
The Texas Water Development Board (Board) adopts amendments to §§363.503 - 363.506 and 363.510, relating to the Economically Distressed Areas Program, without changes to the proposed text published in the December 12, 2008, issue of the Texas Register (33 TexReg 10134). The text of the rules will not be republished.
The adoption of the amendments to §§363.503 - 363.506 and 363.510 clarify eligibility criteria, repeal unnecessary provisions, and make other non-substantive revisions.
Section 363.503. The adopted amendment of §363.503(1)(B) - (E), and §363.503(2)(B) and (C), clarifies the definitions of inadequate water service and inadequate sewer service. The adopted clarification to §363.503(1)(B) and (C) permits the Board to fund a range of public works system improvements that are consistent with the intent of the statute. In addition, the adopted amendment allows for changes by TCEQ to its rules without requiring a correlative rule amendment by the Board. The adopted amendment to §363.503(1)(D) permits the Board to consider funding water system issues under the concept of inadequate water service that it currently cannot consider.
The adopted amendment to §363.503(1)(E) clarifies the application criteria and procedures under which a project identified in the state water plan and appropriate regional water plan in an economically distressed area may qualify for financing. The adopted language also makes such applications consistent with statutory requirements for economically distressed area financing and with the legislative directives from the 80th Legislature, Regular Session.
The adoption of changes to the definition of §363.503(2)(B) and (C) deletes the reference to specific sections of the TCEQ rules. Should the TCEQ change, repeal, consolidate or move its rules related to minimum standards for public sewer service and on-site sewage facilities, the Board would likewise have to amend its rules. The adopted amendment eliminates that unnecessary administrative burden.
The adoption of the amendment to §363.503(4)(A) removes language that was not helpful in determining the existence of an established subdivision.
Section 363.504. The Board adopts the deletion of subsection (b) from §363.504.
Section 363.505. The Board adopts the amendments to §363.505(a) clarifying that the board may provide funds from the EDAP Account when a sufficient showing is made that one of the three enumerated circumstances is present. The adopted amendment further clarifies that the area to be served must meet the criteria and not the political subdivision that requests assistance.
Non-substantive, editorial changes to §363.506 and §363.510 are adopted without changes.
No public comments were received regarding the proposed amendments.
This rule adoption is authorized pursuant to Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 15, 2009.
TRD-200900200
Kenneth L. Petersen
General Counsel
Texas Water Development Board
Effective date: February 4, 2009
Proposal publication date: December 12, 2008
For further information, please call: (512) 463-8061
The Texas Water Development Board (Board) adopts the repeal of §363.509 (relating to Minimum Total Loans) without changes to the proposal as published in the December 12, 2008, issue of the Texas Register (33 TexReg 10141).
Amendments to §§363.503 - 363.506 and 363.510 describe requirements related to applications for funding from the Economically Distressed Areas Program (EDAP). Amendments to these provisions are adopted elsewhere in this issue of the Texas Register clarifying eligibility criteria and making non-substantive revisions. The repeal of §363.509 is adopted as a part of these revisions to 31 TAC Chapter 363.
No comments were received regarding the proposed repeal.
The adoption of this repeal is authorized pursuant to Texas Water Code §6.101, which authorizes the board to adopt rules necessary to carry out the powers and duties of the board.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 15, 2009.
TRD-200900201
Kenneth L. Petersen
General Counsel
Texas Water Development Board
Effective date: February 4, 2009
Proposal publication date: December 12, 2008
For further information, please call: (512) 463-8061