Tennessee Paddlesports Association comments to proposed TWRA rules dated November 18, 2018
January 10, 2019
Mr. Chris Richardson
Assistant Director
Tennessee Wildlife Resources Agency
P.O. Box 40747
Nashville, TN 37204
RE: Initial Comments to Notices of Rulemaking Hearing, Tennessee Wildlife Resources Agency: (1) Rule Number 1660-04-01 (Rules and Regulations Governing Commercial Non-Motorized Vessel Outfitters), Notice ID 2933 and (2) Rule Number 1660-04-02 (Rules and Regulations Governing Permit and Access Fees), Notice ID 2934
Dear Mr. Richardson:
The Tennessee Paddlesports Association ("TP A") provides this initial set of comments with respect to proposed rules of the Tennessee Wildlife Resources Agency ("TWRA") set forth in the following Notices of Rulemaking Hearing: (1) Rule Number 1660-04-01 (Rules and Regulations Governing Commercial Non-Motorized Vessel Outfitters), Notice ID 2933 and (2) Rule Number 1660-04-02 (Rules and Regulations Governing Permit and Access Fees), Notice ID 2934 (together the "Proposed Rules"). These comments include Attachment A, Letter to Chris Richardson from Bart Kempf, October 10, 2018 (hereinafter "Attachment A").
At the express request of TWRA, the TP A is submitting these initial comments well in advance of the January 18, 2019 hearing of the Tennessee Fish and Wildlife Commission (the "Commission") during which the Proposed Rules are scheduled to be considered. The TP A reserves the right to alter, amend, or supplement these comments. The TP A will formally submit
its final and/or supplemental comments at or before the January 18, 2019 hearing. 1
The TP A appreciates the opportunity to comment upon the Proposed Rules, and its members look forward to sharing their views with the Commission and TWRA on January 18,
2019.. We are also grateful for the creation of the informal paddler Advisory Committee that was
formed to provide input on an earlier draft of the Proposed Rules. We hope that it or some other
1 We understand that TWRA may seek to submit an amendment to the Proposed Rules to the Commission for approval as final rule(s) at the January 18, 2019 public meeting. Doing so would, among other things, deprive TP A and other interested parties of their right to comment upon any such amended proposed rule in violation of the Tennessee Uniform Administrative Procedure Act. See T.C.A. §§ 4-5-203-205. Of course, the Commission and/or TWRA may elect to finalize an amendment to the Proposed Rules after the public hearing, see T.C.A. § 4-5-
203-203(c)(2)(B), but only after also "consider[ing] fully all written and oral submissions respecting proposed rules" and only to the extent that any changes to the Proposed Rules "are within the scope of the rulemaking filed with the secretary of state." T.C.A. §§ 4-5-203, 205.
Bradley Arant Boult Cummings LLP I Roundabout Plaza 11600 Division Street, Suite 700 I Nashville, TN 37203-27541615.244.25821 bradley.com
informal working group would continue to provide a forum for interested persons to interact with the TWRA and the Commission.
I. Introductionand Overview of the Tennessee Paddlesports Association's Opposition to the Proposed Rules
The TPA is a nonprofit association of non-motorized vessel ("NMV") outfitters providing canoe, kayak, stand-up paddleboard, and tubing rentals to the general public on waterways throughout the state. TPA members also provide, among other things, instruction as well as rental operations.
As an initial matter, the process for creating and proposing these rules - which have a great bearing on access for the outfitted public and the future of many long-standing, responsible paddlesports businesses - was flawed. As noted above, TWRA created an informal Advisory Committee, which we supported. However, the two meetings of the Advisory Committee were often dominated by certain interest groups who appeared unsupportive of the paddlesports industry and may have had an outsized influence on the proceedings. Additionally, regulatory proposals were provided to us just prior to the start of the first meeting, which gave us inadequate time or opportunity to consider the proposals. Further, limited advance notice of the meetings was given. As we have stated previously on several occasions, we believe that a reasonable and appropriate way to address legitimate issues would be to study the issues and perceived problems, and work with users to reduce conflicts and congestion without overbearing and inappropriate regulations. See Attachment A at 1, 3.
The flawed process and lack of meaningful study has resulted in a proposal which largely fails to take into account the reality of paddlesports businesses. Indeed, the Proposed Rules would destabilize and undermine many existing paddlesports businesses which have operated responsibly for years. Further, we believe that certain aspects of the Proposed Rules are unlawful, including, but not limited to, launch fees, collecting fees and establishing rules at ramps which are not owned or managed by the TWRA, and controlling permit holders' riverside property. TWRA is essentially proposing a fee to access the state's waters by imposing a launch and take-out fee on the customers of paddlesports businesses. These fees will make paddling experiences more expensive for customers of rental outfitters and defeat some of the stated purposes of the regulations by encouraging individuals to paddle on their own without any safety briefing or explanation of other important issues.
Businesses renting paddlecraft in Tennessee are already paying a wide array of taxes and fees levied by various federal, state, and local governments, which include sales, personal property, property, and other taxes. TWRA is introducing significant new burdens in the Proposed Rules to include permit fees, inventory fees, and launch fees as well as a one-year permit, which may not be renewed under certain conditions. Many paddlesports businesses do not believe the proposed fee burden is sustainable, and the one-year permit creates significant and unnecessary uncertainty.
Furthermore, TWRA has repeatedly stated that its regulations on commercial paddlecraft operators will be introduced incrementally - and that they plan future rounds of river-specific rules. While recognizing that any regulatory approach must be viewed as an ongoing process, it is difficult to craft our comments without knowing what the future holds. Of course, those future proposals are not included in the Proposed Rules, so we cannot adequately comment without knowing the full scope of the burdens to which TPA may be subject.
TP A urges TWRA and the Commission to withdraw the Proposed Rules and commence a study evaluating best practices and non-regulatory measures to reduce user conflicts and congestion at popular boat ramps. We think this would be more effective than the proposed regulations and fees. In the interim, TP A would be amenable to TWRA requiring a basic registration (as opposed to an annual renewable permit), provided any operating requirements are minimal and registration renewal is automatic and occurs every three to five years.
II. The Fees TWRA Seeks to Impose on Outfitters are Unlawful
a. The Commission and/or TWRA Lack the Authority to Impose Fees on Outfitters
The Commission and/or TWRA lack the authority to impose any of the proposed fees - including the General Permit Fee (1660-04-02.02), the Vessel Inventory Fee (1660-04-02.03), and the Public Access Launch Fee (1660-04-02.04). As authority for imposition for these fees, the Proposed Rules cite T.C.A. § 69-9-227 and § 70-1-206. Neither of these provisions authorizes TWRA or the Commission to impose fees. See § 69-9-227 (authorization limited to establishing rules, regulations, permits, and procedures) and § 70-1-206 (fee authority solely related to licensing and permits subject to Title 70 (Wildlife Resources)).
Further, even if TWRA and/or the Commission possess the authority to impose fees, those fees must be reasonably related to the cost of regulating commercial outfitters. Memphis Retail Liquor Dealers' Ass'n, Inc. v. City of Memphis, 547 S.W.2d 244, 246 (Tenn. 1977); see also S & P Enters., Inc. v. City of Memphis, 672 S.W.2d 213, 216 (Tenn. Ct. App. 1983). TWRA has not indicated how it intends to spend the fees it intends to collect or provided any sort of estimate as to the anticipated cost of regulating commercial outfitters. It therefore has not shown that the fees it seeks to impose are reasonably related to its purported regulatory goals.
b. Federal Law Preempts Imposition of the Vessel Inventory Fee and the Public
LaunchFee
33 U.S.C. § 5(b) preempts states and localities from imposing fees on vessels operating on navigable waters of the United States. The statute provides that "[n]o taxes, tolls, operating charges, fees, or any other impositions whatever shall be levied upon or collected from any vessel or other water craft, or from its passengers or crew, by any non-Federal interest, if the vessel or water craft is operating on any navigable waters subject to the authority of the United States, or under the right to freedom of navigation on those waters." 33 U.S.C. § 5(b). Only a narrow class of fees are exempted: (1) port or harbor dues charged under 33 U.S.C. § 2236; (2) "reasonable fees charged on a fair and equitable basis that (i) are used solely to pay the cost of a service to the vessel or water craft; (ii) enhance the safety and efficiency of interstate and foreign
commerce; and (iii) do not impose more than a small burden on interstate or foreign commerce, and (3) property taxes on vessels or watercraft, other than vessels or watercraft that are primarily engaged in foreign commerce if those taxes are permissible under the United States Constitution." Id.
The vessel inventory and public launch fees are unquestionably fees "levied upon [a] vessel or water craft." See id. And while Section 5(b) does not define "navigable waters," the Tennessee Court of Appeals has stated that "a river is determined to be navigable if it is used or can be made usable for trade or travel." Moscheo v. Polk Cty., No. E2008-01969-COA-R3-CV,
2009 WL 2868754, at *8 (Tenn. Ct. App. Sept. 2, 2009). Applying that "basic standard" for
navigability, the court in Moscheo determined that the Ocoee River was a "navigable water," and thus a privilege tax imposed on consumers participating in commercial whitewater rafting on that river was preempted by 33 U.S.C. § 5(b). Id. at *16. The same conclusion was reached in another Tennessee Court of Appeals decision. See High Country Adventures, Inc. v. Polk Cty., No. E2007-02678-COA-R3-CV, 2008 WL 4853105, at *13 (Tenn. Ct. App. Nov. 10, 2008). Since the proposed regulations purport to encompass "any waters within the territorial limits of [Tennessee], except privately owned ponds or lakes not used for commercial purposes," the vessel inventory and public launch fees certainly run afoul of Section 5(b)' s prohibition.
Furthermore, none of the exceptions are met, let alone discussed in the Proposed Rules. The fees are clearly not port or harbor dues; they would not be used solely to pay the cost of service to the vessels; they do not enhance safety and efficiency of interstate commerce; and the TWRA has presented the vessel inventory fee as a regulatory fee, not a property tax. In the absence of any applicable exceptions, the vessel inventory and public launch fees are preempted by 33 U.S.C. § 5(b) and may not be lawfully imposed.
c. Launch Fees and Other Requirements May Not Be Imposed by TWRA or the Commission on Property Owned or Controlled by A Separate Governmental Entity
The Proposed Rules seek to impose fees on "each NMV launched at a public access area," said area being defined as "a government-owned area open to the public that grants the public access to the waters of Tennessee such as a boat ramp or canoe/kayak steps." 1660-004-
02-.01(6), 1660-004-02-.04. The Proposed Rules also seek to require commercial outfitters to provide TWRA with information regarding commercial outfitters' use of non-TWRA owned or controlled areas, see 1660-04-0l.04(4)(c). By attempting to impose these requirements, TWRA and/or the Commission wrongly assumes they have the legal authority to control access to all the state's waters at access points owned and managed by other government agencies even when they are not providing any services and do not have an agreement with the other government agency. "Administrative agencies have only such power as is granted them by statute, and any action which is not authorized by the statutes is a nullity." Gen. Portland, Inc. v. Chattanooga• Hamilton Cty. Air Pollution Control Bd., 560 S.W.2d 910, 913 (Tenn. Ct. App. 1976). An agency's authority to impose regulations "must have its source in the language of the statutes themselves." Wayne Cty. v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 282 (Tenn. Ct. App. 1988). Neither T.C.A. § 69-9-227 nor any other statutory authority governing
TWRA and/or the Commission contain a provision authorizing the Commission and/or TWRA to control access points owned and managed by other governmental agencies. Therefore, the Commission's and/or TWRA's statutory authority would be exceeded by the imposition of launch fees or other requirements with respect to non-TWRA owned and operated areas.
III. Additional TPA Comments on the Proposed Rules
TPA respectfully submits the following additional comments regarding each section of the Proposed Rules.
Chapter1660-04-01
Rules and Regulations Governing Commercial Non-Motorized Vessel Outfitters
• 1160-04-01-.01 PURPOSE
In general, we do not believe the purposes contained in this section can be fully carried out, to the extent that the issues cited are even relevant, by only regulating commercial paddlecraft operators. A significant but undetermined portion of the use on most rivers and lakes is generated by private, unregulated paddlers and fishermen. Businesses renting powerboats and jet skis are not even subject to regulations like those proposed for paddlesports businesses. In the absence of regulations on other users, the focus and intensity of regulations on commercial paddlecraft outfitters are likely to be disproportionate to the impacts of their operations.
TPA recommends that "maximum" be struck from "To promote the maximum safety of the public." "Maximum" means to the greatest extent possible - which implies a never-ending series of regulatory requirements that other users are not subject to and would likely unnecessarily degrade the recreational experience for the outfitted public without significantly improving safety.
• 1660-04-01-.02 DEFINITIONS
In (4), a subset of commercial outfitters operating in the state are excluded from the definition of "Commercial NMV Outfitter" - and thus exempt from regulation under the Proposed Rules. Exempt commercial outfitters include permitted operators in and adjacent to the Cherokee National Forest and those operating in waters wholly contained within certain state• owned and operated properties. While we understand why Forest Service permit holders would be exempted to some extent, this provision undermines the legality of the Proposed Rules since such exemption would be contrary to T.C.A. § 69-9-209, which provides, among other things, that "the commission shall establish uniform regulations governing . . . the operation of the vessels subject to this chapter so that any vessel complying with the regulations may be operated with equal freedom, or under similar requirements, upon all waters of Tennessee."
(6) defines "public access" upon which some regulations and fees are based. As discussed above, we do not believe the Commission or TWRA has any legal authority to regulate access and charge launch fees at access points that it does not own or manage under agreement with other agencies. That said, "public access" includes any "government-owned area open to
the public that grants the public access to the water of Tennessee such as a boat ramp or canoe and kayak steps." This definition should also be modified to define public access points as providing specific amenities, such as parking, ramps or kayak steps and signage. "Such as a boat ramp or kayak steps" appears to limit this definition to those types of access points and not to slides, highway rights of ways, and bridge revetment walls.
We also suggest eliminating the requirement to report "water rescues" and instead urge reliance on reports similar to those required by fishing guides and the Coast Guard criteria for accidents. In any event, "water rescues" should be further defined, e.g., the definition should not include every capsize by a NMV. Indeed, the reporting requirement as proposed by the TWRA could be interpreted to cover any kind of minor capsize by a rental customer and therefore is unreasonably broad. Failure to account for every minor incident could be grounds for not renewing the proposed permit. This is an example of why a much more deliberate approach to the development of these regulations is necessary for them to be appropriate and address legitimate issues.
• 1660-04-.03 OPERATING REQUIREMENTS
Items (2), (3), and (5) are inappropriate and should be deleted.
o ( 1) requires a commercial NMV outfitter to possess a valid operating permit issued by the TWRA. We are concerned about the one-year term of a permit which may not be renewed based on subjective criteria or arbitrary determinations. This uncertainty introduces a significant negative dynamic into business operations. We suggest making the term longer to avoid some of that uncertainty by expanding the term to at least three (3) years, but preferably to five (5) years. While there would still be an annual fee, registration would only be required every three to five years instead of annually.
o (2) includes poorly-defined and unnecessary record-keeping requirements. 2(a) requires reporting of the number of craft leased or rented each day. This requirement should be deleted for several reasons, including that the number of craft leased or rented is confidential business information that should not be made available to the public. As an alternative, the TWRA should consider asking how many vehicles by type that the outfitter expects to be accessing TWRA-owned or controlled ramps and launch areas. 2(b) requires reporting of accidents and/or casualties. This definition should be refined to be consistent with U.S. Coast Guard reporting requirements. 2(c) requires reporting the number of water rescues; however, "water rescue" is poorly defined and could be subjectively applied, so we urge its elimination. Instead, reporting should rely on standard accident reporting consistent with U.S. Coast Guard requirements. These reporting requirements are overbroad and exceed the statutory authority granted to TWRA.
o (3) requires providing "any such requested information" to the TWRA. While
"any such requested information" appears to mean "records maintained by
commercial NMV outfitters pertaining to these rules," some of the
nebulous definitions we cite create uncertainty with regard to the records the outfitter is required to maintain.
o (4) prohibits rental ofNMV to an individual less than 16 years of age unless the individual is supervised by someone at least 18 years of age. Since "supervised" is not defined, this requirement is inappropriate. Once on the water, for example,
adults may separate from youths and not be in the immediate vicinity of them at
all times during a paddling excursion. The obligation of the NMV outfitter should only be to ascertain that an adult is present with an individual or group of minors age 16 or younger at the time of rental, not to ensure "supervision" beyond the point of the orientation to the customers. Without clarity on this and several other definitions, the TWRA rules create significant and unnecessary liability and uncertainty for the NMV outfitter.
o (5) greatly expands TWRA powers to control activities on private land owned by permit holders within the river corridor. (5) states: "A commercial NMV outfitter shall not cause any environmental damage to the river and/or the river corridor and shall accomplish prompt clean-up and policing of litter generated by employees or guests." We are concerned about the expansive powers implied by the provision, which could be extended to an outfitter's riverside property and to "any" activity a TWRA officer considers to be damage to the river corridor. This provision should be confined to environmental damage to the river and to the property of others.
• 1660-04-01-.04 APPLICATION TO THE TENNESSEE WILDLIFE RESOURCES AGENCY
This section pertains to the application for an annual operating permit required by this rule, which we oppose. We instead recommend a registration of no less than three years for outfitters that is not contingent on nebulous definitions and sweeping new powers to deny a registration (or permit). For example, the Proposed Rules provide that a permit may be denied or not renewed "for failure to provide the necessary application information." These provisions should be revised to eliminate uncertainties and subjective interpretations, as we point out in other sections.
(4)(a) should be amended to read "(a) The number of vessels owned by the commercial NMV vessel outfitter that are available to lease or rent at the time of the application." Rental fleets will vary significantly throughout the year. If TWRA collects information on the number of rental NMV by type, those numbers should be broad ranges, such as:
• < 100
• 100to250
• 251 to 500
• > 500.
(4)(b) asks the applicant to provide a list of the waterways on which it operates if known. This should be amended by inserting "intends to operate on a regular basis" so that it reads: "The
waterways of the state on which the applicant intends to operate on a regular basis." "Regular basis" could be defined as more than a dozen times per year. It should be noted that many businesses renting NMV do not know where their customers are taking the craft and therefore cannot ascertain the areas of operation or which public access points are being used.
(4)(c) asks the applicant to list any public access area utilized by the applicant. As written, it appears to be an absolute requirement in the permit application, meaning that any deviation from the areas listed in the application could result in non-renewal of the permit as provided in 1660-04-01-.08 (Nonrenewal of Permit). A customer of a NMV outfitter should not be restricted to those public access areas included in the outfitter's application. We recommend a modification to read "(c) Any public access areas that the applicant intends to utilize on a regular basis with the applicant's vehicles." Also, the TWRA should clarify that the applicant will not be restricted to the locations listed on its permit application. TWRA may ask for an update on public access areas if an outfitter starts up significant, new operations in areas that were not previously listed.
(4)(d) should be revised to "Estimated months of operation" so that a NMV outfitter should be not constrained if it decides to stay open longer than the period listed on its application.
(4)(h) proof of insurance should specify an insurance certificate. Keep in mind that insurance policies in effect at the time of the application are likely to expire before the start of the next season since the term of the policy usually starts in the year in which most of the rental services occur. Therefore, this requirement itself may not be proof of insurance for the upcoming season but will be proof of insurance at the time the application is submitted. This proof of insurance requirement should only apply to outfitters utilizing TWRA-owned or managed launch areas and should be adjusted to clarify what constitutes proof of insurance, such as requiring a certificate of insurance.
Section (5) requires notification of the transfer of the permit upon the sale of the business. While this may be an appropriate practice in general, it is unclear if the buyer of a business is expected to receive a permit prior to beginning operation or if the buyer can just assume that a permit will be sent and that operations may proceed. This is another reason that we suggest a registration instead of a permit. It should be noted that insurance cannot usually be obtained until such time as a sale is complete and the insured has an insurable iriterest.
Section (7) relates to the requirement for a decal fee. We do not support the requirement for a decal on each rental boat and believe this Section should be deleted.
• 1660-04-01-.06 SAFETY REQUIREMENTS AND PROCEDURES
Our first comment on safety requirements relates to the standards set forth in Section (8)'s requirement that the outfitter conduct a safety seminar. While a· safety briefing or orientation is appropriate, "seminar" is not the right word since it generally conveys something
more than the orientation given to customers prior to renting a NMV. We recommend "safety briefing."
The content requirements in (8) are of even greater concern. Some of the information listed for inclusion in the "description of the waterway" is unreasonable. Failure to include these issues in a "seminar" could create liability for the operator as an error or omission in the event of a related claim. For example, it is impossible to provide complete information on "shoals, shallows, riffles or known obstructions" without mentioning every riffle and rock in the river. Additionally, as has occurred in the past, trees can fall into a river at any time, creating a hazard, which the outfitter may not learn about immediately. These are inherent risks of participating in the activity. While the outfitter can make their best efforts to inform guests of known, significant hazards, listing such detailed requirements creates an unrealistic expectation and may create unnecessary liability without enhancing safety.
Most outfitters cannot, with certainty, describe "any generation issues" without knowing precisely what the generation times and flows are going to be. "Any" implies "all" and is unrealistic. Notification that changes in the flow related to generation may occur and that notice of those changes cannot be provided while the customers are on the water is a more appropriate description.
The requirement in (8)( d) to provide information on "swimming in moving water" is not appropriate for lake use. This is a technique used in whitewater but is not really appropriate information for many slow-moving rivers.
(9) requires the TWRA's approval of materials and methods used in safety instruction. It is unclear how and when TWRA is going to accomplish this approval process. We recommend that TWRA instead include a general statement that the materials or methods used in customer briefings or orientations should be consistent with industry best practices and will not be subject to TWRA approval.
• 1660-04-01-.07 TRANSPORTATION
(1) restricts commercial NMV outfitters and their customers at public access areas controlled by TWRA to areas approved by the TWRA. We are very much concerned that these restrictions will limit access. We suggest, in lieu of a boat inventory fee and other fees, that parking hangtags be provided to registered outfitters as part of any permit or registration for each vehicle accessing TWRA ramps and parking areas. That hangtag ensures that the outfitters will have access to TWRA-managed public access areas. We also suggest providing signage regarding alternative areas for launching and taking out NMV to avoid congestion at boat ramps.
(1) also introduces the concept of a "private NMV," exempting such NMVs from the parking restrictions. It is unclear what a "private NMV" might be, so it is difficult to know exactly what vehicles are subject to this provision.
(2) and (3), which incorporate by reference Department of Safety Rules and Regulations regarding commercial vehicles and transportation of passengers, should be deleted. Outfitters are already subject to these rules and TWRA need not incorporate them into its rules. Furthermore, TWRA should delete these provisions because it lacks the authority to enforce rules and regulations of another Tennessee department or agency. See Faust v. Metro. Gov 't of Nashville, 206 S.W.3d 475, 498 (Tenn. Ct. App. 2006) ("No administrative agency can exercise control over matters which the legislature has not seen fit to delegate to it and actions beyond the authority of the agency can have no force or effect.").
• 1660-04-01-.08 NONRENEWAL OF PERMIT
Some of the requirements in this section are overly broad and we do not believe are what the legislature intended when it granted the Commission and/or TWRA the authority to establish permits. These provisions alone are sufficient for us to oppose the approval of these regulations. For example, we oppose a nonrenewable permit and suggest instead that a three-year to five-year registration be required, which is automatically issued upon payment of fees. Businesses simply cannot operate on a one-year permit that is revocable for spurious or arbitrary reasons. According to .08, permits may not be renewed for:
(a) Failure to pay the requisite fees;
(b) Failure to provide the necessary application information;
(c) Failure to maintain the requisite information and documentation; or
(d) Failure to produce and/or allow for the inspection of any information requested by theTWRA.
As stated above, the application requirements are overly broad and the provisions in (a), (b), (c), and (d) should be modified to avoid an arbitrary decision to not renew a permit.
Section 8(d)'s requirement that the NMV outfitter allow inspection of "any" information requested by the TWRA is overly broad and should be limited to information required by the registration. Proprietary, confidential business information may become a public record as a result of this requirement - such information should be recognized and protected.
As we state in other sections, "necessary application information" requires predictions of the number of craft to be in service at all times, locations of operations, and other criteria that under normal operations require more flexibility on the part of the outfitter. Nor is the reporting requirement for "water rescues" defined appropriately, since it could be the basis for nonrenewal if there is a disagreement over what constitutes a "rescue" and a TWRA officer cites "failure to produce ... any information requested by the TWRA" as the reason for nonrenewal of the NMV outfitter's permit.
Chapter1660-04-02
Rules and Regulations Governing Permitand Access Fees
• 1660-04-02-.01 DEFINITIONS
(6) "Public access area" is defined as follows: "Public access area means a government• owned area open to the public that grants the public access to the waters of Tennessee such as a boat ramp or canoe/kayak paddles steps." In the context of this rule, TWRA is effectively taking control of launch areas that it does not own or control, such as city or county-owned ramps, TVA access areas, and areas controlled by other state agencies. This is an overly broad assertion of power by the TWRA that we do not believe is lawful nor was it intended by the General Assembly. TWRA should state the legal basis for assuming control and power over ramps that it does not own or withdraw and modify this definition. Even if TWRA provides a credit on launch fees at city or county-owned ramps, the assumption is that TWRA is somehow entitled to launch fees in their absence, equating to a fee on paddling the waters of the State, which we also assert is unlawful.
The modification to this definition of public access area should read: "Public access area means a TWRA-owned area or an area not owned by the TWRA which is managed under an agreement with the owner, which is open to the public and grants the public access to the waters of Tennessee such as a boat ramp or canoe/kayak paddles steps."
• 1660-04-02-.02 GENERAL PERMITFEE
We are opposed to the permit and strongly urge the TWRA to adopt a three-year to five•
year registration instead with a fee similar to that for fishing guides and commercial fishermen.
$244 paid annually for each year of the registration is acceptable to TPA.
• 1660-04-02-.03 VESSEL INVENTORY FEE
We believe this fee on inventory is inappropriate and should be deleted. It is another form of a personal property tax and therefore is duplicative and unnecessary. It was not anticipated by the General Assembly as evidenced by the fiscal note accompanying the authorizing legislation. See Attachment A at 2.
• 1660-04-02-.04 PUBLIC ACCESS LAUNCH FEE
We believe this section should be deleted. TWRA assumes it has the legal authority to control access to all the state's waters at access points owned and managed by other agencies even when it is not providing any significant services. This is a thinly disguised fee on paddling navigable waters levied on the vessels and customers of NMV outfitters and is unlawful.
The registration fee should cover the application of the permit and the administration of safety regulations.
Additional Section: PARKING PASS
We urge authorization of a parking pass for vehicles of registered NMV outfitters accessing and parking at TWRA-owned or managed public access areas. Possession of this parking pass would entitle the outfitter holders to access TWRA-managed areas. The parking pass for vehicles should be a hangtag which can be transferred from vehicle to vehicle. The parking pass for trailers should be a sticker or decal. All commercial vehicles, including those operated by commercial fishermen and fishing guides, should be required to have these passes.
* * *
We thank you for the opportunity to present these comments, and look forward to the rulemaking hearing on January 18, 2019. Please feel free to contact me if you have any questions.
