81R10395 TRH-F

By: Bonnen H.B. No. 3306

A BILL TO BE ENTITLED

AN ACT

relating to the removal and disposal of certain vessels and structures in or on coastal waters.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 40.003, Natural Resources Code, is amended by adding Subdivisions (16-a) and (16-b) to read as follows:

(16-a) "No intrinsic value" means that the cost of removal and disposal of a vessel or structure that has been abandoned or left in or on coastal waters exceeds the salvage value of the vessel or structure.

(16-b) "Numbered vessel" means a vessel:

(A) for which a certificate of number has been awarded by this state as required by Chapter 31, Parks and Wildlife Code; or

(B) covered by a number in full force and effect awarded under federal law or a federally approved numbering system of another state.

SECTION 2. Section 40.108, Natural Resources Code, is amended by amending Subsections (b) and (d) and adding Subsections (d-1), (d-2), and (d-3) to read as follows:

(b) The commissioner may remove and dispose of or contract for the removal and disposal of any vessel or structure described in Subsection (a) and may recover the costs of removal, storage, and disposal from the owner or operator of the vessel or structure. Except as provided by Subsection (d-1), the [The] recovered costs shall be deposited to the credit of the coastal protection fund established by Section 40.151.

(d) The commissioner may dispose of the vessel or structure in any reasonable and environmentally sound manner. The commissioner shall give preference to disposal options that generate a monetary benefit from the vessel or structure. If no value may be generated from the vessel or structure, the commissioner shall select the least costly method. Except as provided by Subsection (d-1), proceeds [Proceeds] from the sale of the vessel or structure shall be used for removal, storage, and disposal costs, and any proceeds in excess of the cost of removal, storage, and disposal shall be deposited to the credit of the coastal protection fund.

(d-1) If the commissioner has actual notice that a person holds a security interest in a vessel or structure subject to removal or disposal under this section, notice must be given to the person in the manner provided by Section 40.254. If the vessel or structure is not removed within a reasonable time as specified in the preliminary report under Section 40.254, the commissioner may remove and dispose of, or contract for the removal and disposal of, any vessel or structure described by Subsection (a). The interest of the state in recovering removal, storage, and disposal costs shall have priority over the interest of the holder of a security interest in a vessel or structure described by Subsection (a). Proceeds from the sale of the vessel or structure in excess of the cost of removal, storage, and disposal shall be paid to the holder of the security interest in the vessel or structure in an amount not to exceed the amount necessary to satisfy the secured debt.

(d-2) For purposes of this section, the term "structure" includes a vehicle as defined by Section 502.001, Transportation Code, if the vehicle is:

(1) located in coastal waters; and

(2) in a wrecked, derelict, or substantially dismantled condition.

(d-3) The commissioner shall make information on abandoned vessels and structures accessible on the commission's Internet website and in any other medium, as determined by the commission, to the public and to a person receiving notice as required by Section 40.254.

SECTION 3. Section 40.254, Natural Resources Code, is amended by amending Subsections (b-1), (c-1), (d), (e), (f), and (g) and adding Subsection (c-2) to read as follows:

(b-1) The preliminary report must:

(1) state the facts that support the commissioner's conclusion;

(2) in the case of a derelict vessel or structure, determine whether the vessel or structure is considered:

(A) a numbered vessel; or

(B) a vessel or structure that has no intrinsic value;

(3) recommend:

(A) that a penalty be imposed;

(B) that a certificate be suspended;

(C) that a derelict vessel or structure be removed or disposed of; or

(D) any combination of remedies under Paragraphs (A)-(C); and

(4) [(3)] if a penalty under Subdivision (3)(A) [(2)(A)] is recommended, recommend the amount of the penalty.

(c-1) The notice required by Subsection (c) must be given:

(1) by service in person or by registered or certified mail, return receipt requested; or

(2) if personal service cannot be obtained or the address of the person is unknown, by posting a copy of the notice on the facility, vessel, or structure and by publishing notice on the Internet website of the General Land Office and in the Texas Register [a newspaper with general circulation in the county in which the facility, vessel, or structure is located] at least two times within 10 consecutive days.

(c-2) The notice required by Subsection (c) must be given by posting a copy of the notice on a derelict vessel or structure if the derelict vessel or structure has been determined to have no intrinsic value under Subsection (b-1).

(d) Not later than the 20th day after the date on which the notice is served, the person charged with the violation or a person claiming ownership of a vessel or structure for which notice is posted under Subsection (c-2) may consent in writing to the report, including the commissioner's recommendations, or make a written request for a hearing.

(e)(1) If the person charged with the violation or a person claiming ownership of a vessel for which notice is posted under Subsection (c-2) consents to the commissioner's recommendations or does not timely respond to the notice, the commissioner by order shall take the recommended action or order a hearing to be held on the findings and recommendations in the report.

(2) If the commissioner takes the recommended action, the commissioner shall serve written notice of the decision to the person in the same manner as provided for notice of the preliminary report. The person must comply with the order, including a removal order, and pay any penalty assessed.

(f)(1) If the person charged with the violation or a person claiming ownership of a vessel for which notice is posted under Subsection (c-2) requests a hearing, the commissioner shall order a hearing and shall give written notice of that hearing.

(2) The hearing shall be held by a hearing examiner designated by the commissioner.

(3) The hearing examiner shall make findings of fact and promptly issue to the commissioner a written decision as to the occurrence of the violation and a recommendation on suspension of the discharge prevention and response certificate, the amount of any proposed penalty, the removal or disposal of the derelict vessel or structure, or any combination of those remedies.

(4) Based on the findings of fact and the recommendations of the hearing examiner, the commissioner by order may:

(A) find that a violation has occurred and assess a penalty;

(B) suspend a discharge prevention and response certificate;

(C) order the removal or disposal of a derelict vessel or structure;

(D) order any combination of those remedies; or

(E) find that no violation occurred.

(5) The commissioner shall serve notice to the person of the commissioner's decision. If the commissioner finds that a violation has occurred and assesses a penalty, suspends a discharge prevention and response certificate, or orders the removal or disposal of a derelict vessel or structure, the commissioner shall give to the person written notice of:

(A) the commissioner's findings;

(B) the amount of the penalty or the terms of the suspension or removal or disposal; and

(C) the person's right to judicial review of the commissioner's order.

(g)(1) Not later than the 30th day after the date on which the commissioner's order is final, the person charged with the violation or a person claiming ownership of a vessel for which notice is posted under Subsection (c-2) shall comply with the order or file a petition for judicial review.

(2) On failure of the person to comply with the order or file a petition for judicial review, the commissioner may refer the matter to the attorney general for collection and enforcement.

(3) Judicial review of the order or decision of the commissioner shall be under Subchapter G, Chapter 2001, Government Code.

SECTION 4. This Act takes effect September 1, 2009.