Presenter: Gene McCarty

Commission Agenda Item No. 3
Action
Legislative Rule Review
November 2000

I. Discussion: House Bill 1, 75th Legislature, Regular Session, 1997, Article IX, Sec. 167, directs each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule, provided the agency has not acted on the rule in the interim. The Act further requires that each agency readopting a rule certify that the reasons for the rule continue to exist. Due to the cyclical or annual nature of much of the department’s rulemaking activity, the legislative mandate is fulfilled on a continual basis (e.g., Statewide Hunting and Fishing Proclamation, Migratory Game Bird Proclamation, etc.). Other regulations, however, do fall under the purview of the Act.

The department in August of 1998 published in the Texas Register a Notice of Plan to Review, in which the agency outlined a proposed schedule for undertaking the required review. The department subsequently published in the October 6, 2000, issue of the Texas Register a Notice of Intent to Review, in which a suite of selected chapters of agency regulations were proposed for repeal, amendment, or re-adoption (located at Exhibit A). The rule text of sections being amended appears at Exhibit B. Regulations proposed for repeal are either redundant of existing state law or unnecessary, as noted. Regulations proposed for amendment reflect housekeeping-type changes or changes designed to increase their effectiveness or usefulness. Regulations proposed for readoption are retained on the basis of continuing need and the determination that the reasons for their existence continue to exist.

II. Recommendation: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts, with changes to the proposed text as published in the October 6, 2000, issue of the Texas Register (25 TexReg 10198):

  1. Within 31 TAC Chapter 51 (Executive), the repeal of Subchapter B (Practice and Procedure in Contested Cases), and Subchapter C (Easement Requests and Unauthorized Easement Activity); the repeal of 51.1, 51.3, and 51.4, an amendment to 51.2, and new 51.3 within Subchapter A (Procedures for Adoption of Rules); an amendment to 51.131 within Subchapter D (Department Litigation); and an amendment to 51.162 within Subchapter G (Nonprofit Organizations), and the readoption of all other sections within Chapter 51.
  2. The readoption of the contents of Chapter 52 (Wildlife and Fisheries).
  3. The readoption of the contents of Chapter 55 (Law Enforcement).
  4. Within Chapter 61 (Design and Construction), an amendment to §61.22 within Subchapter A (Contracts for Public Works) and the readoption of all other sections within Chapter 61."

Attachments - 3

  1. Exhibit A - Notice of Intent to Review
  2. Exhibit B - Proposed Amendments
  3. Exhibit C - Fiscal Note (Available upon request)

Commission Agenda Item No. 3
Exhibit A

Notice of Intent to Review

The Texas Parks and Wildlife Department files this notice of intention to review Texas Administrative Code Title 31, Part II, as follows:

Chapter 51: Executive

Subchapter A: Procedures for Adoption of Rules.

§51.1. Definitions

§51.2. Petitions for Rulemaking

§51.3. Consideration and Disposition

§51.4. Subsequent Petition

NOTE: The contents of this subchapter are proposed for rule action elsewhere in this issue.

Subchapter B: Practice and Procedure in Contested Cases.

§51.21. Definitions

§51.22. Scope of Rules

§51.23. Construction of Rules

§51.24. Licenses

§51.25. Contested Proceedings

§51.26. Uncontested Proceedings

§51.27. Place and Nature of Hearings

§51.28. Hearing Officer

§51.29. Conduct

§51.30. Parties in Interest

§51.31. Appearances

§51.32. Informal Disposition

§51.33. Filing Documents

§51.34. Examination by Director

§51.35. Pleadings

§51.36. Motions

§51.37. Amendments

§51.38. Order of Procedure

§51.39. Reporter and Transcript

§51.40. Formal Exceptions

§51.41. Rules of Evidence

§51.42. Witnesses

§51.43. Documentary Evidence

§51.44. Official Notice of Facts

§51.45. Exhibits

§51.46. Offer of Proof

§51.47. Depositions

§51.48. Subpoenas

§51.49. Submission to Director and Commission

§51.50. Decisions and Orders

§51.51. Administrative Finality

§51.52. Motions for Rehearing

§51.53. The Record

§51.54. Ex Parte Consultations

§51.55. Show Cause Orders

§51.56. Licenses of Continuing Nature

§51.57. Effective Date

§51.60. Authority To Contract

NOTE: The contents of this subchapter are proposed for repeal elsewhere in this issue.

Subchapter C: Easement Requests and Unauthorized Easement Activity.

§51.92. Easement Requests

NOTE: The contents of this subchapter are proposed for repeal elsewhere in this issue.

Subchapter D: Department Litigation.

51.131. Litigation and Other Legal ActionNOTE: The contents of this subchapter are proposed for amendment elsewhere in this issue.

Subchapter E: Sick Leave Pool.

§51.141. Sick Leave Pool.

Subchapter F: Use of Uninscribed Vehicles

§51.151 Use of Uninscribed Vehicles

Subchapter G: Nonprofit Organizations51.161. Definitions51.162. Closely Related Nonprofit Organizations

51.163. Conflict of Interest, Performance of Services, and Use of Department Facilities

51.164. Gifts to the Department

NOTE: Section 51.162 is proposed for amendment elsewhere in this issue.

Chapter 52: WILDLIFE AND FISHERIES

52.101. Purpose and Scope

52.102. Definitions

52.103. Goals

52.104. Policy of the Department

52.105. Powers and Duties of the Executive Director

52.201. Departmental Stocking under Federal Funding Guidelines

52.202. Conditions for Stockings Made or Authorized by the Department

52.301. Non-Federally funded Departmental Stocking

52.401. Fish Stocking in Private Waters

CHAPTER 55. LAW ENFORCEMENTSubchapter B. Seizure, Care, and Disposition of Contraband§55.10. Application§55.12. Definitions§55.14. Notice of Forfeiture Proceeding

§55.16. Property Subject to Lien or Perfected Security Instrument

§55.18. Care and Custody of Seized Property Pending Court Hearing

§55.20. Setting of Forfeiture Hearing

Subchapter C. Deputy and Special Game Warden Commission

§55.61. Definitions

§55.62. Deputy Game Wardens

§55.63. Special Game Wardens

§55.64. Additional Requirements

Subchapter D. Operation Game Thief Fund

§55.111. Definitions

§55.112. Donations and Disbursements

§55.113. Reporting Violations; Eligibility of Applicant

§55.114. Rewards: Payment

§55.115. Limitations: Unclaimed Rewards

§55.116. Death Benefits: Payment

Subchapter E. Permits for Aerial Management of Wildlife and Exotic Species§55.141. Applicability§55.142. Definitions§55.143. General Rules§55.144. Application for Permit

§55.145. Issuance of Permit

§55.146. Period of Validity of Permit

§55.147. Amendment of Permit

§55.148. Renewal of Permit

§55.149. Permit Not Transferable

§55.150. Permit Fee

§55.151. Landowner Authorization

§55.152. Reports

§55.153. Penalty

Subchapter G. Boat Speed Limit and Buoy Standard

§55.301. Application

§55.302. Definitions

§55.303. General Rules

§55.304. System of Markers

§55.305. Penalties

Subchapter I. Disposition of Dangerous Wild Animals §55.501. Application

§55.503. Disposition of Live Animals

§55.505. Disposition of Carcass, Hide, or Part of Animal, or Product Made from Animal

Subchapter J. Mandatory Hunter Education Program

§55.603. Hunter Education Course and Instructors

§55.605. Hunter Education Requirements

§55.607. Other Non-Certified Persons

§55.609. Hunter Education Fees

Subchapter K. Mandatory Boater Education Program§55.701. Boater Education Program§55.703. Boater Education Requirements§55.705. Boater Education Exemptions

§55.707. Effective Date

Subchapter L. Marine Safety Enforcement – Training and Certification Standards§55.801. Application §55.802. Definitions§55.803. General Rules§55.804. Marine Safety Enforcement Officer Course Standards §55.805. Marine Safety Enforcement Officer Instructor Course Standards

§55.806. Reporting Requirements

§55.807. Fees

CHAPTER 61. DESIGN AND CONSTRUCTIONSubchapter A. Contracts for Public Works§61.21. General§61.22. Soliciting Bids§61.23. Submission and Receipts of Bids

§61.24. Award of Bids

§61.25. Solicitation, Evaluation, and Selection of Proposals

§61.26. Award in Response to Proposals

NOTE: Section 61.22 is proposed for amendment elsewhere in this issue.

Subchapter B. Procedural Guide for Land and Water Conservation Fund Program

§61.81. Application Procedures

Subchapter C. Boat Ramp Construction and Rehabilitation

§61.101. General

§61.102. Fees

§61.103. Requirements of Applicants

Subchapter D. Guidelines for Administration of Locak Land and Water Conservation Fund Projects

§61.121. Policy

Subchapter E. Guidelines for Administration of Texas Local Parks, Recreation, and Open Space Program§61.131.Policy§61.132. Texas Recreation and Parks Account Grants Manual§61.133. Grants for Outdoor Recreation Programs

§61.134. Grants for Indoor Recreation Programs

§61.135. Grants for Community Outdoor Outreach Programs

This review is pursuant to the Texas Government Code, §2001.039, and the General Appropriations Act of 1997, Article IX, §167, 75th Legislature, Regular Session.

The Commission will accept comments for 30 days following the publication of this notice in the Texas Register as to whether the reasons for adopting the sections under review continue to exist and to determine whether the rule reflects current legal, policy, and procedural considerations. Final consideration of this rules review is scheduled for the Parks and Wildlife Commission on November 9, 2000.

Any questions or written comments pertaining to this notice of intention to review should be directed to Gene McCarty, Chief of Staff, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, TX , 78744. Any proposed changes to rules as a result of the review will be published in the Proposed Rules Section of the Texas Register and will be open for an additional 30 day public comment period prior to final adoption or repeal of the Commission.


Commission Agenda Item No. 3
Exhibit B

Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §§51.1, 51.3 and 51.4, an amendment to §51.2, and new §51.3, concerning petitions for rulemaking. The amendment, repeals, and new rule would revamp the department’s procedures for processing petitions for rulemaking under Government Code, §2001.021, which requires each state agency to establish such procedures by rule. The department’s current regulations have proved to be problematic, in that the length of time between commission meetings occasionally causes a conflict with the requirement that the commission act upon petitions within 60 days. To remedy the situation, the department proposes to refer petitions to the appropriate staff for evaluation and response within 60 days, with simultaneous notification of the commission. Should a member of the commission determine that further investigation or action is necessary, a petition would then be placed on the next commission agenda for action.

2. Fiscal Note.

Ms. Judy Doran, staff attorney, has determined that for each of the first five years that the proposed rules are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rules.

3. Public Benefit - Cost Note.

Ms. Doran further has determined that for each of the first five years the proposed rules are in effect:

(A) The public benefit anticipated as a result of enforcing the rules as proposed will be the elimination of conflict between regulations concerning petitions for rulemaking and the meeting schedule of the commission, and the timely address and disposition of rulemaking petitions.

(B) There will be no effect on small businesses. There are no economic costs to persons required to comply with the rules as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by Government Code, §2001.022, as this agency has determined that the rules as proposed will not impact local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389- or 1-800-792-1112.

5. Statutory Authority.

The repeals, amendment, and new rule are proposed under Government Code, §2001.021, which requires each state agency by rule to prescribe the form for petitions and the procedure for submission, consideration, and disposition.

The repeals, amendment, and new rule affect Government Code, Chapter 2001.

§51.1. Definitions

§51.3. Consideration and Disposition

§51.4. Subsequent Petition

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

The amendment and new rule are proposed under Government Code, §2001.021, which requires each state agency by rule to prescribe the form for petitions and the procedure for submission, consideration, and disposition.

The amendment and new rule affect Government Code, Chapter 2001.

§51.2 Petitions for Rulemaking.

(a) Any person, by submitting an administratively complete petition as set forth in subsection (b) of this section, may request that the department adopt, amend, or repeal [submit a petition to the department requesting the adoption, amendment, or repeal of] a rule. Petitions will be deemed submitted only when actually received in written form by the executive director.

(b) A petition shall be deemed administratively complete when the following conditions have been satisfied. A [Each] petition shall [will]:

(1) clearly state the complete text of the proposed rule or amendment, or describe the rule to be repealed together with the text to be repealed;

(2) explain the reason or justification for the requested regulatory action [adoption, amendment or repeal of the rule]; and

(3) be signed by at least one person and be accompanied by [individual together with] a mailing address and telephone number for that person [the petitioner].

(c) The department may request any additional information deemed necessary to adequately consider the proposal submitted.

(d) A petition that is not administratively complete shall be returned to the petitioner with a written explanation of its deficiencies.

§ 51.3 Consideration and Disposition.

(a) The executive director, upon receipt of an administratively complete petition, shall refer the petition to the appropriate agency personnel for review and recommended action.

(b) Within 10 days of receiving a petition from the executive director, agency personnel shall make a recommendation to either deny the petition or initiate rulemaking.

(c) The executive director shall forward to each member of the commission a copy of the petition and the staff recommendation.

(d) If a member of the commission determines that further deliberations are warranted, the executive director shall place the petition on the agenda of the commission and notify the petitioner in writing of the date, time, and place of the commission meeting at which the petition will be deliberated.

(e) If, by the 60th day following the submission of the petition, the staff recommendation has not been placed on the agenda of the commission, the petition is denied and the department shall notify the petitioner in writing of the staff recommendation and final disposition of the petition.

(f) In the event that rulemaking is to be initiated as a result of a petition involving any portion of Chapter 65, Subchapter A, of this title (relating to Statewide Hunting and Fishing Proclamation), the department may defer the rulemaking activity until such time as it initiates other rulemaking activity involving Chapter 65, Subchapter A.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

PROPOSED PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §§51.21-51.57 and 51.60, concerning Practice and Procedure in Contested Cases. The repeals are necessary to eliminate regulations that are redundant of existing statutory law.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the repeals as proposed are in effect, there will be no fiscal implications to local governments as a result of enforcing or administering the repeals.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the repeals as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the repeals as proposed will be the elimination of repetition of statutory law in the regulations of a state agency.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the repeals as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed repeals may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4329 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The repeals are proposed under Parks and Wildlife Code, Chapter §51.21. Definitions.§51.22. Scope of Rules.

§51.23. Construction of Rules.

§51.24. Licenses.

§51.25. Contested Proceedings.

§51.26. Uncontested Proceedings.

§51.27. Place and Nature of Hearings.

§51.28. Hearing Officer.

§51.29. Conduct.

§51.30. Parties in Interest.

§51.31. Appearances.

§51.32. Informal Disposition.

§51.33. Filing Documents.

§51.34. Examination by Director.

§51.35. Pleadings.

§51.36. Motions.

§51.37. Amendments.

§51.38. Order of Procedure.

§51.39. Reporter and Transcript.

§51.40. Formal Exceptions.

§51.41. Rules of Evidence.

§51.42. Witnesses.

§51.43. Documentary Evidence.

§51.44. Official Notice of Facts.

§51.45. Exhibits.

§51.46. Offer of Proof.

§51.47. Depositions.

§51.48. Subpoenas.

§51.49. Submission to Director and Commission.

§51.50. Decisions and Orders.

§51.51. Administrative Finality.

§51.52. Motions for Rehearing.

§51.53. The Record.

§51.54. Ex Parte Consultations.

§51.55. Show Cause Orders.

§51.56. Licenses of Continuing Nature.

§51.57. Effective Date.

§51.60. Authority To Contract.

This agency hereby certifies that the rule as proposed has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

PROPOSED PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §51.92, concerning Easement Requests. The repeal would eliminate a superfluous regulation in that in any contractual relationship concerning an easement, the particulars required by the regulation would be of necessity included in the contract document. The repeal is necessary to eliminate superfluous regulations

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the repeal as proposed is in effect, there will be no fiscal implications to local governments as a result of enforcing or administering the repeal.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the repeal as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the repeal as proposed will be the elimination of repetition of statutory law in the regulations of a state agency.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the repeal as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the repeal as proposed will not have an impact on local economies.

(D) 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 repeal.

4. Request for Public Comments.

Comments on the proposed repeal may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4329 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

§51.92. Easement Requests.

This agency hereby certifies that the repeal as proposed has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

PROPOSED PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes the amendment of §51.131, concerning Litigation and Other Legal Action. The amendment would allow the executive director of the department to name a designee to act on his or her behalf with regard to the provisions of the rules. The amendment is necessary to provide a mechanism for the agency, if necessary, to respond to multiple demands for litigation assistance.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to local governments as a result of enforcing or administering the rule.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the elimination of repetition of statutory law in the regulations of a state agency.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4329 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The amendment is proposed under Government Code, Chapter 2001,

The amendment affects Government Code, Chapter 2000.

§65.131. Litigation and Other Legal Action.

(a) The Parks and Wildlife Commission authorizes the executive director or his or her designee to request assistance from the attorney general's office to bring suit or other legal action as warranted for the following purposes:

(1) to insure a contractual obligation between the department and another party;

(2) to collect a sum of money lawfully due the department;

(3) to enjoin the violation of a statute which the department has a legal duty to enforce;

(4) to require compliance with departmental regulations when enforcement is authorized by law;

(5) to prevent the unauthorized use, damage, or injury to a real or personal property under departmental jurisdiction;

(6) to enforce the provisions of a permit, lease, or easement issued by the department.

(b) The executive director or his or her designee shall keep [keeps] the commission advised on any litigation or other legal action taken by the attorney general's office on behalf of the department.

This agency hereby certifies that the rule as proposed has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

PROPOSED PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §51.162, concerning Closely Related Nonprofit Organizations. The amendment would eliminate the regulatory list of entities designated by the department as being closely related. The department would still maintain the list, amend it from time to time, and make it available to the public; however, the list would not fall within the ambit of the agency’s regulatory activities, where it is not required by function or statute. The amendment is necessary to for the agency to acknowledge and cooperate with nonprofit entities without engaging in rulemaking.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to local governments as a result of enforcing or administering the rule.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the elimination of repetition of statutory law in the regulations of a state agency.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4329 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The amendment is proposed under Government Code, Chapter 2001,

The amendment affects Government Code, Chapter 2000.

§51.162. Closely Related Nonprofit Organizations.

(a) The department will maintain a list of closely related nonprofit organizations and periodically update said list.

[(b) The following organizations have been identified as closely related:]

[(1) Parks and Wildlife Foundation of Texas, Inc.;]

[(2) Operation Share a Lone Star Lunker, Inc.;]

[(3) Washington-on-the-Brazos State Park Association;]

[(4) Kreische Brewery Docent Organization;]

[(5) Admiral Nimitz Foundation;]

[(6) Mission Tejas State Park Association;]

[(7) Brazos Bend State Park Volunteer Organization;]

[(8) Fulton Mansion Docent Organization;]

[(9) Cedar Hill—Friends of Penn Farm;]

[(10) Copper Breaks—Copper Breaks Heritage Foundation;]

[(11) Dinosaur Valley—LDL Foundation;]

[(12) Eisenhower Birthplace—Friends of Eisenhower Birthplace;]

[(13) Government Canyon—Government Canyon Natural History Association;]

[(14) Guadalupe River—Friends of Guadalupe River State Park;]

[(15) Magoffin Home—Casa Magoffin Companeros; and]

[(16) Monahans Sandhills—Friends of Monahans Sandhills State Park.]

(b) [(c)] Funds accepted by closely related nonprofit organizations on behalf of the department are to be managed as a reasonably prudent person would manage funds if acting on their own behalf and such funds are to be accounted for according to generally accepted accounting principles.

(c) [(d)] All closely related nonprofit organizations must enter into a memorandum of agreement with the department which details their responsibilities and duties no later than six months after the effective date of these regulations.

This agency hereby certifies that the rule as proposed has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

PROPOSED PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §61.22, concerning Soliciting Bids. The amendment would eliminate the requirement that the agency advertise construction projects of $100,000 or more in at least one newspaper of general circulation in the state, and replace it with a requirement to solicit through a more widely disseminated Invitation for Bids. The amendment is necessary for the agency to avoid the unproductive pursuit of solicitations through a mechanism that is unused, and in any event, applies only to the General Services Commission. The current regulation was promulgated through a mistaken interpretation of Government Code, §2166.253.

2. Fiscal Note.

Judy Doran, staff attorney, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to local governments as a result of enforcing or administering the rule.

3. Public Benefit - Cost Note.

Ms. Doran has also determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the elimination of repetition of statutory law in the regulations of a state agency.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not have an impact on local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rule may be submitted to Judy Doran, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4329 or 1-800-792-1112 extension 4650 (e-mail: judy.doran@tpwd.state.tx.us)

5. Statutory Authority.

The amendment is proposed under the authority of Parks and Wildlife Code, §11.0171.

The amendment affects Parks and Wildlife Code, Chapter 11.0171.

§61.22. Soliciting Bids.

(a) Projects estimated to cost more than $100,000 will normally be solicited by Invitation for Bid [advertising for bids in one edition of at least one newspaper of general circulation in the state, not later than the seventh day before the last day set for the receipt of bids. The department will make a good faith effort to place the ad in the county or adjoining county where the work will be performed.]

(b) The contractor for projects estimated to cost $100,000 or less may be chosen on a selective basis. This procedure requires that every effort be made to solicit bids from at least three prospective contractors within the area of the work.

(c) The department shall make a good faith effort to solicit bids from historically underutilized businesses.

This agency hereby certifies that the rule as proposed has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on


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