Commission Agenda Item No. 2
Presenter: Ann Bright

Action
Rule Review—Recommended Adoption of Proposed Changes
November 8, 2012

I.       Executive Summary:  TPWD staff is seeking adoption of amendments to Chapters 51 and 61, following the review of TPWD rules in Chapters 51, 52, 55, 60 and 61.  TPWD staff is also seeking adoption of the completed review of rules in those chapters.

II.      Discussion:  Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years.  The review must include an assessment of whether the reasons for initially adopting a rule continue to exist.  Regulations must be readopted, adopted with changes, or repealed, based on the review.

In August, following staff’s review of Chapter 51-Executive, Chapter 52-Stocking Policy, Chapter 55-Law Enforcement, Chapter 60-Maintenance Review, and Chapter 61-Design and Construction, the Commission authorized staff to publish proposed changes to Chapters 51 and 61 in the Texas Register.  No changes were recommended to Chapters 52, 55, or 60.  Staff is seeking adoption to the proposed changes in Chapters 51 and 61, and adoption of the completed review of rules in Chapters 51, 52, 55, 60 and 61.

III.     Recommendation:  The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts repeal of §§51.621-51.624, 51.632, 51.643, 61.644, 51.661, 51.662, 51.673, 51.674, and 61.21-61.26, amendments to §§51.3, 51.70, 51.151, 51.201, 51.300, 51.304, 51.601, and new §61.21 as published in the October 5, 2012, issue of the Texas Register (37 Tex. Reg. 7941-7955), with changes as necessary to the proposed text, and also adopts the completed rule review of Chapters 51, 52, 55, 60 and 61 of the Texas Parks and Wildlife Department rules (Title 31, Part II of the Texas Administrative Code).”

Attachments — 2

  1. Exhibit A — Chapter 51 Proposed Rule Amendments
  2. Exhibit B — Chapter 61 Proposed Rule Amendments

Commission Agenda Item No. 2
Exhibit A

Legislative Rules Review

Chapter 51. Administration

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §§51.621-51.624, 51.632, 51.643, 51.644, 51.661, 51.662, 51.673, and 51.674 and amendments to §§51.3, 51.70, 51.71, 51.151, 51.201, 51.204, 51.300, 51.303, 51.304, and 51.601. The proposed repeals and amendments are 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 re-adopt, adopt with changes, or repeal each rule as a result of the review.

Advisory Committees

         Parks and Wildlife Code, §11.0162, authorizes the Chairman of the Texas Parks and Wildlife Commission to "appoint committees to advise the commission on issues under its jurisdiction." Government Code, Chapter 2110, requires that rules be adopted regarding each state agency advisory committee. Unless otherwise provided by specific statute, the rules must (1) state the purpose of the committee; (2) describe the manner in which the committee will report to the agency; and (3) establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute. Under the provisions of 31 TAC §51.601(d), all advisory committees expired on October 1, 2010 unless otherwise provided by law. In 2010, the department amended rules regarding several advisory committees to extend the expiration of those committees until October 2014 (35 TexReg 9321). The advisory committees that were not extended expired in October 2010 pursuant to §51.601. The proposed repeal of §§51.621-51.624, 51.632, 51.643, 51.644, 51.661, 51.662, 51.673, and 51.674 would eliminate advisory groups that have expired and which the department has determined are no longer necessary, either because they have served their purpose and become superfluous or because their function has been subsumed within another advisory group. Sections §§51.621 (Artificial Reef Advisory Committee), 51.622 (Blue Crab Advisory Committee), 51.623 (Oyster Advisory Committee), and 51.624 (Shrimp Advisory Committee) are being repealed because they have expired and the Coastal Resources Advisory Committee can perform the advisory functions regarding those coastal fisheries resources. Section 51.632 (Texas Rivers Conservation Advisory Board) is being repealed because the term of the committee has expired and the Freshwater Fisheries Advisory Committee can perform the advisory functions regarding freshwater fisheries resources in Texas rivers. Section 51.643, concerning Historic Sites Advisory Committee and §51.644, concerning Big Bend Ranch State Park Task Force, are being repealed because the term of the Historic Sites Advisory Committee has expired and the Big Bend Ranch State Park Task Force has completed its duties, although the State Parks Advisory Committee can perform advisory functions concerning historic sites and Big Bend Ranch State Park issues. Section 51.661, regarding Expo Advisory Committee, is being repealed because the term of the committee has expired and the department has discontinued the Texas Wildlife Expo. The remaining sections (§51.662, concerning Outreach, Interpretation, and Education Advisory Committee, §51.673 concerning Land Resources Advisory Committee and §51.674, concerning Aquatic Resources Advisory Committee) are being repealed because no membership was ever appointed and the committees were never assembled.

         The department notes that although the proposed rules eliminate certain advisory committees, the commission has the authority to reconstitute or create an advisory committee to assist the department on any issue as circumstances warrant.

Petitions for Rulemaking

         The proposed amendment to §51.3 concerning Consideration and Disposition, would change the title of the section to “Consideration and Disposition of Petitions for Rulemaking” to more accurately describe the section. The proposed amendment would also increase the amount of time for staff to submit a recommendation to the department’s executive director regarding a petition for rulemaking. 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. The statute also stipulates that not later than the 60th day after the date of submission of a petition for rulemaking, a state agency shall either deny the petition in writing, stating its reasons for the denial, or initiate rulemaking. Under current §51.3, after staff has prepared a recommendation regarding a petition for rulemaking, the petition is forwarded to each member of the commission, accompanied by the staff recommendation. If the staff recommendation is to deny the petition for rulemaking, and 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. Under current §51.3, staff must provide a recommendation to the department’s executive director within 10 days after receiving the petition for rulemaking. The department recently has been presented with petitions of some complexity and consequently has concluded that 10 days is an insufficient amount of time for staff to thoroughly analyze the impacts of suggested regulatory changes. The department therefore proposes to amend §51.3(a) to increase the time period to 15 days. The department also proposes to amend §51.3(f) to update cross references to hunting and fishing regulations.

Gifts to the Department and Fundraising

         The proposed amendment to §51.70, concerning Gifts to the Department, would clarify and streamline the department’s process for accepting gifts. 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. Current §51.70 allows the department’s executive director 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 “upon approval by the presiding officer of the commission and the Chair of the commission’s finance committee in accordance with the commission’s budget policy.” The commission meets five times per year. The rule allows the department to more efficiently and immediately utilize gifts in support of agency functions between commission meetings. The proposed amendment would replace the requirement that the acceptance of gifts of more than $500 be approved by both the chair of the commission and the chair of finance committee with a requirement that the acceptance of such gifts be approved by the chair or vice-chair of the commission or a commissioner authorized to approve the acceptance of gifts under the commission’s budget policy. The commission is moving away from an organizational structure that consists of several standing committees. As a result, the position of financial committee chair will no longer exist. In addition, by providing various options for approving the acceptance of gifts, the proposed amendment would enhance the department’s ability to more immediately utilize gifts in support of agency functions.

         The proposed amendment to §51.71, concerning Employee Fundraising Activities, would alter paragraph (1) to acknowledge that the acceptance of gifts and donations is governed by Chapter 51, Subchapter C, and not solely by §51.71. The proposed amendment also would replace the plural possessive “their” with the singular possessive “the employee’s” to correct a grammatical error.

Vehicle Inscriptions

         The proposed amendment to §51.151, concerning Use of Uninscribed Vehicles, would change the title of the section to “Vehicle Inscriptions.” The proposed amendment would also delegate authority to the executive director to allow inscriptions on state vehicles that do not obscure any required inscriptions, have been approved in advance by the executive director, are in the best interest of the department and do not conflict with the department’s mission or goals, and are not more prominent than and do not overshadow the role of the department. Transportation Code §721.002 requires certain markings on state-owned motor vehicles. However, Transportation Code §721.003, allows the governing body of certain state agencies, including the department, to exempt an agency’s motor vehicle from the marking requirements by rule. Current §51.151 delegates to the executive director the authority to approve the use of certain uninscribed vehicles. The proposed amendment would also delegate to the executive director the authority to approve inscriptions on department vehicles other those required by Transportation Code, Chapter 721, so long as the inscriptions meet the requirements of the amendment. The proposed amendment would, for example, allow department vehicles to bear messaging that acknowledges the sponsorship contributions that assist the department in furthering its mission.

Contract Dispute Resolution

         The proposed amendment to §51.201, concerning Definitions, would remove references to Government Code, Chapter 2166, from the definitions of “contract” and “project” since Government Code, §2166(a)(4) specifically exempts the department from the applicability of Chapter 2166. However, the amendment does not alter the applicability of Subchapter J to disputes involving construction contracts.

Disclosure of Customer Information

         The proposed amendment to §51.204 would delete the requirement in §51.204(d) that a contract claim pending before August 30, 1999 be delivered by February 26, 2000. The provision is obsolete and no longer necessary.

         The proposed amendment to §51.300 concerning Definitions, would delete the definition of “commercial customer information” in §51.300(2) and replace it with “nonrecreational customer information” in §51.300(7). Provisions of Subchapter K address the handling of certain types of customer information. The reference to department customers who are not recreational customers as “nonrecreational” customers is more accurate than “commercial customers.”

         The proposed amendment to §51.303 would replace the term “commercial customer information” with “nonrecreational customer information” to conform this section to the terminology change described in connection with the proposed change to §51.300.

         The proposed amendment to §51.304, concerning Exceptions, would alter subsection (b)(4)(D), which addresses the confidentiality of commercial customer and magazine subscriber information. Under the current rule, a commercial customer or Texas Parks and Wildlife Magazine subscriber may elect to exclude his or her customer information from disclosure or “opt out” of the disclosure provisions. The proposed amendment would eliminate the “opt out” mechanism.  However, it continues to be the department’s intent to follow magazine industry standards (such as the Audit Bureau of Circulation) regarding disclosure of magazine customer information. The proposed amendment is intended to enhance transparency in the handling of agency information. The department notes that the proposed amendment does not affect the confidentiality of information collected from purchasers of recreational licenses and permits or any other personal information that is required to be kept confidential by law.

         The proposed amendment to §51.601, concerning General Requirements, would alter subsection (d) to remove the universal expiration date applicable to all department advisory committees. The department intends to establish or reauthorize advisory committees as necessary on a case-by-case basis within the regulation governing each specific department advisory committee establishing the expiration date of the advisory committee.

2. Fiscal Note.

         Mr. Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be clearer, better organized, and more effective regulations governing the processes and entities administered under the provisions of Chapter 51.

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

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         (D) The department has determined that the rules as proposed will not have an adverse on small businesses or microbusinesses; therefore, the department has determined that a regulatory flexibility analysis under Government Code, Chapter 2006 is not necessary.

         (E) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

         (F) 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 Comment.

         Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under 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.

         The proposed amendment affects Government Code, Chapters 2001.

SUBCHAPTER A. Procedures for the Adoption of Rules

         §51.3. Consideration and Disposition of Petitions for Rulemaking.

                 (a) (No change.)

                 (b) Within 15[10] days of receiving a petition, agency personnel shall make a recommendation to the executive director to either deny the petition or initiate rulemaking, and shall include reasons for the recommendation.

                 (c) – (e) (No change.)

                 (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), or Chapter 57, Subchapter N of this title (relating to Statewide Recreational and Commercial Fishing Proclamation) the department may defer the rulemaking activity until such time as it initiates other rulemaking activity involving Chapter 65, Subchapter A of this title or Chapter 57, Subchapter N of this title.

                 (g) (No change.)

         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

SUBCHAPTER C. Employee Fundraising and Sponsorships

         The amendments are proposed under 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.

         The proposed amendments affect Parks and Wildlife Code, Chapter 11.

         §51.70 Gifts to the Department.

                 (a) Gifts of money or property $500 or more may be accepted by the executive director or his or her designee contingent upon approval by the Chair or Vice Chair of the commission or a commissioner authorized to approve such gifts pursuant to [presiding officer of the commission and the Chair of the Commission’s finance committee in accordance with] the commission’s budget policy. The department may not accept or receive gifts or bequests from any source until such gifts or bequests have been approved for acceptance by the executive director or his or her designee. Acceptance of gifts is hereby delegated as follows.

                         (1) – (3) (No change.)

                 (b) – (c) (No change.)

         §51.71. Employee Fundraising Activities. This section applies only to the solicitation or acceptance of a gift equal to or greater than $500 in value by a person employed by the Texas Parks and Wildlife Department.

                 (1) An employee may solicit and accept a donation or gift in accordance with this subchapter[section] as a part of the employee’s[their] officially authorized duties.

                 (2) – (4) (No change.)

         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

SUBCHAPTER F. Vehicles

         The amendment is proposed Transportation Code, §721.003, which authorizes the department by rule to create exemptions from the applicability of the chapter with respect to uninscribed vehicles.

         The proposed amendment affects Transportation Code, Chapter 721.

         §51.151. Vehicle Inscriptions[Use of Uninscribed Vehicle].

                 (a) The commission authorizes[It is the policy of the commission to authorize] the executive director to assign any law enforcement or headquarters staff employee to operate departmental vehicles without inscriptions.

                 (b) Uninscribed [Such] vehicles will be other than those operated for routine patrol duty or which are normally used to conduct ordinary public business of the department.

                 (c) Uninscribed vehicles will be used primarily to conduct law enforcement investigations and to carry out special assignments made by the executive director when it is advantageous for successful enforcement of the law and to reach goals of the department as established by the legislature and the commission.

         (d) The commission authorizes the executive director to approve inscriptions other than those described in Transportation Code, Chapter 721, so long as such inscriptions:

                 (1) do not obscure any required inscriptions;

                 (2) have been approved in writing in advance by the department’s executive director or designee; 

                 (3) are in the best interest of the department and do not conflict with the department’s mission and goals; and

                 (4) are not more prominent than and do not overshadow the role of the department.

         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

SUBCHAPTER J. Contract Dispute Resolution

         The amendments are proposed under the authority of Government Code, §2260.052(c), which requires each unit of state government with rulemaking authority to develop rules to govern the negotiation and mediation of contract claims against the state, and Parks and Wildlife Code §11.0171, which requires the commission to adopt by rule policies and procedures for soliciting and awarding contracts.

         The proposed amendments affect Government Code, Chapter 2260.

         §51.201. Definitions. The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise:

                 (1) – (2) (No change.)

                 (3) Contract — A written contract between the department and a contractor by the terms of which the contractor agrees either:

                         (A) to provide goods or services, by sale or lease, to or for the department; or

                         (B) to perform a Project[project as defined by Government Code, § 2166.001].

                 (4) – (10) (No change.)

                 (11) Project—A [As defined in Government Code, § 2166.001, a] building construction project that is financed wholly or partly by a specific appropriation, bond issue or federal money, including the construction of:

                         (A) a building, structure, or appurtenant facility or utility, including the acquisition and installation of original equipment and original furnishing; and

                         (B) an addition to, or alteration, modification, rehabilitation or repair of an existing building, structure, or appurtenant facility or utility.

                 (12) (No change.)

         §51.204. Notice of Claim of Breach of Contract.

                 (a) – (c) (No change.)

                 (d) The notice of claim shall be delivered no later than 180 days after the date of the event that the contractor asserts as the basis of the claim[; provided, however, that a contractor shall deliver notice of a claim that was pending before the department on August 30, 1999, to the unit no later than February 26, 2000].

         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

SUBCHAPTER K. Disclosure of Customer Information

         The amendments are proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies by rule relating to the release of the customer information; the use of the customer information by the department; and the sale of a mailing list consisting of the names and addresses of persons who purchase customer products, licenses, or services.

         The proposed amendments affect Parks and Wildlife Code, Chapter 11.

         §51.300. Definitions. The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise.

                 (1) Boat customer information — customer information regarding the holder of or applicant for a marine dealer license or for a title or registration issued by the department for a vessel or motor.

                 [(2) Commercial customer information — customer information regarding an individual who is the holder of a commercial fishing, hunting or other commercial license issued by the department. Commercial customer information does not include boat customer information.]

                 (2)[(3)] Confidential customer information — customer information made confidential by law, including, but not limited to, information made confidential by the Motor Vehicle Records Disclosure Act, Chapter 730, Texas Transportation Code.

                 (3) [(4)] Customer information — the name, address and telephone number of a department customer. For purposes of this subchapter, customer information does not include personal information.

                 (4)[(5)] Department customer — a person who purchases a product, license, permit or service from the department. For purposes of this subchapter, a department customer does not include a corporation, partnership or other commercial enterprise.

                 (5) [(6)] Magazine customer information — customer information about a person who subscribes to the Texas Parks and Wildlife Magazine.

                 (6) [(7)] Mailing list — a list containing the name and address for more than one department customer.

                 (7) Nonrecreational customer information — Customer information regarding an individual who is not a recreational customer. Nonrecreational customer information does not include boat customer information.

                 (8) – (10) (No change.)

         §51.303. Disclosure of Information.

                 (a) (No change.)

                 (b) Except as provided in this subchapter, the department will disclose, sell, rent or trade the following information, unless the information is also confidential customer information or disclosure is otherwise prohibited by law:

                         (1) nonrecreational [commercial] customer information; and

                         (2) magazine customer information.

                 (c) (No change.)

         §51.304. Exceptions.

                 (a) – (c) (No change.)

                 (d) The department may follow industry standards, including, but not limited to standards regarding the exclusion or inclusion of magazine customer information on a list of magazine customers that is rented or sold. [A commercial customer or magazine customer may elect to exclude his or her customer information from disclosure. In the event that a commercial customer or magazine customer elects to exclude his or her customer information from disclosure, his or her customer information will be treated as confidential information under this subchapter.]

         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

SUBCHAPTER O. Advisory Committees

         The amendment is proposed under Parks and Wildlife Code, §11.062, which authorizes the chairman of the commission to appoint committees to advise the commission on issues under its jurisdiction; and Government Code, Chapter 2110, which requires that rules be adopted regarding each state agency advisory committee.

         The proposed amendment affects Parks and Wildlife Code, Chapter 11.

         §51.601. General Requirements.

                 (a) – (c) (No change.)

                 (d) Expiration of advisory committee. Unless expressly provided in this subchapter or other law, each department advisory committee will expire on the expiration date established for each advisory committee[October 1, 2010].

                 (e) – (m) (No change.)

         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 repeals are proposed under Parks and Wildlife Code, §11.062, which authorizes the chairman of the commission to appoint committees to advise the Commission on issues under its jurisdiction; and Government Code, Chapter 2110, which requires that rules be adopted regarding each state agency advisory committee.

         The proposed repeals affect Parks and Wildlife Code, Chapter 11 and Government Code, Chapter 2110.

         §51.621. Artificial Reef Advisory Committee.

         §51.622. Blue Crab Advisory Committee.

         §51.623. Oyster Advisory Committee.

         §51.624. Shrimp Advisory Committee.

         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 repeal is proposed under Parks and Wildlife Code, §11.062, which authorizes the chairman of the commission to appoint committees to advise the Commission on issues under its jurisdiction; and Government Code, Chapter 2110, which requires that rules be adopted regarding each state agency advisory committee.

         The proposed repeal affects Parks and Wildlife Code, Chapter 11 and Government Code, Chapter 2110.

         §51.632. Texas Rivers Conservation Advisory Board.

         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 repeals are proposed under Parks and Wildlife Code, §11.062, which authorizes the chairman of the commission to appoint committees to advise the Commission on issues under its jurisdiction; and Government Code, Chapter 2110, which requires that rules be adopted regarding each state agency advisory committee.

         The proposed repeals affect Parks and Wildlife Code, Chapter 11 and Government Code, Chapter 2110.

         §51.643. Historic Sites Advisory Committee.

         §51.644. Big Bend Ranch State Park Task Force.

         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 repeals are proposed under Parks and Wildlife Code, §11.062, which authorizes the chairman of the commission to appoint committees to advise the Commission on issues under its jurisdiction; and Government Code, Chapter 2110, which requires that rules be adopted regarding each state agency advisory committee.

         The proposed repeals affect Parks and Wildlife Code, Chapter 11 and Government Code, Chapter 2110.

         §51.661. Expo Advisory Committee.

         §51.662. Outreach, Interpretation, and Education Advisory Committee.

         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


Commission Agenda Item No. 2
Exhibit B

Legislative Rule Review

Chapter 61 – Design and Construction

Subchapter A – Contracts for Public Works

Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §§61.21-61.26 and new §61.21, concerning Contracts for Public Works. The proposed repeal and new section are 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 re-adopt, adopt with changes, or repeal each rule as a result of the review.

        Under Parks and Wildlife Code, §11.0171, the executive director or executive director’s designee may negotiate, contract, or enter an agreement relating to a project of the department, including professional services agreements relating to a department project, consistent with Subchapter A, Chapter 2254, Government Code (the Professional Services Procurement Act). Section 11.0171 also requires the commission to adopt by rule policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts.

         In reviewing Chapter 61, Design and Construction, the department determined that the existing rules governing construction contracts do not reflect all of the options for modern construction contract award and management. In addition, the current rules contain provisions that are more appropriately addressed in solicitation documents, such as a request for proposals.  Therefore, the department proposes to replace the existing rules with a single, flexible, regulation that enables the department to deal effectively with the multiplicity of possible conditions and circumstances affecting the various construction projects undertaken by the department.

         Proposed new §61.21(a) would require the department to solicit, evaluate, negotiate, select, and award contracts for construction projects by means of a fair and impartial method, including but not limited to  competitive bidding, competitive sealed proposal, construction manager-agent, construction manager-at-risk, design-build method, and single source.

         Proposed new §61.21(b) would require the department to ensure that any method used to solicit, evaluate, select, and award a contract for construction results in the best value for the department. In addition to the obvious importance of ensuring that construction contracting occur in compliance with state law and by means of a fair and impartial process, the department believes it is important that the proposed regulation acknowledge that as a public agency, the department’s goal in all cases is to make sure that the interest of the people of the state is served by striving to obtain the best value when contracting for construction.

2. Fiscal Note.

         Ms. Teresa Rodgers-Curtis, Contracting Branch Manager, Infrastructure Division, 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 state and local governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Ms. Rodgers-Curtis also has 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 rules that enable the department to contract for construction projects in the quickest, most effective, and most economical manner.

         (B) There will be no adverse economic effect on persons required to comply with the rule as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. Since the proposed rule does not impose any direct adverse economic effects on small businesses or micro-businesses, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

         (E) 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 Comment.

         Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §11.0171, which requires the commission to adopt by rule policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts.

         The proposed amendment affects Parks and Wildlife Code, Chapter 11.

6. Text.

         §61.21. Contracts for Public Works.

                 (a) The department shall solicit, evaluate, negotiate, select, and award contracts for construction projects by means of a fair and impartial method, including but not limited to:

                         (1)  competitive bidding;

                         (2) competitive sealed proposal;

                         (3) construction manager-agent;

                         (4) construction manager-at-risk;

                         (5) design-build method; and

                         (6) single source.

                 (b) The department shall ensure that any method used to solicit, evaluate, select, and award a contract for construction results in the best value for the department.

         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


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