PART 2. PUBLIC UTILITY COMMISSION OF TEXAS
CHAPTER 27. RULES FOR ADMINISTRATIVE SERVICES
The Public Utility Commission of Texas (commission) proposes rule amendments to §§27.21, 27.31, 27.65, 27.69, 27.81, 27.83, 27.85, 27.87, 27.89, 27.91, 27.93, 27.97, 27.99, 27.111, 27.113, 27.115, 27.117, 27.121, 27.123, 27.125, 27.127, 27.143, 27.145 and 27.161, of Chapter 27 Substantive Rules, Applicable to Administrative Services for consideration at the April 11, 2024 Open Meeting. The specific proposed amendments are detailed below.
Rule Review Stakeholder Recommendations
On August 4, 2023, commission staff filed a preliminary notice and request for comments in this project. No comments were received in response to the preliminary requests for comments. Based upon an internal review by commission staff, the commission proposes the following rule changes.
The Public Utility Commission of Texas (commission) proposes amendments to 16 Texas Administrative Code (TAC) §§27.21, relating to Commission Employee Training; 27.31, relating to Historically Underutilized Business Program; 27.65 relating to Definitions; 27.69 relating to Sovereign Immunity; 27.81 relating to Notice of Claim of Breach of Contract; 27.83 relating to Agency Counterclaim; 27.85 relating to Request for Voluntary Disclosure of Additional Information; 27.87 relating to Duty to Negotiate; 27.89 relating to Timetable; 27.91, relating to Conduct of Negotiations; 27.93 relating to Settlement Approval Procedures; 27.97, relating to Costs of Negotiation; 27.99, relating to Request for Contested Case Hearing; 27.111, relating to Mediation Timetable; 27.113, relating to Conduct of Mediation; 27.115, relating to Agreement to Mediate; 27.117, relating to Qualifications and Immunity of Mediator; 27.121, relating to Costs of Mediation; 27.123, relating to Settlement Approval Procedures; 27.125, relating to Initial Settlement Agreement; 27.127; relating to Final Settlement Agreement; 27.143, relating to Factors Supporting the Use of Assisted Negotiation Processes; 27.145, relating to Use of Assisted Negotiation Processes; 27.161, relating to Procedures for Resolving Vendor Protests.
Growth Impact Statement
The agency provides the following governmental growth impact statement for the proposed rules, as required by Texas Government Code §2001.0221. The agency has determined that for each year of the first five years that the proposed rules are in effect, the following statements will apply:
(1) the proposed rules will not create a government program and will not eliminate a government program;
(2) implementation of the proposed rules will not require the creation of new employee positions and will not require the elimination of existing employee positions;
(3) implementation of the proposed rules will not require an increase and will not require a decrease in future legislative appropriations to the agency;
(4) the proposed rules will not require an increase and will not require a decrease in fees paid to the agency;
(5) the proposed rules will not create a new regulation;
(6) the proposed rules will not expand, limit, or repeal an existing regulation;
(7) the proposed rules will not change the number of individuals subject to the rule's applicability; and
(8) the proposed rules will not affect this state's economy.
Fiscal Impact on Small and Micro-Businesses and Rural Communities
There is no adverse economic effect anticipated for small businesses, micro-businesses, or rural communities as a result of implementing the proposed rules. Accordingly, no economic impact statement or regulatory flexibility analysis is required under Texas Government Code §2006.002(c).
Takings Impact Analysis
The commission has determined that the proposed rules will not be a taking of private property as defined in chapter 2007 of the Texas Government Code.
Fiscal Impact on State and Local Government
Mr. Jay Stone, Program Administrator, Budget & Fiscal Oversight Division, has determined that for the first five-year period the proposed rules are in effect, there will be no fiscal implications for the state or for units of local government under Texas Government Code §2001.024(a)(4) as a result of enforcing or administering the sections.
Public Benefits
Mr. Stone has determined that for each year of the first five years the proposed sections are in effect the public benefit anticipated as a result of enforcing the section will be enhanced clarity on rules applicable to contracts and administrative services, and the amendment of rules that have become outdated. There will not be no probable economic cost to persons required to comply with the rules under Texas Government Code §2001.024(a)(5).
Local Employment Impact Statement
For each year of the first five years the proposed sections are in effect, there should be no effect on a local economy; therefore, no local employment impact statement is required under Texas Government Code §2001.022.
Costs to Regulated Persons
Texas Government Code §2001.0045(b) does not apply to this rulemaking because the commission is expressly excluded under §2001.0045(c)(7).
Public Hearing
The commission staff will conduct a public hearing on this rulemaking if requested in accordance with Texas Government Code §2001.029. The request for a public hearing must be received by Friday, May 17, 2024. If a request for public hearing is received, commission staff will file in this project a notice of hearing.
Public Comments
Interested persons may file comments electronically through the interchange on the commission's website. Comments must be filed by Friday, May 17, 2024. Comments should be organized in a manner consistent with the organization of the proposed rules. The commission invites specific comments regarding the costs associated with, and benefits that will be gained by, implementation of the proposed rule. The commission will consider the costs and benefits in deciding whether to modify the proposed rules on adoption. All comments should refer to Project Number 55307.
Each set of comments should include a standalone executive summary as the last page of the filing. This executive summary must be clearly labeled with the submitting entity's name and should include a bulleted list covering each substantive recommendation made in the comments.
SUBCHAPTER A. GENERAL PROVISIONS
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Amended §27.21 is proposed under Texas Government Code Chapter 656, Subchapter C. §§656.041-656.104 which requires the commission to adopt rules relating to the eligibility of the commissioners and commission employees for training and education supported by the commission, and the obligations assumed by the commissioners and commission employees on receiving the training and education.
Amended §27.31 is proposed under Texas Government Code §2161.003, which requires the commission to adopt the Comptroller of Public Accounts rules for Historically Underutilized Businesses.
For rules relating to Negotiation and Mediation of Certain Contract Disputes under Chapter 27, Subchapter C
Texas Government Code Chapter 2260 and 2261, which relates to state agency contracting standards and oversight; Texas 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 a claim under this section which relates to the resolution of certain contract claims against the State of Texas; Civil Practices and Remedies Code Chapter 107 which governs resolutions granting permission to sue the State of Texas or a unit of state government; and Civil Practice and Remedies Code Chapter 154 which governs alternative dispute resolution procedures.
Amended §27.161 is proposed under Texas Government Code §2155.076, which requires the commission to develop and adopt protest procedures for vendors' protests concerning purchases that are consistent with the Texas Building and Procurement Commission rules on the same subject.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.21.Commission Employee Training.
(a) "Training," as used in this section, means instruction, teaching, or other education received by a commission employee that is not normally received by all commission employees and that is designed to enhance the ability of the employee to perform the employee's job.
(1) The term includes a course of study at an institution of higher education, as defined by Texas Education Code §61.003(8), if the commission spends money to assist the employee to meet the expense of the course of study or pays salary to the employee to undertake the course of study as an assigned duty.
(2) The term does not include instruction, teaching, or other education that is required either by state or federal law or that is determined necessary by the commission and offered to all commission employees performing similar jobs.
(b) - (d) (No change.)
(e) Requirements for eligibility and participation
in training must [shall] be in accordance with
this section and the commission's current employee handbook.
(f) Permission to participate in training, including
commission-sponsored training, must [shall]
not in any way affect an employee's at-will status or constitute a
guarantee of continued employment, nor will [shall]
it constitute a guarantee or indication of future employment in a
prospective position.
(g) Permission to participate in any training may be
denied or withdrawn at the discretion of the commission's executive
director for any reason, including[, but not limited to,]
a determination that participation may negatively impact the employee's
job duties or performance.
(h) Permission to participate in any training may be contingent upon reasonable requirements set in writing in advance by the employee's supervisor. If pre-determined requirements are not met:
(1) Permission to participate or continue participating
in the training may be denied or withdrawn; or [and/or]
(2) (No change.)
(i) For an authorized training program offered by an institution of higher education or a private or independent institution of higher education:
(1) the commission will [shall]
only reimburse the tuition expenses for each [a]
program course [course(s)] successfully completed
by the employee at an accredited institution of higher education (including
online courses or courses not credited towards a degree); and
(2) the commission's executive director must authorize the tuition reimbursement payment before the employee may be reimbursed.
(j) (No change.)
(k) The commission's executive director may require an employee who requests full or partial payment or reimbursement of tuition for training necessary to obtain a degree or certification to agree in writing before payment or reimbursement is made to pay the commission for any amounts paid if the employee voluntarily leaves employment with the commission within one year after the training is completed.
(1) Amounts paid by the commission will [shall
] be prorated to credit any full calendar month of employment
following completion of the training.
(2) (No change.)
(l) - (n) (No change.)
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401475
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.31.Historically Underutilized Business Program.
The commission adopts by reference the rules of the Comptroller
of Public Accounts in 34 Texas Administrative Code (TAC) §§20.282, 20.284, 20.285, 20.296, and 20.297 [20.11, 20.13,
20.14, 20.26 and 20.27], relating to the Historically Underutilized
Business Program.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401476
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
DIVISION 1. GENERAL
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.65.Definitions.
The following words and terms, when used in this subchapter,
[shall] have the following meaning, unless the context
clearly indicates otherwise:
(1) Chief administrative officer--The executive director
of the commission or his or her [his/her] designee.
(2) - (4) (No change.)
(5) Counterclaim--A demand by the commission based upon the contractor's claim.
(6) Day--Calendar days, not working days, unless
otherwise specified by this chapter [A calendar day. If
an act is required to occur on a day falling on a Saturday, Sunday,
or holiday, the first working day which is not one of these days should
be counted as the required day for purpose of this subchapter].
(7) Event--An act or omission or a series of acts or omissions giving rise to a claim. The following list contains illustrative examples of events, subject to the specific terms of the contract:
(A) Examples of events in the context of a contract for goods or services include:
(i) - (vi) (No change.)
(B) - (C) (No change.)
(8) Mediation--A voluntary form of dispute resolution in which an impartial person facilitates communication between parties to promote negotiation and settlement of disputed issues.
(9) Working day--A day on which the commission is open for the conduct of business.
(10) [(8)] Goods--Supplies, materials
or equipment.
(11) [(9)] Parties--The contractor
and the commission that have entered into a contract in connection
with which a claim of breach of contract has been filed under this subchapter.
(12) [(10)] Project--As defined
in Texas 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.
(13) [(11)] Services--The furnishing
of skilled or unskilled labor or consulting or professional work,
or a combination thereof, excluding the labor of an employee of the commission.
(14) [(12)] Unit of state government
or unit--The state or an agency, department, commission (including
the Public Utility Commission), bureau, board, office, council, court,
or other state entity that is in any branch of state government that
is created by the Texas Constitution, or statute of this state, including
a university system or institution of higher education. The term does
not include:
(A) a county;
(B) municipality;
(C) court of a county or municipality;
(D) special purpose district; or
(E) other political subdivision of the state.
§27.69.Sovereign Immunity.
This subchapter does not waive the commission's sovereign or governmental immunity to suit or liability.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401477
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
16 TAC §§27.81, 27.83, 27.85, 27.87, 27.89, 27.91, 27.93, 27.97, 27.99
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.81.Notice of Claim of Breach of Contract.
(a) A contractor asserting a claim of breach of contract
under the Texas Government Code, Chapter 2260, must [shall
] file notice of the claim as provided by this section.
(b) The notice of claim must [shall]:
(1) be in writing and signed by the contractor or the contractor's authorized representative;
(2) be delivered by hand, certified mail return receipt
requested, or other verifiable delivery service, to the officer of
the commission designated in the contract to receive a notice of claim
of breach of contract under the Texas Government Code, Chapter 2260;
if no person is designated in the contract, the notice must [shall] be delivered to the commission's chief administrative
officer, and
(3) (No change.)
(c) (No change.)
(d) The notice of claim must [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 commission on August 30, 1999, to the commission
no later than February 26, 2000].
§27.83.Agency Counterclaim.
(a) The commission asserting a counterclaim under the
Texas Government Code, Chapter 2260, will [shall]
file notice of the counterclaim as provided by this section.
(b) The notice of counterclaim will [shall]:
(1) - (3) (No change.)
(c) (No change.)
(d) The notice of counterclaim will [shall
] be delivered to the contractor no later than 90 days after
the commission's receipt of the contractor's notice of claim.
(e) (No change.)
§27.85.Request for Voluntary Disclosure of Additional Information.
(a) Upon the filing of a claim or counterclaim, a
party [parties] may request to review and copy information
in the possession or custody or subject to the control of the other
party that pertains to the contract claimed to have been breached,
including[, without limitation]:
(1) (No change.)
(2) correspondence, including communications [, without limitation, correspondence] between the commission
and outside consultants the other party [it]
utilized in preparing its bid solicitation or any part thereof or
in administering the contract, and correspondence between the contractor
and its subcontractors, materialmen, and vendors;
(3) (No change.)
(4) any relevant internal memoranda of the other
party; and [the parties' internal memoranda;]
(5) documents created by the other party [contractor] in preparing its offer to the commission and documents
created by the commission in analyzing the offers it received in response
to a solicitation.
(b) Subsection (a) of this section applies to all information
in the parties' possession regardless of the manner in which it is
recorded, including[, without limitation,] paper and electronic media.
(c) The contractor and the commission may seek additional
information directly from third parties, including[, without
limitation,] the commission's third party consultants and the
contractor's subcontractors.
(d) Nothing in this section requires any party to disclose the requested information or any matter that is privileged under Texas or federal law.
(e) Material submitted under [pursuant
to] this subsection and claimed to be confidential by the contractor must [shall] be handled in accordance with [pursuant to] the requirements of the Public Information Act,
Texas Government Code, Chapter 552.
§27.87.Duty to Negotiate.
The parties must [shall] negotiate in
accordance with the timetable established by [set
forth in] §27.89 of this title (relating to Timetable)
to attempt to resolve all claims and counterclaims. No party is obligated
to settle with the other party as a result of the negotiation.
§27.89.Timetable.
(a) Following receipt of a contractor's notice of claim,
the chief administrative officer of the commission or other designated
representative will [shall] review each
claim of the contractor and each counterclaim of the commission [the contractor's claim(s) and the commission's counterclaim(s),]
if any, and initiate negotiations with the contractor to attempt to
resolve each claim and counterclaim [the claim(s)
and counterclaim(s)].
(b) Subject to subsection (c) of this section, the
parties must [shall] begin negotiations within
a reasonable period of time, not to exceed 60 days following the later of:
(1) - (3) (No change.)
(c) The commission may delay negotiations until [after
] the 180th day after the date of the event giving rise to the
claim of breach of contract by:
(1) - (2) (No change.)
(d) The parties may conduct negotiations according
to an agreed schedule as long as they begin negotiations no later
than the deadlines prescribed by [set forth in]
subsections (b) or (c) of this section, whichever is applicable.
(e) Subject to subsection (f) of this section, the
parties must [shall] complete the negotiations
that are required by this chapter as a prerequisite to a contractor's
request for contested case hearing no later than 270 days from
the date [after] the commission received [receives] the contractor's notice of claim.
(f) The parties may agree in writing to extend the
time for negotiations on or before the 270th day after the commission
receives the contractor's notice of claim. The agreement must [shall] be signed by representatives of the parties with authority
to bind each respective party and must [shall]
provide for the extension of the statutory negotiation period until
a date certain. The parties may enter into a series of written extension
agreements that comply with the requirements of this section.
(g) The contractor may request a contested case hearing
before the State Office of Administrative Hearings (SOAH) in
accordance with [pursuant to] §27.99 of this
title (relating to Request for Contested Case Hearing) 270 days
from the date [after the 270th day after] the commission received [receives] the contractor's notice of claim,
or the expiration of any extension agreed to under subsection (f)
of this section.
(h) The parties may agree to mediate the dispute at
any time before 270 days from the date [the 270th
day after] the commission received [receives]
the contractor's notice of claim or before the expiration of any extension
agreed to by the parties in accordance with [pursuant
to] subsection (f) of this section. The mediation must [shall] be governed by Division 3 of this subchapter (relating
to Mediation of Contract Disputes).
(i) Nothing in this section prohibits [is
intended to prevent] the parties from agreeing to commence negotiations
earlier than the deadlines established in subsections (b) and (c)
of this section, or from continuing or resuming negotiations after
the contractor requests a contested case hearing before SOAH.
§27.91.Conduct of Negotiation.
(a) Negotiation is a consensual bargaining process
in which the parties attempt to resolve a claim and counterclaim.
A negotiation under this subchapter may be conducted by any method,
technique, or procedure authorized under the contract or agreed upon
by the parties, including[, without limitation,] negotiation
in person, by telephone, by digital or physical mail correspondence,
by video conference, or by any other method that permits the parties
to identify their respective positions, discuss their respective differences,
confer with their respective advisers, exchange offers of settlement,
and settle.
(b) The parties may conduct negotiations with the assistance
of one or more neutral third parties. If the parties choose to mediate
their dispute, the mediation must [shall] be
conducted in accordance with Division 3 of this subchapter (relating
to Mediation of Contract Disputes). Parties may choose an assisted
negotiation process other than mediation, including[ without
limitation,] processes such as those described in Division 4
of this subchapter (relating to Assisted Negotiation Processes).
(c) To facilitate the meaningful evaluation and negotiation
of each claim and, as applicable, each counterclaim [the
claim(s) and any counterclaim(s)], the parties may exchange
relevant documents that support their respective claims, defenses,
counterclaims or positions.
(d) Material submitted under [pursuant
to] this subsection and claimed to be confidential by the contractor must [shall] be handled in accordance with [pursuant to] the requirements of the Public Information Act,
Texas Government Code, Chapter 552.
§27.93.Settlement Approval Procedures.
The parties' settlement approval procedures must [shall] be disclosed prior to, or at the beginning of, negotiations.
To the extent possible, the parties must [shall]
select negotiators who are knowledgeable about the subject matter
of the dispute, who are in a position to reach agreement, and who
can credibly recommend approval of an agreement.
§27.97.Costs of Negotiation.
Unless the parties agree otherwise, each party is [shall be] responsible for its own costs incurred in connection
with a negotiation, including[, without limitation,] the
costs of attorney's fees, consultant's fees and expert's fees.
§27.99.Request for Contested Case Hearing.
(a) A contractor may file a request with the commission
for a contested case hearing before the State Office of Administrative
Hearings (SOAH) if a claim for breach of contract is not resolved
in its entirety through negotiation, mediation or other assisted negotiation
process in accordance with this subchapter 270 days from the date: [If a claim for breach of contract is not resolved in its entirety
through negotiation, mediation or other assisted negotiation process
in accordance with this subchapter on or before the 270th day after
the commission receives the notice of claim, or after the expiration
of any extension agreed to by the parties pursuant to §27.89(f)
of this title (relating to Timetable), the contractor may file a request
with the commission for a contested case hearing before the State
Office of Administrative Hearings (SOAH).]
(1) the commission receives the notice of the claim; or
(2) the expiration of any extension agreed to by the parties in accordance with §27.89(f) of this title (relating to Timetable).
(b) A request for a contested case hearing must [shall] state the legal and factual basis for the claim, and must
[shall] be delivered to the chief administrative
officer of the commission or other officer designated in the contract
to receive notice within a reasonable time after the 270th day or
the expiration of any written extension agreed to in accordance
with [pursuant to] §27.89(f) of this title.
(c) The commission must [shall]
forward the contractor's request for contested case hearing to SOAH
within a reasonable period of time, not to exceed thirty days, after
receipt of the request.
(d) The parties may agree to submit the case to SOAH 270 days from the date [before the 270th day after]
the notice of claim is received by the commission if they have achieved
a partial resolution of the claim or if an impasse has been reached
in the negotiations and proceeding to a contested case hearing would
serve the interests of justice.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401478
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
16 TAC §§27.111, 27.113, 27.115, 27.117, 27.121, 27.123, 27.125, 27.127
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.111.Mediation Timetable.
(a) The contractor and commission may agree to mediate
the dispute at any time 270 days from the date [before
the 270th day after] the commission receives a notice of claim
of breach of contract, or before the expiration of any extension agreed
to by the parties in writing.
(b) A contractor and the commission may mediate the
dispute even after the case has been referred to the State Office
of Administrative Hearings (SOAH) for a contested case. SOAH may also
refer a contested case for mediation in accordance with [pursuant to] its own rules and guidelines, regardless of whether
[or not ]the parties have previously attempted mediation.
§27.113.Conduct of Mediation.
(a) Mediation is a consensual process in which an impartial
third party, the mediator, facilitates communication between the parties
to promote reconciliation, settlement, or understanding among them.
A mediator may not impose their [his/her] own
judgment on the issues for that of the parties. The mediator must
be acceptable to both parties.
(b) The mediation is subject to the provisions of the
Governmental Dispute Resolution Act, Texas Government Code, Chapter
2009. [For purposes of this subchapter, "mediation" is assigned
the meaning set forth in the Civil Practice and Remedies Code, §154.023.]
(c) To facilitate a meaningful opportunity for settlement,
the parties must [shall], to the extent possible,
select representatives who are knowledgeable about the dispute, who
are in a position to reach agreement, or who can credibly recommend
approval of an agreement.
§27.115.Agreement to Mediate.
(a) (No change.)
(b) Any agreement to mediate must [should]
include consideration of the following factors:
(1) The source of the mediator. Potential sources of
mediators include governmental officers or employees who are qualified
as mediators under Civil Practice and Remedies Code, §154.052,
private mediators, the State Office of Administrative Hearings (SOAH),
the Center for Public Policy Dispute Resolution at The University
of Texas School of Law, an alternative dispute resolution system created
under Civil Practice and Remedies Code, Chapter 152, or another state
or federal agency or through a pooling agreement with several state
agencies. Before naming a mediator source in a contract, the parties must [will] contact the mediator source to be sure
that it is willing to serve in that capacity. In selecting a mediator,
the parties must [will] use the qualifications
set forth in subsection §27.117 of this title (relating to Qualifications
and Immunity of the Mediator).
(2) The time period for the mediation. The parties must
[will] allow enough time in which to make arrangements
with the mediator and attending parties to schedule the mediation,
to attend and participate in the mediation, and to complete any settlement
approval procedures necessary to achieve final settlement. While this
time frame can vary according to the needs and schedules of the mediator
and parties, it is important that the parties allow adequate time
for the process.
(3) The location of the mediation, including whether the mediation will be held in-person or through a digital medium.
(4) Allocation of costs of the mediator.
(5) The identification of each representative [representatives] who will attend the mediation on behalf of
the parties, if possible, by name or position within the commission
or contracting entity.
(6) (No change.)
§27.117.Qualifications and Immunity of the Mediator.
(a) The mediator must [shall]
possess the qualifications required under Civil Practice and Remedies
Code, §154.052, be subject to the standards and duties prescribed
by Civil Practice and Remedies Code, §154.053, and have the qualified
immunity prescribed by Civil Practice and Remedies Code, §154.055,
if applicable.
(b) The parties must [will] decide
whether, and to what extent, knowledge of the subject matter and experience
in mediation would be advisable for the mediator.
(c) The parties must [will] obtain
from the prospective mediator the ethical standards that will govern
the mediation.
§27.121.Costs of Mediation.
Unless the contractor and the commission agree otherwise, each
party is [shall be] responsible for its own
costs incurred in connection with the mediation, including costs of
document reproduction for documents requested by such party, attorney's
fees, and consultant or expert fees. The costs of the mediation process
itself must [shall] be divided equally between
the parties.
§27.123.Settlement Approval Procedures.
The parties prior to the mediation must [shall]
disclose the parties' settlement approval procedures. To the extent
possible, the parties must [shall] select representatives
who are knowledgeable about the subject matter of the dispute, who
are in a position to reach agreement, and who can credibly recommend
approval of an agreement.
§27.125.Initial Settlement Agreement.
Any settlement agreement reached during the mediation must [shall] be signed by the representatives of the contractor and
the commission. The agreement [, and] must describe
any procedures required to be followed by the parties in connection
with final approval of the agreement.
§27.127.Final Settlement Agreement.
(a) A final settlement agreement reached during[,]
or as a result of mediation[,] that resolves an entire
claim or any designated and severable portion of a claim must
be: [shall]
(1) [be] in writing; and
(2) signed by representatives of the contractor and the commission who have authority to bind each respective party.
(b) If the settlement agreement does not resolve all
issues raised by each [the] claim and,
as applicable, each counterclaim, the agreement must [shall] identify each issue that is [the issues
that are] not resolved.
(c) (No change.)
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401479
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.143.Factors Supporting the Use of Assisted Negotiation Processes.
The following factors may help parties decide whether one or more assisted negotiation processes could help resolve their dispute:
(1) (No change.)
(2) The expense of proceeding to contested case hearing
at the State Office of Administrative Hearings [(SOAH)]
is substantial and may [might] outweigh any
potential recovery.
(3) The parties seek [want] an
expedited resolution of the dispute.
(4) The ultimate outcome of the dispute is uncertain.
(5) - (7) (No change.)
(8) There is an existing [on-going]
relationship [that exists] between the parties.
(9) - (13) (No change.)
§27.145.Use of Assisted Negotiation Processes.
Any of the following methods, or a combination of these methods,
or any assisted negotiation process agreed to by the parties, may
be used in seeking resolution of disputes or other controversy arising
under Texas Government Code, Chapter 2260. If the parties agree to
use an assisted negotiation procedure, they must [should]
agree in writing to a detailed description of the process prior to
engaging in the process.
(1) (No change.)
(2) Early evaluation by a neutral third-party
[neutral].
(A) - (C) (No change.)
(3) Neutral fact-finding by an expert.
(A) (No change.)
(B) The parties may agree in writing that the fact-finding
will be binding on them in later proceedings [(]and,
if the matter proceeds to contested case hearing, entered into
as a stipulation in the dispute [if the matter proceeds to contested
case hearing)], or that it will be advisory in nature, to be
used only in further settlement discussions between representatives
of the parties. This process may be particularly helpful when:
(i) - (iii) (No change.)
(4) Mini-trial.
(A) - (B) (No change.)
(C) At the hearing, representatives of the parties
present a summary of the anticipated evidence and any legal issues
that must be decided before the case can be resolved. The third-party
neutral presides over the presentation and may question witnesses
and counsel, as well as comment on the arguments and evidence. Each
party may agree to put on abbreviated direct and cross-examination
testimony. [The hearing generally takes no longer than one -
two days.]
(D) - (E) (No change.)
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401480
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
Statutory Authority
The amendments are proposed under Public Utility Regulatory Act (PURA) §14.001, which grants the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction; §14.002 and §14.052, which authorizes the commission to adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; § 14.0025, which requires the commission to develop and implement a policy to encourage the use of alternative dispute resolution.
Cross Reference to Statute: Public Utility Regulatory Act §§14.001, 14.002, 14.0025, and 14,052; Texas Government Code §2155.076, §2260.052(c), and §2161.003; Texas Government Code Chapter 656, Subchapter C, §§656.041-656.104; Texas Government Code Chapters 2260 and 2261; and Civil Practice and Remedies Code Chapters 107 and 154.
§27.161.Procedures for Resolving Vendor Protests.
(a) 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) Interested parties - All vendors who have submitted
bids or proposals for the provision of goods or services in accordance
with [pursuant to] a solicitation for a contract
with the commission.
(b) Protest procedures. Any actual or prospective bidder, offeror [offerer], proposer or contractor who considers
himself to have been aggrieved in connection with the commission's
solicitation, evaluation, or award of a contract may formally protest
to the purchasing officer. Such protests must be made in writing and
received by the purchasing officer within ten working days after the
protesting party knows, or should have known, of the occurrence of
the action that is protested. Protests must conform to the requirements
of this subsection and subsection (d) of this section, and must [shall] be resolved through use of the procedures that are described
in subsections (e) - (j) of this section. The protesting party must [shall] mail or deliver copies of the protest to the purchasing
officer and other interested parties.
(c) Stay of contract award. In the event of a timely
protest under this section, the commission will [shall]
not proceed further with the solicitation or award of the contract
unless the executive director, after consultation with the purchasing
officer and the general counsel, makes a written determination that
the contract must be awarded without delay, to protect the best interests
of the commission.
(d) Protest requirements. A protest must be sworn and contain:
(1) (No change.)
(2) a specific description of each action by the commission
that the protesting party alleges to be a violation of the statutory
or regulatory provision that the protesting party has identified in
accordance with [pursuant to] paragraph (1) of this subsection;
(3) - (6) (No change.)
(e) Purchasing officer's role and responsibilities.
The purchasing officer will [shall] conduct
a review of issues raised by the protesting parties and will [shall] have the following role and responsibilities in resolving
the protest issues among the parties:
(1) - (3) (No change.)
(4) If the purchasing officer determines that no violation
of statutory or regulatory provisions has occurred, then the purchasing
officer must [shall] inform the protesting party,
the executive director, and other interested parties by letter that
states the reasons for the determination.
(5) If the purchasing officer determines that a violation
of any statutory or regulatory provisions may have occurred in a situation
in which a contract has not been awarded, then the purchasing officer must [shall] inform the protesting party, the executive
director, and other interested parties of that determination by letter
that states the reasons for the determination and the appropriate remedy.
(6) If the purchasing officer determines that a violation
of any statutory or regulatory provisions may have occurred in a situation
in which a contract has been awarded, then the purchasing officer must
[shall] inform the protesting party, the executive
director, and other interested parties of that determination by letter
that states the reasons for the determination. This letter may include
a declaration that the contract is void.
(f) Appeal from purchasing officer determination. The
protesting party may appeal a determination of a protest by the purchasing
officer to the executive director of the commission. An appeal of
the purchasing officer's determination must be in writing and received
in the executive director's office no later than ten working days from
[after] the date [on which] the purchasing
officer issued [has sent] written notice of
his determination. The scope of the appeal is [shall
be] limited to a review of the purchasing officer's determination.
The protesting party must [shall] mail or deliver
to the purchasing officer and all other interested parties a copy
of the appeal, which must contain a certified statement that such
copies have been provided.
(g) Executive director review or reference of appeal.
The executive director will [shall] confer with
general counsel in the review of the matter appealed. The executive
director may consider any documents that the commission staff or interested
parties may have submitted. At the discretion of the executive director,
the matter may be referred to the commissioners for their consideration
in a regularly scheduled open meeting or the executive director may
issue a written decision on the protest.
(h) Appeals referred to commission. The following requirements
[shall] apply to a protest that the executive director
has referred to the commissioners:
(1) The executive director will [shall]
deliver copies of the appeal and any responses by interested parties
to the commissioners.
(2) - (3) (No change.)
(4) The commissioners' determination of the appeal will
[shall] be made on the record and reflected in the
minutes of the open meeting, and will [shall]
be final.
(i) Written determination of appeal. A determination
issued either by the commissioners in open meeting, or in writing
by the executive director, will [shall] be the
final administrative action of the commission.
(j) Protest or appeal [Protest/appeal]
not timely filed. A protest or appeal that is not filed timely will [shall] not be considered unless good cause for delay is shown
or the executive director determines that an appeal raises issues
that are significant to commission procurement practices or procedures
in general.
(k) Document retention. The commission will [shall] maintain all documentation on the purchasing process
that is the subject of a protest or appeal in accordance with the
commission's retention schedule.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 11, 2024.
TRD-202401481
Adriana Gonzales
Rules Coordinator
Public Utility Commission of Texas
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 936-7322
CHAPTER 61. COMBATIVE SPORTS
The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 61, §61.10 and §61.110, regarding the Combative Sports program. These proposed changes are referred to as "proposed rules."
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 61, implement Texas Occupations Code, Chapter 2052, Combative Sports.
Slap fighting is a novel combative sports discipline that is growing in popularity in the United States and internationally. The Department has determined that slap fighting meets the statutory definitions of a "combative sport" and "martial art" set out in Texas Occupations Code, Chapter 2052.
The proposed rules recognize slap fighting as a martial arts discipline. This formal recognition allows the Department to extend the licensure and bonding requirements in Texas Occupations Code, Chapter 2052, to promoters and contestants of slap fighting events.
The proposed rules add a definition in 16 TAC, Chapter 61, §61.10, to define the discipline of slap fighting. Additionally, the proposed rules add provisions to 16 TAC, Chapter 61, §61.110, to recognize that slap fighting is subject to the Department's regulatory authority. Lastly, the proposed rules allow contestants in slap fighting events to participate without gloves.
SECTION-BY-SECTION SUMMARY
The proposed rules add new §61.10(16) to add the definition of "slap fighting" and renumber the remaining definitions.
The proposed rules add new §61.110(d) to recognize slap fighting as a martial arts discipline, and to allow slap fighting contestants to compete without gloves.
FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT
Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there will be an impact to state costs and revenues associated with enforcing or administering the proposed rules, but there are no foreseeable implications relating to costs or revenues of local governments.
Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, enforcing or administering the proposed rules will impose costs to the State of $44,400 per fiscal year. These costs are calculated by multiplying the anticipated number of events per year by the cost of the anticipated number of contactors needed to adequately staff each event.
Mr. Couvillon has also determined that for each year of the first five fiscal years the proposed rules are in effect, there will be an increase of revenue to the State associated with enforcing or administering the proposed rules. The increase in revenue will be approximately $160,000 per fiscal year, attributable to the gross receipts tax paid by the promoter for each event held, with 20 events per fiscal year anticipated. Revenue will also be generated through the license fees received from new contestants. The additional revenue from licenses issued in the first fiscal year would be $6,100, with revenues of $5,700 in each subsequent fiscal year.
LOCAL EMPLOYMENT IMPACT STATEMENT
Because Mr. Couvillon has determined that the proposed rules will not affect a local economy, the agency is not required to prepare a local employment impact statement under Government Code §2001.022.
PUBLIC BENEFITS
Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, the public will benefit as the proposed rules will ensure the integrity and safety of slap fighting events. Gross receipts taxes generated from these events will also add to the state's revenue.
PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL
Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.
FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES
There will be no adverse economic effect on small businesses, micro-businesses, or rural communities as a result of the proposed rules. Because the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.
ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT
The proposed rules do not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.
GOVERNMENT GROWTH IMPACT STATEMENT
Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:
1. The proposed rules do not create or eliminate a government program.
2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.
3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.
4. The proposed rules do not require an increase or decrease in fees paid to the agency.
5. The proposed rules do not create a new regulation.
6. The proposed rules expand, limit, or repeal an existing regulation. The proposed rules expand an existing regulation by including slap fighting as a recognized combative sport.
7. The proposed rules increase the number of individuals subject to the rules' applicability. The proposed rules increase the number of individuals subject to the rule's applicability by recognizing slap fighting as a combative sport and thus making the rules applicable to those who participate in slap fighting.
8. The proposed rules do not positively or adversely affect this state's economy.
TAKINGS IMPACT ASSESSMENT
The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.
PUBLIC COMMENTS
Comments on the proposed rules may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules ; by facsimile to (512) 475-3032; or by mail to Shamica Mason, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.
STATUTORY AUTHORITY
The proposed rules are proposed under Texas Occupations Code, Chapters 51 and 2052, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.
The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapters 51 and 2052. No other statutes, articles, or codes are affected by the proposed rules.
§61.10.Definitions.
The following words and terms have the following meanings:
(1) - (15) (No change.)
(16) Slap Fighting--A combative sport in which contestants take turns striking each other in the face with an open hand.
(17) [(16)] Technical Zone--An
alcohol free area located between the ring and a department-approved
barrier with access restricted to designated medical personnel and
equipment; working officials including, managers, ring officials,
contestants, seconds, the promoter, promoter representatives and assignees,
round card staff, department staff, assigned contract inspectors,
authorized members of the media, authorized members of the event's
sanctioning bodies, and security personnel; and regulatory oversight authorities.
(18) [(17)] Timekeeper--A person
who is the official timer of the length of rounds/heats and the intervals
between rounds/heats and counts when a contestant is down.
§61.110.Martial Arts.
(a) All full-contact martial arts are forms of a combative sport.
(b) All rules stated herein apply to martial art competitions with the exception of §§61.106, 61.107, 61.108, and 61.112, unless this section conflicts with another rule stated herein. If a conflict occurs, this section prevails.
(c) If a contest or exhibition of a martial art is not conducted pursuant to §61.111 or §61.112 of these rules, it must be conducted pursuant to the official rules for the particular art, which must be filed with and approved by the Department. The sponsoring organization or promoter must file with and obtain permission of the Executive Director prior to holding the contest.
(d) Slap fighting is a martial arts discipline recognized by the Department. Rules for a slap fighting contest proposed under subsection (c) may allow contestants to compete without gloves.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 15, 2024.
TRD-202401573
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 463-7750
The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 75, §75.110, regarding the Air Conditioning and Refrigeration Contractors Program. These proposed changes are referred to as the "proposed rule."
EXPLANATION OF AND JUSTIFICATION FOR THE RULE
The rules under 16 TAC, Chapter 75, implement Texas Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors.
The Air Conditioning and Refrigeration Contractor License Law, Texas Occupations Code, Chapter 1302, §1302.101(a), requires the Commission to adopt rules for the practice of air conditioning and refrigeration contracting that are at least as strict as the standards of the Uniform Mechanical Code and the International Mechanical Code. The codes define the standard of practice for air conditioning and refrigeration contracting and are used by Department staff to evaluate the mechanical integrity and proper installation and service of air conditioning and refrigeration systems. Texas has also adopted the International Residential Code and the International Fuel Gas Code in accordance with Texas Occupations Code, Chapter 1301, Plumbers, §1301.255. The proposed rule amendments are necessary to align the program's regulations with these currently recognized national standards and to provide clarity and consistency for the Department's licensees.
The proposed rule updates the applicable code editions from 2018 to 2021 for the International Residential Code, International Mechanical Code, International Fuel Gas Code, and Uniform Mechanical Code.
Advisory Board Recommendations
The proposed rule was presented to and discussed by the Air Conditioning and Refrigeration Contractors Advisory Board at its meeting on March 27, 2024. The Advisory Board did not make any changes to the proposed rule. The Advisory Board voted and recommended that the proposed rule be published in the Texas Register for public comment.
SECTION-BY-SECTION SUMMARY
The proposed rule amends §75.110, Applicable Codes, subsection (a), to adopt the 2021 editions of the International Residential Code, International Mechanical Code, International Fuel Gas Code, and Uniform Mechanical Code.
The proposed rule amends §75.110, Applicable Codes, subsection (b), to state that the currently adopted code editions will remain in effect through August 31, 2024. Proposed subsection (b) states that air conditioning and refrigeration work permitted or started before September 1, 2024, may be performed in accordance with the 2018 edition of the applicable codes.
FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT
Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs, and no estimated increase or loss in revenue, to state or local governments as a result of enforcing or administering the proposed rule.
LOCAL EMPLOYMENT IMPACT STATEMENT
Mr. Couvillon has determined that the proposed rule will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Texas Government Code §2001.022.
PUBLIC BENEFITS
Mr. Couvillon also has determined that for each year of the first five-year period the proposed rule is in effect, the public will benefit from enhanced safety, product reliability, equipment compatibility, and energy efficiencies in enhancing the installation practices of air conditioning and refrigeration contractors and their technicians, while taking advantage of technical advances.
PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSED RULE
Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there may be negligible economic costs to persons who are required to comply with it. Local governments adopt changes and updates to the codes on a timeline that is best for their specific needs and resources. Therefore, the State's adoption of the new codes, with which most contractors are already required to comply, should not have an impact. For work in unincorporated areas that are subject to the State-adopted codes, the State adopts them one code-cycle (three years) after the codes' issuance to allow the industry, licensees, and the general public to become familiar with and prepare for any and all changes. Any additional minor cost increases for new technology requirements are expected to be offset by benefits from increased safety, product reliability, energy efficiency, and equipment compatibility going forward.
FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES
The Air Conditioning and Refrigeration Contractors Program regulates individuals who perform these services, some of whom could be categorized as small or micro-businesses. The Department anticipates that the adoption of the 2021 codes will not have any adverse economic effects on any small or micro-businesses because the majority of the new code requirements are consistent with the 2018 codes. Any costs will be minimal and will not have an overall effect on any business, regardless of its size.
The proposed rule has no anticipated adverse economic effect on rural communities because the rule adopting the revised codes will not decrease the availability of air conditioning and refrigeration services or increase the cost of those services. Additionally, for work in unincorporated areas that are subject to the State-adopted codes, the State adopts the updates one code cycle (three years) after the codes' issuance to allow the industry, licensees, and the general public to become familiar with any and all changes.
ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT
The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Texas Government Code §2001.0045.
GOVERNMENT GROWTH IMPACT STATEMENT
Pursuant to Texas Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:
1. The proposed rule does not create or eliminate a government program.
2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.
3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.
4. The proposed rule does not require an increase or decrease in fees paid to the agency.
5. The proposed rule does not create a new regulation.
6. The proposed rule expands an existing regulation in the sense that the rule adopts the 2021 code editions, which merely update some provisions of the 2018 editions of the codes. Therefore, the proposed rule modifies an existing regulation by changing the versions of the codes with which individuals must comply. However, the proposed rule does not have an impact on government growth.
7. The proposed rule does not increase or decrease the number of individuals subject to the rules' applicability.
8. The proposed rule does not positively or adversely affect this state's economy.
TAKINGS IMPACT ASSESSMENT
The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, the proposed rule does not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.
PUBLIC COMMENTS
Comments on the proposed rule may be submitted electronically on the Department's website at https://ga.tdlr.texas.gov:1443/form/gcerules; by facsimile to (512) 475-3032; or by mail to Monica Nuñez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The deadline for comments is 30 days after publication in the Texas Register.
STATUTORY AUTHORITY
The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 1302, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. The proposed rule is also proposed under Texas Occupations Code, Chapter 1301, Plumbers.
The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51, 1301, and 1302. No other statutes, articles, or codes are affected by the proposed rule.
§75.110.Applicable Codes.
(a) Effective September 1, 2024 [January
1, 2021], the commission adopts the following applicable codes
as referenced in the Act and this chapter:
(1) 2021 [2018] International Residential Code;
(2) 2021 [2018] International Mechanical Code;
(3) 2021 [2018] International Fuel Gas Code; and
(4) 2021 [2018] Uniform Mechanical Code.
(b) The 2018 [2015] codes shall
remain in effect through August 31, 2024 [December
31, 2020]. All air conditioning and refrigeration work permitted
or started before September 1, 2024 [January 1, 2021],
may be completed in accordance with the 2018 [2015]
code editions.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 15, 2024.
TRD-202401577
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Earliest possible date of adoption: May 26, 2024
For further information, please call: (512) 475-4879