TITLE 34. PUBLIC FINANCE

PART 1. COMPTROLLER OF PUBLIC ACCOUNTS

CHAPTER 11. GOVERNMENT GROWTH IMPACT STATEMENT

34 TAC §11.1

The Comptroller of Public Accounts adopts new §11.1, concerning government growth impact statements, with changes to the proposed text as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3738). The section will to be located in new Chapter 11, entitled "Government Growth Impact Statements."

The new section is adopted to comply with Government Code, §2001.0221(c), which was enacted by House Bill 1290, 85th Legislature, 2017. Government Code, §2001.0221(c) requires the comptroller to adopt rules to implement Government Code, §2001.0221, concerning government growth impact statements.

Subsection (a) provides definitions.

Subsection (b) requires a state agency to prepare a government growth impact statement for each rule that is proposed for adoption in a formal rulemaking proceeding under Government Code, Chapter 2001, Subchapter B (Rulemaking).

Subsection (c) requires a state agency to incorporate the government growth impact statement into the notice required by Government Code, §2001.024 (Content of Notice).

Subsection (d) outlines the content of the government growth impact statement. As required by House Bill 1290, the government growth impact statement must address whether a proposed rule: creates or eliminates a government program; requires the creation of new employee positions or the elimination of existing employee positions; requires an increase or decrease in future legislative appropriations to the agency; requires an increase or decrease in fees paid to the agency; creates a new regulation; expands, limits, or repeals an existing regulation; increases or decreases the number of individuals subject to the rule's applicability; and positively or adversely affects this state's economy.

Subsection (e) requires a state agency to write the government growth impact statement in plain language.

Subsection (f) provides that in preparing the government growth impact statement, a state agency should use information that is readily available to the state agency.

The comptroller received comments from one commenter: Emily McCoy, Associate General Counsel, Division of Workers' Compensation, Texas Department of Insurance (TDI-DWC).

First, Ms. McCoy states that TDI-DWC should not be excluded from the proposed definition of "state agency" in §11.1(a)(3) because the proposed definition does not reflect the provisions of Texas Labor Code, §401.021 and "[t]he exclusion of TDI-DWC may cause ambiguity in rulemaking." The comptroller agrees with this comment and adopts this change.

Second, Ms. McCoy "requests the Comptroller to consider prescribing a chart for state agencies to use as a guide when preparing the government growth impact statement." The comptroller declines to adopt this change because the proposed language of the rule gives a state agency the flexibility to submit a government growth impact statement in a format that works best for that agency and Texas Register staff have indicated that it is more efficient for submissions to be in a narrative format.

Third, Ms. McCoy asks the comptroller to clarify the proposed language in §11.1(d)(8) "and/or provide examples to illustrate the extent of the 'state's economy' and what a positive or adverse effect may be." The comptroller declines to adopt this change because the particular state agency that is engaged in rulemaking is in the best position to determine the various elements of the state's economy that may be affected by that agency's rulemaking.

The new section is adopted under Government Code, §2001.0221(c).

The new section implements Government Code, §2001.0221.

§11.1.Government Growth Impact Statements.

(a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Regulation--A rule.

(2) Rule--

(A) a state agency statement of general applicability that:

(i) implements, interprets, or prescribes law or policy; or

(ii) describes the procedure or practice requirements of a state agency;

(B) includes the amendment or repeal of a prior rule; and

(C) does not include a statement regarding only the internal management or organization of a state agency and not affecting private rights or procedures.

(3) State agency--A state officer, board, commission, or department with statewide jurisdiction that makes rules or determines contested cases. The term includes the State Office of Administrative Hearings for the purpose of determining contested cases, and, to the extent provided by Labor Code, Title 5 (Workers' Compensation), the Texas Department of Insurance, as regards proceedings and activities under Labor Code, Title 5, of the department, the commissioner of insurance, or the commissioner of workers' compensation. The term does not include:

(A) a state agency wholly financed by federal money;

(B) the legislature;

(C) the courts; or

(D) an institution of higher education.

(b) A state agency shall prepare a government growth impact statement for each rule that is proposed for adoption in a formal rulemaking proceeding under Government Code, Chapter 2001, Subchapter B (Rulemaking).

(c) A state agency shall incorporate the government growth impact statement into the notice required by Government Code, §2001.024 (Content of Notice).

(d) A state agency shall reasonably describe in the government growth impact statement whether, during the first five years that the proposed rule would be in effect:

(1) the proposed rule creates or eliminates a government program;

(2) implementation of the proposed rule requires the creation of new employee positions or the elimination of existing employee positions;

(3) implementation of the proposed rule requires an increase or decrease in future legislative appropriations to the agency;

(4) the proposed rule requires an increase or decrease in fees paid to the agency;

(5) the proposed rule creates a new regulation;

(6) the proposed rule expands, limits, or repeals an existing regulation;

(7) the proposed rule increases or decreases the number of individuals subject to the rule's applicability; and

(8) the proposed rule positively or adversely affects this state's economy.

(e) The state agency must write the government growth impact statement in plain language.

(f) In preparing the government growth impact statement, a state agency shall utilize information that is readily available to the state agency.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on September 11, 2017.

TRD-201703567

Lita Gonzalez

General Counsel

Comptroller of Public Accounts

Effective date: October 1, 2017

Proposal publication date: July 28, 2017

For further information, please call: (512) 475-0387