PART 1. RAILROAD COMMISSION OF TEXAS
CHAPTER 7. GAS SERVICES
SUBCHAPTER D. CUSTOMER SERVICE AND PROTECTION
The Railroad Commission of Texas (Commission) proposes new §7.480 relating to Energy Conservation Programs. The Commission proposes the new rule pursuant to House Bill 2263, 88th Legislative Session (2023) which added new Subchapter J, Natural Gas Energy Conservation Programs, in Chapter 104, Texas Utilities Code. The Commission also proposes amendments to §7.460 relating to Suspension of Gas Utility Service Disconnection During an Extreme Weather Emergency, pursuant to Texas Utilities Code §105.023, which requires the Commission to adopt a classification table to guide courts in issuing civil penalties against gas utilities who disconnect service to residential customers during an extreme weather emergency.
House Bill 2263 relates to energy conservation programs that may be offered by a local distribution company (LDC) to its residential and commercial customers. Proposed new subsection (a) explains the energy conservation program authority given to an LDC to offer such programs to current and prospective residential and commercial customers. Subsection (a) also states that the Commission has exclusive original jurisdiction over energy conservation programs implemented by LDCs. Further, proposed subsection (a) states that a political subdivision shall not limit, restrict, or otherwise prevent an eligible customer from participating in an LDC's programs based on the type or source of energy delivered to the LDC's customers.
Proposed new subsection (b) defines administrative costs, Director, energy conservation program (ECP), energy conservation program rate, Gas Services, local distribution company (LDC), ECP portfolio, portfolio costs, and program year.
Proposed new subsection (c) lists the general requirements for an LDC to recover its costs of an ECP if approved by the Commission. An LDC must apply for each service area in which it seeks to implement an ECP. If the Commission approves the original application or approves an application with modifications, the LDC may begin to recover costs prudently incurred to implement the portfolio. Costs are subject to review by the Commission and may be refunded if imprudent or recovered from customers without Commission approval.
Proposed new subsection (d) lists the contents of the application based on whether the application is the LDC's initial or subsequent application for an ECP portfolio. Section 104.403 of the Texas Utilities Code requires an LDC to apply to the Commission (1) before the LDC begins to recover ECP portfolio costs; and (2) at least once every three years after the date the LDC first applies for cost recovery. Proposed subsection (d)(1) lists the items to be included in the initial application and proposed subsection (d)(2) lists the items to be included in the subsequent application. For its subsequent ECP portfolio approvals, an LDC must file its application at least 90 days prior to the third anniversary of the LDC's program year. Proposed subsection (d)(3) explains the process for an LDC to add new programs to its existing ECP portfolio.
Proposed new subsection (e) requires an LDC to print the notice of its application for an ECP portfolio in type large enough for easy reading and for that notice to be the only information contained on the piece of paper, or in the emailed notice if applicable. The proposed new subsection requires the notice to be provided in English and in Spanish, and the subsection lists the information that must be included in the notice. The proposed new subsection further requires any promotional materials to be provided in English and in Spanish.
Proposed new subsection (f) describes what the ECP portfolio must accomplish, including that it be designed to overcome barriers to the adoption of energy-efficient equipment, technologies, and processes, and to change customer behavior as necessary. The ECP portfolio may also include measures such as direct financial incentives, technical assistance, discounts or rebates, and weatherization for low-income customers.
Proposed new subsection (g) outlines the cost recovery mechanism. An LDC's application must include the proposed ECP rate. The proposed new subsection specifies the limits of the cost recovery rate and the administrative costs. Proposed subsection (g)(1) includes the formula LDCs must use to calculate a separate ECP rate for each customer class. Upon Commission approval of an ECP rate, the LDC shall update its residential and commercial tariffs to reflect the approved ECP rate.
Proposed new subsection (h) specifies the procedure for review by the Director of Gas Services to ensure that ECP applications are reviewed for compliance with the rule and with Texas Utilities Code, §§104.401-104.403. The Director shall prepare a written recommendation and provide it to the LDC; the recommendation may include approval of the ECP application as filed, approval of the ECP application with modifications, or rejection of the ECP application. The recommendation shall be submitted to the Commission for decision at a scheduled open meeting. If the Commission approves an ECP portfolio at an open meeting, the LDC shall file the applicable rate schedules in accordance with proposed new subsection (i).
Proposed new subsection (i) requires an LDC to include proposed rate schedules with its application for an ECP portfolio. If an LDC's proposed ECP portfolio is approved by the Commission, the approved ECP rate schedule shall be electronically filed by the LDC in accordance with §7.315 of this title (relating to Filing of Tariffs). An ECP rate approved by the Commission at an open meeting and implemented by the LDC shall be subject to refund unless and until the rate schedule is electronically filed and accepted by Gas Services.
Proposed new subsection (j) requires an LDC to file an annual ECP report each year an approved ECP portfolio is implemented. The report shall be filed no later than 45 days following the end of the LDC's program year. The proposed new subsection outlines the items to be included in the annual report and prohibits the LDC from implementing any adjusted ECP rates until 30 days after submitting the annual report.
Proposed new subsection (k) states the procedure for an LDC implementing an approved ECP portfolio to reimburse the Commission for the LDC's share of the Commission's estimated costs related to administration of reviewing and approving or denying cost recovery applications under this section. The Director shall estimate the LDC's share of the Commission's annual costs related to the processing of such applications. The LDC shall reimburse the Commission for the amount so determined within 30 days after receipt of notice of the reimbursement amount.
In conjunction with the proposed new rule, the Commission proposes amendments to §7.460(b). Proposed amendments in subsection (b)(1) add a reference to Texas Utilities Code §105.023, which provides that the Office of the Attorney General of Texas on its own initiative or at the request of the Commission may file suit to recover a civil penalty for violation of Texas Utilities Code §104.258(c). Section 105.023 requires that the Commission establish a classification system to be used by a court for violations of §104.258(c) that includes a range of penalties that may be recovered for each class of violations. Subsection (b)(1) includes the required classification table, outlining certain violation factors and values for each factor to determine the dollar amount of penalties to be sought.
Mark Evarts, Director, Gas Services Section of the Oversight and Safety Division, has determined that for each year of the first five years that the new rule and amendments will be in effect, there will be no additional economic costs for persons required to comply with the proposed new §7.480 because energy conservation programs are optional. Further, the classification system proposed in amendments to §7.460 does not create new requirements for persons required to comply, but instead creates a range of penalties for rule violators. The Commission notes that although the persons required to comply with new §7.480 (i.e., LDCs) will not incur economic costs due to the rule, residential and commercial customers of an LDC that implements an approved ECP will be required to pay a monthly charge associated with the ECP. House Bill 2263 allows LDCs to implement that monthly charge.
Mr. Evarts has determined that for each year of the first five years that the new rule and amendments will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering new §7.480. However, proposed subsection (k) requires LDCs to reimburse the Commission for costs incurred in reviewing ECP portfolio applications. There is no additional cost estimated as a result of enforcing and administering §7.460. There will be no fiscal effect on local government.
Mr. Evarts has determined that for each year of the first five years that the new rule and amendments will be in effect, the public benefit will be implementation of required legislation.
In accordance with Texas Government Code, §2006.002, the Commission has determined there will be no adverse economic effect on rural communities, small businesses or micro-businesses resulting from the proposed new rule and amendments. As discussed above, there will be no additional economic costs for persons required to comply as a result of adoption of the proposed new rule and amendments; therefore, the Commission has not prepared the economic impact statement or the regulatory flexibility analysis required under §2006.002.
The Commission has determined that the proposed rulemaking will not affect a local economy; therefore, pursuant to Texas Government Code, §2001.022, the Commission is not required to prepare a local employment impact statement for the proposed rules.
The Commission has determined that the proposed new rule and amendments do not meet the statutory definition of a major environmental rule as set forth in Texas Government Code, §2001.0225; therefore, a regulatory analysis conducted pursuant to that section is not required.
During the first five years that the rule and amendments would be in effect, the proposed new rule and amendments would not: create or eliminate any employee positions; require an increase or decrease in future legislative appropriations; increase fees paid to the agency; create a new regulation; increase or decrease the number of individuals subject to the rule's applicability; expand, limit, or repeal an existing regulation; or affect the state's economy. As discussed above, the proposed new rule creates a program pursuant to HB 2263 to allow LDCs to apply for Commission approval of energy conservation programs, and the proposed amendments clarify potential penalties for rule violators.
Comments on the proposal may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at https://rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings/; or by electronic mail to rulescoordinator@rrc.texas.gov. The Commission will accept comments until 5:00 p.m. on Wednesday, October 25, 2023. The Commission finds that this comment period is reasonable because the proposal and an online comment form will be available on the Commission's web site more than two weeks prior to Texas Register publication of the proposal, giving interested persons additional time to review, analyze, draft, and submit comments. The Commission encourages all interested persons to submit comments no later than the deadline. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call the Gas Services Section at (512) 463- 7167. The status of Commission rulemakings in progress is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.
The Commission proposes the amendment and new rule pursuant to Texas Utilities Code, §§104.401-104.403 and §105.023.
Statutory authority: Texas Utilities Code, §§104.401-104.403 and §105.023.
Cross-reference to statute: Texas Utilities Code, Chapters 104 and 105.
§7.460.Suspension of Gas Utility Service Disconnection During an Extreme Weather Emergency.
(a) Applicability and scope. This rule applies to gas utilities, as defined in Texas Utilities Code, §101.003(7) and §121.001, and to owners, operators, and managers of mobile home parks or apartment houses who purchase natural gas through a master meter for delivery to a dwelling unit in a mobile home park or apartment house, pursuant to Texas Utilities Code, §§124.001-124.002, within the jurisdiction of the Railroad Commission pursuant to Texas Utilities Code, §102.001. For purposes of this section, all such gas utilities and owners, operators and managers of master meter systems shall be referred to as "providers." Providers shall comply with the following service standards. A gas distribution utility shall file amended service rules incorporating these standards with the Railroad Commission in the manner prescribed by law.
(b) Disconnection prohibited. Except where there is
a known dangerous condition or a use of natural gas service in a manner
that is dangerous or unreasonably interferes with service to others,
a provider shall not disconnect natural gas service in the following
circumstances. [to:]
(1) A provider shall not disconnect a delinquent residential customer during an extreme weather emergency. An extreme weather emergency means a day when the previous day's highest temperature did not exceed 32 degrees Fahrenheit and the temperature is predicted to remain at or below that level for the next 24 hours according to the nearest National Weather Station for the county where the customer takes service. In accordance with Texas Utilities Code §105.023, the Office of the Attorney General of Texas on its own initiative or at the request of the Commission may file suit to recover a civil penalty for a violation of this paragraph. The table in this paragraph contains a classification system to be used by a court when such a suit is filed.
Figure: 16 TAC §7.460(b)(1) (.pdf)
(2) A provider shall not disconnect a delinquent
residential customer for a billing period in which the provider receives
a written pledge, letter of intent, purchase order, or other written
notification from an energy assistance provider that it is forwarding
sufficient payment to continue service.[; or]
(3) A provider shall not disconnect a delinquent residential customer on a weekend day, unless personnel or agents of the provider are available for the purpose of receiving payment or making collections and reconnecting service.
(c) Payment plans. Providers shall defer collection of the full payment of bills that are due during an extreme weather emergency until after the emergency is over, and shall work with customers to establish a payment schedule for deferred bills as set forth in §7.45 of this title (relating to Quality of Service).
(d) Notice. Beginning in the September or October billing periods utilities and owners, operators, or managers of master metered systems shall give notice as follows:
(1) Each utility shall provide a copy of this rule to the social services agencies that distribute funds from the Low Income Home Energy Assistance Program within the utility's service area.
(2) Each utility shall provide a copy of this rule to any other social service agency of which the provider is aware that provides financial assistance to low income customers in the utility's service area.
(3) Each utility shall provide a copy of this rule to all residential customers of the utility and customers who are owners, operators, or managers of master metered systems.
(4) Owners, operators, or managers of master metered systems shall provide a copy of this rule to all of their customers.
(e) In addition to the minimum standards specified in this section, providers may adopt additional or alternative requirements if the provider files a tariff with the Commission pursuant to §7.315 of this title (relating to Filing of Tariffs). The Commission shall review the tariff to ensure that at least the minimum standards of this section are met.
§7.480.Energy Conservation Programs.
(a) Energy conservation program authority. A local distribution company may offer to residential and commercial customers and prospective residential and commercial customers and provide to those customers an energy conservation program pursuant to this section and Texas Utilities Code, §§104.401-104.403. The Commission has exclusive original jurisdiction over energy conservation programs implemented by local distribution companies. A political subdivision served by a local distribution company that implements an energy conservation program approved by the Commission pursuant to this section shall not limit, restrict, or otherwise prevent an eligible customer from participating in the energy conservation program based on the type or source of energy delivered to its customers.
(b) Definitions.
(1) Administrative costs--The costs of creating, managing, and administering an ECP portfolio.
(2) Director--The Director of the Gas Services Department of the Oversight and Safety Division or the Director's delegate.
(3) Energy conservation program (ECP)--A particular program that promotes energy conservation or energy efficiency.
(4) Energy conservation program rate--The energy conservation program rate approved by the Commission in the form of a monthly customer charge.
(5) Gas Services--The Gas Services Department of the Oversight and Safety Division of the Commission.
(6) Local distribution company (LDC)--An investor-owned gas utility that operates a retail gas distribution system.
(7) ECP portfolio--The entire group of energy conservation programs offered by a local distribution company as described in subsection (f) of this section. The portfolio may consist of one or more programs.
(8) Portfolio costs--Costs prudently incurred by an LDC to design, market, implement, administer, and deliver an ECP portfolio that has been approved by the Commission, including but not limited to payment of rebates, material costs, the costs associated with installation and removal of replaced materials and/or equipment, and the cost of education and customer awareness materials related to conservation or efficiency.
(9) Program year--The 12-month period beginning the first day of the month following the Commission's approval of the program.
(c) General requirements.
(1) An LDC may recover costs of an ECP portfolio if it is approved by the Commission pursuant to this section and the LDC complies with the approved ECP portfolio. An LDC seeking to implement an ECP portfolio in one or more of its service areas shall apply with Gas Services and receive a final order from the Commission before beginning to recover the costs.
(2) An LDC applying for an ECP portfolio shall submit an application for each service area in which it seeks to implement an ECP.
(3) If the Commission approves the LDC's application or approves the application with modifications, the LDC may recover costs prudently incurred to implement the ECP portfolio, including costs incurred to design, market, implement, administer, and deliver the ECP portfolio. Any costs included in an ECP portfolio approved by the Commission shall be fully subject to review by the Commission for reasonableness and prudence. ECP portfolio costs that are imprudent or recovered from customers without approval of the Commission are subject to refund as determined by the Commission.
(d) Contents of application. An LDC may apply for approval of an ECP portfolio by submitting an application to Gas Services.
(1) Initial ECP portfolio application. An initial application for approval of an ECP portfolio shall include:
(A) a list and detailed description of each proposed ECP;
(B) the objectives for each proposed ECP;
(C) the proposed annual budget for each ECP and the ECP portfolio;
(D) the proposed administrative costs for each ECP and the ECP portfolio;
(E) the proposed proportion of ECP portfolio costs to be funded by customers;
(F) the proposed proportion of ECP portfolio costs to be funded by shareholders;
(G) the projected annual consumption reduction per customer class for each ECP and the ECP portfolio;
(H) the projected annual cost savings per customer class for each ECP and the ECP portfolio;
(I) a copy of the notice to customers and an affidavit stating the method of notice and the date or dates on which the notice was given;
(J) copies of written correspondence received by the LDC in response to the notice;
(K) copies of any proposed advertisements or promotional materials that the LDC intends to distribute to customers if an ECP portfolio is approved;
(L) copies of the proposed ECP rate schedule or schedules; and
(M) the name of the LDC's representative, business address, telephone number, and email address.
(2) Subsequent ECP portfolio application. An LDC shall re-apply for approval of its ECP portfolio every three years. The subsequent application shall be filed 90 days prior to the third anniversary of the LDC's program year. A subsequent application for approval of an ECP portfolio shall include:
(A) a list and detailed description of each proposed ECP;
(B) the objectives for each ECP;
(C) the proposed annual budget for each ECP and ECP portfolio;
(D) the proposed administrative costs for each ECP and the ECP portfolio;
(E) the actual historical annual budget for each ECP and the ECP portfolio;
(F) the actual historical administrative costs for each ECP and the ECP portfolio;
(G) the proposed proportion of ECP portfolio costs to be funded by customers;
(H) the proposed proportion of ECP portfolio costs to be funded by shareholders;
(I) the projected and actual historical annual consumption reduction per customer class for each ECP and the ECP portfolio;
(J) the projected and actual historical annual cost savings per customer class for each ECP and the ECP portfolio;
(K) copies of any proposed advertisements or promotional materials that the LDC intends to distribute to customers if the ECP portfolio is approved;
(L) copies of the proposed rate schedule or schedules;
(M) the name of the LDC's representative, business address, telephone number, and email address; and
(N) if the LDC proposes a new ECP, or proposes changes to an existing ECP such that costs to customers increase, the LDC shall provide notice in accordance with subsection (e) of this section and include in its subsequent application the documents required by paragraph (1)(I) and (J) of this subsection.
(3) Addition of new programs to existing ECP portfolio. An initial or subsequent application may contain information on one or more ECPs. If an LDC proposes to add a new ECP to its portfolio after approval of its initial application, the LDC shall propose the new ECP in its subsequent application and include the information required by paragraph (1) of this subsection for the proposed new ECP.
(e) Notice and promotional materials.
(1) Notice. An LDC shall print the notice of its application for an ECP portfolio in type large enough for easy reading. The notice shall be the only information contained on the piece of paper on which it is written or in the emailed notice if applicable. An LDC may give the notice required by this section either by separate mailing or by otherwise delivering the notice with its billing statements. Notice may be provided by email if the customer to receive the notice has consented to receive notices by email. Notice by mail shall be presumed to be complete three days after the date of deposit of the paper upon which it is written, enclosed in a postage-paid, properly addressed wrapper, in a post office or official depository under the care of the United States Postal Service. The notice shall be provided in English and Spanish. The notice to customers shall include the following information:
(A) a description of each ECP in its proposed portfolio;
(B) the effect the proposed ECP portfolio is expected to have on the rates applicable to each affected customer class and on an average bill with and without gas cost for each affected customer class;
(C) the service area or areas in which the proposed ECP portfolio would apply;
(D) the date the proposed ECP portfolio application was or will be filed with the Commission;
(E) the LDC's address, telephone number, and web site where the application for approval of an ECP portfolio may be obtained; and
(F) a statement that any affected person may file written comments or a protest concerning a proposed ECP portfolio with Gas Services by email to MOS@rrc.texas.gov and to an email address for the LDC company included in its notice.
(2) Promotional materials. Any promotional materials shall be provided to customers in English and Spanish.
(f) Portfolio. An ECP portfolio:
(1) shall be designed to overcome barriers to the adoption of energy-efficient equipment, technologies, and processes, and be designed to change customer behavior as necessary; and
(2) may include measures such as:
(A) direct financial incentives;
(B) technical assistance and information, including building energy performance analyses performed by the LDC or a third party approved by the LDC;
(C) discounts or rebates for products; and
(D) weatherization for low-income customers.
(g) Cost recovery mechanism. The application for approval of an ECP portfolio shall include a proposed ECP rate. Cost recovery shall be limited to the incremental costs of providing an ECP portfolio that are not already included in the then-current cost of service rates of the LDC. Administrative costs in excess of 15% of the total costs of the portfolio shall not be included in the ECP rate or recovered from customers in any way.
(1) A separate ECP rate shall be calculated for each customer class in accordance with the following formula: ECP rate = (CCR per Class + BA per Class)/Number of Annual Bills per Class, where:
(A) CCR, Current Cost Recovery, is all projected costs attributable to the local distribution company's energy conservation portfolio for the program year;
(B) BA, Balance Adjustment, is the computed difference between CCR collections by class and expenditures by class, including the pro-rata share of common administrative costs for each class for the program year and collection of the over/under recovery during the prior program year; and
(C) Class is the customer class to which the ECP rate will apply.
(2) Upon the Commission's approval of the ECP rate, the LDC shall update its residential and commercial tariffs to reflect the approved ECP rate.
(h) Procedure for review. The Director of Gas Services shall ensure that applications for ECP portfolios are reviewed for compliance with the requirements of Texas Utilities Code, §§104.401-104.403 and this section. Upon completion of the review, Gas Services will prepare a written recommendation, which shall be provided to the applicant LDC.
(1) The recommendation may include:
(A) approval of the application for an ECP portfolio as filed;
(B) approval of the application for an ECP portfolio with modifications; or
(C) rejection of the application for an ECP portfolio.
(2) The recommendation shall be submitted to the Commission for decision at a scheduled open meeting.
(3) If the Commission approves an ECP portfolio at an open meeting, the LDC shall file the applicable rate schedules implementing the ECP portfolio in accordance with subsection (i) of this section.
(i) Rate schedules. The LDC shall include proposed rate schedules with its application for an ECP portfolio. Each ECP rate schedule shall be made on a form approved by the Commission and made available on the Commission's website. If the LDC's proposed ECP portfolio is approved by the Commission, the approved rate schedules shall be electronically filed by the LDC in accordance with §7.315 of this title (relating to Filing of Tariffs). An ECP rate approved by the Commission at an open meeting and implemented by the LDC shall be subject to refund unless and until the rate schedules are electronically filed and accepted by Gas Services in accordance with §7.315 of this title.
(j) ECP annual report.
(1) An LDC implementing an approved ECP portfolio pursuant to this section shall file an ECP annual report with the Commission. The report shall be filed each year of an approved ECP portfolio is implemented and shall be filed no later than 45 days following the end of the LDC's program year. The ECP annual report shall be in the format prescribed by the Commission and shall include the following:
(A) an overview of the LDC's ECP portfolio;
(B) a description of each ECP offered under the portfolio that includes the program's performance for the preceding year, actual program expenditures, and program results;
(C) the LDC's planned ECPs for the upcoming year; and
(D) schedules detailing program expenditures for the program year, actual amounts collected for the program year, and the calculation of the adjusted ECP rate for each applicable customer class.
(2) The LDC shall not implement any adjusted ECP rates until 30 days after submitting the annual report.
(k) Reimbursement. An LDC implementing an approved ECP portfolio pursuant to this section shall reimburse the Commission for the LDC's share of the Commission's estimated costs related to administration of reviewing and approving or denying cost recovery applications under this section. The Director shall estimate the LDC's share of the Commission's annual costs related to the processing of such applications. The LDC shall reimburse the Commission for the amount so determined within 30 days after receipt of notice of the amount of the reimbursement.
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 September 19, 2023.
TRD-202303488
Haley Cochran
Assistant General Counsel, Office of General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: November 5, 2023
For further information, please call: (512) 475-1295
CHAPTER 76. WATER WELL DRILLERS AND WATER WELL PUMP INSTALLERS
16 TAC §§76.22, 76.24, 76.25, 76.27, 76.70, 76.80
The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 76, §§76.22, 76.24, 76.25, 76.27, 76.70, and 76.80, regarding the Water Well Drillers and Pump Installers program. These proposed changes are referred to as "proposed rules."
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC, Chapter 76, implement Texas Occupations Code, Chapter 1901, Water Well Drillers, and Chapter 1902, Water Well Pump Installers.
Implementation of HB 3744
The proposed rules implement HB 3744, 88th Legislature, Regular Session (2023). This legislation establishes that a license issued under Sections 1901.155 and 1902.155 of the Texas Occupations Code, relating to water well drillers and water well pump installers, is valid for one or two years, as determined by commission rule.
The proposed rules are necessary to establish a change in the length of the license terms for certain license holders. Beginning on January 1, 2024, the license terms for initial licenses for the driller, pump installer, and combination driller and pump installer license types change from one to two years.
Additionally, the proposed rules are necessary to establish that existing licenses renewed by the Department are valid for one year if renewed before March 1, 2024, or for two years if renewed on or after March 1, 2024. The proposed rules will allow for the change in the license terms to be phased in as the license holders renew their licenses. The continuing education requirements and the fees are also adjusted accordingly for holders of those licenses.
Changes to State Well Reports
Lastly, the proposed rules implement staff changes. The proposed establish that well drillers shall now deliver a copy of their well log to the Department electronically through the Texas Well Report Submission and Retrieval System (TWRSRS). The proposed rules are necessary to streamline the state well report process, which will save well drillers and the state resources.
Advisory Council Recommendations
The proposed rules were presented to and discussed by the Water Well Drillers and Pump Installers Advisory Council at its meeting on September 21, 2023. The Advisory Council voted and recommended that the proposed rules be published in the Texas Register for public comment with additional recommended changes to §76.25(c). The Advisory Council recommended to increase the number of continuing education hours for an apprentice registrant from one hour to four hours, with one hour dedicated to statutes and rules and three hours dedicated to topics directly related to the water well industry. The Department did not include the Advisory Council's recommendation regarding §76.25(c) in this proposal, but will take it into consideration for a future rulemaking.
SECTION-BY-SECTION SUMMARY
The proposed rules amend §76.22. Applications for Licenses and Renewals. The proposed rules establish that, beginning on January 1, 2024, a license issued by the Department will no longer expire annually from the date issued. Instead, licenses issued by the Department are valid for two years from the date issued. Any license issued before January 1, 2024, will continue to be valid for one year.
The proposed rules amend §76.24. License Renewal. The proposed rules remove the requirement of paying an annual fee to the Department for license renewal and establishes that it must instead be paid on or before the expiration date of the license. Licensees must show proof of continuing education to renew. Licenses that are renewed before March 1, 2024, are valid for one year while those renewed on or after March 1, 2024, are valid for two years. This change ensures revenue from licensees are received in odd-numbered and even-numbered years.
The proposed rules amend §76.25. Continuing Education. The proposed rules update the continuing education hour requirements for licensees to correspond with the changes in the license terms. For licensees who renew before March 1, 2024, four (4) hours of continuing education are required to renew a license: one (1) hour of instruction dedicated to Water Well Driller/Pump Installer statutes and rules and three (3) hours of topics directly related to the water well industry. For licensees who renew on or after March 1, 2024, eight (8) hours of continuing education are required to renew a license: one (1) hour of instruction dedicated to Water Well Driller/Pump Installer statutes and rules and seven (7) hours of topics directly related to the water well industry.
The proposed rules amend §76.27. Registration for Driller and/or Pump Installer Apprenticeship. The proposed rules rename the section "Registration for Driller and/or Pump Installer Apprenticeship; Renewal." The proposed rules establish that an apprentice registration issued by the Department is valid for one year and establish the renewal requirements for apprentices.
The proposed rules amend §76.70. Responsibilities of the Licensee""State Well Reports. The existing rules establish that every driller who drills, deepens, or alters a well shall maintain a State of Texas Well Report and provide a copy of the well log to: the Department; the Texas Commission on Environmental Quality; the owner of the well or the person for whom the well was drilled; and the groundwater conservation district in which the well is located, if any. The proposed rules establish that the driller shall deliver a copy of the well log to: the Department, electronically, through the Texas Well Report Submission and Retrieval System; the owner of the well or the person for whom the well was drilled; and the groundwater conservation district in which the well is located, if any. The proposed rules remove the requirement of delivering a copy of the well log to the Texas Commission on Environmental Quality.
The proposed rules amend §76.80. Fees. The proposed rules update the application and renewal fees for licensees. Beginning January 1, 2024, application fees are doubled to reflect the change from a one-year to two-year license. Licenses that are renewed before March 1, 2024, will not see an increase in renewal fees, but for licenses that are renewed on or after March 1, 2024, the renewal fees are doubled to reflect the change from a one-year to two-year license. This change ensures revenue from licensees are received in odd-numbered and even-numbered years.
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 are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. Any activities required to implement the change in license term from one year to two years are one-time program administration tasks that are routine in nature, such as modifying or revising the licensing system, amending applications, publications and/or website information, which will also not result in an increase or decrease in program costs since they will not necessitate an increase or decrease in personnel or resources.
Tony Couvillon, Policy Research and Budget Analyst, has determined that for the second half of the first fiscal year, there is an estimated increase in revenue to the state government as a result of enforcing or administering the proposed rules. The proposed rules will double the length of the license term for driller, pump installer, and combination driller and pump installer license holders. The applications fees for these licenses will need to double as well, to keep the amount of revenue for the administration of the program consistent.
Applicants who apply for or renew a license in the first half of the first fiscal year, or prior to March 1, 2024, will pay the current application fee amount and the licenses issued during that period will have a one-year term. Applicants who apply or renew in the second half of the first fiscal year, on or after March 1, 2024, will pay the new application fee amount and the licenses issued during that period will have a two-year term. Because the half the population that has a one-year license term will need to renew in the second fiscal year and will pay the increased fees and receive licenses with two-year terms, the revenue for the program will stay consistent over the years, with half the license population applying or renewing in alternate years.
The only increase in revenue will be in occur in the second half of the first fiscal year, when half of the population will pay application fees that are doubled, when, prior to the adoption of the proposed rules, these applicants would not have paid doubled fees. Based on an average of license applications submitted over the past five years, approximately 412 driller license applicants and holders and pump installer license applicants and license holders will apply or renew in the second half of the first fiscal year. The previous fees paid during this period would have totaled $$88,580. However, with the new fee amounts, the total fees paid during this period will be $177,160. Based on an average of license applications submitted over the past five years, approximately 296 combination driller license and pump installer license applicants and license holders will apply or renew in the second half of the first fiscal year. The previous fees paid during this period would have totaled $96,200. However, with the new fee amounts, the total fees paid during this period will be $192,400.
The increase in revenue during this six-month period will be $184,780. The revenue in all subsequent fiscal years will be approximately the same and current revenue amounts.
Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated loss in revenue to the state government as a result of enforcing or administering the proposed rules. The proposed rules do not create a revenue loss, as they do not eliminate or decrease any fees assessed by the licensing program.
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 does not have foreseeable implications relating to costs or revenues of local governments. There is no impact to local government costs because the proposed rules do not affect any regulation of water well drilling and pump installing by local governments.
LOCAL EMPLOYMENT IMPACT STATEMENT
Mr. Couvillon has determined that the proposed rules will not affect a local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.
The proposed rules have no anticipated impact on the local economy because they are not anticipated to increase or decrease employment opportunities for professionals licensed water well drillers or pump installers in any area of the state or increase or decrease the number of individuals who may choose to become licensed water well drillers or pump installers.
PUBLIC BENEFITS
Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be that the proposed rules change the license terms for the driller, pump installer, and combination driller and pump installer license holders, thereby allowing them to renew their licenses every other year instead of renewing every year. This also would free up some agency resources from licensing tasks, since only half of license holders would renew in any year and allow those resources to be redirected to area such as water well quality assurance and abandoned and deteriorated wells mitigation to better protect the public's groundwater resources.
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.
The current application fee and the renewal fee for a driller license or pump installer license is $215 for a one-year license. Following the adoption of the proposed rules, the fee for a two-year driller license or pump installer license will be $430. The current application fee and the renewal fee for a combination driller and pump installer license is $325 for a one-year license. Following the adoption of the proposed rules, the fee for a two-year combination driller and pump installer license will be $650. However, the proposed rules have no economic costs to persons that are licensees, businesses, or the general public in Texas. The rules do not impose additional fees upon licensees, nor do they create requirements that could cause licensees to expend funds for equipment, technology, staff, supplies or infrastructure.
The proposed rules modify the continuing education hour requirements for the driller, pump installer, and combination driller and pump installer license holders, changing the number of required hours from four hours every year to eight hours every two years. Some continuing education providers might adjust the content and length of their courses to better fit the needs of the license holders, however, these adjustments are purely voluntary and a business decision. Any cost associated with the adjustments are expected to be minimal, if any, and will be offset by the resulting fees paid by attending students.
The proposed rules state that the required submission of a copy of the well log to TDLR must be transmitted electronically through the Texas Well Report Submission and Retrieval System. There will be no cost to any license holders who are not currently submitting well logs through the system since there is no cost to submit well logs through the system.
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 rules 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, are not required.
The Water Well Driller and Pump Installer Program regulates individuals who perform drilling and pump installing services, some of whom could be set up as small or micro-businesses. The proposed rules have no anticipated adverse economic effect on those small businesses or micro-businesses. The rules do not impose additional fees upon licensees or small or micro-businesses, nor do they create requirements that would cause licensees or those businesses to expend funds for equipment, staff, supplies, or infrastructure.
The proposed rules modify the continuing education hour requirements for the driller, pump installer, and combination driller and pump installer license holders, changing the number of required hours from four hours every year to eight hours every two years. Some continuing education providers, some of which could be small or micro-business, might adjust the content and length of their courses as a result of the continuing education requirement adjustment. Any cost associated with these adjustments are voluntary and expected to be minimal, and any cost will not have an adverse economic effect on those businesses.
The proposed rules have no anticipated adverse economic effect on rural communities because the rule will not decrease the availability of water well drilling or pump installing services in rural communities, nor will the rules increase the cost of those services in rural communities. Additionally, the proposed rules do not impose additional requirements of licensees located in rural communities.
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 do not expand, limit, or repeal an existing regulation.
7. The proposed rules do not increase or decrease the number of individuals subject to the rules' applicability.
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 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 rules are proposed under Texas Occupations Code, Chapters 51, 1901, and 1902 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, 1901, and 1902. No other statutes, articles, or codes are affected by the proposed rules.
The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 3744, 88th Legislature, Regular Session (2023).
§76.22.Applications for Licenses and Renewals.
(a) Application must be made on forms approved by the department.
(b) The application must include the applicant's statement that he has drilled or installed pumps under supervision of a driller or pump installer licensed under the Code and this chapter.
(c) The applicant is eligible to take the examination when the department determines the application and qualifications submitted meet requirements.
(d) A license issued by the department is valid
for: [will expire annually from the date issued (as provided
in §76.24).]
(1) one year, if the license was issued before January 1, 2024; or
(2) two years, if the license was issued on or after January 1, 2024.
§76.24.License Renewal.
(a) On or before the expiration date of the license,
the licensee must pay a [an annual] renewal fee to the
department and submit an application for renewal.
(b) To renew a license, the licensee must show proof
of [four (4) hours of] continuing education in compliance
with §76.25(b).
(c) A license renewed by the department is valid for:
(1) one (1) year, if the license was renewed before March 1, 2024; or
(2) two (2) years, if the license was renewed on or after March 1, 2024.
§76.25.Continuing Education.
(a) Terms used in this section have the meanings assigned by Chapter 59 of this title, unless the context indicates otherwise.
(b) To renew a license as a driller or pump installer,
a licensee must complete [four (4) hours of] continuing
education [in] courses approved by the department,
which [. The continuing education hours] must include
the following:
(1) one (1) hour of instruction dedicated to the Water Well Driller/Pump Installer statutes and rules; and
(2) the following number of hours of instruction
dedicated to [three (3) hours of instruction in]
topics directly related to the water well industry, including but
not limited to well and water well pump standards, geologic characteristics
of the state, state groundwater laws and related regulations, well
construction and pump installation practices and techniques, health
and safety, environmental protection, technological advances, or business
management: [.]
(A) three (3) hours for renewal before March 1, 2024; or
(B) seven (7) hours for renewal on or after March 1, 2024.
(c) To renew a registration as an apprentice, a registrant must complete a one (1) hour department-approved continuing education course dedicated to the Water Well Driller and Pump Installer statutes and rules.
(d) The continuing education hours must have been completed within the term of the current license or registration, in the case of a timely renewal. For a late renewal, the continuing education hours must have been completed within the one (1) year period immediately prior to the date of the late renewal.
(e) A licensee or registrant may not receive continuing education credit for attending the same course more than once during their license term.
(f) Licensees and registrants must retain a copy of the certificate of course completion for one year after the date of completion. In conducting any inspection or investigation of the licensee or registrant, the department may examine the licensee's or registrant's records to determine compliance with this subsection.
(g) To be approved under Chapter 59 of this title, a provider's course must be dedicated to instruction in one or more of the topics listed in subsection (b), and the provider must be registered under Chapter 59 of this title.
(h) A licensee whose license has been placed on "inactive" status pursuant to Texas Occupations Code, §51.4011 is not required to complete continuing education as required by this section until the licensee seeks to change to "active" status.
§76.27.Registration for Driller and/or Pump Installer Apprenticeship; Renewal.
(a) A person who wishes to participate in a driller or installer apprentice program under the supervision of a licensed well driller and/or a licensed pump installer who has been licensed for a minimum of two (2) years, must submit a registration form to the department, provide a detailed copy of the training program, including the effective commencement and termination date, and provide proof that the licensed well driller and/or pump installer has agreed to accept the responsibility of supervising the training.
(b) To qualify for an apprentice registration the person must:
(1) Be at least eighteen (18) years old;
(2) Participate in an apprentice program developed by a licensed driller or installer who has been licensed as a driller or installer for at least two years;
(3) Submit an application on a department-approved form, and
(4) Pay the registration fee.
(c) The application form for an apprentice shall include:
(1) the name, business address, and permanent mailing address of the apprentice;
(2) the name and license number of the licensed driller and/or pump installer who will supervise the training;
(3) a detailed description of the training program, including the types of wells to be drilled and/or the classifications of pumps to be installed, the effective commencement and termination dates of the program, equipment used, safety training and procedures, and experience, knowledge, and qualification benchmarks while under the apprenticeship;
(4) a statement by the licensed driller and/or pump installer that the licensed driller or installer takes responsibility for the apprentice's acts under the Code and this Chapter for the activities of the apprentice associated with the training program; and
(5) the signatures of the apprentice and the licensed driller and/or pump installer and the certification of the licensee and apprentice that the information provided is true and correct.
(d) An apprentice registration issued by the department is valid for one year.
(e) To renew an apprentice registration, an apprentice must:
(1) submit an application on a department approved form;
(2) show proof of continuing education in compliance with §76.25(c); and
(3) pay the renewal fee.
§76.70.Responsibilities of the Licensee--State Well Reports.
Every well driller who drills, deepens, or alters a well, within this state shall record and maintain a legible and accurate State of Texas Well Report on a department-approved form. Each copy of a State of Texas Well Report, other than a department copy, shall include the name, mailing address, web address and telephone number of the department.
(1) Not later than the 60th day after the date of the
completion or cessation of drilling, deepening, or otherwise altering
the well, the driller shall deliver [, send by first class mail,
or provide electronically,] a copy of the well log to:
(A) The department, by transmitting electronically through the Texas Well Report Submission and Retrieval System;
[(B) The Texas Commission on Environmental
Quality (if the log was not submitted to the department electronically);]
(B) [(C)] The owner of the well
or the person for whom the well was drilled; and
(C) [(D)] The groundwater conservation
district in which the well is located, if any.
(2) Each State of Texas Well Report and Plugging Report shall include the specific geographic coordinates with the longitude and latitude of the subject well.
(3) The person that plugs a well shall, within thirty (30) days after plugging is complete, transmit electronically through the Texas Well Report Submission and Retrieval System or deliver or send by first-class mail, a copy of the State of Texas Plugging Report to the department. The person that plugs the well shall deliver, transmit electronically, or send by first-class mail a copy of the State of Texas Plugging Report to the groundwater conservation district in which the well is located, if any. The person that plugs the well shall deliver, transmit electronically, or send by first-class mail a copy of the State of Texas Plugging Report to the owner or person for whom the well was plugged.
(4) The department shall furnish State of Texas Plugging Reports on request.
(5) The executive director shall prescribe the contents of the State of Texas Plugging Reports.
§76.80.Fees.
(a) Application Fees
(1) Driller license--$430 [215]
(2) Installer license--$430 [215]
(3) Combination Driller and Installer license--$650
[325]
(4) Apprentice registration--$65
(5) Combination Apprentice registration--$115
(b) Renewal Fees
(1) Driller license--$215 for renewal before March 1, 2024; $430 for renewal on or after March 1, 2024
(2) Installer license--$215 for renewal before March 1, 2024; $430 for renewal on or after March 1, 2024
(3) Combination Driller and Installer license--$325 for renewal before March 1, 2024; $650 for renewal on or after March 1, 2024
(4) Apprentice registration--$65
(5) Combination Apprentice registration--$115
(6) Late renewal fees for licenses issued under this Chapter are provided in §60.83 of this title.
(c) Lost, revised, or duplicate license--$25
(d) Adding an endorsement to a current license--$25
(e) Variance request fee--$100
(f) Inactive License Status
(1) The fee for an inactive license--No charge.
(2) The fee to renew a license marked "inactive" is the renewal fee as stated in subsection (b).
(3) The fee to change from an inactive license to an active license is $25.
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 September 25, 2023.
TRD-202303533
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Earliest possible date of adoption: November 5, 2023
For further information, please call: (512) 475-4879
The Texas Department of Licensing and Regulation (Department) proposes amendments to an existing rule at 16 Texas Administrative Code (TAC), Chapter 85, §85.722, regarding the Vehicle Storage Facilities Program. These proposed changes are referred to as "proposed rule."
EXPLANATION OF AND JUSTIFICATION FOR THE RULES
The rules under 16 TAC Chapter 85, implement Texas Occupations Code, Chapter 2303, Vehicle Storage Facilities.
The proposed rule amendments address the maximum amounts for vehicle storage and impoundment fees that may be charged by a vehicle storage facility company. The proposed rule increases the allowable vehicle storage facility impoundment fee and daily storage fees in accordance with changes in the Consumer Price Index for all Urban Consumers (CPI-U) during the preceding state fiscal biennium, as authorized by statute. Pursuant to Texas Occupations Code §2303.1552, the Texas Commission of Licensing and Regulation (Commission) is authorized to adjust the vehicle impound and storage fees based upon changes in the CPI not later than November 1 on every odd-numbered year. The Commission is then authorized by that statute to adjust the impoundment fee described under §2303.155(b)(2) and the storage fees described under §2303.155(b)(3) by an amount equal to the amount of the applicable fee in effect on December 31 of the preceding year multiplied by the percentage increase or decrease in the consumer price index during the preceding state fiscal biennium. The proposed rule, based upon analysis of the CPI during the preceding state fiscal biennium by Department staff, is necessary to comply with the statutory requirements to implement changes in the vehicle impound and storage fees for 2023.
2023 Rate Adjustment Pursuant to Stakeholder Comment
On or about August 3, 2023, the Department received a stakeholder comment regarding a concern about the calculations used for the 2023 Rate Adjustment pursuant to §2303.1552. The comment noted a difference in the calculations used between the 2019 and 2021 Rate Adjustments which resulted in reduced fees that VSF operators were authorized to charge under the 2021 maximum VSF Storage and Impoundment fee rates following that 2021 adjustment. Upon review of the two rate adjustments, the Department amended the 2023 Rate Adjustment, consistent with existing state law, which includes a "catch-up adjustment," using initial base fees that reflect what the maximum authorized fees would currently be if the same 2019 and 2021 rate adjustment calculations had been employed. The result will be higher allowed maximum fees to be charged by VSF operators under the proposed rules.
Advisory Board Recommendations
The proposed rule was presented to the Towing and Storage Advisory Board (Advisory Board) at its meeting on September 13, 2023. 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 §85.722(d) by reflecting the new maximum amounts for daily storage fees that may be charged by a vehicle storage facility in connection with receipt and storage of a vehicle, as authorized by statute.
The proposed rule amends §85.722(e) by reflecting the new maximum amount for the vehicle impoundment fee that may be charged by a vehicle storage facility in connection with impoundment and custody of a vehicle, as authorized by statute.
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 to state or local government as a result of enforcing or administering the proposed rule.
Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, there is no estimated increase or loss in revenue to the state or local government 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 a local economy, so the agency is not required to prepare a local employment impact statement under 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 benefit from the mandated update in the allowable fees for storage and impoundment of vehicles based on the percentage increase in the Consumer Price Index during the previous state fiscal biennium will be to allow vehicle storage facilities to keep pace with inflation and current costs for operating a facility, and therefore be more financially secure in their operations and able to provide their services to the public. The proposed rule also puts the public on notice of the fees that could be incurred if a towed vehicle is stored at vehicle storage facility.
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 rule is in effect, there will be additional costs to persons who are required to comply with the proposed rules. The statutorily authorized increase in the amount of fees allowed to be charged for vehicle storage and impoundment would have an increased economic cost on those who pay to have a stored vehicle released from a vehicle storage facility. However, the maximum additional amount a person would be required to pay is $3.65 or $5.01 on the first day in combined increases in the daily storage fee plus the impoundment fee, depending on the size of the vehicle, and $1.82 or $3.19 each day afterward in storage fees. This small increase would have a minimal effect on any vehicle owner or other person paying for the release of a vehicle.
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 rule. 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, are not required.
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 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 rule. For each year of the first five years the proposed rules 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 does not expand, limit, or repeal an existing regulation.
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 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 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 rule is proposed under Texas Occupations Code, Chapters 51 and 2303, 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 rule are those set forth in Texas Occupations Code, Chapters 51 and 2303. No other statutes, articles, or codes are affected by the proposed rule.
The legislation that enacted the statutory authority under which the proposed rules are proposed to be adopted is House Bill 1140, 86th Legislature, Regular Session (2019).
§85.722.Responsibilities of Licensee--Storage Fees and Other Charges.
(a) For the purposes of this section, "VSF" includes a garage, parking lot, or other facility that is:
(1) owned by a governmental entity; and
(2) used to store or park at least 10 vehicles each year.
(b) The fees outlined in this section have precedence over any conflicting municipal ordinance or charter provision.
(c) Notification fee.
(1) A VSF may not charge a vehicle owner or authorized representative more than $50 for notification under these rules. If a notification must be published, and the actual cost of publication exceeds 50% of the notification fee, the VSF may recover the additional amount of the cost of publication. The publication fee is in addition to the notification fee.
(2) If a vehicle is removed by the vehicle owner or authorized representative within 24 hours after the date the VSF receives the vehicle, notification is not required by these rules.
(3) If a vehicle is removed by the vehicle owner or authorized representative before notification is sent or within 24 hours from the time VSF receives the vehicle, the VSF may not charge a notification fee to the vehicle owner.
(d) Daily storage fee. A VSF may charge $20 for each day or part of a day for storage of a vehicle that is 25 feet or less in length and may charge $35 for each day or part of a day for storage of a vehicle that exceeds 25 feet in length, subject to a biennial adjustment as set forth in Texas Occupations Code §2303.1552(b)(1).
(1) Per the 2023 [2021] biennial
adjustment, the maximum amount that a VSF may charge for a daily storage
fee is as follows:
(A) Vehicle that is 25 feet or less in length: $22.85
[$21.03].
(B) Vehicle that exceeds 25 feet in length: $39.99 [$36.80].
(2) A daily storage fee may be charged for any part of the day, except that a daily storage fee may not be charged for more than one day if the vehicle remains at the VSF less than 12 hours. In this paragraph a day is considered to begin and end at midnight.
(3) A VSF that has accepted into storage a vehicle registered in this state shall not charge for more than five days of storage fees until a notice, as prescribed in §85.703 of these rules, is mailed or published.
(4) A VSF that has accepted into storage a vehicle not registered in Texas shall not charge for more than five days of storage before the date the request for owner information is sent to the appropriate governmental entity or to the private entity authorized by that governmental entity to obtain title, registration, and lienholder information using a single vehicle identification inquiry.
(5) A VSF shall charge a daily storage fee after notice, as prescribed in §85.703, is mailed or published for each day or portion of a day the vehicle is in storage until the vehicle is removed and all accrued charges are paid.
(e) Impoundment fee. A VSF may charge a vehicle owner
or authorized representative an impoundment fee of $20, subject to
a biennial adjustment as set forth in Texas Occupations Code §2303.1552(b)(1).
Per the 2023 [2021] biennial adjustment, the
maximum amount that a VSF may charge for an impoundment fee is $22.85
[$21.03]. If the VSF charges a fee for impoundment,
the written bill for services must specify the exact services performed
for that fee and the dates those services were performed.
(f) Governmental or law enforcement fees. A VSF may collect from a vehicle owner or authorized representative any fee that must be paid to a law enforcement agency, the agency's authorized agent, or a governmental entity.
(g) Additional fees. A VSF may not charge additional fees related to the storage of a vehicle other than fees authorized by these rules or a nonconsent-towing fee authorized by Texas Occupations Code, §2308.2065.
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 September 22, 2023.
TRD-202303522
Doug Jennings
General Counsel
Texas Department of Licensing and Regulation
Earliest possible date of adoption: November 5, 2023
For further information, please call: (512) 463-7750