The Texas Department of Licensing and Regulation proposes the repeal of §67.40 and new §67.40 concerning the auctioneer education and recovery fund (fund).

The proposed new rule replaces the existing rule that is simultaneously proposed for repeal.

The justification for the proposed new rule is to enable the Department to assess and collect a fee to be paid by all auctioneer license holders at the time that the balance of the fund is less than $300,000 as determined by the Department on December 31st of each year. The proposed new rule will eliminate the requirement that the assessed fee or pro-rata share will be due from all license holders whose renewal date falls between the next September 1 and August 31st of the following year whenever the balance of the fund is less than $300,000.

Section 67.40(a) requires all license holders to pay a fee as determined by the Department when the balance of the fund is less than $300,000.

Section 67.40(b) states that the Department will determine the necessity for assessing a fee on December 31st of each year. The fee is to be paid by all license holders in addition to the renewal fee. The Department will notify a license holder of the fee assessment in the renewal notice.

When a fee is assessed by the Department §67.40(c) requires each license holder to pay the fee assessment, which is effective for a 12 month period, to the Department upon annual renewal of the license.

Section 67.40(d) requires new applicants to pay a $100 fee to the fund in addition to any other fees before a license will be issued.

The auctioneer education and recovery fund is a trust fund that is used by the Department for the payment of claims against licensed auctioneers. Funds in excess of $250,000 may also be used by the Department to advance education and research in the auctioneering profession. The proposed new rule will benefit the auctioneering profession by allowing the Department to replenish the fund in a faster timeframe and make funds in excess of $250,000 more readily available for educational expenditures.

William H. Kuntz, Jr., Executive Director of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect additional fees deposited into the fund will be approximately $150,000 collected during each year that the assessment of a fee is determined to be required to replenish the fund to $300,000. Additional fees deposited into the fund will depend on the balance of the fund as determined by the Department on December 31st of each year.

Mr. Kuntz also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to use funds in excess of $250,000 toward educational expenditures to better train and educate auctioneers in providing competent and professional services to consumers.

The anticipated economic effect on small businesses and persons who are required to comply with the sections as proposed will be payment of a fee by all license holders on renewal of the license whenever the balance of the fund is less than $300,000 as determined on December 31st of each year.

The cost of compliance will be a fee assessment of $50 in addition to the cost of renewal of an auctioneer license for a period of 12 months if the balance of the fund is less than $300,000 on December 31st of each year.

Comments on the proposal may be submitted to Mr. Bob Peterman, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail: robert.peterman@license.state.tx.us. The deadline for comments is thirty days after publication in the Texas Register .