30 TAC §5.13
The Texas Commission on Environmental Quality (commission)
adopts the amendment to §5.13, Meetings,
with
change
to the proposed text as published in the October 11, 2002 issue
of the
Texas Register
(27 TexReg 9542).
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULE
Texas Water Code (TWC), §5.107, relating to Advisory Committees, Work
Groups, and Task Forces, authorizes the commission or the executive director
to create and consult with advisory committees, work groups, or task forces,
including committees, work groups, or task forces for the environment, public
information, or any other matter that the commission or the executive director
may consider appropriate.
30 TAC Chapter 5 governs the procedures applicable to advisory committees
created to advise the commission. Currently, §5.13 specifies that all
committee and subcommittee meetings shall be open to the public. Some advisory
committees assist in the development and review of licensing examination questions
and related materials as a part of their advisory function. If committee deliberations
involved in development of examination questions and related materials are
open to the public, the examination questions can be compromised. This rulemaking
adopts an amendment to §5.13 to allow advisory committees and subcommittees
to meet in closed session for the purpose of reviewing and developing licensing
examination questions and related materials. The adoption is consistent with
the provisions of Texas Government Code, §551.088, which states, "This
chapter does not require a governmental body to conduct an open meeting to
deliberate a test item or information related to a test item if the governmental
body believes that the test item may be included in a test that the governmental
body administers to individuals who seek to obtain or renew a license or certificate
that is necessary to engage in an activity."
SECTION BY SECTION DISCUSSION
The adopted amendment to §5.13 adds an exception that allows a committee
or subcommittee to meet in closed session for the purpose of developing or
reviewing licensing examination questions or related materials. The amendment
allows the commission to utilize the expertise in advisory committees to develop
and review licensing examination questions and related materials without exposing
the examination questions and related materials to possible compromise in
a meeting that is open to the public.
One administrative change was made to the rule from how it was proposed.
An "s" was added to the word "material" in order to make usage consistent
throughout the rule.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission has reviewed the adopted rulemaking in light of the regulatory
impact analysis requirements of Texas Government Code, §2001.0225, and
determined that the rulemaking is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
that statute. A "major environmental rule" means a rule, the specific intent
of which, is to protect the environment or reduce risks to human health from
environmental exposure and that may adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the environment
or the public health and safety of the state or a sector of the state. The
adopted amendment is not specifically intended to protect the environment,
or reduce risks from environmental exposure and is not anticipated to adversely
affect in a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, or the public health and safety of the
state or a sector of the state because the adopted rule is intended to affect
the commission's operations and is not anticipated to result in fiscal implications
for any other unit of state or local government. The adopted amendment is
procedural in nature and is only intended to implement procedures to allow
a committee or subcommittee to meet in closed session for the purpose of developing
or reviewing licensing examination questions or related materials.
TAKINGS IMPACT ASSESSMENT
The commission prepared a takings impact assessment for this adoption under
Texas Government Code, §2007.043. The adopted amendment is procedural
in nature and is only intended to implement procedures to allow a committee
or subcommittee to meet in closed session for the purpose of developing or
reviewing licensing examination questions or related materials. This will
allow the committees to assist the commission in the development and review
of licensing examination questions and related materials without compromising
the licensing examinations.
Promulgation and enforcement of the adopted amendment will be neither a
statutory nor a constitutional taking of private real property. Specifically,
the amendment does not affect a landowner's rights in private real property
because this rulemaking does not burden (constitutionally), nor restrict or
limit the owner's right to property and reduce its value by 25% or more beyond
that which would exist in the absence of the regulations.
Because the adopted amendment affects only advisory entities, this action
will not create a burden on private real property, and will not burden, restrict,
or limit an owner's right to property and reduce its value by 25% or more.
No exceptions set out in Texas Government Code, §2007.003(b) apply
to the adopted amendment.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rulemaking and found that the amendment
is neither identified in Coastal Coordination Act Implementation Rules, 31
TAC §505.11, nor will it affect any action/authorization identified in §505.11.
Therefore, the amendment is not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The public comment period closed November 12, 2002. No comments were received.
STATUTORY AUTHORITY
The amendment is adopted under TWC, §5.103, which provides the commission
with the authority to adopt any rules necessary to carry out its powers and
duties under this code and other laws of this state and to adopt rules repealing
any statement of general applicability that interprets law or policy; §5.105,
which authorizes the commission to establish and approve all general policy
of the commission by rule; §5.107, which authorizes the commission or
the executive director to create and consult with advisory committees, work
groups, or task forces, including committees, work groups, or task forces
for the environment, for public information, or for any other matter that
the commission or the executive director may consider appropriate; and Texas
Government Code, Chapter 2110, which establishes requirements for the creation,
composition, evaluation, and duration of advisory committees.
§5.13.Meetings.
Advisory committees shall meet at the call of the presiding officer
or the commission. All advisory committee and subcommittee meetings, except
meetings for the purpose of developing or reviewing licensing examination
questions or related materials, shall be open to the public. Meetings for
the purpose of developing or reviewing licensing examination questions or
related materials may be closed to the public to preclude compromise of the
examination questions or related materials.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 21, 2003.
TRD-200301345
Paul C. Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Effective date: March 13, 2003
Proposal publication date: October 11, 2002
For further information, please call: (512) 239-6087