Part 4.
TEXAS DEPARTMENT OF LICENSING AND REGULATION
Chapter 60.
TEXAS COMMISSION OF LICENSING AND REGULATION
The Texas Department of Licensing and Regulation ("Department") proposes
the repeal of 16 Texas Administrative Code ("TAC"), Chapter 60, Subchapter
E, Administration, §60.201; and new rules at 16 Texas Administrative
Code, Chapter 60, Subchapter E, Administration, Division 2, Training, §60.210;
Division 3, Historically Underutilized Businesses, §60.220; Division
4, Bid Opening and Tabulation, §60.230; and Division 5, Vendor Protests, §60.240
and §60.241, regarding the Texas Commission of Licensing and Regulation
administrative rules.
The repeal is necessary to allow for a rule organizational structure that
can accommodate several different but related rule matters in the area of
agency internal administration, such as compliance with statutory training
and purchasing requirements. These proposed rules are necessary to comply
with Texas Government Code §§2161.003, 2155.076 and 2156.005, which
require, respectively, agency rules pertaining to historically underutilized
businesses, vendor protest procedures, and bid opening and tabulation.
William H. Kuntz, Jr., Executive Director, has determined that for the
first five-year period the proposal is in effect there will be no cost to
state or local government as a result of enforcing or administering the rules.
Mr. Kuntz also has determined that for each year of the first five-year
period the proposal is in effect, the public benefit will be a decrease in
confusion among the vendor community regarding agency rules and procedures
for historically underutilized businesses, vendor protests, and bid opening
and tabulation. This should result in a more efficient agency purchasing process.
There will be no effect on large, small, or micro-businesses as a result
of the proposed rules. There are no anticipated economic costs to persons
who are required to comply with the proposed rules.
Comments on the proposal may be submitted to William H. Kuntz, Jr., Executive
Director, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin,
Texas 78711, or facsimile (512) 475-2872, or electronically: whkuntz@license.state.tx.us.
The deadline for comments is 30 days after publication in the
Texas Register
.
Subchapter E. ADMINISTRATION
16 TAC §60.201
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Department of Licensing and Regulation or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Chapter 51, §51.201,
Texas Occupations Code, which authorizes the Commission to adopt rules as
necessary for its own procedures.
The statutory provisions affected by the repeal are those set forth in
Texas Occupations Code, Chapter 51. No other statutes, articles, or codes
are affected by the repeal.
§60.201.Employee Training and Education.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400817
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 463-7348
16 TAC §60.210
The new rule is proposed under Chapter 51, §51.201, Texas
Occupations Code, which authorizes the Commission to adopt rules as necessary
for its own procedures.
The statutory provisions affected by the proposed new rule are those set
forth in the Chapter 51, Texas Occupations Code, and Chapter 656, Texas Government
Code. No other statutes, articles, or codes are affected by the proposal.
§60.210.Employee Training and Education.
(a)
With the approval of the Executive Director, the Texas
Department of Licensing and Regulation may make available to its administrators
and employees funds for training and education in accordance with the Employee
Training Act, Government Code §§656.041 - 656.049.
(b)
In order to be eligible for agency supported training and
education, the administrator or employee must demonstrate in writing, to the
satisfaction of the Executive Director, that the training or education is
related to the duties or prospective duties of the administrator or employee.
(c)
Eligible training and education expenses that are approved
by the Executive Director may include, as appropriate, salary, tuition, and
other fees, travel and living expenses, training stipend, expense of training
materials, and other necessary expenses of an instructor, student, or other
participant in a training or education program.
(d)
An employee who completes training and education to obtain
a degree or certification for which the Department has provided all or part
of the required fees must agree in writing to fully repay the Department any
amounts paid for educational assistance if the employee voluntarily terminates
employment with the agency within one year of course completion.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400819
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 463-7348
16 TAC §60.220
The new rule is proposed under Chapter 51, §51.201, Texas
Occupations Code, which authorizes the Commission to adopt rules as necessary
for its own procedures.
The statutory provisions affected by the proposed new rule are those set
forth in the Chapter 51, Texas Occupations Code and Chapter 2161, Texas Government
Code. No other statutes, articles, or codes are affected by the proposal.
§60.220.Historically Underutilized Businesses Program.
Pursuant to Chapter 2161, §2161.003, Texas Government Code, the
Commission adopts by reference the rules of the Texas Building and Procurement
Commission in 1 Texas Administrative Code (TAC) §§111.11 - 111.28,
relating to the Historically Underutilized Business Program.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400820
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 463-7348
16 TAC §60.230
The new rule is proposed under Chapter 51, §51.201, Texas
Occupations Code, which authorizes the Commission to adopt rules as necessary
for its own procedures.
The statutory provisions affected by the proposal are those set forth in
Texas Occupations Code, Chapter 51 and Chapter 2156, Texas Government Code.
No other statutes, articles, or codes are affected by the proposal.
§60.230.Bid Opening and Tabulation.
(a)
The commission adopts by reference the rules of the Texas
Building and Procurement Commission in 1 TAC §113.5(b) (Bid Submission,
Bid Opening, and Tabulation).
(b)
The adoption of this rule is required by Texas Government
Code, §2156.005(d).
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400821
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 463-7348
16 TAC §60.240, §60.241
The new rules are proposed under Chapter 51, §51.201,
Texas Occupations Code, which authorizes the Commission to adopt rules as
necessary for its own procedures.
The statutory provisions affected by the proposal are those set forth in
Texas Occupations Code, Chapter 51 and Chapter 2156, Texas Government Code.
No other statutes, articles, or codes are affected by the proposal.
§60.240.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1)
Purchasing Officer--A Departmental employee who has received
certification as a Texas Public Purchaser and who is responsible for assisting
with Departmental purchases, and who has been designated the Purchasing Officer
for the purchase in question.
(2)
Interested parties--all vendors who have submitted bids
or proposals for the contract involved.
(3)
General Counsel--the general counsel employed by the Texas
Department of Licensing and Regulation.
(4)
Vendor--entity that has submitted bids or proposals to
provide goods and/or services pursuant to a solicitation for bids or to a
request for proposals for a contract with the Department.
(5)
Department--Texas Department of Licensing and Regulation.
§60.241.Protest Procedures
(a)
Any actual or prospective bidder, offeror, proposer or
contractor who wishes to submit a grievance regarding the solicitation, evaluation,
or award of a contract may formally protest to the Purchasing Officer. Such
protests must be in writing and received by the Purchasing Officer within
10 business days after the protesting party knows, or should have known, of
the occurrence of the action which is protested. Filed protests must conform
to the requirements of this subsection and subsection (c) of this section,
and shall be resolved in accordance with the procedure set forth in subsections
(d) - (j) of this section. Copies of the protest must be mailed, hand-delivered
or sent by facsimile transmission to the Purchasing Officer and interested
parties.
(b)
In the event of a timely protest under this section, the
Department shall not proceed further with the solicitation or with the award
of the contract unless the Executive Director, after consultation with the
Purchasing Officer and the General Counsel, makes a written determination
that the award of the contract without delay is necessary to protect the best
interests of the Department and the State.
(c)
A formal protest must be sworn and contain:
(1)
a specific identification of the statutory or regulatory
provision(s) that the action complained of is alleged to have violated;
(2)
a specific description of each act alleged to have violated
the statutory or regulatory provision(s) identified in paragraph (1) of this
subsection;
(3)
a precise statement of the relevant facts;
(4)
identification of the issue or issues the protesting party
argues must be resolved;
(5)
argument and authorities the protesting party offers in
support of the protest; and
(6)
a statement that copies of the protest have been mailed,
hand-delivered or sent by facsimile transmission to the Department and other
identifiable interested parties.
(d)
The Purchasing Officer shall have the authority, prior
to an appeal to the Executive Director of the Department, to settle and resolve
the dispute concerning the solicitation or award of a contract. The Purchasing
Officer may solicit written responses to the protest from interested parties.
(e)
If the protest is not resolved by mutual agreement, the
Purchasing Officer may proceed, after consultation with the General Counsel,
with the issuance of a written determination on the protest as follows:
(1)
The Purchasing Officer may determine that no violation
of rules or statutes has occurred and shall so inform the protesting party,
the Executive Director, and any other interested parties by letter that includes
the reasons for the determination.
(2)
If the Purchasing Officer determines that a violation of
the rules or statutes may have occurred in a case where a contract has not
been awarded, the Purchasing Officer shall so inform the protesting party,
the Executive Director and other interested parties by letter that includes
the reasons for the determination and the appropriate remedial action.
(3)
If the Purchasing Officer determines that a violation of
the rules or statutes may have occurred in a case where a contract has been
awarded, the Purchasing Officer shall so inform the protesting party, the
Executive Director and other interested parties by letter that includes the
reasons for the determination, which may include a declaration that the contract
is void.
(f)
The protesting party may appeal a determination of a protest
by the Purchasing Officer to the Executive Director. An appeal of the Purchasing
Officer's determination must be in writing and must be received in the Executive
Director's office no later than 10 business days after the date of the Purchasing
Officer's determination. The appeal shall be limited to a review of the Purchasing
Officer's determination. Copies of the appeal must be mailed or delivered
by the protesting party to the Purchasing Officer and other interested parties
and must contain a certified statement that such copies have been provided.
(g)
The Executive Director may confer with the General Counsel
in a review of the matter appealed. The Executive Director has the discretion
to consider documentation timely submitted by Departmental staff and interested
parties. The Executive Director also has the discretion to refer the matter
to the Commissioners for their consideration at a regularly scheduled open
meeting or may go forward with issuing a written decision on the protest.
(h)
If a protest is appealed to the Executive Director under
subsection (f) of this section and thereafter is referred to the Commissioners
by the Executive Director under subsection (g) of this section, specific requirements
apply as follows:
(1)
The Executive Director shall deliver copies of the appeal
and responses of interested parties, if any, to the Commissioners.
(2)
The Commissioners may consider documents that Departmental
staff or interested parties have submitted and may confer with the General
Counsel in their review of the appeal.
(3)
The Commissioners' determination of the appeal shall be
made on the record and reflected in the minutes of the open meeting, and shall
be final.
(i)
A protest or appeal that is not filed timely will not be
considered unless good cause for the delay is shown or unless the Executive
Director determines that a protest or appeal raises issues significant to
procurement practices or procedures.
(j)
A decision issued either by the Commissioners in open meeting,
or in writing by the Executive Director, shall be the final administrative
action of the Department.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on February 9, 2004.
TRD-200400822
William H. Kuntz, Jr.
Executive Director
Texas Department of Licensing and Regulation
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 463-7348
Chapter 303.
GENERAL PROVISIONS
Subchapter B. POWERS AND DUTIES OF THE COMMISSION
16 TAC §303.41
The Texas Racing Commission proposes an amendment to §303.41,
relating to the allocation of race dates. The proposed amendment clarifies
the requirements for allocation of race dates by requiring associations to
conduct racing in accordance with the calendar approved by the Commission.
Paula C. Flowerday, Executive Secretary for the Texas Racing Commission,
has determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for state or local government.
Ms. Flowerday has also determined that for each of the first five years
the amendment is in effect the public benefit will be that the public has
more information on when racetracks will conduct racing. There is no economic
impact to small or micro businesses required to comply with the amendment
as proposed. There is no anticipated economic cost to an individual required
to comply with the amendment as proposed. There is no effect on the state's
agricultural, horse breeding, horse training, greyhound breeding, or greyhound
training industries.
Written comments must be submitted within 30 days after publication of
the proposed amendment in the
Texas Register
to
Nicole Galwardi, General Counsel for the Texas Racing Commission, P.O. Box
12080, Austin, Texas 78711-2080, fax (512) 833-6907.
The amendment is proposed under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; §6.06 which authorizes the Commission
to make rules on all matters relating to the operation of pari-mutuel racetracks.
The proposed amendment implements Texas Civil Statutes, Article 179e.
§303.41.Allocation of Race Dates.
(a) - (c)
(No change.)
(d)
An association shall conduct pari-mutuel racing on each
race date granted under this section,
and in accordance with the race
date calendar approved by the Commission,
unless the association receives
the prior approval of the executive secretary.
(e) - (f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400795
Nicole Galwardi
General Counsel
Texas Racing Commission
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 490-4009
Subchapter A. RACETRACK LICENSES
16 TAC §309.8
The Texas Racing Commission proposes an amendment to §309.8,
relating to racetrack license fees. The proposed amendment increases the simulcast
fee for Class 1 and Class 2 racetracks and all greyhound tracks and has a
one-time fee for Breeders' Cup costs for the hosting racetrack.
Paula C. Flowerday, Executive Secretary for the Texas Racing Commission,
has determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for local government as a result of enforcing
the amendment. Ms. Flowerday has also determined that in each year of the
first five-year period the amendment is in effect, the Commission will receive
approximately $808,500 in revenue from the simulcast fee. The amount of the
fee is calculated based on the Commission's direct and indirect costs associated
with regulating pari-mutuel wagering at Texas racetracks and on the number
of dates each year on which the Commission expects the various racetracks
will conduct simulcasting. In addition, if a Texas racetrack conducts the
Breeders' Cup races, the Commission will receive a one-time fee of $10,000
to reimburse the Commission for its regulatory, travel, and drug-testing costs
associated with those races.
Ms. Flowerday has also determined that for each of the first five years
the amendment is in effect the anticipated public benefit will be that the
Commission will comply with the Texas Racing Act by generating sufficient
revenue to fully fund its operations. Although there are fiscal implications
for licensed racetracks, the exact cost to a particular racetrack will vary
depending on the class of license held by the racetrack and on the racetrack's
simulcasting operations. For each day on which a Class 1 or 2 racetrack offers
simulcast races for wagering purposes, the fee will be $310; for each day
on which a Class 3 or 4 racetrack offers simulcast races for wagering purposes,
the fee will remain $245. In addition, a racetrack that conducts the Breeders'
Cup races will be required to pay an additional one-time fee of $10,000 to
cover the Commission's regulatory, travel, and drug-testing costs associated
with those races. There is no economic cost to an individual required to comply
with the proposal. The proposal has no effect on the state's agricultural,
horse breeding, horse training, greyhound breeding, or greyhound training
industries.
Written comments must be submitted within 30 days after publication of
the proposed amendment in the
Texas Register
to
Nicole Galwardi, General Counsel for the Texas Racing Commission, P.O. Box
12080, Austin, Texas 78711-2080, fax (512) 833-6907.
The amendment is proposed under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; §§5.01 and 6.18 which authorizes
the Commission to set fees for racetrack licenses; §6.06 which authorizes
the Commission to make rules on all matters relating to the operation of pari-mutuel
racetracks.
The proposed amendment implements Texas Civil Statutes, Article 179e.
§309.8.Racetrack License Fees.
(a) - (c)
(No change.)
(d)
Simulcast Fee. An association shall pay a simulcast fee
for each day on which the association offers a simulcast race for wagering.
The fee is due to the Commission no later than 5:00 p.m. of the day following
the day on which the simulcast is offered. The simulcast fee is
:
(1)
for a Class 1, Class 2, or
greyhound racetrack, $310 per day; and
(2)
for a Class 3 or Class 4 racetrack,
$245
per day.
(e)
(No change.)
(f)
Breeders' Cup Fee. Due to the
additional travel, personnel, and drug testing costs incurred by the Commission
in conjunction with regulating the Breeders' Cup races, an association that
conducts the Breeders' Cup races shall pay a fee of $10,000. The fee is due
not later than 5:00 p.m. on the 30th day after the date the Breeders' Cup
races are conducted.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400796
Nicole Galwardi
General Counsel
Texas Racing Commission
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 490-4009
2.
OPERATIONS
16 TAC §309.355
The Texas Racing Commission proposes an amendment to §309.355,
relating to the grading system for greyhounds. The proposed amendment revises
the grading system allowing a greyhound to make it easier to requalify and
be returned to the active list during a race meeting. The proposal was presented
to the Commission as a petition for rulemaking by Gulf Greyhound Park.
Paula C. Flowerday, Executive Secretary for the Texas Racing Commission,
has determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for state or local government.
Ms. Flowerday has also determined that for each of the first five years
the amendment is in effect the public benefit will be that greyhounds have
a longer racing career. There is no economic impact to small or micro businesses
required to comply with the amendment as proposed. There is no anticipated
economic cost to an individual required to comply with the amendment as proposed.
The proposal has a positive effect on the state's greyhound breeding and training
industries by providing more opportunities for greyhounds to continue racing.
There is no effect on the state's agricultural, horse breeding, or horse training
industries.
Written comments must be submitted within 30 days after publication of
the proposed amendment in the
Texas Register
to
Nicole Galwardi, General Counsel for the Texas Racing Commission, P.O. Box
12080, Austin, Texas 78711-2080, fax (512) 833-6907.
The amendment is proposed under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; §6.06 which authorizes the Commission
to make rules on all matters relating to the operation of pari-mutuel racetracks.
The proposed amendment implements Texas Civil Statutes, Article 179e.
§309.355.Grading System.
(a) - (f)
(No change.)
(g)
A greyhound that fails to finish in the top four positions
in four consecutive starts in Grade D may requalify and, at the discretion
of the racing secretary, be returned to the active list. If a greyhound fails
to finish in the top four positions in four consecutive starts for a second
time in the same race meeting, at the discretion of the racing secretary,
that greyhound may requalify again; however, when the greyhound returns to
the active list, that greyhound has two consecutive starts to finish in the
top four positions. If the greyhound fails to do so, then that greyhound shall
be dropped from further racing during the current race meeting.
[
(h) - (p)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400797
Nicole Galwardi
General Counsel
Texas Racing Commission
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 490-4009
Subchapter A. LICENSING PROVISIONS
1.
OCCUPATIONAL LICENSES
16 TAC §311.5
The Texas Racing Commission proposes an amendment to §311.5,
relating to occupational license fees. The proposed amendment increases the
occupational license fee for all Texas Racing Commission licenses. The increase
is to cover the cost of participating in the Texas OnLine internet licensing
system, as well as to cover the increased costs to continue to regulate the
racing industry at the current level.
Paula C. Flowerday, Executive Secretary for the Texas Racing Commission,
has determined that for the first five-year period the amendment is in effect
there will be no fiscal implications for local government as a result of enforcing
the amendment. Ms. Flowerday has also determined that in each year of the
first five-year period the amendment is in effect, the Commission will receive
approximately $540,000-$650,000 in revenue from the occupational licensing
fees. Of this amount, the Commission will transfer approximately $20,000-$22,000
to the Texas OnLine Authority to cover the costs associated with offering
the Commission's occupational licenses through the Texas OnLine portal. The
fee increases were calculated based on the relative income levels of the various
licensees, the Commission's costs associated with the occupational licensing
program, and the anticipated costs associated with participation in the Texas
OnLine project. The exact amount of revenue the Commission will receive will
depend on the actual number of licenses issued.
Ms. Flowerday has also determined that for each of the first five years
the amendment is in effect the anticipated public benefit will be that the
Commission will comply with the Texas Racing Act by generating sufficient
revenue to fully fund its operations. There will be fiscal implications for
small or micro-business and to individuals required to comply with the proposal.
The exact cost to a particular business or individual seeking a license from
the Commission will depend on the type of license sought by the business or
licensee and the number of years for which the license is issued. The fee
will vary from $0 to $225; the increase in the fee for a particular license
varies from $5 to $25. The proposal has no effect on the state's agricultural,
horse breeding, horse training, greyhound breeding, or greyhound training
industries.
Written comments must be submitted within 30 days after publication of
the proposed amendment in the
Texas Register
to
Nicole Galwardi, General Counsel for the Texas Racing Commission, P.O. Box
12080, Austin, Texas 78711-2080, fax (512) 833-6907.
The amendment is proposed under the Texas Civil Statutes, Article
179e, §3.02 which authorizes the Commission to make rules relating exclusively
to horse and greyhound racing; §5.01 which authorizes the Commission
to issue licenses and set conditions for licenses; §7.03 which authorizes
the Commission to issue occupational licenses; §7.05 which authorizes
the Commission to adopt a fee schedule for occupational licenses; and Article
7 which authorizes the Commission to require, set conditions and qualifications
for, issue, and deny occupational licenses.
The proposed amendment implements Texas Civil Statutes, Article 179e.
§311.5.License Fees.
(a) - (b)
(No change.)
(c)
The fee for an occupational license is as follows:
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 9, 2004.
TRD-200400798
Nicole Galwardi
General Counsel
Texas Racing Commission
Earliest possible date of adoption: March 21, 2004
For further information, please call: (512) 490-4009
Subchapter A. GENERAL PROVISIONS
2.
TRAINING
3.
HISTORICALLY UNDERUTILIZED BUSINESSES
4.
BID OPENING AND TABULATION
5.
VENDOR PROTESTS
Part 8.
TEXAS RACING COMMISSION
Chapter 309.
RACETRACK LICENSES AND OPERATIONS
Subchapter D. GREYHOUND RACETRACKS
An association shall drop a greyhound from further racing at that race meeting
if the greyhound fails to finish in the top four positions in four consecutive
starts in Grade D. At the discretion of the racing secretary, a greyhound
dropped from racing at Grade D may be requalified after a period of 30 days.
]
Chapter 311.
OTHER LICENSES
Chapter 319.
VETERINARY PRACTICES AND DRUG TESTING