Part 5.
OFFICE OF THE GOVERNOR, ECONOMIC DEVELOPMENT AND TOURISM DIVISION
Chapter 176.
ENTERPRISE ZONE PROGRAM
10 TAC §§176.1 - 176.10
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the Office of
the Governor, Economic Development and Tourism Division or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Office of the Governor, Economic Development
and Tourism Division (Office), formerly the Texas Department of Economic Development,
proposes the repeal of Chapter 176, §§176.1 - 176.10, setting forth
rules of the Enterprise Zone Program.
The repeal of the rules is proposed because Senate Bill 275 of the 78th
Legislature made substantive changes to the Program which require substantial
changes be made to the existing rules. New rules will be adopted and are proposed
in this issue of the
Texas Register
. New rules
are needed because the statutory changes to the Enterprise Zone Program require
substantial changes be made to the existing rules.
Tracye McDaniel, Executive Director of the Office, has determined that
for the first five-year period that the repeal is in effect there will be
no fiscal implications for state or local government as a result of enforcing
or administering the repeal.
Ms. McDaniel has also determined that each year of the first five years
that the repeal is in effect, the public will benefit from a better understanding
of the management of the Program. There will be no effect on small business.
There is no anticipated economic cost to persons and no private property rights
are affected by the repeal.
Comments on the proposed repeal may be submitted within 30 days of the
publication of this notice to Katherine Knight, Assistant General Counsel,
1100 San Jacinto, 4th Floor, or P.O. Box 12428, Austin, Texas 78711-2428.
Comments may be faxed to Ms. Knight at (512) 463-1932 or e-mailed to kknight@governor.state.tx.us
within 30 days.
The repeal is proposed under Texas Government Code, §2303.051(c),
which authorizes the executive director of the Office to adopt rules necessary
for the Program, and the Texas Government Code, Chapter 2001, Subchapter B,
which prescribes the process for rulemaking by state agencies. Texas Government
Code, Chapter 481, creating the Office, Texas Government Code, Chapter 489,
creating the Economic Development Bank within the Office, and Texas Government
Code, Chapter 2303, the Texas Enterprise Zone Act, are affected by the proposed
repeal.
§176.1.General Provisions.
§176.2.Filing Requirements for Applications and Claims.
§176.3.Eligibility Requirements for Designation of an Enterprise Zone.
§176.4.Application Contents for Designation of Enterprise Zones.
§176.5.Requirements for Designation of Enterprise Projects.
§176.6.Application Contents for Designation of an Enterprise Project.
§176.7.Certification of Neighborhood Enterprise Associations.
§176.8.Approval Standards.
§176.9.Reporting Requirements.
§176.10.Boundary Amendments.
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 March 24, 2006.
TRD-200601802
Robin Abbott
Assistant General Counsel
Office of the Governor, Economic Development and Tourism Division
Earliest possible date of adoption: May 7, 2006
For further information, please call: (512) 936-0501
10 TAC §§176.1 - 176.5
The Office of the Governor, Economic Development and Tourism
Division (Office), formerly the Texas Department of Economic Development,
proposes new Chapter 176, §§176.1 - 176.5, setting forth rules of
the Office of the Governor, Economic Development and Tourism Division Enterprise
Zone Program.
The new rules are proposed because Senate Bill 275 of the 78th Legislature
made substantive changes to the Program which require substantial changes
be made to the existing rules. The new rules will replace previous rules proposed
for repeal in this issue of the
Texas Register
.
New rules are needed because the statutory changes to the Enterprise Zone
Program require substantial changes be made to the existing rules.
Proposed §176.1 sets forth the purpose and definitions for the chapter.
Proposed §176.2 sets forth procedures for local government participation
in the Program.
Proposed §176.3 sets forth requirements for designation as an Enterprise
Project and the number of eligible project designations available for municipalities
based on population.
Proposed §176.4 sets forth required elements for Enterprise Project
designation applications and authorizes the Bank to approve requests for concurrent
project designations, name changes and assignment or assumption of enterprise
projects.
Proposed §176.5 sets forth the monitoring and reporting requirements
for program participants.
Tracye McDaniel, Executive Director of the Office, has determined that
for the first five-year period that the proposed rules are in effect there
will be no fiscal implications for state or local government as a result of
enforcing or administering the new rules.
Ms. McDaniel has also determined that each year of the first five years
that the rules are in effect, the public will benefit from a better understanding
of the management of the Office and the Program. There will be no effect on
small business. There is no anticipated economic cost to persons other than
an application fee for entities that choose to participate in the Program
and no private property rights are affected by the new rules.
Comments on the proposed rules may be submitted within 30 days of the publication
of this notice to Katherine Knight, Assistant General Counsel, 1100 San Jacinto,
4th Floor, or P.O. Box 12428, Austin, Texas 78711-2428. Comments may be faxed
to Ms. Knight at (512) 463-1932 or e-mailed to kknight@governor.state.tx.us
within 30 days.
The new rules are proposed under the Texas Government Code, §2303.051(c),
which authorizes the executive director of the Office to adopt rules necessary
for the Program, and the Texas Government Code, Chapter 2001, Subchapter B,
which prescribes the process for rulemaking by state agencies. Texas Government
Code, Chapter 481, creating the Office, Texas Government Code, Chapter 489,
creating the Economic Development Bank within the Office, and Texas Government
Code, Chapter 2303 are affected by the proposed rules.
§176.1.General Provisions.
(a)
Purpose. It is the purpose of the Texas Enterprise Zone
Act to establish a process that clearly identifies distressed areas and provides
incentives by both local and state government to induce private investment
in those areas by the provision of tax incentives and economic development
program benefits for the creation and retention of high quality jobs. Under
this program economic development is encouraged by allowing enterprise projects
to be designated outside of an enterprise zone, with a higher threshold of
hiring economically disadvantaged or enterprise zone residents. The purpose
of these sections is to provide standards of eligibility and procedures for
designation of applications for qualified businesses as enterprise projects.
(b)
Definition of terms. The following words and terms, when
used in this chapter, shall have the following meanings, unless the context
clearly indicates otherwise.
(1)
Act--The Texas Enterprise Zone Act, Chapter 2303, Texas
Government Code, as amended.
(2)
Active designation--The period of time from the designation
date to the ending date of the project or activity as provided in the nominating
ordinance, order or resolution.
(3)
Applicant--The municipality or county filing an application
with the Bank on behalf of a qualified business for designation of an enterprise
project under the Act, §2303.405, and this chapter.
(4)
Application date--The first business day of the months
of September, December, March and June, if there are designations available.
(5)
Approval date--The application date of an enterprise project
as approved by the Bank.
(6)
Capital investment--Money paid to purchase capital assets
or fixed assets including but not limited to land, buildings, labor used to
construct or renovate a capital asset, furniture, manufacturing machinery,
computers and software, or other machinery and equipment. Property that is
leased under a capitalized lease is considered a qualified capital investment
but property that is leased under an operating lease is not considered a qualified
capital investment.
(7)
Claim period--A twelve-month period, during the active
designation period, for which hours are accumulated by qualified employees
to be claimed for benefit.
(8)
Concurrent designation--Two or more enterprise project
designations for the same qualified business in the same enterprise zone for
separate projects or activities, with overlapping designation periods.
(9)
Controlled group--A group of businesses as defined in Title
26, Subtitle A, Subchapter B, Part II, Section 1563(a), Internal Revenue Code,
or business entities with the same ownership.
(10)
Director--The Director of the Texas Economic Development
Bank.
(11)
Distressed county--A county that has a poverty rate above
15.4 percent based on the most recent decennial census; in which at least
25.4 percent of the adult population does not hold a high school diploma or
high school equivalency certificate based on the most recent decennial census;
and that has an unemployment rate that has remained above 4.9 percent during
the preceding five years, based on Texas Workforce Commission data.
(12)
Economic Development and Tourism--Economic Development
and Tourism Office in the Governor's Office (Office) as established under
Chapter 481, Texas Government Code.
(13)
Eligible taxable proceeds--Taxable proceeds generated,
paid, or collected by a qualified hotel project or a business at a qualified
hotel project including hotel occupancy taxes, ad valorem taxes, sales and
used taxes, and mixed beverage taxes.
(14)
Enterprise project--A designation given to a qualified
business by the Bank under the Act, §2303.406, and §176.3 of this
title (relating to Qualification for Designation of Enterprise Projects) making
the qualified business eligible for the state tax incentives provided by law
for an enterprise project.
(15)
Executive Director--The Executive Director of the Office.
(16)
Extraterritorial jurisdiction--Territory in the extraterritorial
jurisdiction (ETJ) of a municipality that is considered to be in the jurisdiction
of the municipality, as defined by Chapter 42, Local Government Code.
(17)
Governing body--The governing body of a municipality or
county participating in the program.
(18)
Governing body liaison--The person who holds the position
set out in the ordinance or order indicating participation in the program,
for the municipality or county to communicate and negotiate with the Bank
or Office, qualified businesses nominated to be enterprise projects and any
other entities affected by the enterprise zone.
(19)
Local government--A municipality or county.
(20)
Local incentive--Each tax incentive, grant, other financial
incentive or benefit, or program to be provided by the governing body to business
enterprises through the program.
(21)
Ninety-day window--The period 90 days prior to the quarterly
application deadline date for which an enterprise project is approved. The
period of time in which the project may begin making investment and creating
jobs for purposes related to the enterprise project designation.
(22)
Nominating body--The governing body of a municipality
or county that nominated a project or activity of a qualified business for
designation as an enterprise project which is located within the jurisdiction
of that governing body.
(23)
Primary job--A job to be created or retained for benefit
by a designated enterprise project, as defined by the Development Corporation
Act of 1979.
(24)
Qualified property--Any one or more of the following:
(A)
tangible personal property located at the qualified business
site that was acquired by a taxpayer not earlier than the 90th day before
the date of designation as an enterprise project and was or will be used predominantly
by the taxpayer in the active conduct of a trade or business;
(B)
real property located at a qualified business site that:
(i)
was acquired by the taxpayer not earlier than the 90th
day before the date of designation of the enterprise project, and used predominantly
by the taxpayer in the active conduct of a trade or business; or
(ii)
was the principal residence of the taxpayer on the date
of the sale or exchange; or
(C)
interest in a corporation, partnership, or other entity
if, for the most recent taxable year of the entity ending before the date
of sale or exchange, the entity was a qualified business.
(25)
Staff--The staff of the Texas Economic Development Bank.
(c)
Amendment and suspension of the rules. These sections may
be amended by the executive director at any time in accordance with the Administrative
Procedure Act, Texas Government Code, Subchapter B, as amended. The executive
director may suspend or waive a section, not statutorily imposed, in whole
or in part, upon the showing of good cause or when, at the discretion of the
executive director, the particular facts or circumstances render such waiver
of the section appropriate in a given instance.
(d)
Written communication with the office. Application and
other written communication to the office should be addressed to the attention
of the Office of the Governor, Economic Development and Tourism, Texas Economic
Development Bank, Attn: Texas Enterprise Zone Program, Post Office Box 12428,
Austin, Texas 78711-2428, or by overnight mail to Office of the Governor,
Economic Development and Tourism, Texas Economic Development Bank, Attn: Texas
Enterprise Zone Program, 1100 San Jacinto Street, Austin, Texas 78701, (512)
936-0100.
§176.2.Participation in the Program.
Participation. A local government wishing to participate in the program
must submit to the Bank the following:
(1)
A copy of all public hearing notices with regard to all
public hearings held in conjunction with the nomination of the proposed enterprise
project. Three notices must occur at least seven days prior to each public
hearing. Required elements for the postings are the date, time and location
of the public hearing, the name and address of the proposed project, the designation
being sough and notice that tax incentives will be considered, if applicable.
The three notices are in the form of a:
(A)
public posting at city hall or county courthouse, as applicable;
(B)
notice in a newspaper of general circulation for the area;
and
(C)
written notice to the Bank.
(2)
A certified copy of the ordinance or order, as appropriate,
with original signatures that:
(A)
states that the governing body is in full compliance with
Chapter 2303, Texas Government Code prior to nomination of an eligible business;
(B)
lists which enterprise zone block groups, if any, are also
reinvestment zones;
(C)
outlines the local incentives that are offered in the enterprise
zone area or areas within its jurisdiction, with at least one incentive being
exclusive to the enterprise zone areas;
(D)
outlines additional local incentives that are offered in
the governing body's jurisdiction;
(E)
identifies, by position, a liaison to oversee, communicate
and negotiate with the bank, qualified businesses nominated to be enterprise
projects, and any other entities effected by the enterprise zone;
(F)
states the date a public hearing was conducted with respect
to local incentives offered, prior to passing the ordinance or order;
(G)
nominates the qualified business for enterprise project
designation;
(H)
state the type of project requested, i.e. single, double
jumbo or triple jumbo enterprise project;
(I)
states whether or not the qualified business is located
in an enterprise zone, empowerment zone, enterprise community or renewal community;
and
(J)
is finally adopted no later than the day of the deadline
for which the project will be submitted.
(3)
A transcript or, in the absence of a transcript, minutes
of all public hearings held with respect to local incentives available to
business enterprises within the jurisdiction of the governmental entity wishing
to participate in the program.
(4)
The name, title, address, telephone number, and electronic
mail address of the nominating body's liaison.
(5)
Provide a summary of the economic objectives to revitalize
the jurisdiction, as well as a description of the efforts made to develop
and revitalize the jurisdiction of the governing body.
§176.3.Qualification for Designation of Enterprise Projects.
(a)
The Bank may not designate a nominated qualified business
as an enterprise project unless it determines that:
(1)
the business meets the requirements set forth in the Act, §2303.402,
and this chapter;
(2)
the qualified business is located in, or has made substantial
commitment to locate in an enterprise zone or at a qualified business site;
(3)
the applicant's governing body has not reached the maximum
number of designation allowed during the biennium;
(4)
the applicant's governing body has demonstrated that a
high level of cooperation exists between public and private entities;
(5)
the designation of the qualified business as an enterprise
project will contribute significantly to the achievement of the plans of the
applicant for development and revitalization of the area; and
(6)
the designation of the qualified business as an enterprise
project will further the public purposes of the Act and significantly benefit
the goals of the program which include, but are not limited to, high impact
projects or activities, targeted industry clusters and creation of primary
jobs.
(b)
For job creation, a qualified business must be seeking
to create new jobs, or for an existing business seeking to expand and increase
their current level of employment in Texas. The program, however, does not
allow benefit for moving existing jobs from one municipality or county in
Texas to another within the state.
(c)
For job retention, a qualified business must submit to
the governing body a written request for the retained job benefit with documentation
verifying which criteria is applicable. The governing body must authenticate
the documentation. A copy of the request from the qualified business requesting
the retained jobs benefit to the governing body, as well as the backup documentation,
must be attached to the application under the applicable Tab. The governing
body liaison must verify that the documentation meets at least one requirement
for the retained jobs benefit on the application form. In any case, for job
retention, the qualified business must maintain the same level of employment
that existed 90 days prior to the date of designation. Documentation that
the level of employment has been maintained must be submitted with the job
certification application to the Comptroller of Public Accounts. Any of the
retained jobs that are subsequently vacated must meet the 25% or 35% economically
disadvantaged or enterprise zone resident hiring requirement, as applicable,
when the vacant position is filled. The retained job benefit may not be used
to receive benefit for moving existing jobs from one municipality or county
in Texas to another within the state.
(d)
Municipalities or counties with a population of 250,000
or more, based on the most recent decennial census, are eligible for up to
six enterprise project designations during a state biennium based upon availability.
(e)
Municipalities or counties with a population of less than
250,000, based on the most recent decennial census, are eligible for up to
four enterprise project designations during a state biennium based upon availability.
Once a municipality or county of less then 250,000 based on the most recent
decennial census has received four enterprise project designations during
a state biennium, the nominating body may submit up to two bonus enterprise
project nominations, if there are designations available. Bonus projects will
be awarded after all other projects received during the round have been determined
for designation, and will be allocated to high-impact projects creating new
jobs. The bonus project application must include a local economic impact summary,
and describe the impact on the nominating body in terms of local economic
objectives, as well as the local Return on Investment outlined in terms of
a cost benefit analysis.
(f)
The Bank may, at its election, withhold up to six enterprise
project designations during a round to be disseminated at a later round during
the same biennium.
§176.4.Application for Designation of Enterprise Projects.
(a)
An application must be filed in the format provided (letter
size) and must contain all information and documentation required under the
Act and this chapter, as applicable. Each application for enterprise project
designation must be typed directly on the form provided by the Bank.
(b)
The application must be submitted hole-punched in a three-ring
loose-leaf binder with the application form located behind Tab 1, and must
include all applicable attachments hole-punched and placed behind the appropriate
Tab sections as specified in the application. An application that is submitted
with four or more material deficiencies will be declined as incomplete. Material
deficiencies are items such as the governing body application certification
with an original signature, the qualified business application certification
with original signatures, or any other required tabbed item.
(c)
The applicant shall file with the Bank one original application
for designation as an enterprise project. All application for enterprise project
designation must be received by the Office no earlier than one week before,
and no later than 5:00 p.m. Central Standard Time, on the first business day
of the following months: September, December, March and June. Further, all
application must be accompanied by a $500 non-refundable application fee in
the form of a certified check or money order made payable to the Texas Economic
Development Bank. The application is not considered to be received unless
it is received at the physical location of the Office and accompanied by the
non-refundable application fee. Applications received after a deadline will
be returned to the applicant, and must be resubmitted to the Bank in the prescribed
timeframe to be considered for designation during the next application deadline.
(d)
Applications received during a quarterly round will be
reviewed and scored by the Bank in accordance with the Act, this chapter and
the goals of the program.
(e)
The application for designation of an enterprise project
must contain the following information and documentation, as applicable:
(1)
The participants. The application must contain the name,
street address, mailing address, telephone number, fax number and electronic
mail address for each of the following involved in the designation of a qualified
business as an enterprise project:
(A)
the applicant governing body and the applicant governing
body's liaison; and
(B)
the qualified business, the primary business's representative
and the local business liaison. The local business liaison must be located
at the qualified business site.
(2)
The applicant. The application must contain the following
information and documentation concerning the applicant:
(A)
a statement signed by the governing body liaison certifying
that the contents of the application are true and correct to the best information
and belief of the liaison, and that he or she has read the Act and this chapter
and is familiar with the provisions thereof;
(B)
a certified copy of the nominating ordinance or order under §176.2(1)
of this title (relating to Participation in the Program), or if an ordinance
or order has already been passed nominating a project for designation, a certified
copy of a resolution from the applicant governing body nominating the qualified
business for designation as an enterprise project and containing:
(i)
nomination of the project or activity as an enterprise
project;
(ii)
a statement as to whether the project or activity is located
in an area designated as an enterprise zone, and, if applicable, that the
enterprise zone is also a federal empowerment zone, federal enterprise community,
or renewal community;
(iii)
reference by number to the nominating ordinance or order
indicating participation in the program, with a statement that the local incentives
described in the previously issued ordinance or order electing to participate
in the enterprise zone program are the same as those made available to the
project or activity;
(iv)
the active designation period of the project; and
(v)
if the project or activity is nominated as a double jumbo
enterprise project or a triple jumbo enterprise project, a statement that
the designation will count as two or three designations, respectively, against
the total number of designations allowed, as applicable.
(C)
the block group of the primary business address of the
qualified business site, verifiable by the local appraisal district, or an
enterprise zone approved prior to September 1, 2003, currently still in effect,
if applicable, or the federally-designated zone, if applicable;
(D)
the poverty rate for the block group of the primary business
address of the qualified business site, the poverty rate of the distressed
county in which the qualified business site is located or the poverty rate
of the enterprise zone approved prior to September 1, 2003, currently still
in effect, as applicable;
(E)
an official census map, which clearly identifies the location
of the proposed project and the census area where it is located, or a map
of the enterprise zone approved prior to September 1, 2003, currently still
in effect, which clearly identifies the location of the proposed project,
as applicable;
(F)
a description of the municipality's or county's procedures
and efforts to facilitate and encourage participation by and negotiation between
all affected entities in the jurisdiction in which the qualified business
is located including a description of the business activity that has occurred
in the area within the last year. This description must demonstrate the cooperation
among the public and private sectors;
(G)
a description of the local effort made by the municipality
or county and other affected entities to achieve development and revitalization
of the area as described in the Act, §2303.405(c). This includes a brief
historical description of the trade and business conducted in the area.
(3)
The project. The application must contain the following
information and documentation concerning the proposed project:
(A)
a statement signed by the primary business representative
and the local business liaison certifying that the contents of the application
are true and correct to their best information and belief, and that they have
read the Act and this chapter and are familiar with the provisions thereof;
(B)
a description and introduction of the business applying
for the project designation, which includes:
(i)
a copy of the articles of incorporation, or the dba statement
under which the business operates, filed with the Secretary of State of the
State of Texas. The name under which the business is applying for designation
must be the same as the business paying state taxes and creating and/or retaining
jobs to obtain program benefits;
(ii)
the principal owners and history of the business;
(iii)
a resolution for corporations or a certificate of authority
that provides signatory authority to a person or persons to submit the enterprise
project application and sign any contracts or forms on behalf of the business
for the enterprise project;
(iv)
the number of business locations, total sales, and number
of employees in the State of Texas, the United States, and outside the United
States;
(v)
the federal tax identification number, and/or the Texas
Comptroller tax identification number, as applicable, for all participating
entities of a controlled group;
(vi)
a description of the business' products and services,
including NAICS code;
(vii)
a description of the business' export history, if applicable;
and
(viii)
an organizational chart that indicates the business
structure, as well as the role of each entity participating in the project;
(C)
the plans of the business for expansion, revitalization,
and other activity at the qualified business site for the designation period
of the project including:
(i)
a description of the project location and intended use;
(ii)
a summary of short and long-term plans for expansion at
the qualified business site;
(iii)
the amount of capital investment to be made at the qualified
business site during the designation period;
(iv)
the status of any required local, state or federal permits
or licenses that must be obtained to enable the project to be initiated and
completed as represented in the enterprise project application;
(v)
a tabular summary of the current number of full-time, part-time
and seasonal jobs which includes the titles and/or Standard Occupational Classification
by six-digit code and salary ranges of jobs to be maintained at the qualified
business site. Full-time positions will be used for baseline information;
(vi)
a tabular summary of the number of new jobs, the titles
and/or Standard Occupational Classification by six-digit code and salary ranges
of full-time jobs to be created;
(vii)
a tabular summary of the number of new jobs, the titles
and/or Standard Occupational Classification by six-digit code and salary ranges
of full-time jobs to be retained, if applying for retained job benefit; and
(viii)
the total projected annual payroll for the jobs that
are being considered for benefit;
(D)
commitments from the business that include:
(i)
a completed form provided by the Bank, certifying the business
as a qualified business;
(ii)
a statement from a franchise or subsidiary, if applicable,
stating that the business will maintain separate payroll and tax records of
the business activity conducted at the qualified business site;
(iii)
the percentage of new or additional employees hired to
occupy the jobs being claimed for benefit that are residents of any enterprise
zone in the state, or that are economically disadvantaged; and
(iv)
a description of the efforts of the business to develop
and revitalize the area as described in the Act, §2303.405(e);
(f)
Multiple concurrent enterprise project designations. A
qualified business that currently has an enterprise project designation may
apply for an additional enterprise project designation in the same enterprise
zone. To receive the additional enterprise project designation the governing
body must complete an enterprise project application with all of the required
nominations and attachments. Additionally, the application must include a
breakdown of capital investment and new and/or retained jobs for each designation,
clearly delineating what capital investment and jobs will apply to which designation,
with timelines for all.
(g)
Name change. If the name of a qualified business that has
received an enterprise project designation has changed, the Bank may approve
the name change for the enterprise project designation. The designated enterprise
project must apply for a name change to the Bank no later than 18 months after
the enterprise project designation expires, or the business will not be eligible
for program benefits. The name change of a project designation by a qualified
business does not extend the original designation period, which is applicable
to the original and subsequent designee, and which will end on the last day
of the original designation period. The receive Bank approval for a name change,
the qualified business must submit through the applicant governing body:
(1)
a completed Name Change Application, along with a non-refundable
cashiers check or money order made payable to Texas Economic Development Bank,
for a processing fee in the amount of $500; and
(2)
a written explanation by the designee of the reasons for
the name change, the date the name change occurred and any changes to the
commitments made by the business in the original enterprise project application,
if applicable; and
(3)
written acknowledgment from the applicant governing body
that it is aware of the name change for the project as a qualified business
operating at the qualified business site within its jurisdiction.
(h)
Assignment or Assumption. The Bank may approve the assignment
or assumption of a state-designated enterprise project that has transferred
through a sale to another entity that will commit to continue operations at
the qualified business site in the way originally committed within the initial
enterprise project application, or which otherwise demonstrates to the satisfaction
of the Bank that the assignment or assumption is warranted to avoid disruption
of operations and loss of jobs. The transfer of a project designation by a
qualified business does not extend the original designation period, which
is applicable to the original and subsequent designee and which will end on
the last day of the original designation period. The designated enterprise
project must apply to the Bank, through the appropriate governing body, for
designation assignment or assumption no later than 18 months after the enterprise
project designation expires, or the business will not be eligible for program
benefits. The following must be submitted through the applicant governing
body to the Bank:
(1)
official action by the governing body in the form of a
resolution approving the transfer of the enterprise designation to the purchaser;
(2)
a completed Enterprise Project Assignment Application,
along with a non-refundable cashiers check or money order made payable to
Texas Economic Development Bank for a processing fee in the amount of $500;
and
(3)
a written relinquishment from the designated project's
qualified business to the governing body and Bank to release all claim to
the project designation and any benefits represented thereunder and agreeing
to the assignment of the designation as of a specific date by the purchaser
seeking to assume the designation; and
(4)
a written certification from the purchaser on a form to
be provided by the Bank that the purchaser will be a qualified business under
the Act, §2303.402; and
(5)
a letter of commitment from the purchaser addressed to
the governing body and the Bank in the same format as the letter of commitment
filed in the original application for project designation by the initial qualified
business. The letter should outline any modifications proposed by the purchaser
to the original commitments made by the qualified business holding the project
designation, including capital investment and jobs to be created or retained,
as applicable, and a statement as to why the assignment is essential to their
operations at the qualified business site; and
(6)
a Comptroller of Public Accounts tax identification number
and federal tax identification number for the purchaser; and
(7)
a copy of the purchasers' articles of incorporation filed
with the State of Texas Secretary of State, or the dba statement under which
the business operates.
(i)
A qualified business may be designated as an enterprise
project for no less than one year and no longer than five years. The designation
of a qualified business as an enterprise project shall remain in effect during
the period beginning on the date of the designation and ending on the earliest
of:
(1)
the date requested in the application for designation as
an enterprise project as indicated in the nominating ordinance, order or resolution,
as applicable; or
(2)
five years after the date the designation is made; or
(3)
the last day that completes the original project designation
period of a qualified business that has assumed the designation of the enterprise
project designation through or purchase of a designated qualified business
for the purpose of continuing its operations at the applicable qualified business;
or
(4)
the date the Bank notifies the qualified business and the
governing body that the qualified business is not in compliance with any requirement
for designation as an enterprise project.
§176.5.Monitoring and Reporting Requirements.
(a)
Annual reports and certifications.
(1)
Governing Body Annual Report. Each municipality or county
that participates in the program must submit an annual report to the Bank
on or before October 1 of each year. The report must be in a form prescribed
by the Bank and contain the information listed in the Act, §2303.205(c).
If this report is not received by October 1, the Bank may not designate any
additional enterprise projects in the governing body's jurisdiction until
such report is received.
(2)
Comptroller Annual Report. No later than October 1 of each
year, the Comptroller shall report to the Bank the statewide total of actual
jobs created, actual jobs retained and the tax refunds and credits made under
this section during the previous fiscal year as required by the Act.
(3)
Qualified Business Certification. An enterprise project
approved prior to September 1, 2003, must be annually certified by the Bank
as a qualified business to receive its state sales and use tax refunds.
(4)
Program Annual Report. The information in the governing
body annual report, as well as the Comptroller annual report will be used
by the Bank to compile an annual report on the program to the governor, legislature
and the Legislative Budget Board by January 1 as required by the Act.
(b)
Other reports or documents.
(1)
Governing Body Designated Project Status Report. The nominating
body shall submit a report to the Bank and Comptroller, conducted either at
the time a certificate of occupancy is issued, or at the completion of the
enterprise project designation period monitoring the qualified business to
determine whether the business or project has followed through on any commitments
or goals made in the application for enterprise project designation. This
information may also be provided through the Governing Body Annual Report.
(2)
Qualified Business Benefit Request Status Report. At the
time of submittal of a request for a state tax benefit, the qualified business
must provide a certified report to the Bank of the actual amount of capital
investment, as well as the actual number of new and/or retained jobs by category
and title.
(3)
Additional Information as requested. The applicant shall
furnish additional information, reports or statements as the Bank from time
to time may request in connection with the Act and this chapter.
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 March 24, 2006.
TRD-200601803
Robin Abbott
Assistant General Counsel
Office of the Governor, Economic Development and Tourism Division
Earliest possible date of adoption: May 7, 2006
For further information, please call: (512) 936-0501
Chapter 303.
REGISTRATION
Subchapter A. REGISTRATION OF BUILDERS
10 TAC §§303.1, 303.5, 303.7, 303.9, 303.13, 303.15, 303.17, 303.19
The Texas Residential Construction Commission (the "commission")
proposes amendments to §§303.1, 303.5, 303.7, 303.9, 303.13, 303.15,
303.17, and 303.19, relating to the registration of builders in the State
of Texas as provided for in Title 16, Property Code. The amendments are proposed
to clarify procedures and intent and to add additional requirements for registration
to the current rules.
Susan K. Durso, General Counsel, has determined that for each year of the
first five-year period the proposed amendments are in effect there will be
no fiscal implications for state or local governments as a result of enforcing
or administering the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year
period the proposed amendments are in effect the public will benefit from
the clarification of the procedures and great scrutiny of registered builders.
Ms. Durso has also determined that for each year of the first five-year
period the proposed amendments are in effect there will be no significant
effect on individuals or large, small and micro-businesses because of the
adoption of the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year
period the proposed amendments are in effect there should be no effect on
a local economy; therefore, no local employment impact statement is required
under Administrative Procedure Act §2001.022.
Interested persons may submit written comments (12 copies) on the proposed
amendments to Susan K. Durso, General Counsel, Texas Residential Construction
Commission, P.O. Box 13144, Austin, Texas 78711. The deadline for submission
of comments is thirty (30) days from the date of publication of the proposed
sections in the
Texas Register
. Comments received
after that date will not be considered. Comments should be organized in a
manner consistent with the organization of the proposed amendment. Comments
may be submitted electronically to comments@trcc.state.tx.us. For comments
submitted electronically, please include "Registration of Builders" in the
subject line. Comments submitted electronically to another electronic address
or that do not include "Registration of Builders" in the subject line may
not be considered.
The amendments are proposed pursuant to Chapter 416, Property
Code, which provides for the registration of builders and, generally, pursuant
to Property Code §408.001, which provides authority for the commission
to adopt rules necessary for the implementation of Title 16, Property Code.
The statutory provisions affected by these proposed amendments are those
set forth in Property Code, Chapters 408 and 416.
No other statutes, articles, or codes are affected by the proposed amendments.
§303.1. Registration Process.
(a)
All persons must register with the commission
by submitting a Builder/Remodeler Registration Form
[
(b)
A person who submits a registration
form as a new builder must also submit a Builder/Remodeler Affidavit form
attesting to whether or not that the person has operated as a builder in the
State of Texas since March 31, 2004.
(c)
If a person submits a registration
form as a new builder and has operated as a builder after March 31, 2004 without
proper registration the commission may undertake one or more of the following
actions as it determines is appropriate:
(1)
require the payment of a late fee in addition
to the registration fee;
(2)
undertake a disciplinary action and impose an
administrative penalty;
(3)
deny the application; or
(4)
refer the matter to the Office of the Attorney
General.
(d)
If an incomplete application
is submitted, the commission will provide the applicant an opportunity to
submit complete information. Failure to submit a completed application within
fifteen (15) days of the date of notice of a deficiency in the application
will result in the administrative withdrawal of the application.
§303.5.[
(a)
A builder must identify on
the application the type of business form under which the applicant operates
and any assumed names or names under which it is doing business (dba). If
the builder has registered any assumed names with the Secretary of State's
office, the builder must also submit a copy of the Certificate of Assumed
Business Name for each assumed name registered with the Secretary of State.
(b)
The applicant must identify
any affiliates:
(1)
that have applied previously for registration
with the commission; or
(2)
that have had an application submitted to the
commission administratively withdrawn; or
(3)
that have allowed a certificate of registration
with the commission expire for non-payment of renewal fees.
(4)
An affiliate is an individual or entity that
directly or indirectly through one or more intermediaries controls, is controlled
by or is under common control with the applicant.
(c)
[
(d)
The applicant must disclose
on the application for registration:
(1)
whether the applicant has entered a plea of
guilty or nolo contendere (no contest) to any felony charge or to any misdemeanor
charge for a crime involving moral turpitude; or
(2)
whether the applicant has been convicted of
any felony charge or of a misdemeanor charge for a crime involving moral turpitude
and that the time for appeal of the conviction has elapsed or that the conviction
was affirmed on appeal.
(e)
[
(1)
the nature and seriousness of any crimes to which the applicant
has pled guilty or pled no contest, or for which the applicant has a prior
conviction or convictions, including whether such a crime involves moral turpitude;
(2)
the extent to which acting as a registered builder might
offer the applicant an opportunity to engage in further criminal activity
of a same or similar nature as that for which the applicant has a prior conviction;
(3)
the extent and nature of the applicant's past criminal
activity;
(4)
the age of the applicant when any criminal activity discovered
occurred;
(5)
the remoteness in time between the submission of the application
and the date of the applicant's last criminal conviction;
(6)
the applicant's overall work history in relation to the
dates of any criminal convictions;
(7)
evidence of the applicant's successful rehabilitation efforts
while incarcerated or after release, including but not limited to, restitution
to the victim, completion of probationary requirements and completion of community
service; and
(8)
other evidence of the applicant's eligibility to serve
as a registered builder, as requested by the commission.
(f)
The commission will conduct
a criminal background check of each designated agent and may conduct a criminal
background check on any other person responsible for the registration if the
commission determines it necessary to further the purposes of the Act.
(g)
Any information obtained from
an applicant as a result of the criminal background check that is not a public
record at the time the commission obtains the information is deemed confidential.
The commission may not release or otherwise disclose the confidential information
except pursuant to a court order, subpoena or with the written consent of
the applicant.
(h)
For purposes of this section,
an applicant who has received a deferred adjudication for any felony charge
or for any misdemeanor charge for a crime involving moral turpitude shall
disclose that charge on the application for registration, regardless of whether
the applicant has completed the conditions of the order of deferred adjudication.
(i)
An individual must respond
completely and truthfully regarding criminal history information. Failure
to respond completely and truthfully will be considered evidence that the
applicant is not honest and trustworthy and does not have integrity, and may
result in denial of the application.
(j)
[
(k)
Failure to respond truthfully
and completely to requests for information to process a completed application
may result in the denial of the application.
§303.7.Designated Agents.
(a)
To be eligible to receive a certificate of registration
under this subchapter all applicants must designate an individual as
the primary designated
[
(b)
Each designated agent must adhere to the same
registration requirements and meet the same eligibility requirements as any
person applying for builder registration under this subchapter.
There
is no separate builder registration application form or fee required to register
the primary agent designated by a registered builder.
(c)
The primary designated agent
of a sole proprietorship is limited to the individual proprietor.
(d)
[
(e)
[
(f)
[
(g)
[
(h)
Individuals who are approved
as registered designated agents of a corporation, limited liability company,
partnership, limited partnership, limited liability partnership or other entity
registered as builder, are registered builders.
(i)
A corporation, limited liability
company, partnership, limited partnership or limited liability partnership
may submit a Secondary Agent Registration Form and fee to register one or
more qualified individuals to serve as a secondary registered agent(s).
§303.9.Eligibility Requirements.
(a)
At the time the application for registration
is filed with the commission
:
[
(1)
individual applicants
[
(2)
individuals who apply as the
designated agents of a corporation, limited liability company, partnership,
limited partnership, limited liability partnership or other entity must be
at least 18 years age and citizen of the United States of a lawfully admitted
alien and must demonstrate to the satisfaction of the commission that the
individual is honest, trustworthy and has integrity.
(3)
a corporation, limited liability
company, partnership, limited partnership, limited liability partnership or
other entity must demonstrate that it is properly registered and in good standing
with the Secretary of State and must demonstrate to the satisfaction of the
commission that the entity has acted honestly, with trustworthiness and with
integrity in its business dealings.
(b)
The commission may consider
a registered builder's complaint history, history of homeowner-filed requests
for participation in the SIRP, compliance with state and federal law, compliance
with the commission rules and requests for information, history of unsatisfied
judgments and unpaid arbitration awards, history of bankruptcies, compliance
history with the Secretary of State regulations and payment of taxes, and
history of use of corporate and partnership structures as a means to avoid
liability in evaluating whether an applicant is honest, trustworthy and has
integrity.
§303.13.Designated Address.
(a)
Each builder shall designate in the application for registration
a fixed physical address located in this state to serve as its principal place
of business.
(b)
Each designated agent shall provide in the application
for registration a fixed physical address in Texas.
(c)
The commission will use the
fixed physical address provided as the mailing address for the registered
builder in order to verify that the address is valid. If the postmaster will
not deliver to a physical address for the builder or if delivery to the physical
address is not advisable because of theft, and the builder is required to
maintain a Post Office Box, the builder may submit a post office box waiver
form in order to utilize a Post Office Box address in lieu of a physical address
for the receipt of mail only. A designated agent may submit a Post Office
Box as a mailing address in addition to the physical address provided pursuant
to subsection (b) of this section.
(d)
[
(e)
[
§303.15.Change of Registered Name.
(a)
Within forty-five (45) days from the date a builder commences
operation under a name different from the builder name designated on its current
certificate of registration, the registered builder shall submit written notice
to the commission of the new entity name under which it is operating
with supporting documentation from the Secretary of State, if appropriate
.
(b)
A change in the name of the registered builder resulting
from a change in the form of business organization for that builder requires
the submission of a new application for a certificate of registration.
§303.17.Material Change in Information.
(a)
Except as otherwise expressly provided in this
subchapter, each builder and designated agent shall report
in writing
to the commission [
(b)
A material change in information
includes:
(1)
information regarding the refusal, denial, revocation
or suspension of a professional or occupational license or certification;
or,
(2)
an order of conviction, guilty plea, plea of
nolo contender (no contest) or deferred adjudication entered against a designated
agent; or,
(3)
information regarding judgments and arbitration
awards entered against the registered agent, builder or an affiliated entity;
or,
(4)
any other information supplied to the commission
by the applicant upon which the commission may have reasonably relied in determining
the eligibility of an applicant or whether to approve an application for registration.
§303.19.Renewal.
(a)
After March 1, 2004, a person operating as a builder in
this state must keep a current certificate of registration and must
timely
renew its certificate of registration [
(b)
A builder that has been issued
an even-numbered builder registration certificate must renew its registration
by the last day of February of each even-numbered year. A builder that has
been issued an odd-number certificate of registration must renew its registration
by February 28 of each odd-numbered year.
(c)
A builder who fails to maintain a current certificate
of registration may be subject to
a late fee and
an administrative
penalty
or other disciplinary action
as determined by the commission.
(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 March 23, 2006.
TRD-200601790
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 7, 2006
For further information, please call: (512) 463-2886
10 TAC §303.3, §303.11
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Residential Construction Commission or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Residential Construction Commission (the
"commission") proposes the repeal of §303.3, regarding issuance of a
provisional registration certificate to builders and §303.11, regarding
information related to criminal histories of applicants for builder registration.
Section 303.3 provides by its own terms that it expired on January 1, 2005.
The repeal of §303.3 is proposed specifically pursuant to Property Code §416.003,
which provides for a provisional registration opportunity to expire January
1, 2005 and, generally, pursuant to Property Code §408.001, which provides
authority for the commission to adopt rules necessary for the implementation
of Title 16, Property Code.
The repeal of §303.11 is proposed because the language contained therein
is being subsumed into another section in this chapter by amendments proposed
in this same issue of the
Texas Register
.
Ms. Susan Durso, General Counsel for the commission, has determined that
for each year of the first five-year period that the proposed repeals are
in effect there will be no increase in expenditures or revenue for state government
and no fiscal impact for state or local government as a result of enforcing
or administering the sections.
Ms. Durso has also determined that for the first five years following the
repeals the public will benefit from the conformity of the agency's rules
with the statutory language and clarity in the agency rules resulting from
consolidation. There is no anticipated economic cost to persons as a result
of the proposed repeals.
Ms. Durso has also determined that for each year of the first five-year
period the proposed repeals are in effect there should be no effect on a local
economy; therefore, no local employment impact statement is required under
the Administrative Procedure Act, §2001.022.
Comments on the proposed repeals may be submitted to Susan K. Durso, General
Counsel, Texas Residential Construction Commission, 311 E. 14th Street, Austin,
Texas 78701 or by fax to (512) 475.2453. Comments may also be submitted electronically
to susan.durso@trcc.state.tx.us. For comments submitted electronically, please
include "Repeal of 303.3 and 303.11" in the subject line. The deadline for
submission of comments is thirty (30) days from the date of publication of
the proposed rule in the
Texas Register
. Comments
should be organized in a manner consistent with the organization of the rule
repeal proposed.
The statutory provisions affected by the repeal of these rules
are those set forth in Property Code, Chapters 408 and 416.
No other statutes, articles, or codes are affected by the proposed repeals.
§303.3.Provisional Registration.
§303.11.Information Regarding Past Criminal History.
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 March 23, 2006.
TRD-200601773
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 7, 2006
For further information, please call: (512) 463-2886
Subchapter D. POST-SETTLEMENT AND POST-HEARING MATTERS
10 TAC §305.41
The Texas Residential Construction Commission proposes amendments
to §305.41, regarding the procedures for motions for rehearing. Specifically,
the proposed amendments will conform the language of the rule to the language
of the Administrative Procedure Act (Act) so that the time for taking action
is calculated from the same date as stated in the Act. This will eliminate
any confusion as to the date upon which the commission must take action.
Ms. Susan Durso, General Counsel for the commission, has determined that
for each year of the first five-year period that the proposed amended rule
is in effect there will be no increase in expenditures or revenue for state
government and no fiscal impact for state or local government as a result
of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the amended
rule is in effect the public will benefit from the conformity of the agency's
rules with the statutory language on the same procedure. There is no anticipated
economic cost to small businesses or persons who are required to comply with
the proposed amendments.
Ms. Durso has also determined that for each year of the first five-year
period the proposed amended rule is in effect there should be no effect on
a local economy; therefore, no local employment impact statement is required
under the Administrative Procedure Act, §2001.022.
Comments on the proposed amendments may be submitted to Susan K. Durso,
General Counsel, Texas Residential Construction Commission, 311 E. 14th Street,
Austin, Texas 78701 or by fax to (512) 475.2453. Comments may also be submitted
electronically to susan.durso@trcc.state.tx.us. For comments submitted electronically,
please include "Amended Rule 305.41" in the subject line. The deadline for
submission of comments is thirty (30) days from the date of publication of
the proposed rule in the
Texas Register
. Comments
should be organized in a manner consistent with the organization of the rule
under consideration.
The amendments are proposed pursuant to Property Code §408.001,
which provides general authority for the commission to adopt rules necessary
for the implementation of Title 16 of the Property Code, the commission's
enabling act and the Administrative Procedures Act, Texas Government Code,
Chapter 2001.
The proposed amendment is cross-referenced to Texas Property Code §408.001
and Texas Government Code §2001.146 and §2001.147.
§305.41.Motions for Rehearing.
(a)
Filing times. A motion for rehearing must be filed with
the commission within 20 days after a party has been notified, either in person
or by mail, of the order of the commission
pursuant to §305.40 of
this chapter
.
(b)
Commission action. Commission action on the motion for
rehearing must be taken within 45 days after the date
a party has been
notified of the commission's order pursuant to subsection (a) of this section
[
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 March 23, 2006.
TRD-200601789
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: May 7, 2006
For further information, please call: (512) 463-2886
Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
, using a commission-prescribed
form
], in order to conduct business as a builder in the state of Texas.
A person must submit a completed [
application for
] registration
form and filing fee for issuance of a certificate of registration in the name
of each entity under which the applicant intends to operate as a builder in
this state. The commission shall issue a certificate of registration to an
applicant who meets the eligibility requirements for builder registration
within fifteen (15) days of receipt of the completed registration [
application
form
] and required fee.
Application for ] Registration.
(a)
] The application for registration
shall contain a request for information from the applicant that is sufficient
for the commission to conduct a criminal background check to determine the
applicant's eligibility for registration under the Act.
(b)
] In reviewing an application
to determine if an applicant is eligible for registration under this subchapter,
the commission shall consider, among other things, whether the applicant has
a criminal history and if so:
(c)
] An applicant must respond
timely
to
any
[
a
] commission request for further
information in reviewing the
completed
application in order to
complete the application process.
an
] agent.
(b)
] A corporation must designate
one [
or more of its officers
] as the
primary
designated
agent
[
agent(s)
].
(c)
] A limited liability company
must designate one [
or more of its managers
] as the
primary
designated
agent
[
agent(s)
].
(d)
] A partnership, limited partnership
or limited liability partnership must designate one of its managing partners
as the
primary
designated agent or, if there are no individuals
serving as a managing partner, a partnership, limited partnership or limited
liability partnership must designate an individual officer
from
among
its managing
partner entities
[
partners
] as the designated
agent.
(e)
] A corporation, limited liability
company, partnership, limited partnership or limited liability partnership
is not eligible for registration as a builder and may not act as a builder
unless the entity's
primary
designated agent is individually eligible
for registration as a builder.
,
]
an applicant
] must be at least 18 years of age and a citizen of the United States
or a lawfully admitted alien and must demonstrate to the satisfaction of the
commission that the applicant is honest, trustworthy and has integrity.
(c)
]
If the builder moves
from the physical address designated on its certificate of registration, or
if the builder has been authorized to utilize a Post Office Box for the receipt
of mail, the
[
Each
] builder shall submit a [
commission-prescribed
] change of information form and the required fee not later than thirty
(30) days from the date
of the address change
[
the builder
moves from the address designated on its certificate of registration
].
(d)
] Each designated agent shall
submit a [
commission-prescribed
] change of information form and
the required fee not later than thirty (30) days from the date the designated
agent moves from the address provided on its application.
in writing
] using a
Change of Information
Form
[
commission-prescribed form
] any material change in
the information [
provided to the commission
] in the application
for certificate of registration
provided to the commission
within
thirty (30) days of the change.
prior to the expiration
of the effective period shown on the certificate of registration
].
(b)
] In order to renew a certificate
of registration, a builder shall submit a completed application for renewal
of a certificate of registration and the required fee to the commission not
later than thirty (30) days prior to the
end of the applicable registration
period as provided in subsection (b) of this section
[
expiration
of the effective period shown on the current certificate of registration
].
Chapter 305.
PRACTICE AND PROCEDURES FOR HEARINGS AND DISCIPLINARY ACTIONS
the final order is signed
]. If commission action is not
taken within the 45-day period, the motion for rehearing is overruled by operation
of law. The commission may rule on a motion for rehearing at a meeting or
by mail, telephone, telegraph, or another suitable means of communication.
The commission may by written order extend the period of time for filing the
motions and replies and taking commission action, except that an extension
may not extend the period for commission action beyond 90 days from the date
the
party was notified pursuant to §305.40 of this chapter
[
order was signed
]. In the event of an extension, the motion for rehearing
is overruled by operation of law on the date fixed by the order, or in the
absence of a fixed date, 90 days after the date
the party was notified
pursuant to §305.40 of this chapter
[
of the final decision
or order
]. The parties may by agreement, with the approval of the commission,
provide for a modification of the times provided in this section.
Chapter 306.
COMPLAINTS