10 TAC §§188.1 - 188.10
The Office of the Governor, Economic Development and Tourism
Office (Office) proposes new Chapter 188, §§188.1 - 188.10, Fuel
Ethanol and Biodiesel Production Incentive Program (Program) relating to the
registration of fuel ethanol and biodiesel producers and grants of state funds
for the production of fuel ethanol and biodiesel. The Program will encourage
the development and production of fuel ethanol and biodiesel and will set
standards for plant registration.
The Program is authorized by Texas Agriculture Code, Chapter 16, and will
be administered by the Texas Department of Agriculture (Department) as authorized
by Texas Agriculture Code, §16.005. The proposed rules are needed to
transfer authority to administer the Program to the Department so that the
Program can be implemented. Chapter 188 sets out the Memorandum of Understanding
between the Office and the Department and delineates the roles of the parties
related to the Program. The Department will publish program guidelines contemporaneously
with the publication of these rules.
Tracye McDaniel, Executive Director of the Office, has determined that
for each year of the first five years that the rules are in effect there will
be no additional cost and no reduction in cost to local governments as a result
of administering or enforcing the rules. Each full year for the first five
years that the rules are in effect the additional cost to state government
is estimated to be $22 million, which will be provided to eligible registered
fuel ethanol and biodiesel producers in the form of matching grant funds from
undedicated state general revenue. There will be no cost to small businesses
or micro-businesses.
Ms. McDaniel has also determined that for each year of the first five years
the rules are in effect the public benefit anticipated as a result of the
rules is the economic benefit to the state that results from the implementation
of the program and resulting development of new alternative fuel products
and businesses. Only fuel ethanol and biodiesel producers who choose to participate
in the program will incur economic costs as a result of complying with the
rules. The economic costs anticipated for persons who choose to participate
in the Program and to comply with the proposed rules are the matching funds
required by Texas Agriculture Code, §16.005 and the costs of required
audits and reports under the Program.
Written comments on the proposed rules may be hand delivered to the Office
of the Governor, General Counsel Division, 1100 San Jacinto, Austin, Texas
78701; mailed to P.O. Box 12428, Austin, Texas 78711-2428; faxed to (512)
463-1932, or e-mailed to rabbott@governor.state.tx.us. Comments should be
addressed to the attention of Robin Abbott, Assistant General Counsel. Comments
must be received within 30 days of publication of the proposed rules.
The rules are proposed pursuant to Texas Agriculture Code, §16.006
which directs the Office to adopt rules for distribution of grants under the
program and Texas Government Code, Chapter 2001, Subchapter B, which prescribes
the standards for rulemaking by state agencies.
Texas Agriculture Code, Chapter 16, is affected by this proposal.
§188.1.Authority and Parties.
(a)
Authority for Agreement. This Memorandum of Understanding
(Agreement) is entered into pursuant to provisions of the Texas Government
Code, Chapter 771, the Interagency Cooperation Act.
(b)
Parties. The Parties to this Agreement are the Economic
Development and Tourism Office (Office) in the Office of the Governor and
the Texas Department of Agriculture (Department), a state agency of the State
of Texas. The Parties to this agreement may also be referred to collectively
as the Parties or individually as a Party.
(c)
Authority of Parties. The Parties have authority to enter
into this Agreement pursuant to the provisions of Texas Agriculture Code, §16.005,
and of Senate Bill 1, 79th Legislature, Regular Session, the General Appropriations
Act (Act), Article I, Rider 4 (page I-48).
§188.2.Scope of Work.
(a)
The Department shall perform all functions and activities
authorized by Texas Agriculture Code, Chapter 16, relating to administration
of the fuel ethanol and biodiesel production incentive program, including
the following:
(1)
The Department shall develop guidelines for administration
of the program.
(2)
The Department shall review all program applications for
registration of a fuel ethanol or biodiesel facility and make a determination,
based on the guidelines, to approve or decline the application.
(3)
The Department shall forward to the Office all applications
submitted to the Department along with the Commissioner of Agriculture's approval
or rejection of the application, detailed information about the process used
to review the application, information indicating whether the application
complies with the guidelines and a summary of any other information that forms
the basis for the determination to approve or decline the application.
(4)
The Department shall provide to the Office notice of all
grant payments made by the Department under Texas Agriculture Code, Chapter
16, including copies of the quarterly reports submitted by producers.
(5)
The Department will submit monthly reports to the Office
as agreed.
(6)
The Department agrees to share all information reasonably
necessary for the performance of either Party's duties under this agreement.
(b)
The Office shall perform the following functions related
to the fuel ethanol and biodiesel production incentive program created by
Texas Agriculture Code, Chapter 16.
(1)
The Office shall adopt rules as reasonably necessary to
transfer all functions and funding of Texas Agriculture Code, Chapter 16,
to the Department.
(2)
The Office shall review the Commissioner of Agriculture's
determination to approve or decline all eligible program applications for
registration of a fuel ethanol or biodiesel facility submitted to the Office
by the Department and issue its concurrent determination to approve or decline
the application based on the Department's review.
(3)
The Office shall share all information reasonably necessary
for the performance of either Party's duties under this Agreement.
§188.3.Period of Performance.
This agreement takes effect upon the date of last signatory and terminates
on August 31, 2007.
§188.4.Audit.
The Parties agree that the Texas State Auditor's Office (State Auditor)
may audit or investigate any Party or any subcontractor or other entity receiving
funds from the State of Texas under this Agreement. Acceptance of funds from
the State of Texas directly under the Agreement or indirectly through a subcontract
under this Agreement constitutes acceptance of the authority of the State
Auditor, under the direction of the legislative audit committee, to conduct
an audit or investigation in connection with those funds. Each Party shall
incorporate the provisions of this paragraph into all subcontractor contracts
and agreements. Under the direction of the legislative audit committee, any
entity that is subject to an audit or investigation by the State Auditor must
provide the State Auditor with access to any information the State Auditor
considers relevant to the investigation or audit.
§188.5.Governing Law.
This Agreement, including all performance requirements and disputes
hereunder, shall be governed by and construed in accordance with the laws
of the State of Texas. Venue for any legal action brought under this contract
shall be in Austin, Travis County, Texas.
§188.6.Notice.
Written notice shall be deemed to have been duly served when received
by hand delivery or when sent and received by certified or registered mail
or by private courier with tracking service to the following addresses:
(1)
To the Office: Address: P.O. Box 12428, Austin, Texas 78711;
Phone: (512) 936-0181; Fax: (512) 936-0303.
(2)
To the Department: Address: P.O. Box 12847, Austin, Texas
78711; Phone: (512) 463-7476; Fax: (512) 463-6072.
§188.7.Funding and Performance.
(a)
Funds collected and appropriated pursuant to the Act, Article
I, Rider 25 (page I-57), appropriation for the Trusteed Programs Within the
Office of the Governor, are hereby assigned to the Department pursuant to
the authority set forth in the Act, Article I, Rider 4 (page I-48), appropriation
for the Office.
(b)
The Parties' authority and appropriations are subject to
the actions of the Texas Legislature. If any Party becomes subject to a legislative
change, revocation of statutory authority or lack of funds that would render
the services to be provided under this Agreement impossible or unnecessary,
that Party may, by providing written notice to the other Party, immediately
terminate this Agreement without penalty to any Party or to the State of Texas.
In the event of termination under this paragraph, no Party shall be liable
for damages or losses caused or associated with such termination.
§188.8.Assignment.
No Party may transfer or assign any rights or duties under or any interest
in this Agreement without the prior written consent of the other Party.
§188.9.Severability.
In the event that any provision of this Agreement is later determined
to be invalid, void, or unenforceable, then the remaining provisions of this
Agreement shall remain in full force and effect, and shall in no way be affected,
impaired or invalidated.
§188.10.Certifications.
The parties do hereby certify that:
(1)
the services specified above are necessary and essential
for activities that are properly within the statutory functions and programs
of the Parties;
(2)
the proposed Agreement serves the interest of efficient
and economical administration of state government; and
(3)
the services covered by this Agreement are not required
by the Texas Constitution, Article 16, Section 21, to be supplied under contract
given to the lowest bidder.
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 January 30, 2006.
TRD-200600464
Tracye McDaniel
Executive Director
Office of the Governor, Economic Development and Tourism Division
Earliest possible date of adoption: March 12, 2006
For further information, please call: (512) 936-0181