30 TAC §§11.103 - 11.105, 11.108
The Texas Commission on Environmental Quality (commission)
adopts amendments to §§11.103 - 11.105 and 11.108
without changes
to the proposed text as published in the March 10,
2006, issue of the
Texas Register
(31 TexReg
1597), and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
House Bill (HB) 1940, 79th Legislature, 2005, amended Texas Government
Code, §2260.051(d), Claim for Breach of Contract; Notice, and §2260.052(a),
Negotiation, by reducing the amount of time by which units of state government
must file a counterclaim against a contractor from 90 days to 60 days after
receiving notice of the claim from the contractor, and modifying the time
by which units of state government must enter into negotiations with the contractor
to 120 days after the date the claim is received.
The purpose of the adoption is to amend Chapter 11 to implement HB 1940.
Additionally, the commission adopts the amendments to §11.103 and §11.108
to conform to Texas Register requirements.
SECTION BY SECTION DISCUSSION
The adopted amendment to §11.103, Other Rules and Statutes, corrects
the section title of a reference to conform to Texas Register requirements.
The adopted amendment to §11.104, Filing Notice of Claim for Breach
of Contract; Counterclaim, changes the time in which the executive director
must file a counterclaim from 90 days to 60 days after receiving the notice
of claim from the contractor. At the time of the adoption of the rule on August
20, 2000, a unit of state government had 90 days after receiving the notice
of claim in which to file a counterclaim. The adopted amendment to §11.104
spells out the acronym "OLS" to conform to Texas Register requirements.
The adopted amendment to §11.105, Negotiation, deletes the language
that states that the executive director, upon receiving the claim, shall provide
the contractor a reasonable opportunity to meet and negotiate the claim. The
adopted amendment to §11.105 also specifies that the executive director
must begin negotiations within 120 days after receiving notice of the claim
by the contractor.
The adopted amendment to §11.108, Request for Hearing, spells out
the acronyms "SOAH" and "OLS" to conform to Texas Register requirements.
FINAL REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the adopted rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the rulemaking is not subject to §2001.0225 because it does not
meet the definition of a "major environmental rule" as defined in §2001.0225.
The intent of the adopted rulemaking is to reduce the time in which a unit
of state government must file a counterclaim against a contractor and the
time in which to enter negotiations.
The commission invited public comment regarding the draft regulatory impact
analysis determination during the public comment period. No comments were
received on the draft regulatory impact analysis.
TAKINGS IMPACT ASSESSMENT
The commission evaluated the adopted rules and performed an assessment
of whether the adopted rules constitute a takings under Texas Government Code,
Chapter 2007. The specific purpose of the adopted rules is to provide the
time frame in which units of government must file a counterclaim against a
contractor and enter into negotiations to resolve certain contract claims.
The adopted rules will substantially advance this stated purpose.
Promulgation and enforcement of the adopted rules would be neither a statutory
nor a constitutional taking of private real property. Specifically, the subject
adopted regulations do not affect a landowner's rights in private real property
because this rulemaking does not burden (constitutionally); nor restrict or
limit the owner's right to property and reduce its value by 25% or more beyond
that which would otherwise exist in the absence of the regulations. In other
words, the adopted rules affect the time frame in which units of state government
must file a counterclaim and enter into negotiations in order to resolve certain
contract claims. There are no burdens imposed on private real property, and
the benefits to society are the efficient resolution of contract claims against
a unit of state government.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the adopted rules and found that they are neither
identified in Coastal Coordination Act Implementation Rules, 31 TAC §505.11(b)(2)
or (4), nor will they affect any action/authorization identified in Coastal
Coordination Act Implementation Rules, 31 TAC §505.11(a)(6). Therefore,
the adopted rules are not subject to the Texas Coastal Management Program.
PUBLIC COMMENT
The close of comment deadline was April 10, 2006. No comments were received
from the public.
STATUTORY AUTHORITY
The amendments are adopted under Texas Water Code, §5.103, Rules,
which provides the commission the authority to adopt rules necessary to carry
out its power and duties under the Texas Water Code and any other laws of
the State of Texas, and Texas Government Code, §2260.052(c), Negotiation,
which gives each unit of state government the authority to develop rules to
govern the negotiation and mediation of a claim.
The adopted amendments implement Texas Government Code, §2260.051(d)
and §2260.052(a).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 1, 2006.
TRD-200602990
Stephanie Bergeron Perdue
Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Effective date: June 21, 2006
Proposal publication date: March 10, 2006
For further information, please call: (512) 239-6087