Part 1. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
The Texas Commission on Environmental Quality (commission) adopts the amendments to §§11.1 - 11.3 and §11.200. Section 11.1 and §11.3 are adopted with non-substantive changes to the proposed text as published in the December 1, 2006, issue of the Texas Register (31 TexReg 9681). Section 11.2 and §11.200 are adopted without changes and will not be republished.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES
Certain Texas Building and Procurement Commission (TBPC) rules require that agencies adopt them by reference. Since TBPC has amended some of its rules, the adoptions in the TCEQ rules are being updated. Also, the names of agencies referenced in the rules have changed; therefore, the names are being updated. Several clarifications are being made to better organize and more thoroughly explain the rules. Several typographical errors are being corrected.
Also, the 77th Legislature, 2001, passed House Bill (HB) 2812. The bill renumbered Texas Government Code, Chapter 2259 to Chapter 2261. This adoption of the rules is necessary to update the reference to the chapter and sections of the statutes.
SECTION BY SECTION DISCUSSION
The adopted amendment makes administrative changes to §11.1 to change references to the Texas Natural Resource Conservation Commission to the Texas Commission on Environmental Quality and references to the Texas General Services Commission to the Texas Building and Procurement Commission. A reference to the issue date of a TBPC rule is also updated to reference the most recent amendment of the rule.
In §11.2(a), the adopted amendment clarifies who can file a protest by adding "proposer" to the list. Also, the phrase "or his designee (hereafter Manager)" is moved for clarity. The adoption makes subsection (e)(3) parallel to subsection (e)(2) by explaining that the Procurements and Contracts Manager will include in its letter the appropriate remedial action. A typographical error is corrected in subsection (g) with the removal of the word "either." Subsection (h) is deleted and reinserted as subsection (i) and subsection (i) is relettered as subsection (h) to improve the logical order of the subsections. In the new subsection (h) a phrase is moved to improve clarity, "in writing by the executive director" and a phrase that does not coincide with the rest of the rule is removed, "either by the commission."
The adopted amendment makes an administrative change to §11.3, changing references to the Texas Natural Resource Conservation Commission to the Texas Commission on Environmental Quality in subsection (c) and a reference to the Texas General Services Commission to the Texas Building and Procurement Commission in subsection (a). Also in subsection (a), a reference to the issue date of a TBPC rule is updated to reference the most recent amendment of the rule and the subject of the referenced rule is clarified.
In §11.200, the adopted amendment updates the reference to Texas Government Code, Chapter 2259, and a related statute, to Chapter 2261.
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 update agency names and references to rules, provide for more logical sequencing of phrases and subsections in the rules, and to clarify who the rules apply to and the contents of a letter from the Manager of Procurements and Contracts.
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 taking under Texas Government Code, Chapter 2007. The specific purpose of the adopted rules is to update agency names and references to rules, provide a more logical sequencing of phrases and subsections in the rules, and to clarify who the rules apply to and the contents of a letter from the Manager of Procurements and Contracts. 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.
There are no burdens imposed on private real property, and the benefits to society are greater clarification of the rule.
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 January 2, 2007. No comments were received from the public.
Subchapter A. HISTORICALLY UNDERUTILIZED BUSINESS PROGRAM
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code (TWC), §5.103(a), which provides the commission with the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
The adopted amendment implements TWC, §5.103(a), which provides that the commission has the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
§11.1.Historically Underutilized Business Program.
The commission adopts by reference the rules of the Texas Building and Procurement Commission in 1 TAC §§111.11 - 111.22 and §§111.26 - 111.28 (relating to Historically Underutilized Business Program), as amended through the November 5, 2004, issue of the Texas Register (29 TexReg 10249).
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 March 30, 2007.
TRD-200701220
Kevin McCalla
Director, General Law Division
Texas Commission on Environmental Quality
Effective date: April 19, 2007
Proposal publication date: December 1, 2006
For further information, please call: (512) 239-6087
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103(a), which provides the commission with the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
The adopted amendment implements TWC, §5.103(a), which provides that the commission has the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
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 March 30, 2007.
TRD-200701222
Kevin McCalla
Director, General Law Division
Texas Commission on Environmental Quality
Effective date: April 19, 2007
Proposal publication date: December 1, 2006
For further information, please call: (512) 239-6087
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103(a), which provides the commission with the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
The adopted amendment implements TWC, §5.103(a), which provides that the commission has the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
§11.3.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) (relating to Bid Submission, Bid Opening, and Tabulation), as amended through the September 8, 2000, issue of the Texas Register (25 TexReg 8848).
(b) The adoption of this rule is required by Texas Government Code, §2156.005(d), 75th Legislature, 1997.
(c) Copies of the rule are filed in the Texas Commission on Environmental Quality's (TCEQ) Library, located at 12100 Park 35 Circle, Building A, Austin, and at all TCEQ regional offices.
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 March 30, 2007.
TRD-200701223
Kevin McCalla
Director, General Law Division
Texas Commission on Environmental Quality
Effective date: April 19, 2007
Proposal publication date: December 1, 2006
For further information, please call: (512) 239-6087
STATUTORY AUTHORITY
The amendment is adopted under Texas Water Code, §5.103(a), which provides the commission with the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
The adopted amendment implements TWC, §5.103(a), which provides that the commission has the authority to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state.
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 March 30, 2007.
TRD-200701221
Kevin McCalla
Director, General Law Division
Texas Commission on Environmental Quality
Effective date: April 19, 2007
Proposal publication date: December 1, 2006
For further information, please call: (512) 239-6087