PART 7. TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
The Texas Residential Construction Commission (commission) proposes a new section in Title 10 Chapter 300 of the Texas Administrative Code, 10 Texas Administrative Code §300.12 (10 TAC §300.12) regarding the rulemaking process before the commission. The proposed new section is part of an overall plan to consolidate rules found in 10 Texas Administrative Code Chapters 300, 301, and 302 as a part of an agency rule review undertaken pursuant to Texas Government Code §2001.039. In this same issue of the Texas Register, a repeal of §301.2 is proposed to remove this language from Chapter 301 and further the agency's consolidation efforts.
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five year period that the new section is in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the new section is in effect the public will benefit from having all rules related to agency administration consolidated into a single chapter of the Texas Administrative Code. There will be no effect on individuals, large, small or micro businesses as a result of the new section because the rule currently exists in another administrative rule chapter.
Ms. Durso has also determined that for each year of the first five-year period the new section 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.
Ms. Durso has also determined that for each year of the first five-year period the proposed new section is in effect there will be no new adverse economic effect on small businesses that interact with the commission because the rule currently exists in a different chapter of the Texas Administrative Code. Further, there is a statutory requirement that the commission adopt a rule on agency rulemaking procedures; therefore, no regulatory alternative is available. Accordingly, no regulatory flexibility analysis is necessary.
Comments (12 copies) on the proposed new section may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, 311 E. 14th Street, Austin, Texas 78701; P.O. Box 13509, Austin, TX 78711-3509; or by fax to (512) 475-2453. Comments should include any comments on the agency rule review plan to consolidate agency administrative rules into a single chapter of the Texas Administrative Code and to determine whether this rule is still needed. In the alternative, comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "New section 300.12" in the subject line. The deadline for submission of comments is twenty (20) days from the date of publication of the proposal in the Texas Register. Comments should be organized in a manner consistent with the organization of the rule under consideration. Comments submitted electronically to a different email address or that do not have "New section 300.12" in the subject line may not be considered.
The new section is proposed pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16, Government Code §2001.021, requiring state agencies to prescribe by rule the form of a rulemaking petition, and Government Code §2001.039, requiring periodic agency review of rules.
No other statute, article or code is affected by the proposal.
§300.12.Rulemaking Process.
(a) Petition for Rulemaking by the Public. Any interested person may petition the commission to request adoption of a new rule or to amend or repeal an existing rule.
(1) The petition shall be in writing and shall include a brief explanation of the rule, the reason(s) the new or amended rule should be adopted or repealed, the statutory authority for such a rule or amendment and complete proposed text for the rule. All proposed text to amend a rule shall be indicated by striking through the words, if any, to be deleted from the current rule and by underlining the words, if any, to be added to the current rule.
(2) Upon receipt of a petition for rulemaking, the commission shall submit a notice for publication in the "In Addition" section of the Texas Register. The notice shall include a summary of the petition, the name of the individual, organization or entity that submitted the petition, and notification that a copy of the petition will be available for review and copying from the commission. Written comment on the petition shall be due 21 days from the date of publication of the notice. Written comment may be submitted by electronic means as prescribed by the commission. Failure to publish a notice of a petition for rulemaking in the Texas Register shall not invalidate any commission action on the petition for rulemaking.
(3) Within 60 days after submission of a petition, the commission either shall deny the petition in writing, stating its reasons for the denial or shall initiate rulemaking proceedings.
(b) Commission-Initiated Rulemaking. The commission may initiate rulemaking proceedings at any time.
(c) Notice and Public Participation in Rulemaking Procedures.
(1) Initial Comments. Prior to publishing a proposed rule or initiating a major amendment to an existing rule, the commission may solicit public comment on the need for a rule and potential scope of the rule by publication of a notice of rulemaking project in the "In Addition" section of the Texas Register. A notice filed pursuant to this section shall contain a brief description and statement of the intended objective of the proposed rule and indicate if a draft of the proposed rule is available for review by interested persons. Unless otherwise prescribed by the commission, any comments concerning the rulemaking project shall be due within 30 days from the date of publication of the notice. The commission may hold workshops and/or public hearings on the rulemaking project.
(2) Notice. The commission may initiate a rulemaking project by publishing notice of the proposed rule in accordance with the Administrative Procedures Act (APA) §§2001.021 - 2001.037.
(3) Public Comment. Prior to the adoption of any rule, the commission shall afford all interested persons a reasonable opportunity to submit data, views or arguments in writing. Written comment along with 12 copies must be filed within 30 days of the date the proposed rule is published in the Texas Register unless the commission establishes a different date for submission of comments. Written comment may also be submitted by electronic means as prescribed by the commission.
(4) Public Hearing. The commission may schedule public hearings on a proposed rule pursuant to §2001.029 of the APA. The request for public hearing must be made no later than 21 days after the date the proposed rule is published in the Texas Register , unless the commission establishes a different date for requesting a public hearing.
(5) Final Adoption. Following consideration of comments, the commission will issue an order adopting, adopting as amended, or withdrawing the rule within six months after the date of publication of the proposed rule or the rule is automatically withdrawn.
(d) Emergency Adoption. Notwithstanding any other provision of these rules, if the commission finds that a requirement of state or federal law requires adoption of a rule on fewer than 30 days notice and states in writing its reasons for that finding, it may proceed without prior notice or hearing or on any abbreviated notice and hearing that it finds practicable to adopt an emergency rule. The commission shall set forth the requisite finding in the preamble to the rule. An emergency rule adopted under the provisions of this subsection and the commission's written reasons for the adoption shall be filed in the office of the Secretary of State for publication in the Texas Register. All of the requirements of §2001.024 of the APA apply to this section.
(e) Informal Information Gathering.
(1) The commission or the commission staff may use informal conferences and consultations as a means of obtaining the viewpoints and advice of interested persons concerning a contemplated rulemaking.
(2) The commission may create committees of employees, non-employees or both to advise it with respect to any contemplated rulemaking or other issues of interest to the commission, builders, arbitrators, homeowners, third-party inspectors or other members of the public. Powers of these committees are advisory only.
(f) Saving Provisions. The amendment or repeal of a rule does not affect:
(1) the prior operation of the rule or any prior action taken under the rule;
(2) any right, privilege, obligation or liability previously acquired, accorded or incurred under the rule;
(3) any violation of the rule or any penalty or punishment incurred under the rule before its amendment or repeal; or
(4) any investigation, proceeding, or remedy concerning any privilege, obligation, liability, penalty or punishment under the rule.
(g) Severability. If any part of a commission rule or a rule's application to any person or circumstance is held invalid, the invalidity does not affect other parts or applications of the commission rules that can be given effect without the invalid part or application, and to this end the commission rules are severable.
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 June 16, 2008.
TRD-200803093
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: July 27, 2008
For further information, please call: (512) 463-2886
(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 Residential Construction Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Residential Construction Commission (commission) proposes the repeal of 10 Texas Administrative Code §301.2 (10 TAC §301.2) regarding the rulemaking process before the commission. The proposed repeal is part of an overall plan to consolidate rules found in 10 Texas Administrative Code Chapters 300, 301, and 302 as a part of an agency rule review undertaken pursuant to Texas Government Code §2001.039. In this same issue of the Texas Register , a new section is proposed that will incorporate the current language of §301.2 without amendments. It is further proposed that the text of §301.2 shall be re-adopted as §300.12 in Title 10, Chapter 300 of the Texas Administrative Code.
Ms. Susan K. Durso, General Counsel for the commission, has determined that for each year of the first five year period that the repeal is in effect there will be no increase in expenditures or revenue for state government and no fiscal impact for local government as a result of enforcing or administering the section.
Ms. Durso has also determined that for the first five years the repeal is in effect the public will benefit from having all rules related to agency administration consolidated into a single chapter of the Texas Administrative Code. There will be no effect on individuals, large, small or micro businesses as a result of the repeal because the rule is being moved to another administrative rule chapter.
Ms. Durso has also determined that for each year of the first five-year period the repeal 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 (12 copies) on the proposed repeal 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 should include any comments on the agency rule review plan to consolidate agency administrative rules into a single chapter of the Texas Administrative Code and to determine whether this rule is still needed. In the alternative, comments may also be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Rulemaking Process Repeal" in the subject line. The deadline for submission of comments is twenty (20) days from the date of publication of the proposed repeal in the Texas Register . Comments should be organized in a manner consistent with the organization of the rule under consideration.
The repeal is proposed pursuant to Property Code §408.001, which provides general authority for the commission to adopt rules necessary for the implementation of Title 16, Government Code §2001.021, requiring state agencies to prescribe by rule the form of a rulemaking petition, and Government Code §2001.039, requiring periodic agency review of rules.
No other statute, article or code is affected by the proposal.
§301.2.Rulemaking Process.
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 June 16, 2008.
TRD-200803088
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: July 27, 2008
For further information, please call: (512) 463-2886
SUBCHAPTER B. REGISTRATION OF HOMES
The Texas Residential Construction Commission (commission) proposes amendments to Title 10, Part 7, Chapter 303, Subchapter B, §303.140, relating to the registration of homes in the State of Texas, and §303.170, relating to administrative penalties for failure to register a home construction project in accordance with Title 16 of the Texas Property Code and commission rules. The amendments to §303.140 are proposed to clarify recent amendments to the agency's policy regarding registration of homes online. The amendments to §303.170 are proposed to incorporate into the rules recent legislative amendments to the agency's statute and as part of a rule review under Government Code §2001.039.
Amendments to §303.140, relating to the home registration process, provides for online home registration which will streamline and unify home registration, reduce staff time spent on entering data, and reduce errors on data entered as a result of illegible handwriting. Builders and remodelers who have registered more than 25 home construction projects in the preceding calendar year are required to use the commission's secure Web portal to register projects online. The amendments also permit the Executive Director to grant waivers to this requirement, and will require use of the current registration form. Amendments to §303.140 were adopted in October of 2007; however, users of the rule found the language confusing. Therefore, the commission is proposing these revisions to clarify its intent.
Amendments to §303.170, relating to administrative penalties for failure to properly register homes, are proposed because the threshold dollar amount for interior renovations to existing homes that must be registered with the commission was lowered from $20,000 to $10,000 for home construction projects commenced on or after September 1, 2007, pursuant to House Bill 1038, enacted in the 80th, Regular Session, of the Texas Legislature. In addition, the amendments are part of a commission review of the necessity of these rules under the requirements of Government Code §2001.039, which requires each state agency to periodically review its 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 and builders will benefit from the immediate registration of all SIRP projects, and clarification on the process to register homes and the applicable late fees. In addition, the public will benefit from reduced costs for processing paper work and uniform procedures for home registration by builders and remodelers.
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 impact on individuals, 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.
Comments (12 copies) on the proposed amendments may be submitted to Susan K. Durso, General Counsel, Texas Residential Construction Commission, 311 E. 14th St., Austin, Texas, 78711-3509 or by fax to (512) 475-2453. In the alternative, comments may be submitted electronically to comments@trcc.state.tx.us. For comments submitted electronically, please include "Registration of Homes" in the subject line. Comments submitted electronically to another electronic address or that do not include "Registration of Homes" in the subject line may not be considered.
The deadline for submission of comments is twenty (20) 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 amendments. As part of the rule review, the public may include comments on whether the rule is still necessary.
The amendments are proposed pursuant to Chapter 426, Property Code, which provides for the registration of homes; 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; and Government Code §2001.039, which requires all state agencies to periodically review their adopted rules.
The statutory provisions affected by these proposed amendments are those set forth in Property Code, Chapters 408 and 426, and Government Code §2001.039.
No other statutes, articles, or codes are affected by the proposed amendments.
§303.140.Home Registration Process.
(a) A builder or remodeler registering a home under §303.100 or §303.110 of this subchapter shall submit a completed home registration form in effect at the time the home is registered with the appropriate fee to the commission as required under this section.
[(b) A completed home registration
form must be submitted to the commission with the appropriate fee
via the commission's secure Web portal provided for online home registrations
by builders or remodelers, except as provided by subsection (d) of
this section.]
(b) [(c)] All builders and remodelers
that are registered with the commission and that filed twenty-five
or more home registration forms with the commission in the preceding
calendar year must register homes online via the commission's secure
Web portal provided for online home registration, unless
the builder or remodeler has received a waiver of this requirement
under subsection (d) [(e)] of this section.
(c) [(d)] Builders and remodelers
that are unable to utilize the online home registration process as
required by [subsection (c) of] this section may submit
a sworn affidavit to the Executive Director requesting a waiver from
the required use of the online process for home registration.
(d) [(e)] The Executive Director
may grant a waiver requested under subsection
(c) [(d)]
of this section, if the builder or remodeler submits a sworn affidavit
stating that the builder or remodeler:
(1) does not have the use of a credit card or access to online banking for the purpose of making an online payment;
(2) does not have access to the internet; or
(3) other good cause for waiver as determined in the sole discretion of the Executive Director.
(e) [(f)] If a builder or remodeler
is granted a waiver under this section, the home registration form
must be submitted to the commission with the appropriate fee by first
class mail, fax, or personal delivery.
(f) [(g)] The Executive Director's
decision on whether to grant a waiver under this section
is a final agency decision not subject to further administrative appeal.
(g) [(h)] The home registration
form must state the legal name of the builder or remodeler, as registered
with the commission, and the builder registration number assigned
by the commission. If the builder registration information on the
home registration form does not match commission registration records,
the form may be returned to the builder or remodeler without processing
and all fees paid may be forfeited.
(h) [(i)] If the home registration
form is incomplete, the builder or remodeler will be granted 15 days
to complete the home registration form. If an appropriate response
is not timely received, the home registration application will be
denied and all fees paid forfeited.
(i) [(j)] If a home registration
is denied, it is incumbent on the builder to register the home appropriately,
including paying all late filing fees and civil penalties due. A denial
under this subsection constitutes a violation of Property Code §418.001(9)
and 10 TAC §303.5(j).
(j) [(k)] If a home registration
is submitted more than 60 days past the deadline for filing the home
registration, the commission will assess civil penalties in addition
to the home registration filing and late filing fees.
§303.170.Administrative Penalties.
The commission may assess an administrative penalty and/or take other disciplinary action within its authority against a builder:
(1) that [who] fails to register
a home with the commission pursuant to the requirements of this subchapter;
(2) that [who] fails to pay a
late home registration penalty required under this subchapter;
(3) that [who] registers a home
more than sixty (60) days after the expiration of the registration
period required under this subchapter; or
(4) that [who] is found to have
intentionally divided an agreement to improve the interior of an existing
home into more than one agreement, each with consideration of less
than $10,000 [$20,000], for the purpose of avoiding
the requirements of this subchapter.
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 June 16, 2008.
TRD-200803098
Susan K. Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: July 27, 2008
For further information, please call: (512) 463-2886