28 TAC §1.205
The Texas Department of Insurance proposes the amendment
of §1.205, concerning final action for rule proposals where a hearing
or meeting is requested or required. The amendment is necessary to streamline
rule making procedures within the department and provide greater uniformity
in rule making procedures. As currently worded, §1.205(3) provides that
the commissioner may take a proposed rule under advisement at the conclusion
of a public hearing only for rules adopted under the Government Code, Chapter
2001. The department proposes the deletion of the qualifying phrase, "only
for rules adopted under the Government Code, Chapter 2001" to allow the commissioner
to take any rule making matter under advisement after public hearing. Many
department rules are proposed under the Insurance Code, Article 5.96. At
the public hearing on a proposed rule, whether the rule is proposed under
Article 5.96 or the Government Code, public comment or exchanges between
the commissioner and staff often generate additional factors the commissioner
wishes to consider thoroughly before ruling on the proposal. The language
proposed for deletion could be read as requiring a decision from the commissioner
at that hearing or at a later, reconvened hearing unless the proposed rule
is to be adopted under the Government Code. There is no reason for this distinction.
Further, it creates an added administrative burden in 5.96 matters, in that
an additional hearing must be scheduled and noticed, even when the commissioner's
action will be based solely on issues which have been fully addressed in
the rule proposal or at the public hearing. Exchanges between the commissioner,
staff and public at the public hearing are a very valuable part of the rule
making process. These exchanges often lead to the adoption of a better rule.
A requirement that the commissioner must rule at that first hearing defeats
a major purpose of the hearing if the commissioner is not allowed to take
matters under advisement for further reflection before ruling. A requirement
that a separate public hearing be noticed and convened before the commissioner
is allowed to rule substantially delays the rule making process and, in some
instances, may force the commissioner to rule at the first hearing in order
to adopt a rule in a timely manner.
Caroline Scott, general counsel and chief clerk, has determined that for
each year of the first five years the amendment is in effect, there will
be no fiscal impact on state or local government as a result of enforcing
or administering the amendment. Ms. Scott has also determined that there
will be no effect on local employment or the local economy.
Ms. Scott has also determined that for each year of the first five years
the amendment is in effect, the public benefit anticipated as a result of
administration and enforcement of the amendment will be the more efficient
administration of the department's rule making duties and the more effective
utilization of public resources through the use of a more uniform and efficient
rule making process. There are no anticipated economic costs to persons who
are required to comply with the rule as amended.
Comments on the proposed amendments must be submitted within 30 days after
publication of the proposed sections in the
Texas
Register
, to the Chief Clerk, P.O. Box 149104, Mail Code 113-1C, Austin,
Texas 78714-9104. Any requests for a public hearing should be submitted separately
to the Office of the Chief Clerk.
The amendment is proposed under the Insurance Code, Article 1.03A.
Article 1.03A provides that the Commissioner of Insurance may adopt rules
and regulations to execute the duties and functions of the Texas Department
of Insurance as authorized by statute.
Insurance Code, Article 5.96(c) is affected by this proposed amendment.
§1.205.Final Action for Rule Proposals Where a Hearing or Meeting Is Requested or Required.
When a hearing or meeting is required by statute or these rules, the
commissioner may take final action on a proposed rule only after a hearing
which meets the requirements of paragraphs (1)-(3) of this section.
(1) - (2)
(No change).
(3)
Action on the proposed rule is solely within the
discretion of the commissioner. The commissioner may take the matter under
advisement at the conclusion of the hearing [
only for rules adopted
under the Government Code, Chapter 2001
].
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 15, 1998.
TRD-9800647
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: March 2, 1998
For further information, please call: (512) 463-6327