Part I.
Railroad Commission of Texas
Chapter 20.
Administration
Subchapter C. Gifts to the Commission
16 TAC §20.201
The Railroad Commission proposes new §20.201, concerning
gifts to the commission. Under Texas Civil Statutes, Article 6447i, the commission
may apply for, request, solicit, contract for, receive, accept, and administer
gifts, grants, and donations of money or other assistance from any source
to carry out any commission purpose or power authorized by law. Texas Natural
Resources Code, §113.243(e), permits the commission to apply for, request,
solicit, contract for, receive, and accept gifts, grants, and other assistance
from any source for the purposes of Subchapter I of Chapter 113. Texas Government
Code, §2255.001, requires a state agency that is authorized by statute
to accept money from a private donor to adopt rules governing the relationship
between the donor and the agency and its employees. Texas Government Code,
§572.051, provides guidance to state officials and employees who may
be accepting gifts on behalf of their agencies. Finally, Texas Government
Code, Chapter 575, requires an agency to accept a gift by majority vote in
an open meeting.
Proposed new §20.201 incorporates these statutory requirements, limitations,
and guidelines in a general manner by establishing the process for the commission's
evaluation and acceptance of a gift within the purview of the executive director,
who would be responsible for ensuring that the donor of a potential gift meets
all the statutory requirements and that the potential gift would assist the
commission in carrying out an authorized purpose. Under proposed new §20.201,
an entity may make a gift to the commission by first filing with the executive
director a written notice of intent to make a gift. The notice must include
the type of gift (e.g., equipment, money, expert assistance, etc.), the date
the gift would be made, a statement as to how the gift would assist the commission
in carrying out its duties, an estimate of the value of the gift, and a statement
of the donor's party status in contested cases pending before the commission.
The commission has developed a form (Notice of Gift to Railroad Commission
of Texas Pursuant to 16 TAC 20.201) which donors may use, but which is not
required.
Upon receiving a notice of intent to make a gift, the executive director
will notify the appropriate division director, who will respond with a written
recommendation whether the commission should accept the potential donation,
and the Office of General Counsel, which will furnish a report regarding the
donor's party status in any contested cases pending before the commission.
Donors are required to notify the executive director immediately if there
is a change in the donor's party status after filing a notice of intent to
make a gift but prior to acceptance of the gift.
After receiving the staff recommendation and party status report, the executive
director will process the notice of intent to make a gift depending on whether
the estimated value is either less than $500 or $500 or more. For proposed
gifts with an estimated value of less than $500, the executive director will
make a determination whether to accept the gift or not, and will notify the
donor and the appropriate division director in writing. If the estimated value
of a proposed gift is $500 or more, the executive director will give notice
that the commission will consider the matter at an open meeting and will forward
copies of the notice of intent to make a gift and the staff's information
and recommendation to the commissioners. The consideration of the potential
gift will be in open meeting, and any vote regarding the gift will be commemorated
in a signed order of the commission. The commission staff is directed to take
all appropriate steps to receive gifts and to account for them properly in
the records of the commission.
Kathy Pyka, director, Finance and Administration Division, has determined
that for each year of the first five years that the rule as proposed will
be in effect, there may be fiscal implications for state government. The commission
could benefit from donations of money or other assistance, but it is not possible
to estimate whether such gifts will be made or the value of any such gifts.
Any additional financial reporting requirements will be handled by current
staff within existing accounting programs. There will be no fiscal implications
for local government.
Ms. Pyka has also determined that the public benefit anticipated as a result
of enforcing or administering the rule will be the opportunity for the commission
to receive gifts of money or other assistance which will aid the commission
in carrying out its multiple duties and which will be reviewed under guidelines
that will ensure public confidence in the process. The terms and conditions
set out in proposed subsection (b) make it clear that the commission will
not accept gifts that might reasonably tend to influence a commissioner or
employee in the discharge of official duties; that a commissioner or employee
knows or should know is being offered with the intent to influence a commissioner's
or employee's official conduct; that could reasonably be expected to impair
a commissioner's or employee's independent judgment in the performance of
the commissioner's or employee's official duties; or that is being offered
for having exercised the commission's or an employee's official powers or
performed the commission's or employee's official duties in favor of another.
The cost of compliance for individuals and small businesses is limited
to the completion and filing of a notice of the individual's or small business's
intent to make a gift to the commission and including a description and an
estimate of the value of the intended gift; the donor may minimize this effort
by using the RRC gift form. Such gift-giving is voluntary; therefore, no entity
will be compelled to participate in this process. Because the commission is
prohibited from accepting a gift from a party to a contested case from inception
of the case to the 30th day after a commission order has become final, a person
wishing to make a gift to the commission may have to schedule business at
the commission in such a way as to enable the commission to comply with the
time limits for accepting a gift. There are no scheduling limits applicable
to the commission's acceptance of gifts from entities that are not parties
to contested cases pending at the commission.
Comments may be submitted to Mary Ross McDonald, Deputy General Counsel,
Railroad Commission of Texas, P.O. Box 12967, Austin, Texas, 78711-2967. The
commission will accept comments for 30 days following publication of this
proposal in the
Texas Register
.
The commission proposes new §20.201 under Texas Civil Statutes,
Article 6447i, which authorizes the commission to apply for, request, solicit,
contract for, receive, accept, and administer gifts, grants, and donations
of money or other assistance from any source to carry out any commission purpose
or power authorized by law; Texas Natural Resources Code, §113.243(e),
which permits the commission to apply for, request, solicit, contract for,
receive, and accept gifts, grants, and other assistance from any source for
the purposes of Subchapter I of Chapter 113; Texas Government Code, §572.051,
which sets forth guidelines for acceptance of gifts by state agency officials
and employees; Texas Government Code, §2255.001, which requires a state
agency that is authorized by statute to accept money from a private donor
to adopt rules governing the relationship between the donor and the agency
and its employees; and Texas Government Code, Chapter 575, which requires
an agency to accept a gift by majority vote in an open meeting.
Texas Civil Statutes, Article 6447i; Texas Natural Resources Code, §113.243(e);
Texas Government Code, §2255.001; and Texas Government Code, §572.051
and Chapter 575, are affected by proposed new §20.201.
Issued in Austin, Texas, on March 23, 1999.
§20.201.Gifts to the Commission.
(a)
Definitions. The following words and terms when used in
this section shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Commission--The Railroad Commission of Texas.
(2)
Commissioner--A member of the commission.
(3)
Contested case--A proceeding, including a ratemaking
or licensing proceeding, in which the legal rights, duties or privileges of
a party are to be determined by the commission after an opportunity for adjudicative
hearing. For purposes of this section, the term does not include matters that
are handled administratively without a hearing.
(4)
Decision in a contested case--That final order of
the commission that disposes of all issues in a contested case.
(5)
Employee--A full-time or part-time employee of the
commission.
(6)
Gift--A donation of money, property, or other assistance
conveyed to the commission and over which the commission has complete title,
control, or discretion. The term does not include items that are temporarily
in the commission's possession for testing or research purposes; a person's
participation as a speaker or presenter in a commission-sponsored conference
or seminar; or payments made pursuant to Texas Natural Resources Code, §89.084.
(7)
Inception of the case--The date an application, complaint,
petition, statement of intent, or other request for commission action, ruling,
or relief is determined to require a hearing or the date a matter is referred
to the Office of General Counsel, whichever is earlier.
(8)
Money--Cash or negotiable instruments.
(9)
Other assistance--The gift of personnel or expertise
in a particular professional or technical area.
(10)
Party--A person or a state agency named or admitted
as a party to a contested case pending before the commission.
(11)
Person--An individual; a partnership, limited partnership,
joint venture, cooperative, corporation, association, or any other business
organization or entity; a trust; an estate; a public or private institution
of higher education; or a state agency, county, municipality, council of government,
school district or other governmental subdivision.
(12)
Property--Real property or personal property, both
tangible and intangible.
(b)
Terms and conditions. The commission may apply for, request,
solicit, contract for, receive, accept, and administer gifts, grants, and
donations of money or other assistance from any source to carry out any commission
purpose or power authorized by law except as follows:
(1)
The commission shall not accept a gift from a party in
a contested case during the period from the inception of the contested case
until the 30th day after the date the decision in a contested case becomes
final under Texas Government Code, §2001.144.
(2)
The commission shall not solicit or accept any gift:
(A)
that might reasonably tend to influence a commissioner
or commission employee in the discharge of official duties, or that the commissioner
or commission employee knows or should know is being offered with the intent
to influence the commissioner's or commission employee's official conduct;
(B)
that could reasonably be expected to impair a commissioner's
or commission employee's independence of judgment in the performance of the
commissioner's or commission employee's official duties; or
(C)
for having exercised the commission's or a commission employee's
official powers or performed the commission's or commission employee's official
duties in favor of another.
(c)
Notice of intent to make a gift. A person wishing to make
a gift to the commission shall file with the executive director a completed
RRC Gift Form, Notice of Gift to Railroad Commission of Texas, or a letter
including the following information:
Figure: 16 TAC 20.201(c)
(1)
the complete legal name, address, and telephone number
of the donor;
(2)
a description of the intended gift;
(3)
the date on which the gift would be made;
(4)
a statement describing the manner in which the intended
gift would assist the commission in carrying out its duties;
(5)
an estimate of the value of the gift; and
(6)
a statement regarding the donor's party status in
any contested case pending before the commission:
(A)
If the donor is a party in a contested case pending before
the commission, the notice shall include the docket number, style, and filing
date of every contested case in which the donor is a party.
(B)
If the donor is not a party in any contested case pending
before the commission, the notice shall include either the docket number,
style, and date the order was signed in the most recent contested case in
which the donor was a party or a statement that the donor has never been a
party to a contested case before the commission.
(7)
The executive director shall forward the form
or letter to the appropriate division director for review.
(d)
Division director review. The division director to whom
the executive director has forwarded a copy of the form or letter shall review
the form or letter within 10 business days. The director shall indicate on
the form whether:
(1)
the intended gift would assist the commission in carrying
out its duties and, if so, how;
(2)
the intended gift would provide a broad or general
benefit to the commission in carrying out its purposes and powers that would
exceed any particular benefit that the donor might realize as a result of
making the gift;
(3)
the division director agrees with the estimated value
of the gift and, if not, the division director's estimate of the value of
the gift and the reason for the difference of opinion; and
(4)
the commission should accept the intended gift and,
if not, the reasons the division director recommends against accepting the
intended gift.
(5)
The division director shall forward the form or letter
to the Office of General Counsel for review.
(e)
Office of General Counsel review. Upon receipt of a form
or letter from a division director, the Office of General Counsel shall review
the form or letter within 10 business days regarding the intended donor's
status as a party in any proceeding pending before the commission.
(1)
The review shall indicate whether the date on which the
donor intends to make the gift to the commission meets the requirements of
subsection (b)(1) of this section and if not, shall state a date or dates
which would meet the requirements of subsection (b)(1) of this section.
(2)
The Office of General Counsel shall forward the reviewed
form or letter to the executive director for final review.
(f)
Executive director review. Upon receipt of a form or letter
reviewed by a division director and the Office of General Counsel, the executive
director shall review the form or letter within 10 business days to ensure
that all information required this section is included.
(1)
The executive director may request that the person filing
the notice of intent to make a gift supply additional information regarding
the donor, the intended gift, its estimated value, its usefulness to the commission,
the donor's party status, or any other information that the executive director
deems relevant to the intended gift.
(2)
If the executive director finds all information on
the form or letter to be satisfactory and the value of the gift is less than
$500, the executive director shall approve the gift by signing and dating
the RRC Gift Form and shall forward copies of the form to the donor, the appropriate
division director, the Finance and Administration Division, and the Office
of General Counsel.
(3)
If the executive director finds all information on
the form or letter to be satisfactory and the value of the gift is $500 or
more, the executive director shall:
(A)
give notice that the commission will consider the matter
at an open meeting; and
(B)
request that the Office of General Counsel draft an order
consistent with the staff recommendation regarding acceptance of the intended
gift.
(4)
In an open meeting, the commission shall consider
the intended gift and shall vote on whether to accept the gift. The commission
shall commemorate the vote by signing an order.
(g)
Upon a commission order or an executive director decision
accepting a gift, the executive director shall ensure that the commission
staff takes all appropriate steps to receive the gift and to account for it
properly in the records of the commission.
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
March 23, 1999.
TRD-9901733
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: May 9, 1999
For further information, please call: (512) 463-7008
Chapter 75.
Air Conditioning and Refrigeration Contractor License Law
Texas Department of Licensing and Regulation proposes the repeal of
§§75.1, 75.10, 75.20-75.26, 75.30, 75.40, 75.60, 75.65, 75.70, 75.80,
75.90. 75.91, 75.100 and new §§75.1, 75.10, 75.20-75.26, 75.30,
75.40, 75.65, 75.70, 75.80, 75.90 and 75.100 concerning air conditioning and
refrigeration contractors. The proposed new rules replace existing rules that
are simultaneously proposed for repeal. The new rules rearrange, consolidate,
and revise existing language for clarification, along with deleting several
items already stated in the Department's enabling legislation, Texas Revised
Civil Statutes Annotated, Article 9100 (Vernon 1991).
The justification is that the rules were reviewed to ensure that the language
was clear, that statutory provisions were not being needlessly restated, that
reasons exist for the continued existence of all rules, and to address newly
perceived problems.
In §75.10. Definitions, new definitions were added for "Full time
employee" to make it clear how much time a full time employee must devote
to the company to which his license is assigned; for "Licensee" to clarify
to whom the rules apply; and for "Repair work" to clarify the definition in
the statute. All other changes to this section are wording changes for clarity
that do not change the meaning of the definition.
In §75.20. Licensing Requirements-Application and Experience Requirements,
a new provision is being added to serve notice that obtaining a license by
fraud or misrepresentation is grounds for sanctions or penalties. The number
of classroom hours equivalent to a semester hour were changed from 45 to 40,
as this is more accurate. All other changes were for clarification.
In §75.21. Licensing Requirements-Examinations, the time period within
which an applicant must complete an exam that was either cancelled or rescheduled
has been deleted, so that the only time period the applicant must meet is
the basic two year window to pass the exam from the date of notice of eligibility.
This will simplify handling for the Department as well as for applicants.
Also, the description of the type of information to be provided to applicants
as an analysis of failed exams has been deleted, as type of analysis is relatively
standard in licensing examination situations. The subparagraph describing
the basis for reciprocal agreements was removed because it is not needed,
since all such agreements are contracts negotiated between the agency in each
state with jurisdiction. All other changes in this section are for clarification.
In §75.22. License Requirements-General, §75.70(r) has been moved
to this section because it fits better with the subject matter. A new section
has been added that prohibits altering a license or ID card to facilitate
prosecution of such violations. A new section has been added that notifies
licensees that they are responsible for mechanical integrity of their work
regardless of any contracts with builders or home warranty companies, because
many complaints are being filed by consumers who have been harmed by licensees
who believed they were not responsible if their contract specified actions
or omissions contrary to mechanical integrity. Other changes in this section
are for clarity of language.
The changes in §75.23. Licensing Requirements-Temporary Licenses,
are for simplification and clarification. The changes in §75.24. Licensing
Requirements-Renewal, change the requirement that renewals must be received
by the expiration date to a requirement that they be postmarked by the expiration
date, which eliminates penalizing the licensee for slow or undelivered postal
service. The requirement to send renewal requests at least thirty days before
expiration in order to complete renewal of the license before expiration has
been deleted, since there is no penalty for mailing a renewal less than 30
days before expiration other than being unable to legally perform air conditioning
and refrigeration work until an expired license is renewed. Other changes
in this section are for simplification.
The changes in §75.25. Licensing Requirements - Reissuance eliminate
restatement of requirements stated elsewhere. §75.26. Certificates of
Registration is amended by adding a statement that the Certificate of Registration
does not authorize the holder to perform air conditioning and refrigeration
work not covered by the appropriate exemption in the Act, so that it will
be clear to all holders of Certificates of Registration that they cannot legally
perform this work on the side on equipment not owned by their employer. The
section is also amended by adding an exemption for purchasing requirements
for use in equipment containing less than a half-ounce of refrigerant, because
use of such small amounts is not considered to be within the intent of the
Act. Other changes are for clarification.
§75.30. Exemptions has been restated for clarity, and an exemption
has been added for persons who perform air conditioning contracting on unducted
fireplace stores, as these stoves were not in existence when original exemptions
were listed in the Act, and installations of unducted stoves do not affect
the operation of air conditioning and heating systems covered by the Act.
§75.40 has been restated to eliminate a listing of the required items
on a certificate of insurance, since the Department's form is required and
the items are listed on the form. Other changes are for clarification.
§75.60. Responsibilities of the Department has been deleted because
some of the subject matter is covered sufficiently in the statute and the
rest is handled by forms and procedures. The changes in §75.65. Advisory
Board, are for clarification and readability.
75.70. Responsibilities of the Licensee, has been amended by adding a provision
that prohibits subcontracting design of a system to an unlicensed person,
firm, or corporation, because design of the system commits the licensee to
installing equipment that may not be appropriate for the space for which it
is designed. Design of a system is the unassignable foundation for proper
operation of a system, and allowing unlicensed subcontractors to design a
system is contrary to the intent of the Act. The rule subsection in 75.70
requiring the licensee to register with municipalities in the form required
by each municipality has been deleted because it is covered in the statute.
The requirement in the subsection in 75.70 that contractors show their company
name and license number on a sign at job sites that are not identified by
a marked vehicle has been deleted because this is considered unnecessarily
restrictive.
The subsection in 75.70 regarding advertising has been amended to exempt
ads by manufacturers and distributors endorsing contractors in phone directories
and to require that advertising in electronic media contain the license number.
Manufacturer's and distributor's ads do not need to show the license number
because they are primarily intended to advertise the manufacturer's products.
Electronic media advertising is a new area that the Department believes should
follow the same rules for public information on licensing as other media.
All other changes in §75.70 are for clarification and simplification.
In §75.80. Fees, application fees are now not refundable because an
application received requires a substantial amount of processing whether or
not the person actually takes an examination. The fee for a lost, revised,
or duplicate wallet card has been raised to $25, since a wallet card reprint
requires that the license also be printed, and the time required to process
is the same as for a lost or revised license. The fee for rescheduling an
exam has been raised to $30 to more closely track actual costs to process
the request. Other changes in this section are for clarification.
§75.90. Sanctions - Administrative Sanctions/Penalties has been restated
for greater accuracy. §75.91. Sanctions - Revocations, Suspension, or
Denial Because of a Criminal Conviction has been deleted because it restates
provisions in other applicable law.
The rule in §75.100. Technical Requirements concerning requirements
of The Texas Boiler Law, Health and Safety Code, Chapter 755, has been deleted
because the Department believes the Boiler Law speaks for itself and the rule
is not needed. The subsection of 75.100 relating to electrical connections
has been restated for clarification.
The subsection of 75.100 relating to fuel gas piping that may be installed
by a licensee under the Act has been amended to limit connection of such piping
to existing shut-off valves because if a licensee changed out or removed a
shut-off valve or tied into an opening rather than a valve, he would be required
by most municipalities to pull a permit for plumbing work in order to have
the gas system tested by the municipality, and most licensees do not have
the requisite plumbing license.
The subsection of 75.100 relating to drain piping has been amended by adding
a requirement that all such piping be installed in accordance with applicable
plumbing and building codes, because licensees need to understand that preferences
of a customer and manufacturer's recommendations do not excuse failure to
follow codes. The changes to the subsection of 75.100 relating to duct cleaning
are for the purpose of clarification.
Jimmy Martin, Manager, Consumer Protection Section, of the Texas Department
of Licensing and Regulation, has determined that for the first five-year period
these sections are in effect additional revenues for the state will be approximately
$3,870 per year, which will offset rising costs of processing rescheduled
exams.
Mr. Martin also has determined that for each year of the first five years
these sections are in effect the public benefit anticipated as a result of
enforcing the sections will be more consumer protection and a clearer understanding
of requirements by the regulated industry.
The anticipated economic effect on small businesses and who are required
to comply with these sections as proposed will be approximately the same as
it presently is with no anticipated additional cost to small businesses nor
to persons who may be required to comply with the sections as proposed.
Comments on the proposal may be submitted to Jimmy G. Martin, Manager,
Consumer Protection Section, Texas Department of Licensing and Regulation,
P.O. Box 12157, Austin, Texas 78711, facsimile (512) 475-2872, or by e-mail:
jimmy.martin@license.state.tx.us. The deadline for comments is thirty days
after publication in the
Texas Register
.
Part IV.
Texas Department of Licensing and Regulation