Legislative Rules Review - Chapter 51 Executive - Subchapter B – Authority to Contract

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Summary

Executive Summary: Staff seeks adoption of proposed rule amendments resulting from the first stage of the quadrennial review of Texas Parks and Wildlife Department (TPWD) regulations, as required by the Texas Administrative Procedure Act. The proposed rulemaking affects Title 31, Chapter 51 (Executive) of the Texas Administrative Code.

Resumen ejecutivo: El personal busca la adopción de las enmiendas propuestas a las reglas resultantes de la primera etapa de la revisión cuatrienal de las regulaciones del Departamento de Parques y Vida Silvestre de Texas (TPWD), según lo requiere la Ley de Procedimiento Administrativo de Texas. La reglamentación propuesta afecta el Título 31, Capítulo 51 (Ejecutivo) del Código Administrativo de Texas.


LEGISLATIVE RULES REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER B – AUTHORITY TO CONTRACT

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (TPWD) proposes an amendment to 31 TAC §51.61, concerning Enhanced Contract Monitoring. The proposed amendment would add a comprehensive provision to the list of factors in subsection (b) that the department considers when making a determination to implement enhanced contract monitoring measures.

        Under Government Code, §2261.253(c), a state agency is required to establish by rule a procedure to identify each contract that requires enhanced contract or performance monitoring. The current rule lists multiple factors that TPWD will consider when determining whether a contract requires enhanced monitoring. The proposed amendment would add new paragraph (17) to provide for the consideration of any factors in addition to those enumerated in subsection (b) and is intended to provide the department with additional flexibility to consider other important factors, especially those recommended by the Comptroller of Public Accounts Statewide Procurement Division.

        The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Tammy Dunham, Director of Contracting, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Ms. Dunham also has determined that for each of the first five years that the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be enhancement of the department’s ability to ensure that contracts and contractors are effectively monitored, which will ensure that the public trust is preserved.

        There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. The department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule applies only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create, expand, or repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Tammy Dunham at (512) 389-4752, e-mail: tammy.dunham@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed under the authority of Government Code, §2261.253(c), which requires state agencies to establish by rule a procedure to identify each contract that requires enhanced contract or performance monitoring.

        The proposed amendment affects Government Code, §2261.253.

6. Rule Text.

        §51.61. Enhanced Contract Monitoring.

                 (a) (No change.)

                 (b) In determining if a contract requires enhanced contract monitoring, the department will consider the following factors, to the extent applicable:

                         (1) – (16) (No change.)

                         (17) Additional Factors. The department will consider additional factors that it determines appropriate, in accordance with Government Code, §2261.253(c).

                 (c) – (d) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

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Legislative Rules Review - Chapter 51 Executive - Subchapter B – Authority to Contract

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