TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY

CHAPTER 35. PRIVATE SECURITY

SUBCHAPTER O. MILITARY SERVICE MEMBERS, MILITARY VETERANS, AND MILITARY SPOUSES - SPECIAL CONDITIONS

37 TAC §§35.181, 35.182, 35.184

(Editor's note: Due to an error by the Texas Register, this proposal was inadvertently omitted from the printed version of the October 25, 2019, issue. However, it was included in the online database as part of the October 25, 2019, issue. Due to the error, the proposal has been is reprinted in its entirety.)

The Texas Department of Public Safety (the department) proposes amendments to §§35.181, 35.182, and 35.184, concerning Military Service Members, Military Veterans, and Military Spouses - Special Conditions. These rule changes implement the 86th Legislative Session's Senate Bill 616, which amends Chapter 1702, Occupations Code (the Private Security Act).

Suzy Whittenton, Chief Financial Officer, has determined that for each year of the first five-year period these rules are in effect there will be no fiscal implications for state or local government, or local economies.

Ms. Whittenton has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities required to comply with the sections as proposed. There is no anticipated economic cost to individuals who are required to comply with the rules as proposed. There is no anticipated negative impact on local employment.

Ms. Whittenton has determined that for each year of the first five-year period the rules are in effect the public benefit anticipated as a result of enforcing the rules will be the effective implementation of legislation, and greater clarity and consistency in the regulation of the private security industry.

The department has determined this proposal is not a "major environmental rule" as defined by Texas Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule that the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The department has determined that Chapter 2007 of the Texas Government Code does not apply to this proposal. Accordingly, the department is not required to complete a takings impact assessment regarding this proposal.

The department prepared a Government Growth Impact Statement assessment for this proposed rulemaking. The proposed rulemaking does not create or eliminate a government program; will not require an increase or decrease in future legislative appropriations to the agency; will not require the creation of new employee positions nor eliminate current employee positions; nor will it require an increase or decrease in fees paid to the agency. The proposed rulemaking does not create, expand, or limit an existing regulation. The proposed rulemaking does not increase or decrease the number of individuals subject to its applicability. During the first five years the proposed rules are in effect, the proposed rules should not impact positively or negatively the state's economy.

Comments on this proposal may be submitted to Steve Moninger, Regulatory Services Division, Department of Public Safety, P.O. Box 4087, MSC-0240, Austin, Texas 78773-0246, or by email at https://www.dps.texas.gov/rsd/contact/default.aspx. Select "Private Security." Comments must be received no later than thirty (30) days from the date of publication of this proposal.

This proposal is made pursuant to Texas Government Code, §411.004(3), which authorizes the Public Safety Commission to adopt rules considered necessary for carrying out the department's work; and Texas Occupations Code, §1702.061(a), which authorizes the Public Safety Commission to adopt rules to guide the department in its administration of Texas Occupations Code, Chapter 1702.

Texas Government Code, §411.004(3) and Texas Occupations Code, §1702.061(a), are affected by this proposal.

§35.181.Exemption from Penalty for Failure to Renew in Timely Manner.

An individual who holds a [registration, commission, or] license issued under the Act is exempt from any increased fee or other penalty for failing to renew the license in a timely manner if the individual establishes to the satisfaction of the department the individual failed to renew the license in a timely manner because the individual was serving as a military service member.

§35.182.Extension of License Renewal Deadlines for Military Service Members.

A military service member who holds a [registration, commission, or] license issued under the Act is entitled to two (2) years of additional time to complete:

(1) Any continuing education requirements; and

(2) Any other requirement related to the renewal of the military service member's license.

§35.184.Credit for Military Experience and Training.

(a) Verified military service, training, or education that relates to the [registration,] commission[,] or license for which a military service member or military veteran has applied will be credited toward the respective experience or training requirements.

(b) This section does not apply to an applicant who:

(1) Holds a restricted licensed issued by another jurisdiction; or

(2) Is ineligible for the [registration, commission, or] license under the Act or this chapter, based on a disqualifying criminal history.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 14, 2019.

TRD-201903728

D. Phillip Adkins

General Counsel

Texas Department of Public Safety

Earliest possible date of adoption: November 24, 2019

For further information, please call: (512) 424-5848


PART 13. TEXAS COMMISSION ON FIRE PROTECTION

CHAPTER 427. TRAINING FACILITY CERTIFICATION

The Texas Commission on Fire Protection (the commission) proposes amendments to 37, Texas Administrative Code Chapter 427, Training Facility Certification, Subchapter A, On-Site Certified Training Provider, §427.13, concerning Records; Subchapter B, Distance Training Provider, §427.203, concerning Records; and Subchapter C, Training Programs For On-Site and Distance Training Provider, §427.305, concerning Procedures for Testing Conducted by On-Site and Distance Training Providers.

BACKGROUND AND PURPOSE

The purpose of the proposed amendment to rule §427.13(A)(3) and rule §427.203(A)(4) is to add language requiring that skills contained in the applicable curriculum skills manual, including instructional and testing skills, be taught and documented for each person who applies to take a written certification exam. The proposed amendment to §427.305 clarifies when an applicant is eligible to take a written certification exam.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Paul Maldonado, Interim Executive Director, has determined that for each year of the first five-year period the proposed amendments are in effect, there will be no significant fiscal impact to state government or local governments as a result of enforcing or administering these amendments as proposed under Texas Government Code §2001.024(a)(4) because enforcing or administering the rule does not have foreseeable implications relating to cost or revenues for the state or local governments.

PUBLIC BENEFIT AND COST

Mr. Maldonado has also determined under Texas Government Code §2002.024(a)(5) that for each year of the first five years the proposed amendments are in effect the public benefit will be that all individuals will have documentation of completing and passing all requirements before taking a written certification examination.

LOCAL ECONOMY IMPACT STATEMENT

There is no anticipated effect on the local economy for the first five years that the proposed new section is in effect because there are no implications relating to cost or revenue for local governments; therefore, no local employment impact statement is required under Texas Government Code §2001.022 and §2001.024(a)(6).

ECONOMIC IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES AND RURAL COMMUNITIES:

Mr. Maldonado has determined there will be no impact on rural communities, small businesses, or micro-businesses as a result of implementing these amendments as proposed. As a result, the commission asserts that the preparation of an economic impact statement and a regulatory flexibility analysis, as provided by Texas Government Code §2006.002, is not required.

GOVERNMENT GROWTH IMPACT STATEMENT

The agency has determined under Texas Government Code §2006.0221 that during the first five years the amended rules are in effect:

(1) the rules will not create or eliminate a government program;

(2) the rules will not require the creation or elimination of employee positions;

(3) the rules will not require an increase or decrease in future legislative appropriation;

(4) the rules will not result in an increase or decrease in fees paid to the agency;

(5) the rules will not create a new regulation;

(6) the rules will not expand or repeal an existing regulation;

(7) the rules will not change the number of individuals subject to the rule; and

(8) the rules are not anticipated to have an adverse impact on the state's economy.

TAKINGS IMPACT ASSESSMENT

The commission has determined that no private real property interests are affected by this proposal and this proposal does not restrict, limit, or impose a burden on an owner's rights to his or her private real property that would otherwise exist in the absence of government action. As a result, this proposal does not constitute a taking under Texas Government Code §2007.043.

COSTS TO REGULATED PERSONS

The proposed sections do not impose a cost on regulated persons, including another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code §2001.0045.

ENVIRONMENTAL IMPACT STATEMENT

The commission has determined that the proposed amendments do not require an environmental impact analysis because the amendments are not major environmental rules under Texas Government Code §2001.0225.

REQUESTS FOR PUBLIC COMMENT

Comments regarding the proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register to Paul Maldonado, Interim Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768 or e-mailed to deborah.cowan@tcfp.texas.gov. Please add "Rule Comments" to the subject line of comments sent by email.

SUBCHAPTER A. ON-SITE CERTIFIED TRAINING PROVIDER

37 TAC §427.13

STATUTORY AUTHORITY

The amended rules are proposed under Texas Government Code §419.032 which authorizes the commission to adopt rules establishing the qualifications of fire protection personnel. The amended rules are also proposed under Texas Government Code §419.008, which authorizes the commission to adopt or amend rules to perform the duties assigned to the commission.

CROSS REFERENCE TO STATUTE

The proposed amendments implement Texas Government Code §419.008 and §419.032. No other statutes, articles, or codes are affected by these amendments.

§427.13.Records.

(a) Training records shall be maintained by the onsite training facility that reflect:

(1) who was trained, subject, instructor, and date of instruction. (Note: Individual records are required rather than class records); and

(2) individual trainee test scores to include performance testing.

(3) All skills listed in the applicable curriculum skills manual shall be practiced and documented on the provided skill sheets including any shown as instructional skills in addition to the listed testing skills.

(b) All training records must be maintained by the onsite training facility for a minimum of three years or in accordance with the requirement of the Texas State Library and Archives Commission, State and Local Records Management Division, whichever is greater.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 12, 2019.

TRD-201904204

Paul Maldonado

Interim Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: December 29, 2019

For further information, please call: (512) 936-3812


SUBCHAPTER B. DISTANCE TRAINING PROVIDER

37 TAC §427.203

The amended rules are proposed under Texas Government Code §419.032 which authorizes the commission to adopt rules establishing the qualifications of fire protection personnel. The amended rules are also proposed under Texas Government Code §419.008, which authorizes the commission to adopt or amend rules to perform the duties assigned to the commission.

CROSS REFERENCE TO STATUTE

The proposed amendments implement Texas Government Code §419.008 and §419.032. No other statutes, articles, or codes are affected by these amendments.

§427.203.Records.

(a) Training records shall be maintained by the distance training provider that reflect:

(1) Who was trained, subject, instructor, and date of instruction. (Note: Individual records are required rather than class records);

(2) Individual trainee test scores to include performance testing; and

(3) Evidence to substantiate the test scores received by each trainee to include performance testing. Such records will include materials (completed tests and/or answer sheets, other documents, video or audio recording, etc.), and will provide identification of the examinee, identification of the evaluating field examiner, and the observer as defined in Chapter 439 of this title (relating to Examinations for Certification).

(4) All skills listed in the applicable curriculum skills manual shall be practiced and documented on the provided skill sheets including any shown as instructional skills in addition to the listed testing skills.

(b) All distance training provider records must be maintained by the distance training provider for commission review for a minimum of three years or in accordance with the requirement of the Texas State Library and Archives Commission, State and Local Records Management Division, whichever is greater.

(c) A master copy of tests will be maintained for review by commission representatives. The certified distance training provider shall maintain copies of all tests for a minimum of three years.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 12, 2019.

TRD-201904205

Paul Maldonado

Interim Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: December 29, 2019

For further information, please call: (512) 936-3812


SUBCHAPTER C. TRAINING PROGRAMS FOR ON-SITE AND DISTANCE TRAINING PROVIDERS

37 TAC §427.305

The amended rules are proposed under Texas Government Code §419.032 which authorizes the commission to adopt rules establishing the qualifications of fire protection personnel. The amended rules are also proposed under Texas Government Code §419.008, which authorizes the commission to adopt or amend rules to perform the duties assigned to the commission.

CROSS REFERENCE TO STATUTE

The proposed amendments implement Texas Government Code §419.008 and §419.032. No other statutes, articles, or codes are affected by these amendments.

§427.305.Procedures for Testing Conducted by On-Site and Distance Training Providers.

(a) The requirements and provisions in this section apply to procedures for periodic and final testing conducted by training providers. For procedures regarding examinations for certification that occur after a training program is completed, see Chapter 439 of this title (relating to Examinations for Certification).

(b) Periodic and comprehensive final tests shall be given by the training provider in addition to the commission examination required in Chapter 439 of this title.

(c) Periodic tests shall be administered at the ratio of one test per 50 hours of recommended training, or portion thereof. An average score of 70% must be achieved on all required periodic tests.

(d) In addition to periodic tests, a comprehensive final test must be administered. The final test must be conducted in a proctored setting. For purposes of this section, a proctor can be an approved TCFP Field Examiner, or a member or testing center of an educational institution. A passing score of 70% must be achieved. The final test must be successfully completed by the examinee before they will be allowed to take any written certification exam.

(e) If a course is taught in phases, a comprehensive exam for each phase shall be administered upon completion of each phase and a passing score of 70% must be achieved.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 12, 2019.

TRD-201904206

Paul Maldonado

Interim Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: December 29, 2019

For further information, please call: (512) 936-3812