TITLE 16. ECONOMIC REGULATION

PART 1. RAILROAD COMMISSION OF TEXAS

CHAPTER 3. OIL AND GAS DIVISION

16 TAC §3.40

The Railroad Commission of Texas proposes amendments to §3.40, relating to Assignment of Acreage to Pooled Development and Proration Units. The amendments are proposed to allow the same surface acreage to be assigned to more than one well in an unconventional fracture treated (UFT) field when mineral ownership is severed at different depths below the surface.

Currently, §3.40 prohibits acreage from being assigned to more than one well in a field, except in limited circumstances. The Commission recognizes significant changes have occurred in the exploration and production industry in Texas, and certain rule changes are needed to uphold the Commission's statutory requirements to prevent waste and protect correlative rights. Specifically, the Commission has determined there are circumstances in which the assignment of acreage to more than one well in a field is necessary to prevent waste and protect correlative rights. The basis for this determination arises from primarily two factors: (1) severed ownership of mineral rights at depth, and (2) technological advances that have unlocked heretofore inaccessible hydrocarbon resources in UFT fields.

Several years ago, Commission staff and operators in certain fields began to experience difficulty in applying the language of §3.40 because many fields contain multiple productive zones within the field's overall interval. In these same fields, private lease provisions were creating horizontal severances such that undeveloped intervals were required to be returned to lessors after some period of time. These depth severances created more than one ownership interval beneath the surface. In December 2013, the Commission recognized the limitations of §3.40 as applied to the Spraberry (Trend Area) Field and signed a final order (O&G Docket No. 7C-0283443) creating a "Rule 40 Exception Field" to allow acreage in the Spraberry to be assigned twice - to a well in the shallow portion of the field and a well in the deep portion. Since 2013, the issue with depth severances has expanded so that more fields are experiencing the same limitations with §3.40. In addition, private lease agreements are creating multiple depth severances such that even allowing duplicate assignment of acreage to wells in shallow and deep portions of a field may still limit development in UFT fields. For example, private lease agreements and other land transactions for a tract may create five or more distinct ownership intervals that vary by depth within a single field. Under current §3.40, the operator could develop one ownership interval. Under existing field rules in the Spraberry, an operator could develop two. In either scenario, at least three intervals could not be developed.

In 2016, the Commission established UFT fields to address the efficient production of hydrocarbons from reservoirs that exhibited certain "unconventional" characteristics. A UFT field is a field in which horizontal drilling and hydraulic fracturing must be used in order to recover resources from all or part of the field and which is developed using either vertical and horizontal drilling techniques. This designation includes shale formations in which the drainage of a wellbore is based upon the area reached by the hydraulic fracturing treatments rather than conventional flow patterns. That is, in UFT fields hydrocarbon fluids do not flow beyond the spatial limits of the stimulated reservoir volume. Efficient production is not dependent upon conventional reservoir structure, stratigraphy, or native reservoir properties, but on the quality and characteristics of the fracture stimulation treatments. Therefore, the Commission recognized the need for special provisions for UFT fields through the amendments to §3.86, relating to Horizontal Drainhole Wells, adopted in 2016. Similarly, the Commission now proposes amendments to §3.40 to allow the same surface acreage to be assigned to more than one well in a UFT field when mineral ownership is severed below the surface.

In preparation for this proposal, Commission staff circulated an informal draft and received several comments, which informed the proposed amendments described below. The Commission appreciates the interest and participation from stakeholders.

Proposed amendments to §3.40(d) and (e)(1) are nonsubstantive. The amendments proposed in §3.40(d) clarify the term "multiple assignment of acreage," and amendments to §3.40(e)(1) reorganize existing language related to assignment of acreage to horizontal and vertical wells.

Proposed amendments to §3.40(e)(2) provide that where ownership of the right to drill or produce from a tract in a UFT field is divided horizontally, acreage may be assigned to more than one well provided that the wells having the same wellbore profile are not completed in the same ownership interval. "Divided horizontally" means that ownership of the right to drill or produce has been divided into depth intervals defined by total vertical depth, depth relative to a specific geological contact, or some other discriminator. A tract may be "divided horizontally" even where one operator has the right to drill or produce multiple intervals on the same tract of land in the same field.

Proposed amendments to §3.40(e)(2)(A) require that an application for multiple assignment of acreage under subsection (e) show the upper and lower limits of the operator's ownership interval. The interval is measured as the total vertical depth from the surface. The Commission understands that, due to geological characteristics, the total vertical depth provided by an operator will be an approximation. However, Commission staff needs this information to conduct required due diligence before granting a drilling permit.

The proposed amendments in §3.40(e)(2)(B) require that within 15 days prior to filing its drilling permit application, an applicant for multiple assignment of acreage shall locate any well, including wells permitted but not yet drilled or completed, that is located within one-half mile of the applicant's proposed wellbore between the first and last take points. The applicant must use all available resources, including but not limited to the Commission's GIS well database, to find wells within the one-half mile radius. The applicant shall then send written notice of its application to the P-5 address of record of each Commission-designated operator of those wells.

Proposed amendments to §3.40(e)(2)(C) provide a right to request a hearing to a person who was entitled to notice but claims he or she did not receive it. If the Commission determines at a hearing that the applicant did not provide the notice as required by this subsection, the Commission may cancel the permit.

Proposed amendments to §3.40(e)(2)(D) provide a method for obtaining copies of directional surveys, and proposed amendments to §3.40(e)(2)(E) clarify that field density rules will apply separately to each ownership interval.

Proposed amendments to §3.40(e)(2)(F) clarify that upon the effective date of the proposed rule amendments, which will be added at such time as the amendments are adopted, existing field rules that allow assignment of acreage to more than one well in a UFT field are superseded by §3.40. Subparagraph (F) also prohibits field rule applications regarding multiple assignment of acreage in UFT fields until two years after the effective date of the proposed amendments. Several comments on the informal draft requested removing this provision. The commenters believed a ban on field rule applications would be unduly prejudicial. The Commission disagrees. Commission staff must develop and learn new procedures to implement the proposed amendments, if adopted. If, after adoption of any amendments to §3.40, field rule amendments were adopted to create different requirements for each field, then Commission staff would have to develop and learn different procedures for each field. Therefore, the Commission proposes a hold on field rule applications to allow Commission staff time to test these procedures and resolve any issues before making piecemeal changes. The amendments are proposed with a minor change to the informal draft language such that field rule applications may be submitted two years after the effective date of the rule amendments. The Commission also notes that the temporary prohibition would only apply to UFT fields and only to field rule applications addressing multiple assignment of acreage. In addition, operators would still have the opportunity to seek relief from §3.40 by applying for an exception for an individual well or lease.

Proposed new §3.40(e)(3) allows the Commission to require non-confidential information supporting the operator's right to drill or produce in the interval indicated on the operator's drilling permit application.

Proposed new §3.40(f) allows the Oil and Gas Director or the director's delegate to resolve existing instances of multiple assignment of acreage upon an operator's written request and for good cause shown. If such a request is administratively denied, the operator shall have a right to request a hearing to review the denial. The term "existing" is not meant to apply only to instances of multiple assignment of acreage existing at the time of the adoption of proposed amendments but is intended to apply to instances of multiple assignment of acreage existing at the time of the written request for relief. In other words, the relief proposed in subsection (f) can be requested for good cause when acreage is assigned to more than one well and the subject wells have already been drilled or completed.

Proposed new §3.40(g) formalizes the process for obtaining an exception to §3.40. If an operator does not qualify for multiple assignment of acreage under subsection (e), acreage cannot be assigned to more than one well unless the operator is granted an exception after public hearing held after notice to all persons described in subsection (g).

Jason Clark, Director of Agency Projects, has determined that for each year of the first five years the amendments as proposed will be in effect, there will be minimal fiscal implications to the Commission as a result of enforcing or administering the amendments. Any costs associated with the amendments would be due to minor programming to update online systems. There will be no fiscal effect on local government.

Mr. Clark has determined that for the first five years the proposed amendments are in effect, the primary public benefit will be increased development of resources.

Mr. Clark has determined that for each year of the first five years that the amendments will be in effect, there will be no economic costs for persons required to comply as a result of adoption of the proposed amendments. The amendments would allow surface acreage to be assigned to more than one well in a UFT field.

The Commission has determined that the proposed amendments to §3.40 will not have an adverse economic effect on rural communities, small businesses or micro businesses. As noted above, there is no anticipated additional cost for any person required to comply with the proposed amendments. Therefore, the Commission has not prepared the economic impact statement or the regulatory flexibility analysis pursuant to Texas Government Code §2006.002.

The Commission has also determined that the proposed amendments will not affect a local economy. Therefore, the Commission has not prepared a local employment impact statement pursuant to Texas Government Code §2001.022.

The Commission has determined that the amendments do not meet the statutory definition of a major environmental rule as set forth in Texas Government Code, §2001.0225(a); therefore, a regulatory analysis conducted pursuant to that section is not required.

During the first five years that the rules would be in effect, the proposed amendments would not: create or eliminate a government program; create or eliminate any employee positions; require an increase or decrease in future legislative appropriations; create a new regulation; increase or decrease the number of individuals subject to the rule's applicability; expand, limit, or repeal an existing regulation; or effect the state's economy. The proposed amendments may increase fees paid to the agency. Because the amendments would allow increased development in UFT fields, the Commission may receive more drilling permit applications and corresponding fees.

Comments on the proposed amendments may be submitted to Rules Coordinator, Office of General Counsel, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967; online at www.rrc.texas.gov/general-counsel/rules/comment-form-for-proposed-rulemakings; or by electronic mail to rulescoordinator@rrc.texas.gov. The Commission will accept comments until 12:00 noon on Monday, December 9, 2019. The Commission finds that this comment period is reasonable because the proposal and an online comment form will be available on the Commission's website more than two weeks prior to Texas Register publication of the proposal, giving interested persons additional time to review, analyze, draft, and submit comments. The Commission cannot guarantee that comments submitted after the deadline will be considered. For further information, call Mr. Clark at (512) 463-2655. The status of Commission rulemakings in progress is available at www.rrc.texas.gov/general-counsel/rules/proposed-rules.

The Commission proposes the amendments to §3.40 pursuant to Texas Natural Resources Code §81.051 and §81.052, which provide the Commission with jurisdiction over all persons owning or engaged in drilling or operating oil or gas wells in Texas and the authority to adopt all necessary rules for governing and regulating persons and their operations under the jurisdiction of the Commission; Texas Natural Resources Code, Chapter 102, which gives the Commission the authority to establish pooled units for the purpose of avoiding the drilling of unnecessary wells, protecting correlative rights, or preventing waste; and Texas Natural Resources Code §§85.201 - 85.202, which require the Commission to adopt and enforce rules and orders for the conservation and prevention of waste of oil and gas, and specifically for drilling of wells, preserving a record of the drilling of wells, and requiring records to be kept and reports to be made.

Statutory authority: Texas Natural Resources Code §§81.051, 81.052, 85.201, 85.202 and Chapter 102.

Cross reference to statute: Texas Natural Resources Code Chapters 81, 85, and 102.

§3.40.Assignment of Acreage to Pooled Development and Proration Units.

(a) An operator may pool acreage, in accordance with appropriate contractual authority and applicable field rules, for the purpose of creating a drilling unit or proration unit by filing an original certified plat delineating the pooled unit and a Certificate of Pooling Authority, Form P-12, according to the following requirements:

(1) Each tract in the certified plat shall be identified with an outline and a tract identifier that corresponds to the tract identifier listed on Form P-12.

(2) The operator shall provide information on Form P-12, accurately and according to the instructions on the form.

(A) The operator shall separately list each tract committed to the pooled unit by authority granted to the operator.

(B) For each tract listed on Form P-12, the operator shall state the number of acres contained within the tract. The operator shall indicate by checking the appropriate box on Form P-12 if, within an individual tract, there exists a non-pooled and/or unleased interest.

(C) The operator shall state on Form P-12 the total number of acres in the pooled unit. The total number of acres in the pooled unit shall equal the sum of all acres in each [individual] tract listed. The total acreage shown on Form P-12 shall only include tracts in which the operator holds a leased or ownership interest in the minerals or other contractual authority to include the tract in the pooled unit.

(D) If a pooled unit contains more tracts than can be listed on a single Form P-12, the operator shall file as many additional Forms P-12 as necessary to list each pooled tract individually. The additional Forms P-12 shall be numbered in sequence.

(E) The operator shall provide the requested identification and contact information on Form P-12.

(F) The operator shall certify the information on Form P-12 by signing and dating the form.

(3) Failure to timely file the required information on the certified plat or Form P-12 may result in the dismissal of the W-1 application. "Timely" means within three months of the Commission notifying the operator of the need for additional information on the certified plat and/or Form P-12.

(4) The operator shall file Form P-12 and a certified plat in the following instances:

(A) with the drilling permit application when two or more tracts are joined to form a pooled unit for Commission purposes;

(B) with the initial completion report if any information reported on Form P-12 has changed since the filing of the drilling permit application;

(C) to designate a pooled unit formed after a completion report has been filed; or

(D) to designate a change in a pooled unit previously recognized by the Commission. The operator shall file any changes to a pooled unit in accordance with the requirements of §3.38(d)(3) of this title (relating to Well Densities).

(b) If a tract to be pooled has an outstanding interest for which pooling authority does not exist, the tract may be assigned to a unit where authority exists in the remaining undivided interest[,] provided[,] that total gross acreage in the tract is included for allocation purposes, and the certificate filed with the Commission shows that a certain undivided interest is outstanding in the tract. The Commission may not allow an operator to assign only the operator's undivided interest out of a basic tract[,] where a nonpooled interest exists.

(c) The nonpooled undivided interest holder retains the development rights in the basic tract. If the development rights are exercised, the Commission grants authority to develop the basic tract, and the well is completed as a producing well on the basic tract, then the entire interest in the basic tract and any interest pooled with another tract shall be assigned to the well on the basic tract for allocation purposes. Splitting of an undivided interest in a basic tract between two or more wells on two or more tracts is not acceptable.

(d) Multiple assignment of acreage is not permitted, except [Except] as provided in subsection (e) of this section. Multiple assignment of acreage is defined as the assignment of the same surface acreage to more than one well in a field.[, acreage assigned to a well for drilling and development, or for allocation of allowable, shall not be assigned to any other well or wells completed or projected to be completed in the same field; such duplicate assignment of acreage is not acceptable.] However, this limitation shall not prevent the reformation of development or proration units so long as:

(1) no multiple [duplicate] assignment of acreage occurs; and

(2) such reformation does not violate other conservation regulations.

(e) In unconventional fracture treated (UFT) fields defined in §3.86 of this title (relating to Horizontal Drainhole Wells), multiple [duplicate] assignment of acreage [to both a horizontal well and a vertical well for drilling and development or for allocation of allowable] is permissible as follows:

(1) Assignment of acreage to both a horizontal well and a vertical well for drilling and development or for allocation of allowable is permissible. The field density rules apply independently to horizontal wells and vertical wells. Acreage assigned to horizontal wells shall not count against acreage assigned to vertical wells, and acreage assigned to vertical wells shall not count against acreage assigned to horizontal wells.

(A) [(2)] Acreage assigned to horizontal wells for drilling and development[,] or for allocation of allowable[,] shall be permissible [acceptable] so long as the horizontal well density complies with §3.38 of this title and/or special field rules, as applicable. For the purposes of this section, stacked lateral wells as defined in §3.86(a)(10) of this title are not considered assignment of acreage to multiple horizontal wells.

(B) [(3)] Acreage assigned to vertical wells for drilling and development[,] or for allocation of allowable[,] shall be permissible [acceptable ] so long as the vertical well density complies with §3.38 of this title and/or special field rules, as applicable.

(2) Where ownership of the right to drill or produce from a tract in a UFT field is divided horizontally, acreage may be assigned to more than one well provided that the wells having the same wellbore profile are not completed in the same ownership interval. For purposes of this section "divided horizontally" means that ownership of the right to drill or produce has been separated into depth intervals defined by total vertical depth, depth relative to a specific geological contact, or some other discriminator. A tract may be "divided horizontally" even where one operator has the right to drill or produce multiple intervals on the same tract of land in the same field.

(A) To apply for multiple assignment of acreage under this subsection, the operator's drilling permit application shall indicate the upper and lower limits of the operator's ownership interval. The interval shown on the drilling permit application is measured as the total vertical depth from the surface.

(B) Within 15 days prior to filing its drilling permit application, the applicant shall locate any well, including any wells permitted but not yet drilled or completed, that is located within one-half mile of the applicant's proposed wellbore between the first and last take points. The applicant shall then send written notice of its application to the P-5 address of record of each Commission-designated operator of the wells determined to fall within the one-half mile radius. The applicant shall attach to the notice a certified plat that clearly depicts the projected path of the wellbore and the one-half mile radius surrounding the wellbore from the first take point to the last take point. Copies of the notice, service list, and certified plat shall be filed with the drilling permit application.

(C) If any person entitled to notice under this subsection did not receive notice, that person may request a hearing. If the Commission determines at a hearing that the applicant did not provide the notice as required by this subsection, the Commission may cancel the permit.

(D) To mitigate the potential for wellbore collisions, the applicant shall provide copies of any directional surveys to the persons entitled to notice under this subsection, upon request, within 15 days of the applicant's receipt of a request.

(E) Where ownership of the right to drill or produce from a tract in a UFT field is divided horizontally, the field density rules for the field will apply separately to each ownership interval, such that proration units on a tract above and below a division of ownership are accounted for separately.

(F) Field rules that allow assignment of acreage to more than one well in UFT fields are superseded by this rule amendment, as of the effective date of this amendment. If, prior to the effective date of this amendment, an operator has assigned acreage to more than one well pursuant to previous field rules, such multiple assignment remains valid. After the effective date of this amendment, multiple assignment of acreage is not permissible unless the applicant complies with the requirements of this subsection. The Commission will not consider any applications for field rules regarding multiple assignment of acreage in UFT fields until two years after the effective date of this amendment.

(3) Upon request by the Commission, an operator shall provide non-confidential information supporting its right to drill or produce in the interval indicated on its drilling permit application.

[(4) For the purposes of this section, stacked lateral wells as defined in §3.86(a)(10) of this title are not considered duplicate assignment of acreage to multiple horizontal wells.]

(f) Upon an operator's written request and for good cause shown, the director or the director's delegate may resolve an existing instance of multiple assignment of acreage. If such a request is administratively denied, the operator shall have a right to request a hearing to review the denial.

(g) If an operator does not qualify for multiple assignment of acreage under subsection (e) of this section, acreage cannot be assigned to more than one well unless the operator is granted an exception after a public hearing held after notice to all persons described in paragraph (2) of this subsection.

(1) An operator applying for an exception must show:

(A) an exception is necessary to prevent waste, prevent confiscation, or protect correlative rights;

(B) ownership under the tract is divided horizontally as defined in subsection (e) of this section; and

(C) the wells are not completed in the same ownership interval.

(2) With its application for an exception, the operator shall file the mailing addresses of all mineral interest owners within the Commission-designated field underlying the drilling unit and all mineral owners of any tracts adjacent to the drilling unit. In the event the applicant is unable after due diligence to locate the whereabouts of any person to whom notice is required by this subsection, the applicant shall publish notice of this application pursuant to §1.43 of this title (relating to Notice by Publication).

(3) To mitigate the potential for wellbore collisions, the applicant shall provide copies of any directional surveys to the persons entitled to notice under this subsection, upon request, within 15 days of the applicant's receipt of a request.

(h) [(f)] If an offset, overlying, or underlying operator, or a lessee or unleased mineral interest owner determines that any operator has assigned identical acreage to two or more concurrently producing wells in violation of this section, the operator or owner may file a complaint with the Hearings Division to request that a hearing be set to consider the issues raised in the complaint. If the Commission determines after a hearing on the complaint that acreage has been assigned in violation of this section, the Commission may curtail or cancel the allowable production rate for any affected wells and/or may cancel the Certificate of Compliance (Form P-4) for any affected wells for failure to comply with this section.

(i) [(g)] An operator shall file Form P-16, Acreage Designation, with each drilling permit application and with each completion report for horizontal wells in any field and for all wells in designated UFT fields as defined in §3.86 of this title. An operator assigning surface acreage to more than one well pursuant to subsection (g) of this section shall file Form P-16, Acreage Designation, with each drilling permit application and with each completion report. The operator may file Form P-16 with each drilling permit application and with each completion report for all other wells. The operator may also file proration unit plats for individual wells in a field.

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 22, 2019.

TRD-201903848

Haley Cochran

Rules Attorney, Office of General Counsel

Railroad Commission of Texas

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 475-1295


PART 4. TEXAS DEPARTMENT OF LICENSING AND REGULATION

CHAPTER 73. ELECTRICIANS

16 TAC §73.71

The Texas Department of Licensing and Regulation (Department) proposes a new rule at 16 Texas Administrative Code (TAC), Chapter 73, §73.71, regarding the Electricians program (the "proposed rule").

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC Chapter 73 implement Texas Occupations Code, Chapter 1305, Electricians.

The proposed rule is necessary to implement House Bill (HB) 1342, 86th Legislature, Regular Session (2019). Section 2 of HB 1342 authorizes the Texas Commission of Licensing and Regulation ("Commission") and the Department's Executive Director to issue a restricted license to a person as an alternative to denying, revoking, suspending, or refusing to issue a license. Section 2 also authorizes the Department to impose reasonable conditions on a holder of a restricted license. Notably, a restricted license may only be issued to applicants within the Department's Air Conditioning and Refrigeration (Texas Occupations Code, Chapter 1302) and Electricians (Texas Occupations Code, Chapter 1305) programs.

The proposed rule requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. Additionally, the proposed rule requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. Lastly, the proposed rule requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work.

SECTION-BY-SECTION SUMMARY

The proposed rule contains three subsections. Proposed §73.71(a) requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. A holder of a restricted license who does not comply with the terms of a restricted license may be subject to an administrative penalty or other sanction as allowed by Texas Occupations Code, Chapter 51.

Proposed rule §73.71(b) requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. This subsection simply restates Texas Occupations Code §51.357(d) as enacted by HB 1342.

Proposed rule §73.71(c) requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work under that license. Potential conditions that could be imposed by the Commission or Executive Director pursuant to Texas Occupations Code §51.357(b) are that the license holder be subject to close supervision, or be allowed to work in only nonresidential settings. Because HB 1342 and proposed rule §73.71(b) require supervisors to use care to ensure that persons under their supervision with restricted licenses comply with the terms of licensure, it is reasonable that licensees be required to inform their employers of those conditions.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there may be a slight revenue gain, as there could be individuals who will obtain a restricted license who would not have obtained a license previously. However, the number of individuals who will obtain a restricted license cannot be estimated, and therefore, any revenue gain also cannot be estimated.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rule will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be a possible increase in the number of licensed electricians. The rule may allow persons with past criminal convictions to become employed as electricians.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there may be additional costs to persons who are required to comply with the proposed rule. Because existing licensees will be required by the proposed rule (and by HB 1342) to ensure that persons under their supervision comply with the terms of a restricted license, there may be negligible costs involved for the supervising licensees. Any cost the supervising licensee may incur cannot be estimated, however. Additionally, no licensee will be required to take on supervision of a restricted licensee, so this cost is optional.

Restricted licensees will be required to comply with the conditions imposed by the Commission or Executive Director, but these conditions should not impose a cost.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rule does not require an increase or decrease in fees paid to the agency.

5. The proposed rule does create a new regulation. Proposed rule §73.71 is a new rule. However, the rule is required by HB 1342.

6. The proposed rule does not expand, limit, or repeal an existing regulation.

7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule 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, the proposed rule does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rule may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 1305, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. Texas Occupations Code §51.357, as enacted by HB 1342, also provides a basis for the proposed rule.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51 and 1305. No other statutes, articles, or codes are affected by the proposed rule.

§73.71.Restricted Licenses.

(a) A person issued a restricted license in accordance with Texas Occupations Code, Chapter 51, Subchapter G, shall comply with any condition imposed by the commission or executive director.

(b) A licensee shall use reasonable care to ensure that the holder of a restricted license subject to the licensee's supervision complies with any condition imposed by the commission or executive director.

(c) Before performing any work, the holder of a restricted license must inform his or her employer of the conditions placed on the license.

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 28, 2019.

TRD-201903996

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 463-3671


CHAPTER 75. AIR CONDITIONING AND REFRIGERATION

16 TAC §75.75

The Texas Department of Licensing and Regulation (Department) proposes a new rule at 16 Texas Administrative Code (TAC), Chapter 75, §75.75, regarding the Air Conditioning and Refrigeration program (the "proposed rule").

EXPLANATION OF AND JUSTIFICATION FOR THE RULE

The rules under 16 TAC Chapter 75 implement Texas Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors.

The proposed rule is necessary to implement House Bill (HB) 1342, 86th Legislature, Regular Session (2019). Section 2 of HB 1342 authorizes the Texas Commission of Licensing and Regulation ("Commission") and the Department's Executive Director to issue a restricted license to a person as an alternative to denying, revoking, suspending, or refusing to issue a license. Section 2 also authorizes the Department to impose reasonable conditions on a holder of a restricted license. Notably, a restricted license may only be issued to applicants within the Department's Air Conditioning and Refrigeration (Texas Occupations Code, Chapter 1302) and Electricians (Texas Occupations Code, Chapter 1305) programs.

The proposed rule requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. Additionally, the proposed rule requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. Lastly, the proposed rule requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work.

SECTION-BY-SECTION SUMMARY

The proposed rule contains three subsections. Proposed rule §75.75(a) requires the holder of a restricted license to comply with the conditions imposed upon the license by the Commission or Executive Director. A holder of a restricted license who does not comply with the terms of a restricted license may be subject to an administrative penalty or other sanction as allowed by Texas Occupations Code, Chapter 51.

Proposed rule §75.75(b) requires a licensee to use reasonable care to ensure that a person under his or her supervision who holds a restricted license complies with the conditions placed on that license. This subsection simply restates Texas Occupations Code §51.357(d) as enacted by HB 1342.

Proposed rule §75.75(c) requires the holder of a restricted license to inform his or her employer of the conditions placed on the license before performing any work under that license. Potential conditions that could be imposed by the Commission or Executive Director pursuant to Texas Occupations Code §51.357(b) are that the license holder be subject to close supervision, or be allowed to work in only nonresidential settings. Because HB 1342 and proposed rule §75.75(b) require supervisors to use care to ensure that persons under their supervision with restricted licenses comply with the terms of licensure, it is reasonable that licensees be required to inform their employers of those conditions.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rule.

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rule is in effect, there may be a slight revenue gain, as there could be individuals who will obtain a restricted license who would not have obtained a license previously. However, the number of individuals who will obtain a restricted license cannot be estimated, and, therefore, any revenue gain also cannot be estimated.

Mr. Couvillon has determined that for each year of the first five years the proposed rule is in effect, enforcing or administering the proposed rule does not have foreseeable implications relating to costs or revenues of local governments.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rule will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

PUBLIC BENEFITS

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, the public benefit will be a possible increase in the number of licensed air conditioning and refrigeration contractors and technicians. The rule may allow persons with past criminal convictions to become employed as licensed air conditioning and refrigeration contractors or technicians.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rule is in effect, there may be additional costs to persons who are required to comply with the proposed rule. Because existing licensees will be required by the proposed rule (and by HB 1342) to ensure that persons under their supervision comply with the terms of a restricted license, there may be negligible costs involved for the supervising licensees. Any cost the supervising licensee may incur cannot be estimated, however. Additionally, no licensee will be required to take on supervision of a restricted licensee, so this cost is optional.

Restricted licensees will be required to comply with the conditions imposed by the Commission or Executive Director, but these conditions should not impose a cost.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There will be no adverse effect on small businesses, micro-businesses, or rural communities as a result of the proposed rule. Since the agency has determined that the proposed rule will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, are not required.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rule does not have a fiscal note that imposes a cost on regulated persons, including another state agency, a special district, or a local government. Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule. For each year of the first five years the proposed rule will be in effect, the agency has determined the following:

1. The proposed rule does not create or eliminate a government program.

2. Implementation of the proposed rule does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rule does not require an increase or decrease in fees paid to the agency.

5. The proposed rule does create a new regulation. Proposed rule §75.75 is a new rule. However, the rule is required by HB 1342.

6. The proposed rule does not expand, limit, or repeal an existing regulation.

7. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rule does not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rule and the proposed rule 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, the proposed rule does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rule may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

STATUTORY AUTHORITY

The proposed rule is proposed under Texas Occupations Code, Chapters 51 and 1302, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department. Texas Occupations Code §51.357, as enacted by HB 1342, also provides a basis for the proposed rule.

The statutory provisions affected by the proposed rule are those set forth in Texas Occupations Code, Chapters 51 and 1302. No other statutes, articles, or codes are affected by the proposed rule.

§75.75.Restricted Licenses.

(a) A person issued a restricted license in accordance with Texas Occupations Code, Chapter 51, Subchapter G, shall comply with any condition imposed by the commission or executive director.

(b) A licensee shall use reasonable care to ensure that the holder of a restricted license subject to the licensee's supervision complies with any condition imposed by the commission or executive director.

(c) Before performing any work, the holder of a restricted license must inform his or her employer of the conditions placed on the license.

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 25, 2019.

TRD-201903986

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 463-3671


CHAPTER 84. DRIVER EDUCATION AND SAFETY

The Texas Department of Licensing and Regulation (Department) proposes amendments to existing rules at 16 Texas Administrative Code (TAC), Chapter 84, Subchapter D, §84.50; Subchapter M, §84.500 and §84.502; and Subchapter N, §84.600, regarding the Driver Education and Safety Program. These proposed changes are referred to as "proposed rules."

EXPLANATION OF AND JUSTIFICATION FOR THE RULES

The rules under 16 TAC Chapter 84 implement Texas Education Code, Chapter 1001, relating to Driver Education and Safety (DES).

The proposed rules are necessary to implement House Bills (HB) 105 and 2048, 86th Legislature, Regular Session (2019). These rule changes have been combined into one proposal to ensure that the rules to implement HB 105 are adopted by March 1, 2020 as required in that bill. An additional bill passed in the 86th Session (R), HB 2847, also affects Chapter 1001, Texas Education Code and requires rulemaking. We anticipate that those rules will be proposed at some time in early 2020, as they relate to driver education schools and qualifications for driver education instructors.

HB 105 amends Chapter 1001, Education Code, by requiring that information relating to safely operating a vehicle near overweight or oversized vehicles be included in all driver education and driving safety courses.

HB 2048 repeals Chapter 708, Transportation Code, concerning the Driver Responsibility Program (DRP) in Chapter 708, Transportation Code. The bill also amends Chapter 1001, Education Code, by specifying the driving and safety offenses which would prevent someone from conducting a Parent Taught Driver Education Course. The qualifications for a Driver Education Instructor have been modified also, to mirror the changes to 1001.112, of the Code as amended by the bill.

SECTION-BY-SECTION SUMMARY

The proposed rules amend §84.50 by adding a new subsection that sets forth the disqualifying traffic offenses that would prevent a person from conducting a parent-taught driver education course.

The proposed rules amend §84.500 by (1) adding the requirement to include information about safe motor vehicle operation around oversize and overweight vehicles in the curriculum of driver education and driving safety courses and (2) amending the driver education instructor qualifications to mirror what is in §84.50 of this Chapter relating to disqualifying traffic offenses.

The proposed rules amend §84.502 by adding the requirement to include information about safe motor vehicle operation around oversize and overweight vehicles in the curriculum of driver education and driving safety courses.

The proposed rules amend §84.600 by adding the requirement to include information about safe motor vehicle operation around oversize and overweight vehicles in the curriculum of driver education courses for public schools, educational service centers, and colleges and universities.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENT

Tony Couvillon, Policy Research and Budget Analyst, has determined that for each year of the first five years the proposed rules are in effect, there are no estimated additional costs or reductions in costs to state or local government as a result of enforcing or administering the proposed rules. The activities required to implement the proposed rules, if any, are one-time program administration tasks that are routine in nature, such as modifying or revising applications, publications, and/or website information, which will not result in an increase in program costs.

Mr. Couvillon has determined that for each year of the first five years the proposed rules are in effect, there is no estimated increase or loss in revenue to the state or local government as a result of enforcing or administering the proposed rules.

LOCAL EMPLOYMENT IMPACT STATEMENT

Mr. Couvillon has determined that the proposed rules will not affect the local economy, so the agency is not required to prepare a local employment impact statement under Government Code §2001.022.

The proposed rules are not anticipated to have any effect, through growth or loss, to local employers, the local economy, or the local labor force because the proposed rules do not make changes which would cause license holders to change the amount of people whom they hire for their businesses, nor would they change the number of people who hold licenses.

PUBLIC BENEFITS

Mr. Couvillon also has determined that for each year of the first five-year period the proposed rules are in effect, the public benefit will be increased safety for drivers in Texas due to additional training and education on safely operating a vehicle near oversize or overweight vehicles. Additionally, the proposed rules, clarify the eligibility requirements of those who can instruct a student in a parent-taught course and become licensed to teach a driver education instructor development course.

PROBABLE ECONOMIC COSTS TO PERSONS REQUIRED TO COMPLY WITH PROPOSAL

Mr. Couvillon has determined that for each year of the first five-year period the proposed rules are in effect, there may be additional costs to persons who are required to comply with the proposed rules resulting from implementation of HB 105, but there are no additional costs to such persons resulting from implementation of HB 2048. As a result of HB 105, all driver education school courses of instruction, driving safety courses of instruction, and the course programs for public schools, education service centers, and colleges and universities will have to be altered as to time and content to include information on safely operating a vehicle near oversized or overweight vehicles. Changing the content of their courses could result in a cost to some providers; however, at this time, the Department cannot specifically quantify these costs, which are expected to be minimal.

FISCAL IMPACT ON SMALL BUSINESSES, MICRO-BUSINESSES, AND RURAL COMMUNITIES

There may be an adverse effect on small businesses or micro-businesses as a result of the proposed rules, but there is no anticipated adverse economic effect on rural communities. Since the agency has determined that the proposed rules may have an adverse economic effect on small businesses or micro-businesses, the agency has prepared an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed and required under Texas Government Code §2006.002.

The Driver Education and Safety program regulates individuals and business entities, many of which are micro-businesses or small businesses. It is unknown how many of these individuals and business entities fall within these definitions because data regarding the number of employees and gross annual sales is not collected by the department from licensees. Some license holders may incur an economic effect from the implementation of the proposed rules; however, it is unknown whether these potential costs would rise to the level of an adverse economic effect on the licensees due to the variances in the business models and procedures employed by the licensees. More information may arise during the public comment period that would assist the department in assessing the net economic effect to licensees.

While the Department cannot determine with certainty whether the proposed rules will impose an adverse economic effect on small business or micro-businesses, the Department believes that some license holders may experience some economic effect. As a result of HB 105, all driver education school courses of instruction, driving safety courses of instruction, and the course programs for public schools, education service centers, and colleges and universities will have to be altered as to time and content to include information on safely operating a vehicle near oversized or overweight vehicles. Changing the content of their courses could result in a cost to some providers. However, this change is required by statute and cannot be avoided. The cost to providers to make this change depends on the provider and the amount of the adjustment.

The proposed rules have no anticipated adverse economic effect on rural communities because the rule will not decrease the availability of driver education or driving safety courses in rural communities, nor will the rules increase the cost of driver education or driving safety courses in rural communities.

ECONOMIC IMPACT STATEMENT

There are approximately 70 Driving Safety Course Providers, 42 Parent-Taught Course Providers, and over 850 Driver Education Schools, most of which are small or micro-businesses, that will have to comply with the rule requiring them to include information relating to methods of safely operating a motor vehicle near an oversize or overweight vehicle in the curriculum of each driver education course and driving safety course, as required by HB 105.

Driver education schools and driving safety course providers will now need to include this new information. This may cause some cost to course providers as they may have to shuffle established course content to include the new content in the curriculum. However, different providers will use different methods which best suit them to make the adjustments to their courses, so no estimate is available of what expenditures those adjustments might necessitate.

There is no alternative method to including the information relating to methods of safely operating a motor vehicle near an oversize or overweight vehicle in the various curricula, which is required by statute, without requiring a corresponding change to the course. The addition of this information is a one-time adjustment to a curriculum.

REGULATORY FLEXIBILITY ANALYSIS

There are no alternative methods of accomplishing the objective of the proposed rule, which requires information relating to methods of safely operating a motor vehicle near an oversize or overweight vehicle be included in the curriculum of each driver education course and driving safety course, so none were able to be considered.

ONE-FOR-ONE REQUIREMENT FOR RULES WITH A FISCAL IMPACT

The proposed rules may have a fiscal note that imposes a cost on regulated persons; however, the proposed rules fall under the exception for rules that are necessary to implement legislation under §2001.0045(c)(9). Therefore, the agency is not required to take any further action under Government Code §2001.0045.

GOVERNMENT GROWTH IMPACT STATEMENT

Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rules. For each year of the first five years the proposed rules will be in effect, the agency has determined the following:

1. The proposed rules do not create or eliminate a government program.

2. Implementation of the proposed rules does not require the creation of new employee positions or the elimination of existing employee positions.

3. Implementation of the proposed rules does not require an increase or decrease in future legislative appropriations to the agency.

4. The proposed rules do not require an increase or decrease in fees paid to the agency.

5. The proposed rules do not create a new regulation.

6. The proposed rules do expand an existing regulation. The proposed rules expand the regulation governing the content of the curriculum for driver education school courses of instruction, driving safety courses of instruction, and the course programs for public schools, education service centers, and colleges and universities to now include information on safely operating a vehicle near oversized or overweight vehicles. The addition to the rules is required by HB 105.

7. The proposed rules do not increase or decrease the number of individuals subject to the rule's applicability.

8. The proposed rules do not positively or adversely affect this state's economy.

TAKINGS IMPACT ASSESSMENT

The Department has determined that no private real property interests are affected by the proposed rules and the proposed rules do 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, the proposed rules do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

PUBLIC COMMENTS

Comments on the proposed rules may be submitted to Vanessa Vasquez, Legal Assistant, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, or facsimile (512) 475-3032, or electronically: erule.comments@tdlr.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

SUBCHAPTER D. PARENT TAUGHT DRIVER EDUCATION

16 TAC §84.50

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51 and Texas Education Code, Chapter 1001, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the proposed rules.

§84.50.Parent Taught Driver Education Program Requirements.

(a) (No change.)

(b) The person conducting the course must:

(1) Possess a valid license for the preceding three years that has not been suspended, revoked, or forfeited in the past three years for an offense that involves the operation of a motor vehicle;

(2) have not been convicted of:

(A) criminally negligent homicide; or

(B) driving while intoxicated in the past seven years; and

(3) have not been convicted during the preceding three years of:

(A) three or more moving violations described by Section 542.304, Transportation Code, including violations that resulted in an accident; or

(B) two or more moving violations described by Section 542.304, Transportation Code, that resulted in an accident.

(c) [(b)] After receiving the Parent Taught Driver Education Program Guide, the instructor must obtain one of the department approved parent taught driver education courses to fulfill program requirements.

(d) [(c)] The parent taught driver education course provider will provide the appropriate portion of a control-numbered DE-964 only to a person who has completed the objectives found in Module One: Traffic Laws or who has successfully completed the entire portion of the course for which the DE-964 is being issued.

(e) [(d)] The program includes both classroom and in-car instruction. Classroom instruction is limited to two hours per day and in-car instruction is limited to two hours per day.

(f) [(e)] The parent, or other individual authorized under §1001.112 of the Code, may teach both or utilize a licensed or public driver education school for either phase.

(g) [(f)] The fourteen (14) hours of in-car instruction must be taught under one program; either parent taught or a licensed or public driver education school. All previous driver education hours must be repeated if the method of instruction changes prior to completion of either phase.

(h) [(g)] The remaining hours of classroom following Module One: Traffic Laws, must be taught under one program, either parent taught or a licensed or public driver education school.

(i) [(h)] The additional thirty (30) hours of behind-the-wheel practice must be completed in the presence of an adult who meets the requirements of Texas Transportation Code, §521.222(d)(2).

(j) [(i)] A student may apply to the Department of Public Safety for a learner license after completion of the objectives found in Module One: Traffic Laws.

(k) [(j)] Behind-the-wheel driver education instruction may be conducted in any vehicle that is legally operated with a Class C driver license on a Texas highway.

(l) [(k)] Behind-the-wheel driver education instruction may begin after the student receives a learner license. The required curriculum that must be followed includes: minimum of 44 hours that includes: 7 hours behind the wheel instruction in the presence of a parent or other individual authorized under §1001.112 of the Code; 7 hours of in-car observation in the presence of a parent or other individual authorized under §1001.112 of the Code; and 30 hours of behind the wheel instruction, including at least 10 hours at night, in the presence of an adult who meets the requirements of Texas Transportation Code, §521.222(d)(2).

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 23, 2019.

TRD-201903889

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 463-3671


SUBCHAPTER M. CURRICULUM AND ALTERNATIVE METHODS OF INSTRUCTION

16 TAC §84.500, §84.502

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51 and Texas Education Code, Chapter 1001, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the proposed rules.

§84.500.Courses of Instruction for Driver Education Schools.

(a) (No change.)

(b) This subsection contains requirements for driver education courses. All course content and instructional material shall include current statistical data, references to law, driving procedures, and traffic safety methodology. For each course, curriculum documents and materials may be requested as part of the application for approval.

(1) Minor and adult driver education course.

(A) - (B) (No change.)

(C) Driver education course curriculum content, minimum instruction requirements, and administrative guidelines for classroom instruction, in-car training (behind-the-wheel and observation), simulation, and multicar range shall include the educational objectives established by the department in the Program of Organized Instruction in Driver Education and Traffic Safety (POI) and meet the requirements of this subchapter. In addition, the educational objectives that must be provided to every student enrolled in a minor and adult driver education course shall include information relating to litter prevention, anatomical gifts, safely operating a vehicle near oversized or overweight vehicles, leaving children in vehicles unattended, distractions, motorcycle awareness, alcohol awareness and the effect of alcohol on the effective operation of a motor vehicle, and recreational water safety.

(D) - (U) (No change.)

(2) Driver education course exclusively for adults. Courses offered in a traditional classroom setting or online to persons who are age 18 to under 25 years of age for the education and examination requirements for the issuance of a driver's license under Texas Transportation Code, §521.222(c) and §521.1601, must be offered in accordance with the following guidelines.

(A) Traditional approval process. The department may approve a driver education course exclusively for adults to be offered traditionally if the course meets the following requirements.

(i) - (ii) (No change.)

(iii) Minimum course content. The driver education course exclusively for adults shall consist of six clock hours of classroom instruction that meets the following topics.

(I) - (VI) (No change.)

(VII) Cooperating with other roadway users--minimum of 20 minutes. Objective: The student reduces risk by legally and responsibly cooperating with law enforcement and other roadway users, including vulnerable roadway users in emergency and potential emergency situations and safely operating a vehicle near oversized or overweight vehicles.

(VIII) - (IX) (No change.)

(iv) (No change.)

(B) (No change.)

(c) This subsection contains requirements for driver education instructor development courses. For each course, the following curriculum documents and materials are required to be submitted as part of the application for approval. If the course meets the minimum requirements set forth in this subchapter, the division may grant an approval. Schools desiring to provide driver education instructor development courses shall provide an application for approval that shall be in compliance with this section.

(1) (No change.)

(2) Prior to enrolling a student in a driver education instructor development course, the school owner or representative must obtain proof that the student has a high school diploma or equivalent. A copy of the evidence must be placed on file with the school. Further, the school shall obtain and evaluate a current official driving record from the student for the preceding 36-month period prior to enrollment. [The individual must not have accumulated 6 or more penalty points on a driving record during the preceding 36-month period.] The school must use the standards set forth in §84.50(b) of this Chapter when determining the qualifications for a student's enrollment [for assessing penalty points for convictions of traffic law violations and accident involvements established under Texas Transportation Code, Chapter 708, Subchapter B].

(3) - (5) (No change.)

(d) - (i) (No change)

§84.502.Driving Safety Courses of Instruction.

(a) This section contains requirements for driving safety, continuing education, and instructor development courses. For each course, the following curriculum documents and materials are required to be submitted as part of the application for approval. Except as provided by §84.504, (relating to Driving Safety Course Alternative Delivery Method), all course content shall be delivered under the direct observation of a licensed instructor. Courses of instruction shall not be approved that contain language that a reasonable and prudent individual would consider inappropriate. Any changes and updates to a course shall be submitted by the course provider and approved prior to being offered. Approval will be revoked for any course that meets the definition of inactive as defined in §84.2(16) of this chapter.

(1) Driving safety courses.

(A) Educational objectives. The educational objectives of driving safety courses shall include, but not be limited to promoting respect for and encouraging observance of traffic laws and traffic safety responsibilities of drivers and citizens; implementation of law enforcement procedures for traffic stops in accordance with the provisions of the Community Safety Education Act (Senate Bill 30, 85th Regular Legislature); the proper use of child passenger safety seat systems; safely operating a vehicle near oversized or overweight vehicles; reducing traffic violations; reducing traffic-related injuries, deaths, and economic losses; and motivating continuing development of traffic-related competencies.

(B) - (C) (No change.)

(D) Minimum course content. Driving Safety course content, including video and multimedia, shall include current statistical data, references to law, driving procedures, and traffic safety methodology. A driving safety course shall include, as a minimum, materials adequate to assure the student masters the following.

(i) - (vii) (No change.)

(viii) Defensive driving strategies--minimum of 40 minutes (instructional objective--to identify the concepts of defensive driving and demonstrate how they can be employed by drivers to reduce the likelihood of crashes, deaths, injuries, and economic losses). Instruction shall address the following topics:

(I) - (VIII) (No change.)

(IX) safely operating a vehicle near oversized or overweight vehicles;

(X) [(IX)] motorcycle awareness, including the dangers of failing to yield the right-of-way to a motorcyclist and the need to share the road with motorcyclist; and

(XI) [(X)]distractions relating to the effect of using a wireless communication device, including texting or engaging in other actions that may distract a driver from the safe or effective operation of a motor vehicle.

(ix) - (xiii) (No change.)

(E) - (H) (No change.)

(2) (No change.)

(b) - (e) (No change.)

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 23, 2019.

TRD-201903890

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 463-3671


SUBCHAPTER N. PROGRAM INSTRUCTION FOR PUBLIC SCHOOLS, EDUCATION SERVICE CENTERS, AND COLLEGES OR UNIVERSITIES COURSE REQUIREMENTS

16 TAC §84.600

STATUTORY AUTHORITY

The proposed rules are proposed under Texas Occupations Code, Chapter 51 and Texas Education Code, Chapter 1001, which authorize the Texas Commission of Licensing and Regulation, the Department's governing body, to adopt rules as necessary to implement these chapters and any other law establishing a program regulated by the Department.

The statutory provisions affected by the proposed rules are those set forth in Texas Occupations Code, Chapter 51, and Texas Education Code, Chapter 1001. No other statutes, articles, or codes are affected by the proposed rules.

§84.600.Program of Organized Instruction.

(a) - (b) (No change.)

(c) Course content, minimum instruction requirements, and administrative guidelines for each phase of driver education classroom instruction, in-car training (behind-the-wheel and observation), simulation, and multicar range shall include the instructional objectives established by the commissioner of education, as specified in this subsection, and meet the requirements of this subchapter. Sample instructional modules may be obtained from the department. Schools may use sample instructional modules developed by the department or develop their own instructional modules based on the approved instructional objectives. The instructional objectives are organized into the modules outlined in this subsection and include objectives for classroom and in-car training (behind-the-wheel and observation), simulation lessons, parental involvement activities, and evaluation techniques. In addition, the instructional objectives that must be provided to every student enrolled in a minor and adult driver education course include information relating to litter prevention; anatomical gifts; safely operating a vehicle near oversized or overweight vehicles; distractions, including the use of a wireless communication device that includes texting; motorcycle awareness; alcohol awareness and the effect of alcohol on the effective operation of a motor vehicle; and recreational water safety. A student may apply to the Texas Department of Public Safety (DPS) for an instruction permit after completing six hours of instruction as specified in Module One if the student is taking the course in a concurrent program. The minor and adult driver education program instructional objectives shall include:

(1) - (2) (No change.)

(3) Module Three: Vehicle Movements. The student legally and responsibly performs reduced-risk driving practices in the HTS by:

(A) - (B) (No change.)

(C) safely operating a vehicle near oversized or overweight vehicles;

(D) [(C)] managing vehicle balance: and

(E) [(D)] executing vehicle maneuvers.

(4) - (12) (No change.)

(d) - (j) (No change.)

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 23, 2019.

TRD-201903891

Brad Bowman

General Counsel

Texas Department of Licensing and Regulation

Earliest possible date of adoption: December 8, 2019

For further information, please call: (512) 463-3671