Subchapter M. POLICY ADVISORY OPINIONS

22 TAC §§131.301 - 131.307

The Texas Board of Professional Engineers adopts a new Subchapter M relating to Policy Advisory Opinions containing new §§131.301-131.307, without changes to the proposed text as published in the November 14, 2003, issue of the Texas Register (28 TexReg 10019) and will not be republished.

These new sections set forth the process and procedures the board will follow to issue and maintain advisory opinions regarding the interpretation and application of Chapter 1001, Occupations Code, as required by §1001.601 and §1001.602.

The adopted sections define an advisory opinion and set forth procedures for requesting an opinion from the board. The prescribed process allows for the executive director to receive and make preliminary determination on the nature of the advisory request. Advisory requests shall then be presented to a new standing committee formed specifically to review and prepare advisory opinions for the board as adopted in amendments to §131.20, relating to Committees. The provisions require the board to involve stakeholders and other resources as necessary to develop and prepare an opinion. Once a draft opinion is prepared, the new sections require the board to publish the draft opinion on the board website and in the Texas Register for comment. After a 30 day comment period, the policy advisory committee will consider comments and revise the draft opinion as necessary and prepare a final opinion recommendation for the full board. The new sections allow the full board to adopt the opinion or refer it back to the committee for further action. Notice of adoption will be published in the Texas Register. The adopted rules require the board to classify the advisory opinions and make them available on the agency website. And, finally, the new sections require the board to complete this process within 180 days as required by statute.

The board received comments regarding the procedure for reconsidering or revising an issued opinion in response to the board notice to adopt the new rules. In discussion, the board believes the proposed rules allow for this action and therefore adopt without changes.

The new sections are adopted pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state; and pursuant to the Texas Engineering Practice Act, Occupations Code §1001.601 and §1001.602 of the Act, which requires the board to issue advisory opinions and make them available on the agency website.

The following are the statutes, articles, or codes affected by the proposed new sections: §§131.301, 131.302, 131.303, 131.304, 131.305, 131.306, and 131.307 - Occupations Code §§1001.202. 1001.601, and 1001.602

§131.301.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Advisory Opinion-A statement of policy issued by the board that provides guidance to the public and regulated community regarding the board's interpretation and application of Chapter 1001, Occupations Code, referred to as the Texas Engineering Practice Act "Act" and that do not have the force and effect of law.

(2) EAOR number--An engineering advisory opinion request file number assigned by the executive director to a pending advisory opinion in accordance with this chapter.

§131.302.Subject of an Advisory Opinion.

The board will issue a written advisory opinion at the request of any interested person or at its own initiative regarding an interpretation or application of Chapter 1001 of the Act that advises how the law applies to a specified existing or hypothetical factual situation.

§131.303.Request for an Advisory Opinion.

(a) A request for an advisory opinion shall describe a specified factual situation. The facts specified may be real or hypothetical. To permit the board to provide a complete response to the request, the requestor must provide the following, as applicable:

(1) requestor contact information,

(2) affected section(s) of the Act,

(3) description of the situation,

(4) reason engineering advisory opinion is requested,

(5) parties or stakeholders that will be affected by the opinion, if known, and

(6) any known, pending litigation involving the situation

(b) A request for an advisory opinion shall be in writing. A written request may be mailed, sent via electronic mail, hand-delivered, or faxed to the board at the agency office.

§131.304.Board Initiated Opinion.

When a majority of the board determines that an opinion would be in the public interest or in the interest of any person or persons within the jurisdiction of the board, the board may on its own motion issue an advisory opinion.

§131.305.Receipt, Review, and Processing of a Request.

(a) The board, through the policy advisory opinion committee, shall review all requests for advisory opinions.

(b) Upon receipt of a request for an engineering advisory opinion, executive director will date stamp the request, issue an EAOR tracking number, and make a preliminary determination on the board's jurisdiction regarding the request.

(c) The executive director will review the request to determine if the request can be answered by reference to the plain language of a statute or a board rule, or if the request has already been answered by the board.

(d) If the executive director determines the board has no jurisdiction or the request can be answered by reference to a statute, board rule, or previous opinion, the executive director shall prepare a written response for the policy advisory opinion committee addressed to the person making the request that cites the jurisdictional authority, the language of the statute or rule, or the prior determination.

(e) The policy advisory opinion committee shall review all requests for advisory opinions and may:

(1) approve jurisdiction and reference responses, as applicable, and report a summary these actions to the full board for ratification; or

(2) determine the request warrants an advisory opinion and to proceed with developing an advisory opinion.

(f) If a request warrants an advisory opinion, the policy advisory opinion committee shall determine if further information is needed to draft an advisory opinion. If additional information is needed, the committee shall determine what information is needed and instruct the executive director to obtain expert resources, hold stakeholder meetings, or perform other research and investigation as necessary to provide the information required to draft an advisory opinion and report back to the committee.

(g) If during the process, the committee determines that the request is one the board cannot answer, then the committee shall have executive director provide written notification to the person making the request of the reason the request will not be answered and this response shall be ratified by the full board.

(h) When sufficient information exists, the policy advisory opinion committee shall draft an engineering advisory opinion and post the request and draft opinion on the agency website and in the Texas Register for comments.

(i) Draft opinions shall be posted for at least 30 days and any interested person may submit written comments concerning an advisory opinion request. Comments submitted should reference the EAOR number.

(j) Upon completion of the comment period, the policy advisory opinion committee shall consider any comments made and draft a final opinion recommendation to be presented for review and adoption by the full board.

(k) The full board shall review and adopt the engineering policy advisory opinion or determine if further revisions are required and refer the request back to the policy advisory opinion committee with guidance on proceeding with completing the request.

(l) Each final engineering advisory opinion adopted by the full board shall be published in summary form in the Texas Register.

§131.306.Compilation of Advisory Opinions.

The board shall number and classify each final engineering advisory opinion issued and shall annually compile a summary of advisory opinions in a single reference document made available on the Internet. The executive director may also publish and provide copies of advisory opinions in other formats as may be in the public interest.

§131.307.Time Period.

The board shall respond to requests for an engineering advisory opinion within 180 days after the date the board receives the written request or affirmatively state the board's reason for not responding to the request.

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

Filed with the Office of the Secretary of State on January 16, 2004

TRD-200400311

Victoria J.L. Hsu, P.E.

Executive Director

Texas Board of Professional Engineers

Effective date: February 5, 2004

Proposal publication date: November 14, 2003

For further information, please call: (512) 440-7723