November 2016 Committee on School Initiatives Item 11

Approval of 2017-2021 Rule Review Plan for State Board of Education Rules

November 18, 2016

COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: CONSENT

SUMMARY: This item presents for approval the 2017-2021 Rule Review Plan for State Board of Education (SBOE) Rules. Texas Government Code, §2001.039, requires an ongoing four-year rule review of existing state agency rules, including SBOE rules. The rule review requirement in §2001.039 is designed to ensure that the reason for initially adopting or readopting a rule continues to exist.

STATUTORY AUTHORITY: Texas Government Code, §2001.039.

Texas Government Code, §2001.039, requires a state agency to review and consider for readoption each of its rules.

PREVIOUS BOARD ACTION: In response to statute, the SBOE conducted reviews of its rules in 1991-1993, 1995-1996, 1997-2001, 2001-2005, 2005-2009, and 2009-2013 and is in the process of completing the 2013-2017 review of its rules.

BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: Senate Bill 178, 76th Texas Legislature, 1999, amended the Texas Government Code by adding §2001.039, which requires the review of existing state agency rules. The rule review requirement in Texas Government Code, §2001.039, is designed to ensure that the reason for adopting or readopting the rule continues to exist. In order to implement and comply with the statutory rule review requirements, the SBOE adopted rule review plans for the 1997-2001, 2001-2005, 2005-2009, 2009-2013, and 2013-2017 cycles.

The proposed 2017-2021 SBOE rule review plan reflected in Attachment I repeats the cycle of review that was conducted during the 2013-2017 SBOE rule review plan with the addition of new rules that took effect subsequent to the adoption of that plan and the deletion of repealed rules. In accordance with Texas Education Code, §28.002(m), and as was the case with previous rule review plans, the Texas Essential Knowledge and Skills (TEKS) are exempt from the rule review requirement and are not included in the proposed 2017-2021 plan. Although the TEKS will not be reviewed as part of the rule review process, the SBOE conducts a review of the curriculum content on a schedule determined by the SBOE designed to align the adoption of textbook proclamations with amendments to the TEKS.

Once approved by the SBOE, the rule review plan for SBOE rules will appear on an ongoing basis in the information pages of the SBOE agenda. Any necessary modifications to the plan will appear in the information pages of the SBOE agenda along with the ongoing report. The rule review plan will also be posted on the agency's website and updated if necessary.

Status of the 2013-2017 SBOE Rule Review Plan. An ongoing report on the 2013-2017 SBOE rule review plan has been included in the information pages of each agenda since its approval in 2012. The 2013-2017 reviews generally resulted in changes to some SBOE rules to update and clarify provisions and align the rules with current practice. Attachment III includes a status report on the 2013-2017 SBOE rule review plan, including changes generated as a result of the reviews. Chapter 30, Administration, and Chapter 101, Assessment, are the remaining chapters to be reviewed under the current review cycle, which ends August 2017. Separate items in this agenda present the proposed reviews of Chapter 30, Subchapters A and B, for discussion. The review of Chapter 101, Subchapters A-C, is scheduled to begin in January 2017. In addition, the review of Chapter 109, Subchapters A-D, is scheduled to begin in January 2017 to coordinate the rule review process with an amendment to 19 TAC §109.51, Uniform Bank Bid or Proposal Form. Chapter 109 was previously reviewed in April 2014 under the same review cycle.

Rule Review Procedures. Secretary of State rules specify the following two-step review process to implement the rule review requirement in the Texas Government Code, §2001.039:

1. a Notice of Proposed Review (Intention to review) that announces a public comment period for comments on whether the reason for adopting or readopting the rules continues to exist (see example in Attachment II); and

2. a Notice of Adopted Review (Readoption) that summarizes the public comments received, if any, in response to the notice of proposed review and provides a response to each comment (see examples in Attachment II).

The rule review process for SBOE rules is illustrated in this item using three examples. These examples present the following points: (1) if no amendments are recommended to rules under review, the item presenting the adoption of the review will complete the rule review process and no further action will be necessary; and (2) if amendments are recommended to rules under review, the item presenting the adoption of the review will complete the rule review process and the amendments will be presented as a separate item under the standard rulemaking process.

Example 1. Rule Review with No Changes

January SBOE Meeting	SBOE Committee (discussion)	Discussion item that briefly describes the rule and specifies that no changes are being recommended.
	Texas Register	After the SBOE meeting, staff files Notice of Proposed Review (see Attachment II).
April SBOE Meeting	SBOE Committee and Full SBOE	Action item that presents a summary of comments received, if any, from Notice of Proposed Review. The SBOE authorizes filing the Notice of Adopted Review, noting that no changes are being proposed to the rule as a result of the review.
	Texas Register	After the SBOE meeting, staff files Notice of Adopted Review that states the rule will continue to exist without changes (see Attachment II).
END OF REVIEW PROCESS (no item at June SBOE Meeting)

Example 2. Rule Review with Changes

January SBOE Meeting	SBOE Committee (discussion)	Discussion item that briefly describes the rule, outlines issues to be considered, and specifies anticipated changes to the rule.
	Texas Register	After the SBOE meeting, staff files Notice of Proposed Review (see Attachment II).
April SBOE Meeting	SBOE Committee and Full SBOE (first reading)	Separate action items are included in the agenda: one that presents comments received, if any, from Notice of Proposed Review and one that provides the SBOE the opportunity to propose amendments. The SBOE authorizes filing the Notice of Adopted Review and approves the proposed amendments for first reading and filing authorization.
	Texas Register	After the SBOE meeting, staff files proposed amendments and the Notice of Adopted Review that states the rule will continue to exist and changes are being proposed (see Attachment II).
END OF REVIEW PROCESS
June SBOE Meeting	SBOE Committee and Full SBOE (second reading)	Action item that presents the proposed amendments for second reading and final adoption. Item includes a summary of comments, if any, on proposed amendments.
	Texas Register	After the SBOE meeting, staff files adopted amendments.
END OF AMENDMENT PROCESS

Example 3. Repeal of Rule under Review

January SBOE Meeting	SBOE Committee (first reading)	Action item that presents the proposed repeal of rule. SBOE approves proposed repeal for first reading and filing authorization.
	Texas Register	After the SBOE meeting, staff files proposed repeal. No Notice of Proposed Review required for repeals.
April SBOE Meeting	SBOE Committee and Full SBOE (second reading)	Action item that presents the proposed repeal of rule for second reading and final adoption.
	Texas Register	After the SBOE meeting, staff files adopted repeal.
END OF REPEAL PROCESS

FISCAL IMPACT: None.

PUBLIC AND STUDENT BENEFIT: The ongoing rule review process will ensure that SBOE rules remain current and valid and that the reasons for adopting or readopting the rules continue to exist. This process also provides an opportunity for the public to comment on the SBOE rules under review.

PROCEDURAL AND REPORTING IMPLICATIONS: None.

LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: None.

PUBLIC COMMENTS: None.

ALTERNATIVES: None.

OTHER COMMENTS AND RELATED ISSUES: None.

MOTION TO BE CONSIDERED: The State Board of Education:

Approve the proposed 2017-2021 Rule Review Plan for State Board of Education Rules.

Staff Member Responsible:
Cristina De La Fuente-Valadez, Director
Rulemaking

Attachments:
I. Proposed 2017-2021 Rule Review Plan for State Board of Education Rules (PDF, 96KB)
II. Sample Notices of Proposed and Adopted Review (PDF, 19KB)
III. Status Report on the 2013-2017 SBOE Rule Review Plan (PDF, 22KB)