PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 16. COMPTROLLER GRANT PROGRAMS
SUBCHAPTER B. TEXAS BROADBAND DEVELOPMENT OFFICE
DIVISION 2. BROADBAND DEVELOPMENT PROGRAM
The Comptroller of Public Accounts adopts amendments to §16.30, concerning definitions, without changes to the proposed text as published in the May 3, 2024, issue of the Texas Register (49 TexReg 2992). The rule will not be republished.
The amendments to §16.30 increase the threshold speeds for internet service to qualify as broadband service to match the standards adopted by the Federal Communications Commission for advanced telecommunications capability under 47 U.S.C., §1302 as contemplated under Senate Bill 1238, §1, 88th Legislature, R.S., 2023 (amending Government Code, §490I.0101(b)).
The comptroller received comments regarding adoption of the amendment from AMA TechTel ("AMA"), City of Austin ("COA"), Ms. Vanessa Burzynski, Mr. Carl DeBower, Ector County ISD, Mr. Herb Krasner, and the Texas Cable Association ("TCA").
Several individual commenters and Ector County ISD commented in favor of the proposed amendment.
AMA commented in favor of the proposed amendment but expressed concerns about how the updated broadband standards may negatively impact broadband support. In particular, AMA was concerned that raising the speed threshold would act to effectively eliminate the definition for underserved locations. In turn, this would act to conflate unserved locations and served locations and thereby result in reduced focus on areas with the greatest demonstrated need for broadband.
Therefore, AMA suggested that the comptroller consider adopting more stringent program eligibility criteria within the rules for specific programs to ensure the lowest density areas with the highest costs to serve take priority over locations previously considered underserved. The comptroller is appreciative of this comment and separately sought public comment on the definition of underserved and will consider updating the definition in a separate rulemaking. Therefore, the comptroller declines to make changes to the proposed rule based on this comment.
AMA also commented that the FCC's revised standard did not address latency and encouraged the comptroller to consider reducing the allowed maximum network round-trip latency within the definition of "broadband service." AMA asserted that the current maximum severely limits effective two-way communication critical in many broadband applications such as telehealth and distance learning. AMA also noted that high latency would act as a chokepoint for these applications regardless of any increase in the broadband speed standards. The comptroller is appreciative of this comment but notes that under existing statutory language the comptroller may only update its standards to match benchmarks adopted by the FCC. Therefore, the comptroller declines to make changes to the proposed rule based on these comments.
COA was strongly supportive of the alignment of state broadband standards with the Federal Communication Commission's ("FCC") updated benchmarks. COA additionally commented that while adoption of the FCC's updated speeds was an important next step, it encouraged the comptroller to consider setting higher standards now to future-proof Texas' broadband infrastructure, avoid the need for frequent upgrades, and ensure that broadband capabilities keep pace with technological advancements. The comptroller appreciates COA's supportive remarks but notes that under existing statutory language it is unable to adopt standards that exceed the benchmarks adopted by the FCC. Therefore, the comptroller declines to amend the proposed rule based on this comment.
COA submitted additional comments that are outside the scope of the current rulemaking including: comments related to the Broadband Development Map created by Government Code, §490I.0105; comments encouraging the comptroller to broaden its funding approach beyond infrastructure grants; comments encouraging the comptroller to incentivize high-performance networks; and comments related to the State Broadband Plan created by Government Code, §490I.0107. Although the comments are outside the scope of the current rulemaking, the comptroller thanks the City of Austin for its thoughtful comments that raise issues and concerns that merit further discussion and consideration as the program is implemented. Because these comments were not directly related to the proposed rules, the comptroller did not make any changes based on these comments.
TCA also commented in favor of changing the speed threshold for broadband service to be consistent with the standards recently adopted by the FCC. TCA also noted its understanding that the original definitions for unserved and underserved locations will continue to be used for the Broadband Equity, Access and Deployment ("BEAD") program because those definitions are codified in the federal Infrastructure, Investments and Jobs Act ("IIJA"). However, TCA recommended that the comptroller expressly confirm that the proposed rule would not impact its administration of BEAD. The comptroller appreciates TCA's comment in support of the proposed rule. However, the comptroller does not believe the proposed rule needs to be amended as requested because §16.32 of this title already addresses the concern by recognizing that a federal law, regulation, or guidance applicable to the type of funding used to make a broadband award will take precedence over a rule adopted by the comptroller. Therefore, the comptroller declines to make changes to the proposed rule based on this comment.
The amendments are adopted under Government Code, §490I.0101(b), which permits the comptroller by rule to adopt standards for internet service that match the standards adopted by the Federal Communications Commission for advanced telecommunications capability under 47 U.S.C., §1302 and under Government Code, §490I.0109, which permits the comptroller to adopt rules as necessary to implement Chapter 490I regarding the Texas Broadband Development Office.
The amendments implement Government Code, Chapter 490I.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 6, 2024.
TRD-202403612
Victoria North
General Counsel for Fiscal and Agency Affairs
Comptroller of Public Accounts
Effective date: August 26, 2024
Proposal publication date: May 3, 2024
For further information, please call: (512) 475-2220
CHAPTER 51. GENERAL ADMINISTRATION
The Teacher Retirement System of Texas (TRS) adopts the repeal of §51.2 (relating to Vendor Protests, Dispute Resolutions, and Hearings) under Chapter 51 in Part 3 of Title 34 of the Texas Administrative Code (relating to General Provisions). This repeal is in conjunction with the adoption of new rule §51.2 (relating to Vendor Protests and Appeals) under Chapter 51 published elsewhere in this issue of the Texas Register. The rule is repealed without changes to the repealed text as proposed in the June 14, 2024, issue of the Texas Register (49 TexReg 4421) and will not be republished.
REASONED JUSTIFICATION
TRS adopts the repeal of its existing rule under Chapter 51 in order to replace it with updates to TRS' vendor protest and appeal procedures to align with TRS' procurement and contracting processes and to make the process more efficient and streamlined. For the same purpose, TRS is also adopting a new vendor protest rule under Chapter 51 elsewhere in this issue of the of the Texas Register. The new rule removes obsolete requirements or makes other substantive changes for purposes of efficiency and timeliness. The new rule effectively incorporates many of the substantive requirements of the repealed rule but makes formatting and stylistic changes to those provisions for readability purposes. A complete description of these changes can be found in the preamble to the new Chapter 51 rule.
COMMENTS
No comments on the proposed repeal were received.
STATUTORY AUTHORITY
The repeal of the rule is adopted under the authority of Government Code §825.102, which authorizes the board of trustees to adopt rules for the transaction of the business of the board.
CROSS-REFERENCE TO STATUTE
The repeal of the rule falls under the authority of Government Code § 825.103(d) relating to TRS' purchase of goods and services.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2024.
TRD-202403602
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: August 25, 2024
Proposal publication date: June 14, 2024
For further information, please call: (512) 542-6238
The Teacher Retirement System of Texas (TRS) adopts new §51.2 (relating to Vendor Protests and Appeals) of Chapter 51 in Part 3 of Title 34 of the Texas Administrative Code. This new rule is adopted without changes to the text as proposed in the June 14, 2024, issue of the Texas Register (49 TexReg 4422) and will not be republished. This new rule is adopted in conjunction with the repeal of the existing §51.2 (relating to Vendor Protests, Dispute Resolution, and Appeal) in Part 3 of Title 34 of the Texas Administrative Code as published elsewhere in this issue of the Texas Register.
REASONED JUSTIFICATION
TRS adopts this new rule relating to vendor protests and appeals of TRS' procurements. The new rule is consistent with TRS' efforts to update, streamline, and clarify its vendor protest process. For the same purpose, TRS has also adopted to repeal existing §51.2 elsewhere in this issue of the Texas Register. The new rule removes obsolete requirements or makes other changes for the purpose of efficiency and clarity. The new rule effectively incorporates many of the substantive requirements of the current rule but makes formatting and stylistic changes to those provisions for readability purposes.
SECTION-BY-SECTION SUMMARY
New §51.2 revises the title of current rule §51.2 from Vendor Protests, Dispute Resolution, and Hearing to Vendor Protests and Appeals.
New §51.2 adds headings to each subsection to improve readability.
New §51.2(a) adds a definition section that is not included in current §51.2.
New §51.2(b) incorporates the existing provisions of current §51.2(a), regarding the purpose of the new rule.
New §51.2(c) incorporates the existing provisions of current §51.2 regarding exceptions, separates its content into subparagraphs to improve readability, and under §51.2(c)(1)(D), confirms that transactions in which TRS buys or sells securities are excluded from the vendor protest process as well as any other transactions not subject to state purchasing rules.
New §51.2(d) largely incorporates the existing provisions of current §51.2(j) and adds guidance regarding the process of submitting a stay request to TRS.
New §51.2(e) largely incorporates the existing provisions of current §51.2(b) regarding the filing of a protest. In addition, new §51.2 (e)(1) substitutes TRS Legal & Compliance for the chief officer of the TRS business unit for whom the procurement is being made, as the recipient of a vendor protest and clarifies the deadline for filing a protest. Under current §51.2(b), to be considered timely, a protesting party must file its protest "within 10 working days after the protestor knows or should have known, of the occurrence of the action which is protested." New §51.2(e)(2) provides that a protest contesting (1) the solicitation be filed by the end of posted solicitation period or (2) the evaluation or award be filed within 10 calendar days after the notice of contract award is posted either to the ESBD, or the TRS website, which may be accessed at https://www.trs.texas.gov as applicable. In addition, new §51.2(e)(3) revises the required content of a protest to also include the specific identification of the TRS regulatory policy or the TRS Procurement and Contract Guide section, or both, that TRS is alleged to have violated. Finally, under new §51.2(e)(3)(F) the protesting party must also provide a precise statement of the remedy requested.
New §51.2(f) largely restates current §51.2(d)&(e) regarding the chief officer's disposition of a protest. New §51.2(f)(1) adds that TRS L&C will be responsible for the management of the protest, in coordination with the appropriate TRS chief officer, with support provided by the TRS Director of Procurement and Contracting.
New §51.2(g) largely incorporates the existing provisions of current §51.2(f) regarding the filing of an appeal. New Rule §51.2(g)(1) revises current §51.2(b) by requiring that an appeal be filed in accordance with the instructions stated in the solicitation document or on the TRS website, which may be accessed at https://www.trs.texas.gov/, as applicable, rather than by submitting the appeal to the executive director or his designee.
COMMENTS
No comments on the proposed new rules were received.
STATUTORY AUTHORITY
The new rule is adopted under the authority of Government Code §825.102, which authorizes the board of trustees to adopt rules for the transaction of the business of the board.
CROSS-REFERENCE TO STATUTE
The new rule affects the following Government Code §825.103(d) relating to TRS' purchase of goods and services.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on August 5, 2024.
TRD-202403603
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: August 25, 2024
Proposal publication date: June 14, 2024
For further information, please call: (512) 542-6238