The Texas Board of Professional Geoscientists met on November 7, 2011 to consider Advisory Opinion #7.  This Advisory Opinion was in response to the reaction to the Proposed Rules published in the September 30th edition of the Texas Register.  These proposed rules dealt with the practice of Oil & Gas.  There were two sections to this proposed rule.  Section 33 dealt with “Permissive Practice” (Voluntary Practice by someone who is licensed) and Section 34 which dealt with unlicensed Practice.  These proposed rules were the result of months of work by an Oil& Gas advisory committee.  The intent was to publish them to gather greater input not to implement the proposed rules.  Yet that was not how the proposed rules were received by the public.

The resulting public fire storm lead the TBPG to initiate Advisory Opinion #7.  At the November 7th Meeting , there were about 30 people in attendance.  Some of the notable people were Dave Rensink, Richard How, Henry Wise, Peter Rose, John Mikels, Scott Daniels and Bruce Darling.  Chairman Kitchens opened the meeting by explaining the process and history of how the proposed rules came about and reassured that this was not a power grab by the Board.  He stated that the Governors office was aware of the activities of the Board.   After his statement the Board proceeded to withdraw the proposed rules.  The Board voted 8-0 to withdraw the rules.  Also as a result, the Oil and Gas workgroup was disbanded.  The Board then laid out the Advisory Opinion.  The Board voted 8-0 to adopt the proposal.  After that the floor was opened for public comments.  Very few people got up to speak.  Two of the people who did speak call for the Board to resign.  Talking to people afterwards they seemed satisfied with how things went.

Below is part of the Advisory Opinion from which the TBPG Chairman read:

The Board has had questions for many years concerning the intent of the word “exclusively” and the phrase “for the benefit of private industry” that is included in the above cited section of the Texas Geoscience Practice Act (Act).  The Board has attempted to determine if this word and this phrase were included in the statute with the intent that some oil and gas activities would not be exempt from the requirements of the Act.  For example, is geoscientific interpretation presented for the sole purpose of securing financing from the public exclusively part of the exploration and development process?  Could the fact that the benefits of oil and gas exploration are not exclusively for the benefit of private industry since the public also benefits in the form of severance tax paid to the state be a cause to require a license?  These are the types of questions that have been posed to the Board in the form of inquiries and complaints over the years.

The Board has had an ad-hoc Legal Interpretation Committee explore the question and this activity did not conclusively resolve the issue.  The Board also encouraged the development of an advisory workgroup to involve the oil and gas community to assist with answering the issue.  Attempts were made to secure wide participation in the workgroup, and included liaison representatives with involvement in the Houston Geological Society, the American Association of Petroleum Geologists, and the Society of Independent Professional Earth Scientists.  Over a period of more than a year, the workgroup met and finally petitioned the Board with a rule proposal that would define that certain activities involving oil and gas exploration and development would not be exempt.  All members of the workgroup had ample and equal opportunity to provide input to the rule proposal.  The workgroup members felt that the issue should be made available to a broader audience for further review. 

The Board finally agreed to publish the rule proposal for the purpose of receiving more widespread public input to help with the determination of exemption applicability but only if certified by legal counsel that the proposal was within the Board’s authority to adopt.  Based on the subsequent overwhelming public opinion against adoption of the proposal, and legislative intent brought to the attention of the Board, the Board has withdrawn the proposed rulemaking.

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