Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 3.
PUBLIC INFORMATION
Subchapter B. ACCESS TO OFFICIAL RECORDS
43 TAC §§3.11-3.14
The Texas Department of Transportation proposes amendments
to §§3.11-3.14, concerning access to official records.
EXPLANATION OF PROPOSED AMENDMENTS
Senate Bill 1851, 76th Legislature, 1999, amended the Public Information
Act, Government Code, Chapter 522. These changes included requiring a showing
of substantial competitive harm before sensitive commercial information can
be withheld, permitting the department to elect not to provide documents in
response to repetitive or redundant requests, expanding the department's ability
to recover personnel and overhead charges connected with the provision of
information, and requiring itemized statements of estimated charges if expected
charges are more than $40.
The amendments to §3.11 clarify wording and bring it closer to the
words of the corresponding statutes.
Section 3.12(a)(2) is amended to require that the requestor provide a preferred
mailing, facsimile, or electronic mail address to which an itemized cost statement
can be sent. This amendment implements the legislative directive contained
in Government Code, §552.2615.
The amendments to §3.12 also remove subsection (a)(3)(C), which specified
the form of payments for vehicle title and registration information. The form
of payments to the department is being addressed more comprehensively in proposed
new 43 TAC §§5.41-5.44 as published in the February 11, 2000, issue
of the Texas Register (25 TexReg 1081).
In addition, the amendments to §3.12 add a new subsection (f) to incorporate
standards adopted in S.B. 1851 for redundant and repetitious requests. The
new language essentially tracks the language of the statute except in subsection
(f)(5), which identifies the persons who will provide the necessary certification.
The persons identified are the persons responsible for receiving public information
requests under §3.12(a)(1)(A). Because of the addition of new subsection
(f), former subsections (f) and (g) are redesignated as new subsections (g)
and (h). In addition, amendments are made throughout §3.12 to clarify
wording and bring it closer to the words of the corresponding statutes.
The amendments to §3.13 incorporate standards adopted by S.B. 1851,
including advance estimates of copying charges, personnel and overhead costs,
and required deposits or bonds. In addition, amendments are made throughout §3.13
to clarify wording.
The amendments to §3.13(a) remove references to overhead and personnel
charges because these are addressed in subsection (b). The amendments to §3.13(a)
also remove references to costs for facsimile transmissions, which have been
eliminated from the most recent cost schedule published by the General Services
Commission at 1 TAC §111.63. The amendments to §3.13(a) also eliminate
specific costs for particular sizes of maps and replace the specific costs
with a reference to actual cost. Experience with this provision has shown
that the costs of these maps can vary over time to such an extent that it
is not feasible to detail those costs in rules. For maps and publications,
a telephone number has been added to make it easier for the public to obtain
cost information.
The amendments to §3.13(b) incorporate standards adopted in S.B. 1851
for personnel and overhead costs.
New §3.13(d) incorporates standards adopted in S.B. 1851 for providing
requestors with advance estimates of expected production and copying charges.
Former subsections (d) and (e) are redesignated as new subsections (e) and
(f).
The amendments to §3.14 clarify wording and correct cross-citations
to other sections and laws.
The amendments to §3.14(a) delete the last sentence, which stated
without qualification that the department would not respond via the Internet
to a public information request or other request. Although the department
is not required to respond via the Internet under existing law, the department
may do so, at its option.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the amended sections are in effect, there will be no fiscal
implications for state or local governments as a result of enforcing or administering
the amendments. There are no anticipated costs for persons required to comply
with the amendments as proposed.
Richard Monroe, General Counsel, has certified that there will be no significant
impact on local economies or overall employment as a result of enforcing or
administering the amendments.
PUBLIC BENEFIT
Mr. Monroe has also determined that for each year of the first five years
the amendments are in effect, the public benefit anticipated as a result of
the amendments will be enhanced public knowledge of the procedures followed
by the department in responding to requests for information and reduced public
confusion from apparent inconsistencies between the rules and the applicable
statutes. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Richard
Monroe, General Counsel, Texas Department of Transportation, 125 East 11th
Street, Austin, Texas 78701-2483. The deadline for receipt of comments is
5:00 p.m. on May 15, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by these proposed amendments.
§3.11.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Code - Government Code, Chapter 552.
(2)
Commission - Texas Transportation Commission.
(3)
Department - Texas Department of Transportation.
(4)
Disadvantaged business enterprise (DBE) - A business
concern certified as a DBE by the department.
(5)
District engineer - The chief administrative officer
of a district of the department.
(6)
Division director - The chief administrative officer
of a division or [
(7)
Historically underutilized business (HUB) - A business
concern certified as a HUB by the General Services Commission.
(8)
Internet - The international computer network of federal
and nonfederal interoperable packet switched data networks or a similar computer
bulletin board or computer network accessible to the public.
(9)
Manipulation - The process of modifying, reordering,
or decoding [
(10)
Personal information - Information that identifies
an individual, including an individual's photograph or computerized image,
social security number, driver identification number, personal identification
certificate number, name, address other than the postal routing code, telephone
number, and medical or disability information. The term does not include information
on vehicular accidents, driving
or equipment-related
violations,
or
driver's
[
(11)
Processing - The execution of a sequence of coded
instructions by a computer producing a result.
(12)
Programming - The process of producing a sequence
of coded instructions that can be executed by a computer.
(13)
Political subdivision - A county, municipality, local
board, or other governmental body of this state having authority to provide
a public service.
(14)
Service agreement - A contractual agreement
that
[
(15)
Special district - A political subdivision of the
state established to provide a single public service within a specific geographical
area.
(16)
Vehicle registration record - Information contained
in the department's files
that
[
(17)
Written request - A request made in writing
,
including electronic mail, electronic media, or facsimile transmission.
§3.12.Public Access.
(a)
Request for records.
(1)
Submittal of request. A person seeking public information
shall submit a request in writing to the department.
(A)
A request made by other than electronic mail shall be submitted
to:
(i)
the department's General Counsel;
(ii)
[
(iii)
[
(B)
A request made by electronic mail shall be sent
via
[
(2)
Information required. A request for official
records shall include the name, address, and telephone number of the requestor,
and a description of the records in sufficient detail to permit efficient
gathering of the requested items.
The request shall also include the
preferred mailing, facsimile transmission, or electronic mail address at which
the requestor wishes to receive a cost itemized statement provided pursuant
to Government Code, §552.2615(a) and §3.13(d) of this subchapter;
(3)
Vehicle title and registration information.
(A)
The department will provide certain vehicle registration
information by telephone or upon receipt of a written request. Requested information
will be released in accordance with 18 U.S.C. §2721,
Transportation
Code, §502.008, and
Transportation Code, Chapters 730 and 731[
(B)
The department will provide a written form for requests
for motor vehicle registration information
. A completed and properly
executed form must include, at a minimum
[
(i)
the name and address of the requestor;
(ii)
the Texas license number, title or document number,
or
[
(iii)
a statement that if a person who is
a
[
(iv)
a statement that the information is requested for a lawful
and legitimate purpose
in accordance with Transportation Code, §502.008,
and that, in accordance with Transportation Code, §731.002
, [
(v)
a certification that the statements made on the form are
true and correct; and
(vi)
the signature of the requestor.
[
(C)
[
(i)
a peace officer acting in an official capacity; or
(ii)
an official of the state, city, town, county, special
district, or other political subdivision, utilizing the obtained information
for tax purposes or for the purpose of determining eligibility for a state
public assistance program.
(4)
HUB/DBE applicant information. The department
will not release information submitted by a vendor or contractor in connection
with an application for certification as a HUB or DBE unless requested by
[
(A)
a
state or local governmental agency
for
a use permitted by Government Code, §552.128
; or
(B)
a
person with the express written permission
of the HUB/DBE or the HUB/DBE's agent.
(5)
Accident information. The department will not
release information about the date of
an
accident, the name of
a person involved in an accident, or the specific location of an accident
unless requested by:
(A)
the Department of Public Safety;
(B)
a governmental agency that uses the information for accident
prevention purposes;
(C)
the law enforcement agency that employs the peace officer
who investigated the accident and reported it to the Department of Public
Safety;
or
[
(D)
a person who provides the name of a person involved in
the accident and:
(i)
the date of the accident; or
(ii)
the specific location where the accident occurred.
(b)
Production of records. Except as provided in subsections
(a),
(d)
,
[
(c)
Examination of information.
(1)
A person requesting to examine official records in the
offices of the department must complete the examination without disrupting
the normal operations of the department and not later than the 10th day after
the date the records are made available to the person. Upon written request,
the department will extend the examination period by increments of 10 days,
not to exceed a total of 30 days.
(2)
The inspection of records may be interrupted by the
department if the records are needed for use by the department. The period
of interruption will not be charged against the requestor's 10-day period
to examine the records.
(3)
A person may not remove an original copy of an official
department record from the offices of the department.
(d)
Request for opinion. If the department considers that requested
records fall within an exception under the Code, and that the records should
be withheld, [
(e)
Confidential information and privacy protection.
(1)
The department will not provide records considered to be
confidential by law or otherwise prohibited from release under the Code or
other provisions of law, and will not provide copies of information subject
to intellectual property protection.
(A)
The department will not provide access to social security
numbers contained in the department's records except to governmental agencies
that demonstrate authority to obtain the information.
(B)
Upon receipt of a request from an individual to restrict
release of
that person's
[
(i)
the printed name and address of the requestor;
(ii)
a
[
(iii)
a designation that the requestor chooses
to restrict disclosure of personal information in response to individual requests
for information;
(iv)
a designation that the requestor chooses
to restrict disclosure of personal information in response to requests for
information to be used for bulk distribution for surveys, marketing, or solicitations;
and
[
(v)
[
(C)
Upon receipt of a court order
preventing
[
(2)
A legislative member, agency, or committee may
request confidential information if the public information requested is for
legislative purposes. The department may require the requesting legislative
agency or committee, or the member or employee of the requesting entity
,
to sign a confidentiality agreement that requires the following
provisions.
[
(A)
The
[
(B)
The
[
(C)
The
[
(D)
The
[
(f)
Repetitious or redundant requests. The
department may elect not to provide records if the department has previously
furnished the same copies or made the same information available to the requestor.
In the event that the department elects not to provide records under this
subsection, the department will provide the requestor with a certification
that includes:
(1)
a description of the information previously
made available to the requestor;
(2)
the date that the department received
the requestor's previous request for the information;
(3)
the date that the department previously
made the information available to the requestor;
(4)
a statement that no subsequent additions,
deletions, or corrections have been made to that information; and
(5)
the name, title, and signature of
the department's Director of Public Information or the district engineer or
division director for the district or division of the department responsible
for the information.
(g)
[
(1)
The Department's chief minute clerk may certify commission
minute orders. In
the
[
(2)
Other official records of the department may be certified
by the district engineer, division director, or other department
official
[
(h)
[
(1)
If responding to a request for information will require
programming or manipulation of data and compliance with the request is not
feasible or will result in substantial interference with the department's
ongoing operations, or
if
the information could be made available
in the requested form only at a cost that covers the programming and manipulation
of data, [
(A)
a statement that
the information is not available
in the requested form;
(B)
a description of the form in which the information is available;
(C)
a description of any contract or services that would be
required to provide the information in the requested form;
(D)
a statement of the estimated cost of providing the information;
and
(E)
a statement of the anticipated time required to provide
the information.
(2)
If the department gives written notice within
20 days after the date of receipt of the request to the person making the
request that additional time is needed, the department may have an additional
10 days to issue the statement in paragraph (1) of this subsection.
(3)
The department will not provide the information until
the person making the request states in writing that
the requestor
[
(A)
the department to provide the information according to
the cost and time parameters set out in the statement; or
(B)
the information in the form in which it is available.
§3.13.Cost of Copies of Official Records.
(a)
Standard costs. The following table lists charges for copies
and related services.
Figure: 43 TAC §3.13(a)
(b)
Personnel and overhead charge. A personnel charge of $15
per hour plus an overhead charge of 20% of the personnel charge will be added
to the costs of any request involving the:
(1)
copying of more than 50 pages; [
(2)
copying of information located in
two or more buildings that are not physically connected with each other;
(3)
copying of information located in
a remote storage facility;
(4)
retrieval of information that is
older than five years and will require more than five hours to make available
for inspection; or
(5)
retrieval of information that will
completely fill six or more archival boxes and will require more than five
hours to make available for inspection
[
(c)
Document inspection. If editing of confidential information
is required in order to obtain access to a record for inspection, the department
may charge for the cost of making copies to edit.
(d)
Estimated charges.
(1)
If a request will result in the imposition
of a charge that exceeds $40, the department will provide the requestor:
(A)
an itemized statement detailing all estimated
charges; and
(B)
an identification of any less costly alternative
that is available.
(2)
If a less costly alternative
is specified, the itemized statement will inform the requestor of the need
to contact the department regarding the alternative and will inform the requestor:
(A)
that the request will be considered to
be automatically withdrawn if the requestor does not, within 10 days of the
date of the notice and in writing, accept the charges or modify the request;
and
(B)
that the requestor may respond by mail,
in person, by facsimile transmission, or by electronic mail.
(3)
If, before the requested information
is made available, it is determined that actual charges will exceed the charges
identified in paragraph (1) of this subsection by 20% or more, the department
will send the requestor an updated itemized statement detailing all estimated
charges that will be imposed.
(4)
If an itemized or updated itemized
statement is provided under paragraphs (1) or (3) of this subsection and the
requestor does not accept the estimated charges in writing or modify the request
in writing within 10 days of the date of the notice, the request will be considered
to have been withdrawn by the requestor.
(5)
Actual charges will not exceed the
estimated charges in the itemized statement provided under paragraph (1) of
this subsection by more than 20%, or if an updated itemized statement is provided
under paragraph (3) of this subsection, actual charges will not exceed the
estimated charges in the updated itemized statement.
(e)
[
(1)
Payment of charges is due prior to release of copies of
records.
(2)
Upon release of copies of records, the department
will provide to the requestor a statement describing all charges, including
the amount of time required for retrieval and copying, when personnel and
overhead charges are included. The statement will be signed by
an authorized
[
(f)
[
(1)
When an employee files an internal employee grievance,
the
[
(2)
The department may waive or reduce the fees charged
under subsections (a) and (b) of this section if the executive director or
the executive director's
[
§3.14.Electronic Access to Department Records.
(a)
Electronic on-line delivery systems. The department will
provide certain information via the Internet through a departmental World
Wide Web Site (http://www.dot.state.tx.us). Information concerning doing business
with the department, news about the department, tourism and travel information,
public transportation information, and other transportation-related information
will be provided through this web site. [
(b)
Electronic access to vehicle title and registration information.
(1)
Information available. The department will make motor vehicle
registration, title, and vehicle ownership information available electronically
[
(2)
Agreement with business or individuals. The written
service agreement with a business or individual must contain:
(A)
the specified purpose of the agreement;
(B)
an adjustable account, if applicable, in which an initial
deposit and minimum balance is maintained in the amount of:
(i)
$200 for an on-line access account; or
(ii)
$1,000 for a prepaid account for batch purchase of motor
vehicle registration information;
(C)
notification regarding the charges provided in §3.13
of this
subchapter
[
(D)
termination and default provisions;
(E)
service hours for access to motor vehicle records for on-line
access;
(F)
the
contractor's
[
(G)
a statement that the use of registration information obtained
by virtue of a service agreement is conditional upon
its
being
used:
(i)
in accordance with 18 U.S.C. §2721
, Transportation
Code, §502.008,
and Transportation Code, Chapters 730 and 731;
and
(ii)
only for the purposes defined in the agreement; and
(H)
the statements required by
§3.12(a)(3)(B)
[
(3)
Agreements with governmental agencies.
(A)
The written service agreement with an agency must contain:
(i)
the specified purpose of the agreement;
(ii)
method of payment;
(iii)
notification regarding the charges provided in §3.13
of this
subchapter
[
(iv)
a statement that the use of registration information obtained
by virtue of a service agreement is conditional upon
its
being
used in accordance with 18 U.S.C. §2721
, Transportation Code, §502.008,
and Transportation Code, Chapters 730 and 731, and only for the purposes
defined in the agreement;
(v)
the statements required by
§3.12(a)(3)(B)
[
(vi)
the signature of an authorized official; and
(vii)
an attached statement citing the agency's authority to
obtain social security number information, if applicable.
(B)
Texas Law Enforcement Telecommunication System (TLETS)
access is exempt from the payment of fees.
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 April 3, 2000.
TRD-200002341
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
Subchapter F. EMPLOYEE TRAINING AND EDUCATION
43 TAC §§4.61, 4.63, 4.64
The Texas Department of Transportation proposes amendments
to §§4.61, 4.63, and 4.64, concerning the department's employee
training and education program.
EXPLANATION OF PROPOSED AMENDMENTS
Government Code, §656.048 requires state agencies to adopt rules relating
to the eligibility of the department's administrators and employees for training
and education supported by the state agencies and the obligations assumed
by the administrators and employees on receiving the training and education.
Government Code, Chapter 656, Subchapter D requires a state agency to adopt
a policy governing the training of employees, in addition to the rules required
by §656.048, that requires employee training to relate to an employee's
duties following the training. Training includes a course of study at an institution
of higher education if the employing state agency spends money to assist an
employee to meet the expense of the course of study, or pays salary to an
employee to undertake the course of study as an assigned duty.
Subchapter D, Chapter 656 requires an employee that receives training paid
for by a state agency, and who does not perform the employee's regular duties
for three or more months as a result of the training, to either work for the
agency following the training for at least one month for each month of the
training period, or pay the agency for all costs of training that were paid
by the agency, including any salary not accounted for as paid leave or compensatory
time.
The department is experiencing a shortage of employees in certain critical,
hard-to-fill job fields. Existing department employees may be able to supplement
the number of available candidates for these positions, provided those employees
are able to meet the minimum educational requirements. To obtain an adequate
number of employees in these hard-to-fill positions, the department has created
a Degree Completion Program.
Under the Degree Completion Program, regular, full-time employees may apply
to attend an institution of higher learning on a full-time basis to complete
42 credit hours or less necessary to complete the requirements for obtaining
a bachelor's degree in designated majors relating to hard-to-fill positions
that are deemed critical. Employees selected to participate in the program
may receive funds for tuition, required fees, books, and supplies, plus salary
compensation.
Section 4.61 is amended to add definitions for "good standing" and "regular
employee."
Section 4.63 is amended to describe the Degree Completion Program and to
make technical corrections. This section prescribes eligibility requirements
for the Degree Completion Program, and requirements for maintaining eligibility
in the program. Technical corrections include requiring degree plans in the
Educational Assistance Program and Degree Completion Program to be signed
by an institution's department chairman or the chairman's designee. It would
be more efficient for the chairman of the relevant department, rather than
the dean of the college of which the department is a part, to carry out this
function.
To ensure that the designated critical positions are filled quickly, the
Degree Completion Program is available only to those employees with 42 credit
hours or less remaining to complete degree requirements. Additionally, those
42 credit hours or less are required to be completed in no more than three
semesters, although an extension may be granted if the employee's approved
degree program requires additional time to complete. For example, an extension
may be needed if an employee is unable to attend classes during a particular
semester because of illness. To ensure that employees selected for participation
in the Degree Completion Program are good candidates for selection for the
designated positions, the employees must have at least 12 months of service
time with the department, be in good standing with the department, and be
regular full-time employees.
An employee's district engineer, division director, office director, or
member of the administration is required to reconsider the employee's participation
in the Degree Completion Program each semester. As part of this consideration,
the employee's course schedule must be reviewed to ensure that appropriate
electives are selected. A district engineer, division director, office director,
or member of the administration would be authorized to reject an employee's
choice of electives if a determination is made that the elective is not related
to the employee's duties. However, no substitutions could be required for
courses required by the college or university for degree completion. The foregoing
would comply with the requirements of Chapter 656, while at the same time
eliminating the use of state funds for inappropriate electives.
To recognize innovative methods of education, §4.63 is finally amended
to authorize an employee to take an Internet course if a course is not available
at a public or private institution in Texas as either a correspondence or
residence course.
When the department provides educational assistance to an employee who
receives a degree, it is more beneficial to the state for the department to
receive services from the employee utilizing that degree, rather than being
repaid for the assistance. Accordingly, §4.64 is amended to require a
work obligation of three years for employees receiving a degree in the Degree
Completion Program. Employees who fail to meet all conditions of employment
and eligibility are required to repay the department for all assistance received.
This will enable the department to be recompensed for the extensive assistance
provided to an employee in a degree program.
Similarly, and to be consistent with the administration of the other three
assistance programs, the department will cancel an employee's participation
in the Degree Completion Program and require the employee to repay all funds
associated with assistance received from the department, if the employee withdraws
from or no longer can attend the institution, fails to complete the degree
in three semesters (unless an extension is granted based on the approved degree
program), fails to comply with the education assistance agreement, or is terminated
from the department while participating in the program.
Costs associated with training that an employee may be required to repay
under Government Code, Chapter 656, Subchapter D include any amounts of an
employee's salary that were not accounted for as paid vacation or compensatory
leave. Section 4.64 is amended to specify that an employee whose participation
in the Degree Completion Program is cancelled by the department must repay
all funds associated with the assistance received, including any portion of
the employee's salary that was paid and not accounted for as paid vacation
or compensatory leave. An employee who is removed or withdraws from the Degree
Completion Program, separates from department employment while participating
in the program, or who completes their degree but fails to complete their
work obligation, is liable for repayment of all education assistance provided
by the department during the time spent in the program. For employees not
performing their regular duties for three or more months while participating
in the program, the repayment obligation includes salary not accounted for
as paid vacation or compensatory leave.
To treat all education programs consistently, §4.64 is also amended
to specify that an employee's participation in the Degree Completion Program
will be suspended if the employee is placed on disciplinary probation. Employees
participating in this program are also liable to the department for any necessary
expense incurred by the department in obtaining any required payment, including
attorney's fees.
Government Code, Chapter 656, Subchapter D provides that the governing
board of a state agency, by order adopted in a public meeting, may waive the
requirements relating to any work or repayment obligation, and may release
an employee from the obligation if the governing body finds that such action
is in the best interest of the agency or because of an extreme personal hardship
suffered by the employee. The obligations imposed by that subchapter apply
by their terms to employees participating in the Degree Completion Program.
Pursuant to those provisions, §4.64 is amended to authorize the executive
director to approve the deferral or extension of any prescribed repayment
period related to that program if the student demonstrates an inability to
pay due to hardship. The Texas Transportation Commission, by minute order,
may approve the reduction or cancellation of the debt or service requirements
of an employee participating in that program who departs the program to begin
work for another state agency, or who demonstrates an inability to pay or
complete the work obligation due to a hardship. Section 4.64 is finally amended
to make various technical corrections.
FISCAL NOTE
James M. Bass, Director, Finance Division, has determined that for the
first five-year period the amendments are in effect, there will be fiscal
implications for state government as a result of enforcing or administering
the amendments. The exact impact to the state cannot be determined due to
the individual circumstances of each employee, including the number of employees
desiring to take part in the Degree Completion Program, as well as the success
of a particular employee in the program. There will be no fiscal implications
for local governments as a result of enforcing or administering the amendments.
There is an anticipated economic cost for persons required to comply with
the amended sections as proposed. Besides the required three year work obligation,
an employee will be required to repay the department for all assistance provided
if the employee is removed or withdraws from the Degree Completion Program,
separates from department employment while participating in the program, or
fails to complete the employee's work obligation. For employees not performing
their regular duties for three or more months while participating in the program,
the repayment obligation includes salary not accounted for as paid vacation
or compensatory leave. This anticipated cost cannot be determined with any
specificity due to the individual circumstances of each employee.
Diana L. Isabel, Director, Human Resources Division has certified that
there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the amendments.
PUBLIC BENEFIT
Ms. Isabel has also determined that for each year of the first five years
the amendments are in effect the public benefit anticipated as a result of
enforcing or administering the amendments will be to enable the department
to fill critical positions by encouraging the professional development of
employees through a training and education program that increases employee
job potential and provides an increased quality of services to the public.
There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Diana L.
Isabel, Director, Human Resources Division, Texas Department of Transportation,
125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of
comments is 5:00 p.m. on May 15, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
More specifically, the amendments are proposed under Government Code, §656.048,
which requires state agencies to adopt rules relating to the eligibility of
the department's administrators and employees for training and education and
the obligations assumed by the administrators and employees on receiving the
training and education.
No statutes, articles, or codes are affected by the proposed amendments.
§4.61.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Assistance - Financial aid provided by the department to
its employees for education expenses.
(2)
Department - The Texas Department of Transportation.
(3)
District - One of 25 geographical areas, managed by
a district engineer, in which the department conducts its primary work activities.
(4)
District engineer - The chief administrative officer
in charge of a district of the department.
(5)
Division director - The chief administrative officer
of a division of the department.
(6)
Employee - An individual employed with the department
in either a full-time or part-time position, not including contract employees.
(7)
Executive director - The executive director of the
department.
(8)
Good standing - A status with the
department in which an employee meets performance standards in his or her
most recent performance evaluation and is not on probation.
(9)
[
(10)
[
(11)
[
(12)
[
(13)
[
(14)
[
(15)
Regular employee - Full-time employment
with the department, not including project employees, temporary employees,
and temporary recruitment program employees.
(16)
[
§4.63.Education Programs.
(a)
Purpose. The department provides professional development
opportunities through
four
[
(b)
Eligibility.
(1)
Education Assistance Program. To be eligible for participation
in an associate's, baccalaureate, master's, or doctorate degree program under
the educational assistance program an employee must meet the following requirements
before assistance is granted:
(A)
be a full-time employee;
(B)
be in good standing with the department;
(C)
have at least 12 months of service time with the department,
or 24 months if the employee is seeking a graduate degree;
(D)
complete and file with the department, on forms prescribed
by the department, an education assistance agreement that will set forth the
terms and conditions including, but not limited to:
(i)
the amount of the assistance and the requirements of continued
eligibility pursuant to this section;
(ii)
a statement of intent for continued employment with the
department; and
(iii)
a declaration of intent to abide by terms set forth in
the agreement;
(E)
have written acceptance from an accredited institution
of higher learning and a degree plan signed by the institution's department
chairman
[
(F)
seek enrollment and participation in a field of study that:
(i)
relates to current assigned work and position;
(ii)
satisfies a professional development requirement as determined
by the employee's supervisor; or
(iii)
meets minimum requirements for a profession other than
the employee's current job field in which the department anticipates staffing
needs and the employee has demonstrated an aptitude through job performance,
provided that the employee receives the approval of the appropriate district
engineer, division director, office director, or a member of the administration
who has consulted with the Director of the Human Resources Division; and
(G)
have approval of the appropriate district engineer, division
director, office director, or a member of the administration for associate,
baccalaureate, and master degree programs and the executive director's approval
if the employee is seeking a doctoral degree.
(2)
Full-time Master's Program. An employee may apply
for an in-house competitive program in which the employee who is selected
receives funds for tuition, fees, books, and supplies plus salary compensation
while pursuing a master's degree on a full-time basis and completing an assigned
research program/thesis approved by the Program Selection Committee which
is related to the department's functions. The master's program duration is
four semesters including the summer semester in which the course work and
the final research report/thesis must be completed. An extension may be granted
if the employee's approved degree program requires additional time to complete.
To be eligible for the program an employee must meet the following requirements
before assistance is granted:
(A)
be a full-time employee;
(B)
be in good standing with the department;
(C)
have an undergraduate degree that is approved as an appropriate
base for the desired graduate field of study by the Program Selection Committee;
(D)
submit career goals and research interests;
(E)
have at least:
(i)
four years of service time with the department and a professional
engineering license from the State of Texas for engineering disciplines; or
(ii)
five years of progressive service time with the department
for disciplines other than engineering;
(F)
complete and file with the department, on forms prescribed
by the department, an Education Assistance Agreement that will set forth the
terms and conditions of the assistance, including, but not limited to:
(i)
the amount of the assistance and the requirements of continued
eligibility pursuant to this section;
(ii)
a statement of intent for continued employment with the
department; and
(iii)
a declaration of intent to abide by terms set forth in
the agreement;
(G)
have met the acceptance criteria of the appropriate graduate
program at the participating university;
(H)
be nominated by the employee's district engineer, division
director, office director, or a member of the administration; and
(I)
be selected by the Program Selection Committee based on
qualifications and field or work experience.
(3)
Degree Completion Program. Employees
in designated fields in which the department is experiencing a shortage of
employees may apply to attend an institution of higher learning on a full-time
basis to complete 42 credit hours or less necessary to complete the requirements
for obtaining a bachelor's degree, and receive funds for tuition, required
fees, books, and supplies plus salary compensation. The department will only
approve a course of study in designated majors relating to hard-to-fill positions
that are deemed critical. To be eligible for the program, and before assistance
is granted, an employee must:
(A)
be a regular full-time employee;
(B)
be in good standing with the department;
(C)
have at least 12 months of service time
with the department;
(D)
complete and file with the department,
on forms prescribed by the department, an education assistance agreement that
will set forth the terms and conditions of the assistance, including, but
not limited to:
(i)
the amount of the assistance and the requirements
for continued eligibility;
(ii)
a statement of intent for continued employment
with the department; and
(iii)
a declaration of intent to abide by
the terms set forth in the agreement;
(E)
have written acceptance from an accredited
institution of higher learning and a degree plan for the 42 credit hours or
less remaining for graduation signed by the institution's department chairman
or the chairman's designee;
(F)
seek enrollment and participation in a
field of study that:
(i)
allows the employee to receive a bachelor's
degree after completing 42 credit hours or less within three semesters; and
(ii)
has been designated a critical field
by the executive director due to a shortage of employees in jobs related to
that field of study; and
(G)
have the approval of the appropriate district
engineer, division director, office director, or a member of the administration
to enroll in school full-time under this program.
(4)
[
(c)
Continued eligibility.
(1)
Education Assistance Program.
(A)
In order to maintain eligibility, an employee must:
(i)
be enrolled at least two of three semesters during the
annual school year unless granted permission in writing to miss a semester
or semesters by the appropriate district engineer, division director, office
director, or a member of the administration with the written permission stored
in the local file and a copy sent to the Training, Quality and Development
Section of the Human Resources Division;
(ii)
be enrolled in an institution in a course of instruction
leading toward a degree in the approved major of study; and
(iii)
obtain a passing grade in each course except as provided
in
§4.64(d)(5)
[
(B)
Upon approval of an employee's district engineer, division
director, office director, or a member of the administration, an employee
may change his or her work status from full-time to part-time in order to
accommodate class scheduling.
(C)
The employee's appropriate district engineer, division
director, office director, or a member of the administration will reconsider
the employee's participation in the program each semester.
(i)
Participation during a particular semester may be denied
based on extraordinary work requirements as determined by the appropriate
district engineer, division director, office director, or a member of the
administration. This interruption will not be considered a failure to remain
active in the program.
(ii)
The department will deny further participation if the
employee does not meet the requirements of subparagraph (A) of this paragraph
or §4.64(a) of this
subchapter
[
(2)
Full-time Master's Program.
(A)
In order to maintain eligibility in the full-time Master's
Program, an employee must:
(i)
be enrolled continuously in an institution in a course
of instruction leading towards a master's degree in the approved major field
of study for four semesters which include the summer semester unless the director
of the Human Resources Division waives this requirement because the student
demonstrated hardship, or the employee's approved degree plan calls for an
additional semester(s); and
(ii)
obtain a passing grade in each course except as provided
in
§4.64(d)(5)
[
(B)
The department will deny further participation if the employee
does not meet the requirements of subparagraph (A) of this paragraph or §4.64(a)
of this
subchapter
[
(3)
Degree Completion Program.
(A)
In order to maintain eligibility in this
program, an employee must, except as provided in subparagraph (B) of this
paragraph:
(i)
be enrolled in school for no more than
three semesters, which must be consecutive, except that an employee may skip
the summer semester provided that the employee resumes full-time work until
the employee returns to school for the fall semester;
(ii)
be enrolled in an institution in a course
of instruction leading toward a degree in the approved major of study; and
(iii)
obtain a passing grade in each course
except as provided in §4.64(d)(5) of this subchapter.
(B)
An extension to the number of semesters
in which an employee is enrolled in school may be granted if the employee's
approved degree program requires additional time to complete.
(C)
The employee's district engineer, division
director, office director, or a member of the administration will reconsider
the employee's participation in the program each semester. As part of this
consideration, the district engineer, division director, office director,
or a member of the administration will review the employee's degree plan,
and will review the employee's course schedule to ensure that appropriate
electives are selected.
(D)
The department will deny further participation
if the employee does not meet the requirements of subparagraph (A) of this
paragraph or §4.64(a) of this subchapter.
(4)
[
(d)
Type of institution.
(1)
An employee who participates in
any of
the [
(A)
there is no accredited public institution which offers
program courses that can reasonably be attended by an employee within a normal
combination work/school day; or
(B)
the public institution does not offer the approved courses
or degree program; or
(C)
the admission requirements of the public institution are
so restrictive as to preclude the employee's qualification into the program;
or
(D)
the completion of the degree or course at a private institution
costs less than a public institution; or
(E)
the employee attends the private institution under an agreement
that the department will pay only the equivalent of what the education would
have cost at a public institution.
(2)
If granted permission by the district engineer,
division director, office director, or a member of the administration to attend
a private institution, the employee must earn as many credits at an available
public institution that are transferable to keep the overall costs as low
as possible.
(3)
An employee may take an out-of-state correspondence
course(s)
or Internet course(s)
if the course(s) are not available
at a private or public institution in Texas as either a correspondence or
residence course.
(e)
Eligible expenses. The following expenses are eligible
for financial assistance:
(1)
tuition, including correspondence courses that fulfill
an approved degree, trade, or technical school plan requirements or are taken
while pursuing a general equivalency diploma;
(2)
College Level Equivalency Program (CLEP) exams, or
similar exams if the student scores high enough to receive college credit
or a waiver of the course requirements if part of the employee's degree plan;
(3)
life experience assessments for which the student
obtains a credit if the credit is part of the employee's approved degree plan;
(4)
required fees and books; and
(5)
relocation assistance for full-time Master's Program
employees only as determined by the department.
(f)
Use of state time and property.
(1)
Unless the employee is participating in a full-time Master's
Program as provided in subsection (b)(2) of this section,
or the Degree
Completion Program provided in subsection (b)(3) of this section,
department
duty hours may not be used for attending classes, studying, or other activities
associated with the program. An employee may use annual leave, flextime, or
compensatory time with prior written approval from his or her supervisor.
(2)
An employee participating in the program may use the
department's self-service copy machines, typewriters, calculators, copy paper,
and microcomputers to complete course assignments.
(g)
Elective Courses. For those employees participating in
the Education Assistance Program
and the Degree Completion Program
,
the district engineer, division director, office director, or a member of
the administration may reject an employee's choice of electives if a determination
is made that the elective is not related to the employee's duties. The district
engineer, division director, office director, or a member of the administration
cannot require substitutions for any courses required by the university or
college for degree completion. For the full-time Master's Program, the director
of the Human Resources Division or designee will perform this function.
§4.64.Employee Obligations.
(a)
Obligation.
(1)
Conditions. Educational assistance is conditional upon
the employee:
(A)
agreeing to work for the department for a period of time
as
described in paragraphs (2)-(4) of this subsection;
[
(B)
adhering to the terms and conditions of
the education assistance agreement and requirements for continued eligibility;
(C)
completing and passing each individual
course; and
(D)
meeting the conditions of continued eligibility
in §4.63 of this subchapter.
(2)
[
(3)
[
(4)
Degree Completion Program. An employee
must agree to work for the department for a period of three years, beginning
30 days following the date the employee receives the degree, provided the
employee meets all conditions of employment and eligibility at that time.
If the employee fails to complete the degree, or fails to meet all conditions
of employment and eligibility, the employee will be subject to the repayment
obligations in subsection (d)(2) of this section.
[
[
[
(5)
[
(b)
Offset. Employees shall provide fee receipts for courses
to be taken and shall promptly report any outside funds such as grants, scholarships,
or other financial aid received before reimbursement of expenses. The department
will deduct any amounts students receive through grants, scholarships, or
other financial aid toward tuition, required fees, and books from the amount
of education assistance provided to the student.
(c)
Cancellation and suspension.
(1)
Cancellation.
(A)
The department will cancel the employee's participation
in the Education Assistance Program and Non-Degree Program and require the
student to repay in accordance with §5.10 of this title (relating to
the Collection of Debts) all funds associated with the assistance, received
from the department under §4.63 of this
subchapter
[
(i)
withdraws from the institution;
(ii)
is removed or prohibited from attending the institution;
(iii)
fails to comply with one or more terms of the education
assistance agreement; or
(iv)
is terminated from the department for poor performance
or behavior while participating in the Education Assistance Program and Non-Degree
Program, including the employment period required by subsection (a)(3) of
this section.
(B)
The department will cancel an employee's participation
in the full-time Master's Program and require the student to repay, in accordance
with §5.10 of this title, all funds associated with the assistance received
from the department, including any portion of the employee's salary that was
paid and not accounted for as paid vacation or compensatory leave, if the
employee fails to complete the full-time Master's Program in four semesters
unless an extension is granted based on the approved degree program by the
director of the Human Resources Division.
(C)
The department will cancel an employee's
participation in the Degree Completion Program and require the student to
repay, in accordance with §5.10 of this title, all funds associated with
the assistance received from the department, including any portion of the
employee's salary that was paid and not accounted for as paid vacation or
compensatory leave, if the employee:
(i)
withdraws from the institution;
(ii)
is removed or prohibited from attending
the institution;
(iii)
fails to complete the degree program
in three semesters, unless an extension is granted based on the approved degree
program by the director of the Human Resources Division;
(iv)
fails to comply with one or more terms
of the education assistance agreement; or
(v)
is terminated from the department for
poor performance or behavior while participating in the program, including
the employment period required by subsection (a)(4) of this section.
(D)
[
(2)
Suspension. If an employee is placed on disciplinary
probation, the department may suspend for either an indefinite or fixed period
of time, the employee's participation in the Education Assistance Program,
Non-Degree Program,
Degree Completion Program,
or full-time Master's
Program.
(d)
Repayment.
(1)
Education Assistance and Non-Degree Program.
(A)
Non-Degree Program. An employee who is removed or voluntary
withdraws from the Non-Degree Program prior to completing the course(s) is
liable for repayment of all assistance provided by the department for the
course(s) taken.
(B)
Education Assistance Program. An employee pursuing a degree
who is removed or voluntarily withdraws from the Education Assistance Program,
or who separates from department employment, shall repay all assistance provided
by the department for courses taken to that point. If an employee, after completing
all degree requirements, fails to complete the required work obligation, then
he or she will be responsible for all educational assistance provided by the
department. There is no pro-ration system to defray any portion of the debt.
An employee must work the entire defined work period to pay off the incurred
debt.
(2)
Full-time Master's Program
and Degree Completion
Program
. Employees who are removed from
either program
[
(3)
Repayment schedule. In repayment situations, the director
of the Human Resources Division or designee will work with the district/division/office/administration
and the Finance Division to determine the requirements. Employees will follow
the repayment schedule set by the department. For
each program
[
(A)
up to 60 equal monthly installments beginning 90 days after
the effective date of cancellation or termination of employment; and
(B)
minimum installments based on the student's ability to
repay and amount of funds owed, with a minimum installment requirement of
$20 per month.
(4)
Costs of collection. An employee is liable to
the department for any reasonable expense incurred in obtaining payment, including
reasonable attorney's fees.
(5)
Course Failure. Employees taking classes under either
the Education Assistance Program, full-time Master's Program,
Degree
Completion Program,
or Non-Degree Program who fail to complete or pass
a course must repay funds provided by the department for that course. If the
employee repays the department for the course, the employee may continue in
the education program. The failure of a course does not constitute immediate
removal from the Education Assistance Program, Non-Degree Program,
Degree
Completion Program,
and full-time Master's Program. Employees may complete
course(s) already paid for. However, no new course(s) will be paid for until
the employee repays the cost of the failed course.
(A)
The department will establish a repayment schedule of up
to 12 equal monthly installments beginning 60 days after verification of failure
or non-completion.
(B)
The department will not pay expenses incurred to retake
the same course or take a substitute for that course.
(6)
Credit Bureau Notification. The department will
notify appropriate credit bureaus or agencies if an employee fails to repay
the department or fails to adhere to the terms of the employment.
(7)
Waiver. The executive director may approve a deferral
or extension of the prescribed repayment period if the student demonstrates
an inability to pay due to a hardship. The Texas Transportation Commission,
by minute order, may approve the reduction or cancellation of the debt or
service requirements for a full-time Master's Program employee
or Degree
Completion Program employee
who departs the program and begins work
for another state agency, or who demonstrates an inability to pay or complete
the work obligation due to a hardship. The executive director may approve
the reduction or cancellation of the debt or service requirements for an Education
Assistance Program or Non-Degree Program employee, under the same conditions
as the commission's approval for an employee participating in the full-time
Master's Program.
(8)
Continued payment responsibility. Any deferral or
extension approved by the executive director does not relieve the employee
of his or her responsibility to repay the funds owed.
(9)
Resumption of eligibility. If the department cancels
an employee's participation in the Education Assistance Program, Non-Degree
Program,
Degree Completion Program,
or full-time Master's Program,
the employee will no longer be eligible for assistance under §4.63 of
this
subchapter
[
(A)
the student demonstrates that the cancellation was due
to hardship; or
(B)
it has been at least three years since the department canceled
the employee's participation in the Education Assistance Program.
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 April 3, 2000.
TRD-200002342
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
Subchapter A. GENERAL
43 TAC §9.1
The Texas Department of Transportation proposes new §9.1
concerning claims for purchase contracts.
EXPLANATION OF PROPOSED NEW SECTION
Government Code, Chapter 2260, provides a resolution process for certain
contract claims against the state. Chapter 2260 applies to purchase contracts
of the Texas Department of Transportation entered into under the State Purchasing
and General Services Act.
Subsection (a) states the purpose of the section, which is to implement
Government Code, Chapter 2260.
Subsection (b) defines terms to be used in the new section.
Subsection (c) provides that a vendor may file a notice of claim with the
director of contract services within 180 days after the date of the event
giving rise to the claim. The claim must contain the nature of the alleged
breach, the amount the vendor seeks as damages, and the legal theory of recovery.
Subsection (d) provides that the department will begin negotiations with
the vendor within 60 days of the later of: the date of the termination of
the contract; the completion date in the original contract; or the date the
claim is received. The subsection describes the informal process of negotiation.
The process is designed to expedite early resolution of claims.
Subsection (e) provides that the department will agree to nonbinding mediation
if the department determines that the mediation would speed resolution of
the claim or otherwise benefit the department. To limit expenses for both
parties and expedite resolution, the executive director will appoint a department
employee as mediator. If the vendor objects to the appointment of a department
employee, the department will select and hire a private mediator. The parties
will share the costs for the services of a private mediator.
Subsection (f) requires the department to make a final offer to the vendor
within 90 days of beginning negotiations. The vendor must advise the director
of contract services in writing within 20 days of the date of notice if the
offer is acceptable.
Subsection (g) authorizes a vendor to petition for an administrative hearing
if the vendor is dissatisfied with the disposition, or if the claim is not
resolved before the 90th day after negotiations begin.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the new section is in effect, there will be no significant
fiscal implications for state or local governments as a result of enforcing
or administering the new section. There are no anticipated economic costs
for persons required to comply with the section as proposed.
Jennifer Soldano, Director, Contract Services Office, has certified that
there will be no significant impact on local economies or overall employment
as a result of enforcing or administering the new section.
PUBLIC BENEFIT
Ms. Soldano has also determined that for each year of the first five years
that the section is in effect, the public benefit anticipated as a result
of the section will be to efficiently and effectively resolve purchase contract
disputes. There will be no effect on small or micro businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed new section may be submitted to Jennifer
Soldano, Director, Contract Services Office, 125 East 11th Street, Austin,
Texas, 78701-2483. The deadline for receipt of comments is 5:00 p.m. on May
15, 2000.
STATUTORY AUTHORITY
The new section is proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Government Code, Chapter 2260, which requires each
unit of state government to develop rules governing the negotiation and mediation
of a contract claim.
No statutes, articles, or codes are affected by the proposed new section.
§9.1.Claims for Purchase Contracts.
(a)
Purpose. Government Code, Chapter 2260, provides a resolution
process for certain contract claims against the state. Chapter 2260 applies
to purchase contracts of the Texas Department of Transportation entered into
under the State Purchasing and General Services Act. This section governs
the filing, negotiation, and mediation of a claim.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Claim--A claim for breach of a purchase contract between
a vendor and the department.
(2)
Department--The Texas Department of Transportation.
(3)
Director of contract services--The director of the
contract services office of the department.
(4)
Executive director--The executive director of the
department or the director's designee not below the level of office director.
(5)
Purchase--A procurement action under Government Code,
Title 10, Subtitle D, for commodities or non professional services.
(6)
Vendor--An individual, partnership, corporation, or
other business entity that is a party to a written contract for a purchase
with the department.
(c)
Filing of claim. A vendor may file a notice of claim with
the director of contract services within 180 days after the date of the event
giving rise to the claim. The claim must contain the:
(1)
nature of the alleged breach;
(2)
amount the vendor seeks as damages; and
(3)
legal theory of recovery.
(d)
Negotiation.
(1)
The executive director will begin negotiations with the
vendor to resolve the claim. The negotiations will begin no later than the
60th day after the later of:
(A)
the date of the termination of the contract;
(B)
the completion date in the original contract; or
(C)
the date the claim is received.
(2)
The negotiation may be written or oral. The executive
director may afford the vendor an opportunity for a meeting to informally
discuss the disputed matters and provide the vendor an opportunity to present
relevant information.
(e)
Mediation.
(1)
The department and the vendor may agree to nonbinding mediation.
The department will agree to mediation if the executive director determines
that the mediation may speed resolution of the claim or otherwise benefit
the department.
(2)
The executive director will appoint a department employee
as mediator. The employee must not have had any previous involvement or participation
in the administration of the contract or the resolution of the claim.
(3)
If the vendor objects to the appointment of a department
employee as mediator, the department will select and hire a private mediator
from outside the department. The costs for the services of a private mediator
will be apportioned equally between the department and the vendor.
(4)
The role of a mediator is limited to assisting the
parties in attempting to reach an agreed resolution of the issues.
(f)
Final offer.
(1)
The executive director will make a final offer to the vendor
within 90 days of beginning negotiations.
(2)
If the disposition is acceptable to the vendor, the
vendor shall advise the director of contract services in writing within 20
days of the date of the final offer. The department will forward an agreed
disposition involving payment to the vendor for a final and binding order
on the claim.
(g)
Contested case hearing. If the vendor is dissatisfied with
the final offer, or if the claim is not resolved before the 90th day after
negotiations begin, the vendor may petition the executive director for an
administrative hearing to litigate the unresolved issues in the claim under
the provisions of §1.21 et seq. of this title (relating to Contested
Case Procedure).
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 April 3, 2000.
TRD-200002343
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
The Texas Department of Transportation proposes the repeal of §§9.50-9.59
and new §§9.50-9.57, concerning Business Opportunity Programs.
EXPLANATION OF PROPOSED REPEALS AND NEW SECTIONS
Transportation Code, §201.702, entitled "Disadvantaged Business Program,"
requires the department to establish a business opportunities program to assist
disadvantaged businesses. This program includes: setting goals for the awarding
of state and federally funded contracts to disadvantaged businesses; making
sure that disadvantaged businesses have full access to the department's contract
bidding process; informing the businesses about the process; offering businesses
assistance concerning the process; and identifying barriers to the businesses'
participation in the process. In performing its statutory duty under Transportation
Code, §201.702, and satisfying its requirements to the federal government
as a precondition of receiving federal monies, the department has developed
a single business opportunities program. This program has three parts. There
are two state parts; one addressing highway construction and maintenance and
the other addressing all other department contracts funded exclusively with
state and local monies. The third part of the program addresses department
contracts funded in whole or in part with federal funds. All three parts of
the department's business opportunities program have similar objectives and
procedures.
In developing its business opportunities program, the department recognizes
that a successful program requires the cooperation of all members of the affected
industries. To minimize disruption to the private sector, the department has
developed its program based on a single set of principles that satisfies the
requirements of mandated federal regulations, is consistent to the greatest
extent practicable with Government Code, Chapter 2161, and satisfies the department's
long term goals of maximizing the number of firms able to compete for department
contracts.
The first part of the department's business opportunities program, the
Historically Underutilized Business (HUB) program, is modeled on, and where
practicable, consistent with, the state Historically Underutilized Business
program described in Government Code, Chapter 2161. The department's HUB program
addresses contracts funded entirely with state and local monies for department
activities other than highway construction and maintenance. The second part,
the new Small Business Enterprises program (SBE), is open to all small businesses
that meet the required size limitations and applies only to highway construction
and maintenance contracts. The department's federally required Disadvantaged
Business Enterprises program (DBE) applies to all contracts funded in whole
or in part with federal monies.
The department, through its business opportunities program, strives to
achieve the greatest practicable coordination with other government programs
designed to aid disadvantaged businesses in gaining equal access to public
contracts. This coordination includes making use of the General Services Commission's
certified Historically Underutilized Businesses (HUBs), entering into interagency
agreements to have businesses that are certified under the federal Disadvantaged
Business Enterprise (DBE) program cross-certified as HUBs, and reporting relevant
disadvantaged business participation to the state agencies charged with gathering
that information. The department will generally refer to state HUB law procedures
for guidance in removing barriers that may keep disadvantaged businesses from
having equal access to department contracts. The department has designed its
SBE program to complement the department's HUB program by making certified
HUBs and DBEs automatically eligible to be part of the new SBE program. The
department also designed the SBE program to gather HUB data in certain circumstances
involving the SBE program.
Transportation Code, §201.702, requires that the goals established
for state funded contracts must approximate the federal requirements for federal
money used for highway construction and maintenance. The United States Department
of Transportation's Disadvantaged Business Enterprise Program, as described
in 49 CFR Chapter 26, sets out the requirements for a state to follow in setting
participation goals and assuring that disadvantaged businesses have equal
access to federally funded contracts. As described in these rules, the Texas
Transportation Commission, by minute order, will establish goals for the HUB
and SBE programs. These rules are designed to give the commission the greatest
possible latitude for establishing the HUB and SBE goals within the parameters
established by controlling federal case law and consistent with Government
Code, Chapter 2161.
The department has recently established its goals for disadvantaged business
participation in federally funded contracts. The department did include in
its goal setting methodology information from the State of Texas Disparity
Study referenced in Government Code, Chapter 2161, which includes information
regarding department contracts performed by certain disadvantaged businesses.
The department anticipates continuing to examine the disparity between the
availability of all disadvantaged businesses and the actual participation
of those businesses in department contracts to determine the appropriate goals
for the three parts of the department's business opportunity programs. In
order to be included in the data forming the basis of that study, the department
will operate its business opportunities programs as consistently as practicable
with the state HUB program.
These rules are proposed to: make the department's business opportunities
programs compliant with recent federal regulatory changes; modify its program
consistent with legislative amendments to the state HUB program; and create
the Small Business Enterprises program. The structure of the rules has been
changed to assist the department's stakeholders in understanding the department's
operations. In addition, several wording and grammatical revisions have been
incorporated for clarification.
To provide clarification and better organization of rules relating to the
business opportunities program, the department finds it necessary to propose
the repeal of existing §§9.50-9.59, and to propose the contemporaneous
adoption of the reenacted subject matter in new §§9.50-9.57, in
an amended form to: implement the previously cited statutes; comply with federal
regulations; make department operations as consistent as practicable with
state affirmative action programs; create the new Small Business Enterprises
program; reflect minor wording changes; and rephrase wording for clarity,
continuity and proper style. The following section by section analysis more
specifically explains the substantive revisions that will appear in the new
sections.
Section 9.50
Section 9.50 describes the purpose of this subchapter, which includes implementing
the existing DBE, HUB, and new SBE programs to comply with Transportation
Code, §201.702, and 49 CFR Part 26.
Section 9.51
Section 9.51 provides the definitions and terms used in this subchapter.
In this new section, certain definitions have been added or revised from the
existing rule to provide clarification and reference the proper statutory
authority. These revisions are necessary to comply with new federal DBE regulations
contained in 49 CFR Part 26. The definition of "Good faith efforts" has been
added to comply not only with the federal DBE program, but to be consistent
with the state HUB program described in Government Code, Chapter 2161. Other
definitions have been added to implement the new SBE program. The definitions
of "Building contract," "Construction contract," "DBE, HUB or SBE participation
goal," "Maintenance contract," and "Small Business Enterprise," have been
added or revised to accommodate the new SBE program. The definition of "Small
business enterprise" includes a provision that businesses meeting this definition
are considered "disadvantaged" for purposes of the SBE program.
Section 9.52
Section 9.52 reflects new DBE/HUB/SBE program policy objectives in accordance
with new federal DBE regulations contained in 49 CFR §26.1, and makes
the department's HUB program consistent to the extent practicable, both in
objectives and procedures, with HUB legislation passed by the 76th Legislature,
1999. This section also describes the role that the SBE program has in the
department's efforts to serve disadvantaged businesses as directed by Transportation
Code, §201.702.
Section 9.53
Section 9.53 has been reorganized to consolidate the various DBE provisions
into a single area of the rules. This reorganization will help department
stakeholders access information regarding the department's federal DBE program.
Revisions have also been made in order to complement the department's HUB
and SBE programs.
The section addresses the establishment of goals and how credit towards
goals can be earned satisfying federal requirements in 49 CFR part 26. These
rules also reflect the new federal DBE requirements contained in 49 CFR §26.45
which requires that the maximum feasible portion of the department's overall
DBE goal will be met using race-neutral means.
Subsection (c) clarifies the contractor's responsibility under the DBE
program as required by the new federal regulations. Subsection (c)(2)(A) refers
to the criteria describing good faith efforts found at 49 CFR Part 26, Appendix
A. These criteria specify the documented activities expected from a contractor
who is unable to meet a contract DBE goal.
Subsection (d) reflects the Disadvantaged Business Enterprise certification
procedures required by new federal regulations contained in 49 CFR Part 26.
The following describes specific revisions to conform with these federal regulations.
Subsection (d)(1) includes provision for a Unified Certification Program
(UCP) agreement with other USDOT recipients in the state. This agreement will
provide one-stop shopping for firms applying for DBE certification. The agreement
will be signed by the department by March, 2002.
Subsection (d)(1) specifies that the department will certify a qualified
applicant as a DBE within 90 days from the request unless the department notifies
the firm of a 60-day extension. Subsection (d)(3) provides that, consistent
with federal requirements, out-of-state DBEs must be certified as DBEs in
the state of their principal place of business. Subsection (d)(4) clarifies
that the department's duty to safeguard certification information is subject
to the Texas Public Information Act.
The certification standards contained in subsection (d)(4) refer to the
eligibility standards listed in Subpart D of 49 CFR Part 26. Application information
submitted by a firm seeking DBE certification that may reasonably be regarded
as proprietary will be safeguarded by the department from disclosure to unauthorized
persons to the extent permitted by law. An exception is that personal financial
information that would have to be provided to the United States Department
of Transportation (USDOT) as part of the administrative record may be disclosed
for that purpose.
Subsection (d)(4)(A) requires that applicant firms submit a signed notarized
affidavit certifying that each owner is socially and economically disadvantaged.
In addition, subsection (d)(4)(B) requires that each socially and economically
disadvantaged applicant firm owner submit a signed, notarized statement of
personal net worth. Individuals whose personal net worth exceeds $750,000
will not be considered to be socially and economically disadvantaged.
Subsection (d)(5)(A) states that DBEs will be certified for the specific
types of work where the qualifying owners have the ability to control the
firm. Subsection (d)(5)(A)(iv) includes the addition of businesses operating
under a franchise or lease agreement as eligible to apply for DBE certification.
Subsection (d)(7) requires that applicants verify by affidavit their recertification
request every three years. Subsection (d)(7)(A) provides that DBE certification
will be for a period of three years with provision for an annual affidavit
affirming there have been no changes affecting the firm's eligibility.
Subsection (d)(8) requires that in those instances when a firm is denied
DBE certification, the department must notify the applicant in writing of
its decision to deny certification with the reasons for denial. Further provisions
are made which allow the applicant to respond to the department's notice of
certification denial.
Subsection (d)(9) allows for a third party to challenge the eligibility
of a firm that is either certified or seeking certification as a DBE. Should
the department determine, following the review of the challenged firm's record,
that the challenged firm is ineligible for DBE certification, the challenged
firm will have the opportunity to either have an informal hearing conducted
or present information and arguments in writing. As required by federal regulations,
and at the complainant's election, the department will keep the identity of
the complainant confidential, to the extent permitted by law. If non-disclosure
of the complainant's identity hinders the investigation, the complaint may
be subject to being dismissed. This subsection allows the department the discretion
to proceed or dismiss the case if the complainant does not waive confidentiality.
Subsection (d)(10) contains provisions for informal hearings and requires
that an informal hearing be presided over by a department official who did
not take part in the actions leading to or seeking to remove the challenged
firm's eligibility. This department official will make the decision regarding
the firm's DBE eligibility. Subsection (d)(10) also limits the basis on which
the department can deny a firm's application for DBE certification.
Subsection (d)(11) requires that in those instances when a contractor or
subcontractor has its DBE eligibility removed prior to contract execution,
neither the department nor a contractor shall receive goal credit. Contractors
will further be required to either substitute a certified firm for the ineligible
firm or demonstrate their good faith efforts to do so.
Subsection (d)(12) reflects the department's efforts, consistent with federal
requirements, to help potential contractors identify DBE firms for subcontracting
opportunities.
Subsection (e) includes new federal requirements, outlined in Subpart C
of 49 CFR Part 26, regarding DBE goals, good faith efforts, and crediting
DBE participation. Subsection (e)(1) provides a method for reporting race-neutral
DBE participation.
Subsection (e)(2)(A) provides that, in addition to other requirements of
law, the commitment agreement must be in place before a contract can be awarded.
Subsection (e)(2)(A)(i)(VI) requires the commitment agreement be signed by
both the contractor and the proposed DBE. Subsection (e)(2)(B) clarifies that
in circumstances when a particular contract goal has not been met, the contractor
is responsible for documenting the good faith efforts it made to obtain DBE
participation. Subsection (e)(2)(A)(ii) requires that participation credit
be given to DBE prime contractors for only that amount of work performed by
the DBE's own forces or subcontracted to DBE subcontractors.
Subsection (e)(3) updates department reporting practices. Subsection (e)(3)(A)
requires that payments made to DBE firms by contractors be reported to the
department. This requirement extends to DBE subcontracts which are awarded
without a goal and to second-tier contracts awarded by DBE firms to non-DBE
firms.
Subsection (e)(3)(A) also clarifies the language describing the content
of required reports from contractors.
Subsection (e)(3)(B) has been revised to delete unnecessary references.
By referring directly to the contract provision at issue, the possibility
for confusion is reduced.
Subsection (e)(6)(A)(ii) allows DBE contractors and subcontractors to utilize
leased employees in conjunction with the requirements contained in 49 CFR §26.71(q)
and Labor Code, §91.005.
Subsection (e)(7)(B)(iii) provides that a request to replace a DBE subcontractor
will be denied if the DBE firm is able and willing to carry out the terms
of the contract.
Section 9.54
Section 9.54 has been reorganized to consolidate the various HUB provisions
into a single area of the rules. This reorganization will help department
stakeholders access information regarding the department's HUB program.
Subsection (a) describes the scope of the department's HUB program which
includes all state and locally funded projects, other than highway construction
and highway maintenance contracts. The department, under its authority in
Transportation Code, 201.702, to operate a business opportunities program
has included in its HUB program those areas most similar to other state contracting
opportunities.
Section 9.54 is developed under authority of Transportation Code, §201.702,
and intended to be consistent where practicable with both Government Code,
Chapter 2161, and the department's DBE and SBE programs. An explanation of
these changes follows.
Subsection (b)(1) clarifies that the Texas Transportation Commission will
set annual participation goals. This subsection also describes the factors
the commission will use to establish these goals. By adopting its annual goals
through a public commission meeting, the public can comment on the department's
annual HUB goals.
To maintain consistency with the state HUB program requirements contained
in Government Code, Chapter 2161, subsection (b) states that the commission
will establish an overall annual HUB participation goal and that the department
will assign individual contract goals as necessary to achieve the overall
goal. Subsection (b)(1) describes the process by which the commission will
establish annual goals making use of disparity studies, including the disparity
study described in Government Code, §2161.002(c), or its replacement,
as well as other relevant information. The department has used the disparity
study described in Government Code, §2161.002(c), and other data to establish
goals for its federal DBE program. Making use of this or other disparity studies
for establishing its HUB goals satisfies the requirement in Transportation
Code, §201.702(b), that the state goal approximate the federal requirements
for the use of federal monies in highway construction.
Subsection (c)(2)(B) clarifies that contract goals will be used only for
that portion of the department's goals that cannot be satisfied through the
use of outreach, education, or other race neutral means.
Subsection (c) describes a contractor's obligations under the department's
HUB program. The objective is to make the department's HUB program consistent
with Government Code, Chapter 2161, to the extent possible while not creating
a second set of requirements for contractors that participate in both state
and federally funded contracts.
Subsection (c)(1) is designed to be consistent with the state program that
requires a participation plan for contracts without goals. The department's
participation plan is made a condition of award consistent with the federal
DBE program and serving the same purposes as the subcontracting plan required
by Government Code, Chapter 2161.
Subsection (c)(2), by addressing contracts with goals, also emulates Government
Code, Chapter 2161, and requires subcontractor commitment agreements. Also
consistent with federal requirements, the commitment agreements are required
as a condition of award. Subsection (c)(2)(A), consistent with the federal
DBE program, requires the commitment agreement to include the original signatures
of the contractor and the HUB.
Subsection (c)(2)(B) clarifies that in circumstances when a particular
contract goal has not been met, the contractor is responsible for documenting
the good faith efforts it made to obtain HUB participation.
Subsection (c)(3) describes reporting practices that contractors must follow.
Subsection (c)(3)(A) requires that payments made to HUB firms by contractors
be reported to the department. This requirement extends to HUB subcontracts
which are awarded without a goal being attached to the project and to second-tier
contracts awarded by HUB firms to non-HUB firms. This reporting requirement
will aid the department in determining what percentage of its race conscious
goals should be assigned under Transportation Code, §201.702, and to
better asses its outreach and marketing efforts to assist HUB firms through
race-neutral measures.
Subsection (c)(4) states that all payments to HUBs for work performed,
including all subcontracted work, will be credited toward goals on contracts
within the HUB program.
Subsection (c)(5) makes HUB subcontracting requirements consistent with
the federal DBE program. The percentages of work that can be subcontracted
and are permitted by the GSC HUB program have been retained.
Subsection (d)(1) describes the memorandum of agreement between the department
and the General Services Commission regarding the certification of Historically
Underutilized Businesses. Subsection (d)(3) describes the process to be utilized
in instances where a firm's certification as a Historically Underutilized
Business is challenged. This subsection specifies that a business certified
as a HUB, based on its status as a DBE, will lose its HUB certification if
a successful challenge is made to the certification of the DBE.
Section 9.55
Section 9.55 creates the new Small Business Enterprises program. The various
provisions affecting the SBE program have been placed in this single area
of the rules. This organization of the rules will help department stakeholders
access information regarding the department's SBE program. The department,
under its authority in Transportation Code, §201.702, to develop programs
for disadvantaged businesses has chosen to develop the SBE program to assist
disadvantaged businesses in the highly specialized fields of highway construction
and maintenance. The department has designed the SBE program to mirror the
DBE and HUB programs whenever practicable so that members of the affected
industry will not be confronted with different rules based solely on whether
a project is funded with federal as opposed to state or local dollars.
Subsection (a) describes the scope of the department's SBE program which
includes highway construction and highway maintenance projects funded with
state and local monies.
Subsection (b) describes the procedure for establishing annual and contract
goals. The commission, in a procedure similar to that required by the federal
DBE program and roughly equivalent to the HUB goal setting procedures will
establish annual goals based on the availability of SBE firms. By setting
goals at a public meeting, the public can comment on proposed SBE goals. The
department, based on the subcontracting opportunities for SBEs, will establish
contract goals as necessary to meet the annual goal.
Subdivision (c) mirrors the contractor's obligations to HUB and DBE subcontractors.
These obligations will be included in a provision made a part of the prime
contract.
Subsection (c)(1) requires that contracts without an assigned goal include
a provision that encourages contractors to use disadvantaged businesses and
prohibits discrimination.
Subsection (c)(2) requires, in a manner very similar to the HUB program,
that contracts with an assigned goal include a provision addressing commitment
agreements and good faith efforts. Similar to the HUB and DBE programs, commitment
agreements are required as a condition of award.
Subsection (c) describes the reporting requirements contractors must meet
in the SBE program. These reporting requirements mirror those of the HUB program
and are designed to capture all instances when a SBE performs work on a department
contract subject to this section.
Subsection (c)(4) describes how and under what circumstances a contractor
can claim credit for using a SBE firm. This subsection gives credit for expenditures
given to contractors employing SBEs in the same manner that credit is given
for employing HUBs.
Subsection (c)(5) has been included as a limitation on SBE contractors
and subcontractors. The same limitations in the HUB program on the percentage
and type of work that may be subcontracted also apply to the SBE program.
The SBE program also mirrors the HUB program in the requirements that a contractor
not provide an SBE work crews and only lease equipment to an SBE if there
is a separate lease agreement and only provide an operator for the equipment
if the machinery is of a specialized nature.
Subsection (d) describes the certification criteria and procedures. DBE/HUB
certified firms are automatically eligible for SBE certification without needing
to apply. All other firms must make application demonstrating their qualifications
under subsection (d)(2). These qualifications mirror the requirements of the
HUB program as presently interpreted by GSC, with the exception that race,
gender, and ethnicity are not considered.
Subsection (d)(3) and (4) describe the procedure the department uses in
certifying, reviewing, and evaluating the eligibility of firms to be included
in the SBE program. These procedures, to the extent possible, mirror the certification
procedures for the DBE program. Subsection (d)(5) provides for recertification
after a firm has been in the SBE program for two years. All firms must then
re-apply under the procedures mandated for non-DBE/HUB firms.
Paragraph (6) describes the procedure the department must follow in denying
an application. This procedure is designed to follow the same steps as the
department follows in denying DBE certifications. Subsection (d)(7) provides
for third parties to challenge an SBE firm's inclusion in the SBE program.
This third party challenge procedure is the same as that available to challenge
the status of DBE firms. Subsection (d)(8) provides that the department will
maintain a directory of certified SBEs, to be made available to interested
parties.
Section 9.56
Section 9.56 addresses contract compliance requirements generally applicable
to DBE, HUB, and SBE firms. Policies and practices applicable to the DBE and
HUB programs have been extended to cover the SBE program. Uniformity of rules
and procedures consistent in all three programs aids the department, contractors,
and DBE/HUB/SBE subcontractors in maintaining consistent standards of conduct.
The department proposes §9.56 to implement Transportation Code, §201.702,
to satisfy requirements of the federal DBE regulations, and to be consistent
with Government Code, Chapter 2161.
Subsection (b) clarifies the language of this section and explains the
requirement that a contractor representative be assigned on contracts with
an SBE goal.
Subsection (c) includes the requirement that contractors not withhold or
reduce payments to SBE firms inconsistent with industry practices.
Subsection (d) includes SBEs in the list of firms that must comply with
the terms of their individual contracts.
Subsection (e) adds the requirement that DBE, HUB, or SBE firms submitted
on a commitment agreement not be terminated without prior approval of the
department. This provision is required by federal regulations for DBE firms
and has been extended to HUB and SBE firms to bring consistency to department
operations.
Subsection (g) extends to contractors employing HUB and SBE firms the same
protections in responding to a charge of non-compliance as exists in the DBE
program.
Subsection (h) extends the department's authority to impose sanctions against
firms not complying with the SBE program requirements. Subsection (h)(3) describes
when the department will impose sanctions. This section more accurately reflects
the department's policy to ensure that all firms have a level playing field
on which to compete for department projects.
Section 9.57
Section 9.57 explains that complaints filed under these rules must be in
writing. Subsection (d)(1)(B) concerning appeals by a DBE company, includes
the new federal requirements contained in 49 CFR §26.89 and §26.103
regarding the deadlines for filing appeals with USDOT. Firms that believe
they have been wrongly denied certification or that have challenged certification,
may appeal a department decision to USDOT within 90 days after the date of
the department's final decision. Firms alleging discrimination on a federally
funded contract or aggrieved by a department decision related to the DBE program
may file an appeal with USDOT within 180 days after the date of offense or
continuing course of conduct was discovered.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for the first
five-year period the repeals and new sections are in effect, there will be
fiscal implications to the state. New requirements contained in §9.54
regarding the HUB participation plan to be submitted when no contract goal
is assigned will result in additional duties for department personnel relating
to the evaluation of this plan. Likewise, new reporting requirements contained
in §9.53 regarding race-neutral participation will also result in additional
duties for department personnel related to the evaluation and data entry of
these reports. In addition to these duties, personnel located in each of the
department's 25 district offices will require training concerning the administration
of new requirements associated with the proposed new DBE, HUB, and SBE Programs.
Annual costs associated with these additional duties for department personnel
are estimated at approximately $80,000 for the first fiscal year and $40,000
for each of the following four fiscal years.
There will also be economic costs for persons required to comply with the
sections as proposed. The fiscal implications will be to the contracting community
as a result of proposed new §9.53 and §9.54 regarding the HUB participation
plan and race-neutral reporting requirements previously mentioned. Additional
recordkeeping requirements associated with the HUB participation plan proposed
in §9.54 are expected to result in an annual cost of approximately $50
for each contract subject to these requirements. Likewise, additional recordkeeping
requirements associated with race-neutral participation proposed in §9.53
are estimated to result in an annual cost of $480 for each contract subject
to these requirements.
There will be no fiscal implications to local governments as a result of
implementing the proposed repeals and new sections.
Thomas Bohuslav, Director, Construction Division has certified that there
will be no significant impact on local economies or overall employment as
a result of enforcing or administering the repealed and new sections.
PUBLIC BENEFIT
Mr. Bohuslav has also determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
and administering the repeals and new sections will be to comply with federal
law, to streamline the department's DBE and HUB operations, to increase the
numbers and types of businesses eligible for inclusion in the department's
programs, and to improve program administration. There will be no effect on
small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed repeals and new sections may be submitted
to Mr. Thomas Bohuslav, Director, Construction Division, 125 East 11th Street,
Austin, Texas, 78701-2483. The deadline for receipt of comments is 5:00 p.m.
on May 15, 2000.
43 TAC §§9.50-9.59
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Department of Transportation or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The repeals are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.702, and 49 CFR Part
26, which require the department to establish a program to give disadvantaged
businesses full access to the department's contract bidding process.
No statutes, articles, or codes are affected by the proposed repeals.
§9.50.Purpose.
§9.51.Definitions.
§9.52.Policy.
§9.53.Applicability.
§9.54.DBE/HUB Goals.
§9.55.Good Faith Effort.
§9.56.DBE Certification.
§9.57.HUB Certification.
§9.58.Contract Compliance.
§9.59.Business Opportunity Programs Complaints.
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 April 3, 2000.
TRD-200002344
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
43 TAC §§9.50-9.57
STATUTORY AUTHORITY
The new sections are proposed under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.702, and 49 CFR Part
26, which require the department to establish a program to give disadvantaged
businesses full access to the department's contract bidding process.
No statutes, articles, or codes are affected by the proposed new sections.
§9.50.Purpose.
This subchapter establishes policies and procedures to implement the
department's Disadvantaged Business Enterprise (DBE), Historically Underutilized
Business (HUB), and Small Business Enterprise (SBE) programs in compliance
with Transportation Code, §201.702 and Title 49, Code of Federal Regulations
(CFR), Part 26, and consistent, to the extent possible, with Government Code,
Chapter 2161. This subchapter also establishes policies and procedures for
resolving business complaints concerning the DBE, HUB, and SBE programs.
§9.51.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Building contract--A contract entered under Transportation
Code, Chapter 223, Subchapter A, for the construction or maintenance of a
department building or appurtenant facilities.
(2)
Business opportunity programs section (CSTB) of the
Construction Division--The department office that certifies DBEs and SBEs
and administers the DBE, HUB, and SBE programs.
(3)
Commission--The Texas Transportation Commission.
(4)
Construction contract--A contract entered under Transportation
Code, Chapter 223, Subchapter A, for the construction or reconstruction of
a segment of the state highway system.
(5)
DBE certification--The process governed by 49 CFR
Part 26 which verifies an applicant's eligibility to be a DBE.
(6)
DBE joint venture--An association of a DBE firm and
one or more other firms to carry out a single business enterprise for profit
for which purpose they combine their property, capital, efforts, skills, and
knowledge, and in which the DBE is responsible for a distinct, clearly defined
portion of the work of the contract and whose share in the capital contribution,
control, management, risks, and profits of the joint venture are commensurate
with its ownership interest.
(7)
DBE, HUB, or SBE participation goal--A number representing
participation in contracts and purchasing by a DBE, HUB, or SBE firm determined
by a percentage of the total cost of the contract or purchase.
(8)
Department--The Texas Department of Transportation.
(9)
Director--The Director of the Construction Division
of the department.
(10)
Disadvantaged Business Enterprise (DBE)--As defined
in 49 CFR §26.5, a for profit small business concern which is at least
51% owned by one or more socially and economically disadvantaged individuals,
or in the case of a publicly owned business, at least 51% of the stock of
which is owned by one or more socially and economically disadvantaged individuals,
and whose management and daily business operations are controlled by one or
more of the socially and economically disadvantaged individuals who own it.
(11)
District engineer--The chief administrative officer
in charge of a district of the department.
(12)
Division--An organizational unit in the department's
Austin headquarters.
(13)
Executive director--The executive director of the
department or designee not below the level of assistant executive director.
(14)
Federal-aid contract--A contract between the department
and a contractor that is paid for in whole or in part with United States Department
of Transportation or other federal financial assistance.
(15)
GSC--The General Services Commission.
(16)
Good faith efforts--Efforts to achieve a DBE, HUB,
or SBE goal that, by their scope, intensity, and appropriateness to the objectives,
can reasonably be expected to fulfill the program requirements, even if they
are not fully successful.
(17)
Historically Underutilized Business (HUB)--Any business
so certified by the General Services Commission.
(18)
Liquidated damages--Project-related damages to the
department's DBE/HUB/SBE programs separate from those costs associated with
construction engineering costs.
(19)
Maintenance contract--A contract entered under Transportation
Code, Chapter 223, Subchapter A, for the maintenance of a segment of the state
highway system.
(20)
Operating administration--The Federal Highway Administration
(FHWA), Federal Aviation Administration (FAA), or Federal Transit Administration
(FTA).
(21)
Packager--A person or firm engaged in the commercial
packing of materials or supplies produced by others.
(22)
Race-neutral DBE or HUB participation--Any participation
by a DBE or HUB through customary competitive procurement procedures.
(23)
Small Business Enterprise (SBE)--A firm (including
its affiliates) whose annual gross receipts do not exceed the U.S. Small Business
Administration's size standards for four consecutive years. The U.S. Small
Business Administration's size standards are categorized by four-digit Standard
Industrial Classification (SIC) codes as stated in 13 CFR §121.201. A
firm must meet the size standard for the SIC code designated by the principal
business of the firm. The department considers those firms that meet these
size standards to be disadvantaged.
(24)
Socially and economically disadvantaged individuals--As
defined in 49 CFR §26.5, individuals who are United States citizens or
lawfully admitted permanent residents and who the department finds to be socially
and economically disadvantaged on a case-by-case basis or who are members
of the following groups which are rebuttably presumed to be socially and economically
disadvantaged:
(A)
Black Americans which includes persons having origins in
any of the Black racial groups of Africa;
(B)
Hispanic Americans which includes persons of Mexican, Puerto
Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese
culture or origin, regardless of race;
(C)
Native Americans which includes persons who are American
Indian, Eskimo, Aleut, or native Hawaiian;
(D)
Asian-Pacific Americans which includes persons whose origins
are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia
(Kampuchea), Thailand, Malaysia, Indonesia, Philippines, Brunei, Samoa, Guam,
the Commonwealth of the Northern Marianas or the United States Trust Territories
of the Pacific Islands (Republic of Palau), Macao, Fiji, Tonga, Kirbati, Juvalu,
Nauru, Federated States of Micronesia, or Hong Kong;
(E)
Subcontinent Asian-Americans which includes persons whose
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands,
Nepal, or Sri Lanka; or
(F)
women.
§9.52.Policy.
It is the policy of the department to:
(1)
ensure that DBEs, HUBs, and SBEs shall have an equal opportunity
to participate in the performance of contracts;
(2)
create a level playing field on which DBEs, HUBs,
and SBEs can compete fairly for contracts and subcontracts;
(3)
ensure nondiscrimination on the basis of race, color,
national origin, or gender in the award and administration of contracts;
(4)
ensure that the DBE program is narrowly tailored in
accordance with applicable law;
(5)
ensure that only firms that fully meet 49 CFR Part
26 eligibility standards are permitted to participate as DBEs;
(6)
help remove barriers to the participation of DBEs,
HUBs, and SBEs in department contracts;
(7)
assist in the development of firms that can compete
successfully in the market place outside the DBE, HUB, and SBE programs; and
(8)
develop and maintain a program in order to facilitate
contracting opportunities for small businesses.
§9.53.Disadvantaged Business Enterprise (DBE) Program.
(a)
Applicability. The DBE program is applicable to all department
contracts and purchases funded in whole or in part with federal funds received
from the United States Department of Transportation (USDOT) through the Federal
Highway Administration, Federal Transit Administration, or the Federal Aviation
Administration.
(b)
DBE goals. The department will establish overall annual
DBE participation goals. The goals will be published in the Texas Register
and other media as appropriate. Individual contract goals will be established
as necessary to achieve the overall goal.
(1)
Annual goals. Each year the department will establish an
agency DBE goal pursuant to the two-step process specified in 49 CFR §26.45.
The first step will be to establish a base figure for the relative availability
of DBEs. The second step will be to examine relevant evidence available in
the department's jurisdiction to determine what adjustment, if any, is needed
to the base figure in order to arrive at the overall goal. The department
will accept public comments regarding the goals and the methods for establishing
the goals for at least 45 days from the publication date of the notice in
the Texas Register. The maximum feasible portion of the department's overall
DBE goal will be met using race-neutral means. Quotas will not be used in
the administration of the department's DBE program. The annual goal will be
consistent with the federal requirements of USDOT and compatible with other
applicable state and federal laws.
(2)
Contract goals. Individual contracts are assigned
DBE goals based on the availability of qualified DBEs, work site location,
dollar value of the contract, and type of work items specified in the contract.
The department will assign individual contract goals for DBE participation
in federal-aid highway improvements, building construction and maintenance,
professional services, aviation, public transportation, private consultant
services, and purchasing contracts as necessary to cumulatively meet the annual
DBE goals that are not being met through race-neutral means.
(c)
Good faith effort.
(1)
The department will make a good faith effort to meet or
exceed the annual goals as described in subsection (b)(1) of this section.
(2)
The obligation of the contractor is to make a good
faith effort to meet the contract goal. When a specific contract goal is not
being met by a contractor, the contractor must document the good faith efforts
taken to obtain DBE participation.
(A)
The department will consider the contractor to have made
a good faith effort when it complies with Appendix A to 49 CFR Part 26.
(B)
If the department determines that the contractor has failed
to meet the good faith effort requirements, the contractor will be given an
opportunity for reconsideration by a division director who did not have any
role in the original determination. The contractor will be given the opportunity
to provide written documentation and/or meet with the division director to
discuss the issues. A written determination will be issued to the contractor
by the division director. The determination is not administratively appealable
to USDOT.
(d)
DBE certification.
(1)
Responsibility. The department will participate in a Unified
Certification Program (UCP) pursuant to 49 CFR §26.81. A UCP agreement
with other DOT recipients in the state will be signed by the department by
March 2002. The agreement will provide one-stop shopping for firms applying
for DBE certification so that an applicant is required to apply only once
for a DBE certification that will be honored by all DOT recipients in the
state. Within 90 days after receiving all information required from the applicant,
the department will certify a small business as a DBE if it qualifies with
all certification standards of Subpart D of 49 CFR Part 26. With written notification
to the firm, the department may extend the time period for an additional 60
days. Firms are certified for a three-year period. An annual affidavit, affirming
that there have been no changes affecting the firm's eligibility, is required.
The department must be notified, in writing, within 30 days of any change
affecting the eligibility of a firm. The notice must take the form of an affidavit
sworn to by the owners of the firm and properly notarized and executed under
penalty of perjury of the laws of the United States.
(2)
Requests. A business must submit a written request
for certification as a DBE using an application form approved by the department.
A DBE firm may renew its certification using an abbreviated application unless
the following situations require that the long form be completed:
(A)
a DBE's certification has lapsed;
(B)
the firm's previous application was withdrawn; or
(C)
there is a change of ownership or control of a certified
firm at any time.
(3)
Out-of-state firms. An out-of-state firm must
be certified by the UCP in the state in which it maintains its principal place
of business.
(4)
Certification standards. A firm must meet each of
the eligibility standards of Subpart D of 49 CFR Part 26 to be certified.
A firm seeking certification has the burden of demonstrating by a preponderance
of the evidence that it meets the certification standards. DBE firms and firms
seeking DBE certification shall cooperate fully with department requests for
information relevant to the certification process. Failure or refusal to provide
such information is grounds for denial or removal of certification. To the
extent permitted by law, the department will safeguard from disclosure to
unauthorized persons information gathered as part of the certification process
that may reasonably be regarded as proprietary or other confidential business
information. Confidential information may be provided to a third party only
with the written consent of the individual to whom the information pertains.
An exception to this requirement is when personal financial information would
have to be provided to DOT as part of the administrative record. DOT will
treat the information as confidential.
(A)
Applicant firms must submit a signed, notarized certification
that each presumptively disadvantaged owner is, in fact, socially and economically
disadvantaged.
(B)
Each socially and economically disadvantaged individual
making up the 51% social and economic disadvantaged ownership in the applicant
firm must submit a signed, notarized statement of personal net worth, with
appropriate supporting documents. If the personal net worth statement exceeds
$750,000, the individual's presumption of economic disadvantage is rebutted,
the individual is no longer eligible for participation in the DBE program
and cannot regain eligibility.
(5)
Certification categories.
(A)
Schedule A. This category includes, but is not limited
to, trucking firms, manufacturers, regular dealers, construction firms, general
contractors, franchisees or licensees, and specialty contractors. A firm may
apply for DBE status using the Schedule A application form.
(i)
Construction firms, general contractors, trucking firms,
and specialty contractors. The department will certify a firm as a DBE if
it meets all other certification requirements set forth in Subpart D of 49
CFR Part 26. The firm will be certified for the specific types of work in
which the socially and economically disadvantaged owner(s) have the ability
to control the firm.
(ii)
Regular dealers. The department will certify a firm as
a DBE if it meets all other certification requirements set forth in Subpart
D of 49 CFR Part 26, engages in the purchase and sale of the products as its
principal business and in its own name, is not a broker or packager; and
(I)
owns, operates, or maintains a store, warehouse, or other
establishment in which materials, supplies, articles, or equipment required
for a contract are bought, kept in stock, and regularly sold or leased to
the public in the usual course of business; or
(II)
is a dealer in bulk items such as steel, cement, gravel,
stone, petroleum products, and asphalt products not kept in stock which are
distributed or delivered using equipment owned or operated by the firm (Any
supplementing of regular dealers' own distribution equipment shall be by a
long-term lease agreement and not on an ad hoc or contract-by-contract basis).
(iii)
DBE manufacturer. The department will certify a manufacturer
as a DBE if it:
(I)
meets all other certification requirements set forth in
Subpart D of 49 CFR Part 26; and
(II)
operates or maintains a factory or an establishment on-site
that produces materials, supplies, articles, or equipment to be used in a
contract.
(iv)
Franchisees or licensees. A business operating under a
franchise or license agreement will be certified by the department if it meets
all other certification requirements set forth in Subpart D of 49 CFR Part
26, and the franchiser or licenser is not affiliated with the franchisee or
licensee.
(B)
Schedule B--Joint venture.
(i)
A joint venture may apply for DBE status using the Schedule
B application form for a specific project.
(ii)
The department will certify the joint venture if:
(I)
one or more of the partners of the joint venture is a certified
DBE;
(II)
the DBE partner is responsible for a clearly defined portion
of the work to be performed; and
(III)
the DBE partner shares in the ownership, control, management
responsibilities, risks, and profits of the joint venture.
(C)
Schedule O--Disadvantaged truck owner-operator.
(i)
An independent owner-operator of one truck may apply for
disadvantaged truck owner-operator status using the Schedule O application
form.
(ii)
The department will certify a truck owner-operator who:
(I)
does not have an employee/employer relationship with a
prime contractor;
(II)
is eligible in accordance with Subpart D of 49 CFR Part
26;
(III)
proves ownership of the truck;
(IV)
proves ability to operate the truck, including, but not
limited to, maintaining a commercial driver's license; and
(V)
is responsible for maintaining the required insurance on
the truck.
(6)
On-site review.
(A)
The department will conduct an on-site review, in accordance
with 49 CFR §26.83, of any firm when:
(i)
it applies for DBE certification for the first time;
(ii)
certification is challenged by a third party; or
(iii)
the department questions its DBE eligibility.
(B)
If the review involves a certified firm, the firm's certification
remains valid unless the CSTB notifies the firm in writing that its certification
is suspended during the review.
(C)
If the on-site review indicates that the firm meets eligibility
standards, the firm will be certified or remain certified.
(D)
If the on-site review indicates that the firm does not
meet eligibility standards, the firm will be denied certification in accordance
with paragraph (8) of this subsection.
(7)
Certification renewals.
(A)
DBE certifications are valid for three years with an annual
affidavit required.
(B)
To be recertified as a DBE, a firm must submit a written
application in accordance with paragraph (2) of this subsection.
(C)
Renewals are subject to certification standards set forth
in Subpart D of 49 CFR Part 26.
(8)
Denial or withdrawal of certification.
(A)
An applicant who withdraws its application may reapply
at any time.
(B)
The department will notify an applicant in writing if certification
is to be denied and set forth reasons for denial.
(C)
An applicant may answer the department's notice of denial
within 15 working days from the date of the denial.
(i)
If the applicant does not answer within the 15-day period,
the denial of certification is final.
(ii)
If an applicant answers within the 15-day period, and
the response resolves eligibility deficiencies, the department will certify
the applicant.
(iii)
If an applicant answers within the 15-day period, but
does not resolve eligibility deficiencies, the department will deny certification.
(iv)
An applicant who has been denied certification must wait
12 months from the date of denial to reapply for certification.
(9)
Certification challenges.
(A)
Third party challenges.
(i)
A third party may challenge the eligibility of a certified
firm or a firm seeking to be certified as a DBE.
(ii)
A challenge must be made in writing, signed and dated
by the challenger, and set forth the factual basis for the challenge.
(iii)
After receiving a written challenge, the department will
determine if there is reason to believe that the challenged party is in fact
not eligible on the basis of the information provided by the challenging party.
(iv)
To the extent allowed by applicable law, the identity
of complainants will be kept confidential at the complainant's election. Complainants
will be advised that if confidentiality hinders the investigation, the result
may be closure of the investigation or dismissal of the proceeding or hearing.
(v)
The department will review the challenged firm's record,
any material provided by the firm and the complainant, and other available
information. All parties to the complaint must cooperate with the review.
(vi)
If the department determines that there is reasonable
cause to believe that the firm is ineligible, the department will provide
a written notice to the firm proposing to find the firm ineligible, setting
forth the reasons for the proposed determination, and offering the firm opportunity
for an informal hearing or an opportunity to present information and arguments
in writing.
(vii)
If the department determines that there is not reasonable
cause to believe that the firm is ineligible, the department will notify the
complainant in writing of the determination and the reason for it.
(B)
Department challenges. If the department receives information
on changes to a firm or other information that provides reasonable cause to
believe that the firm is ineligible:
(i)
the department will provide a written notice to the firm
proposing ineligibility and the reasons for it; and
(ii)
the firm will be given an opportunity for an informal
hearing or an opportunity to present information and arguments in writing.
(10)
Informal hearing.
(A)
A firm may request an informal hearing no later than 15
days from the date of notification of the department's determination to remove
its eligibility. The DBE certification remains valid during department proceedings.
(B)
The department will maintain a complete record of the hearing.
(C)
A department official who did not take part in the actions
leading to or seeking to remove the firm's eligibility will preside over the
hearing and make the decision regarding the firm's eligibility.
(D)
The department will not base a decision to remove eligibility
on a reinterpretation or changed opinion of information available at the time
of certification of the firm.
(E)
The department will provide the firm a written notice of
the decision and reasons for it. A copy of the notice will be sent to the
complainant or the operating administration that directed the proceeding.
(F)
Any party aggrieved by the department's determination may
appeal to USDOT in accordance with §9.57 of this subchapter.
(11)
Removal of eligibility. Neither a contractor
nor the department shall receive credit towards the contract or overall goal
when a proposed DBE contractor or subcontractor has its DBE eligibility removed
prior to contract execution. The contractor must substitute a DBE firm for
the ineligible firm or demonstrate that it has made a good faith effort to
do so, unless the ineligibility was caused solely by the ineligible firm having
exceeded the size standard.
(12)
DBE directory. The department will maintain and make
available to interested parties a directory of certified DBEs. The directory
will include a clearinghouse list of organizations that provide assistance
in the recruitment and placement of DBEs for the purpose of linking contractors
to minority and women subcontractors.
(e)
Contractor obligation. Department contracts involving the
expenditure of federal funds will include a contract provision addressing
DBE requirements.
(1)
No assigned goal. A contract without an assigned goal will
include provisions that:
(A)
encourage the use of minority business enterprises, and
disadvantaged business enterprises in subcontracting and material supply activities;
(B)
prohibit discrimination; and
(C)
provide a method for reporting race-neutral DBE participation.
(2)
Assigned goal. A contract with an assigned goal
will include a provision which sets forth the requirements of this paragraph.
(A)
Commitments. The following requirements must be satisfied
by the contractor as a condition of contract award.
(i)
Within the time specified in the contract or proposal,
the contractor must furnish a commitment agreement for each certified DBE
that will be used to meet the contract goal. The commitment agreement must
include:
(I)
a statement that the contractor intends to provide the
DBE the opportunity to perform the subcontract;
(II)
the items of work to be performed;
(III)
the quantities of work or material;
(IV)
the unit measure, unit price, and total cost for each
item;
(V)
the total amount of the DBE commitment;
(VI)
the original signatures of the contractor and the proposed
DBE; and
(VII)
if the commitment involves a DBE material supplier, an
explanation of the function to be performed and a description of any arrangements,
including joint check agreements, made with other material suppliers, manufacturers,
distributors, hauling firms, or freight companies.
(ii)
DBE prime contractors may receive credit toward the DBE
goal for work performed by their own forces and work subcontracted to DBEs.
A DBE prime contractor must make a good faith effort to meet the goals. In
the event a DBE prime contractor subcontracts to a non-DBE contractor, the
amount paid to the non-DBE contractor must be reported to the department.
(B)
Good faith efforts. If the contractor is unable to meet
the goal, the contractor must document good faith efforts taken to obtain
DBE participation in accordance with applicable contract provisions and pursuant
to Appendix A of 49 CFR Part 26.
(3)
Reporting.
(A)
The contractor must submit periodic reports at intervals
specified in the contract using a report form acceptable to the department
that includes, but is not limited to, identification of the DBE by name and
vendor number. The report must indicate the actual amount paid to each DBE.
The report must include the amounts paid in accordance with the DBE commitment
as outlined in subsection (e)(2)(A) of this section and any race neutral participation.
The report will also include amounts paid by a DBE to non-DBE subcontractors
and haulers. The report must be submitted even if no payments were made during
the period being reported. When required by the department, the contractor
must attach proof of payment including, but not limited to, copies of canceled
checks.
(B)
The contractor must submit a final report in accordance
with the contract, using a form acceptable to the department which shows:
(i)
the total paid to each DBE; and
(ii)
if the contract goal is not met, a description of good
faith efforts taken in accordance with applicable contract provisions.
(4)
Credit for expenditures. A contractor awarded
a federal-aid contract will receive credit for payments made to a DBE firm
in accordance with 49 CFR §26.55.
(5)
Commercially useful function.
(A)
DBE subcontractors must perform a commercially useful function
required in the contract in order for payments to be credited toward meeting
the contract DBE goal. A DBE performs a commercially useful function when
it:
(i)
is responsible for a distinct element of the work of a
contract; and
(ii)
actually manages, supervises, and controls the materials,
equipment, employees, and all other business obligations attendant to the
satisfactory completion of contracted work.
(B)
The department may conduct an on-site review of a DBE performance
to determine that it is performing a commercially useful function as part
of its routine monitoring program or in response to information or allegations
that the DBE is not performing a commercially useful function.
(C)
If the department determines that a DBE firm is not performing
a commercially useful function under the contract, the department may:
(i)
suspend the DBE firm from the department's DBE program
for a period to be determined by the department;
(ii)
deny all credit if the prime contractor did the work itself
or directed another company to do the work, or deny credit from the time the
department determined and notified the prime contractor that the DBE did not
perform a commercially useful function;
(iii)
review DBE certification; and
(iv)
revoke DBE certification if an eligibility review indicates
that the firm does not meet the standards as described in subsection (d)(4)
of this section.
(D)
A DBE may appeal the department's determination to USDOT
pursuant to 49 CFR §26.89.
(6)
Subcontracting.
(A)
A DBE contractor or subcontractor may not subcontract more
than 70% of a federal-aid contract. The DBE shall perform not less than 30%
of the value of the contract work with:
(i)
assistance of employees employed and paid directly by the
DBE;
(ii)
employees leased from an employee leasing company as set
forth in 49 CFR §26.71(q); and
(iii)
equipment owned or rented directly by the DBE.
(B)
A contractor may not furnish work crews to a DBE subcontractor.
(C)
A DBE may lease equipment consistent with standard industry
practice. A DBE may lease equipment from the prime contractor if a rental
agreement, separate from the subcontract specifying the terms of the lease
arrangement, is approved by the department prior to the DBE starting the work.
(i)
If the equipment is of a specialized nature, the lease
may include the operator. If the practice is generally acceptable within the
industry, the operator may remain on the lessor's payroll. The operation of
the equipment shall be subject to the full control of the DBE, for a short
term, and involve a specialized piece of heavy equipment readily available
at the job site.
(ii)
For equipment that is not specialized, the DBE shall provide
the operator and be responsible for all payroll and labor compliance requirements.
(7)
Substitutions. A contractor must request
approval from the department to substitute another firm for a DBE firm listed
on an approved commitment.
(A)
A contractor must provide written justification for a request
to substitute a DBE firm, including, but not limited to, demonstrating that
the original firm is unable or unwilling to carry out the terms of the subcontract.
(B)
The department will contact the DBE to be displaced and
other parties as needed to determine if the DBE firm to be displaced is willing
and able to carry out the terms of the contract.
(i)
The term "unable" includes, but is not limited to:
(I)
a firm that does not have the resources and expertise to
finish the project;
(II)
a firm that substantially increases the time to complete
the project causing liquidated damages; and
(III)
a firm that creates a safety hazard.
(ii)
If the displaced firm is unwilling or unable to carry
out the terms of the subcontract, the department will notify the contractor
in writing within five working days of the request of its consent to the substitution.
The contractor must make a good faith effort to substitute another certified
DBE firm for the one being displaced if the cancellation of the DBE subcontract
results in the prime not meeting the contract goal.
(iii)
If the firm to be displaced is willing and able to carry
out the terms of the subcontract, the department will deny the substitution.
(C)
Any party aggrieved by the determination effecting the
substitution of subcontractors may avail itself of the complaint procedures
under §9.57 of this subchapter.
§9.54.Historically Underutilized Business (HUB) Program.
(a)
Applicability. The HUB program is applicable to contracts
relating to buildings, professional services, aviation, public transportation,
private consultant services, and purchases funded entirely with state and
local funds.
(b)
HUB goals. The commission will establish overall annual
HUB participation goals. Individual contract goals will be assigned as necessary
to achieve the overall goal.
(1)
Annual goals. The commission will establish annual agency
HUB participation goals making use of disparity studies, including the disparity
study described in Government Code, §2161.002(c) or its replacement,
as well as other relevant information. The department will make a good faith
effort to meet or exceed this annual goal.
(2)
Contract goals. Individual contracts are assigned
HUB goals based on the availability of qualified HUBs, work site location,
dollar value of the contract, and type of work items specified in the contract.
The department will assign individual contract goals for HUB participation
to cumulatively meet the annual HUB goals that are not being met through race-neutral
means.
(c)
Contractor obligation. Department contracts, as listed
in subsection (a) of this section, that are funded entirely with state and
local funds will include a contract provision addressing HUB requirements.
(1)
No assigned goal. A contract estimated to involve more
than $100,000 with available subcontracting opportunities, but without an
assigned goal, will include provisions requiring a HUB participation plan
as a condition of contract award. The plan will include the following information.
(A)
The names and vendor numbers of the HUBs that will be used
during the course of the contract.
(B)
The approximate dollar value expected to be paid to each
HUB.
(C)
When a contractor is unable to obtain HUB participation,
a description of the actions taken in an attempt to solicit HUB participation.
These actions may include, but are not limited to:
(i)
advertising in general circulation and trade association
media concerning subcontracting opportunities;
(ii)
contacting qualified HUBs and allowing sufficient time
for HUBs to participate effectively;
(iii)
dividing the contract work into reasonable portions in
accordance with standard industry practices;
(iv)
providing qualified HUBs with adequate information about
bonding, insurance, plans, specifications, scope of work, and the requirements
of the contract; and
(v)
contacting, for HUB referrals, available small business
community organizations, contractor groups, local, state, and federal business
assistance offices, and other organizations that provide support services
to HUBs.
(2)
Assigned goal. A contract with an assigned
goal will include provisions that will require the contractor to satisfy the
following stipulations as a condition of contract award.
(A)
Commitments. Within the time specified in the contract
or proposal, the contractor must furnish a commitment agreement for each certified
HUB that will be used to meet the contract goal. The commitment agreement
must include:
(i)
the items of work to be performed;
(ii)
the quantities of work or material;
(iii)
the unit measure, unit price, and total cost for each
item;
(iv)
the total amount of the HUB commitment;
(v)
the original signatures of the contractor and the proposed
HUB; and
(vi)
if the commitment involves a HUB material supplier, an
explanation of the function to be performed and a description of any arrangements,
including joint check agreements, made with other material suppliers, manufacturers,
distributors, hauling firms, or freight companies.
(B)
Good faith effort. If the contractor is unable to meet
the goal, the contractor must document the good faith efforts taken to obtain
HUB participation in accordance with applicable contract provisions. The department
will consider as good faith efforts all documented explanations that are submitted
and that describe a contractor's failure to meet a goal, including:
(i)
advertising in general circulation, trade association,
and/or minority/women focus media concerning subcontracting opportunities;
(ii)
providing written notice to at least five qualified HUBs
allowing sufficient time for HUBs to participate effectively;
(iii)
dividing the contract work into reasonable portions in
accordance with standard industry practices;
(iv)
documenting reasons for rejection or meeting with the
rejected HUB to discuss the rejection;
(v)
providing qualified HUBs with adequate information about
bonding, insurance, plans, specifications, scope of work, and the requirements
of the contract;
(vi)
negotiating in good faith with qualified HUBs; and
(vii)
using the services of available minorities and women,
community organizations, contractor groups, local, state, and federal business
assistance offices, and other organizations that provide support services
to HUBs.
(3)
Reporting.
(A)
The contractor must submit periodic reports at intervals
specified in the contract using a report form acceptable to the department
that includes, but is not limited to, identification of the HUB by name and
vendor number. The report must indicate the actual amount paid to each HUB.
The report must be submitted even if no payments were made during the period
being reported. When required by the department, the contractor must attach
proof of payment including, but not limited to, copies of canceled checks.
(B)
The contractor must submit a final report in accordance
with the contract, using a form acceptable to the department which shows the
total paid to each HUB.
(4)
Credit for expenditures. A contractor will receive
credit for all payments actually made to a HUB for work performed and costs
incurred in accordance with the contract, including all subcontracted work.
(5)
Subcontracting.
(A)
A HUB contractor or subcontractor may not subcontract more
than 75% of a contract. The HUB shall perform not less than 25% of the value
of the contract work with:
(i)
assistance of employees employed and paid directly by the
HUB;
(ii)
employees leased from a licensed employee leasing company;
and
(iii)
equipment owned or rented directly by the HUB.
(B)
A contractor may not furnish work crews to a HUB subcontractor.
(C)
A HUB may lease equipment consistent with standard industry
practice. A HUB may lease equipment from the prime contractor if a rental
agreement, separate from the subcontract specifying the terms of the lease
arrangement, is approved by the department prior to the HUB starting the work.
(i)
If the equipment is of a specialized nature, the lease
may include the operator. If the practice is generally acceptable within the
industry, the operator may remain on the lessor's payroll. The operation of
the equipment shall be subject to the full control of the HUB, for a short
term, and involve a specialized piece of heavy equipment readily available
at the job site.
(ii)
For equipment that is not specialized, the HUB shall provide
the operator and be responsible for all payroll and labor compliance requirements.
(d)
HUB certification.
(1)
The department and GSC operate under a memorandum of agreement
that allows GSC to recognize the department's certified DBE firms as HUB firms.
The GSC certifies businesses as HUBs using procedures set forth at Title 1,
Texas Administrative Code, §§111.11 et seq. A business denied HUB
certification though GSC's certification process may appeal the GSC determination
in accordance with procedures set forth at Title 1, Texas Administrative Code, §111.14
(relating to Protests). A business denied DBE/HUB certification through the
department's certification process may seek review of the denial as described
in §9.53(d)(8) and (10) of this subchapter.
(2)
The department will submit information regarding DBEs
who qualify as HUBs to GSC for certification.
(3)
A challenge regarding a firm's eligibility as a HUB
and based on the department's certification process must be submitted to the
department for resolution. A HUB firm whose certification is based on the
department's DBE certification will lose both certifications if found to be
ineligible as a DBE.
(4)
GSC maintains a directory of certified HUBs.
§9.55.Small Business Enterprise (SBE) Program.
(a)
Applicability. The SBE program is applicable to all highway
construction and maintenance contracts funded entirely with state and local
funds.
(b)
SBE goals. The commission will establish overall annual
SBE participation goals. Individual contract goals may be assigned as necessary
to achieve the overall goal.
(1)
Annual goals. The commission will establish annual agency
SBE contracting goals based on the availability of certified SBEs. The department
will make a good faith effort to meet or exceed this annual goal.
(2)
Contract goals. Individual contracts may be assigned
SBE goals based on the availability of qualified SBEs, work site location,
dollar value of the contract, and type of work items specified in the contract.
The department may assign individual contract goals for SBE participation
in state and locally funded highway construction and maintenance contracts
as necessary to cumulatively meet the annual SBE goals.
(c)
Contractor obligation. Department contracts, as listed
in subsection (a) of this section, that are funded entirely with state and
local funds will include a contract provision addressing SBE requirements.
(1)
A contract without an assigned goal, will include provisions
that:
(A)
encourage the use of historically underutilized businesses
and small business enterprises in subcontracting and material supply activities;
and
(B)
prohibit discrimination.
(2)
A contract with an assigned goal will include
provisions that will require the contractor to satisfy the following stipulations
as a condition of contract award.
(A)
Commitments. Within the time specified in the contract
or proposal, the contractor must furnish a commitment agreement for each certified
SBE that will be used to meet the contract goal. The commitment agreement
must include:
(i)
the items of work to be performed;
(ii)
the quantities of work or material;
(iii)
the unit measure, unit price, and total cost for each
item;
(iv)
the total amount of the SBE commitment; and
(v)
the original signatures of the contractor and the proposed
SBE.
(B)
Good faith effort. If the contractor is unable to meet
the SBE goal, the contractor must document the good faith efforts taken to
meet the SBE goal and to obtain SBE participation. The department will consider
as good faith efforts all documented explanations that are submitted and that
describe a contractor's failure to meet a SBE goal or obtain SBE participation,
including:
(i)
advertising in general circulation, trade association,
and/or minority/women focus media concerning subcontracting opportunities;
(ii)
providing written notice to at least five qualified SBEs
allowing sufficient time for SBEs to participate effectively;
(iii)
dividing the contract work into reasonable portions in
accordance with standard industry practices;
(iv)
documenting reasons for rejection or meeting with the
rejected SBE to discuss the rejection;
(v)
providing qualified SBEs with adequate information about
bonding, insurance, plans, specifications, scope of work, and the requirements
of the contract;
(vi)
negotiating in good faith with qualified SBEs, not rejecting
qualified SBEs who are also the lowest responsive bidder; and
(vii)
using the services of available minorities and women,
community organizations, contractor groups, local, state, and federal business
assistance offices, and other organizations that provide support services
to SBEs.
(3)
Reporting.
(A)
The contractor must submit periodic reports at intervals
specified in the contract using a report form acceptable to the department
that includes, but is not limited to, identification of the SBE by name and
vendor number. The report must indicate the actual amount paid to each SBE.
When required by the department, the contractor must attach proof of payment
including, but not limited to, copies of canceled checks.
(B)
The contractor must submit a final report in accordance
with the contract, using a form acceptable to the department which shows the
total paid to each SBE.
(4)
Credit for expenditures. A contractor will receive
credit for all payments actually made to a SBE for work performed and costs
incurred in accordance with the contract, including all subcontracted work.
(5)
Subcontracting.
(A)
A SBE contractor or subcontractor may not subcontract more
than 75% of a contract. The SBE shall perform not less than 25% of the value
of the contract work with:
(i)
assistance of employees employed and paid directly by the
SBE;
(ii)
employees leased from a licensed employee leasing company;
and
(iii)
equipment owned or rented directly by the SBE.
(B)
A contractor may not furnish work crews to a SBE subcontractor.
(C)
A SBE may lease equipment consistent with standard industry
practice. A SBE may lease equipment from the prime contractor if a rental
agreement, separate from the subcontract specifying the terms of the lease
arrangement, is approved by the department prior to the SBE starting the work.
(i)
If the equipment is of a specialized nature, the lease
may include the operator. If the practice is generally acceptable within the
industry, the operator may remain on the lessor's payroll. The operation of
the equipment shall be subject to the full control of the SBE, for a short
term, and involve a specialized piece of heavy equipment readily available
at the job site.
(ii)
For equipment that is not specialized, the SBE shall provide
the operator and be responsible for all payroll and labor compliance requirements.
(d)
SBE certification.
(1)
DBE/HUB eligibility. DBEs and HUBs are eligible as SBEs
for this program without submitting a SBE application if they meet the requirements
in paragraph (2)(B) and (C) of this subsection. Firms denied automatic SBE
certification under this subsection may appeal under the procedures described
in paragraph (6) of this subsection.
(2)
Non-DBE/HUB eligibility. Other firms seeking certification
as a SBE must submit an application to the department, on a form prescribed
by the department, affirming under penalty of perjury that the business qualifies
as a SBE.
(A)
If requested by the department, the applicant must provide
any and all materials and information necessary to demonstrate eligibility
as a SBE.
(B)
At least 51% of the assets and interest and/or classes
of stock and equitable securities must be owned by one or more persons who
are United States citizens or lawfully admitted permanent residents.
(C)
A person/business entity who intentionally applies as a
SBE for award of purchasing or public works contracts and who knowingly does
not meet the definition of a SBE commits a felony of the third degree.
(3)
Certification procedure. The department shall
certify the applicant as a SBE or provide the applicant with written justification
of its denial of certification within 90 days after the date the department
receives a satisfactorily completed application from the applicant.
(4)
Review and evaluation. The department will review
and evaluate applications. The department may reject an application if:
(A)
the application is not satisfactorily completed;
(B)
the applicant does not meet the requirements of the definition
of SBE;
(C)
the application contains false information; or
(D)
the applicant does not provide required information.
(5)
Certification renewals.
(A)
SBE certifications are valid for two years.
(B)
To be recertified as a SBE, a firm must submit a written
application in accordance with paragraph (2) of this subsection.
(6)
Denial or withdrawal of certification.
(A)
An applicant who withdraws its application may reapply
at any time.
(B)
The department will notify an applicant in writing if certification
is to be denied and will set forth reasons for the denial.
(C)
An applicant may answer the department's notice of denial
within 15 working days from the date of the denial.
(i)
If the applicant does not answer within the 15-day period,
the denial of certification is final.
(ii)
If an applicant answers within the 15-day period, and
the response resolves eligibility deficiencies, the department will certify
the applicant.
(iii)
If an applicant answers within the 15-day period, but
does not resolve eligibility deficiencies, the department will deny certification.
(7)
Certification challenges.
(A)
Third party challenges.
(i)
A third party may challenge the eligibility of a certified
firm or a firm seeking to be certified as a SBE.
(ii)
A challenge must be made in writing, signed and dated
by the challenger, and set forth the factual basis for the challenge.
(iii)
After receiving a written challenge, the department will
determine if there is reason to believe that the challenged party is in fact
not eligible on the basis of the information provided by the challenging party.
(iv)
To the extent allowed by applicable law, the identity
of complainants will be kept confidential at the complainant's election. Complainants
will be advised that if confidentiality hinders the investigation, the result
may be closure of the investigation.
(v)
The department will review the challenged firm's record,
any material provided by the firm and the complainant, and other available
information. All parties to the complaint must cooperate with the review.
(vi)
If the department determines that there is reasonable
cause to believe that the firm is ineligible, the department will provide
a written notice to the firm proposing to find the firm ineligible, setting
forth the reasons for the proposed determination, and offering the firm the
opportunity to present information and arguments in writing.
(vii)
If the department determines that there is not reasonable
cause to believe that the firm is ineligible, the department will notify the
complainant in writing of the determination and the reason for it.
(B)
Department challenges. If the department receives information
on changes to a firm or other information that provides reasonable cause to
believe that the firm is ineligible, the department will provide a written
notice to the firm proposing ineligibility and the reasons for it. The firm
will be given an opportunity to present information and arguments in writing.
(8)
SBE directory. The department will maintain and
make available to interested parties a directory of certified SBEs.
§9.56.Contract Compliance.
(a)
Monitoring. The department will monitor contractor compliance
by:
(1)
reviewing contractor reports; and
(2)
making on-site visits to the project and/or the offices
of a contractor or subcontractor.
(b)
Contractor representative. A contractor receiving a contract
with an assigned goal must designate an employee to serve as a DBE, HUB, or
SBE contact person during the contract. The contractor must inform the department
of the representative's name, title, and telephone number no later than five
days after the contract is signed. The DBE, HUB, or SBE representative is
responsible for submitting reports, maintaining records, and documenting good
faith efforts to use DBEs, HUBs, or SBEs.
(c)
Withholding or reducing payments. A contractor must not
withhold or reduce payments to any DBE, HUB, or SBE firm without a reason
that is accepted as standard industry practice.
(d)
Performance. A DBE, HUB, or SBE contractor or subcontractor
must comply with the terms of the contract or subcontract for which it was
selected. Work products, services, and commodities must meet contract specifications
whether performed by a contractor or subcontractor.
(e)
DBE, HUB, or SBE subcontractor termination. The contractor
must not terminate a DBE, HUB, or SBE subcontractor submitted on a commitment
agreement for a contract with an assigned goal without the prior written consent
of the department.
(f)
Records. A contractor must retain all records specified
in the contract provisions for three years after final payment is made under
the contract, or until any investigation, audit, examination, or other review
undertaken during the three years is completed. The records must be made available
to representatives of the department and other agencies for inspection, audit,
examination, investigation, or other review at all reasonable times during
the retention period.
(g)
Compliance conference. The following process is made available
to the contractor whenever a finding of noncompliance with DBE, HUB, or SBE
special provisions is made by the department. A contractor involved in a violation
may be given an opportunity to remedy the violation before the department
issues sanctions.
(1)
A letter will be sent to the contractor notifying the contractor
that it is not in compliance with the DBE, HUB, or SBE special provision in
the contract.
(2)
The contractor may respond in writing. If the written
response does not resolve the issues, the department will invite the contractor
to attend an informal compliance conference, within 15 calendar days from
the date of the written response, to discuss the issues.
(3)
The contractor will be given 15 calendar days from
the date of the conference to submit additional information to resolve the
issues.
(4)
The department will make a final determination regarding
compliance within 15 calendar days from the conference or from receipt of
any additional information.
(5)
If a determination of noncompliance has been made
by the department, a contractor will be given an opportunity to submit a voluntary
written corrective action plan to correct the violations.
(6)
When a contractor fails to take corrective actions,
the department may issue a notice to the contractor requiring the contractor
to:
(A)
show cause for noncompliance; and
(B)
provide reasons why enforcement proceedings should not
be instituted.
(7)
The department may impose sanctions, pursuant
to subsection (h) of this section, for failure to show cause why enforcement
proceedings should not be instituted.
(h)
Sanctions.
(1)
The department may issue sanctions to a contractor who
does not comply with contract requirements.
(2)
If a successful bidder for a contract does not furnish
the required DBE, HUB, or SBE information during the time period specified
in the DBE, HUB, or SBE special provision, the department may declare the
contractor to be in default and retain the proposal guaranty as liquidated
damages in accordance with §9.18 of this title (relating to After Contract
Award).
(3)
The department will impose sanctions if the contractor:
(A)
is found to have discriminated against a DBE, HUB, or SBE
firm;
(B)
has failed to meet the contract DBE, HUB, or SBE contract
goal and has failed to demonstrate a good faith effort to meet the goal; or
(C)
has not kept DBE, HUB, or SBE commitments for those projects
assigned a goal and the department has not approved good faith efforts or
a substitution of the DBE, HUB, or SBE firm.
(4)
The department may impose any of the following
sanctions:
(A)
letter of reprimand;
(B)
liquidated damages computed up to the amount of goal dollars
not met;
(C)
contract termination; and/or
(D)
other remedies available by law.
(5)
Factors to be considered in issuing sanctions
include, but are not limited to:
(A)
the magnitude and the type of the offense;
(B)
the degree of the contractor's culpability;
(C)
any steps taken to rectify the situation;
(D)
the contractor's record of performance on other projects
including, but not limited to:
(i)
annual DBE, HUB, or SBE participation over DBE, HUB, or
SBE goals;
(ii)
annual DBE, HUB, or SBE participation on projects without
goals;
(iii)
number of complaints the department has received from
DBEs, HUBs, or SBEs; and
(iv)
the number of times the contractor has been previously
sanctioned by the department pursuant to this section; and
(E)
whether a contractor falsified, misrepresented, or withheld
information.
(6)
A contractor may appeal the department's sanction
pursuant to §9.57 of this subchapter.
§9.57.Business Opportunity Programs Complaints.
(a)
Purpose. The purpose of this section is to provide a procedure
for an aggrieved person to file a complaint concerning the business opportunity
programs. This section does not apply to:
(1)
subcontractor claims for additional payments and time extensions;
or
(2)
a discrimination complaint made against a department
employee since that type of complaint is handled in accordance with the department's
Human Resources Manual.
(b)
Federal-aid contracts. A complaint related to a federally-funded
contract or a DBE certification complaint may be filed directly with the U.S.
Department of Transportation at any time within 180 days of the date:
(1)
of an alleged discrimination or a violation of the DBE
Program; or
(2)
on which a continuing course of conduct in violation
of the DBE program was discovered.
(c)
Program complaints. An aggrieved person or firm may file
a written complaint that there has been a violation of a business opportunity
program, including a discrimination claim. A complaint may also be filed on
behalf of another person or any specific class of individuals.
(1)
Filing. The complaint must be made in writing to the director
within 90 calendar days:
(A)
of an alleged discrimination or a violation of the business
opportunity program; or
(B)
after the date on which a continuing course of conduct
in violation of a business opportunity program was discovered.
(2)
Review and investigation.
(A)
CSTB will review the complaint and notify the complainant:
(i)
of the reasons an investigation is warranted; or
(ii)
that an investigation is not necessary.
(B)
If the complaint is made against the Construction Division
or a section of the Construction Division, the executive director will appoint
another division or office to review and investigate the complaint.
(3)
Determination and conciliation.
(A)
CSTB or the reviewing division or office will forward the
written findings to the complainant and respondent.
(B)
If the finding confirms the complaint, CSTB or the reviewing
division or office will meet with the complainant and respondent to discuss
a conciliation agreement.
(C)
If the parties concur, CSTB or the reviewing division or
office will prepare a conciliation agreement for execution, and monitor the
agreement to completion.
(D)
If the parties do not agree to a conciliation agreement,
the director or the director of the reviewing division or office will make
a decision regarding corrective action needed and monitor the corrective action,
if any.
(d)
Appeal.
(1)
Appeal to U.S. Department of Transportation.
(A)
A firm may file an appeal with U.S. Department of Transportation
at any time pursuant to the process outlined in:
(i)
49 CFR §26.89, if a firm believes that it has been
wrongly denied certification under §9.53(d) of this subchapter;
(ii)
49 CFR §26.89, if a firm has challenged certification
under §9.53(d)(9) of this subchapter; or
(iii)
49 CFR §26.103, if a firm alleges discrimination
on a federally-funded contract or is aggrieved by a department determination
related to the DBE program.
(B)
The appeal must be made in writing, signed and dated, no
later than 90 days after the date of the department's final decision. The
appeal under 49 CFR §26.103 must be made in writing, signed, and dated,
no later than 180 days after the date of the offense or the date on which
a continuing course of conduct in violation was discovered. The Secretary
of Transportation may extend the time for filing or waive the time limit in
the interest of justice.
(C)
The outcome of the U.S. Department of Transportation appeal
process is final.
(2)
Department appeals.
(A)
A final determination or a sanction issued pursuant to §9.56
of this subchapter may be appealed to the executive director within 10 days
after receiving notice of final determination or sanction. If an appeal is
not timely filed, the determination or sanction is final and further administrative
appeal will be barred.
(B)
The executive director will consider an appeal if the appealing
party identifies:
(i)
new information or witnesses that, if considered, might
have changed the outcome;
(ii)
harmful procedural error by the department which, had
it not been made, could have led to a different conclusion; or
(iii)
a finding contrary to the evidence, department policy,
or law.
(C)
The executive director will:
(i)
review the sanction or determination;
(ii)
consult with witnesses and review evidence, if necessary;
and
(iii)
review the appealing party's written rebuttal of the
proposed sanction or determination.
(D)
The executive director will give written notice of the
determination.
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 April 3, 2000.
TRD-200002345
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
Subchapter E. FEDERAL, STATE, AND LOCAL PARTICIPATION
43 TAC §15.56
The Texas Department of Transportation proposes amendments
to §15.56, concerning local financing of highway improvement projects
on the state highway system.
EXPLANATION OF PROPOSED AMENDMENTS
Transportation Code, §222.051 authorizes a local government to finance
the construction of an approved project for the state highway system and allows
the department to reimburse the local government if funds become available.
Pursuant to this authority, the commission has adopted §15.56 to specify
the conditions under which a local government may finance the construction
of an approved highway improvement project, and the conditions under which
the commission may approve reimbursement of the local government's contribution.
This section also prescribes the conditions under which a local government
may finance the construction of a service project.
Less than half of the identified highway improvement needs of the state
are currently being met. Cost participation is required of local governments
in order to make the most efficient use of scarce state highway funding. In
some instances, a local government desires to fully fund a highway improvement
project on the state highway system in order to expedite completion of the
project.
In other cases, new development near a state highway may result in the
need for a service project to improve access to the development.
In both of these cases, the current rules require commission approval of
any request by a local government to fund a project, regardless of the cost
of the project or whether reimbursement is desired by the local government.
In order to streamline the approval process for a project to be fully funded
by other entities, the amendments as proposed will delegate approval authority
from the commission to the department unless the local government seeks reimbursement
of its contribution.
Amendments to §15.56(d)(1) authorize the executive director to approve
requests by a local government to finance an approved highway improvement
project when no reimbursement is sought. The paragraph describes the factors
to be considered by the executive director when deciding whether to approve
such a request.
Amendments to §15.56(d)(2) describe the approval authority when local
governments submit a request to finance a service project. To ensure the appropriate
level of responsibility for approval of a request to finance a service project,
the district engineer would be able to approve service projects with an estimated
total cost of less than $300,000. Projects with an estimated cost of $300,000
or more would require the approval of the executive director. The amount of
$300,000 was selected to be consistent with 43 TAC §9.15 (relating to
highway improvement contracts) which allows for bids for contracts with an
engineer's estimate of less than $300,000 to be opened and read at a public
meeting conducted by the district engineer. This section also describes the
factors to be considered by the executive director or district engineer when
deciding whether to approve such a request.
FISCAL NOTE
James M. Bass, Director, Finance Division, has determined that for the
first five-year period the amended section is in effect, there will be no
fiscal implications for state or local governments as a result of enforcing
or administering the amended section. There are no anticipated costs for persons
required to comply with the section as proposed.
Robert L. Wilson, Director, Design Division, has certified that there will
be no significant impact on local economies or overall employment as a result
of enforcing or administering the amended section.
PUBLIC BENEFIT
Mr. Wilson has also determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
or administering the amended section will be to maximize the use of scarce
state and local transportation funding, and to ensure that projects funded
by local governments are developed as expeditiously as possible, thereby improving
the efficiency of the state's transportation system, and maximizing the safety
of the traveling public. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Robert
L. Wilson, 125 East 11th Street, Austin, Texas, 78701-2483. The deadline for
receipt of comments is 5:00 p.m. on May 15, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
No statutes, articles, or codes are affected by these proposed amendments.
§15.56.Local Financing of Highway Improvement Projects on the State Highway System.
(a)-(b)
(No change.)
(c)
Request. A local government may request approval from the
department
[
(d)
Project approval.
(1)
Approved highway improvement projects.
(A)
Approval authority. The executive
director is authorized to approve requests to finance an approved highway
improvement project, based on the considerations in subparagraph (B) of this
paragraph.
(B)
[
(i)
[
(ii)
[
(iii)
[
(iv)
[
(v)
[
(vi)
[
(2)
Service Projects.
(A)
Approval authority. A request
to finance a service project may be approved by the following authority, based
on the considerations in subparagraph (B) of this paragraph:
(i)
district engineer for projects with a total
cost estimated at less than $300,000;
(ii)
executive director for projects with a total
cost estimated at $300,000 or more.
(B)
Considerations. In approving
a request to finance a service project, the executive director or district
engineer will consider:
(i)
local transportation needs;
(ii)
regional economic impact;
(iii)
safety implications of the proposed project;
(iv)
environmental impact and any requirements for
environmental mitigation; and
(v)
any other considerations relating to the benefit
to the state, the traveling public, and the operations of the department.
(C)
Indirect Costs.
For service projects,
a local government may request a waiver from the executive director for the
collection of indirect costs. In approving the local government's request
for a waiver, the executive director will consider:
(i)
[
(ii)
[
(iii)
[
(iv)
[
(3)
Agreement and conditions.
(A)
If the
department
[
(B)-(D)
(No change.)
(e)
Reimbursement approval.
(1)
(No change.)
(2)
Agreement. If approved for reimbursement under this
subsection, the department will enter into an agreement with the local government
as specified in §15.52 of this
subchapter
[
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 April 3, 2000.
TRD-200002346
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
Subchapter A. MOTOR VEHICLE CERTIFICATES OF TITLE
43 TAC §17.3
The Texas Department of Transportation proposes amendments
to §17.3, concerning motor vehicle certificates of title.
EXPLANATION OF PROPOSED AMENDMENTS
The 76th Legislature, 1999, enacted House Bill 381, which amended Transportation
Code, §501.031, to broaden the ability of a motor vehicle owner to enter
into a rights of survivorship agreement for transfer of ownership of a motor
vehicle and the requirements for such an agreement. The 76th Legislature also
enacted House Bill 2176, which amended Transportation Code, §501.115,
to clarify the amount of time a lienholder has to deliver a discharge of lien
to a vehicle owner or the owner's designee after receipt of a final payment.
As a result of the legislative amendments made to Transportation Code, Chapter
501, the department has determined that the information contained in §17.3(c)(2)(B)
is unnecessary because the information is now clearly set forth in Transportation
Code, Chapter 501, and certain information contained in §17.3(h) is no
longer correct.
Subsections (a) and (b) of §17.3 are amended to correct cross-references,
to enhance readability and clarity, and to improve grammar and consistency.
Section 17.3(c) is amended by deleting most of the existing language because
it is no longer correct. The criteria and requirements for rights of survivorship
agreements for a motor vehicle are sufficiently addressed in Transportation
Code, §501.115, with one exception. A new sentence is added to clarify
that rights of survivorship agreements may only be executed by natural persons
acting in an individual capacity. Thus, corporations, partnerships, trusts,
and other artificial or joint undertakings may not execute rights of survivorship
agreements. This clarification is consistent with the apparent legislative
intent underlying House Bill 381. Additional changes are made to enhance readability
and clarity and to improve grammar and consistency.
Subsections (d), (e), (f), and (g) are amended to enhance readability and
clarity and to improve grammar and consistency.
Section 17.3(h) is amended by eliminating the specific time period within
which a lienholder must deliver a release of lien after receipt of a final
payment. This information is unnecessary because Transportation Code, §501.031,
clearly provides the required time period. Additional changes are made to
enhance readability and clarity.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each year
of the first five-year period the section as proposed is in effect, there
will be no significant fiscal implications for state or local governments
as a result of enforcing or administering the section. There are no anticipated
economic costs to persons required to comply with the section as proposed.
Jerry L. Dike, Director, Vehicle Titles and Registration Division, has
certified that there will be no impact on local economies or overall employment
as a result of enforcing or administering the proposed amendments.
PUBLIC BENEFIT
Mr. Dike has also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated as a
result of enforcing and administering the amendments and compliance with the
section will be to provide current and accurate information regarding rights
of survivorship agreements and discharge of liens to motor vehicle owners
of this state. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Jerry L.
Dike, Director, Vehicle Titles and Registration Division, 125 East 11th Street
Austin, Texas, 78701-2483. The deadline for receipt of written comments is
5:00 p.m. on May 15, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §501.131, which authorizes
the department to adopt rules governing the issuance of motor vehicle certificates
of title.
No statutes, articles, or codes are affected by these proposed amendments.
§17.3.Motor Vehicle Certificates of Title.
(a)
Certificates of
title
[
(1)
Motorcycles, motor-driven cycles, and mopeds.
(A)
The title requirements of a motorcycle are the same requirements
prescribed for any motor vehicle.
(B)
A motorcycle, motor-driven cycle, or [
(C)
A vehicle
that
[
(D)
A motor installed on a bicycle must be certified by the
Department of Public Safety before the vehicle may be classified as a moped.
(2)
Farm vehicles.
(A)
The term motor vehicle does not apply to implements of
husbandry
, which
[
(B)
Farm tractors owned by agencies exempt from registration
fees in accordance with Transportation Code,
§502.202, are required
to be titled and registered with "Exempt" license plates issued in accordance
with Transportation Code, §502.201.
(C)
Farm
[
(3)
Exemptions from title. Vehicles registered with
the following distinguishing license plates may not be titled under [
(A)
vehicles eligible for machinery license plates in accordance
with Transportation Code, §502.276, and §502.278;
(B)
vehicles eligible for farm trailer license plates in accordance
with Transportation Code, §502.163; and
(C)
vehicles eligible for permit license plates in accordance
with Transportation Code, §§502.351-502.353.
(4)
Trailers, semitrailers, and house trailers. Owners
of trailers and semitrailers must apply for and receive a Texas
certificate
of title
[
(A)
In the absence of a manufacturer's rated carrying capacity
for
a trailer or semitrailer
[
(B)
Mobile office trailers, mobile oil field laboratories,
and mobile oil field bunkhouses are not designed as
dwellings
[
(C)
House trailer-type vehicles and camper trailers must meet
the following criteria in order to be titled.
(i)
A house trailer-type vehicle designed for living quarters
and
that
[
(ii)
A house trailer-type vehicle
that
[
(iii)
A camper trailer must be titled as a house trailer and
must be registered with travel trailer license plates.
(b)
Initial application for
certificate of title
[
(1)
Place of application. When motor vehicle ownership is transferred,
except as provided by
Transportation Code, Chapters 501 and 502 and by
[
(2)
Information to be included on application. An applicant
for an initial certificate of title
must
[
(A)
motor vehicle description
including, but
[
(i)
year;
(ii)
make;
(iii)
model;
(iv)
identification number;
(v)
body style;
(vi)
manufacturer's rated carrying capacity in tons for commercial
motor vehicles; and
(vii)
empty weight;
(B)
license plate number, if the motor vehicle is subject to
registration under Transportation Code, Chapter 502;
(C)
odometer reading and brand, or the word "exempt" if the
motor vehicle is exempt from federal and state odometer disclosure requirements;
(D)
previous owner's name and city and state of residence;
(E)
name and complete address of the applicant;
(F)
name and mailing address of any lienholder and the date
of lien, if applicable;
(G)
signature of the seller of the motor vehicle or the seller's
authorized agent and the date the certificate of title application was signed;
(H)
signature of the applicant or the applicant's authorized
agent and the date the certificate of title application was signed; and
(I)
applicant's social security number, if the application
is filed in a county in which the department's automated registration and
title system has been implemented, with the following exceptions:
(i)
an application
[
(ii)
an individual applicant who does not have a social
security number
[
(3)
Serial
number
[
(4)
Accompanying documentation. The certificate of title
application
must
[
(A)
evidence of vehicle ownership, as described in subsection
(c) of this section;
(B)
odometer disclosure statement properly executed by the
seller of the motor vehicle and acknowledged by the purchaser, if applicable;
(C)
the identification certificate required by Transportation
Code, §548.256, and Transportation Code, §501.030, if the vehicle
was last registered in another state or country; and
(D)
release of any liens
, provided that if any liens are
not released, they will
[
(i)
An out-of-state lien recorded on out-of-state evidence
as described in subsection (c) of this section cannot be carried forward to
a Texas title when there is a transfer of ownership, unless a release of lien
or authorization from the lienholder is attached.
(ii)
A lien recorded on out-of-state evidence as described
in subsection (c) of this section is not required to be released when there
is no transfer of ownership from an out-of-state title and the same lienholder
is being recorded on the Texas application as is recorded on the out-of-state
title.
(c)
Evidence of motor vehicle ownership. Evidence of motor
vehicle ownership properly assigned to the applicant
must
[
(1)
New motor vehicles. A manufacturer's certificate of origin
assigned by the manufacturer or the manufacturer's representative or distributor
to the original purchaser
is
[
(A)
The manufacturer's certificate of origin
must
[
(i)
motor vehicle description
including, but
[
(ii)
the manufacturer's rated carrying capacity in tons when
the manufacturer's certificate of origin is invoiced to a
licensed
Texas
motor vehicle
dealer [
(iii)
a statement identifying a motor vehicle designed by the
manufacturer for off-highway use only.
(B)
When a motor vehicle manufactured in another country is
sold directly to a
person other than a manufacturer's
[
(2)
Used motor vehicles.
(A)
Evidence of ownership. A certificate of title issued by
the department, a certificate of title issued by another state if the motor
vehicle was last registered and titled in another state, or other evidence
of ownership
must
[
(B)
Rights of survivorship. A signed "rights of survivorship"
agreement
may be executed by a natural person acting in an individual
capacity in accordance with Transportation Code, §501.031
[
(3)
Imported motor vehicles. An application for certificate
of title for a motor vehicle last registered or titled in a foreign country
must
[
(A)
the motor vehicle registration certificate or other verification
issued by a foreign country
reflecting
[
(B)
for motor vehicles that are less than 25 years old,
proof of compliance with United States Department of Transportation
(USDOT)
regulations
, including, but
[
(i)
the original bond release letter with all attachments advising
that the motor vehicle meets federal motor vehicle safety requirements or
a letter issued by the
USDOT
[
(ii)
a legible copy of the motor vehicle importation form validated
with an original United States Customs stamp, date, and signature as filed
with the
USDOT
[
(iii)
a verification of motor vehicle inspection by United
States Customs certified on
its
[
(iv)
a written confirmation that a physical inspection of the
safety certification label has been made by the department and that the motor
vehicle meets United States motor vehicle safety standards;
(v)
the original bond release letter, [
(vi)
verification from the vehicle manufacturer on
its
[
(4)
Alterations to documentation. An alteration
to a registration receipt, certificate of title, manufacturer's certificate,
or other evidence of ownership
constitutes
[
(A)
Altered lien information on any surrendered evidence of
ownership requires a release from the original lienholder or a statement from
the proper authority of
the
[
(B)
A strikeover
that
[
(C)
A
corrected
[
(i)
incomplete or altered vehicle identification number;
(ii)
alteration or strikeover of the vehicle's year model;
(iii)
alteration or strikeover to the body style, or omitted
body style on the manufacturer's certificate of origin; or
(iv)
alteration or strikeover to the manufacturer's rated carrying
capacity.
(D)
A Statement of Fact may be requested to explain errors,
corrections, or conditions from which doubt does or could arise concerning
the legality of any instrument. A Statement of Fact will be required in all
cases:
(i)
where the date of sale on an assignment has been erased
or altered in any manner; or
(ii)
of alteration or erasure on a Dealer's Reassignment of
Title.
(d)
Certificate of title issuance. Upon receiving a completed
application for certificate of title, along with the title application fee
of $13 and any other applicable fees, the department or its designated agent
will process and issue a certificate of title.
(1)
Negotiable titles. The department will issue and mail or
deliver negotiable titles, marked "Original," to the applicant or, in the
event that there is a lien disclosed in the application, to the first lienholder.
(2)
Non-negotiable titles. The department will issue non-negotiable
titles, which may be used only as evidence of title and may not be used to
transfer any interest or ownership in a motor vehicle[
(A)
In
[
(B)
In
[
(e)
Replacement of certificate of title. If a certificate of
title is lost or destroyed, the owner or lienholder may obtain a certified
copy of that title upon proper application with the department in accordance
with [
(1)
Certified copy.
(A)
Applicant who is a vehicle owner, lienholder, or verified
agent.
(i)
If the applicant requests that a certified copy be issued
before the fourth business day following application, the application must
be made in person and the applicant must present valid personal identification,
including a photograph, issued by an agency of this state or of the United
States.
(ii)
If the applicant is an agent, the applicant must present
verifiable proof that he or she is an agent of the owner or lienholder. This
proof may include a power of attorney, business card, written authorization
on company letterhead, or employee identification.
(B)
Applicant other than the vehicle owner, lienholder, or
verified agent.
(i)
The department will not issue a certified copy of a certificate
of title
to an applicant other than the vehicle owner, lienholder, or
verified agent
before the fourth business day after application has
been made.
(ii)
An applicant other than the vehicle owner, lienholder,
or verified agent may only apply for a certified copy of a certificate of
title by mail
[
(2)
Certified copy designation. A certified
copy of an existing certificate of title will be marked "Certified Copy" until
[
(3)
Fees. The fee for obtaining a certified copy of a
certificate of title
is
[
(4)
Recovery of lost title. In the event that the "Duplicate
Original" or "Original" certificate of title is recovered, the owner shall
relinquish the certified copy to the department for cancellation [
(f)
Department notification of second hand vehicle transfers.
A transferor of a motor vehicle may voluntarily make written notification
to the department of the sale of the vehicle, in accordance with Texas Civil
Statutes, Article 6687-5 as amended, and this subsection.
(1)
Notification form. The department
will
[
(A)
vehicle identification number of the vehicle;
(B)
license plate number issued to the vehicle;
(C)
full name and address of the transferor;
(D)
full name and address of the transferee;
(E)
date the transferor delivered possession of the vehicle
to the transferee;
(F)
signature of transferor; and
(G)
date the transferor signed the form.
(2)
Records. Upon receipt of written notice of transfer
and a $5.00 fee from the transferor of a motor vehicle, the department
will
[
(3)
Ownership of transferred vehicle. After the date of
the transfer of the vehicle as shown in the department records, the transferee
of the vehicle is rebuttably presumed to be:
(A)
the owner of the vehicle; and
(B)
subject to civil and criminal liability arising out of
the use, operation, or abandonment of the vehicle, to the extent that ownership
of the vehicle subjects the owner of the vehicle to criminal or civil liability
under another provision of the law.
(4)
Certificate of title issuance. A certificate
of title may not be issued in the name of a transferee until
the
[
(g)
Suspension, revocation, or refusal to issue Certificates
of Title.
(1)
Grounds for title suspension, revocation, or refusal to
issue. The department will refuse issuance of a certificate of title, or having
issued a certificate of title, suspend or revoke the certificate of title
if the:
(A)
application contains any false or fraudulent statement;
(B)
applicant has failed to furnish required information requested
by the department;
(C)
applicant is not entitled to the issuance of a certificate
of title under [
(D)
department has reasonable
grounds
[
(E)
registration of the vehicle stands suspended or revoked;
or
(F)
required fee has not been paid.
(2)
Contested case procedure. Any person who has
an interest in a motor vehicle to which the department has refused to issue
a certificate of title or has suspended or revoked the certificate of title
may contest
the department's decision
[
(A)
Hearing. Any person who has an interest in a motor vehicle
to which the department has refused to issue a certificate of title or has
suspended or revoked the certificate of title may apply to the designated
agent of the county in which they reside for a hearing. At the hearing the
applicant and the department may submit evidence, and a ruling of the designated
agent will bind both parties. An applicant wishing to appeal the ruling of
the designated agent may do so to the County Court of the county in which
the applicant resides.
(B)
Alternative to hearing. In lieu of a hearing, any person
who has an interest in a motor vehicle to which the department has refused
to issue a certificate of title or has suspended or revoked a certificate
of title may file a bond with the department, in an amount equal to one and
one-half times the value of the vehicle as determined by the department, and
in a form prescribed by the department. Upon the filing of the bond, the department
may issue a certificate of title. The bond shall expire three years after
the date it becomes effective and
will
[
(h)
Discharge of lien. A lienholder must provide the owner,
or the owner's designee, a discharge of the lien
after
[
(1)
the certificate of title including an authorized signature
in the space reserved for release of lien;
(2)
a release of lien form prescribed by the department
, with the form filled out to include
[
(A)
certificate of
title or document
[
(i)
year;
(ii)
make;
(iii)
vehicle identification number; and
(iv)
license plate number, if the motor vehicle is subject
to registration under Transportation Code, Chapter 502;
(B)
printed name of lienholder;
(C)
signature of lienholder or an authorized agent;
(D)
printed name of
the
authorized agent if
the
agent's signature is shown;
(E)
telephone number of lienholder; and
(F)
date signed by
the
lienholder;
(3)
signed and dated correspondence submitted on
company letterhead that includes:
(A)
a statement that the lien has been paid;
(B)
a description of the vehicle as indicated in paragraph
(2)(A) of this subsection;
(C)
a certificate of
title or document
[
(D)
lien information;
(4)
any out-of-state prescribed release of lien form
, including an executed release on a lien entry form
[
(5)
out-of-state evidence with the word "Paid" or "Lien
Satisfied" stamped or written in longhand on the face, followed by
the
name of
the
lienholder, countersigned or initialed by an
agent, and dated; or
(6)
original
security agreements
or copies
of
the
original security agreements if
the originals or copies
[
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 April 3, 2000.
TRD-200002347
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
43 TAC §17.22
The Texas Department of Transportation proposes amendments
to §17.22 concerning motor vehicle registration.
EXPLANATION OF PROPOSED AMENDMENTS
The 76th Legislature, 1999, enacted House Bill 89, which amended Transportation
Code, §502.176 to allow for a change in a motor vehicle's registration
renewal month if the vehicle's registration was renewed late for a valid reason.
The 76th Legislature, 1999, also enacted House Bill 924, which amended Transportation
Code, §502.407(a), to change the grace period for the expiration of motor
vehicle registration from five days to five working days. The 76th Legislature,
1999, also enacted House Bill 1743, which added Transportation Code, §502.0025,
to permit military personnel, under specified circumstances, to operate a
vehicle without Texas registration for up to 90 days after returning from
an overseas assignment. The department also desires to clarify the department's
authority with regard to objectionable numbering on license plates.
Subsections (a), (b), and (c) of §17.22 are amended to correct cross-references,
enhance readability and clarity, and improve grammar and consistency.
New subsection (c)(3) is added to permit the department to refuse to issue
license plate numbers that conflict with the department's numbering system,
that are obscene or objectionable, or that are currently issued to another
owner. This standard is also found in §17.28(c)(8)(C), where it applies
only to personalized plates. The amendment also clarifies that the department
will cancel a plate that has already been issued if it meets the standards
of this subsection. This amendment expands the department's authority to all
license plates and makes clear that the department will cancel or not issue
any license plate number, whether or not it is a personalized plate, if the
number conflicts with the department's numbering system, is obscene or objectionable,
or is currently issued to another owner.
Former subsection (c)(3) is renumbered as new subsection (c)(4).
Subsection (d) is amended to enhance readability and clarity and improve
grammar and consistency.
Subsection (d)(5)(A) is amended to conform to House Bill 924, which amended
Transportation Code, §502.407(a), by changing the grace period for the
expiration of motor vehicle registration from five days to five working days.
Subsections (d)(5)(B), (C), (D), and (E) are amended to conform to House
Bill 89, which amended Transportation Code, §502.176 to allow for a change
in a motor vehicle's registration renewal month if a county tax assessor-collector
determined that the vehicle's registration was renewed late for a valid reason.
House Bill 89 also clarified the applicability of the 20% delinquency penalty
and authorized the prorating of certain annual registration fees.
New subsection (d)(5)(F) is added to comply with the requirement in House
Bill 89 that the department adopt rules to govern the delinquent renewal of
a motor vehicle registration that is filed directly with the department. The
new language adopts the statutory standards for determining if the reason
for a late renewal is valid and implements the same procedure as if the renewal
were filed with a county tax assessor-collector.
Subsections (e) and (f) are amended to correct cross-references, to enhance
readability and clarity, and to improve grammar and consistency.
Subsection (f) is also amended to provide an exception to the general rule
that out-of-state vehicles must be registered in Texas within 30 days of being
brought into the state. This amendment conforms to House Bill 1743, which
added Transportation Code, §502.0025, to permit military personnel, under
specified circumstances, to operate a vehicle without Texas registration for
up to 90 days after returning from an overseas assignment.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each year
of the first five-year period the section as proposed is in effect, there
will be no significant fiscal implications for state or local governments
as a result of enforcing or administering the section.
Jerry L. Dike, Director, Vehicle Titles and Registration Division, has
certified that there will be no impact on local economies or overall employment
as a result of enforcing or administering the proposed amendments.
PUBLIC BENEFIT
Mr. Dike has also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated as a
result of enforcing or administering the amendments will be to allow those
registrants whose registration is delinquent, with a valid reason, to register
their vehicle for 12 months and not be subject to a 20% penalty. There are
no anticipated economic costs to individuals who are required to comply with
the section as proposed. There will be no effect on small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Jerry L.
Dike, Director, Vehicle Titles and Registration Division, 125 East 11th Street,
Austin, Texas 78701-2483. The deadline for receipt of comments is 5:00 p.m.
on May 15, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §502.009, which authorizes
the department to adopt rules governing the issuance of motor vehicle registration.
No statutes, articles, or codes are affected by the proposed amendments.
§17.22.Motor Vehicle Registration.
(a)
Registration. Unless otherwise exempted by law or this
chapter, a vehicle to be used upon the public highways of this state must
be registered in accordance with Transportation Code, Chapter 502 and the
provisions of this section.
Transportation Code, Chapter 501, Subchapter
E
[
(b)
Initial application for vehicle registration.
(1)
An applicant for initial vehicle registration must file
an application on a form prescribed by the department. The form
will
[
(A)
the signature of the owner;
(B)
the motor vehicle description
, including, but
[
(C)
the license plate number;
(D)
the odometer reading, or the word "exempt" if the motor
vehicle is exempt from federal and state odometer disclosure requirements;
(E)
the name and complete address of the applicant; and
(F)
the name, mailing address, and date of any liens.
(2)
The application must be accompanied by the following
documents:
(A)
evidence of vehicle ownership as specified in Transportation
Code, §501.030, unless the vehicle has been issued a salvage or nonrepairable
motor vehicle certificate of title in accordance with
Transportation
Code, Chapter 501, Subchapter E
[
(B)
registration fees [
(C)
any local fees or other fees [
(D)
evidence of financial responsibility [
(E)
any other documents or fees required by law.
(3)
[
[
[
an application for registration as a prerequisite
to filing an application for certificate of title may
also
be filed
with the county tax assessor-collector in the county in which the motor vehicle
is purchased or encumbered.
(c)
Vehicle registration insignia.
(1)
Upon receipt of a complete initial application for registration
with the accompanying documents and fees, the department will issue vehicle
registration insignia to be displayed on the vehicle for which the registration
was issued for the current registration period.
(A)
If the vehicle has a windshield, the symbol, tab
,
or other device prescribed by and issued by the department must be
attached to the inside lower left corner of the vehicle's front windshield
within six inches of the vehicle inspection sticker in a manner that will
not obstruct the vision of the driver.
(B)
If the vehicle has no windshield, the symbol, tab, or other
device prescribed by and issued by the department shall be attached to the
rear license plate.
(C)
If the vehicle is registered as a Former Military Vehicle
as prescribed by
Transportation Code, §502.275
[
(i)
Former Military Vehicle registration numbers shall be displayed
on a prominent location on the vehicle in numbers and letters of at least
two inches in height.
(ii)
To the extent possible, the location and design of the
Former Military Vehicle registration number must conform
to
[
(2)
Unless otherwise prescribed by law, each
vehicle registered under this subchapter must display two license plates,
one at the front and one at the rear of the vehicle.
(3)
In accordance with Transportation
Code, §502.052 and §502.180(e), the department will cancel or not
issue any license plate with a number that:
(A)
conflicts with the department's current
or proposed regular license plate numbering system;
(B)
is determined to be obscene or objectionable
by the director; or
(C)
is currently issued to another owner.
(4)
[
(d)
Vehicle registration renewal.
(1)
To renew vehicle registration, a vehicle owner must
apply, prior to the expiration of the vehicle's registration,
[
(2)
The department will mail a license plate renewal notice,
indicating the proper registration fee and the month and year the registration
expires
,
to each vehicle owner approximately six to eight weeks
prior to the expiration of the vehicle's registration.
(3)
The license plate renewal notice must be returned
by the vehicle owner to the appropriate county tax assessor- collector or
to the tax assessor-collector's
[
(A)
registration renewal fees [
(B)
any local fees or other fees [
(C)
evidence of financial responsibility [
(4)
If a renewal notice is lost, destroyed, or not
received by the vehicle owner, the vehicle may be registered if the owner
presents personal identification acceptable to the tax assessor-collector.
Failure to receive the notice does not relieve the owner of the responsibility
to renew the vehicle's registration.
(5)
Renewal of expired vehicle registrations.
(A)
In accordance with Transportation Code, §502.407,
a vehicle with an expired registration may not be operated upon the highways
of the state after the fifth
working
day after the date a vehicle
registration expires.
(B)
A 20% delinquency penalty is due
when registration
is renewed if the owner has been arrested or cited for operating the vehicle
without valid registration
[
(C)
If the county tax assessor-collector determines
that a registrant has a valid reason for being delinquent in registration,
the vehicle owner will be required to pay for twelve months' registration.
Renewal will establish a new registration expiration month that will end on
the last day of the eleventh month following the month of registration renewal.
(D)
If the county tax assessor-collector determines
that a registrant does not have a valid reason for being delinquent in registration,
the full annual fee will be collected and the vehicle registration expiration
month will remain the same.
(E)
If a vehicle is registered in accordance
with Transportation Code, §502.164, §502.167, §502.203, §502.255, §502.267, §502.277, §502.278, §502.295,
or §502.2951, and if the vehicle's registration is renewed more than
one month after expiration of the previous registration, the registration
fee will be prorated.
(F)
Any delinquent registration submitted directly
to the department for processing will be evaluated to verify the reason for
delinquency. If the department determines that a registrant has a valid reason
for being delinquent in registration, the vehicle owner will be required to
pay for 12 months' registration. Renewal will establish a new registration
expiration month that will end on the last day of the 11th month following
the month of registration. If the department determines that a registrant
does not have a valid reason for being delinquent in registration, the full
annual fee will be collected and the vehicle registration expiration month
will remain the same. Valid reasons for delinquency include those reasons
set forth in Transportation Code, §502.176(e).
[
[
(6)
License plate reissuance and recall program.
(A)
The county tax assessor-collectors are authorized to issue
new multi-year license plates at no additional charge upon request by the
owner at the time of registration renewal, provided the current plates are
over five years old.
(B)
The county tax assessor-collectors shall issue new multi-year
license plates at no additional charge at the time of registration renewal
provided the current plates are over eight years old.
(e)
Replacement of
license plates, symbols, tabs, and
other devices
[
(1)
When
a license plate, symbol, tab, or other registration
device is
[
(2)
To obtain a replacement, the
[
(3)
If the owner remains in possession of any part
of the lost, stolen, or mutilated license plate, symbol, tab, or other registration
device, that remaining part
[
(f)
Out-of-state vehicles. A vehicle brought to Texas from
out-of-state must be registered within 30 days of the date
on
which
the owner establishes residence or secures gainful employment
, except
as provided by Transportation Code, §502.0025
. Accompanying a completed
application, an applicant
must
[
(1)
an application for certificate of title as required by
[
(2)
an identification certificate required by [
(g)
Enforcement of traffic warrant. The department or a county
tax assessor-collector may, pursuant to the provisions of a contract entered
into under Transportation Code, §702.003, refuse to register a vehicle
owned by a person for whom a warrant of arrest is outstanding for failure
to appear or pay a fine on a complaint involving a violation of a traffic
law.
(h)
Refusal to register vehicle in certain counties. The department
or a county tax assessor-collector may, pursuant to the provisions of a contract
entered into in accordance with Government Code, Chapter 791, and Transportation
Code, §502.185, refuse to register a vehicle owned by a person who owes
the county money for a fine, fee, or tax that is past due.
(1)
To place or remove a registration denial flag on a vehicle
record, the county must submit a magnetic tape or other acceptable submission
medium as determined by the department in a format prescribed by the department.
(2)
The information submitted by the county will include,
at a minimum, the vehicle identification number (VIN) and the registration
plate number of the affected vehicle.
(3)
If a county data submission contains bad or corrupted
data, the submission medium will be returned to the county with no further
action by the department.
(4)
The magnetic tape or other submission medium must
be submitted to the department from a single source within the county, as
approved by the county commissioner's court.
(5)
County submission of a magnetic tape or other submission
medium to the department constitutes a certification that the county has notified
owners of vehicles whose records appear on the tapes that past due fines,
fees, or taxes are owed to the county.
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 April 3, 2000.
TRD-200002348
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
43 TAC §17.24
The Texas Department of Transportation proposes amendments
to §17.24, concerning disabled person license plates and identification
placards.
EXPLANATION OF PROPOSED AMENDMENTS
House Bill 1032, 76th Texas Legislature, 1999, amended the Transportation
Code by changing the standards governing disabled person identification placards.
Senate Bill 21, 76th Texas Legislature, 1999, amended the Transportation Code
by providing that certain institutions, facilities, and residential retirement
communities may obtain disabled person license plates and identification placards
for display on vans and buses used to transport their residents. Senate Bill
132, 76th Texas Legislature, 1999, amended the Transportation Code by allowing
physicians licensed to practice medicine in states adjacent to Texas to sign
an application for disabled person license plates and identification placards.
The department has also determined that certain information contained in §17.24
is unnecessary because the information is already clearly set forth in Transportation
Code, Chapters 502 and 681. Finally, some changes have been made to enhance
readability and clarity, to improve grammar and spelling, and to correct cross-references.
Subsection (a) is amended to enhance readability and clarity and to improve
grammar.
Subsection (b) is amended to bring the rules into conformity with House
Bill 1032. Language has been deleted when it is unnecessary because the information
is already clearly set forth in the corresponding statutory sections. Some
changes have been made to enhance readability and clarity, to improve grammar,
and to correct cross-references.
Subsection (b)(1) is amended to reflect that the issuance of disabled person
license plates is in accordance with Transportation Code, Chapter 502.253.
The subsection is also amended by deleting the information concerning the
types of vehicles for which disabled person license plates may be issued and
the criteria for issuance because this information is already clearly set
forth in Transportation Code, Chapters 502 and 681. The reference to the international
symbol of access is moved from subparagraph (B) to subparagraph (A), and subparagraph
(B) has been given a new title that more accurately reflects the subject matter
of the subparagraph. Additional changes throughout subparagraphs (B) and (C)
enhance readability and clarity, improve grammar, and correct cross-references.
Subsection (b)(2) is amended to conform to House Bill 1032, which mandated
that placards of different colors be issued to persons with mobility-related
and non mobility-related disabilities. Some details are deleted because they
contain information that is already clearly set forth in Transportation Code,
Chapters 502 and 681. Additional changes enhance readability and clarity.
Subsection (c) is amended to conform to Senate Bill 132, which allowed
a certification of disability to be signed by a physician licensed to practice
medicine in a state adjacent to Texas. Subsection (c) is also amended to conform
to Senate Bill 21, which allowed certain licensed facilities to obtain disabled
person license plates and identification placards for display on vans and
buses used to transport their residents. Some details in subsection (c) are
deleted because they contain information already clearly set forth in Transportation
Code, Chapters 502 and 681. Additional changes throughout subsection (c) enhance
readability and clarity.
Subsection (c)(3) is amended to conform to Senate Bill 132, which permitted
a certification of disability to be signed by a physician licensed to practice
medicine in a state adjacent to Texas. The amendment identifies those states.
Information formerly contained in subsection (c)(3)(B) is expanded in detail
to conform to Senate Bill 132 and is distributed between subsections (c)(3)(B)
and (c)(3)(C).
Existing subsection (c), paragraph (4) is eliminated in its entirety because
it contains information that is already clearly set forth in Transportation
Code, Chapters 502 and 681. Subsection (c)(5) has been renumbered as paragraph
(4) and amended to enhance readability and clarity and to correct cross-references.
Subsection (c), new paragraph (5) is added to conform to Senate Bill 21,
which allowed certain institutions, facilities, and residential retirement
communities to obtain disabled person license plates and identification placards
for display on vans and buses used to transport their residents. The new language
clarifies that qualified facilities will receive license plates or blue permanently
disabled person identification placards and that the application need not
contain the supporting documentation required of individuals.
Existing subsection (c)(6) is eliminated in its entirety because it contains
information that is already clearly set forth in Transportation Code, Chapters
502 and 681.
Subsection (d) is amended to remove language in paragraph (2) that is unnecessary
because the information is already clearly set forth in Transportation Code,
Chapter 681. Amendments are made throughout subsection (d) to enhance readability
and clarity and to correct cross-references.
Subsections (e)and (f) are amended to enhance readability and clarity and
to improve spelling.
Subsection (g) is eliminated in its entirety because it contains information
that is already clearly set forth in Transportation Code, Chapter 502, and
in Texas Civil Statutes, Article 8613.
Subsection (h) has been renumbered as subsection (g) and amended to correct
cross-references. In addition, a provision is added to clarify that in an
administrative hearing mandated by Transportation Code, §681.012, the
administrative law judge must apply the standards set forth in §681.011
to determine if an offense has been committed involving the improper use of
a disabled parking placard. If such an offense is found, the placard shall
remain revoked, and a new placard shall not be issued to that person for at
least one year. The addition of this standard is necessary because the Transportation
Code mandates a hearing, but does not specify the issues to be litigated or
standards to be applied.
FISCAL NOTE
James Bass, Director, Finance Division, has determined that for each year
of the first five-year period the amended section as proposed is in effect,
there will be fiscal implications to state government as a result of enforcing
or administering the sections. The effect on state government will be an estimated
additional cost of approximately $89,000 for the year 2000, for manufacturing
additional placards; notifications to the counties, law enforcement entities,
and other interested parties; providing a quality hole punch for each of the
main county tax offices and substations; and revising the application form.
Additional costs for years 2001-2004 are approximately $300 each year for
manufacturing additional placards. Additional revenue is estimated to be approximately
$38,000 for the year 2000 and approximately $7,000 each year for years 2001-2004
due to the increase in the number of placards sold. There will be no significant
fiscal implications for local governments as a result of enforcing or administering
the amended section. There are no anticipated economic costs for persons required
to comply with the amended sections as proposed.
Jerry L. Dike, Director, Vehicle Titles and Registration Division, has
certified that there will be no significant impact on local economies or overall
employment as a result of enforcing or administering the proposed amendments.
PUBLIC BENEFIT
Mr. Dike has also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated as a
result of enforcing or administering the amendments will be to allow more
disabled persons of this state to enjoy disabled person parking privileges
and to improve public awareness of the terms on which disabled person license
plates and identification placards are issued. There will be no effect on
small businesses.
SUBMITTAL OF COMMENTS
Written comments on the proposed amendments may be submitted to Jerry L.
Dike, Director, Vehicle Titles and Registration Division, 125 East 11th Street
Austin, Texas, 78701-2483. The deadline for receipt of written comments is
5:00 p.m. on May 15, 2000.
STATUTORY AUTHORITY
The amendments are proposed under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §502.009, which authorizes
the department to adopt rules governing the issuance of motor vehicle registration.
In addition, the amendments are proposed under the provisions of Transportation
Code, Chapter 502, which authorizes the department to adopt rules regarding
the registration of motor vehicles.
No statutes, articles, or codes are affected by the proposed amendments.
§17.24.Disabled Person License Plates and Identification Placards.
(a)
Purpose. Transportation Code, Chapters 502 and 681, charges
the department with the responsibility for issuing
specially designed
[
(b)
Issuance.
(1)
Disabled person license plates.
(A)
Eligibility. In accordance with Transportation Code, §502.253,
the
[
[
[
[
(B)
Special category license plates.
[
(C)
License plate number. Disabled person license plates will
bear a license plate number assigned by the department[
(2)
Windshield identification placards. The department
will issue removable windshield identification placards to temporarily or
permanently disabled persons[
(A)
A placard issued to a person with a mobility-related
disability described by Transportation Code, §681.001(5)(B) or (C), will
be white on a blue shield in color.
(B)
A placard issued to a person with any other
disability will be white on a red shield in color.
[
[
[
[
[
[
[
[
(c)
Initial application.
(1)
Place of application. The following persons may file an
application for disabled person license plates or identification placards
with the county tax assessor-collector in the county in which the applicant
resides:
(A)
the owner of a registered vehicle that is regularly operated
by or for the transportation of a disabled person; and
(B)
a disabled person who is not a vehicle owner.
(2)
Application form.
The
[
(A)
the applicant's driver's license number or the number of
a personal identification card issued to the applicant under Chapter 521;
or
(B)
an out-of-state current driver's license number issued
to a non-resident individual serving in the United States military at a military
installation in this state.
(3)
Accompanying documentation.
(A)
In accordance with Transportation Code, §§502.253
and 681.003, and unless
[
[
[
[
[
(B)
[
(i)
a disability statement, as it appears on the application
for disabled person license plates or identification placards, which has been
correctly completed and signed in the presence of a notary; or
(ii)
a written prescription
that includes the disabled
person's name, a statement that the disability is either temporary or permanent,
a statement whether the person's disability is mobility related as described
by Transportation Code, §681.001(5)(B) or (C), and the physician's signature
(The prescription must be written on a prescription form or on the physician's
letterhead)
.
(C)
An initial application for disabled person
license plates or identification placards must be signed by a physician:
(i)
licensed to practice medicine in Texas,
Arkansas, Louisiana, New Mexico, or Oklahoma;
(ii)
authorized by law to practice medicine
in a health facility of the Veterans Administration;
(iii)
or practicing medicine in the United
States Military on a military installation.
[
(4)
(5)
Issuance of disabled person license
plates and identification placards to certain institutions.
(A)
In accordance with Transportation Code, §§502.2531
and 681.0032, the department will issue disabled person license plates or
a blue permanently disabled person identification placard for display on a
van or bus operated by an institution, facility, or residential retirement
community that is licensed under Health and Safety Code, Chapter 242, 246,
or 247.
(B)
The van or bus must be used for the transport
of residents of the institution, facility, or residential retirement community.
(C)
A qualified institution, facility, or residential
retirement community must meet the following requirements to obtain disabled
parking insignia.
(i)
An application for disabled person license
plates or an identification placard must be presented. Accompanying documentation
described in paragraph (3) of this subsection is not required.
(ii)
A Texas Vehicle Registration Receipt issued
in accordance with §17.22 of this subchapter must be presented for each
van or bus for which disabled person insignia is requested.
(D)
If the Vehicle Registration Receipt indicates
that the van or bus is not owned by the eligible institution, facility, or
residential retirement community that is requesting disabled person identification
insignia, then the institution, facility, or residential retirement community
must submit a written statement that the van or bus is in the possession and
control of the eligible institution, facility, or residential retirement community
and is operated by the institution, facility, or residential retirement community
for the transportation of its disabled residents.
[
[
[
[
[
[
(d)
Renewal.
(1)
License plates. Disabled person license plates are valid
for a period of 12 months from the date of issuance, and are renewable as
specified in
§17.22
[
(2)
Identification placards. [
(A)
Place of renewal application.
Prior to the expiration
of a disabled person identification placard, an
[
(B)
Accompanying documentation. In order to renew a permanently
disabled person identification placard, an applicant
must
[
(3)
Temporarily disabled person identification placards.
Temporarily disabled person identification placards are valid for six months
from the month of issuance or until the termination of the applicant's disability,
whichever occurs first.
(A)
Termination of disability. If a person's disability ends
prior to the expiration of the identification placard, the placard shall be
destroyed.
(B)
Renewal. If a person's temporary disability extends for
more than the six-month period for which the placard was issued,
the
[
(e)
Replacement.
(1)
License plates. If disabled person license plates are lost,
stolen, or mutilated, the owner may obtain replacement license plates by applying
with
a
[
(A)
Accompanying documentation. In order to replace permanently
disabled person license plates, the owner
must
[
(B)
Absence of accompanying documentation. If the current year's
registration receipt is not available and the county cannot verify that the
disabled person license plates were issued to the owner, [
(2)
Disabled person identification placards. If a
disabled person identification placard becomes lost, stolen, or mutilated,
the owner may obtain a new identification placard in accordance with subsection
(c) of this section.
(f)
Transfer of disabled person license plates and identification
placards.
(1)
License plates.
(A)
Transfer between persons. Disabled person license plates
may not be transferred
[
(B)
Transfer between vehicles. Disabled person license plates
may not be transferred
[
(2)
Identification placards.
(A)
Transfer between vehicles. Disabled person identification
placards may be displayed in any vehicle
driven by the disabled person
or
in which the disabled person [
(B)
Transfer between persons. Disabled person identification
placards
may not be transferred
[
[
[
[
[
[
[
[
(g)
[
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 April 3, 2000.
TRD-200002349
Richard Monroe
General Counsel
Texas Department of Transportation
Earliest possible date of adoption: May 14, 2000
For further information, please call: (512) 463-8630
Subchapter B. USE OF STATE HIGHWAY RIGHT-OF-WAY
special
] office of the department.
of
] information with human intervention.
drivers'
] license or registration status.
which
] allows individuals, businesses, or state governmental
agencies or institutions to access the department's vehicle registration records.
which
] reflects, but
is not limited to, the make, vehicle identification number, year, model, body
style,
and
license number
of a motor vehicle
, and the
name, address, and social security number of the registered owner.
(i)
] the department's Director
of Public Information; or
(ii)
] the district engineer or
division director [
for the district or division
] of the department
responsible for the information.
to
] the department's World Wide Web site, located at http://www.dot.state.tx.us/.
, and Transportation Code §502.008
].
which includes, but is
not limited to
]:
and/or the
] vehicle identification number
of the
motor vehicle about which information is requested
;
the
] subject of the record has requested the department to restrict
the release of the information, the requested information may only be released
if the requestor is the subject of the record,
if the requestor
has written authorization for release from the subject of the record, or
if
the intended use is for one of the permitted uses indicated on the
form;
and
] the requestor will not disseminate or publish the information [
obtained from the department
] on the Internet or permit another to do
so [
, in accordance with Transportation Code, §731.002
];
(C)
Each written request shall be accompanied
by payment of the applicable fee in the form of either cash, cashier's check,
or money order.
]
(D)
] The department will provide
vehicle registration information by license number by telephone only in accordance
with 18 U.S.C. §2721
, Transportation Code, §502.008,
and Transportation Code, Chapters 730 and 731, and only if requested by:
a
]:
and
]
and
] (e)
, and (f)
of this
section, the department will provide copies or promptly produce official department
records for inspection, duplication, or both. If the requested information
is unavailable for inspection at the time of the request because it is in
active use or otherwise not readily available, the department will certify
this fact in writing within 10 business days after the date the information
is requested to the applicant and specify a date and hour within a reasonable
time when the record will be available for inspection or duplication.
by the 10th business day after the date of receiving the
written request,
] the department will ask for a decision from the attorney
general about whether the records are within that exception if there has not
been a previous determination about whether the records fall within one of
the exceptions.
The request for a decision from the attorney general
will be made by the 10th business day after the date of receiving the written
request.
his or her
] personal information
in
a
[
the
] motor vehicle registration record, the department
will only release the information in accordance with 18 U.S.C. §2721
, Transportation Code, §502.008,
and Transportation Code, Chapters
730 and 731. The department will provide a form for such a request
. A
completed and properly executed form must include, at a minimum
[
, which at a minimum includes
]:
the
] description of the motor
vehicle to which the request applies;
(iii)
an area which allows the requestor to
restrict disclosure of their personal information in response to individual
requests for information and or requests for information to be used for bulk
distribution for surveys, marketing, or solicitations; and
]
(iv)
] the signature of the requestor.
to prevent
] release of information, the department will prevent access
to
any
[
all
] information pertaining to an individual's
specific motor vehicle record.
:
]
the
] information shall not be
disclosed outside the requesting entity, or within the requesting entity for
purposes other than the purpose for which it was received
.
[
;
]
the
] information shall be labeled
confidential
.
[
;
]
the
] information shall be kept
securely
.
[
; and
]
the
] number of copies of the
information or the notes taken from the information that are not destroyed
or returned to the department remain confidential and subject to the confidentiality
agreement.
(f)
] Certified records. In accordance
with Transportation Code, §201.501, the following officials shall serve
as the executive director's authorized representatives for the purpose of
certifying official department records.
his or her
] absence
of the
chief minute clerk
, minute orders may be certified by the executive
assistant to the executive director. The executive director may delegate certification
authority to other officials to assure sufficient availability of authorized
certifying officials.
officials
] having official custody of the records. A district
engineer or division director may delegate certification authority to other
officials to assure sufficient availability of authorized certifying officials.
(g)
] Programming and manipulation
of data.
then
] the department will provide a written statement
within 20 days after the date of the receipt of the request. The statement
will include:
he or she
] wants:
or
]
(2)
retrieval and copying time of more
than one hour.
]
(d)
] Payment.
the
] employee with
that employee's
[
his
or her
] name typed or printed below the signature.
(e)
] Waiver.
The
] department will provide
copies of records
free of charge [
copies of records relating to an employee grievance
proceeding under Chapter 2, §9.2 of the department's Human Resources
Manual
] to an official party to the proceeding.
his or her
] designee determines
a
waiver to be in the public interest because providing the records
primarily benefits the general public.
Public information requests
or other requests will not be responded to via the Internet.
]
as required by Transportation Code, §502.008
] to an individual,
agency, or business in accordance with 18 U.S.C. §2721
, Transportation
Code, §502.008,
and Transportation Code, Chapters 730 and 731 under
the terms of a written service agreement.
title (relating to Cost of Copies of Official
Records)
];
contractor
] signature;
§3.12(a)(3)(D)
] of this
subchapter
[
title
(relating to Public Access)
].
title (relating to Cost of Copies of Official
Records)
];
§3.12(a)(3)(D)
] of this
subchapter
[
title
(relating to Public Access)
];
Chapter 4.
EMPLOYMENT PRACTICES
(8)
] Hardship - A serious
or catastrophic illness, family emergency, or extenuating circumstances beyond
the control of the student which preclude the student from being reasonably
expected to comply with the terms of an education assistance agreement.
(9)
] Office director - The
chief administrative officer of a specialized organizational unit of the department
which is headquartered in Austin.
(10)
] Part-time position
- An individual employed with the department and working between 20 and 39
hours per week.
(11)
] Professional development
requirement - Education and/or technical training required for an employee
to progress higher in that employee's career ladder, or meet increased skill
demands of the employee's job assignment.
(12)
] Program Selection Committee
- The committee, approved by the executive director, that selects the employees
who will participate in the department-sponsored full-time master's program.
(13)
] Prospective duty assignment
- A department job assignment that may, with reasonable probability, become
available in the foreseeable future to an employee.
(14)
] Training - Activities
designed to improve employee job performance and job-related skills by achieving
specific, measurable, predetermined learning objectives.
three
] programs, the Education
Assistance Program, a full-time Master's Program,
the Degree Completion
Program,
and the Non-Degree Program. These academic and continuing education
programs assist employees in gaining knowledge and skills that are beneficial
to the department. This section establishes eligibility criteria for participation
in the programs.
dean
] or the
chairman's
[
dean's
] designee;
(3)
] Non-degree program.
Eligibility requirements do not apply when a full-time employee is not pursuing
a degree, but is taking one or more classes as a requirement of the employee's
position, or is taking classes that provide skills related to the employee's
position while pursuing a general equivalency diploma, except that the appropriate
district engineer, division director, office director, or member of the administration
must approve the request. Summer hire and temporary recruitment program employees
are eligible to take specific job related courses if the district engineer,
division or office director, or a member of the administration determines
that the course is essential to enhancing the employee's ability to perform
his or her job.
§4.64(d)(4)
] of this
subchapter
[
title (relating to Employee Obligations)
].
title
], or if the
appropriate district engineer, division director, office director, or a member
of the administration determines that the employee's participation in a degree
program adversely affects the employee's job performance.
§4.64(d)(4)
] of this
subchapter
[
title
].
title
].
(3)
] Non-degree program.
Eligibility requirements to remain in the Non-Degree Program requires continued
satisfactory work performance and passing grades and/or satisfactory completion
of each course taken to include those taken in pursuit of a general equivalency
diploma, except as provided in
§4.64(d)(5)
[
§4.64(d)(4)
] of this
subchapter
[
title
].
education
] assistance
programs
[
program
] must
attend a public institution in the State of Texas, unless attendance is necessary
at a private institution in Texas because:
follows:
]
(i)
] Full-time Master's
Program. An employee must agree to work for the department for a period of
three years, commencing 30 days following the date of the employee's receipt
of the degree,
provided
[
providing
] the employee meets
all conditions of employment and eligibility at that time. If the employee
fails to complete the degree, or fails to meet all conditions of employment
and eligibility,
the employee
[
he/she
] will be subject
to the repayment obligations in subsection (d)(2) of this section.
(ii)
] Education Assistance
Program. An employee enrolled in the Education Assistance Program will repay
the obligation incurred for the course(s) paid for by the department by
working for
[
providing work at
] the department. Those employees
participating in a field of study related to their current job incur a one
year work obligation, commencing 30 days following the date [
of
]
the
employee receives
[
employee's receipt of
] the degree,
provided the employee meets all conditions of employment and eligibility at
that time. For employees receiving a degree outside of their current area
of responsibility, the period of employment required is two years for a baccalaureate
and three years for a master's or doctorate. Since they are receiving education
assistance only to meet minimum requirements for a profession other than the
employee's current job field, they must repay the department with service
in the future. Employees that fail to meet all conditions of employment and
eligibility are subject to the repayment obligations in subsection (d)(1)
of this section.
(B)
adhering to the terms and conditions of
the education assistance agreement and requirements for continued eligibility;
]
(C)
completing and passing each individual
course; and
]
(D)
meeting the conditions of continued eligibility
in §4.63 of this title (relating to Education Programs).
]
(2)
] Credit Verification.
Each semester, an employee must provide grade reports to the appropriate district
engineer, division director, office director, or member of the administration
for verification that full credit was received for courses taken.
title (relating to Education Programs)
] if the student:
(C)
] An employee is liable to the
department for any reasonable expense incurred in obtaining payment, including
reasonable attorney's fees.
the full-time Master's Program
], who withdraw from
either
[
this
] program, separate from department employment while participating
in
either
[
the
] program, or who complete their degree
but fail to complete their work obligation are liable for repayment of all
educational assistance provided by the department during the time spent in
either
[
the
] program. For employees not performing their
regular duties for three or more months while participating in
either
[
the
] program, the repayment obligation includes salary
not accounted for as paid vacation or compensatory leave. There is no pro-ration
system to defray any portion of the debt. An employee must work the entire
defined work period to pay off the incurred debt.
both programs
], the department will establish a repayment schedule
of:
title
] unless the employee has fully
repaid the department in accordance with subsection (d) of this section and:
Chapter 9.
CONTRACT MANAGEMENT
Subchapter D. BUSINESS OPPORTUNITY PROGRAMS
Chapter 15.
TRANSPORTATION PLANNING AND PROGRAMMING
commission
] to fund the construction cost of
an approved highway improvement project or a service project [
by submitting
a request to the deputy executive director for transportation planning and
development
]. The request for an approved highway improvement project
shall state whether the local government desires reimbursement of its contribution,
subject to the considerations outlined in subsection (e) of this section.
(1)
] Considerations. In approving
a request to finance an approved highway improvement project, the
executive
director
[
commission
] will consider:
(A)
] statewide transportation needs;
(B)
] regional economic impact;
(C)
] North American Free Trade
Agreement implications;
(D)
] local government needs;
(E)
] environmental impact and any
requirements for environmental mitigation; and
(F)
] any other considerations relating
to the benefit to the state, the traveling public, and the operations of the
department.
(A)
] local economic impact,
(B)
] residual public benefit,
(C)
] local government needs, or
(D)
] any other considerations relating
to the benefit to the state, the traveling public, or the operation of the
department.
commission
] approves
a project under this subsection [
or a service project
], the local
government and the department will enter into an agreement as specified in §15.52
of this
subchapter
[
title (relating to Agreements)
],
except that construction costs shall be as defined in this section.
title (relating
to Agreements)
].
Chapter 17.
VEHICLE TITLES AND REGISTRATION
Title
]. Unless
otherwise exempted by law or this chapter, the owner of any vehicle that is
required to be registered in accordance with Transportation Code, Chapter
502, shall [
be required to
] apply for a Texas
certificate
of title
[
Certificate of Title
] in accordance with [
the Certificate of Title Act,
] Transportation Code, Chapter 501.
a
] moped
designed for or used exclusively on golf courses is not classified as a motor
vehicle and, therefore, title cannot be issued until [
such time as
]
the unit is registered.
which
] meets the
criteria for a moped and has been certified as a moped by the Department of
Public Safety[
,
] must be registered and titled as a moped
. If
[
; otherwise, if
] the vehicle does not appear on the
list of certified mopeds published by that agency, the vehicle will be treated
as a motorcycle for title and registration purposes.
and
] may not be titled.
§502.283, and farm
] tractors used as road tractors to mow
rights of way
[
rights-of-way
] or used to move commodities over the highway for hire
are required to be registered and titled.
the Certificate of Title Act,
] Transportation Code, Chapter 501:
Certificate of Title
] for any stand alone (full)
trailer, including homemade full trailers, having an empty weight in excess
of 4,000 pounds or any semitrailer having a gross weight in excess of 4,000
pounds. House trailer-type vehicles must meet the criteria outlined in subparagraph
(C) of this paragraph in order to be titled.
trailers and semitrailers
],
the rated carrying capacity
will
[
shall
] not be less
than one-third of its empty weight.
a dwelling
], but
are
classified as commercial semitrailers[
,
] and must be registered and titled as
commercial semitrailers
[
such
] if operated upon the public streets and highways.
which
] is eight body feet or more in width
or forty body feet or more in length (not including the hitch), is classified
as a mobile home and is titled under the Texas Manufactured Housing Standards
Act, Texas Civil Statutes, Article 5221f, administered by the Department of
Housing and Community Affairs.
which
] is less than eight feet in width and less than forty feet in length
is classified as a travel trailer and must be registered and titled.
Certificate of Title
].
16 TAC, §111.15(c) (relating to Record of Sales and Inventory)
and
] §17.8(a)(1) of this
subchapter
[
title (relating
to Certificates of Title for Salvage Vehicles)
], a certificate of title
application must be filed with the county tax assessor-collector in the county
in which the applicant resides[
,
] or
in
the county in
which the motor vehicle was purchased or encumbered, within 20 working days
of the date of sale.
shall
] file
an application on a form prescribed by the department. The form
will
[
shall
] at a minimum require the:
which includes, but is
] not limited to, the motor vehicle's:
applications
] filed
in the name of
an entity that does not have
[
entities which
do not have, or are not eligible to obtain,
] a social security number,
or
individual applicants who do not have, or are
not eligible to obtain, a social security number
] (
An individual
applicant who does not have a social security number must
[
such
applicants shall be required to
] execute a statement to that effect
on a form prescribed by the department).
Number
].
If no serial number is die-stamped by the manufacturer
on
[
upon
] a motor vehicle, house trailer, trailer, semi-trailer, or [
an
] item of equipment required to be titled, or if the serial number
assigned and die-stamped by the manufacturer has been lost, removed
,
or obliterated, the department will upon proper application, presentation
of evidence of ownership, and presentation of a law enforcement physical inspection,
assign a serial number to the motor vehicle, trailer
,
or equipment
. The
[
; the
] manufacturer's serial number or the assigned
serial number will be used by the department as the major identification of
the motor vehicle or trailer in the issuance of a certificate of title.
shall
] be supported by, at a minimum,
the following documents:
or, if not released, the liens shall
]
be carried forward on the new certificate of title application
with
[
pursuant to
] the following limitations.
shall
] accompany the certificate of title application. Evidence
must
[
shall
] include, but is not limited to, the following
documents.
shall be
] required for
a new motor vehicle that is sold or offered for sale.
shall
] be in the form prescribed by the division director and
must
[
shall
] contain, at a minimum, the following information:
which includes, but is
] not limited to, the motor vehicle's year, make,
model, identification number, body style and empty weight;
as defined in 16 TAC, §111.2,
(relating to Definitions),
] and is issued for commercial motor vehicles
as that term is defined in Transportation Code, Chapter 502; and
non-manufacturer's
] representative or distributor, the manufacturer's certificate of origin
must
[
shall
] be assigned to the purchaser by the importer.
shall
] be relinquished in support
of the certificate of title application for any used motor vehicle. A letter
of Title and Registration verification is required from a vehicle owner coming
from a state that no longer titles vehicles after a certain period of time.
, which is either attached to or printed on the certificate of title, allows
the transfer of ownership by a surviving spouse. The surviving spouse or the
surviving spouse's transferee may make application for a new certificate of
title in accordance with the provisions of subsection (b) of this section,
surrendering the properly executed certificate of title, along with a copy
of the death certificate of the deceased spouse
].
shall
] be supported by
documents including, but
[
, but is
] not limited to, the following [
documents
]:
which reflects
]
the name of the applicant as the motor vehicle owner, or
reflecting
[
reflects
] that
legal evidence of ownership
[
such
evidence of ownership
] has been legally assigned to the applicant; and
for all 1968 and
subsequent year model motor vehicles and for all 1969 and subsequent year
model motorcycles which shall include, but is
] not limited to, the following
documents:
United States Department of
Transportation
], National Highway Traffic Safety Administration, verifying
the issuance of the original bond release letter;
United States Department of Transportation
] confirming the exemption from the bond release letter required in
clause
[
subitem
] (i) of this subparagraph, or a copy thereof
certified by United States Customs;
United States Customs
]
letterhead and signed by
its
[
a United States Customs
]
agent verifying that the motor vehicle complies with
USDOT
[
United States Department of Transportation
] regulations;
or
] verification
thereof, or written confirmation from the previous state verifying that a
bond release letter issued by the
USDOT
[
United States Department
of Transportation
] was relinquished to that jurisdiction, if the non
United States standard motor vehicle was last titled or registered in another
state for one year or less; or
their
] letterhead stationary.
shall constitute
] valid reason for the rejection of any transaction to which [
such
] altered evidence is attached. [
The department may accept
certain types of alterations provided that they are corrected in accordance
with the following procedures.
]
that
] state in which the
lien originated
. The statement must verify
[
verifying
]
the correct lien information.
on any document which
] leaves any doubt
about
[
as
] the legibility of
any digit
in any document
[
in a number
] will not be
accepted.
correct
] manufacturer's
certificate of origin will be required if the
manufacturer's certificate
of origin contains
[
documents show
] an:
,
] or to
establish a new lien
, in the following circumstances.
[
:
]
in
] the event that there is a
lien disclosed in the application
,
a duplicate certificate of title
marked "Duplicate Original [
,
] " will be mailed or delivered to
the address of the applicant as disclosed upon the application
.
[
;
]
in
] the event that the owner
of a vehicle last registered or titled in another state (and subject to registration
in this state) cannot or does not wish to relinquish the negotiable out-of-state
evidence of ownership to obtain a negotiable Texas title, a duplicate certificate
of title marked "Registration Purposes Only" will be mailed or delivered to
the address of the applicant as disclosed upon the application
. In
[
(in
] instances
in which
[
where
] the title
or registration receipt is assigned to the applicant, an application for "Registration
Purposes Only" will not be processed[
)
].
the Certificate of Title Act,
] Transportation Code, Chapter
501, and payment of the appropriate fee to the department.
Such titles shall only be issued by mail
].
such time that
] ownership of the vehicle is transferred, when
the words "Certified Copy" will be eliminated from the new certificate of
title.
shall be
] $2.00 if the application
is processed at the department's headquarters office [
,
] and $5.45
if
the
[
such
] application is processed at one of the
department's regional offices.
and
the words "Certified Copy" will be eliminated from certificates issued thereafter
by the department as a result of transfer of ownership
].
shall
] provide a form for written notice of transfer
. The form
will
[
, which shall
] include:
shall
] mark its records to indicate the date of transfer
and the full name and address of the transferee.
such
] transferee files an application for the certificate of title
as described in this section.
the Certificate of Title Act,
] Transportation Code,
Chapter 501;
ground
] to believe that the vehicle is a stolen or converted vehicle [
,
] or that the issuance of a certificate of title would constitute a
fraud against the rightful owner or a mortgagee;
such decisions
]
in accordance with [
the Certificate of Title Act,
] Transportation
Code,
§501.052 and §501.053
[
§§501.052-501.053
], in the following manner.
shall
] be returned
to the person posting bond, upon expiration, unless the department has been
notified of the pendency of an action to recover on the bond.
within
21 days from
] receipt of the final payment
within the time limits
specified in Transportation Code, Chapter 501
. The lienholder must submit
one of the following documents:
that requires
] the:
title/document
] number
, or a description of the motor vehicle
[
or
motor vehicle description
] including, but not limited to, the motor
vehicle's:
title/document
] number; or
or a lien
filing receipt
];
they
] are stamped "Paid" or "Lien Satisfied" with a company
paid stamp[
,
] or
if they contain a statement in longhand that
the lien has been paid
[
a "Paid Statement" in longhand
] followed
by the company's name.
Subchapter B. MOTOR VEHICLE REGISTRATION
Texas Civil Statutes, Article 6687-1(37A)(j) and (n),
]
and §17.8 of this title (relating to Certificates of Title for Salvage
Vehicles) prohibit registration of a vehicle whose owner has been issued a
salvage or nonrepairable motor vehicle certificate of title. These vehicles
may not be operated upon a public roadway.
shall
] at a minimum require:
which includes, but is
] not limited to, the motor vehicle's year,
make, model, vehicle identification number, body style, manufacturer's rated
carrying capacity in tons for commercial motor vehicles, and empty weight;
Texas Civil Statutes, Article
6687-1(37A)(j) and (n)
];
as may be
] prescribed by
law;
as may be
] prescribed
by law and collected in conjunction with registering a vehicle;
as
] required
by Transportation Code, §502.153, unless otherwise exempted by law; and
Place of registration.
] An initial
application for registration
must
[
shall
] be filed with
the tax assessor-collector of the county in which the owner resides
,
except that
[
; provided, however:
]
(A)
registration involving the transfer of
vehicle ownership by a motor vehicle dealer shall be governed by 16 Texas
Administrative Code, §§111.1-111.16; and
]
(B)
]
§17.28(b)(14)
of this title (relating to Special Category License Plates, Symbols, and Tabs)
], the vehicle's registration number shall be displayed in lieu of displaying
a symbol, tab, or license plate.
with
] the vehicle's original military registration number.
(3)
] The provisions of
paragraph (1) of this subsection do not apply to vehicles registered with
annual license plates issued by the department.
A vehicle owner shall apply
] to the tax assessor-collector of the county
in which the owner resides [
for registration renewal prior to the expiration
of the vehicle's registration
].
his or her
] deputy, either
in person or by mail, and
must
[
shall
] be accompanied
by the following documents and fees:
as may be
] prescribed
by law;
as may be
] prescribed
by law and collected in conjunction with registration renewal; and
as
] required
by Transportation Code, §502.153, unless otherwise exempted by law.
any time a vehicle is operated upon
the public streets or highways without the required registration
].
(C)
If an owner renews the registration of
a vehicle more than one month after the previous registration has expired
and the vehicle has not been operated upon the public streets or highways,
the vehicle owner will be required to execute a non-use affidavit stating
such, and the registration fee will be prorated for the balance of the registration
year.
]
(D)
If an owner renews the registration of
a vehicle more than one month after the previous registration has expired
and cannot execute the non-use affidavit because the vehicle has been operated,
the full annual fee shall be collected plus a 20% delinquency penalty as provided
by Transportation Code, §502.176.
]
registration symbol, tab, device, or number plates
].
the registration symbol, tab, device or number plates
are
] lost, stolen, or mutilated, a replacement may be obtained from
any county tax assessor-collector as prescribed by law.
The
] owner must properly execute
an affidavit
[
a replacement
affidavit,
] containing the vehicle description,
the
original
license plate number, and
a
sworn statement that the
license
plate, symbol, tab, or other registration device
[
registration
symbol, tab, device, or number plates
] furnished for the
described
vehicle
has
[
described have
] been lost, stolen,
or mutilated, and will not be used on any other vehicle.
The owner's remaining part of the
registration symbol, tab, device, or number plates
] must be removed
and surrendered to the department upon issuance of the replacement and upon
request by the county tax assessor-collector [
, the owner's current year's
license receipt
].
shall
] provide:
the Certificate of Title Act,
] Transportation Code, Chapter 501,
if the vehicle to be registered has not been previously titled in this state;
and
the
] Transportation Code, §548.256 and §501.030.
specially-designed
] license plates and identification placards
for [
permanently and temporarily
] disabled persons. In order for
the department to [
efficiently and effectively
] perform these duties
efficiently and effectively
, this section prescribes the policies and
procedures for the application, issuance, and renewal of disabled person license
plates and placards.
Vehicle. The
] department will issue specially designed
license plates
displaying the international symbol of access
to
permanently disabled persons or their transporters in lieu of regular passenger
license plates [
, if the passenger vehicle, motorcycle, or light commercial
vehicle:
]
(i)
has a manufacturer's rated carrying capacity
of one ton or less;
]
(ii)
is used for non-commercial purposes;
and
]
(iii)
is regularly operated by, or for the
transportation of permanently disabled persons
].
Identifying
insignia. Disabled person license plates will include the international symbol
of access.
] The department will issue disabled person insignia on those
special category license plates that can accommodate the identifying insignia[
,
] and
that
[
which
] are issued in accordance with §17.28
of this
subchapter
[
title (relating to Special Category License
Plates, Symbols, and Tabs)
].
,
] or
will bear
a personalized license plate number issued in accordance with §17.28
of this
subchapter
[
title (relating to Special Category License
Plates, Symbols, and Tabs)
].
,
] and
to
the transporters
of permanently disabled persons.
A person who has been issued a windshield
identification placard shall hang the placard from a vehicle's rearview mirror
when the vehicle is parked in a disabled person parking space or shall display
the placard on the center portion of the dashboard if the vehicle does not
have a rearview mirror.
(A)
Location. A person who has been issued
a windshield identification placard shall suspend the placard from a vehicle's
rearview mirror when the vehicle is parked in a disabled person parking space,
or display the placard on the center portion of the dashboard if such vehicle
does not have a rearview mirror.
]
(B)
Identifying insignia. Windshield identification
placards will include the following information:
]
(i)
the international symbol of access;
]
(ii)
an identification number;
]
(iii)
the seal or other identification of
the department;
]
(iv)
date of expiration;
]
(v)
the applicant's driver's license number
or the number of a personal identification card issued to the applicant under
Transportation Code, Chapter 521; and
]
(vi)
a hologram designed by the department.
]
Such
]
application must be made on a form prescribed by the director and
must
[
shall
], at a minimum,
include
[
require
] the name, address, and signature of the disabled person, and:
Unless
] otherwise exempted by law
or this section, an initial application for disabled person license plates
and an identification placard must be accompanied by evidence that the operator
or regularly transported person is disabled.
(B)
Such evidence of disability must contain
a certification as to whether the disability is temporary or permanent and
the disabled person's name, and be signed by a physician who is:
]
(i)
licensed to practice medicine in Texas;
]
(ii)
practicing medicine in the United States
Military on a military installation; or
]
(iii)
practicing medicine in a Veterans Administration
medical facility in Texas.
]
(C)
] The evidence must be in the
form of:
(4)
Additional requirements.
Applications for disabled person license plates and identification placards
shall be accompanied by any fees or additional documentation as required by
law.
]
(5)
Exemption
[
Exemptions
] from accompanying documentation. The department will issue
disabled person identification placards to an organization that regularly
transports disabled persons in vehicles it owns or controls if
the
[
such
] organization is prohibited by law from disclosing the identities
of
its
[
their
] clients.
The
[
In such
cases, the
] application may be made in the name of the organization.
In addition, accompanying documentation described in paragraph
(3)
[
(2)
] of this subsection will not be required.
The organization
must
[
Such organizations shall
] present an "Exempt" Texas
Vehicle Registration Receipt issued in accordance with
§17.50
[
§17.30
] of this
subchapter
[
title (relating
to Motor Vehicle Registration)
] for each disabled person identification
placard requested.
(6)
Limitations.
]
(A)
The department may issue the following
number of disabled license plates and placards to applicants who are permanently
disabled:
]
(i)
one set of disabled person license plates
and one permanently disabled person identification placard;
]
(ii)
no more than two permanently disabled
person identification placards; or
]
(iii)
additional sets of license plates for
each vehicle that is specially equipped to allow operation by an operator
who has lost the use of one or both legs.
]
(B)
The department will issue no more than
two temporarily disabled person identification placards to those with temporary
disabilities. Disabled person license plates are not available to those with
temporary disabilities.
]
§17.30(d)
] of this
subchapter
[
title (relating to Motor Vehicle Registration)
].
Permanently disabled
person identification placards are valid for a period of four years from the
month of issuance.
]
The
] applicant
must
[
shall
] apply
for renewal
to the tax assessor-collector
of the county in which the owner resides [
for disabled person identification
placard renewal, prior to the expiration of the identification placard
].
shall
] present
the
[
a copy of the previous identification
placard application, expired
] placard
that is expiring
, [
or
] a receipt showing that a disabled person placard was previously
issued to the applicant
, or a copy of the previous identification placard
application
. If
a
[
such
] previous application,
placard, or receipt is not available, the applicant
must
[
shall
] reapply as described in subsection (c) of this section.
such
] person must reapply for a new identification placard
as described in subsection (c) of this section.
the
] county tax assessor-collector.
shall
]
present the current year's registration receipt and personal identification
acceptable to the tax assessor-collector.
then
]
the owner
must
[
shall
] reapply in accordance with subsection
(c) of this section.
are non-transferrable
] between persons.
An owner who sells or trades a vehicle to which disabled person license plates
have been issued shall remove the disabled person license plates from the
vehicle. The owner shall return the license plates to the department[
,
] and
shall
obtain appropriate replacement license plates
to place upon the vehicle prior to any transfer of ownership.
are non-transferrable
] between vehicles.
drives or
] is a passenger.
are non-transferrable
]
between persons.
(g)
Refueling and parking privileges.
]
(1)
Refueling services. In accordance with
Texas Civil Statutes, Article 8613 the department will provide a notice to
an owner of a vehicle displaying disabled person license plates or an identification
placard setting forth the provisions of the Refueling Services to Disabled
Person Act which requires a facility that offers motor vehicle fuel for sale
to the public to limit the charge to a disabled driver to the self-service
price.
]
(2)
Parking privileges. The operator
of a vehicle displaying disabled person license plates or an identification
placard is granted the following parking privileges under Transportation Code, §681.006.
]
(A)
Any vehicle upon which disabled person
license plates or a disabled person placard is displayed, when being operated
by or for the transportation of a disabled person, shall be allowed to park
for unlimited periods in any parking space or parking area designated specifically
for the physically handicapped.
]
(B)
The owner of a vehicle on which disabled
person license plates or a disabled person identification placard is displayed
is exempt from the payment of fees or penalties imposed by a governmental
authority for parking at a meter or in a space with a limitation on the length
of time for parking, unless the vehicle is parked at a place or time that
parking is prohibited, or unless the vehicle was not parking at the time by
or for the transportation of a disabled person. This exemption does not apply
to fees or penalties imposed by a:
]
(i)
branch of the United States government;
or
]
(ii)
governmental unit for parking within
the boundaries of a municipal airport.
]
(h)
] Seizure and revocation of
placard. A person from whom a placard was seized by a law enforcement officer
under Transportation Code,
§681.012
[
§681.011
]
may request a hearing in accordance with
§1.21 et seq.
[
§§1.21-1.61
]of this title (relating to Contested Case Procedure)
to determine if the revocation should continue or if the placard should be
returned to the person and the revocation rescinded.
If it is determined
that an offense was committed under Transportation Code, §681.011, the
revocation shall continue and the disabled person shall be precluded from
obtaining a new placard for a period of no less than one year from the date
of the offense.
Chapter 22.
USE OF STATE PROPERTY