Part 1.
TEXAS DEPARTMENT OF PUBLIC SAFETY
Chapter 4.
COMMERCIAL VEHICLE REGULATIONS AND ENFORCEMENT PROCEDURES
Subchapter A. REGULATIONS GOVERNING HAZARDOUS MATERIALS
37 TAC §4.1
The Texas Department of Public Safety proposes amendments
to Chapter 4, Subchapter A, §4.1, concerning Regulations Governing Hazardous
Materials.
Amendment to §4.1 is necessary in order to ensure that the Federal
Hazardous Material Regulations, incorporated by reference in the section,
reflect all amendments and interpretations issued through July 1, 2006.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the rule is in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the rule is in effect the public benefit anticipated as a result of
enforcing the rule will be to ensure to the public greater compliance by motor
carriers with all of the statutes and regulations pertaining to the safe operation
of commercial vehicles in this state. There is no adverse economic impact
anticipated for individuals, small businesses, or micro-businesses.
The Texas Department of Public Safety, in accordance with the Administrative
Procedures and Texas Register Act, Texas Government Code, §§2001
Persons interested in attending this hearing are encouraged to submit advance
written notice of their intent to attend the hearing and to submit a written
copy of their comments. Correspondence should be addressed to Major Mark Rogers,
Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box
4087, Austin, Texas 78773-0500.
Persons with special needs or disabilities who plan to attend this hearing
and who may need auxiliary aids or services are requested to contact Major
Rogers at (512) 424-2116 at least three working days prior to the hearing
so that appropriate arrangements can be made.
Other comments on this proposal may be submitted to Mark Rogers, Major,
Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box
4087, Austin, Texas 78773-0500, (512) 424-2116.
The amendments are proposed pursuant to Texas Government Code, §411.018,
which authorizes the director to adopt all or part of the federal hazardous
materials rules by reference; and Texas Transportation Code, §644.051,
which authorizes the director to adopt all or part of the federal safety regulations
by reference.
Texas Government Code, §411.018 and Texas Transportation Code, §644.051
are affected by this proposal.
§4.1.Transportation of Hazardous Materials.
(a)
The director of the Texas Department of Public Safety incorporates,
by reference, the Federal Hazardous Materials Regulations, Title 49, Code
of Federal Regulations, Parts 107 (Subpart G), 171 - 173, 177, 178, and 180,
including all interpretations thereto, for commercial vehicles operated in
intrastate, interstate, or foreign commerce, as amended through
July
[
(b)
(No change.)
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 July 14, 2006.
TRD-200603743
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: August 27, 2006
For further information, please call: (512) 424-2135
37 TAC §§4.11 - 4.14, 4.19, 4.21
The Texas Department of Public Safety proposes amendments
to Chapter 4, Subchapter B, §§4.11 - 4.14, 4.19 and 4.21, concerning
Regulations Governing Transportation Safety.
The amendment to §4.11 is necessary in order to update the rule so
that it reflects July 1, 2006 in subsection (a). The amendment is necessary
to ensure that the Federal Motor Carrier Safety Regulations, incorporated
by reference in the section, reflect all amendments and interpretations issued
through that particular date.
The amendment to §4.12 is necessary in order to clarify when the medical
standards exemption is applicable to drivers transporting hazardous materials
in intrastate commerce. Additional amendments are being made to §4.12
to correct inaccuracies in citing certain parts of the Code of Federal Regulations.
Amendments to §4.13 are necessary in order to clarify the certification
requirements for inspections conducted on vehicles transporting hazardous
materials in Other Bulk Packaging.
Amendment to §4.14 is necessary in order to clarify that municipal
and county agencies that are certified to enforce the federal safety regulations
must respond in a timely manner to all challenges of the accuracy of data
shown on a inspection.
Amendments to §4.19 and §4.21 are necessary in order to correct
typographical errors within the sections.
Oscar Ybarra, Chief of Finance, has determined that for each year of the
first five-year period the rules are in effect there will be no fiscal implications
for state or local government, or local economies.
Mr. Ybarra also has determined that for each year of the first five-year
period the rules are in effect the public benefit anticipated as a result
of enforcing the rules will be to ensure to the public greater compliance
by motor carriers with all of the statutes and regulations pertaining to the
safe operation of commercial vehicles in this state. There is no adverse economic
impact anticipated for individuals, small businesses, or micro-businesses.
The Texas Department of Public Safety, in accordance with the Administrative
Procedures and Texas Register Act, Texas Government Code, §§2001
Persons interested in attending this hearing are encouraged to submit advance
written notice of their intent to attend the hearing and to submit a written
copy of their comments. Correspondence should be addressed to Major Mark Rogers,
Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box
4087, Austin, Texas 78773-0500.
Persons with special needs or disabilities who plan to attend this hearing
and who may need auxiliary aids or services are requested to contact Major
Rogers at (512) 424-2116 at least three working days prior to the hearing
so that appropriate arrangements can be made.
Other comments on this proposal may be submitted to Mark Rogers, Major,
Texas Highway Patrol Division, Texas Department of Public Safety, P.O. Box
4087, Austin, Texas 78773-0500, (512) 424-2116.
The amendments are proposed pursuant to Texas Transportation
Code, §644.051, which authorizes the director to adopt rules regulating
the safe transportation of hazardous materials and the safe operation of commercial
motor vehicles; and authorizes the director to adopt all or part of the federal
safety regulations, by reference.
Texas Transportation Code, §644.051 is affected by this proposal.
§4.11.General Applicability and Definitions.
(a)
General. The director of the Texas Department of Public
Safety incorporates, by reference, the Federal Motor Carrier Safety Regulations,
Title 49, Code of Federal Regulations, Parts 40, 380, 382, 385, 386, 387,
390 - 393, and 395 - 397 including all interpretations thereto, as amended
through
July
[
(1) - (4)
(No change.)
(b) - (c)
(No change.)
§4.12.Exemptions and Exceptions.
(a)
Exemptions. Exemptions to the adoptions in §4.11 of
this title (relating to General Applicability and Definitions) are made pursuant
to Texas Transportation Code, §§644.052 - 644.054, and are adopted
as follows:
(1) - (2)
(No change.)
(3)
Drivers in intrastate commerce who are not transporting
placardable
hazardous materials and were regularly employed in Texas
as commercial vehicle drivers prior to August 28, 1989, are not required to
meet the medical standards contained in the federal regulations.
(A) - (B)
(No change.)
(4) - (7)
(No change.)
(b)
(No change.)
§4.13.Authority to Enforce, Training and Certificate Requirements.
(a)
(No change.)
(b)
Training and Certification Requirements.
(1) - (3)
(No change.)
(4)
Other Bulk Packaging. Certain peace officers from the municipalities
and counties specified in subsection (a) of this section and eligible to enforce
the Other Bulk Packaging requirements must:
(A) - (B)
(No change.)
(C)
successfully complete the Cargo Tank
Inspection Course;
(D)
[
(E)
[
(5) - (7)
(No change.)
(c)
(No change.)
§4.14.Municipal and County Certification Requirements.
(a)
Certain peace officers from an authorized municipality
or county may be trained and certified to enforce the federal safety regulations
provided the municipality or county:
(1) - (5)
(No change.)
(6)
provides all roadside inspection data to the department
through electronic systems that are compatible with the department's system
within 15 business days of the inspection, and forwards paper copies immediately
thereafter; [
(7)
agrees to forward crash reports involving commercial motor
vehicles to the department no later than 30 days after the date of completion
of the crash investigation
; and
[
(8)
agrees to investigate and determine
whether a correction to the data needs to be made when that data is challenged;
to notify the motor carrier and the department in writing of the results of
the investigation within 10 working days; and then to make any needed corrections
and forward the corrected reports to the department immediately.
(b) - (e)
(No change.)
§4.19.Administrative Action by the Texas Department of Transportation.
(a)
(No change.)
(b)
This determination may be based upon the following:
(1)
(No change.)
(2)
multiple violations of Texas Transportation Code, Chapter
644, a rule adopted under Texas Transportation Code, Chapter 644, or Texas
Transportation Code, Subtitle C (Relating to Rules of the Road
);
[
(3)
(No change.)
(c) - (d)
(No change.)
§4.21.Reports of Valid Positive Results on Alcohol and Drug Tests.
(a)
Reporting Requirement. An employer required under the federal
safety regulations to conduct alcohol and controlled substance testing of
employees shall report to the department a valid positive result on an alcohol
or controlled substance test performed as part of the carrier's alcohol and
drug testing program or consortium, as defined by Title 49, Code of Federal
Regulations, Part 382, on an employee of the carrier who holds a commercial
driver license issued under Texas Transportation Code, Chapter 522.
(1)
(No change.)
(2)
The report must be submitted on a form prescribed by the
department that is available at the following Internet web site address: http://www.txdps.state.tx.us/forms.
All information requested on the form must be completed. The completed form
must be mailed to MCCA Section Supervisor, Motor Carrier Bureau, Texas Department
of Public Safety, 6200 Guadalupe, MSC# 0522, Austin, Texas 78752-4019, or
sent by facsimile to (512) 424-5310. Unless the report is for a refusal to
submit a sample, employers must also attach a legible copy of either the Federal
Drug Testing, Custody and Control Form (with at least steps one through six
completed), the U. S. Department of Transportation (DOT) Alcohol Testing Form
(with at least steps one through three completed), or the Medical Review Officer's
or Breath Alcohol Technician's report of a positive, diluted, adulterated,
or substituted alcohol or drug test
.
(3) - (5)
(No change.)
(b)
(No change.)
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 July 14, 2006.
TRD-200603744
Thomas A. Davis, Jr.
Director
Texas Department of Public Safety
Earliest possible date of adoption: August 27, 2006
For further information, please call: (512) 424-2135
Chapter 151.
GENERAL PROVISIONS
37 TAC §151.51
The Texas Board of Criminal Justice proposes an amendment
to Title 37, Part 6, Chapter 151, General Provisions, §151.51, concerning
Custodial Officer Certification and Hazardous Duty Pay Eligibility Guidelines.
Charles Marsh, Chief Financial Officer for the Texas Department of Criminal
Justice, has determined that for the first five years the rule will be in
effect, enforcing or administering the rule will not have foreseeable implications
related to costs or revenues for state or local government.
Mr. Marsh has also determined for the first five-year period that there
will not be an economic impact on persons required to comply with the rule.
There will not be an effect on small or micro businesses. The anticipated
public benefit, as a result of enforcing the rule, will be accurately reflect
eligibility guidelines for custodial officer certification and hazardous duty
pay.
Comments should be directed to Melinda Hoyle Bozarth, General Counsel,
Texas Department of Criminal Justice, P.O. Box 13084, Austin, Texas 78711,
Melinda.Bozarth@tdcj.state.tx.us. Written comments from the general public
should be received within 30 days of the publication of this rule.
The amendments are proposed under Texas Government Code, Chapter
659, Subchapter L and §813.506.
Cross Reference to Statutes: Texas Government Code, §§508.001,
811.001, 815.505, and the General Appropriations Act.
§151.51.Custodial Officer Certification and Hazardous Duty Pay Eligibility Guidelines.
(a)
Purpose. The purpose of this rule is to establish eligibility
criteria for authorizing custodial officer certification and hazardous duty
pay to employees of the Texas Department of Criminal Justice
(TDCJ or
[
(b)
Definitions. The following words and terms, when used in
this rule, shall have the following meanings unless the context clearly indicates
otherwise:
(1)
Custodial Officer Certification--Service certification
to the Employees Retirement System of Texas (ERS) for those employees whom
the Agency has determined are eligible for custodial officer service credit,
which provides an additional retirement incentive when such employees have
20 or more years of such service credit.
(2)
Custodial Officer Service Credit--Credit in the ERS for
service performed by an employee who is in a position that has been classified
as a Hazardous Duty Code 1, 2, 3, 4, 5, 6, 7 or 9 position in accordance with
the provisions of this Board Rule.
(3)
Direct Offender Contact--Contact with, and in the close
proximity to, offenders without the protection of bars, doors, security screens,
or similar devices while performing job duties. Such contact normally involves
supervision or the potential for supervision of offenders in offender housing
areas, educational or recreational facilities, industrial shops, kitchens,
laundries, medical areas, agricultural shops or fields, or in any other areas
on or away from Agency property.
(4)
Offender--For the purpose of custodial officer certification
and hazardous duty pay, an inmate confined in [
(5)
Releasee--A person released on parole or to mandatory supervision.
(6)
Routine Direct Offender Contact--Direct offender contact
that is regularly planned or scheduled while conducting Agency business. Routine
direct offender contact does not include travel time, unless the employee
is responsible for the transportation and custody of offenders, and does not
include casual contact.
(c)
Procedures.
(1)
Custodial Officer Certification. Employees in the following
positions are eligible for custodial officer certification:
(A)
Hazardous Duty Code 1 Positions. These positions are classified
as Correctional Officer I through Warden II;
(B)
Hazardous Duty Code 2 Positions. These positions are all
positions assigned to a unit, other than Hazardous Duty Code 1 positions,
that have job duties requiring routine direct offender contact. Examples include,
but are not limited to, the following: Agriculture Specialist, Maintenance
Supervisors, Food Service Managers, Laundry Managers, Commissary Managers[
(C)
Hazardous Duty Code 3 Positions. These positions are assigned
to administrative offices and have job duties requiring routine direct offender
contact at least 50 percent of the time. Examples of such positions include,
but are not limited to, the following: Investigators, Compliance Monitors,
Accountants routinely required to audit unit operations, Sociologists, Interviewers,
and Classification Officers.
Requests for positions to be included in
this category must be approved by the Deputy Executive Director.
Employees
in such positions and supervisors of such employees shall complete and submit
a Hazardous Duty Log in accordance with TDCJ procedures in order to justify
custodial officer certification;
(D)
Hazardous Duty Code 4 Positions. These positions are administrative
positions that routinely respond to emergency situations involving offenders.
Examples include: the Executive Director, Deputy Director, Correctional Institutions
Division Director, other Division Directors, some Managers (salary group B14
and above), and not more than 25 Administrative Duty Officers. Requests for
positions to be included in this category must be approved by the Deputy Executive
Director;
(E)
Hazardous Duty Code 5 Positions. These positions are filled
by employees whose custodial officer certification is "grandfathered" based
on the following criteria in accordance with SB 993, 69th Legislature:
(i)
The employees were in positions authorized custodial officer
certification and hazardous duty pay on August 31, 1985;
(ii)
The employees have not changed positions since August
31, 1985; and
(iii)
The positions do not meet other current hazardous duty
pay criteria.
(F)
Hazardous Duty Code 6 Position. Employees in such positions
and supervisors of such employees shall complete and submit a Hazardous Duty
Log in accordance with TDCJ procedures in order to justify custodial officer
certification. These positions are filled by employees whose custodial officer
certification is "grandfathered" based on the following criteria in accordance
with SB
1231
[
(i)
On August 31, 1995, the employees were assigned to
a Hazardous Duty Code 3 position;
[
(ii)
The employees continue to have some routine direct offender
contact although it is less than 50 percent routine direct offender contact.
(G)
Hazardous Duty Code 7 Positions. These positions are Parole
Officers, Parole
Case Managers
[
(H)
Hazardous Duty Code 9 Positions. Employees in such positions
and supervisors of such employees shall complete and submit an Emergency Response
Log in accordance with TDCJ procedures in order to justify custodial officer
certification. These positions are filled by employees whose custodial officer
certification is "grandfathered" based on the following criteria:
(i)
On August 31, 1995
,
the employees were assigned
to a position authorized custodial officer certification and hazardous duty
pay; and
(ii)
The employees have been designated as members of an Emergency
Response Team that may respond to emergency situations involving offenders.
(2)
Hazardous Duty Pay Authorized Positions. In addition to
the employees described in paragraph (1) of this subsection, employees in
the following positions may receive hazardous duty pay:
(A)
employees in positions authorized for custodial officer
certification;
(B)
employees in Hazardous Duty Code 8 positions. These include
employees and officials of the Parole Division or the Board of Pardons and
Paroles who do not meet the criteria for Hazardous Duty Code 7, but have routine
direct contact with offenders of any penal or correctional institution or
with releasees. Examples of such positions include, but are not limited to,
the following: Clerks, Administrative
Assistants
[
(3)
Each month the Agency shall certify to the ERS the names
of the employees and any other information determined and prescribed by the
ERS as necessary for the crediting of service and financing of benefits under §813.506
of the Texas Government Code.
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 July 13, 2006.
TRD-200603737
Melinda Bozarth
General Counsel
Texas Department of Criminal Justice
Earliest possible date of adoption: August 27, 2006
For further information, please call: (512) 463-0422
February
] 1, 2006. All other references in this section
to the Code of Federal Regulations also refer to amendments and interpretations
issued through
July
[
February
] 1, 2006.
Subchapter B. REGULATIONS GOVERNING TRANSPORTATION SAFETY
February
] 1, 2006. All other references
in this subchapter to the Code of Federal Regulations also refer to amendments
and interpretations issued through
July
[
February
] 1,
2006. The rules adopted herein are to ensure that:
(C)
] successfully complete the Other
Bulk Packaging Course; and
(D)
] participate in an on-the-job
training program following this course with a certified officer and perform
a minimum of 16 level I inspections on vehicles containing hazardous materials
in other bulk packaging. These inspections should be completed as soon as
practicable, but no later than six months after course completion.
and
]
.
]
,
] and/or
Part 6.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
(hereinafter,
] Agency), under the authority of the Texas
Government Code, §508.001,
§615.006,
Chapter 659, Subchapter
L
[
D, §§659.062
],
§§
811.001,
813.506, and 815.505; and the General Appropriations Act. In accordance with
these provisions and in keeping with the responsibilities of the
Texas
Board of Criminal Justice (Board),
[
Board,
] this rule relating
to custodial officer certification and hazardous duty pay applies effective
August 13, 2004.
the
] TDCJ
Correctional Institutions Division facilities.
[
institutions or
an inmate or defendant confined in the TDCJ state jails.
]
,
] and Classification Case Managers;
993
],
74th
[
69th
]
Legislature:
administrative offices and
had job duties requiring routine direct offender contact at least 50 percent
of the time;
] and
Caseworkers
], and
other employees of the Parole Division or the Board of Pardons and Paroles
whose majority of assigned duties include the assessment of risks and needs,
investigation, case management, and supervision of releasees to ensure that
releasees are complying with the conditions of parole or mandatory supervision,
or who directly supervise or are in a direct line of supervision over these
employees.
Technicians,
] and Laboratory Technicians assigned to Parole Field Offices.
Chapter 163.
COMMUNITY JUSTICE ASSISTANCE DIVISION STANDARDS