PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION
CHAPTER 164. HAZARDOUS EMPLOYER PROGRAM
28 TAC §§164.1 - 164.12, 164.14 - 164.18
(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for repeal will not be published.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 Insurance, Division of Workers'
Compensation or in the Texas Register office, Room 245, James Earl
Rudder Building, 1019 Brazos Street, Austin, Texas.)
The Texas Department of Insurance (Department),
Division of Workers' Compensation (Division) proposes the repeal of §§164.1
- 164.12 and §§164.14 - 164.18, relating to rules governing
the administration of the Hazardous Employer Program.
Under the Hazardous Employer Program, the Division was required
to identify employers as hazardous based on criteria established by
the Division. The public employers identified as hazardous were required
to develop accident prevention plans and the Division's predecessor,
the Texas Workers' Compensation Commission (TWCC), was required to
conduct follow-up inspections. Employers classified as hazardous were
entitled to request a safety consultation from the TWCC. Each employer
identified had the right to administrative review of the findings
of the TWCC and to request a hearing to contest the findings of the TWCC.
The rules are proposed for repeal because the statutory authority
for the rules, Labor Code Chapter 411, Subchapter D was repealed by
House Bill (HB) 7, enacted by the 79th Legislature, Regular Session,
effective September 1, 2005.
The Division continues to provide other safety services through
the Occupational Safety and Health Consultation (OSHCON) program,
pursuant to Labor Code §411.018. These services include safety
training, Occupational Safety and Health Administration (OSHA) consultations
and the OSHCON Resource Center.
Karen Puckett, Director for Outreach and Workplace Safety, has
determined that, for the first five years the repeal of the sections
will be in effect, there will be no fiscal implications for state
or local government as a result of enforcing or administering the
repeal, and there will be no effect on local employment or local economy
as result of the proposal.
Ms. Puckett has also determined that, for each year of the first
five years the repeal of the sections will be in effect, the public
benefit anticipated as a result of the repeal will be the elimination
of obsolete regulations. There will be no economic cost to any individuals,
or insurers or other Department regulated entities, regardless of
size, as a result of the proposed repeal.
In accordance with the Government Code §2006.002(c), the Department
has determined that these proposed repeals will not have an adverse
economic effect on small or micro business insurance carriers because
it is simply the repeal of obsolete rules. Therefore, in accordance
with the Government Code §2006.002(c), the Department is not
required to prepare a regulatory flexibility analysis.
The Department has determined that no private real property interests
are affected by these proposed repeals and that these proposed repeals
do not restrict or limit an owner's right to property that would otherwise
exist in the absence of government action and, therefore, does not
constitute a taking or require a takings impact assessment under the
Government Code §2007.043.
To be considered, written comments on the proposal must be submitted
no later than 5:00 p.m. on August 10, 2009. Comments may be submitted
via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/index.html
or by mailing or delivering your comments to Maria Jimenez,
Workers' Compensation Counsel, MS-4D, Division of Workers' Compensation,
Texas Department of Insurance, 7551 Metro Center Drive, Suite 100,
Austin, Texas 78744.
Any request for a public hearing must be submitted separately to
the Office of General Counsel, MS-1, 7551 Metro Center Drive, Austin,
Texas 78744 by 5:00 p.m. on August 10, 2009. If a hearing is held,
written and oral comments presented at the hearing will be considered.
The repeal of the rules is proposed under Labor Code §402.00111
and §402.061. Labor Code §402.00111 provides that the Commissioner
of Workers' Compensation shall exercise all executive authority, including
rulemaking authority, under Labor Code, Title 5. Labor Code §402.061
provides that the Commissioner of Workers' Compensation shall adopt
rules as necessary for the implementation and enforcement of the Texas
Workers' Compensation Act.
No other code, statute or article is affected by this rule action.
§164.1.Criteria for Identifying Hazardous Employers.
§164.2.Notice to Hazardous Employers.
§164.3.Safety Consultation for Public Employers.
§164.4.Formulation of Accident Prevention Plan for Public Employers.
§164.5.Follow-up Inspection for Public Employers by the Division.
§164.6.Report of Follow-up Inspection, Public Employers.
§164.7.Removal of Public Employers from Hazardous Employer Status.
§164.8.Continuation of Hazardous Employer Status, Public Employers.
§164.9.Approval of Professional Sources for Safety Consultations.
§164.10.Removal from the List of Approved Professional Sources.
§164.11.Request for Safety Consultation from the Division.
§164.12.Reimbursement of Division for Services Provided to Hazardous Employer.
§164.14.Values Assigned for Computation of Hazardous Employer Identification.
§164.15.Administrative Reviews and Hearings Regarding Identification as a Hazardous Employer.
§164.16.Removal of Private Employers from Hazardous Employer Status.
§164.17.Availability of OSHCON Services.
§164.18.Severability.
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 June 29, 2009.
TRD-200902670
Dirk Johnson
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: August 9, 2009
For further information, please call: (512) 804-4703
CHAPTER 169. WORKERS' HEALTH AND SAFETY--DRUG-FREE WORKPLACE PROGRAM