Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 22. EXAMINING BOARDS Part XII. Board of Vocational Nurse Examiners Chapter 239. Contested Case Procedure Definitions 22 TAC sec.239.1 The Board of Vocational Nurse Examiners adopts an amendment to sec.239.1, concerning definitions, without changes to the proposed text as published in the December 15, 1992, issue of the Texas Register (17 TexReg 8803). The amendment was adopted to include definitions for Exposure-prone procedure, Invasive procedure, and Universal precautions. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to govern its procedures and to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318329 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: February 19, 1993 Proposal publication date: December 15, 1992 For further information, please call: (512) 835-2071 Enforcement 22 TAC sec.239.11 The Board of Vocational Nurse Examiners adopts an amendment to sec.239.11, concerning Enforcement, with changes to the proposed text, as published in the December 15, 1992, issue of the Texas Register (17 TexReg 8804). The change in text is reflected in paragraph (14) which stated "contagious or infectious disease." This should have read "infectious and communicable disease." The rule is amended to allow for the addition of two items relating to infectious and communicable disease and to replace the terms "contagious or infectious" with the terms "infectious" and "communicable." No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.239.11. Unprofessional Conduct. Unprofessional or dishonorable conduct, likely to deceive, defraud, or injure the public may include the following described acts or omissions: (1) misappropriating supplies, equipment, or medications or personal items of the patient/client, employer, or any other person or entity; (2) administering medications and treatments in a negligent manner; (3) inaccurately recording, falsifying, or otherwise altering patient/client or employee records; (4) obtaining or attempting to obtain or deliver medication(s) through means of misrepresentation, fraud, forgery, deception, and/or subterfuge; (5) practicing vocational nursing in this state without a current Texas license; (6) practicing as a vocational nurse while the individual's ability to practice is impaired by alcohol, drugs, physical or mental disability; (7) aiding and abetting the practice of vocational nursing by any person not licensed to practice vocational or practical nursing; (8) impersonating a licensee, or permitting another person to use an individual's vocational nursing license for any purpose; (9) failing to report facts known to an individual regarding the incompetent, unethical, or illegal practice of any other licensed health care professional; (10) failing to cooperate with the agency by: (A) not furnishing any papers or documents requested; or (B) not responding to subpoenas issued by the agency; (11) knowingly engaging in a profession involving contact with the public while suffering from an infectious and communicable disease which presents a serious risk to public health; (12) knowingly performing an exposure-prone procedure while suffering from an infectious and communicable disease which presents a serious risk to public health, without counsel from a personal physician with knowledge of infectious diseases, infection control, the epidemiology of the disease, and procedures performed by the licensed vocational nurse; (13) knowingly failing to adhere to universal precautions for infection control as defined in sec.239.1 of this title (relating to Definitions). (14) refusing to treat a patient/client, or other person who suffers from an infectious and communicable disease involving serious risk to public health; (15) willfully betraying a practitioner-patient/client privilege as recognized by law; (16) interfering with an investigation or disciplinary proceeding by willful misrepresentation of facts before the agency or the board, or by the use of threats or harassment against any patient/client or witness to prevent them from providing evidence in a disciplinary proceeding or any other legal action; (17) knowingly causing or permitting physical or emotional injury to any person, or engaging in sexual contact with a patient/client; (18) knowingly and willfully referring any individual for treatment/rehabilitation with the express intent of receiving remuneration, either directly or indirectly; (19) knowingly falsifying and/or forging a physician's order/prescription; (20) failing to repay a guaranteed student loan, as provided in the Texas Education Code; (21) failing to conform to the minimal standards of acceptable prevailing practice, regardless of whether or not actual injury to any person was sustained, including, but not limited to: (A)-(I) (No change.) (22) being convicted of a crime which relates to the practice of vocational nursing. Those crimes which the board considers to be directly related to the duties and responsibilities of a licensed vocational nurse shall include, but are not limited to: (A)-(P) (No change.) (23) violating state or federal laws relative to drugs, including controlled substances and dangerous drugs; (24) In determining whether a crime not listed relates to vocational nursing, the board will consider: (A)-(D) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318330 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: February 19, 1993 Proposal publication date: December 15, 1992 For further information, please call: (512) 835-2071 Hearings Process 22 TAC sec.239.23, sec.239.24 The Board of Vocational Nurse Examiners adopts amendments to sec.239.23 and sec.239.24, concerning service of notice and hearings, without changes to the proposed text as published in the December 15, 1992, issue of the Texas Register (17 TexReg 8805). The amendments are adopted to more clearly explain what is considered service of notice of hearing or investigation and to serve notice that all hearings shall be held in Travis County. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to govern its procedures and to carry in effect the purposes of the law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318331 Marjorie A. Bronk, R.N., M.S.H.P. Executive Director Board of Vocational Nurse Examiners Effective date: February 19, 1993 Proposal publication date: December 15, 1992 For further information, please call: (512) 835-2071 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 5. Property and Casualty Insurance Subchapter D. Fire and Allied Lines Insurance Form Required to be Used for the Property Rating Unit 28 TAC sec.5.3301 The State Board of Insurance of the Texas Department of Insurance adopts sec.5.3301, concerning forms for distribution by property rating unit, with changes to the proposed text published in the October 27, 1992 issue of the Texas Register (17 TexReg 7576). Section 5.3301, which adopts by reference forms required to be used for the property rating unit, is amended to eliminate references to obsolete Form Numbers 323, Rate Revision Certificate -blue; 368, Sworn Statement of Average Annual Values-white; 368A, Sworn Statement of Average Annual Values (to be used with the Texas Multi-Peril Policy)-white; 400, Rate Request Form for Newly Erected Buildings-pink; Rate Request Form-white; Sworn Statement of Average Annual-white; Values for Computation of Average Rate for use with Report Form Number (Form Number 159)-white; Excess Rate Application-white; and Name Rate Application-white. The amendment is also needed to adopt a new Form Number 723, Application for Inspections and Revisions, which replaces Form Numbers 323, Rate Revision Certificate and 400, Rate Request Form for Newly Erected Buildings. The new Form Number 723 is formatted to provide a more simplified and efficient method of requesting inspections of new risks or revision of rates for existing rated buildings. In addition, the name and address of the agency is corrected to reflect that copies of the proposed forms are published and available from the Texas Department of Insurance, 333 Guadalupe Street, P.O. Box 149104, Austin, Texas 78714-9104. The new property rating form has been amended to include two minor changes which are the addition of location of risk wording to the address blank and a space for an internal control number on the top part of the form. The amendment eliminates obsolete forms that are no longer used by the property rating unit because of the adoption of House Bill 2 by the 72nd Texas Legislature which enacted a file and use system for general liability and commercial property insurance and thereby eliminated the average rate and net fire rate promulgation functions. In addition, the new application for inspection and revisions, which is used in the inspection process for establishing base fire insurance rates, simplifies the inspection process for base rate promulgation, replaces two existing forms, and condenses information required to be reported by the agent or company. No comments were received regarding adoption of the amendment. The amendment is proposed pursuant to the Insurance Code, Article 5.25, which requires the State Board of Insurance to conduct inspections of commercial property and to prescribe a manual of rules and rating schedules for commercial property insurance. sec.5.3301. Forms for Distribution by Property Rating Unit. (a) The State Board of Insurance adopts by reference forms for use in property rating. The forms are more specifically identified as follows: (1) 723, Application for Inspections and Revisions -white; (2)-(7) (No change.) (8) 368B, Protective Devices or Services Information Sheet-white; (9) 369, Fire Protection System-Grease Extractor Device-white; (10) 370, Hood and Duct Fire Extinguishing System Installation Inspection Record-white; (11) 371, Hood and Duct Fire Extinguishing System Annual Inspection Report- white; (12) 372, Certificate of Noncombustible Insulation or Interior Finish Material-white; (13) 360 FM, Certificate respecting roof deck assembly -white. (b) These documents are published by and available from the Texas Department of Insurance. Copies of these forms may be obtained by contacting the Deputy Insurance Commissioner, Property/Casualty Division, Mail Code 103-1A, Texas Department of Insurance, 333 Guadalupe, P.O. Box 149104, Austin, Texas 78714- 9104. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318345 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: February 19, 1993 Proposal publication date: October 27, 1992 For further information, please call: (512) 463-6327 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 330. Municipal Solid Waste Subchapter Z. Waste Minimization and Recyclable Materials Used Oil Reimbursement Fund 31 TAC sec.sec.330.1170-330.1174 The Texas Water Commission (TWC) adopts new sec.sec.330.1170-330.1174, concerning the reimbursement of used-oil collection centers for costs associated with disposal of used oil that has been rendered hazardous waste because of contamination. Section 330.1173 was adopted with changes to the proposed text as published in the December 22, 1992, issue of the Texas Register (17 TexReg 9002). Sections 330.1170-330.1172 and 330.1174 were adopted without changes and will not be republished. The new sections will now replace the emergency sec.sec.330.1170-330.1174 which were adopted by the TWC on August 26, 1992, and published in the September 4, 1992, issue of the Texas Register (17 TexReg 6072). The emergency regulations were extended an additional 60 days, as indicated in the December 18, 1992, issue of the Texas Register (17 TexReg 8871), and will expire on February 22, 1993. The TWC received three comments from the following entities: Star Enterprise; Texaco, Inc; and Pennzoil Company. One commenter requested that the TWC propose a new sec.330.1175 which requires the TWC to semi-annually provide a publicly available progress report and accounting of fund activity. This information would include the following information: the number of disbursements; description and destination of disbursements; description of any disbursements made which are unrelated to the applicability of these regulations; description of projects; status of projects; beginning balance; and ending balance. This commenter also requested that the progress report be made available to the industry affected by these regulations. The TWC does not believe that a rule is necessary to provide this information as the TWC currently produces a quarterly report which documents the information requested by the commenter. This report is available to the public upon request to the TWC. Therefore, affected industry may request and receive this quarterly report from the TWC. One commenter requested that the requirements that each collection center log the name, address and amount of used oil brought to the center by private citizens and that all do-it-yourselfers (DIY) collected oil be stored in a separate, sealed container on an impermeable surface be deleted on the assertion that these requirements are onerous and would, therefore, discourage collection of used oil from citizens. The commenter also requests that the fund reimburse spill costs associated with vandalism and spills caused by the public. Additionally, the commenter requested that the TWC ensure that its proposed revisions to waste code procedures be made available to used oil collection centers. The TWC does not agree with the comment that the logging requirements and storage requirements should be deleted. The TWC does not believe the requirements are unduly burdensome and the logging requirements allow a mechanism for ensuring that reimbursement is given for DIY oil and not for contamination caused by the collection center. Similarly, the requirements for separate storage of collected oil ensure that there is no commingling of contaminated DIY oil with stored uncontaminated oil, thereby rendering the entire storage container contaminated. The intent of this program is to encourage participation by private sector entities and to provide a mechanism for reimbursement in the event the participating collection center receives contaminated DIY oil. Reimbursing spills caused by vandalism or by the public goes beyond the scope of the TWC's intent and, therefore, the TWC does not agree with this change. The TWC's waste classification regulations as found in Subchapter R of 31 TAC Chapter 335 would apply to all municipal hazardous waste generators. Therefore, collection centers with contaminated used oil would be currently be subject to Subchapter R. One commenter requested that the term "not" be deleted from sec.330.1173(b) (1) in order to clarify that the center has to minimize the risk that the used oil will be mixed with hazardous wastes, not that the used oil will not be mixed with hazardous wastes. The TWC agrees with this clarification and will delete the term "not". The commenter requested that the phrase "to the satisfaction of the commission" be deleted as the commenter believes this is a vague and subjective standard. The TWC does not believe that this phrase should be deleted as it allows the TWC the ability to ensure that collection centers are providing a means of preventing the commingling of collected oil with hazardous substances. While this standard is subjective, the TWC would strive to apply this requirement in a reasonable manner. The commenter requested that sec.330.1173(b)(2)(A) be revised to require that an impermeable surface be required only for above-ground used oil tanks, and not those tanks stored underground. The TWC agrees with this comment and proposes language to sec.330.1173(b)(2)(A) to clarify this intent. The commenter requests that sec.330.1173(c) be clarified in regard to the proposal preamble to state that the cost reimbursement shall not exceed $5,000 per occurrence. In section sec.330.1173(c), the TWC intended that the $5,000 amount be a ceiling for total reimbursement costs for each participating collection center and that is not be for each contamination occurrence. Therefore, the preamble is incorrect and the rule should remain as stated. The commenter noted that the "total reimbursement for all operators authorized in any year shall be $500,000" while the language of sec.330.1173(d) does not state a yearly limitation. It is the TWC's intent that the $500,000 limitation is assessed on a fiscal year basis and, therefore, the TWC will amend sec.330.1173 as such. The new sections are adopted under the Texas Water Code (Vernon 1993), sec.5. 103, which provides the Texas Water Commission with the authority to adopt any rules necessary to carry out the powers and duties under the provisions of the Texas Water Code and other laws of this state. Additionally, these regulations are adopted pursuant to the Texas Solid Waste Disposal Act, Chapter 371 (Vernon 1993), which provides the Texas Water Commission with the authority to regulate municipal solid waste and adopt rules as necessary to regulate the operation, management, and control of solid waste under its jurisdiction. sec.330.1173. General Conditions and Limitations Regarding Used Oil Reimbursement. (a) The commission, upon proper application for used oil reimbursement, shall reimburse a properly registered used oil collection center for those costs associated with the disposal of the following: (1) do-it-yourself (DIY) oil which, unknown to the registered used oil collection center, contains hazardous wastes; or (2) used oil, which, when commingled with contaminated DIY oils, is rendered unsuitable for recycling. (b) A registered used oil collection center is eligible for reimbursement only if it demonstrates to the satisfaction of the commission the following: (1) the center has established procedures to minimize the risk that the used oil it generates and accepts from the public will be mixed with hazardous wastes, especially halogenated wastes; and (2) the center can document to the satisfaction of the commission the volume of used oil it has received from the public during a given time period by: (A) providing a process by which all DIY are required to log their name, address, and the approximate amount of used oil brought to the collection center, and ensuring that all DIY-collected oil is kept in a separate sealed and labeled container, and that above-ground storage tanks are placed on an impermeable surface; or (B) any other method approved by the commission. (c) In any commission fiscal year, a registered used-oil collection center shall be reimbursed for not more than $5,000 in total disposal costs, subject to the availability of funds. (d) Reimbursements made pursuant to this subchapter will be paid out of the Used Oil Recycling Fund in an aggregate amount not to exceed $500,000 per fiscal year. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318296 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: February 22, 1993 Proposal publication date: December 22, 1992 For further information, please call: (512) 463-8069 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 16. Commercial Driver's License Sanctions and Disqualifications 37 TAC sec.16.93 The Texas Department of Public Safety adopts an amendment to sec.16.93, concerning serious traffic violations and habitual violators, without changes to the proposed text as published in the December 25, 1992, issue of the Texas Register (17 TexReg 9092). The adoption of this amendment will ensure uniformity of sanctions and disqualification action imposed against commercial driver licensees as provided for and intended by the Commercial Motor Vehicle Safety Act of 1986. This amendment adds subsection (g) which will clarify "serious traffic violations" by defining "improper or erratic traffic lane change" as that term is used in Texas Civil Statutes, Article 6687b-2, sec.25. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6687b-2, sec.29 and the Texas Government Code, sec.411.006(4), which provides the Texas Department of Public Safety with the authority to adopt rules and regulations necessary to carry out the provisions of the Texas Commercial Driver's License Act and the Federal Commercial Motor Vehicle Safety Act of 1986. The director shall adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 26, 1993. TRD-9318358 James R. Wilson Director Texas Department of Public Safety Effective date: February 22, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 465-2000 Part VII. Texas Commission on Law Enforcement Officer Standards and Education Chapter 211. Administration Division Substantive Rules 37 TAC sec.211.67 The Texas Commission on Law Enforcement Officer Standards and Education adopts an amendment to sec.211.67, concerning the requirements for academy advisory boards, with changes to the proposed text as published in the December 18, 1992, issue of the Texas Register (17 TexReg 8947). This amendment will increase the flexibility of the advisory boards to establish admission standards for their respective academies. The amendment to this Section was adopted at the January 26, 1993, rescheduled regular meeting of the Commission. Section 211.67 was adopted as Final Order 92-8. The change is that the effective date for subsection (j) as amended has changed from June 1, 1993, to March 1, 1993. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, Chapter 415, sec.415.010(1) and sec.415.12, which provides the Texas Commission on Law Enforcement Officer Standards and Education with the authority to pass rules for the administration of Chapter 415, and Texas Civil Statutes, Article 6252-13a, which taken together establish the procedures for the rulemaking requirements for the Commission. sec.211.67. Academy Advisory Boards. (a)-(i) (No change.) (j) A board must advise on the establishment of admission standards, and determine the order of preference between employees or prospective appointees of the sponsoring organization and other persons, if any. No person may be admitted to a training course without meeting the admission standards. (k)-(l) (No change.) (m) The effective date of this section is February 1, 1990; and the effective date for subsection (j) as amended is March 1, 1993. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1993. TRD-9318274 Johanna McCully-Bonner General Counsel Texas Commission on Law Enforcement Effective date: March 1, 1993 Proposal publication date: December 18, 1992 For further information, please call: (512) 406-3619 37 TAC sec.sec.211.83, 211.98, 211.107 The Texas Commission on Law Enforcement Officer Standards and Education adopts the repeal of sec.211.83, concerning the requirements for minimum standards for retention of a license, sec.211.98, concerning psychological examination of an initial license applicant and sec.211.107, concerning the requirements for psychological re-examination of a license holder after break in service, without changes to the proposed text as published in the December 18, 1992, issue of the Texas Register (17 TexReg 8947). The adopted new sec.217.10, psychological declaration, will replace sec.211. 98 and sec.211.107. The Commission adopted the repeal of these three sections at the January 26, 1993, rescheduled regular meeting of the Commission. The repeals were adopted as Final Order 92-10. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, Chapter 415, sec.sec.415.010(1), 415.051, 415.060, and 415.57, which provides the Texas Commission on Law Enforcement Officer Standards and Education with the authority to pass rules for the administration of Chapter 415, and Texas Civil Statutes, Article 6252-13a, which taken together establish the procedures for the rule making requirements for the Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1993. TRD-9318273 Johanna McCully-Bonner General Counsel Texas Commission on Law Enforcement Officer Standards and Education Effective date: March 1, 1993 Proposal publication date: December 18, 1992 For further information, please call: (512) 406-3619 Chapter 217. Licensing Requirements, etc. Division 37 TAC sec.217.10 The Texas Commission on Law Enforcement Officer Standards and Education adopts new sec.217.10, concerning the procedure and filing requirements for the psychological declaration, with changes to the proposed text as published in the December 18, 1992, issue of the Texas Register (17 TexReg 8948). This new rule will replace the administrative procedures and filing requirements repealed at sec.211.98 and sec.211.107. This new Section was adopted at the January 26, 1993, rescheduled regular meeting of the Commission. sec.217.10 was adopted as Final Order 92-9. The changes to sec.217.10 as adopted included removal of the word "licensed" before psychiatrist and the expansion of the exceptional circumstance to permit a qualified physician employed by a law enforcement agency to sign the psycological declaration. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Government Code, Chapter 415, sec.sec.415.010(1), 415.051, and 415.057, which provides the Texas Commission on Law Enforcement Officer Standards and Education with the authority to pass rules for the administration of Chapter 415, and Texas Civil Statutes, Article 6252- 13a, which taken together establish the procedures for the rulemaking requirements for the Commission. sec.217.10. Psychological Declaration. (a) An initial license applicant or a licensed officer, or county jailer subject to the requirements of a 180-day break in service must undergo a psychological examination conducted pursuant to professionally recognized standards and methods. Neither the Government Code, Chapter 415 nor the rules of the commission require this examination to be conducted prior to a conditional offer of employment. This examination must be administered by an experienced professional who is a: (1) licensed psychologist or psychiatrist, selected by the requesting agency; or (2) licensed physician recognized under exceptional circumstances. (b) The declaration required by the commission is completed by the requesting agency and forwarded to the professional for completion, with information regarding the duties, responsibilities, and qualifications for the type of license and appointment sought. The chief administrator sends a copy of the current declaration to the commission. A declaration expires one year after its effective date, unless withdrawn by the professional. (c) The chief administrator shall require the applicant or licensee to sign a waiver of confidentiality prior to sending the declaration to the commission. The chief administrator shall retain the waiver on file, pursuant to the agency's record retention program, or for as long as the individual is carrying a current appointment with the agency. (d) The chief administrator shall notify the commission in writing within 10 days of its receipt from the professional of a withdrawal of a declaration based on false, misleading, or incorrect information, by forwarding a copy of same to the commission. (e) The commission may require, an initial license applicant or licensee to submit to another examination by a professional appointed by the commission within one year of the effective date of the declaration, or invalidate an existing declaration if it has cause to believe that: (1) the agency failed to follow commission rules relating to the declaration; or (2) the examinee, or the agency, has submitted a false or incorrect declaration. (f) The chief administrator requesting approval from the executive director to be allowed to use a licensed qualified physician, shall submit the declaration with written certification to the commission that the individual signing the declaration is a licensed qualified physician and either that the services of a licensed psychologist or psychiatrist is not available to the agency within a 100-mile radius of the agency; or that the licensed qualified physician is an employee of the law enforcement agency. The chief administrator shall be notified in writing if the request is not approved. (g) For the purposes of this section, the licensing types and capacities referenced in this section are: (1) peace officer and reserve; (2) jailer; and (3) armed public security officer. (h) The effective date of this section is March 1, 1993. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 27, 1993. TRD-9318275 Johanna McCully-Bonner General Counsel Texas Commission on Law Enforcement Officer Standards and Education Effective date: March 1, 1993 Proposal publication date: December 18, 1992 For further information, please call: (512) 406-3619 Part XIII. Texas Commission on Fire Protection Chapter 423. Fire Suppression Subchapter A. Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.423.1 The Texas Commission on Fire Protection adopts an amendment to sec.423.1, concerning minimum standards for basic structural fire protection personnel, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8416). The commission determined that the one-year experience requirement for certification as structure fire protection personnel was unnecessary in view of a change in the law requiring completion of basic fire suppression training prior to assignment to fire suppression duties and the implementation of an examination for structure certification. The amendment to sec.423.1 deletes the requirement of one year of employment with a duty assignment in structural fire suppression for certification as basic structure fire protection personnel. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318373 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 Subchapter B. Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.sec.423.205, 423.207, 423.209 The Texas Commission on Fire Protection adopts new sec. sec.423.205, 423.207, and 423.209, concerning minimum standards for higher levels of certification for aircraft crash and rescue fire protection personnel, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8416). These sections as adopted will result in higher levels of skill and training for advanced levels of aircraft crash and rescue fire protection personnel which will enhance the safety of aircraft crews and the flying public. The sections also replace obsolete language and harmonize the requirements for higher levels of certification with other disciplines of fire protection personnel. The new sections replace repealed sections relating to the same subject matter for intermediate, advanced, and master levels of certification. The years of experience and training courses required are consistent with the requirements for intermediate, advanced, and master structure fire protection personnel. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318368 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: April 1, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 37 TAC sec.sec.423.211, 423.213, 423.215 The Texas Commission on Fire Protection adopts the repeal of sec.sec.423.211, 423.213, and 423.215, concerning minimum standards for intermediate, advanced, and master aircraft crash and rescue fire protection personnel certification, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8418). The repeal of these rules will allow for replacement obsolete language by new sections intended to harmonize requirements for advanced levels of certification in various disciplines and enhance the training and skills of holders of higher levels of aircraft crash and rescue fire protection personnel certification. The sections adopted for repeal will be replaced by new sections relating to the same subject matter published in this issue of the Texas Register as adopted new rules. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318367 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: April 1, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 Chapter 427. Training Facilities Subchapter A. Minimum Standards for Structure Recruit Training Facilities 37 TAC sec.427.1 The Texas Commission on Fire Protection adopts an amendment to sec.427.1, concerning minimum standards for recruit training facilities for structural fire protection personnel, without changes to the proposed text as published in the December 11, 1992, issue of the Texas Register (17 TexReg 8615). The adoption of this section will allow for a more efficient organization of the requirements for training facility resources and minimum acceptable levels of safety for live fire training evolutions. The adopted amendment replaces the language requiring a "burn building" with language requiring a "building suitable for live fire training." The change is intended to clarify the resource requirements to permit a training facility to utilize a specially constructed burn building, as well as an acquired structure that is suitable for live fire training. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.028(b)(1), which provides the commission with authority to approve or revoke the approval of an institution or facility for a school operated by or for the state or a local government specifically for training fire protection personnel or recruits. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318369 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 11, 1992 For further information, please call: (512) 873-1700 37 TAC sec.427.9, sec.427.11 The Texas Commission on Fire Protection adopts amendments to sec.427.9 and sec.427.11, concerning structure recruit training facilities testing and staff, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8418). The adoption of these sections will allow for a clearer understanding by members of the fire service of testing requirements for structure recruit training facilities and a greater integration between paid and volunteer fire services. The adopted amendments reflect changes to the name of the curriculum in other sections, a change to the subject matter covered by the final test given at the conclusion of training by the training facility, and a new provision allowing instructors certified under the volunteer certification program to teach at training facilities for paid fire fighters. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules necessary to administer its powers and duties; and the Texas Government Code, sec.419.028(b)(1), which provides the commission with authority to approve or revoke the approval of an institution or facility for training fire protection personnel or recruits. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318370 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 Chapter 437. Fees 37 TAC sec.sec.437.1, 437.3, 437.5 The Texas Commission on Fire Protection adopts amendments to sec.sec.437.1, 437.3, and 437.5, concerning fees for certification, curriculum manuals, and renewal fees, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8419). The adoption of these amendments will allow for the deletion of obsolete language and a clearer understanding in the fire service of rules applicable to fees for certification, curriculum manuals, and renewal fees. The amendments reflect changes to the name of the commission, the manual, and include language clarifications applicable to renewal fees. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; the Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel; and the Texas Government Code, sec.419.025 and sec.419.026, which authorizes the commission to set and collect fees for each certificate that the commission issues or renews and for manuals. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318371 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 Chapter 439. Examinations for Certification 37 TAC sec.439.5, sec.439.17 The Texas Commission on Fire Protection adopts amendments to sec.439.5 and sec.439.17, concerning examinations for certification, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8420). The amendments as adopted will allow for the deletion of obsolete language inconsistent with statutory changes. The amendment to sec.439.5 changes the definition of "commission" to reflect a statutory reorganization by the 72nd Legislature. The amendment to sec.439.17 is intended to conform the rule to a statutory change concerning proficiency examinations. No comments were received regarding adoption of the amendments. The amendments are proposed under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules necessary to administer its duties and responsibilities; and the Texas Government Code, sec.419.032(b), which authorizes the commission to establish qualifications relating to basic certification tests. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318372 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 Chapter 441. Continuing Education 37 TAC sec.441.5, sec.441.7 The Texas Commission on Fire Protection adopts amendments to sec.441.5 and sec.441.7, concerning continuing education requirements, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8420). The amended sections will result in greater flexibility for assignment of fire protection personnel to various disciplines and the avoidance of costly or unnecessary public hearings through the use of voluntary suspensions in the case of continuing education deficiencies. The change to sec.441.5 is intended to provide an exemption from continuing education requirements for a person who does not serve at least six months in any discipline requiring continuing education. The language in sec.441.7 applicable only to structural fire protection personnel is deleted. In addition, a new subsection (f)(4) in sec.441.5, authorizes remedial measures, including a voluntary suspension, to correct continuing education hour deficiency. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its duties and responsibilities; and the Texas Government Code, sec.419.032(b), which authorizes the commission to establish qualifications relating to continuing education. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318375 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 873-1700 Chapter 485. Volunteer Fire Fighter Continuing Education 37 TAC sec.sec.485.1, 485.3, 485.5, 485.7 The Texas Commission on Fire Protection adopts new sec. sec.485.1, 485.3, 485. 5, and 485.7, concerning continuing education for certified volunteer fire fighters. Section 485.5 is adopted with changes to the proposed text as published in the December 11, 1992, issue of the Texas Register (17 TexReg 8616). Sections 485.1, 485.3, and 485.7 are adopted without changes and will not be republished. The adoption of these sections will allow for the competence of certified volunteer fire fighters to be maintained and volunteer fire fighters will be exposed to new developments in the fire service. In sec.485.5(a)(1) the words "known as Track "A"" and sec.485.5(a)(2) the words "known as Track "B" were added to distinguish between the two sections. Also, in sec.485.5 the text "be submitted to the commission for prior approval and must" was deleted to allow for advanced training without prior commission approval. The adopted new sections outline the objective of continuing education for volunteer fire fighters, define terms, and establish the continuing education requirements for renewal of volunteer fire fighter certification. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.485.5. Requirements. (a) Continuing education shall be required to renew certification for volunteer fire fighter certification. Continuing education shall consist of 20 hours of training to be conducted during the certification period. Continuing education may consist of either of the following types: (1) in-service training, known as Track "A," in basic subjects contained in the commission approved basic fire fighter curriculum intended to maintain basic knowledge and/or skills. This type of training shall be conducted by a qualified instructor and administered by a certified instructor; (2) advanced level training, known as Track "B," intended to increase knowledge and/or skills. This type of training shall meet all requirements set by the commission. (b) An individual who fails to comply with the continuing education requirements in this chapter shall be notified by the commission of the failure to comply and must complete one of the following requirements in order to maintain volunteer fire fighter certification: (1) complete the continuing education requirements for the certification period in which the individual failed to comply, within 60 days from the end of that certification period. The training officer or chief of the department shall document to the commission in writing that the individual's continuing education requirements for the certification period in question were met within the 60-day period allowed; or (2) if more than 60 days have passed since the end of the certification period and the continuing education requirements were not met, the individual desiring certification must pass a commission administered exam pertaining to the certification desired; or (3) if more than 60 days have passed since the end of the certification period and the continuing education requirements were not met, the individual desiring certification must complete the current requirements set by the commission that would have been required had the individual never been certified. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318374 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: February 22, 1993 Proposal publication date: December 11, 1992 For further information, please call: (512) 873-1700 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Administration Employment Practice 43 TAC sec.1.71 The Texas Department of Transportation adopts the repeal of sec.1.71, concerning minimum age, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7049). Repeal of this section is necessary because of the contemporaneous adoption of new sec.4.10 and sec.sec.4.12-4.14 concerning job application procedures, which incorporate the provisions of the repealed section. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318283 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: February 18, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 43 TAC sec.1.72 The Texas Department of Transportation adopts the repeal of sec.1.72, concerning husband and wife, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7049). Repeal of this section is necessary to eliminate an obsolete and inappropriate policy of unqualified prohibition against the employment of both a husband and wife within the department. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318284 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: February 18, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 Chapter 4. Employment Practices Subchapter B. Job Application Procedures 43 TAC sec.sec.4.10, 4.12-4.14 The Texas Department of Transportation adopts new sec. sec.4.10 and 4.12-4.14, concerning purpose, job vacancy notices, notification, and application, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 7049). Texas Civil Statutes, Article 6252-11b, requires the posting of job vacancies occurring or to be filled in Travis County. House Bill 2556, 72nd Legislature, 1991, added Texas Civil Statutes, Article 5221g-2, to require a state agency to list an opening with the Texas Employment Commission if persons from outside the agency will be considered for that opening. Senate Bill 352, 72nd Legislature, 1991, added Texas Civil Statutes, Articles 6668a, 6668b, and 6669a, to require, among other things, intraagency postings of all nonentry positions concurrently with any public posting, the preparation and maintenance of a written policy statement to assure implementation of a program of equal employment opportunity under which all personnel transactions are made free of discrimination, and the opening of all positions compensated at or above the amount prescribed by the General Appropriations Act for step 1, salary group 21, of the classification salary schedule to applicants both from within and outside the department. In order to meet the legislative intent of those statutes, the Texas Department of Transportation Commission and the Texas Department of Transportation have determined that it is necessary to establish policies and procedures governing the content and distribution of job vacancy notices and the procedures by which an applicant may apply in response to a notice. Section 4.10, concerning purpose, states the employment policy of the commission and the department and outlines the purpose of the subchapter. Section 4.12, concerning job vacancy notices, requires the department to develop and disseminate job vacancy notices, and describes the content of a notice. Section 4.13, concerning notification, requires the department to notify its employees and the public of vacant positions, and describes how job vacancy information will be distributed and published. Section 4.14, concerning application, describes the procedures by which an applicant may apply in response to a job vacancy notice, and provides that the department will not accept an application from an applicant who is not 17 years of age or older as of the date of hire. A public hearing was held on November 5, 1992, and no comments were received. The new sections are adopted under Texas Civil Statutes, Article 6666, which provides the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, Article 6668a, which requires intraagency postings of all nonentry positions concurrently with any public postings, and Article 6669a, which requires the department to open certain positions to applicants both from within and outside the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318285 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: February 18, 1993 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-8630 Chapter 11. Design Division Private Toll Roads 43 TAC sec.sec.11.100-11.107 The Texas Department of Transportation adopts new sec. sec.11.100-11.107. Sections 11.102-11.107 are adopted with changes to the proposed text as published in the August 14, 1992, issue of the Texas Register (17 TexReg 5675). Sections 11.100 and 11.101 are adopted without changes and will not be republished. Texas Civil Statutes, Article 6674v.la, prohibit a private entity or corporation from constructing any privately owned toll project which connects to a road, bridge, or highway included in the state highway system unless approved by the commission and the department, and requires the commission to adopt procedural and substantive rules and regulations for the approval of construction of such a toll project. In addition, Article 6674v.la requires such rules to include consideration of the integration of the project into the state highway system embodied in regional transportation plans, the potential impact of the project on local economies, and the potential impact of the project on the free flow of trade with Mexico. The commission has determined that since the relevant private toll projects will be open to the public and interconnected with the state highway system, thereby providing for continuous public travel, the rules should protect the health and safety of the traveling public, protect the environment, and provide for public involvement by ensuring that private toll projects will be designed and constructed to department standards, will have no significant adverse impact on the environment, will produce revenue sufficient to finance the construction, maintenance, operation, design, and planning of the project, will include all interested parties in the planning and decision making phases, and will be operated after construction in a safe manner. Section 11.100, Purpose, describes the statutory role and authority of the Texas Transportation Commission and the Texas Department of Transportation in approving a private toll project constructed by a private entity or corporation. Section 11.101, Definitions, defines words and terms used in these sections. Section 11.102, Preliminary Studies, outlines the requirements and procedures for an applicant to perform a feasibility study and a study of the social and environmental impact of the project and to allow public involvement prior to submitting an application to the department for a project. Section 11.103, Application, explains the steps an applicant must follow in filing an application, accompanied by preliminary studies, and information concerning integration and compatibility with the state highway system and any regional transportation plan, economic impact, and free trade with Mexico. Section 11.104, Project Requirements, requires: certification or approval of design field changes; the filing of as-built plans; compliance with state and federal law; compliance with department procedures for the posting of speed limits; approval of the Federal Highway Administration when providing access to certain roadways; department approval of work within state right-of-way; and work on state right-of-way to be accomplished at the expense of the applicant. Section 11.105, Hearing, provides for the department to conduct one or more public hearings to receive public comment on a proposed project. Section 11.106, Commission Action, authorizes the Texas Transportation Commission to preliminarily approve a project if the Commission makes certain findings concerning consistency with transportation plans, economic impact, free flow of trade, and financing; and requires the Commission to consider project impact on the local economy. Section 11.106 also provides that the commission will not approve a project unless the project provides for all reasonable and feasible mitigation measures and provides that the commission will grant final approval if an applicant submits project plans and specifications in compliance with department design manuals and standard specifications. Section 11.107, Compliance, provides that a private toll project may not be connected to the state highway system if the private entity fails to meet commission requirements for approval, and further that failure to meet any requirement for operating and maintaining the project will cause the department to sever any connection with the state highway system. Section 11.107 also provides for written notice of denial or severance of connection and an opportunity to remedy, and provides for administrative appeal of a department action to deny or sever connection. The Texas Department of Transportation held a public hearing on August 26, 1992, to receive comments concerning the proposed new sections. National Transportation Authority, a joint venture of Greiner Engineering and the Perot Group, and Camino Columbia, Inc. both presented oral and written comments. Both entities stated that they were in support of the rules with revisions. Lehman Brothers, a division of Shearson Lehman Brothers, Inc., submitted written comments and stated that the approval process may be too onerous. The City Council of the City of Laredo adopted a resolution approving the proposed rules in their present form. Written comments were also submitted by an individual on behalf of the City of Laredo. Many comments were received expressing concern that the rules require extensive investment prior to approval, and complaining that it would be difficult to raise funds to complete all of the preliminary studies if there is a risk that the project would not be approved. One commenter requested a two-step review process whereby the first step would be a policy level approval and the second would involve the implementation of the project. This type of approval would serve to limit capital investment in a project which may not secure final approval. More specifically, the commenter objected to investing in extensive design and environmental review prior to approval. Another commenter suggested a multi-level review process similar to the process currently used by the department for its projects. Several other commenters suggested delaying the submittal of plans and specifications and substituting more limited studies for the preliminary studies required under sec.11.102. One commenter stated that the requirement for the applicant to submit full plans and specifications prior to project approval would impose an unbearable expense on the project, and another commenter cited what was considered to be the enormous risk and financial burden on applicants by requiring plans and specifications prior to project approval. This commenter suggested using a method adopted in California utilizing a design engineering report submitted with the application. Regarding the preliminary studies, one commenter suggested that the preliminary studies should be limited to just sufficiently identify major project flaws or impacts, thereby reducing pre-approval risk to the private investor. Similarly, one commenter stated that the level of environmental studies goes far beyond customary preliminary coordination and investigation. He suggested submitting an Environmental Review Report that will outline the expected procedures and methods that the applicant is expected to use in satisfying the requirements of sec.11.102(a). Finally, another commenter suggested streamlining evaluation by providing for a separate process ensuring that approved projects meet required safety and environmental standards. The department partially concurs with these suggestions, but strongly believes that the commission would not be able to make a properly informed decision on the feasibility and appropriateness of a project prior to completion of an environmental review, a public hearing, and the completion of studies necessary to comply with statutory requirements relating to free flow of trade and local economies. Moreover, the department must ensure that not only the design, safety, and environmental compliance is achieved before commission approval, but adequate public involvement, permit approvals, and state and federal agency coordination is secured by the applicant. Specifically, concerning environmental review, the department believes that in order for the commission to make an informed decision in the public interest, it must have available all the information typically found in a NEPA-type environmental review. The department, therefore, believes it is important that the applicant complete a thorough environmental review that follows NEPA regulations prior to a public hearing and prior to any review on the part of the commission, so that decisions can be made with a full understanding of the impact upon the environment. Concerning plans and specifications, the department feels that significant advance or "up front" investment in detailed project design can be deferred without impairing that decision process. Sections 11.103 and 11.106 are, therefore, revised from the published text to provide for initial, preliminary commission approval and for a final approval upon submission of plans and specifications. Section 11.103 is also revised to clarify and relocate language regarding preliminary design under sec.11.102. Concerning proposed sec.11.102, one commenter stated that financial feasibility of private projects is an evolving process, particularly the methods of financing. He claimed that the ultimate feasibility cannot be determined until later stages of project development. Section 11.102, Preliminary Studies, requires the applicant to submit a proposed method for financing the planning, design, construction, maintenance, and operation of the project. However, the commission decision to approve the proposed project is based in part on the sufficiency of revenue produced by the toll facility to finance construction, maintenance, operation, design, and planning costs, not the total method of financing. Moreover, financial feasibility could be related to the impacts of the projects on local economies. Concerning proposed sec.11.103(a), one commenter suggested that the department assign a staff person to act as the primary liaison between the department and the project sponsor. Section 11.103(a) is revised from the published text to provide that an applicant must file an application with the department's director of highway design or his or her designee who shall serve as department liaison for the project. Concerning proposed sec.11.103(a)(2)(A), two commenters suggested that requiring certification of project compatibility amounted to giving local jurisdictions "veto" power over the vested statutory rights of private toll road corporations. Additional comments were made that metropolitan planning organizations (MPOs) are creatures of federal law and that the Intermodal Surface Transportation Efficiency Act of 1991 prohibits MPOs from placing legal constraints on private facility providers such as private toll corporations. The department does not concur with these arguments. The department believes that MPO approval is consistent with commission policy requiring local support for highway projects. More importantly, the role of MPOs in the overall transportation planning process now mandated by state and federal law renders their involvement in the approval of private toll facilities indispensable. From local and regional transportation plans is derived the statewide plan. Those plans can be significantly affected by the insertion or connection of a private toll facility with the public free system of highways. MPO participation in the approval process is thus essential to the department's and commission's planning responsibilities, and is within the purview of the legislative directive to consider integration with the state system as embodied in regional and MPO generated transportation plans. The private toll road does not exist in a vacuum-it becomes a de facto part of the state's highway network and must be evaluated in that context. With regard to the comment that an MPO has an effective veto, such was not intended by the commission, rather the commission will make the final determination of compatibility or consistency of the project with regional and state transportation plans while giving due consideration to the MPO's assessment of the project. To clarify this intent, sec.11.106 is revised to reflect that the commission, prior to granting preliminary approval of a project, will consider the views, comments, and certification, if any, submitted under sec.11.103(a)(2)(A). Also concerning proposed sec.11.103(a)(2)(A), one commenter objected to the requirement of "compatibility" with the regional transportation plan. The commenter argued that the statute required consideration of the "integration" of the project into the state highway plan embodied in the existing regional transportation plan, and asserted that the terms "compatibility" and "integration" are not the same. The department does not concur with this comment. The private project is interconnected with the public free system and, as such, must not disrupt or interfere in that system as embodied in the regional plans, but should be compatible with them. Consideration of compatibility, therefore, is how integration will be determined. Concerning proposed sec.11.103(b), one commenter stated concern that the proposed rules would not protect the toll corporation from future changes in design, construction, and operation standards. Another commenter suggested requiring applicants to conform to changes in critical safety standards that are applicable to all comparable public and private roadways. An applicant will be required to comply with department design and construction standards current at the time plans and specifications are submitted. The department assumes that applicants will act in the public interest and ensure that a project conforms to any changes in critical safety standards. Concerning sec.11.103(c), relating to as-built plans, the text is revised to make explicit the implied requirement that as-built plans shall incorporate any field changes, and the text is relocated under sec.11.104, Project Requirements, which is a more appropriate section. Concerning proposed sec.11.104, one commenter suggested that the department expedite and cooperate in obtaining necessary permits and approvals. The department is responsible for designing, constructing, maintaining, and operating the state highway system of Texas. The department is not lawfully able to perform the preliminary engineering activities for a private corporation on a private toll facility which is outside its statutorily mandated authority. However, since a private toll connection to a state highway facility may require approval of changes in access control, the department will coordinate the request for approval with the appropriate Federal Highway Administration office. All other coordination with state and federal agencies as required by law are to be accomplished by the private toll entity. Concerning sec.11.102 and sec.11.105, one commenter suggested the elimination of duplicate public hearing requirements by stating that public involvement will be adequate pursuant to the environmental process. The public involvement process required in sec.11.102, Preliminary Studies, is to allow the applicant to address issues or concerns during the early stages of project development for the benefit of the local communities served by the toll facility. The public hearing held by the department will be to allow for comment to the department and the commission by anyone concerning the proposed toll facility. The application, environmental documentation, and the applicant's public hearing report will be open for public review prior to and during this hearing. Concerning sec.11.105, one commenter asserted that the public hearing held pursuant to this section must be, if requested by a potentially affected party, a contested case hearing held pursuant to the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a). The commenter wanted to ensure that affected parties may fully evaluate the merits of a project and that a municipality be assured that it can present arguments to the commission. The department does not concur with this comment. First, no change to proposed sec.11.105 is necessary to satisfy the concerns of the commenter. Section 11.105 requires the commission to hold a hearing, and allows a municipality and other entities and individuals to present arguments. Second, a contested case proceeding is more in keeping with adversarial proceedings where legal rights of parties are adjudicated, and would not be appropriate in determining the characteristics and feasibility of a project. Also concerning proposed sec.11.105, the text as proposed has been revised to correct a grammatical error. There is no substantive revision to the section. Concerning proposed sec.11.106, one commenter suggested that in lieu of absolute measure, the rules should provide the commission with sufficient discretion and flexibility to weigh and consider the statutorily required considerations relating to consistency with statewide and regional plans, free flow of trade, and economic impact in determining project approval. Another commenter, however, stated that the findings required by sec.11.106 are "absolutely necessary to insure that private toll road projects are sufficiently analyzed so as to determine the actual cost/benefits of proposed private toll road projects." The department partially concurs with suggestions that the rules provide the commission with sufficient flexibility since a project may have a relatively minor adverse impact on a particular locality and yet have a significant positive impact on the region. Therefore, sec.11.106(a)(3), regarding adverse impact on the economy, is revised from the published text to provide that the commission will not approve a project that will have a significant overall adverse impact on the region in which the project is located. The published text of sec.11.106 is further revised to require the commission to consider the impact on the economies of each county in which the project is to be located and of the municipalities within those counties. Section 11.106(a)(4), regarding free trade with Mexico, is revised to provide that the commission will not approve a project that will have a significant long-term adverse impact on the free flow of trade. Impacts on the economies of localities and the free flow of trade will be based on the applicant's analyses submitted in the application for approval and any rebuttals or differing analyses presented in the respective public hearings held by the applicant and by the department. The section regarding consistency with statewide and regional plans is revised only to clarify the original intent which is to require consistency with both the statewide plan and with regional plans. It would not be appropriate under state or federal planning responsibilities for the commission to approve a project that is inconsistent with any relevant, duly adopted, transportation plan. Section 11.106 also provides that the commission will not approve a project that will have significant adverse impacts on the environment. Since new location highway projects typically have significant adverse environmental impacts, the section is revised to state that the commission will not approve a project unless it includes all reasonable and feasible measures to avoid, minimize, or mitigate for adverse environmental impacts as well as, when practicable, measures to enhance the environment. Section 11.106 is also revised to make explicit the implied requirement that a commission order of approval or disapproval will include the rationale, findings, and conclusions on which approval or disapproval is based. Concerning proposed sec.11.107, one commenter suggested that the department's right to sever connection to the state highway system in the event of the applicant's noncompliance may chill or prevent investment in a project. Another commenter stated that the compliance provisions in proposed sec.11.107 will discourage potential investors. The department believes that retaining the right to sever in the event of noncompliance is appropriate since it is the connection to the state highway system that gives the commission jurisdiction and the responsibility to approve the project. Moreover, severance is the only practical and effective means available to the department to ensure compliance with the commission's approval order and with the rules, subsequent to final approval. It was implicit that appropriate prior notice would be given and that an applicant could administratively appeal a department decision to sever a connection. Such actions by the department would be subject to contested case appeal pursuant to sec.sec.1.21-1.63 of Title 43. Section 11.107 is revised to explicitly state that any decision by the department to not allow connection to the system subsequent to final approval or to sever the connection subsequent to construction may be appealed pursuant to the department's contested case procedure. Section 11.107 is also revised to require the department to provide reasonable notice to the applicant that it is in noncompliance and of the intended action by the department. Two commenters were concerned that the commission's approach to approval of a toll project should be to facilitate project financing with private investors. It was recommended that the department assist in creating an investment climate sufficient to attract private toll facility capital. The department recognizes the natural desire of any private entity to have a healthy investment climate sufficient to attract capital; however, both the department and the commission have an obligation to comply with the mandates of Texas Civil Statutes, Article 6674v.la and to ensure that any toll project connecting to the state highway system is safe for the traveling public, is environmentally sound, and is developed consistent with public involvement principles and regional planning processes. As in all other endeavors and programs, the commission and the department will approach private toll operations in a positive and progressive manner, to the best of its statutory ability and constitutional abilities. One commenter, pointing to projects his organization has developed in California and other states, asked for certain assurances to protect the applicant. He stated that before a private developer can attract risk capital for environmental studies and design engineering, an exclusive development opportunity must be provided. In particular, the commenter suggested granting the developer the "right" to develop a financially feasible project without competition from another public or private entity over the same project. The commenter also stated that the rules need to incorporate provision for, or certain protection from, the consequences of new or expanding facilities. The department cannot concur with these suggestions. The department and the commission do not have any specific legal authority to prevent competition from another public road building authority. The actions of those entities and their complex interaction with the commission and the department are governed by statute. The department and the commission also lack the authority to bind future commissions from constructing new or expanded facilities, since neither the commission nor the department can lawfully contract away or abdicate their discretionary powers and duties. One commenter stated that protection needed to be granted against future government action where such reviews would damage or destroy the approval originally given; and, suggested that the state ameliorate the adverse effects of such action on the developer. Like any other governmental body, the commission cannot act in an arbitrary, capricious, or illegal manner. It must be assumed that once approval is granted, it would not be withdrawn or altered without cause. As far as protecting an applicant from actions of other agencies, the commission lacks any legal authority to interfere with any legally authorized or mandated involvement by other governmental entities, especially state or federal regulatory agencies. One commenter requested that lender protection and cure rights be provided in the rules to compensate third party damages due to default by the toll corporations or entities. Applicants are corporate legal entities and the survival of their rights, duties, and liabilities are governed by applicable law. One commenter suggested a specific timetable for project approval after submission of application. Imposing an arbitrary timetable could work to the detriment of all concerned. Design features and project details will vary from project to project. This concern and the possibility of unforeseen problems could result in the necessary time for proper study and resolution being compromised. The department will make every reasonable effort to review applications in a timely manner and the commission will act as soon as is practicable. One commenter suggested that project approval be valid and irrevocable so long as construction commences within five years. The department cannot concur with this suggestion. The legislation requiring commission approval of certain toll projects did not authorize the commission to impose time limits on toll road corporations. The new sections are adopted under Texas Civil Statutes, Articles 6666 and 6674v.la, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and to adopt procedural and substantive rules and regulations for the approval of construction of a private toll project that connects to the state highway system. sec.11.102. Preliminary Studies. (a) Studies. Prior to submitting an application to the department for the approval of a project, an applicant shall conduct a feasibility study and a study of the social and environmental impact of the project. (1) Feasibility study. An applicant shall conduct a feasibility study to determine the financial viability of the proposed project. The study shall include: (A) the proposed method for financing the planning, design, construction, maintenance, and operation of the project; and (B) traffic data and projections. (2) Social and environmental impact. An applicant shall conduct a study of the social and environmental impact of the project, consistent with the spirit and intent of the National Environmental Policy Act, 42 United States Code, sec.sec.4321 et seq, and 23 United States Code, sec.109(h). The study shall include the following components. (A) Route and alignment. The applicant shall provide a design geometric layout certified by a registered professional engineer to be in accordance with design manuals that will: (i) identify the selected route and alignment as well as the alternative routes and alignments which were considered; (ii) provide evidence of the project's logical termini and independent utility; (iii) provide the location of interchanges, mainlanes, grade separations, ramps, profiles and horizontal alignment, projected traffic volumes, and right- of-way limits for all routes and alignments considered; and (iv) identify revisions or changes to state highway system facilities necessitated by the project. (B) Environmental documentation. (i) An applicant shall prepare an environmental assessment and/or an environmental impact statement in accordance with sec.11. 87 of this title (relating to Environmental Assessments) and sec.11.88 of this title (relating to Environmental Impact Statements). (ii) The form and content of an environmental assessment and environmental impact statement prepared by an applicant and any decision by an applicant that an environmental impact statement is not necessary must be approved by the department. (b) Public involvement. An applicant shall provide for public involvement by: (1) complying with sec.11.85(b) of this title (relating to Early Coordination and Public Involvement); (2) holding one or more public hearings following the completion of the studies required by this section as may be necessary to ensure participation by each community affected by the project; and (3) notifying the department in writing not less than 10 days in advance of all public meetings and public hearings held under this section. (c) Record. An applicant shall provide the department a summary of all public meetings and a summary and analysis of all public hearings held under this section. The summary and analysis for each public hearing shall include: (1) the verbatim transcript of the hearing; (2) a summary of comments received, and the response to and analysis of comments; (3) any proposed changes in project location and design planned as a result of comments; and (4) certification that the public hearings were held in accordance with sec.11.85 of this title (relating to Early Coordination and Public Involvement), and the Civil Rights Act of 1964. (d) Revision to environmental document. Following the public hearing, an applicant shall revise the environmental document for the project to address any issues or concerns identified during the public involvement process. sec.11.103. Application. (a) To secure approval of a project, an applicant must file an application with the department's director of highway design or his or her designee who shall serve as department liaison for the project. The application shall be in a form prescribed by the department, and must be accompanied by the following items: (1) preliminary studies and the record and analysis of public involvement completed in accordance with sec.11.102 of this title (relating to Preliminary Studies); (2) an analysis of project impact, which must include the following: (A) integration with the state highway system and, if located within the jurisdiction of a metropolitan planning organization in an urbanized area, certification from that organization that the project is compatible with the existing regional transportation plan; (B) economic impact based on a study assessing the potential impact of the project on the economy of the region in which the project is to be located, including the economies of each county in which the project is to be located and of the municipalities within those counties; and (C) impact on trade with Mexico, consisting of an assessment of the potential impact of the project on the free flow of trade between the Republic of Mexico and the State of Texas with respect to a project located in whole or in part in a county adjacent to the border between the state and the Republic of Mexico, or in a county adjacent to such a county. (b) If the department finds that the initial application meets the requirements of subsection (a) of this section, and that the preliminary design is in compliance with the design manuals, it shall notify the applicant of its findings and shall conduct one or more public hearings to receive public comment on the proposed project; and, subsequent to the public hearings, it shall submit the application together with its findings and recommendations to the commission for appropriate action. sec.11.104. Project Requirements. (a) Field changes. Any design field change during the course of construction shall be certified by a registered professional engineer as being in conformance with the department's design standards contained in the design manuals. A design field change relating to the connection of the proposed project with the state highway system must be approved by the department. (b) As-built plans. Upon completion of construction of the project the applicant shall file with the department a set of the as-built plans incorporating any field changes during construction. These plans with field changes shall be signed, sealed, and dated by a registered professional engineer certifying that the project was constructed in accordance with the plans and specifications. (c) State and federal law. An applicant shall comply with all federal and state laws and regulations applicable to the project and shall provide or obtain all permits, plans, and other documentation required by a federal, state, or local governmental entity. (d) Speed limit. Upon completion of the project, posted speed limits for the various categories of vehicles shall be established in accordance with the procedures utilized by the department for the state highway system, but, in no case shall such limits exceed the maximum prima facie speed limits prescribed by federal law for a public road having the same characteristics. (e) Access. For proposed projects which will provide new access to a roadway requiring Federal Highway Administration (FHWA) approval of changes in access control, the applicant shall submit to the department all data necessary to request FHWA approval. (f) Work on state right-of-way. All work required within the limits of state owned right-of-way shall be accomplished only pursuant to express written agreement with the department and at the sole expense of the applicant. This work will include all connections with, and necessary modifications to, state highways, and any necessary preliminary engineering and construction inspection. The department may, however, allow work to be accomplished by the applicant on appurtenant facilities. sec.11.105. Hearing. A public hearing held by the department for the purposes of sec.11.103(b) of this title (relating to Application), shall be conducted by the executive director or his or her designee. Any persons, including, but not limited to, official representatives of a county, municipality, metropolitan planning organization, or other governmental entity, and any individual, group, or association may provide comment. sec.11.106. Commission action. (a) Preliminary approval. (1) The commission may preliminarily approve the construction of a project if it finds that the project: (A) will be consistent with the state transportation plan and an existing regional transportation plan developed by a metropolitan planning organization, if any, of a municipality within whose municipal limits or extraterritorial jurisdiction the proposed project is to be located; (B) will have no significant overall adverse impact on the economy of the region in which the project is to be located; (C) will have no significant overall adverse impact on the free flow of trade between the Republic of Mexico and the State of Texas with respect to a project located in whole or in part in a county adjacent to the border between the State and the Republic of Mexico or in a county adjacent to such a county; and (D) will produce the revenue sufficient to finance the construction, maintenance, operation, design, and planning of the project based upon accurate traffic data and projections. (2) Prior to granting preliminary approval of a project, the commission shall consider: (A) the impact of the project on the economies of each county in which the project is to be located and of the municipalities within those counties; and (B) the views, comments, and certification, if any, of a metropolitan planning organization submitted under sec.11.103(a)(2)(A) of this title (relating to Application). (3) The commission may not grant preliminary approval of a project unless it finds that the project will provide for all reasonable and feasible measures to avoid, minimize, or mitigate for adverse environmental impacts as well as, when practicable, measures to enhance the environment. (b) Final approval. Subsequent to preliminary commission approval under subsection (a) of this section, the applicant shall submit plans, specifications, and estimates. If the department finds the plans and specifications to be in compliance with the design manuals and the latest versions of the department's standard specifications for construction of highways, streets and bridges, the commission will grant final approval for the project. All construction plan sheets shall be signed, sealed, and dated in accordance with the Texas Engineering Practice Act by a registered professional engineer. (c) Order of approval or disapproval. Preliminary and final approval of the project shall each: (1) be by written order of the commission; (2) include the rationale, findings, and conclusions on which approval or disapproval is based; and (3) if approved, contain any specified conditions deemed by the commission to be necessary and appropriate. sec.11.107. Compliance. (a) If, subsequent to final commission approval and prior to completion of the project, the applicant, for any reason, fails or refuses to satisfy any requirement for commission approval of the project, the applicant may not connect the project to any portion of the state highway system. (b) If, subsequent to final commission approval and completion of the project, the applicant, for any reason, fails or refuses to satisfy any requirement concerning the operation and maintenance of the project, the department shall sever the connection of the project to any portion of the state highway system and erect such barriers or barricades as may be appropriate for such purpose. (c) Prior to denying or severing connection to a portion of the state highway system, the department will provide the applicant written notice of noncompliance stating the reasons for denial or severance. The applicant will be granted reasonable notice to bring the project into compliance. (d) An applicant may appeal a decision under this section to deny or sever connection to a portion of the state highway system by filing a petition for an administrative hearing pursuant to sec.sec.1.21-1.26 of this title (relating to Contested Case Procedure). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 28, 1993. TRD-9318265 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: February 18, 1993 Proposal publication date: August 14, 1992 For further information, please call: (512) 463-8630 Part IV. Texas High-Speed Rail Authority Chapter 81. Administrative Procedures Subchapter B. Texas High-Speed Rail Authority Practices 43 TAC sec.81.170 The Texas High-Speed Rail Authority adopts new sec.81.170, concerning the acceptance of private donations, without changes to the proposed text as published in the December 25, 1992, issue of the Texas Register (17 TexReg 9102). The new section establishes guidelines and procedures for the acceptance of monetary contributions by the Texas High-Speed Rail Authority. The agency will accept only those donations that advance the mission of the agency and will deposit such donations in the State Treasury. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6252-11f, which require state agencies that have statutory authority to accept money from private donors to adopt rules governing the relationship between the donors and the agency and its employees, Texas Civil Statutes, Article 6674v.2, sec.6(b)(1), which provide the Texas High-Speed Rail Authority with the authority to accept donations, and Texas Civil Statutes, Article 6674v.2, sec.17(a)(2), which provide the Texas High-Speed Rail Authority with the authority to adopt rules to govern the operation of the authority. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 29, 1993. TRD-9318354 Allan Rutter Deputy Executive Director Texas High-Speed Rail Authority Effective date: February 22, 1993 Proposal publication date: December 25, 1992 For further information, please call: (512) 478-5484