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 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 81. Elections Surplus Election Contract Funds 1 TAC sec.81.161 The Office of the Secretary of State adopts new sec.81.161, concerning the disbursement of surplus funds from election service contracts under the Texas Election Code, sec.31.003, with changes to the proposed text as published in the March 16, 1993, issue of the Texas Register (18 TexReg 1749). The new rule provides county election officers the mechanism with which to expend surplus election contract funds. Prior to the adoption of this section, county election officers were unable to expend surplus election contract funds. During the public comment period, discussions were held with the election officers from Hood and Tarrant counties. In addition, the Secretary of State conducted a second mail survey regarding the proposed rule to all 254 county election officers in Texas. One hundred seventy county election officers responded to this survey. Seventeen of the 170 respondents currently collect surplus contract election funds and only 5 of these 17 held county election board meetings within the last two years. Comment. One commentor stated that requiring the county election board to approve surplus contract funding requests was an additional, unnecessary level of bureaucracy as the commissioners court is still required to review and approve all expenditures of county funds. Response. The Secretary of State agrees that requiring both the election board and commissioners court to review funding requests is unnecessary and has amended the rule. This method was proposed to insure that funding requests were originated by an election oriented group instead of the county commissioners court. By amending the rule to require all funding requests to originate with the county election officer instead of the county election board, this purpose will still be served. Comment. One commentor suggested that the Secretary of State issue a list of items which would be payable with surplus election contract funds. Response. The Secretary of State has amended the rules to include general examples of payable and non-payable expenses pursuant to provisions of the Election Code. In addition to the changes resulting from public comment, the Secretary of State is adopting the rule with changes as a result of staff review and recommendations to improve clarity and be consistent with other interpretations of the Election Code. The new rule is adopted under the Texas Election Code, sec.31.003, which provides the Secretary of State with the authority to prepare written rules and instructions concerning the Election Code and election laws and distribute these materials to state and local authorities charged with administering such laws. Texas Election Code, sec.31.003 (Vernon 1986). Further, the Texas Election Code, sec.31.100(f), requires that the Secretary of State prescribe procedures for the use of surplus funds from election services contracts. (Texas Election Code, sec.31.100(f) (Vernon Supplement 1993)). sec.81.161. Disbursement of Surplus Funds from Election Service Contracts Under the Texas Election Code, sec.31.003. (a) The Election Code, sec.31.100(g), states that the commissioners court may not consider the availability of the election services contract fund in adopting the budget for the office of the county election officer. Pursuant to the above section, surplus election contract funds may not be used to fund the day to day operation of the office of the county election officer. Examples of day to day expenses include, but are not limited to, duties required by statute such as, the necessary administrative personnel, office space and equipment, ballots, election kits, poll lists, and early voting and election day workers. (b) The Election Code, sec.31.100(f), requires that a surplus in the county election services contract fund may be used only to defray expenses of the county election officer's office in connection with election-related duties or functions. Examples of expense that may be paid with surplus contract funds include, but are not limited to, any duty which is election related but not specifically required by statute such as, polling location mailouts, travel to election seminars, purchase of voting equipment changes or upgrades, and technology upgrades for the election office (computers). (c) If the county election officer determines that a funding request qualifies under subsection (b) of this section and should be paid from surplus election service contract funds, said request shall be made in writing to the county commissioners court. The commissioners court shall handle the county election officer's request following normal county purchasing policies and guidelines and may either approve or deny the request. In no instance may the commissioners court approve the use of surplus election contract funds without the written approval of the county election officer. 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 July 7, 1993. TRD-9325401 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: July 29, 1993 Proposal publication date: March 16, 1993 For further information, please call: (512) 463-5650 Chapter 95. Uniform Commercial Code General Information and Correspondence 1 TAC sec.sec.95.1, 95.3, 95.5 The Office of the Secretary of State adopts amendments to sec.sec.95.1, 95.3, and 95.5, concerning general information and correspondence, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3233). The amendments are needed in order to reflect current address, section numbers, and other grammatical changes. The amendments provide the current address for the Uniform Commercial Code Section, correct section numbers for filing financing statements, and filing time of accepted documents. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Business and Commerce Code, sec.9. 411, which provides the Office of the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code. 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 July 9, 1993. TRD-9325567 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-5701 Acceptance 1 TAC sec.sec.95.31-95.34 The Office of the Secretary of State adopts amendments to sec.sec.95.31-95.34, concerning acceptance, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3233). The amendments are required due to standard form related changes. Section 95.32 is amended to more accurately reflect current filing policies and procedures and to include rules for filing Master Assignment and Amendment. The amendments provide uniform and consistent method of accepting documents based on current policies and procedures. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Business and Commerce Code, sec.9. 411, which provides the Office of the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code. 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 July 9, 1993. TRD-9325568 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-5701 Information Requests 1 TAC sec.95.41, sec.95.42 The Office of the Secretary of State adopts amendments to sec.95.41 and sec.95.42, concerning information requests, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3234). Section 95.41 is amended to reflect accurate statutory authority for copy fees. Section 95.42 is amended to delete requirement of one name per information request per form. The amendments provide uniform and consistent method of furnishing copies of documents based on current statutory authority. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Business and Commerce Code, sec.9. 411 and Chapter 405.031, Texas Government Code, which provides the Office of the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code and to charge fees for uncertified copies of records. 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 July 9, 1993. TRD-9325569 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-5701 1 TAC sec.95.43 The Office of the Secretary of State adopts the repeal of sec.95.43, concerning forms, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3235). The rule is repealed because it is inconsistent with the Texas Business and Commerce Code, sec.9.407(b), which requires the Secretary of State to charge $25 for search requests submitted on nonstandard forms. The repeal provides consistent and uniform procedures for accepting search requests on nonstandard forms. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Business and Commerce Code, sec.9.411, which provides the Office of the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code. 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 July 9, 1993. TRD-9325570 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-5701 Standard Forms 1 TAC sec.95.51 The Office of the Secretary of State adopts an amendment to sec.95.51, concerning prescribed form, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3235). The amendment is necessary in order to reflect grammatical changes. The amendment provides a method for approval of Texas standard forms and provides a grace period for filing previously approved standard forms. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Business and Commerce Code, sec.9. 411, which provides the Office of the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code. 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 July 9, 1993. TRD-9325571 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-5701 Rejection 1 TAC sec.95.61, sec.95.62 The Office of the Secretary of State adopts amendments to sec.95.61 and sec.95.62, concerning rejection, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3236). Section 95.61 is amended to delete reference to Texas Business and Commerce Code because all reasons for rejection have been covered in the Uniform Commercial Code rules. Section 95.62 reflects the repeal of sec.95.43. The amendments provide uniform and consistent method of rejecting documents based on current Uniform Commercial Code rules. Provide uniform and consistent method of rejecting information requests based on current statutory authority. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Business and Commerce Code, sec.9. 411, which provides the Office of the Secretary of State with the authority to adopt rules necessary to administer Subchapter D of Chapter 9, Texas Business and Commerce Code. 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 July 9, 1993. TRD-9325572 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-5701 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 61. School Districts Subchapter A. Operations 19 TAC sec.61.11 The Texas Education Agency (TEA) adopts an amendment to sec.61.11, concerning school district information requirements, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3237). The section provides guidelines for minimizing the reporting burdens of school districts, thereby reducing the amount of paperwork required of teachers. Currently, much of the information in this section is duplicated in sec.145.2 of this title (relating to Paperwork Reduction). The TEA is consolidating the guidelines for paperwork reduction in one section. In a separate submission, TEA is adopting the repeal of sec.145.2 of this title. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.21.925, which directs the State Board of Education to adopt rules that provide for simplifying and reducing the number and length of written reports TEA requires from school districts and school district employees. 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 July 12, 1993. TRD-9325594 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-9701 Chapter 145. Professional Environment Subchapter A. Professional Environment in General 19 TAC sec.145.2 The Texas Education Agency (TEA) adopts the repeal of sec.145.2, concerning paperwork reduction, without changes to the proposed text as published in the May 18, 1993, issue of the Texas Register (18 TexReg 3238). The section provides guidelines for minimizing the reporting burdens of school districts, thereby reducing the amount of paperwork required of teachers. Currently, much of the information in this section is duplicated in sec.61.11 of this title (relating to School District Information Requirements). The TEA is consolidating the guidelines for paperwork reduction in one section. In a separate submission, TEA is adopting an amendment to sec.61.11 of this title that includes the substance of sec.145.2 of this title. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Education Code, sec.21.925, which directs the State Board of Education to adopt rules that provide for simplifying and reducing the number and length of written reports TEA requires from school districts and school district employees. 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 July 12, 1993. TRD-9325595 Criss Cloudt Director, Policy Planning and Evaluation Texas Education Agency Effective date: August 2, 1993 Proposal publication date: May 18, 1993 For further information, please call: (512) 463-9701 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter F. Summary Procedures for Routine Matters 28 TAC sec.1.702 and sec.1.703 The State Board of Insurance of the Texas Department of Insurance adopts amendments to sec. 1.702 and sec.1.703, concerning activities which have been designated for summary procedure disposition pursuant to the Insurance Code, Article 1.33, without changes to the proposed text as published in the April 30, 1993 issue of the Texas Register (18 TexReg 2844). The amendments expand the list of activities which are deemed by the Board to be routine, voluminous, repetitive, noncontroversial, and of limited interest to persons other than those immediately involved. The amendments are necessary to assure the uniform, timely, and effective implementation, administration, and enforcement of the Insurance Code, Articles 5.55C and 5.76-2. The amendments add two classes of activities for summary procedure disposition: endorsements for negotiated deductible workers' compensation insurance policies; and, cessation of acceptance of small premium workers' compensation insurance policies through the Small Premium Policy Plan. The amendments delegate to the Deputy Commissioner of Workers' Compensation Insurance administration over filings made in connection with the two new classes of activities. The amendments will result in the more efficient and expeditious processing of filings for workers' compensation insurance negotiated deductible endorsements and requests for the cessation of acceptance of small premium workers' compensation insurance policies written through the Small Premium Policy Plan. The adopted amendments to sec.1.702 and sec.1.703 provide the means by which the Deputy Commissioner of Workers' Compensation Insurance will have the authority to review filed endorsements for negotiated deductible workers' compensation insurance policies and applications for cessation of acceptance of small premium workers' compensation insurance policies through the Small Premium Policy Plan. The adopted amendments will facilitate agency review of these routine matters and obviate the need for formal consideration of such matters by the State Board of Insurance. No comments were received regarding adoption of the amendments. The amendments are proposed under the Insurance Code, Articles 1.33, 5.55C, 5.57, 5.76-2, 5.02, and 1.04, and Texas Civil Statutes, Article 6252-13a, sec.4 and sec.5. The Insurance Code, Article 1.33, permits the State Board of Insurance, by rule, to create summary procedures and designate agency activities that are routine, to be handled through delegation by deputy commissioners and other personnel as the Board may designate. Article 5.55C authorizes the Board to permit employers to enter into agreements with insurers for negotiated deductible workers' compensation insurance policies. Article 5.57 authorizes the Board to approve forms of endorsements to the Board-prescribed uniform policy for workers' compensation insurance in this state. Article 5.76-2, sec.3.02, provides that the Board shall authorize and may require the cessation of acceptance of small premium workers' compensation insurance policies as a designated insurer under the Small Premium Policy Plan in certain circumstances. Article 1.04 provides the Board with authority to determine policy and rules in accordance with the laws of this state. Texas Civil Statutes, Article 6252-13a, sec.4 andsec.5, authorize and require each state agency to adopt rules of practice setting forth the nature and requirements of available procedures, and prescribe the procedures for adoption of rules by a state administrative agency. The following statutes are affected by this rule: The Insurance Code, Articles 1.33, 5.55C, 5.57, 5.76-2, 5.02, and 1.04. 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 July 7, 1993. TRD-9325380 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 28, 1993 Proposal publication date: April 30, 1993 For further information, please call: (512) 463-6328 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 3. Traffic Law Enforcement Traffic Supervision 37 TAC sec.3.62 The Texas Department of Public Safety adopts an amendment to sec.3.62, with changes to the proposed text as published in the January 8, 1993, issue of the Texas Register (18 TexReg 156). The adoption of the amendment provides that certain intrastate motor carriers will not be delayed in responding to local emergencies by the necessity of having a governmental agency declare an emergency. The revised language exempts intrastate motor carriers making residential deliveries of heating fuel; public utilities as defined by the Public Utility Regulatory Act, the Gas Utility Regulatory Act, and the Texas Water Code; and charged with the responsibility for maintaining essential services to the public to protect health and safety. The amendment adds subsection (d)(11) and renumbers the remaining paragraphs. The exempted intrastate motor carriers may respond to a local emergency without a declaration from a state or local official provided certain conditions are met. All intrastate motor carriers must comply with Texas Civil Statutes, Article 6701d, sec.139(a)(3), and provide the driver with at least 8 consecutive hours off-duty when the driver has been on duty for 15 or more consecutive hours, or the driver has been on duty more than 70 hours in 7 days. A public hearing was held on February 25, 1993, as required by Texas Civil Statutes, Article 6701d, sec.139. There were no written comments received prior to the hearing and one received after the hearing. A total of four written comments were received. Testimony was taken from four commenters, three in support of adoption and one in opposition. Following is a summary of those comments. (1) Three commenters, all representing public utility companies, supported the adoption of the rule since it would allow these firms to provide emergency relief in the same manner as they had operated prior to the change in the Federal Regulations. (2) Failure to adopt the rule would cause unnecessary delays for utility companies while waiting for an emergency declaration from a local official. Oftentimes, an emergency situation can be handled before an official can be located, briefed, and the declaration issued. Public utility company officials have acted responsibly in the past, taking great care and consideration in declaring emergencies. (3) Failure to adopt the rule would hamper emergency response in the sparsely populated areas of West Texas and in the densely populated metropolitan areas. Customers using or providing life-support equipment would be adversely affected. (4) Failure to adopt the rule would place a 24-hour off-duty requirement on carriers. Drivers responding to an emergency must receive 24 hours off at the conclusion of the emergency in some instances. This requirement would adversely affect the normal workweek of the company. (5) Any changes to the rule should include an exemption for public utility companies. (6) One commenter opposed the rule as being premature. Part 390.23 of the Federal Regulations has good language that should be considered by DPS. The regulations have a good definition of an emergency and provide a good guidance for bringing a driver back into service after the conclusion of the emergency. (7) The rule would only exempt carriers from the hours of service requirements. All other regulations would be applicable, such as the equipment standards. The Federal Regulations would exempt carriers from Parts 300-399 of the regulations. (8) Any exemption from the regulations for public utilities should also include residential deliveries of heating fuels. An ice or snow storm in West and North Texas should constitute an emergency that would require immediate response to sustain life. Gulf State Utilities Company, Southwestern Public Service, Houston Lighting and Power Company, West Texas Utilities Company, and Association of Electric Companies of Texas (AECT) commented in favor of the proposed rule. Comment #1. DPS appreciates the support for adoption of the rule by the public utility companies. However, after reviewing the comments, the regulations, and the proposed rule, the agency agrees with the opponent to adoption (Comment #6) that the agency would be remiss in its duties by adopting the original proposal. In reconsidering the rule, DPS considered the comments and suggestions made by the commenters. Comments #2 and #3. DPS agrees with the comments. Comments #4. DPS agrees that the 24-hour off-duty requirement is excessive. One commenter suggested that this requirement be reduced to 8 hours. DPS concurs. Comment #5. While the broad scope of regulations covers all motor carriers, DPS agrees that consideration should be given to exempting public utility companies from needing a declaration from a local, state, or federal official before responding to a local emergency. By exempting these carriers within specific guidelines, the integrity of the rule is maintained and relief is not unnecessarily delayed. Comment #6. DPS agrees with the comment. The requirement for a carrier to review the driver's duty status before allowing the driver to resume normal duties is paramount to ensuring the safe operation of the vehicle. By maintaining this requirement and limiting the off-duty time to 8 hours (response to comment #4), motor carriers should not be adversely affected and safety should not be compromised. Comment #7. The proposed rule would only exempt carriers from the hours of service requirements. DPS believes that the Federal Regulations go much further in exempting carriers during an emergency. By adopting specific exemptions in the rule while maintaining the provisions to the Federal Regulations, DPS would provide the state with an effective emergency response mechanism. Comment #8. DPS agrees with the comment. By including carriers making residential deliveries of heating fuels in the exemption from the declaration, DPS will ensure that citizens needing relief during harsh conditions are serviced without delay. The amendment is adopted under Texas Civil Statutes, Article 6701d, sec.139, which provide the Texas Department of Public Safety with the authority to adopt such regulations as may be deemed necessary for the safe operation of motor carriers. sec.3.62. Regulations Governing Transportation Safety. (a) The Public Safety Commission incorporates, by reference, the Federal Motor Carrier Safety Regulations, 49 Code of Federal Regulations, Parts 390-393 and 395-397, including amendments and interpretations thereto. (b) Certain terms, when used in the federal regulations as adopted in subsection (a) of this section, will be defined as follows: (1) the definition of motor carrier will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(o); (2) the definition of hazardous material shipper will be the same as that given in Texas Civil Statutes, Article 6701d, sec.2(p); (3) interstate or foreign commerce will include all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state; (4) department means the Texas Department of Public Safety; (5) regional highway administrator means the director of the Texas Department of Public Safety; (6) farm vehicle means any vehicle or combination of vehicles controlled and/or operated by a farmer or rancher being used to transport agriculture products, farm machinery, and farm supplies to or from a farm or ranch; and (7) private carrier means any person not included in the terms common carrier by motor vehicle or contract carrier by motor vehicle who or which transports by motor vehicle property of which person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent or bailment, or in furtherance of any commercial enterprise. (c) Exemptions to subsection (a) of this section were made pursuant to Texas Civil Statutes, Article 6701d, sec.139, and are adopted as follows. (1) The regulations shall be applicable to vehicles with an actual gross weight, a registered gross weight, or a gross weight rating in excess of 26,000 pounds, except that the regulations will be applicable to farm vehicles with an actual gross weight, a registered gross weight, or vehicles with a gross weight rating of 48,000 pounds or more. Vehicles transporting 15 or more passengers and all vehicles transporting hazardous material requiring a placard are subject to the regulations. (2) Drivers in intrastate commerce will be permitted to drive 12 hours following 8 consecutive hours off-duty. (3) Such regulations shall not apply to vehicles operated intrastate used in oil or water well servicing or drilling which is constructed as a machine consisting in general of a mast, an engine for power, a draw works, and a chassis permanently constructed or assembled for such purpose or purposes. (4) Such regulations shall not apply to a mobile crane which is an unladen, self-propelled vehicle constructed as a machine used to raise, shift, or lower weights when operated intrastate. (5) The maintenance of any type of government form, separate company form, driver's record of duty status, or a driver's daily log is not required if the vehicle is operated within a 150 air-mile radius of the normal work reporting location: (A) if owner has another method by which he keeps, as a business record, date and time of delivery of product or service, and location or delivery of product or service so that a general record of the driver's hours of service may be compiled; or (B) if another law requires or specifies the maintenance of delivery tickets, sales invoices, or other documents which show the date of delivery and quantity of merchandise delivered, so that a general record of the driver's hours of service may be compiled; and (C) provided that the business records generally conform with the following: (i) the time the driver reports for duty each day; (ii) the total number of hours the driver is on duty each day; (iii) the time the driver is released from duty each day; and (iv) the total time for the preceding 7 days in accordance with 49 Code of Federal Regulations, Part 395.8 of the Federal Motor Carrier Safety Regulations for drivers used for the first time or intermittently. (6) Drivers who are not transporting hazardous materials and were regularly employed in Texas as an intrastate motor carrier prior to the effective date of this adoption are not required to meet the medical standards contained in the federal regulations. (A) For the purpose of enforcement of this regulation, those drivers who reached their 18th birthday after September 1, 1989, shall be required to meet all medical standards. (B) The exceptions contained in this paragraph shall not be deemed as exemption from drug testing requirements contained in Part 391. (d) Exceptions adopted by the Public Safety Commission not specified in Texas Civil Statutes, Article 6701d, sec.139, are as follows. (1) 49 Code of Federal Regulations, Part 393.86, requiring rear-end protection shall not be applicable provided the vehicle was manufactured prior to September 1, 1991. (2) Under this section, the Texas Department of Public Safety may provide a waiver for a person who is otherwise disqualified under 49 Code of Federal Regulations, Part 391.41(b)10, provided the person meets the vision standard adopted by the Texas Department of Public Safety in sec.15.51 of this title (relating to Vision Tests). (A) Applications for a waiver shall not be accepted by the Texas Department of Public Safety after January 1, 1990. (B) Waivers granted under this paragraph are automatically renewed, provided the applicant continues to meet vision standards adopted by the Texas Department of Public Safety in sec.15.51 of this title (relating to Vision Tests). (3) Drivers of vehicles under this section operating in intrastate transportation shall not be permitted to drive after having worked and/or driven for 70 hours in any consecutive seven-day period. (4) 49 Code of Federal Regulations, Part 391.11b(1), is not adopted for intrastate drivers. The minimum age for an intrastate driver shall be 18 years of age. (5) 49 Code of Federal Regulations, Part 391.11b(2), is not adopted for intrastate drivers. An intrastate driver must have successfully passed the examination for a Texas driver's license and be a minimum age of 18 years old. (6) 49 Code of Federal Regulations, Part 391.51, pertaining to driver qualification files will become effective January 1, 1990. (7) The parts of 391, 49 Code of Federal Regulations, as they pertain to drug testing requirements, will become effective December 21, 1990, for intrastate drivers. (8) Texas Civil Statutes, Article 6701d, sec.132(b) and (c), concerning brakes on trailers weighing 15,000 pounds gross weight or less take precedence over the brake requirements in the federal regulations for trailers of this gross weight specification. (9) Texas Civil Statutes, Article 6701b-1 concerning identifying markings on commercial motor vehicles shall take precedence over 49 Code of Federal Regulations, Part 390.21, for vehicles operated in intrastate commerce. (10) Peace officers of any Texas city having a population of 300,000 or more are considered to be certified by the Texas Department of Public Safety and eligible to enforce the Federal Motor Carrier Safety Regulations, provided each officer enforcing the Federal Motor Carrier Safety Regulations must have completed a course of training of which the curriculum and instructors have been approved by the director of the Texas Department of Public Safety. Peace officers requesting certification as required in this subparagraph shall submit to the Texas Department of Public Safety a schedule of the courses which have been completed including identification of the instructor(s). Peace officers certified by the director of the Texas Department of Public Safety shall have the authority to enforce the regulations herein adopted applicable to intrastate drivers and vehicles and all regulations in 49 Code of Federal Regulations, Parts 390-393 and 395-397, applicable to interstate drivers and vehicles. (11) 49 Code of Federal Regulations, Part 390.23 (Relief from Regulations), is adopted for intrastate motor carriers with the following exceptions. (A) Part 390.23(a)(2)(i) is not applicable to intrastate motor carriers making residential deliveries of heating fuels, public utilities as defined in the Public Utility Regulatory Act, the gas Utility Regulatory Act, and the Texas Water Code and charged with the responsibility for maintaining essential services to the public to protect health and safety provided: (i) the carrier documents the type of emergency, the duration of the emergency, and the drivers utilized; and (ii) the carrier maintains the documentation on file for a minimum of six months. (B) The requirements of 49 Code of Federal Regulations, Part 390.23(c) (1)(2), for intrastate motor carriers shall be: (i) the driver has met the requirements of Texas Civil Statutes, Article 6701d, sec.139(a)(3); and (ii) the driver has had at least 8 consecutive hours off-duty when the driver has been on duty for 15 or more consecutive hours, or the driver has been on duty for more than 70 hours in 7 days. (12) Regulations and exceptions adopted herein are applicable to intrastate drivers and vehicles. All regulations contained in 49 Code of Federal Regulations, Parts 390-393 and 395-397 and all amendments thereto pertaining to interstate drivers and vehicles are adopted. (13) Nothing in this section shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health. (e) Any officer or employee of the department certified for this purpose may enter the premises of a motor carrier to inspect lands, buildings, and equipment and copy or verify the correctness of any records, reports, or other documents required to be kept or made pursuant to the regulations adopted by the director. The inspection may be conducted at a reasonable time on stating the purpose and presenting to the motor carrier appropriate credentials and a written statement to the carrier from the department or Attorney General of the officer's or employee's inspection 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 July 5, 1993. TRD-9325316 James R. Wilson Director Texas Department of Public Safety Effective date: July 27, 1993 Proposal publication date: January 8, 1993 For further information, please call: (512) 465-2000 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 33. Early and Periodic Screening, Diagnosis, and Treatment Subchapter J. Medical Phase 40 TAC sec.33.140 The Texas Department of Human Services (DHS) adopts an amendment to sec.33. 140, concerning reimbursement for provision of immunizations, in its Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) chapter, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3560). The justification for the amendment is to allow payment for administration of immunizations under the EPSDT Comprehensive Care Program (CCP) outside of the medical screening procedure to Medicaid public and private providers, effective July 1, 1993. An administration fee is payable to both EPSDT medical screening providers and other Medicaid providers. Vaccines for immunizations of EPSDT clients would be provided free of charge to providers by the Texas Department of Health. The amendment will function by ensuring that more children receive needed immunizations. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on July 8, 1993. TRD-9325412 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Proposed date of adoption: August 31, 1993 For further information, please call: (512) 450-3765 Subchapter R. Dental Services 40 TAC sec.33.325, sec.33.326 The Texas Department of Human Services (DHS) adopts amendments to sec.33. 325 and sec.33.326, concerning recipients' eligibility for orthodontic services and provider participation, in its Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) rule chapter. DHS is adopting the amendments without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3561). The justification for the amendments is to clarify that federal financial participation is now available for continued EPSDT orthodontic service costs for clients losing EPSDT/Medicaid eligibility. Clients whose orthodontic treatment was already initiated and authorized may now complete the treatment. The amendments will function by making funds available to help Medicaid/EPSDT orthodontic clients complete a course of treatment begun when medically necessary and when the clients were eligible for EPSDT and Medicaid assistance. During the public comment period, DHS received comments from the Children's Dental Center, McAllen. The commenter supports the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 July 7, 1993. TRD-9325356 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1993 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 Chapter 46. Residential Care Program Provider Participation 40 TAC sec.sec.46.2005, 46.2007, 46. 2008 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.46. 2005, 46.2007, 46.2008, and 46.4001, concerning provider participation, without changes to the proposed text as published in the March 19, 1993, issue of the Texas Register (18 TexReg 1793). The justification for the amendments is to change the contracting methodology from competitive procurement to provider enrollment and to delete references to staff training. The amendment will function by providing clients a choice of providers from whom to receive services. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. 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 July 9, 1993. TRD-9325526 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 1, 1993 Proposal publication date: March 19, 1993 For further information, please call: (512) 450-3765 Provider Contracts TAC Section Number 40 TAC sec.46.4001 The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. 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 July 9, 1993. TRD-9325525 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 1, 1993 Proposal publication date: March 19, 1993 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Eligibility 40 TAC sec.48.2902 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 2902, concerning income and income eligibles, without changes to the proposed text as published in the June 4, 1993, issue of the Texas Register (18 TexReg 3561). The justification for the amendment is to allow Specified Low-Income Medicare Beneficiary recipients to be categorically eligible for CCAD services. The amendment will function by saving time for these clients and caseworkers during the certification and recertification process. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. 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 July 8, 1993. TRD-9325413 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 1, 1993 Proposal publication date: June 4, 1993 For further information, please call: (512) 450-3765 40 TAC sec.48.2904, sec.48.2924 The Texas Department of Human Services (DHS) adopts amendments to sec.48. 2904 and sec.48.2924, concerning eligibility, without changes to the proposed text as published in the June 1, 1993, issue of the Texas Register (18 TexReg 3497). The justification for the amendments is to exclude funds received from the Transition to Life in the Community (TLC) program as income and resources in the CCAD program. The amendments will function by excluding funds received from the TLC program from income and resources in the CCAD program. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public and support services for persons with disabilities programs. 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 July 5, 1993. TRD-9325300 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Human Services Effective date: September 1, 1993 Proposal publication date: June 1, 1993 For further information, please call: (512) 450-3765 Part XIX. Texas Department of Protective and Regulatory Services Chapter 700. Child Protective Services The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.700.104 and 700.512-700.516; the repeal of sec.sec.700.601-700. 604; and new sec. sec.700.601-700.605, in its Child Protective Services (CPS) chapter. New sec.700.604 is adopted with a change to the proposed text as published in the June 1, 1993, issue of the Texas Register (18 TexReg 3497). The amendments to sec.sec.700.104 and 700.512-700.516; the repeal of sec.sec.700.601-700.604; and new sec.sec.700.601, 700.602, 700.603, and 700.605 are adopted without changes and will not be republished. The amendments, repeals, and new sections are justified to improve services to children at risk of abuse or neglect by improving TDPRS's access to information from past investigations and by clarifying the circumstances in which TDPRS may release information about an alleged perpetrator to people who have control over his access to children. The amendments, repeals, and new sections will function by specifying the types of information that TDPRS keeps in the Child Abuse and Neglect Reporting and Inquiry System (CANRIS), increasing the CANRIS retention period from six months to as long as three years for investigations closed with a disposition of "ruled-out," defining the circumstances in which TDPRS considers its designation of an alleged perpetrator sustained based on a preponderance of the evidence, authorizing TDPRS to release information about an alleged perpetrator to people who have control over his access to children when the department's conclusions about the alleged perpetrator have been sustained, and improving and clarifying the wording of the sections. No comments were received regarding adoption of the amendments, repeals, and new sections. The department, however has initiated one change to the text of sec.700.604(c) to clarify the meaning. Subchapter A. Administration 40 TAC sec.700.104 The amendment is adopted under the Human Resources Code, Title 2, Chapter 41, which authorizes the department to enforce laws for the protection of children. The amendment is also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to establish and maintain a central registry of reported cases of child abuse and neglect and to provide services to alleviate the effects of child abuse and neglect; and under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. 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 July 5, 1993. TRD-9325299 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1, 1993 Proposal publication date: June 1, 1993 For further information, please call: (512) 450-3765 Subchapter E. Intake, Investigation, and Assessment 40 TAC sec.sec.700.512-700.516 The amendments are adopted under the Human Resources Code, Title 2, Chapter 41, which authorizes the department to enforce laws for the protection of children. The amendments are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to establish and maintain a central registry of reported cases of child abuse and neglect and to provide services to alleviate the effects of child abuse and neglect; and under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. 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 July 5, 1993. TRD-9325298 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1. 1993 Proposal publication date: June 1, 1993 For further information, please call: (512) 450-3765 Subchapter F. Release Hearings 40 TAC sec.sec.700.601-700.604 The repeals are adopted under the Human Resources Code, Title 2, Chapter 41, which authorizes the department to enforce laws for the protection of children. The repeals are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to establish and maintain a central registry of reported cases of child abuse and neglect and to provide services to alleviate the effects of child abuse and neglect; and under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. 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 July 5, 1993. TRD-9325297 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1, 1993 Proposal publication date: June 6, 1993 For further information, please call: (512) 450-3765 40 TAC sec.sec.700.601-700.605 The new sections are adopted under the Human Resources Code, Title 2, Chapter 41, which authorizes the department to enforce laws for the protection of children. The new sections are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to establish and maintain a central registry of reported cases of child abuse and neglect and to provide services to alleviate the effects of child abuse and neglect; and under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. sec.700.601. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Release-The disclosure of information about an individual whom the Texas Department of Protective and Regulatory Services (TDPRS) has designated as an alleged perpetrator of child abuse or neglect as specified in sec.700.512(b)(1) of this title (relating to Conclusions about Possible Perpetrators) to any party outside the department without the consent of the alleged perpetrator. For purposes of this subchapter, however, the term "release" does not apply to: (A) disclosures required by operation of law; or (B) disclosures to: (i) the alleged perpetrator himself; (ii) parents or caretakers who are legally responsible for the alleged victim's care, custody, or welfare; or (iii) a court of law. Release hearing -An administrative proceeding provided under the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, to give an alleged perpetrator an opportunity to appeal a decision by TDPRS to release information about him to individuals who have control over his access to children. Release hearings conducted under this subchapter are subject to the requirements for hearings set forth in Chapter 730, Subchapter R of this title (relating to Legal Services). Substantial risk -A real or significant possibility or likelihood. sec.700.602. Sustained Conclusions about Alleged Perpetrators. (a) A preponderance of the evidence. When the Texas Department of Protective and Regulatory Services (TDPRS) concludes that an individual is responsible for abuse or neglect of a child in the investigation as specified in sec.700.512(b)(1) of this title (relating to Conclusions about Possible Perpetrators), the conclusion is based on "some credible evidence." However, TDPRS cannot release information about an alleged perpetrator to people outside the investigation unless the department's conclusion is based on a preponderance of the evidence. TDPRS considers its conclusion about an alleged perpetrator sustained based on a preponderance of the evidence whenever any of the following conditions is satisfied: (1) based on a preponderance of the evidence presented in a release hearing, an administrative law judge has sustained the conclusion that the alleged perpetrator is responsible for abuse or neglect of a child in the investigation; (2) as specified in sec.700.604 of this title (relating to Notice Requirements for Releasing Information to Outside Parties), the alleged perpetrator has been provided with written notice of his right to a release hearing, but has not requested one within 15 days after receiving the notice; or (3) the alleged perpetrator's right to a release hearing has been waived by operation of law. (b) Authority to release information when conclusions are sustained. When TDPRS's conclusion about an alleged perpetrator has been sustained as specified in subsection (a) of this section, TDPRS has the authority to: (1) release information about the alleged perpetrator to individuals who have control over his access to children as specified in sec.700.603 of this title (relating to Releasing Information about Alleged Perpetrators to Outside Parties); and (2) take other adverse action against the alleged perpetrator in accordance with applicable law. sec.700.603. Releasing Information about Alleged Perpetrators to Outside Parties. (a) Prerequisites. Subject to the limitations specified in subsections (b) and (c) of this section, the Texas Department of Protective and Regulatory Services (TDPRS) has the authority to release information about an alleged perpetrator of child abuse or neglect to individuals who have control over his access to children whenever both of the following conditions have been satisfied: (1) TDPRS has designated the individual as an alleged perpetrator of child abuse or neglect as specified in sec.700.512(b)(1) of this title (relating to Conclusions about Possible Perpetrators); and (2) based on a preponderance of the evidence from a completed investigation, TDPRS has concluded that the alleged perpetrator poses a substantial risk of harm to one or more children outside the family of the alleged victim. (b) Nonemergency release. (1) Except as specified in subsection (c) of this section, before TDPRS releases information about an alleged perpetrator to individuals who have control over his access to children, TDPRS's conclusion about the alleged perpetrator must be sustained as specified in sec.700.602(a) of this title (relating to Sustained Conclusions about Possible Perpetrators). (2) The release also must be approved by: (A) the general counsel for TDPRS; and (B) the director of the Protective Services for Families and Children (PSFC) department or the director's designee. Before approving the release, the director of PSFC (or the director's designee) must confer with the appropriate regional director for families and children and the appropriate regional attorney, or their designees. (c) Emergency release. When TDPRS has evidence that the risk of harm to one or more children outside the family of the alleged victim is both substantial and immediate, TDPRS has the authority to release information about an alleged perpetrator to individuals who have control over his access to children on an emergency basis. When releasing information about an alleged perpetrator on an emergency basis, TDPRS acts as quickly as possible, without regard for the timing of any appeal that the alleged perpetrator may choose to initiate. In other words, TDPRS releases the information without waiting to sustain its conclusion about the alleged perpetrator as specified in subsection (b) of this section. Before releasing the information, however, TDPRS must still ensure that each of the following conditions has been satisfied: (1) the disposition of the completed investigation must be "reason-to- believe"; (2) the conclusion that the alleged perpetrator poses a substantial risk of harm to one or more children outside the family of the alleged victim must be based on a preponderance of the evidence from a completed investigation as specified in subsection (a)(2) of this section; and (3) the release must be approved by the parties specified in subsection(b)(2) of this section. sec.700.604. Notice Requirements for Releasing Information to Outside Parties. (a) Written notice. When the Texas Department of Protective and Regulatory Services (TDPRS) decides to release information about an alleged perpetrator of child abuse or neglect to individuals who have control over his access to children as specified in sec.700.603 of this title (relating to Releasing Information About Alleged Perpetrators to Outside Parties), TDPRS must give the alleged perpetrator written notice of the department's decision to release the information. The department must give the alleged perpetrator such notice without regard to the alleged perpetrator's previous receipt of written notice of the investigation findings. (b) No additional notice. If TDPRS has previously released information about an alleged perpetrator as specified in sec.700.603 of this title (relating to Releasing Information About Alleged Perpetrators to Outside Parties), and if TDPRS's conclusion about the alleged perpetrator has already been sustained as specified in sec.700.602(a) of this title (relating to Sustained Conclusions about Alleged Perpetrators), the department has the authority to release the same information again without additional notice to the alleged perpetrator. (c) Prior approval by attorney. Before the written notice is given to the alleged perpetrator, it must be approved by the attorney who will represent TDPRS if the alleged perpetrator appeals the decision to release the information. (d) Certified mail. TDPRS must send the notice via certified mail with a return receipt requested, unless staff determine that a faster form of written notice is required. (e) What the notice must include. The department's notice must include: (1) a specification of the investigation findings as defined in sec.700.511 and sec.700.512 of this title (relating to Disposition of the Allegations of Abuse or Neglect and Conclusions about Possible Perpetrators); (2) notice of the department's decision to release information about the alleged perpetrator to individuals who have control over his access to children; (3) notice, when applicable, that the information will be released on an emergency basis before an appeal can be completed; (4) notice that: (A) the alleged perpetrator has a right to appeal the decision to release information about him; (B) to appeal the decision, the alleged perpetrator must submit two copies of a written request for an appeal; and (C) the two copies of the alleged perpetrator's written request for an appeal must be: (i) postmarked within 15 days after the alleged perpetrator receives the department's written notice; and (ii) sent to: (I) the author of the written notice; and (II) TDPRS's Office of the General Counsel; (5) notice that failure to appeal the decision may result in TDPRS's release of the information without the alleged perpetrator's consent; (6) specification: (A) whether it is necessary in the alleged perpetrator's particular case to conduct an administrative review of investigation findings before holding a release hearing as specified in sec.700. 605 of this title (relating to Prerequisites for Release Hearings); and (B) if so, whether TDPRS is willing to waive the administrative review; (7) notice of the alleged perpetrator's right to: (A) review all audiotapes and videotapes included in the department's investigation record, if any; and (B) request a copy of all the written documentation included in the department's investigation record; (8) notice of the department's obligation to delete the following information from all written documentation that the department provides to the alleged perpetrator: (A) the name of the person who reported the abuse or neglect that TDPRS investigated, and (B) any other information that is confidential by law; (9) notice of the amount, if any, that the alleged perpetrator must pay for a copy of the written documentation included in the investigation record; and (10) notice that the alleged perpetrator's request for a copy of the written documentation included in the investigation record may be denied if: (A) releasing the documentation would jeopardize an ongoing criminal investigation or proceeding, or (B) the attorney representing TDPRS in a lawsuit has determined that the documentation must be withheld. sec.700.605. Prerequisites for Release Hearings. (a) Notice and appeal. Except as specified in subsection (b) of this section, the Texas Department of Protective and Regulatory Services (TDPRS) arranges for a release hearing to be conducted when the following two actions have taken place: (1) TDPRS has notified the alleged perpetrator of the department's decision to release information about him to individuals who have control over his access to children; and (2) the alleged perpetrator has appealed the decision within 15 days after receiving notice of it. (b) Prior completion of an administrative review. (1) Before a release hearing is conducted, the Protective Services for Families and Children (PSFC) department must conduct an administrative review of the investigation findings as specified in sec.700.516 of this title (relating to Administrative Review of Investigation Findings), unless PSFC and the alleged perpetrator agree to waive the administrative review. (2) Any administrative review of current or past investigation findings is sufficient to satisfy the requirement specified in paragraph (1) of this subsection as long as: (A) the investigation findings include a designation of the person who has requested the release hearing as an alleged perpetrator of child abuse or neglect as specified in sec.700.512(b)(1) of this title (relating to Conclusions about Possible Perpetrators); and (B) the individual who conducts the review confirms that the child protective services (CPS) program has some credible evidence from a completed investigation that the alleged perpetrator has been responsible for child abuse or neglect. (3) As specified in the Texas Family Code, sec.34.24, the alleged perpetrator has a right to complain to the Texas Health and Human Services Commission's Office of Youth Care Investigations if he is dissatisfied with the results of PSFC's administrative review of investigation findings. However, an alleged perpetrator's exercise of this right has no effect on the process of requesting and conducting a release hearing. 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 July 5, 1993. TRD-9325296 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1, 1993 Proposal publication date: June 1, 1993 For further information, please call: (512) 450-3765 Chapter 730. Legal Services Subchapter R. Administrative Procedure and Texas Register Act (APTRA) Hearings 40 TAC sec.sec.730.1701-730.1703, 730.1716 The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.730.1701-730.1703, and 730.1716, concerning legal services, without changes to the proposed text as published in the June 1, 1993, issue of the Texas Register (18 TexReg 3504). The justification for the amendments is to help members of the public better understand and exercise their right to an APTRA hearing when TDPRS has conducted an investigation and concluded that they are responsible for abuse or neglect of a child, or for abuse, neglect, or exploitation of an aged or disabled adult; and TDPRS has decided to release its conclusions to parties outside the investigation or to take adverse action against them based on the investigation findings. The amendments will function by ensuring that TDPRS's requirements for APTRA hearings remain consistent with Child Protective Services' (CPS's) requirements for release hearings when the department adopts new sec.sec.700. 601-700.605 regarding release hearings in its CPS rules chapter. In conjunction with its amendments to sec.sec.730.1701-730.1703 and 730.1716, TDPRS also retitles Subchapter R of this chapter. The new title, "Administrative Procedure and Texas Register Act Hearings," will replace the title "Release Hearings." No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer child welfare services, and Chapter 41, which authorizes the department to enforce laws for the protection of children. The amendments are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect; and under Texas Civil Statutes, Article 4413 (503) historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services program from the Texas Department of Human Services to TDPRS. 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 July 1, 1993. TRD-9325295 Nancy Murphy Section Manager, Policy and Document Support Texas Department of Protective and Regulatory Services Effective date: September 1, 1993 Proposal publication date: June 1, 1993 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 11. Design Division Statewide Transportation Enhancement Program 43 TAC sec.sec.11.200-11.205 The Texas Department of Transportation adopts new sec. sec.11.200-11.205, concerning the Statewide Transportation Enhancement Program. Sections 11. 201- 11.205 are adopted with changes to the proposed text as published in the May 11, 1993, issue of the Texas Register (18 TexReg 3034). Section 11. 200 is adopted without changes and will not be republished. Title 23, United States Code, sec.133(d)(2), requires that 10% of the Surface Transportation Program funds apportioned to Texas under Title 23, United States Code, sec.104(b)(3), for a given fiscal year shall only be available for transportation enhancement activities as defined in Title 23, United States Code, sec.101(a). Title 23, United States Code, sec.160(e)(2), requires that 5.0% of the funds transferred by Title 23, United States Code, sec.160(d), to the funds apportioned to Texas under Title 23, United States Code, sec.104(b)(3), as reimbursement for segments of the Interstate System constructed without federal assistance shall only be available for such activities. Section 1015(d)(2) of the Intermodal Surface Transportation Efficiency Act of 1991 (Public Law 102-240) requires that 5.0% of the funds added to the funds apportioned to Texas under Title 23, United States Code, sec.104(b)(3), by subsection (a) of that section, relating to a certain "Hold Harmless" apportionment adjustment, and 5.0% of the funds transferred to the funds apportioned to Texas under Title 23, United States Code, sec.104(b)(3), by subsections (b) and (c) of that section, relating to a certain "90 Percent of Payment" apportionment adjustment, shall only be available for such activities. Federal-aid highway funds apportioned to Texas under Title 23, United States Code, sec.104(b)(3), are administered by the Texas Department of Transportation (Department). Section 11.200, concerning Purpose, describes the statutory requirement for a Statewide Transportation Enhancement Program, the objective of the Texas Transportation Commission for that program, and the purpose of the proposed rules. Section 11.201, concerning Definitions, defines words and terms used in these sections. Section 11.202, concerning Project Eligibility, describes the requirements that a project proposed for the Statewide Transportation Enhancement Program must meet to be considered by the Texas Transportation Commission for allocation of program funds, to include relationship of the proposed enhancement to the intermodal transportation system, conformity to existing law, community support (including funding support), proposed use of revenues from the facility, nomination through established procedures, and the extent of the proposed undertaking. Section 11.203, concerning Project Nomination, describes the process through which the Department will call for nominations of projects to be considered, identifies those entities who may submit nominations to the Department under various circumstances, describes those parties other than the nominating entity that must be involved in the nomination of the project, the nomination form and accompanying documents, and where and when the nominating documents must be filed. Section 11.204, concerning Selection of Projects for Funding, describes how each project nominated will be screened for eligibility under federal and state law; describes how projects determined to be ineligible will be returned to the nominating entity; describes how a nominating entity may seek review of a determination of ineligibility; creates a committee to evaluate proposed projects and describes the membership of that committee; describes how eligible projects will be evaluated, scored, and ranked by that evaluation committee; describes how eligible projects are presented to the Commission; describes how the Commission selects projects for inclusion in the Statewide Transportation Enhancement Program; and describes how those eligible projects not selected will be retained for further consideration. Section 11.205, concerning Project Administration, describes the processes necessary to prepare a selected project for implementation, to include notification of selection, inclusion of the selected project in metropolitan and statewide transportation improvement plans, negotiation of appropriate contracts and other agreements involved in project implementation, compliance with applicable laws and standards in project design and procurements, limitations on costs which may be reimbursed, and project oversight and inspection. During the months of May and June of 1993, the department held eight public hearings throughout the state in accordance with Texas Civil Statutes, Article 6252-13a, sec.5, to receive comments, views, and/or testimony concerning the proposed new sections. The following groups and/or associations made comments in favor of the new sections: Council of Texas Archaeologists; Texas Archaeological Society; Texas Historical Commission; Waco Urban Transportation Study (MPO); City of Fort Stockton; the Honorable Bob Turner, Texas House of Representatives, District 65; Travis County Archaeological Society; City of Brownsville; Texas Bicycle Coalition; Frontera Audubon Society; City of Brownsville; National Park Service; Texas Parks and Wildlife Department; City of McAllen; City of Edinburg; Brownsville MPO; City of McAllen Bicycle World; City of Mission; City of Abilene; Quitaque Chamber of Commerce; Rialto Community Theater, Inc.; City of Lubbock MPO; Parkhill, Smith and Cooper, Inc.; City of Elgin; Llano Merchants Association; Llano City Council; Lower Colorado River Authority; LBJ Heartland Council; Llano Chamber of Commerce; Texans for the LBJ Hill Country Trail; Bay City Main Street Project; Fall Creek Vineyards; Hicks and Company; Trust for Public Lands; Austin Transportation Study; City of Cleburne; Llano County Neighbors; City of Bryan; Grimes County Historical Commission; Travis County; City of Houston; Scenic Houston; Galveston County; Angleton Main Street; Billboards Limited; Scenic Texas; South Main Center Association; City of Meadows; City of Conroe; Southeast Texas Regional Planning Commission; "Keep Texas Beautiful"; Harrison County; Newelyn-Davie's Sabuni; City of Alvin; White Oak Bayou Association; Markborough Development Company Limited; City of Tomball; Dannenbaum Engineering Corporation; American Institute of Architects, Houston; City of College Station; Market Trail-Alamo Area COG; Heritage Society of Austin; Scenic Austin; DLD Reservation Society; San Angelo MPO; City of San Antonio; The Comfort News; Old Blanco County Courthouse Preservation Society; Racing for Randy; San Antonio Parks and Wildlife Department; VIA Metropolitan Transit; Presbyterian Healthcare System; City of Denton; City of Mansfield; Tarrant County Historical Commission; Fort Worth ISD; City of Coppell; Sherman- Denison-Howe MPO; Hill County; Town of Flower Mound; Marshall Chamber of Commerce; Marshall Depot, Inc.; Wichita Falls MPO; City of Gainesville; City of Fort Worth; Nocona Chamber of Commerce; Hillsboro Main Street; City of Grapevine; ACME Machinery and Supply; Trees; Tyler Bicycle Club; Operation Earth; City of Henderson; Heart of Tyler; Inc.; East Texas Rails to Trails; Tyler Area Chamber of Commerce; Historic Mission Trail; J.M.W. Associates; City of Van Horn; Sierra Club; Tiqua Indian Reservation; El Paso Convention and Visitors Bureau; Van Horn Broadway Beautification Commission; El Paso MPO; County of Gillespie; County of Taylor; City of Austin; City of Blanco; City of Dallas; City of El Paso; City of Marshall; City of San Angelo; City of Wichita Falls; the Honorable Jim Pitts, Texas House of Representatives, District 10; Central Texas COG; Blanco ISD; Blanco National Bank; Coats Community Preservation Foundation, Inc.; Downtown District; First National Bank-Quitaque; Grape Creek Vineyard; Laredo Chamber of Commerce; Lubbock Urban Transportation Study; Main Street Tyler Texas; National Trust for Historic Preservation; Preservation Texas; Stonewall Chamber of Commerce; Surface Transportation Policy Project; Texas Association of Nurserymen, Inc.; Trees for Houston; Tyler Bicycle Club. The following groups and/or associations made comments in opposition of the new sections: Llano Farm Bureau; Freedmen's Town Community; Opposition to Rails to Trails in Smith and Cherokee Counties; East Texas Landowners Association; East Texas Landowners for Private Ownership; First Baptist Church of Gresham; and Bullard Banner. Several grammatical and other nonsubstantive changes have been made to the rules for clarity. Those changes are not discussed here. Substantive comments received and any revisions to the rules made in response to those comments are discussed in the following narrative. Comment: Concerning sec.11.200, several commenters called for maximum flexibility to local project sponsors in envisioning enhancement projects and maximum flexibility to local governments in implementing them. Response: The proposed program offers maximum flexibility in the development of enhancement projects within the limitations of available funding and state and federal laws and regulations. The rules permit nomination of projects in all ten categories of transportation enhancement activities. Except for the requirements that enhancement funds not subsidize profit-making ventures and that projects be nominated through the procedures specified in the rules, the only limitations on project eligibility are those in federal or state law. In setting broad criteria for eligibility, the department intends to encourage project sponsors to be creative yet realistic in proposing transportation enhancements. Fulfilling its responsibilities under state law, the department will implement enhancement projects. If appropriate to implement a selected project through or in cooperation with another entity, the department and that entity will enter into such agreements as may be required to ensure compliance with applicable state and federal laws and regulations. Comment: One commenter suggested that the process proposed by the rules for nomination and selection of enhancement projects is cumbersome and recommended that it be simplified. Response: The department has attempted to develop a nomination and selection process that is accessible to project sponsors and provides maximum flexibility consistent with the department's responsibilities under federal and state law. The rules governing the federal-aid highway program are often more complex than those governing other federal programs. Sections 134 and 135 of Title 23, United States Code, as amended by the Intermodal Surface Transportation Efficiency Act of 1991, give specific local public officials the responsibility for selecting projects, including transportation enhancement projects, in the Surface Transportation Program. The designation of nominating entities and the minimum requirements for coordination in sec.11. 203 are based on the responsibilities assigned by these federal laws. The information required is specifically limited by sec.11.203(c)(1) to the information necessary for effective project evaluation. The department's intention is not to require completed project plans, full-scale environmental studies, or other expensive preliminary engineering work at the time of nomination. The purpose of the information required is to provide an adequate description of what would be involved in implementing the project while recognizing that the costs of providing that information will not be eligible for reimbursement. Comment: Some perceived a bias in the proposed rules toward construction projects. Other commenters objected to using tax revenues to provide recreational opportunities for individuals. Response: The rules encourage a wide range of non-traditional projects in all ten categories of enhancement activities. Enhancement funds may be used to survey, appraise, and purchase scenic easements or scenic or historic sites and to interpret or otherwise enhance visitor appreciation of highways and other transportation facilities, historic structures, and archaeological sites and artifacts. The state agencies represented on the Transportation Enhancement Project Evaluation Committee will bring perspectives beyond those traditional to the department. Federal law requires, however, that transportation enhancements have a direct relationship to the intermodal transportation system, that is, that they be essentially transportation-related projects, not free-standing recreational projects unrelated to transportation systems. Comment: Concerning sec.11.201, several commenters requested clarification of costs allowable for reimbursement. Response: The definition of "allowable costs" has been amended to clarify that only costs incurred after a project has been selected for implementation and received federal authorization to proceed are eligible for reimbursement. Under that definition, allowable costs in appropriate projects may include costs of preliminary engineering (including environmental studies), project planning and design, acquisition of land or other real property, and interpretation or other activities to enhance the appreciation of scenic, historic, or cultural resources. The revised definition also clarifies that the costs of routine operation and maintenance are ineligible for reimbursement. Reimbursement of the costs associated with relocation of utilities will be in accordance with applicable state and federal statutes and regulations. In general, reimbursement is governed by provisions of the Federal Highway Act of 1956 (Public Law 627, 84th Congress, 70 Statute 374). For facilities related to the Interstate System, reimbursement is governed by Texas Civil Statutes, Article 6674w-4. Upon project approval, responsibility for all or part of the costs of utility relocation will be assigned consistent with Texas Highway Commission Minute Order Number 40218 of June 20, 1956, and sec.21.21, in any agreements required by sec.11.205(c). The ordinary costs of marketing, promoting, or interpreting cultural, historical, or environmental resources would be considered routine operation, and not allowable for reimbursement. The cost of special promotion or interpretation activities might be reimbursed, however. Comment: Concerning the definition of "in-kind contributions," some commenters asked how services contributed to the project would be valued. Response: Professional and non-professional services will be given their market value. However, sec.11.205(g) states that such services only reduce the allowable cost of a project. Comment: Some commenters felt that the definition of "intermodal transportation system" in the proposed rules did not clearly include air, water, or conventional rail transportation and the facilities associated with those transportation modes. Response: The definition has been amended to make clearer its intent to include all transportation modes. It is intended to allow the department the full flexibility of federal and state law in implementing the transportation enhancement program. The system defined is intended to include all facilities that contribute to the transportation of people and goods, including aircraft take-off and landing facilities; bicycle and pedestrian ways; highways, county roads, and city streets (including bridges), whether free or toll; facilities for public transportation, to include buses and light rail transit; and railroad corridors, including high-speed rail corridors and rail corridors banked for future service. Section 11.202(a)(4) of the proposed rules provides that the use of any revenue generated by a facility receiving enhancement funds would be limited to operation and maintenance of that facility. Several commenters requested that the rules clarify what funds would be subject to the usage restriction. To respond to those comments, the term "revenue," throughout the rules, has been replaced by the term "operational income," and a definition of that term has been included in sec.11.201. The definition clarifies the original intent that tax revenue, license fees, and royalties received by a facility owner or paid within a facility are not operational income. Comment: One commenter asked whether the owner of an historic railroad depot would be considered a local transit operator. Response: The definition of "local transit operator" has been changed to make explicit the department's understanding through this rulemaking that to be eligible to serve as a nominating entity, a private local transit operator must be a non-profit entity. Ownership of an historic railroad depot would not itself make the owner a local transit operator. The depot owner would have to be a public or private non-profit entity providing public transportation in the area. Comment: Several commenters raised questions concerning the definition of "transportation enhancement activities." Many asked that the types of projects that would be eligible under each of the categories in the definitions be more specifically described. Response: The definition in the proposed rules is substantively identical to that provided in federal law. Due to the breadth of the ten categories of eligible enhancement activities and the variety of activities comprised by each of those categories, detailed descriptions of all such projects and activities simply cannot be adequately or effectively prescribed by rule. For clarification, a definition of "statewide project" was included in sec.11.201 to recognize that some candidate projects in sec.11.203(b)(1) may not be directly related to any specific geographic area. Comment: One commenter asked that the rules include a definition of "support," as that term is used in sec.11.203(c)(1)(I), to clarify the information expected in response to that provision. Response: Section 11.203(c)(1)(I) has been amended to more clearly describe the minimum required evidence of community support for a proposed enhancement project. Comment: A few commenters were surprised that the proposed rules defined "urban areas" as areas having a population of as few as 5,000 people. Response: The definition in the proposed rules was taken from the current definition of that term in Title 23, United States Code, sec.101. That provision was also the source of the definition of "rural area" included in the proposed rules. Since those terms, when used in the federally funded program governed by these rules, have the same meaning as defined in federal law, the definitions of those terms have been deleted from the final rules. Comment: Concerning sec.11.202, several commenters described particular activities and asked whether those activities would be eligible under subsection (a) of this section. Response: The eligibility of particular activities will require study of specific facts and conditions, determined on a case-by-case basis by the department in coordination with USDOT. Comment: One commenter asked whether sec.11.202(a) permitted enhancement funds to be used to enhance a privately owned facility. Response: USDOT guidelines encourage public-private cooperation in transportation enhancements. (Federal Highway Administration, Interim-guidance memorandum: "Transportation Enhancement Activities," April 24, 1992.) Although it is anticipated that typical project involves private participation in the enhancing of a publicly owned facility, private ownership of an enhanced facility would not necessarily disqualify that facility for funding, depending on the nature of the facility, details of project activities, and particular facts obtaining. The facility benefiting from the enhancement funds must be open to the public and the use of income from its operation will be limited. Comment: Several commenters asked for better definitions of "function," "proximity," and "impact," as those words are used in sec.11.202(a)(1), to describe the required relationship between a proposed transportation enhancement activity and the intermodal transportation system. Response: Those terms are taken from USDOT policy guidance concerning the eligibility of transportation enhancement activities. (Federal Highway Administration, Interim guidance memorandum: "Transportation Enhancement Activities," April 24, 1992.) As used in the rules, the terms will have the meaning assigned them by USDOT. Current USDOT guidance gives no special definitions for the terms, but rather attempts to demonstrate their meaning by examples. An independent bicycle path is given as an example of a functional component of the intermodal transportation system. Removal of outdoor advertising in the viewshed of a highway is given as an example of a transportation enhancement activity in proximity to the intermodal transportation system. USDOT has also suggested retrofitting an existing highway by creating a wetland to filter runoff from the highway as an example of a transportation enhancement activity that has an impact on the intermodal transportation system, and particularly on the polluting effects of runoff from that system. Comment: Several commenters asked whether sec.11.202(a)(2) implied that only projects on or immediately adjacent to the state highway system can be selected for funding because of the limitations of certain state laws. Response: The proposed rules are consistent with the intent expressed in the General Appropriations Act of 1993, Texas Department of Transportation Appropriations, Rider Number 38 (Senate Bill 5, 73rd Legislature, 1993) that the department's rules "permit funding for the full range of permissible transportation enhancement activities" defined in federal law. The department believes Texas law will permit us to fund projects within all of the ten eligible categories of transportation enhancement activities. The precise limits imposed by federal and state law must be determined through a review of each specific project proposal. Assuming other eligibility requirements are met, however, whether a proposed activity is on or immediately adjacent to the state highway system is not necessarily controlling. Comment: Several commenters asked for an explanation of the requirement of sec.11.202(a)(3) for community support for the candidate project. One wanted the rules to ensure that the residents and the governing bodies of all jurisdictions in which a project would be implemented support the project. Another was concerned that residents of distressed neighborhoods have a voice in the project nomination and selection process. Response: Section 11.202(a)(3), when read with sec.11.203(c)(1)(B) and (I) of the final rules, indicates the minimum requirements for persuasive evidence of public support. Those minimum requirements are intended to ensure support for the candidate project in the communities in which it would be implemented. Local citizens can present their views to the local officials constituting the governing bodies of the cities, counties, and metropolitan planning organizations (MPOs) with jurisdiction over the areas within which project activities would occur. Comment: One commenter asked whether sec.11.202(a)(3) prohibited a state agency, including the department, from providing all or part of the non-federal share of a transportation enhancement project. Response: Nothing in the rules prohibits any governmental or non-governmental entity from serving as a sponsor of a transportation enhancement project. Any project sponsor, including a state agency, may participate in the financing of the project. Comment: Section 11.202(a)(3) of the proposed rules requires that a proposed project must present evidence of community support to be eligible for consideration. Section 11.203(c)(1)(I) requires appropriate documentary evidence of community involvement in the development of the proposed enhancement. Several commenters asked if specific types or a minimum number of public participation opportunities are required in the process of selecting candidate projects. One asked whether a specific public participation opportunity must be provided for proposed enhancement projects. Another asked if evidence of public participation opportunities offered by a non-governmental sponsor of a candidate project could be presented. Response: Guidance from USDOT concerning transportation enhancement activities states: "The metropolitan and statewide planning processes should occupy a central role in the identification, planning, and funding of transportation enhancement activities." (Federal Highway Administration, Interim guidance memorandum: "Transportation Enhancement Activities," April 24, 1992.) Public involvement required by these rules must meet the requirements established for the metropolitan and statewide transportation planning processes by Title 23, United States Code, sec.134 and sec.135. Those provisions require the department and MPOs to ensure early and continuing involvement of the public in the development of statewide and metropolitan transportation plans and programs. USDOT's guidance recommends that, "given the widespread public interest in transportation enhancement activities, they should be highlighted in public involvement activities implemented under the new metropolitan and statewide planning requirements." State and local public officials must offer citizens and interested parties a reasonable opportunity to comment, but the nature and number of such opportunity can be determined by local public authorities. The public participation opportunities provided need not be specifically for a specific enhancement project or even for enhancement projects only. While it is not required that the public participation opportunity be a public hearing, such hearings are encouraged as an effective means for including citizens, public and private transportation providers and their employees, and other interested parties in the process. If a non-governmental project sponsor has offered opportunities for public participation in addition to the opportunities offered by local public officials, evidence of that opportunity would be appropriate. Comment: Several commenters had questions or suggestions concerning sec.11. 202(a)(4). Some were uncertain whether the rules prohibited or required projects to generate revenue. Another recommended that the subsection be amended to clarify that an enhancement project may involve construction of a new facility or enhancement of an existing facility, or could involve activity other than construction. Another commenter recommended that the restriction to operation and maintenance of the facility be applied to only a certain portion of facility revenues. Another commenter asked whether a scenic or historic route would be considered a facility for purposes of this requirement. Response: To help clarify the issues concerning the generation of revenue by a facility receiving enhancement funds and the permitted uses of those revenues, sec.11.202(a)(4) has been substantially revised and a definition of "operational income" added to sec.11.201. Neither the original provision nor the revised provision requires that a facility receiving enhancement funds generate income; neither do they prohibit it from doing so. They simply provide for use and application of any income that may be realized. The new wording clarifies that an enhancement project may involve construction of a new facility, enhancement of an existing facility, or non-construction activity. A roadway, including a scenic or historic highway, is a facility for purposes of this requirement. Comment: One commenter asked whether sec.11.202(a)(4) would prevent collecting taxes or selling licenses in a facility benefiting from enhancement funds, or receiving rent for the use of a portion of the facility. Another asked whether a facility receiving revenues would be ineligible to receive enhancement funds if its revenues exceeded its operation and maintenance costs. Response: Use of enhancement program funds on a facility would not prevent tax collection, sale of licenses or other goods, or renting space in that building. The fact that a facility is receiving income in excess of its operation and maintenance costs while seeking funding through the Statewide Transportation Enhancement Program could be considered by the commission in evaluating the relative benefit of investing those funds in the project. Comment: Several commenters asked whether specific activities would be considered costs of operation or maintenance. Another commenter asked whether facility revenues could be used only to continue the facility's current use, or could be applied to operate or maintain the facility if placed in some other use. Other commenters asked that revenues from an enhanced facility be made available to enhance other similar facilities within the same jurisdiction or geographic area. Response: The cost of operation and maintenance of a facility would include both the current and future use of the facility, and would include the cost of improving the facility, expanding it, and providing security for it. Comment: One commenter asked how revenue from an enhanced facility would be reported and how frequently such reports will be required. Another asked whether facility revenues received during a particular fiscal year could be rolled forward into next year's budget. Response: The procedure for reporting the receipt and uses of operational income will depend on the nature of the enhancement project and the type of activity through which the income was earned. Appropriate procedures will be developed in the agreement developed pursuant to sec.11.205(c). Normally, the agreement will call for periodic self-certification by the facility owner, and will provide that the financial records of the facility are subject to inspection and audit. Comment: Some commenters recommended as additional eligibility criteria that the candidate project be an integral part of duly adopted local or regional comprehensive transportation and land use plans, not unduly restrict effective response to the future transportation needs of an area, and not prevent future development. Response: Section 11.202(a)(5) requires that, to be eligible for consideration, a candidate project must be nominated as prescribed in sec.11. 203. Section 11.203(c)(1)(L) requires a nominating entity to affirm that an enhancement proposed is consistent with any long-range plan for the area in which it would be implemented. Section 11.204(c)(1)(B) requires the department to advise the commission of the consistency of every proposed enhancement with the statewide long-range transportation plan and any local transportation plans. Title 23, United States Code, sec.133 and sec.134, requires that both the department and MPOs consider the likely effect of transportation decisions on land use and development and the consistency of transportation plans and programs with the provisions of all applicable land use and development plans. Comment: Section 11.202(b) raised concerns about candidate projects proposing either a series of enhancements at a single location or a particular enhancement at a series of locations. Commenters asked whether the eligibility of such projects will be evaluated as a unit or subdivided into separate sub-projects. Response: The rules limit to some extent the degree to which proposed projects may be subject to subdivision. Section 11.203(b)(2) requires that enhancement activities in multiple jurisdictions be segmented into separate candidate projects whenever practical. Section 11.201 defines a project as "An undertaking to develop, implement or construct a particular transportation enhancement at a specific location or locations." Improperly segmented projects would be ineligible under sec.11.202(a)(5) of the final rules. In screening properly segmented projects, the department will consider the eligibility of a particular project as a whole. Comment: One commenter suggested that public opposition to only one part of a multi-part project should be able to block implementation of only that part, allowing the remainder of the project to proceed through the selection process. Response: Assuming that the multi-part project is properly segmented as required by sec.11.203(b)(2), the issue of public opposition to only one part of a multi-part project should be resolved by the nominating entity. Section 11.202(a)(3) reflects the policy of the Texas Transportation Commission not to implement projects over the objection of local public officials. Comment: Concerning sec.11.203, several commenters recommended that the department issue a call for project nominations more frequently than the annual call proposed in sec.11.203(a). Response: An annual call for projects facilitates integration of the nominating process with the metropolitan and state planning processes. Guidance from USDOT requires that those processes "occupy a central role in the identification, planning, and funding of transportation enhancement activities." (Federal Highway Administration, Interim guidance memorandum: "Transportation Enhancement Activities," April 24, 1992.) Enhancement projects selected by the Commission must be included in the Statewide Transportation Improvement Program (STIP) to be eligible to receive federal funds. To be included in the STIP, metropolitan enhancement projects must be included in the Transportation Improvement Program (TIP) for that metropolitan area. Comment: Many commenters expressed concerns about the limitations imposed by sec.11.203(b)(1) on those entities permitted to make a nomination of an enhancement project to the department. Some commenters agreed that projects in metropolitan areas should be nominated by the MPO for that area. These commenters asked that the rules clarify that projects in a metropolitan area proposed by state and federal agencies be nominated by the MPO for that area to ensure that the MPO evaluates, approves, and indicates its priority for the project. Response: The MPO is the only nominating entity authorized by sec.11.203(b) (1) for candidate projects involving activities related to the intermodal transportation system in its metropolitan area and confined entirely within that metropolitan area. When some activities in a single proposed project are within a metropolitan area and some are outside of that area, sec.11.203(b)(1) allows the project to be nominated by an entity other than the MPO. In that case, however, revised sec.11.203(b)(3) of the final rules makes it clear that the entity nominating the project must be authorized by the MPO to do so. Section 11.203(c)(1)(L) has been revised to clarify the intent that whether submitted by the MPO or by another entity, a nomination must include evidence that the proposed enhancement is consistent with any long-range transportation plan for the area in which it would be implemented. Section 11.203(c)(1)(N) has been revised to make it clear that regardless of the nominating entity, a proposal for an enhancement activity in a metropolitan area must be accompanied by a commitment from the MPO for that area indicating its willingness to include the project in its TIP. Therefore, an MPO is required to evaluate and approve a proposed project with activities in its area, regardless of the nominating entity. Comment: Many commenters recommended amending sec.11.203(b)(1) to authorize additional entities to submit nominations directly to the department. Response: The subsection has been amended to allow a state agency to nominate a candidate enhancement project in two additional situations. Comment: Several commenters were concerned about a single proposed project that could provide benefits to the entire state. Those commenters were concerned that under the proposed rules, such a project would require that an entity nominating such a project would have to obtain the authorization and consent of every MPO, city, and county in the state. Response: Section 11.203(b)(1) has been revised to allow a state agency to nominate a proposed project benefiting the entire state provided the activities proposed are not related to the intermodal transportation system in any specific jurisdiction. Comment: Other commenters were concerned that the proposed rules did not permit a state agency managing public lands in a single county to nominate an enhancement project on those lands. Response: Section 11.203(b)(1) allows the managing state agency to nominate such a project if the project area is not within a metropolitan area. Since the proposed activities must relate to the transportation system of that county' however, the managing agency may nominate the project only with the authorization of the governing body of the county. When activities related to the transportation systems in particular jurisdictions are proposed for federal funding, Title 23, United States Code, sec.134 and sec.135, requires that projects through which those activities are funded be selected by the MPO, city, or county within which those activities will occur. Because of that requirement, sec.11.203(b)(1) as amended retains the requirement that projects within a metropolitan area must be nominated only by the MPO for that area; projects entirely within a non-metropolitan city must be nominated only by the governing body of that city; and (with one exception) projects entirely in a rural area in a single county and not in a metropolitan area must be nominated only by the governing body of that county. (The exception is when a state agency manages public lands in a rural area in a single county and not within a metropolitan area.) These requirements are retained to ensure a central role for local planning processes in "the identification, planning, and funding of transportation enhancement activities. " (Federal Highway Administration, Interim guidance memorandum: "Transportation Enhancement Activities," April 24, 1992.) Section 11.203(b)(3) has been revised to clarify the department's original intention that, when a project is nominated by an entity other than the local public officials assigned selection responsibility by federal law, those officials agree that the circumstances warrant nomination by another party. Comment: Some commenters suggested that by requiring neighborhood associations and other local organizations to submit project ideas to the authorized nominating entities, sec.11.203(b)(1) effectively excludes such organizations from the process of selecting enhancement projects. Those commenters reported that local organizations have been particularly ineffective in having their views recognized by MPOs. Response: The entities authorized by sec.11.203(b)(1) to nominate projects have been chosen because of the special responsibility and authority for transportation planning and project selection assigned by federal law to MPOs and other local public officials. However, those officials are either directly elected by the citizens of the jurisdictions within which projects will be implemented or selected those elected representatives. The boundaries and composition of MPOs are decided by joint consideration of the local city government and the governor of the state. The membership of MPOs may consist of local elected officials, officials of public or private agencies which administer or operate major modes of transportation in the area, and appropriate state officials. Members of local organizations should avail themselves of the opportunities afforded by the political process to ensure that their elected representatives are aware of their interests, including petitioning local government officials and the governor to provide an MPO composed of members more responsive to their views and opinions. Comment: A few commenters asked whether a designated nominating entity should be expected automatically to nominate a project recommended to it by a project sponsor not itself authorized to nominate the project. Those commenters wanted to know whether a designated nominating entity can establish standards or criteria for project proposals that are independent of these rules. Other commenters asked whether an entity nominating a proposed enhancement project that would affect the transportation system in multiple jurisdictions must have the authorization from every MPO or the governing body of every city and county in the state with jurisdiction over any area in which the project would be implemented. These commenters argued that allowing the MPO to impose additional standards or criteria would place an additional burden on proposed projects having statewide rather than local benefits. Response: Section 11.203(b)(1) has been revised to recognize that a statewide project may be nominated by a state agency. A "statewide project" is defined in sec.11.201 as "a project benefiting the entire state but without activities related to the intermodal transportation system in any specific metropolitan area, city, or county." Section 11.203(b)(3) makes it clear that the state agency is not required to obtain the authorization of any local officials to nominate a statewide project. Since the project does not propose activities related to the transportation system of any specific metropolitan area, it will not be required to be included in any metropolitan Transportation Improvement Programs. Thus, MPOs and other local officials would not be in a position to impose additional standards on statewide projects. For projects that do propose activities related to the transportation system of one or more specific areas of the state, the rules neither require nor prohibit imposition of additional criteria by local officials. As previously discussed, however, local officials have special responsibility and authority under federal law for transportation planning and project selection. Each MPO must develop a long-range transportation plan and a Transportation Improvement Program appropriate for its metropolitan area. Other local governments are encouraged to develop their own transportation plans and programs. Those plans and programs will set different objectives for the intermodal transportation system in each of those areas. Local public officials are free to insist that transportation enhancement projects implemented in their jurisdiction conform to criteria that ensure consistency with their local plans. Comment: One commenter asked that sec.11.203(b)(2) of the proposed rules be amended to clarify exactly what will be acceptable as "documentary evidence of coordination with and support by appropriate local officials." Several commenters recommended that the rule should require, at a minimum, resolutions by city councils and county commissioners in all areas in which any part of the project would be located. Some commenters specifically urged that this requirement be extended to projects in metropolitan areas. Response: Section 11.203(b) has been revised to clarify the department's intent: when a project is nominated by an entity other than the local public officials assigned selection responsibility by federal law, those local officials must agree that the circumstances warrant nomination by another party. The MPO, county, or city within which the proposed activities would take place must authorize the project's nomination. Section 11.203(c)(1)(I) of the final rules has been revised to clarify that, at a minimum, a project nomination package should include "a resolution or other official document from the governing bodies of each city or county with jurisdiction over an area in which activities associated with the project and related to the area's intermodal transportation system would take place." That provision would require a resolution from the city council and county commissioners' court in any area in which any part of the project would be located. This evidence is essential to ensure that the candidate project conforms to the policy of the Commission to require that local political authorities are in agreement in support of a transportation project for which they seek the department's assistance. Comment: One commenter asked that the rules specify where nomination forms are to be submitted. Response: Section 11.203(c)(1) provides that the nomination is to be filed with the district engineer responsible for the area in which the proposed enhancement would be implemented. To accommodate projects being implemented in multiple department districts, the provision has been modified to allow the nomination of a single project in multiple jurisdictions to be filed with the district engineer responsible for any area in which the project will be implemented. Comment: Section 11.203(c)(1)(B) requires a project implementation plan containing a schedule of project activities. One commenter asked whether a project sponsor would have flexibility to deviate from the schedule of activities should implementation of the project encounter unforeseen circumstances. Response: Section 11.203(c)(1)(B) seeks an implementation plan and schedule of project activities only to permit effective evaluation of the project. The project sponsor will not necessarily implement the project nominated. Activities identified on the schedule, including detailed environmental and archaeological studies, may be carried out by the department or another governmental or non- governmental entity selected to implement the project. Thus, the schedule of activities cannot be binding. Comment: Section 11.203(c)(1)(E) of the proposed rules requires a site plan of the proposed construction and illustrations of the proposed work. Two commenters asked what form the illustrations should take and if there was a certain scale that was required. Response: No particular form or scale is required. Site plans and illustrations should be in a form and to a scale adequate to enable those reviewing the project nomination to understand and properly evaluate the project. Comment: Section 11.203(c)(1)(H) of the proposed rules requires a description of expected benefits from the proposed enhancement, including a comparison of current and projected demand for use of the enhanced facility. Two commenters asked how the projected demand information would be evaluated in the project selection process. Response: Estimates of future demand would be used by the evaluation committee in determining the scope of benefits of a project. The information would be used in scoring the project's economic or social benefit. The information could also be used by the Commission in selecting projects for funding. Comment: Discussion of comments concerning the requirement of sec.11.203(c) (1)(I) that a nomination include appropriate documentary evidence of community involvement in the development of the proposed enhancement is included in the discussion of comments on sec.11.202(a)(3). Section 11.203(c)(1)(I) also requires that the nomination include evidence of public support for the proposed project. The subsection then states: "At a minimum, evidence submitted must include ... a resolution or other official written commitment from appropriate governing bodies supporting [the project's] implementation. In metropolitan areas, this must include a written commitment from the governing body of the MPO." Some commenters argued that requiring local support for certain projects providing statewide rather than community benefits unfairly burdens such projects. These commenters assert that national, statewide, or local non-profit associations involved in such projects, not local governing bodies, are the appropriate organizations to indicate public support for such projects. These commenters recommend that the quoted phrase be amended to read "from appropriate non-profit advocacy groups or governing bodies." Response: The requirement for evidence of support for a proposed project from local public officials is included in sec.11.203(c)(1)(I) to ensure a central role for local planning processes in "the identification, planning, and funding of transportation enhancement activities." (Federal Highway Administration, Interim guidance memorandum: "Transportation Enhancement Activities," April 24, 1992.) The wording of the provision has been amended to clarify that intent. To the extent that commenters were concerned with proposed projects that would benefit the entire state but involve no activities related to the intermodal transportation system of any specific metropolitan area, city, or county, however, the final rules have been revised to acknowledge that aspect of some projects. Section 11.201 defines such a project as a "statewide project," and subsections (b)(1), (b)(3), and (c)(1)(I) of sec.11.203 have been revised to clarify that local public officials need not indicate support for such projects. Neither the proposed nor the final rules prohibit including in the nomination of any project, whether statewide or not, evidence of support for the project from non-governmental organizations. Comment: One commenter pointed out that the last sentence of sec.11.203(c)(1) (I) duplicates the requirement in subsection (c)(1)(M). Response: The duplication has been eliminated in the revision of sec.11. 203(c)(1)) of the final rules. Comment: Section 11.203(c)(1)(K) requires "documentary evidence that the environmental consequences of the proposed enhancement have been fully considered." Commenters asked that the amount of planning and environmental analysis required be clarified. One commenter suggested that such documentation specifically indicate how the proposed project impacts air quality in the affected jurisdiction. Response: Section 11.203(c)(1)(K) requires only that environmental concerns known to the sponsors of a proposed project and likely to affect implementation of the project be identified and documented. A nominal review or minimal survey of the project area could be all that is required. The intent is to alert department staff to probable environmental issues associated with implementation of the project. No full-scale planning or environmental studies are required, since costs incurred prior to selection of the project for funding and federal authorization to proceed are not allowable for reimbursement. If the project is selected for funding, the department will ensure appropriate planning and environmental analysis. Comment: Section 11.203(c)(1)(L) of the proposed rules requires nominating entities to provide "a written statement of the relative priority ranking" the entity assigns to all candidate projects nominated by that entity in response to a particular project call. Some commenters recommended that rather than providing a single ranking of all projects, nominating entities be allowed to rank projects within each of the ten categories of eligible activities or within certain specified ranges of project size. Response: The recommendation might be appropriate if a minimum level of funding were guaranteed to each of the ten categories or to projects of certain sizes. The decision not to suballocate enhancement funds is discussed in responding to public comments concerning sec.11.204(c)(2). Comment: One commenter asked whether sec.11.203(c)(1)(L) of the proposed rules allowed a nominating entity to assign separate priorities to the various sub- elements of a project located in multiple jurisdictions. Response: Assuming that the proposed project has been properly segmented as required by sec.11.202(b) and amended sec.11.203(2), the nominating entity should assign a single priority to the entire project. The Texas Transportation Commission, in selecting projects for funding and implementation by the department, is free to select all or part of any proposal presented, to combine portions of any two or more proposals into a single project, and to implement a selected project in phases. Practical considerations would, of course, require local projects sponsors to concur in any such restructuring. The provisions of sec.11.203(c)(1) have been revised. Section 11.203(c)(1)(L) requires an MPO to state that a proposed enhancement is consistent with the long-range plan for the metropolitan area. Section 11.203(c)(1)(I) requires the MPO to endorse the proposed enhancement and recommend its consideration for funding. Section 11.203(c)(1)(N) requires the MPO to commit to place the enhancement project in the Transportation Improvement Program for the area should it be selected for funding. Section 11.204(a)(1) of the proposed rules stated that each candidate project nominated is screened to determine its eligibility for funding and its technical sufficiency. A sentence stating that the department will determine eligibility in coordination with USDOT was inadvertently dropped from the proposed rules and that sentence has been restored. Comment: Several commenters asked that the technical standards to be applied in determining technical sufficiency in sec.11.204(a)(1) be specified and that the department staff who would conduct the technical screening be identified. Another commenter asked whether a finding of technical insufficiency would prevent a project from being considered for funding. Response: The department will determine that each candidate project meets technical standards established by applicable law and accepted professional practice. The standards to be applied to determine the technical sufficiency of a particular project will depend on the type of project being evaluated. Individuals with the technical expertise required to review a particular project, both within the department and with other appropriate state and federal agencies, will determine the technical sufficiency of the project. Each candidate project determined to be eligible under state and federal law, accompanied by a report concerning its technical sufficiency, will be submitted to the Transportation Enhancement Project Evaluation Committee and considered for funding by the Texas Transportation Commission. Only candidate projects determined to be ineligible are returned to their sponsors. Comment: Section 11.204(b)(1)(A) establishes a project evaluation committee with six members. The subsection provides that the designated representatives of six listed state agencies will serve as members of the committee. Several commenters agreed that the state agencies named in the rules should be represented on the committee. Those and other commenters, however; recommended that the membership of the committee also include representatives of one or more of the following: representatives of other state agencies; a representative from any or all of several statewide organizations of citizens concerned with those interests within the definition of transportation enhancements; a representative from any or all of several similar organizations with a more local focus; public figures with statewide or national recognition; local officials or private citizens from rural areas, smaller metropolitan areas, and larger metropolitan areas; and a representative of residents of distressed neighborhoods. Response: The principles that have guided the structure of the evaluation committee thus far have been: encourage participation of experts in the various areas covered by the enhancement program; maintain a small committee to simplify operation and encourage effectiveness; and ensure that the operation of the evaluation committee supports the enhancement program's statewide perspective. The department believes that the six agencies represented on the evaluation committee collectively provide the expertise necessary to effectively evaluate the various areas included within the ten categories of transportation enhancement activities. As representatives of state agencies, they can maintain the statewide focus necessary to ensure a strategic vision and direction for the Statewide Transportation Enhancement Program. The evaluation committee does not select projects for funding and was never intended as a vehicle for public participation in the selection process. Experts from state agencies are appropriate to score the statewide benefits of candidate projects, including projects located in specific cities or counties, consistently with the strategic vision and direction set for the program by the Texas Transportation Commission in the Statewide Long-Range Transportation Plan. Adding representatives of large and small cities and of rural areas would not improve the ability of the committee to evaluate the statewide benefits of proposed projects. Public participation in the process of selecting transportation enhancement projects will be through the metropolitan and statewide long-range planning processes, the development of public support for project proposals, public participation in the meeting of the Texas Transportation Commission at which projects are selected for funding, and development of the metropolitan Transportation Improvement Programs and the Statewide Transportation Improvement Program. The rules also encourage local officials to describe and evaluate the local benefits of local projects in the nomination process. Information concerning these benefits will be included in the nomination package. If all representatives recommended by commenters were added to the committee, the small committee proposed would be replaced by a committee of more than 30 members. The operation of the committee would become significantly more costly, more complex, and more subject to competition among the various interests represented. Comment: One commenter recommended that sec.11.204(b)(1)(A) be amended to increase the number of committee members to seven to reduce the risk of deadlocking. Response: Although the rules require that projects be scored by action of the committee acting as a whole, the department does not believe that, given the membership of the committee, the risk of deadlock is sufficient to warrant enlarging the committee. Should a deadlock occur, that fact would be provided to the commission as relevant information. Comment: Section 11.204(b)(1)(B) proposes that the evaluation committee meet at least once annually. Those commenters who recommended that sec.11.203(a) require calls for project nominations more frequently than annually also recommended that the evaluation committee meet more frequently. Response: For the reasons discussed in responding to the recommendations concerning sec.11.203(a), the department believes the rule should continue to require only a minimum of one meeting of the committee each year. As drafted, the rule does not preclude additional meetings of the committee should they be necessary. Comment: Section 11.204(b)(2)(A) proposes that the evaluation committee evaluate the benefit of each candidate project according to its economic, environmental, and social benefit and sec.11.204(b)(2)(B) describes the methodology the evaluation committee would use to score candidate projects. One commenter requested more objectivity in the criteria proposed; others, more objectivity in the scoring methodology. Response: By their nature, evaluation of transportation enhancements as defined in ISTEA will inevitably involve some degree of subjective judgment. Requiring the evaluation committee to score proposed projects through a group process will reduce the variance of such a subjective decision. The department assumes, in applying the criteria established in the rules, the integrity of the members of the committee. The fact that the evaluation committee will evaluate the projects in public meetings will attest to the quality of its decisions. The rules require that each candidate project be scored on the criteria on a scale of 1 to 100. One objective of this scale is to provide sufficient structure for individuals of sound judgement and specific expertise in their respective areas without being excessively restrictive. Another objective is to provide an index with a range of values that approximates the expected dollar value of proposed projects. The range of benefits must at least equal the range of costs to prevent putting an artificial ceiling on the value of highly beneficial projects, which would likely show up as a bias against large projects. The range of benefit scores prescribed in sec.11.204(b)(2) will accommodate projects ranging in cost from $10,000 to $3 Million without bias. Comment: Several commenters asserted that economic benefit is not an appropriate criterion for enhancement projects. Several of these commenters asserted that social and environmental benefits are closer to the intent of Congress. One commenter recommended adding or substituting criteria reflecting mobility, clean air benefits, and a region's comprehensive planning priorities. Other commenters argued that equal weighing of the three criteria biases the process toward large projects, since they outweigh smaller projects in terms of construction-job creation. Response: The requirement that a minimum share of federal highway funds be used for transportation enhancements is in sec.1007(c) of the Intermodal Surface Transportation Efficiency Act of 1991. Economic competitiveness is one of the cardinal points of the policy declared in sec.2 of that Act. Transportation enhancements are to be considered in developing metropolitan and statewide transportation plans, and should arise out of that planning process. Other required considerations in that process, however, are the overall social, economic, energy, and environmental effects of transportation decisions. The statewide planning process is also required to consider investment strategies to improve state and local roads that support rural economic growth and tourism and recreational development. The requirement that transportation enhancements be considered in metropolitan and state plans and programs links them directly to the attainment of the social, environmental, and economic goals which must be set and met by the planning process. The evaluation committee will score projects in each of three benefit areas on a scale of one to 100; thus, each benefit is weighted equally. The department finds no basis or necessity for adjusting the weights of any of the three criteria. Each benefit area is equally important to the goals of ISTEA. The department disagrees that giving economic benefit equal weight with social and environmental benefit is inappropriate. The economic benefit considered in scoring a project is not the project's cost but the degree the project would meet goals of tourism or economic development goals. Comment: Section 11.204(c)(1)(B)(iii) provides that the commission is provided with a benefit-cost ratio calculated using the score assigned the project by the evaluation committee and may consider that ratio in making its project selection. Several commenters criticized the method proposed for calculating the benefit-cost ratio as unfair to large projects and recommended that the method of calculating the ratio be revised or consideration of the ratio deleted. Response: A candidate project's benefit-cost ratio is calculated by dividing the project's total benefit score by the project's estimated cost. A project's total score is calculated by summing its scores under the economic, social, and environmental criteria. Benefit-cost analysis is innately size-neutral (unbiased) in the absence of large economies of scale, which are not anticipated with the variety of projects relating to enhancements. When assigning scores in each of the three benefit areas, the committee will consider both factors of quality and scope. Quality relates to the technical quality or the measurable or identifiable benefits of the project, not the project's size. Scope relates to the magnitude of the project as measured by the geographical extent of the project, population served, and the duration of the benefit (long term or short term). The department does not agree that these considerations eliminate "small" projects. A project may be a relatively "small" project in terms of funding needs or work to be performed, but still encompass a large area or affect large numbers of people and be highly cost-effective. Comment: Several commenters recommended that, in assigning project scores, the committee give more or less relative weight to such considerations as the fact that a candidate project proposes activities under two or more eligible enhancement categories; the fact that a project will be implemented in several jurisdictions rather than a single jurisdiction; the number of people likely to benefit from the project. Response: The department is not persuaded that applying fixed weights to such considerations would improve the scoring process. The evaluation committee may or may not conclude that the benefits of a project that proposes activities eligible under more than one of the ten enhancement categories have greater scope than another project with activities in one category alone. A project that would be implemented in a single jurisdiction may or may not be more beneficial to the state than another project that would be implemented in a single jurisdiction. The committee should be free to place an appropriate value on the various facts considered in determining project benefits in the circumstances presented by each project. Comment: There were other comments regarding the benefit-cost ratio and scoring of projects including the following. One commenter requested that environmental benefits encompass the visual and natural environment. Another commenter wanted a fourth area of evaluation relating to compliance with intermodal planning activities. Another commenter asked what population measures will be used, and how the committee will determine quality in relation to scope and quality of life. Response: The effect of the candidate project on the natural environment is included in the evaluation of environmental benefit. Visual aspects are considered in the evaluation of social benefit. Intermodalism could be considered under either economic or social benefit. In addition, the statewide long-range plan encompasses intermodal planning; therefore, the evaluation committee's and Commission's consideration of consistency of a proposed project with the long-range plan will include consideration of intermodalism. The committee will determine population measures, quality, and quality of life measures depending on the type of project being considered. Comment: Some commenters requested additional information on any rules or procedures the evaluation committee would use to quantify benefits in the three benefit areas. Response: Written procedures provided in these and other rules governing advisory committees establish an orderly process for the advisory committee. Within these parameters, the committee will be able to establish a more detailed operating procedure. Comment: Section 11.204(c)(1)(B)(i) directs the department to provide the Commission with comments relevant to the consideration of any candidate project, including "policy matters." One commenter asked that the rules clarify what is meant by "policy matters." Response: The Governor of Texas, Texas Transportation Commission, and the Executive Director of the Texas Department of Transportation are authorized by law to establish a variety of policies that govern transportation and transportation facilities in Texas. Comment: Among the relevant information which sec.11.204(c)(1)(B)(ii) directs the department to provide the commission is information about the consistency of the candidate project with the statewide long-range transportation plan. One commenter asked whether the statewide long-range transportation plan would be available at the department's district offices. Another recommended that the department also indicate the project's consistency with local and regional plans. Response: The statewide long-range transportation plan will be developed through a process involving public participation. The plan developed should be released in January 1995. The requirement that candidate projects be consistent with the statewide plan will not take formal effect until that time. When the plan is completed, it will be widely available, including through the department's district offices. Section 11.204(c)(1)(B)(ii) has been revised to provide that the department will furnish the commission with information about consistency between a candidate project and any transportation plans, thus recognizing the interrelationship nature of the total planning process, from local to regional to statewide. Section 11.203(c) (1)(L) likewise has been revised to require the nomination of a candidate project to contain information about the project's consistency with such plans. Comment: Another commenter asserted that the provision of sec.11.204(c)(1)(B) (vi) giving priority to projects providing more than the minimum required non- federal share of project costs biases the selection process toward projects in more affluent communities. However, another commenter recommended strengthening the subsection to require "evidence of a project sponsor's commitment and ability to provide more than the minimum required non-federal share of project costs." Another commenter asked how we will evaluate a willingness to pay more than the 20% local match. Response: TxDOT will not require project sponsors to commit more than a 20% non-federal share of project costs. However, a willingness to commit additional local financial resources to a project is an important indication of local project support. Additional local funds would reduce federal participation below the maximum 80% of project costs, thereby allowing broader use of federal transportation enhancement funds. The commission may also consider a community's ability to provide more than the minimum share in making its selection decision. TxDOT agrees that evidence of "willingness" to pay may not accurately provide information on whether a sponsor can actually pay more than the required 20% match. Therefore, sec.11.204(c)(1)(B)(vi) has been revised to require the department to provide the commission with evidence of a project sponsor's commitment and ability to provide more than the minimum required non-federal share of project costs. sec.11.203(c)(1)(B) has also been revised to require a project sponsor to provide documentary evidence of its commitment to pay those costs and of their ability to do so. The revisions make explicit what has been assumed throughout this rulemaking: that sponsors willing to provide part of a project's costs and committing to do so have the ability to provide those funds. Comment: One commenter asked whether either the department or the commission intended to quantify the several items of information sec.11.204 requires to be provided to the commission by the department to be considered by the commission in making its project selections, and if so, how those items would be quantified. Response: The selection of projects for funding, and the method for that selection, are at the discretion of the commission. The commission must consider the evaluation committee's project scores and other comments on candidate projects in the selection process, but it is not bound by them, and may consider any other information it believes relevant. However, the commission must specify its reasons for it project selections. Comment: Another commenter requested that the rules state the relative priority the commission will assign to the various items of information the department is directed to provide the commission by sec.11.204(c)(1) in selecting projects for funding. One commenter recommended that sec.11.204(c)(2) require that when the commission considers the information provided by the department pursuant to sec.11.204(c)(1) in making its project selections, it give relative more or less weight to certain items. Several commenters also recommended that sec.11.204(c)(1) be amended to require TxDOT to provide the commission with additional information to be considered in project selection. Response: The rules do not limit the information that may be provided to the commission. Assigning priority or weight to the items provided for the commission's consideration could impinge upon the commission's discretion under its statutory responsibility to plan, maintain, construct, and improve the state highway system. Comment: One commenter requested that sec.11.204 be amended to provide greater consistency between the information the department is required to provide by sec.11.204(c)(1) and the information sec.11.204(c)(2) and (3) of the proposed rules permitted the commission to consider. Response: Section 11.204(c)(2) has been revised to clarify the original intent that the commission will consider all information sec.11.204(c)(1) requires the department to provide. The commission may also consider any other relevant information. Comment: Several commenters indicated concern that the commission would either place all enhancement funds in large metropolitan areas or in rural areas. Others were concerned that the commission would not fund projects in one or more of the ten categories of eligible enhancement activities. These commenters requested that sec.11.204(c)(2) explicitly guarantee a minimum level of funding to certain geographic areas of the state or to each of the ten categories of eligible enhancement activities. Response: Transportation enhancements are funded through the Surface Transportation Program created by ISTEA. In creating that program, Congress specifically exempted the funds set aside for transportation enhancements from the requirements for geographic distribution of other STP funds either to major metropolitan areas or to other areas of the state. This statutory language would appear to negate any suggestion of a legislative intent to require geographic suballocation. Although several states have geographically suballocated funds, the department believes that distribution of transportation enhancement funds to all areas of the state through some mechanical formula would be contrary to this expression of congressional will. The department believes that suballocations would impair implementation of a statewide strategic vision and direction and minimize the benefits of transportation planning. Suballocation would unduly constrain the programming process and hinder the commission's ability to respond to the state's high- priority needs identified through the transportation planning process. In addition, the department believes that suballocation of these funds would frustrate the flexibility provisions of ISTEA. Although the proposed rules require that the commission consider a few specific factors in exercising its discretion to select projects for funding, the rules do not prevent the commission from considering any relevant factor in making its selections. The commission may consider equitable geographical distribution, the types of activities proposed and the variety of project sizes proposed when it makes its selections. However, requiring a minimum share of funds to be spent in every geographic area of the state, in every category of enhancement activities, or in projects of every size could result in funding unneeded or less beneficial projects while needed and more beneficial projects in other areas go unfunded. Comment: One commenter noted that the first item in the list of the commission's considerations in sec.11.204(c)(2) includes the benefit-cost ratio calculated in sec.11.204(c)(1)(B)(iii), and asked whether this order of listing implied that this ratio is the most important of the four considerations listed. Response: The items listed in sec.11.204(c)(2) are not in priority order. Comment: Section 11.204(c)(3) requires that the commission consider the project scores and other comments of the evaluation committee, but provides that the commission is not bound either by the project scores or other comments of the committee. Commenters asserted that this provision gave the evaluation committee a role in the selection process that is too weak. Several commenters recommended that the commission be required to follow the project rankings determined by the scores assigned to the projects by the evaluation committee. Response: Selecting projects from a ranking determined by the project scores will not necessarily provide the combination of projects with the greatest total benefit within a funding constraint. Project scores should be regarded as approximations which will be useful to the commission but not determinative. The commission lacks authority to delegate to an advisory committee its statutory responsibility and discretionary authority. Comment: A few commenters asked whether sec.11.204(c)(3) allows the commission to select for funding specific individual sub-elements of a multi-element project, or whether all elements nominated as a single project will be considered together in the selection process. In a similar question, other commenters asked whether projects with several related elements could be implemented in stages or increments. Response: The commission may select for funding any portion of a multi-element candidate project for implementation or direct the department to assign any priority to the implementation of any phase of a selected project. Comment: Section 11.204(c)(4) requires the commission to designate those projects selected for funding. One commenter recommended that the commission not merely select those projects that will be funded but instead rank all projects so that if circumstances prevent commencement of work on a higher-ranked project, the next project can be approved for funding. Response: When funds available are limited, selecting projects from a ranking in decreasing order of estimated benefit does not necessarily result in the implementation of the combination of projects with the greatest total benefit. Because the estimate of expected project benefit is inevitably subjective, the benefit ranking is at best a useful approximation. If a project selected for funding does not proceed to implementation, the commission may either select another project for funding or hold the unused funds for the next call for projects. Comment: Some commenters recommended that sec.11.204(a)(1) establish a fixed- period for this eligibility and technical screening; that sec.11.204(b)(1) (A) establish a fixed period scoring of candidate projects by the Transportation Enhancement Project Evaluation Committee; and that sec.11.204(c) (2) establish a fixed period for the Texas Transportation Commission to make its selection of projects to be funded. Response: Although the department and the commission intend to screen, evaluate, and select enhancement projects in a timely manner, setting time limits is inappropriate. Determination of eligibility will require close coordination with USDOT. Determining the technical sufficiency of a project will require similar coordination with various state and federal agencies. Either determination may require extended correspondence with individuals at various levels of federal and state government. Imposing a time limit could result in disallowance of a project that, given more time, could possibly be determined to be eligible. Similarly, a time limit could reduce the effectiveness of technical review. Project scoring by the evaluation committee is not expected to be a lengthy process, but will to a large extent be controlled by the time required for project screening. Since the commission and the department will schedule implementation of selected projects, limiting the time available for effective review would not be beneficial. Comment: Several commenters noted that transportation enhancement projects are not traditional transportation projects and asked how such projects would be included in metropolitan Transportation Improvement Programs (TIPs). Response: Although many transportation enhancement projects are not traditional transportation projects, they are transportation projects because of their required relationship to the intermodal transportation system. Federal funding for enhancement projects is provided by Title 23, United States Code, sec.133. Section 135(f)(2) of Title 23, United States Code, requires that the Statewide Transportation Improvement Program (STIP) include all projects proposed for funding under Title 23 and under the Federal Transit Act (Title 49, United States Code appendix, sec.1601 and following), and specifically mentions transportation enhancement projects. Projects not included in the STIP cannot receive federal funds. Section 135(f)(2) of Title 23, United States Code, also requires that the STIP be consistent with metropolitan TIPs. Section 134(h)(5) requires that a metropolitan TIP must likewise include all projects within that metropolitan area proposed for funding under Title 23 and the Federal Transit Act. Since federal law clearly requires the inclusion of transportation enhancement projects in both metropolitan TIPs and in the STIP if they are to qualify for federal funding, both the STIP and the TIPs must accommodate such projects. The process of developing the STIP and metropolitan TIPs is governed by sec.134 and sec.135 of Title 23, United States Code, and by sec.8 of the Federal Transit Act, and by the regulations interpreting those provisions. Comment: Several commenters noted that sec.11.205(b) provided that costs incurred prior to federal authorization to proceed would not be eligible for reimbursement. They noted that this provision would exclude from reimbursement the costs incurred in preparing the project nomination form, since those costs would be incurred prior to federal approval. They argued that this rule burdens project sponsors with the full cost of developing project proposals, and recommended that the rule be amended to allow reimbursement of costs incurred prior to federal approval. As an alternative, they requested that such pre- approval costs be considered as part of the non-federal share of allowable project costs. Response: This issue is governed by Title 23, Code of Federal Regulations, sec.1.9(a), which states that federal funds may not reimburse any cost incurred prior to the department receiving authorization from USDOT to proceed with the project. Comment: Section 11.205(c) suggests that the department will implement transportation enhancement projects itself. Several commenters recommended that the department not be the agency implementing enhancement projects. Instead, they would prefer that the department make grants of enhancement funds to project sponsors, allowing the sponsors to manage expenditure of the funds as they see fit. Several other commenters recommended that the rules allow entities other than the department to implement projects proposing such enhancement activities as rehabilitation and operation of historic buildings. Some asked whether city or county governments would be allowed to contract for the work required for small, stand-alone enhancement projects. Others recommended that some projects might better be implemented by an entity other than the department, and often a non- public entity, that is more traditionally associated with such projects. These commenters asked whether such entities could receive contracts or sub-contracts to perform work on such projects. Other commenters recommended that the nominating entity be allowed to designate a representative to carry out the project on its behalf. Several commenters asked how the program will contract for the services of consultants in implementing transportation enhancement projects. One asked whether, for metropolitan projects, contracting with consultants will be done by the department, the MPO, or local governments. Several were particularly concerned that the department be able to contract with citizens groups, not-for-profit corporations and other such groups in implementing the projects. Response: Federal regulations do not permit federal-aid highway funds, including funds for the transportation enhancement program, to be provided in the form of a cash grant. The federal-aid highway program is a reimbursement program; funds expended by the department are reimbursed by the Federal government. Section 11.205(c) allows the department to exercise all contracting options available to it under federal and state law when implementing enhancement projects. Comment: Several commenters urged that sec.11.205(g) allow the value of land provided for an enhancement project by its sponsors to be considered part of the non-federal share of allowable costs. Response: Section 11.205(g) has been changed to clarify that the fair market value of land incorporated into the project and lawfully donated to the state may be considered part of the non-federal share of allowable project costs. Comment: Several commenters felt that sec.11.205(g) should allow local governments and other project sponsors to use federal funds provided through other federal programs to be applied to the non-federal share of enhancement projects. A very large number of commenters strongly urged that both private cash donations and the value of "in-kind" contributions of services be considered part of the locally provided non-federal share of project costs. Response: Section 11.205(g) has been modified to allow funds from other federal programs to be applied to the non-federal share of enhancement projects when permitted by Federal law. Section 11.203(c)(1)(B) has also been amended to require that when federal funds will be used for the locally provided share of project costs, the nomination form must include a copy of the law allowing that use of those funds. The United States Department of Transportation has advised the department, however, that private cash donations and contributions of "in-kind" services must be used to reduce the total allowable cost of the project before determining the federal and non-federal share of allowable project costs. (Letter dated May 26, 1993, to Arnold W. Oliver, Executive Director, Texas Department of Transportation, from Frank M. Mayer, Division Administrator, Texas Division, Federal Highway Administration, U.S. Department of Transportation, Subject: "Private Cash Donations for Non-Federal Share of Federal-aid Transportation Projects.") Although this ruling does not provide the maximum funding leverage for such contributions, private sponsors should not lose sight of the savings contributions of cash and services can bring to cash-poor local governments by reducing a project's total cost. Section 11.205(i) has been revised to clarify its original intent that all federal reimbursement for eligible expenditures for transportation enhancement will be to the department. When other entities are involved with the department in a transportation enhancement project, the department will reimburse those entities for their allowable expenditures. The new sections are adopted to meet the requirements of Title 23, United States Code, sec.133(d)(2) and sec.160(e)(2), and sec.1015(d)(2) of the Intermodal Surface Transportation Efficiency Act of 1991 (Public Law 102-240) which require that 10% of certain funds apportioned to a state pursuant to Title 23, United States Code, sec.104(b)(3) and administered by the Texas Department of Transportation be used for transportation enhancement activities; and are also proposed 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. sec.11.201. Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. Allowable costs -Necessary project-expenditures incurred after federal approval and authorization to proceed and otherwise eligible for reimbursement under applicable statutes and regulations. In appropriate projects, allowable costs may include costs of preliminary engineering (including environmental studies), project planning and design, acquisition of land or other real property, and interpretation or other activities to enhance the appreciation of scenic, historic, or cultural resources. Expenditures for routine operation and maintenance are not allowable costs. Appropriate local officials-Principal elected officials of general purpose local governments. Candidate project -A project recommended to the department by a nominating entity for the commission's consideration as a project included in the Statewide Transportation Enhancement Program. Commission-Texas Transportation Commission. Department-Texas Department of Transportation (TxDOT). District office -A headquarters office for one of the department's geographical districts into which the state is divided. In-kind contributions -That portion of the otherwise allowable (chargeable) costs of a project contributed by other governmental entities or private parties. It includes both donations of cash or property and contribution of services. Intermodal transportation system-An interconnected transportation network for moving people and goods using various combinations of different modes, including the transportation systems of the future. Local transit operator-A public or private non-profit entity providing public transportation within a given region. Metropolitan area -That area included within the boundaries determined pursuant to Title 23, United States Code, sec.134(c) and/or sec.8(c) of the Federal Transit Act (49 USC App. sec.1608(c)). Metropolitan long-range plan-The plan required by Title 23, United States Code, sec.134(g) and/or sec.8(g) of the Federal Transit Act (49 USC App. sec.1608(g)). Metropolitan planning organization (MPO)-That entity designated by the governor in accordance with sec. sec.5.51-5.57 (relating to Metropolitan Planning Organizations) as responsible, together with the state, for carrying out the provisions of Title 23, United States Code, sec.134 and/or sec.8 of the Federal Transit Act (49 USC App. sec.1608), as required by Title 23, United States Code, sec.104(f)(3) and capable of meeting the requirements of sec. sec.2(a)(2), 2(e)(1), 3(a), 4(g)(1), and 4(1) of the Federal Transit Act (49 USC App. sec.sec.1602(a)(2), (e)(1), 1603(a), 1604(g)(1), and (1)). MPOs are generally composed of local elected officials, the administrators of the area's major transportation systems, state officials, transit officials, and other interested parties. Nominating entity -The state agency, agency of the state, MPO, councils of governments, city, county, or local transit operator which nominates a particular candidate project for consideration by the department, and which exercises jurisdiction over the geographic area in which that project is located. Operational income -Net income received by the owner of a facility constructed or enhanced using funds received through the Statewide Transportation Enhancement Program after deducting the costs incident to the generation of that income. The term includes, but is not limited to, income from fees for services performed, use or rental of real or personal property, or sale of commodities. Taxes, license fees, fines, royalties, and other such revenues received by the facility owner or paid within the facility are not considered income. Project-An undertaking to develop, implement, or construct a particular transportation enhancement at a specific location or locations, or, if the context so implies, the particular enhancement so developed, implemented, or constructed. Public authority -A state agency or political subdivision of this state. Selected project -A project which the commission has elected to include in the Statewide Transportation Enhancement Program. Sponsor-One or more individuals, partnerships, associations, private corporations, or public authorities recommending a particular project and committed to its development, implementation, construction' maintenance, management, or financing. State-The State of Texas. State highway system-As defined in Texas Civil Statutes, Article 6674b, that system of highways in the state included in a comprehensive plan prepared by the department's executive director under the direction and with the approval of the commission. Statewide Transportation Improvement Program (STIP)-The program required by Title 23, United States Code, sec.135(f). Statewide long-range transportation plan-The plan required by Title 23, United States Code, sec.135(e). Statewide project -A project benefiting the entire state but without activities related to the intermodal transportation system in any specific metropolitan area, city, or county. Transportation Improvement Program (TIP)-The program required by Title 23, United States Code, sec.134(h), and/or sec.8(h) of the Federal Transit Act (49 USC App. sec.1608(h)). Transportation enhancement activities-Those activities so defined in sec.101(a) of Title 23, United States Code. That provision defines transportation enhancement activities as: (A) provision of facilities for pedestrians and bicycles; (B) acquisition of scenic easements and scenic or historic sites; (C) scenic or historic highway programs; (D) landscaping and other scenic beautification; (E) historic preservation; (F) rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals); (G) preservation of abandoned railway corridors (including the conversion and use thereof for pedestrian or bicycle trails); (H) control and removal of outdoor advertising; (I) archaeological planning and research; and (J) mitigation of water pollution due to highway runoff. Transportation-Pertaining to the purposeful movement of people between their places of residence, employment, commerce, education, recreation, and entertainment; or of goods between places of manufacture, storage, sale, maintenance, repair, salvage, and disposition. USDOT-Either the Secretary of Transportation for the United States of America, the U.S. Department of Transportation, or the appropriate agency within that department. sec.11.202. Project Eligibility. (a) To be eligible for consideration for inclusion in the Statewide Transportation Enhancement Program, a candidate project must: (1) propose one or more transportation enhancement activities that have a direct relationship of function, proximity, or impact to the intermodal transportation system, yet go beyond activities customarily incorporated into transportation projects; (2) consist of expenditures that conform to applicable provisions of state and federal laws; (3) present persuasive evidence of support for the candidate project from the community in which it would be implemented, to include a commitment to provide at least 20% of the allowable costs of the candidate project; (4) propose to construct or enhance a facility from which all operational income will be used for the costs necessary for the proper operation and maintenance of the facility, including reconstruction, restoration, and rehabilitation; and (5) be nominated for consideration by an eligible nominating entity in the manner prescribed in sec.11.203 of this title (relating to Project Nomination). (b) Whether proposed as an independent project or as an element of a larger transportation project, the candidate project must be limited to a logical unit of work and must be capable of being completed within a reasonable time, as determined by the department in consultation with the nominating entity. In the absence of information suggesting that a shorter or longer period is appropriate, three years or less will be presumed to be a reasonable time. sec.11.203. Project Nomination. (a) Call for nominations. The department will call for nominations of candidate projects annually by publication in the Texas Register. The department will also provide notice of the call for candidate projects to all MPOs, all councils of governments (COGs), and all local transit operators in the state. (b) Who may nominate. (1) The department will receive and consider for funding only candidate project nominations from specific nominating entities, depending on the location of the candidate project, as outlined in the following chart: [graphic] (2) Activities in multiple jurisdictions should be segmented into separate candidate projects whenever practical. (3) When the nominating entity for a candidate project (other than a statewide project) is not itself the MPO, city, or county designated by Title 23, United States Code, sec.134 or sec.135, to select Surface Transportation Program projects in any area in which activities would take place, the nominating entity must provide documentary evidence that the MPO, city, or county designated by sec.134 or sec.135 to select such projects in that area has authorized it to nominate the project. (c) How to nominate a project. (1) To nominate a candidate project, the eligible nominating entity must file its nominating, in the form prescribed by the department, with the district engineer of the district office responsible for the area in which the proposed enhancement would be implemented. The nomination form for a single project in multiple jurisdictions may be filed with the district engineer of the district office responsible for any of the areas in which the proposed enhancement would be implemented. The nomination shall consist of information necessary for project evaluation, and shall include to the maximum extent practicable: (A) a clear and concise description of the proposed enhancement (The description must detail all work to be performed as part of the candidate project, the relationship between the proposed enhancement and the intermodal transportation system, any right-of-way or easements required, any special land uses planned, and any relationships between the candidate project and any other work anticipated, planned, presently under way, or previously completed.) ; (B) an implementation plan for the candidate project, including both a schedule of project activities and a budget (The schedule of activities must indicate any circumstances known to the nominating entity that are likely to affect commencement of work on the candidate project or the time required to complete it, including environmental and historic issues likely to affect commencement of the work. The budget must describe all proposed local financing of allowable project costs and be accompanied by documentary evidence of the commitment of project sponsors to pay those costs and of their ability to do s. If federal funds will be used for the locally provided share of project costs, a copy of the statutory or regulatory authority for that use must be attached.); (C) a map delineating the location or locations of the candidate project (The map should show project limits, highlight any areas of major work, and show all existing or proposed transportation facilities and associated rights-of-way.); (D) original photographs of the existing project site; (E) a site plan of the proposed construction and illustrations of the proposed work; (F) if land is to be acquired, a description of how it is to be acquired, including estimated cost, if any, and proposed funding arrangements; (G) if construction is proposed, a description of how it would be accomplished, including estimated cost; (H) a description of the expected benefits from the proposed enhancement (The description must include expected use of any facilities involved, and must compare current and projected demand for use of those facilities.); (I) appropriate documentary evidence of community involvement in development of the proposed enhancement and public support for it (At a minimum, evidence submitted must include a description of any opportunities for public participation that were included in the process of selecting candidate projects and a resolution or other official document from the governing body of each city and county with jurisdiction over any area in which activities associated with the project and related to the area's intermodal transportation system would take place. That document should state the governing body's support for the implementation of the proposed project, its recommendation that it be considered for funding, and (when appropriate) its commitment to provide a share of allowable project costs. For activities in metropolitan areas, one of these documents must be from the governing body of the MPO for that area.); (J) a plan covering the operation and maintenance of the facility created by or benefiting from the enhancement (The plan will identify all parties responsible for operation and maintenance, estimate the annual cost to operate and maintain the facility, describe the source of those funds, identify all expected operational income from the facility, and describe the intended use of that income.); (K) documentary evidence that the environmental consequences of the proposed enhancement have been fully considered, and that the proposed enhancement will comply with all applicable local, state, and federal environmental laws, regulations, and requirements (The evidence required should include sufficient facts to allow the department to determine the necessity for environmental studies according to sec.sec.11.80-11.90 of this title (relating to Environmental and Public Involvement for Highway Improvement Projects); (L) a written statement showing that the proposed enhancement is consistent with any long-range transportation plans for that area in which it would be implemented; (M) a written statement of the relative priority ranking assigned by the nominating entity to that candidate project among all candidate projects nominated by that entity for consideration in response to the current call for project nominations; and (N) for any enhancement activity that would be implemented within a metropolitan area, a letter from the MPO stating that, should funding for the candidate project be made available, the MPO will include the candidate project in the TIP for that area if the candidate project has not yet been included. (2) Nominations must be received by the department no later than 90 days after publication of the call for candidate project nominations in the Texas Register . (3) Nominating entities proposing candidate projects calling for work in multiple metropolitan areas, cities, or counties must provide copies of the nomination documents to affected local public officials. sec.11.204. Selection of Projects for Funding. (a) Eligibility and technical screening. (1) The department will review each candidate project to determine eligibility for funding according to federal and state law and to determine that each candidate project will meet technical standards established by applicable law and accepted professional practice. In determining eligibility, the department will coordinate with USDOT. In determining technical sufficiency, the department will coordinate with appropriate state and federal agencies. Eligible candidate projects, together with the results of the technical review, will be submitted to the transportation enhancement project evaluation committee as described in subsection (b)(1) of this section for evaluation of potential benefits. (2) Each ineligible candidate project proposal will be returned to the nominating entity by certified mail, return receipt requested, with a statement explaining its ineligibility. A request for reconsideration of a finding of ineligibility may be initiated only by a letter from the nominating entity to the executive director setting forth reasons in support of a finding of eligibility. The letter requesting reconsideration must be received by the department no later than 15 days after the nominating entity received the returned proposal, as established by the return receipt. The determination of the executive director in response to the request for reconsideration will be final. (b) Evaluation of project benefits. (1) Transportation Enhancement Project Evaluation Committee. (A) The potential benefit of each eligible candidate project will be evaluated by an advisory committee, to be known as the Transportation Enhancement Project Evaluation Committee. The members of the Transportation Enhancement Project Evaluation Committee shall be: (i) the executive director of TxDOT, or designee, who shall chair the committee; (ii) the State Land Commissioner, or designee; and (iii) the executive director, or designee, of each of the following state agencies: the Texas Department of Commerce, the Texas Historical Commission; the Texas Parks and Wildlife Department; and the Texas Water Commission. (B) The transportation enhancement project evaluation committee will meet at least once annually at the call of the chair to consider and discuss the potential benefit of eligible candidate projects (including all previously submitted candidate projects not selected for funding and retained by the department pursuant to subsection (c)(5) of this section). After discussing the candidate projects, the committee will evaluate the potential benefit of each project based on the quality and scope of the project in three areas: economic benefit, environmental benefit, and social benefit. In evaluating each benefit area, the committee will consider both the quality of the benefit and the scope of that benefit, and will assign a score to each according to paragraph (2) of this subsection. The committee will prepare a list of all candidate projects with their respectively assigned scores, and will by resolution provide the project list and scores to the department. The resolution may also include comments or recommendations concerning the potential benefit of any listed project. (C) Except as provided in this subsection, the operations and procedures of the Evaluation Committee are governed by sec.sec.1.80-1.84 of this title (relating to Advisory Committees). (2) Project scoring. The transportation enhancement project evaluation committee will score each project as follows. (A) The committee will evaluate the benefit of each candidate project in each of the three areas (economic benefit, environmental benefit, and social benefit) described in paragraph (1)(B) of this subsection. For purposes of this evaluation: (i) economic benefit refers to the project's enhancement of the local, regional, or statewide economy by, for example, increased tourism, enhancement of property values, enhancement of tax base, or reduction of economic loss due to injury; (ii) environmental benefit refers to the project's improvement of some aspect of the natural, historic, or prehistoric environment by, for example, improving or protecting air or water quality, vegetation, wildlife habitat, historic or archaeological resources, or the quality of human life; and (iii) social benefit refers to the project's enhancement of some aspect of human life, including cultural aspects, visual or aesthetic aspects, recreational aspects, or historic aspects, whether locally, regionally, or statewide. (B) For each benefit area, the committee will score the benefit on a scale of 1 to 100, with 100 being the most beneficial of the candidate projects being considered and one being the least beneficial. The committee will consider both factors of quality and scope in assigning scores in the three areas. Quality relates to the technical quality or the measurable or identifiable benefits of the project. Scope relates to the magnitude of the benefit of the project as measured by the geographical extent, population served, and duration of the benefit (long-term or short-term). (C) The score for a candidate project is the sum of the committee's scores in each of the three benefit areas. (c) Selection. (1) The department will recommend for consideration by the commission a program of candidate projects. To assist the commission in its decisions concerning selection and funding, the department will, in addition to department staff recommendations, provide to the commission: (A) the list of all eligible candidate projects and scores provided by the transportation enhancement project evaluation committee, together with any comments or recommendations included in the committee's resolution; (B) any other comments relevant to consideration of any candidate project for funding, including: (i) any policy matters; (ii) consistency of the candidate project with the statewide long-range transportation plan and any local, metropolitan, or regional long-range transportation plans; (iii) the candidate project's benefit-cost ratio, calculated by dividing the project score by the project's estimated cost; (iv) the priority ranking assigned the candidate project by the nominating entity; (v) evidence of public support for the candidate project; (vi) evidence of the commitment of project sponsors to provide more than the minimum required non-federal share of allowable project costs and their ability to do so; (vii) an evaluation of proposed projects, indicating the extent to which each project will meet accepted standards as established by applicable law and by accepted professional practice; and (viii) the views, comments, and certifications, if any, of an MPO or a governing body of a city or county. (2) The commission will select from among all eligible candidate projects those projects, if any, approved for funding. In selecting an eligible candidate project for funding, the commission will consider: (A) all information provided under paragraph (1)(A) and (B) of this subsection; (B) the potential benefit to the state of the candidate project; and (C) the impact of the candidate project on the economies of each county in which the project is to be located, and of the municipalities within those counties. (3) In evaluating the potential benefit to the state of the candidate project, the commission will consider, but is not bound by, project scores and other comments included in the resolution of the transportation enhancement project evaluation committee. (4) The commission will, by written order, designate the selected projects and specify for each the rationale for selection. (5) The department will retain eligible candidate project proposals not selected for funding. After subsequent calls for candidate project nominations, all unselected candidate projects will be resubmitted to the Transportation Enhancement Project Evaluation Committee with any new eligible candidate projects. Prior to resubmitting unselected candidate projects to the evaluation committee, however, the department may require the nominating entity for the project to update the nomination information and to renew the evidence of public support and to re-evaluate the priority ranking of the project as required by sec.11. 203(c)(1)(I)-(L) of this title (relating to Project Nomination). sec.11.205. Project Administration. (a) When a project is selected for funding, the department will notify the nominating entity for that project of its selection. If the selected project is to be implemented in a metropolitan area, the department will request that the MPO immediately begin the process required to include the selected project in its TIP. (b) The department will immediately begin the process required to include all selected projects in the STIP. Costs incurred prior to the inclusion of the activity in the STIP and prior to federal approval and authorization to proceed are not eligible for reimbursement. (c) The department will implement or arrange for implementation of each selected project in accordance with statutory requisites and contracting procedures applicable to the type and character of the project. (d) All selected projects must be developed to standards and specifications established or recognized by the department. The department may allow project plans to be developed by other public authorities or by sponsors, provided those plans are reviewed by the department and determined to have been developed according to department standards and specifications. The department will coordinate with other state and federal agencies as required by state or federal law or applicable policy. (e) All agencies receiving federal funds for transportation enhancement activities must comply with all federal and state procedures and requirements applicable to development of federal-aid transportation projects. (f) Before funding any right-of-way acquisition or construction activities, the commission ill ensure that required opportunities for public involvement have been provided and proper environmental documentation has been completed. (g) Except for the fair market value of land incorporated into the project and donated to the state pursuant to Title 23, United States Code, sec.323, locally provided share of allowable project costs must be in dollars provided to the project by a public authority. Funds from other federal programs may be used only when specifically authorized by federal statute or regulation. Private cash donations, contributions of services, and other in-kind contributions only reduce the allowable costs of the project. Except where specifically permitted under federal law, the value of an activity accomplished away from the project and not directly chargeable to the project ("soft match") is not allowed as credit toward the non-federal share of allowable project costs. (h) The department is responsible for inspection and final acceptance of all selected projects and for certification of project completion. (i) The department will submit all requests to USDOT for reimbursement of allowable costs. When the department implements appropriate projects through or in cooperation with other entities, those entities will request reimbursement of allowable costs they incur from the department using the forms and procedures specified by 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 July 5, 1993. TRD-9325292 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: July 26, 1993 Proposal publication date: May 11, 1993 For further information, please call: (512) 463-8630 Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. ) Texas Department of Agriculture Form Filings tda co33j, licensed warehouse bond, tda s329, duplicate warehouse receipt bond, tda s333, bond of public warehouseman (individual or partnership), tda s335, bond of public warehouseman (corporation), tda, warehouse bond signature form. The State Board of Insurance of the Texas Department of Insurance, at a public meeting scheduled for 9:00 a.m. July 8, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted the following forms filed by the Texas Department of Agriculture: TDA CO33J, Licensed Warehouse Bond; TDA S329, Duplicate Warehouse Receipt Bond; TDA S333, Bond of Public Warehouseman (Individual or Partnership); TDA S335, Bond of Public Warehouseman (Corporation); and TDA, Warehouse Bond Signature Form. The Licensed Warehouse Bond is a requirement of the Texas Agriculture Code, Chapter 14, Subchapter A, sec.14.009. The principal of the bond is a grain warehouseman who uses a building, bin, or similar structure for receiving, storing, shipping, or handling of grain for hire, or purchases and sells grain, including grain on which payment is deferred. The purpose of the bond is to protect the depositor who is the legal owner of grain stored, handled or shipped in or by the warehouseman. The bond is conditioned on faithful performance of the grain warehouseman's obligations regarding the handling of the grain and any contracts pertaining thereto. The penalty amount of the bond ranges from $15,000 to $500,000. The Duplicate Warehouse Receipt Bond is a requirement of the Texas Agriculture Code, Chapter 14, Subchapter A, sec.14.019. In the event that a receipt identifying grain ownership is lost, stolen or destroyed, a duplicate receipt is issued to the owner by the warehouseman, but prior to that issuance, a bond is required by the warehouseman. The purpose of the bond is to fully protect all rights under the missing receipt. The penalty amount of the bond is double the market value of the grain covered by the missing receipt. The Bond of Public Warehouseman (Individual or Partnership) and Bond of Public Warehouseman (Corporation) are requirements of the Texas Agriculture Code, Chapter 14, Subchapter C, sec.14.206. The principal is a public warehouseman who stores cotton, wheat, rye, oats, or rice, or any kind of produce, wares, merchandise, or personal property for hire. The purpose of the bonds is to protect the party who stores goods in the warehouse in the event the warehouseman fails to comply with the law. Each bond is conditioned on faithful performance of the public warehouseman's duties as a public warehouseman. The penalty amount of each bond is $5,000. The Warehouse Bond Signature Form is attached to each of the above bonds for the purpose of countersigning by an authorized local recording agent. The Texas Department of Agriculture's form filings (Reference Number O-0693-13) were published in the June 25, 1993, issue of the Texas Register (18 TexReg 4188). The Board has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.13, 5.15, and 5.97. The full text of the form filings for the Licensed Warehouse Bond, Duplicate Warehouse Receipt Bond, Bond of Public Warehouseman (Individual or Partnership), Bond of Public Warehouseman (Corporation), and Warehouse Bond Signature Form as adopted by the Board are filed with the Chief Clerk under Reference Number O- 0693-13 and are incorporated by reference by Board Order Number 60398. This notification is made pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. 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 July 9, 1993. TRD-9325552 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: July 31, 1993 Proposal publication date: June 25, 1993 For further information, please call: (512) 463-6327