ADOPTED RULES 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 VII. State Office of Administrative Hearings Chapter 161. Requests for Records 1 TAC sec.161.1 The State Office of Administrative Hearings adopts new sec.161.1, concerning charges for copies of public records, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6691). The justification for the new section will be to provide a framework within which the State Office of Administrative Hearings may recover the reasonable cost of providing copies of open records, consistent with the guidelines recommended by the General Services Commission which promotes statewide consistency of copy charges, and to set forth the State Office of Administrative Hearings' option to waive those charges. No comments were received regarding adoption of the new section. The new section is adopted to comply with actions taken by the 73rd Legislature in House Bill 1009 in relation to Texas Civil Statutes, Article 6252-17a, which requires agencies to adopt rules specifying charges for copies of open 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 October 28, 1994. TRD-9450201 Shelia A. Bailey Deputy Chief Administrative Law Judge State Office of Administrative Hearings Effective date: November 18, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 475-4993. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 17. Marketing and Development Division Texas-Israel Exchange Program 4 TAC sec.sec.17.100-17.104 The Texas Department of Agriculture (the department) adopts new sec.sec.17. 100-17.104, concerning the Texas-Israel exchange program, with changes to the proposed text as published in the August 5, 1994, issue of the Texas Register (19 TexReg 6085). Sections 17.101-17.104 are adopted with changes. Section 17.100 is adopted without changes and will not be republished. The new sections are adopted to provide procedures for participation in the Texas-Israel exchange program. Section 17.101 has been changed, replacing the word "on" with the word "for" to correct a clerical or grammatical error. Section 17.102 has been changed, deleting the word "Commissioner's" to clarify that the choice of projects is not solely that of the Commissioner. Section 17. 102 has also been changed to reflect that an equal amount of funds shall be contributed by Texas and Israel for each year the program is in operation. These changes are in response to comments made by representatives of the Ministry of Agriculture of the State of Israel. The department believes that these changes assist in clarifying and emphasizing the joint (Texas-Israel) nature of this program, and the fact that decisions will be made in cooperation with the appropriate representative in Israel. Section 17.103 has been changed by adding subsection (e) to clarify that only projects with a collaborative partner in Israel will be funded. In addition, the listing of recommended projects has been amended to include "all disciplines of irrigation." These changes are in response to comments by representatives of the Israeli government. The department believes that these changes clarify that projects which are funded jointly by the Israeli government and the exchange fund will be required to have participants from both Texas and Israel. The department also agreed with the suggestion that all disciplines of irrigation should be emphasized, since wise utilization of water in irrigation, as it relates to agricultural activities under semi-arid conditions, is a major concern of both Texas and Israel. Section 17.104 has been changed, with subsection (b) being amended to clarify that all projects should be completed by the end of the fiscal year for which they were funded. The department wanted to ensure that applicants were aware of the exact fiscal year being referenced. The new sections provide a general statement of the authority and purpose of the Texas-Israel exchange program. In addition, the new sections provide definitions, general project eligibility requirements, application requirements, procedures for soliciting and filing of applications, recommendations for projects, and certain criteria for approval of a grant application under the program. Comments by the representative of the Israeli government were generally supportive of the program, and were offered as technical observations and comments from the perspective of our program collaborator. No further comments were received regarding adoption of these rules. The new sections are adopted under the Texas Agriculture Code, sec.45.004, which provides the Texas Department of Agriculture with the authority to establish rules necessary for the implementation and administration of the Texas-Israel Exchange Program; and Texas Government Code, sec.2001.004, which requires that the department adopt rules of practice stating the nature and requirements of all available formal and informal procedures. sec.17.101. Purpose. The TIE program is created to provide matching grant funds for joint agricultural research and development projects benefiting, and the development of trade and business relations between, Texas and Israel. sec.17.102. Administration. The TIE program will be administered by a coordinator who shall work in cooperation with a counterpart designated by Israel to support projects of mutual benefit to Texas and Israel. The Board will ratify the choice of projects to receive TIE funding, after consultation with corresponding designees of the Israeli government. An equal amount of monies shall be contributed by Texas and Israel for each year the program is in operation. sec.17.103. Selection Criteria. (a) Projects will be selected on a competitive basis. (b) Preference will be given to projects that are unique in nature and avoid duplication with other projects being funded by the Texas or Israeli governments. (c) Projects should demonstrate an innovative use of funding or resources. (d) Projects in the areas of research, trade development, improving business relations, information exchange and mutual assistance are all eligible. Recommended topics for research and development include water conservation, water management and use, all disciplines of irrigation, soil management and conservation, innovative sources of energy for agricultural production, intensive crop production, environmental aspects of agricultural technology, and agricultural engineering and processing. The commercial exchange of agricultural products or processes may also be supported by TIE. (e) Only projects with an active collaborative partner in Israel shall be funded. sec.17.104. Application Procedure. (a) The department shall issue an annual request for proposals, to be published in the Texas Register during each fiscal year for which Texas and Israel have dedicated an equal amount of funds for implementing the TIE program. (b) All projects should be completed by the end of the fiscal year for which they were funded. (c) Public or private entities which can demonstrate their commitment to the program's objectives are eligible to apply. (d) Proposed projects must comply with the purpose and objectives set forth in the Texas Agriculture Code, Chapter 45, and these rules. (e) The application shall include project manager information, other participating organizations' cash or in-kind contributions, project budget broken down by task, project summary, project need and background, project goals and timeline, plan for dissemination of information gained from the project, and agricultural and economic impact. 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 October 27, 1994. TRD-9450164 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: November 17, 1994 Proposal publication date: August 5, 1994 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part III. Texas Alcoholic Beverage Commission Chapter 45. Marketing Practices Subchapter D. Advertising and Promotion-All Beverages 16 TAC sec.45.109 The Texas Alcoholic Beverage Commission adopts new sec.45.109, concerning the restocking and rotation of alcoholic beverages in retail licensed premises, with changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5820). This section was adopted to clarify statutory provisions of the Alcoholic Beverage Code, sec.102.19, which provides for the restocking of displays and rotation of alcoholic beverage stock in retail establishments by a representative of wholesalers or distributors and providing that the commission may publish guidelines for these procedures. The rule sets out which license and permit holders may restock or rotate retailer's inventories and outlines what specific activities are legal and which ones are illegal services to a retail license or permit holder. The commission adopted the new rule that clarifies the providing of schematic diagrams by either wholesalers, distributors or manufacturers and clarified under what conditions a manufacturer may contact retailers on behalf of their distributors. The Wholesale Beer Distributors of Texas spoke in favor of the rule and represented that the language for the new rule had been worked out by all of the major brewers and their wholesalers. No comments were received against the new rule. The new rule is adopted under Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. This rule affects Alcoholic Beverage Code, sec.102.19. sec.45.109. Restocking and Rotation of Alcoholic Beverages. (a) This rule is promulgated under the Texas Alcoholic Beverage Code, sec.102.19, which provides for the Alcoholic Beverage Commission to set guidelines for wholesalers and distributors to rotate and stock alcoholic beverages. The purpose of this rule is to set guidelines for proper stocking and rotation of alcoholic beverages at the premises of a retail license or permit holder and to define what activities constitute an illegal service to a retailer. (b) Other than a consumer and any licensed retailer authorized to sell alcoholic beverages, and his employees, no person shall remove, replace or stock any display of alcoholic beverages in a retail establishment except the holders of the following licenses and permits and their employees: (1) general distributor's license; (2) local distributor's license; (3) branch distributor's license; (4) general class B wholesaler's permit; (5) local class B wholesaler's permit; (6) wholesaler's permit; or (7) the holder of a manufacturer's license, a brewer's permit, or a wine bottler's permit specifically authorized to sell directly to a retail license or permit. (c) The mentioned authorized personnel in subsection (b) of this section may: (1) place brands sold by him on a retailer's shelves, coolers, or displays in space allocated to his brands by the retailer; (2) move brands sold by him from a retailer's storage area and place it on a retailer's shelves, coolers, or other display location allocated to his brands by the retailer; or (3) move a competitor's product to a "limited nature" if they have encroached upon the space allocated to his brands by the retailer. If a competitor's product is moved, it must be moved to an available location assigned to that brand by the retailer. If no space is available, the retailer must be notified of the encroaching product and shall have the responsibility of moving the product. (d) The persons listed in subsection (b) may not: (1) re-set the shelves for any retailer; or (2) clean or mop shelves, floor space, or display areas or perform any other services incidental to a re-set of alcoholic beverages. (e) It is not the intention of this rule that the "limited nature" movement of a competitor's product be used in any way as the basis of a cooler or shelf "re- set" for any retailer. If a retailer wishes to completely rearrange his shelf or cooler space, it must be done by his own employees. (f) A schematic diagram or drawing may be furnished by a distributor or wholesaler to a retailer, but there are certain restrictions on the preparation and use of schematics, as follows: (1) the distributor or wholesaler may use his own past sales to the retailer; (2) the distributor or wholesaler may use market sales or shipment data correlated or compiled from public records or reports; or (3) the distributor or wholesaler may use sales or purchase data on other brands which are furnished to him by the retailer; provided, however, such sales or purchase data must be fully compiled and be in a readily usable form when furnished by the retailer to the distributor or wholesaler. A distributor or wholesaler may not perform an audit or inventory of a retailer's stock in order to gather data to compile a schematic. (g) The furnishing of a schematic is prohibited and will be considered illegal if it is tied to or is part of a commitment or promise by the distributor or wholesaler to furnish services to the retailer (such as labor to re-set a cooler box in accordance with the schematic) which is an inducement prohibited by the code. The use of a schematic as a sales tool only, to demonstrate to the retailer how he can benefit from optimum shelf displays, is not per se illegal. It only becomes illegal if it is coupled with a scheme calculated to induce a retailer by providing services not specifically authorized by the code or rule of the commission. (h) The activities authorized in subsection (c) of this section, may only be performed during the hours when the sale or delivery of specific alcoholic beverages are legal. (i) Nothing in this section is deemed to authorize any wholesale or manufacturing license or permit holder to perform any restocking or rotation service for a retailer other than what is specifically authorized in this section. (j) Manufacturers' authority to provide schematic diagrams. Holders of manufacturer's licenses, nonresident manufacturer's licenses, brewer's permits, or nonresident brewer's permits, or their properly licensed agents, may, subject to the following limitations, furnish schematic diagrams in the manner and under the conditions as authorized for distributors or wholesalers, provided that: (1) schematics may only be furnished to representatives of a retailer who holds retail licenses or permits which are located in the assigned territories of more than one distributor or wholesaler of the manufacturer's or brewer's brands; (2) the schematics intended to be furnished by the manufacturing-level licensee or permittee to the retailer shall be furnished to the affected distributors or wholesalers of the manufacturer's or brewer's brands prior to the time the schematics are to be submitted to the retailer, together with the data and its source upon which the schematic was based, and the distributor or wholesaler shall be given a reasonable period of time to offer or suggest changes in the schematic to more accurately reflect local sales trends; and (3) any affected distributor or wholesaler of the manufacturer's or brewer's brands shall be given reasonable notice of and be afforded the right and option to be present at any meeting with a retailer when a schematic diagram is to be furnished by a manufacturing-level licensee or permittee. (k) A manufacturing-level permittee or licensee is prohibited from soliciting, accepting, taking or receiving an order from a retailer for the purchase, sale, and/or delivery of any malt beverage unless the manufacturing-level permittee or licensee is specifically authorized by the code to sell malt beverages to a retailer. 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 authority. Issued in Austin, Texas, on October 26, 1994. TRD-9450101 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: November 16, 1994 Proposal publication date: July 29, 1994 For further information, please call: (512) 206-3496 Chapter 50. Alcohol Awareness and Education 16 TAC sec.50.5 The Texas Alcoholic Beverage Commission adopted an amendment to sec.50.5, concerning the revocation or suspension of program approval, without changes to the proposed text as published in the September 23, 1994, issue of the Texas Register (19 TexReg 7494). This amendment changes the time period that is reviewed, since the discharge of any sentence imposed as a result of a conviction of a crime, from two years to three years, and thereby is consistent with the Alcoholic Beverage Commission rules sec.50.5(a)(3) and sec.50.7(a)(3). This rule will result in the better education of the public concerning laws involving intoxication and the purchase of alcohol by minors which, in turn, will aid in the enforcement of the Alcoholic Beverage Code. No comments were received regarding adoption of the amendment. The amendment is adopted under the Alcoholic Beverage Code, sec.5.31, which provides the Texas Alcoholic Beverage Commission with the authority to prescribe and publish rules necessary to carry out the provisions of the Alcoholic Beverage Code. This amendment to the rule affects Alcoholic Beverage Code, sec.106.14. 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 October 27, 1994. TRD-9450155 Gayle Gordon General Counsel Texas Alcoholic Beverage Commission Effective date: November 17, 1994 Proposal publication date: September 23, 1994 For further information, please call: (512) 206-3496. TITLE 22. EXAMINING BOARDS Part XXVIII. Executive Council of Physical Therapy and Occupational Therapy Examiners Chapter 651. Fees 22 TAC sec.651.1 The Executive Council of Physical Therapy and Occupational Therapy Examiners adopts new sec.651.1, concerning fees, without changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5931). This rule is being adopted to set fees for services provided by the Texas Board of Occupational Therapy Examiners. This rule will establish fees for services provided by the Texas Board of Occupational Therapy Examiners. No comments were received regarding adoption of this new rule. The new section is proposed under Texas Civil Statutes, Article 4512e-1. 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 authority. Issued in Austin, Texas, on October 26, 1994. TRD-9450100 Nina Hurter Acting Director Executive Council of Physical Therapy and Occupational Therapy Examiners Effective date: December 1, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 443-8202 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter L. Motor Fuels Tax 34 TAC sec.3.196 The Comptroller of Public Accounts adopts an amendment to sec.3.196, concerning reports, due dates, bonding requirements, and qualifications for annual filers, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3565). The amendment allows the comptroller to determine the reporting requirements for a diesel fuel bonded user permit. The change will allow a diesel fuel bonded user to initially qualify to file an annual report upon approval by the comptroller. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 authority. Issued in Austin, Texas, on October 26, 1994. TRD-9450104 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: November 16, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VII. Texas Commission on Law Enforcement Officer Standards and Education Chapter 211. Administration Division 37 TAC sec.211.70 The Texas Commission on Law Enforcement Officer Standards and Education (commission) adopts the repeal of sec.211.70, concerning the minimum training standards for reserve law enforcement officers, without changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3634). The rule was amended and adopted as sec.219.70 to establish continuity and consistency in the rule numbering scheme. The effective date of the repeal was changed to December 1, 1994. Section 211.70 was adopted as Final Order 94-4. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Government Code, Chapter 415, sec.415. 010(1) which provides the commission with authority to pass rules for the administration of this Chapter; sec.415.010(9) which provides the commission with authority to establish minimum standards for licensing; and sec.415.031(a) which requires the commission to establish and maintain training programs; and under the Texas Government Code, Chapters 2001 and 2002, which taken together establish the procedures for the rule making requirements for the commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 26, 1994. TRD-9450088 D. C. Jim Dozier Executive Director Texas Commission on Law Enforcement Officer Standards and Education Effective date: December 1, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-0188 Chapter 219. Pre-licensing and Reactivation Courses, Tests, and Endorsement of Eligibility Division 37 TAC sec.219.70 The Texas Commission on Law Enforcement Officer Standards and Education (commission) adopts new sec.219.70, with changes to the proposed text as published in the May 13, 1994, issue of the Texas Register (19 TexReg 3637). The commission is required by statute to establish and maintain training programs for officers and county jailers. Reserve law enforcement officers constitute an important and substantial part of the law enforcement community. It is the objective of the commission to provide reserves with convenient means of acquiring mandated training. The proposed rule will amend and replace commission rule sec.211.70, and will provide reserves an opportunity to complete the required training courses through alternative methods. The new section was adopted with changes at the September 13, 1994, regular quarterly meeting of the commission. The changes made were to subsections (a), (b), and (l)-the effective date of September 1, 1994, was changed to December 1, 1994. Section 219.70 was adopted as Final Order 94-3. A written comment was received concerning the sequencing of the Arrest, Search and Seizure training subject within the Reserve Training Modules. Students completing the Basic phase have the opportunity to test for a provisional license and to work in actual police incidents without the benefit of Arrest, Search and Seizure. It was recommended that the Arrest, Search and Seizure curricula should be included in the Basic Reserve Training Module, and that the commission consider adding this vital training requirement into the Basic Reserve Module. Written comments were received recommending that the commission postpone action on this rule in order to provide administrators and individuals an opportunity to discuss with the Commissioners their concerns about the rule and how it will affect their agencies. An oral comment was received at the June 1994 commission meeting recommending that the commission postpone final adoption of this rule until all of the issues and questions have been addressed and evidence is presented to the commission. Some questions, particularly among small agencies, exist regarding the training of reserves, the amount of time it will take for these volunteers to complete their training, and the distance they will have to travel to get to a school to be trained. The commission postponed action on final adoption until the September 1994 commission meeting. The commission convened a Public Hearing on July 18, 1994, to receive testimony concerning alternative delivery of mandated and in-service training. An ad hoc committee was appointed to study this issue. The committee will meet in October 1994 and will report their findings and recommendations to the commission during the December 1994 commission meeting. The new section is adopted under Texas Government Code, Chapter 415, sec.415. 010(1) which provides the commission with authority to pass rules for the administration of this chapter; sec.415.010(9) which provides the commission with the authority to establish minimum standards for licensing; and sec.415. 031(a) which requires the commission to establish and maintain training programs; and under the Texas Government Code, Chapters 2001 and 2002, which taken together establish the procedures for the rule making requirements for the commission. sec.219.70. Minimum Training Standards for Reserves. (a) The minimum training standards for permanent licensing for a reserve on and after December 1, 1994, shall be: (1) completion of the 560-hour basic peace officer course; (2) successful completion of the college level law enforcement courses, which are known as the criminal justice transfer curriculum with law enforcement emphasis and the Texas peace officer sequence; (3) completion of any specifically required supplementary or remedial training; or (4) credit for sufficient previous training which is equivalent to the current basic peace officer course, including specifically, completion of one each of the separate reserve component courses which together meet or exceed the learning objectives of the basic peace officer course. (b) On and after December 1, 1994, the commission shall issue one of the following licenses to an applicant who meets all other reserve licensing standards, including the appropriate state examination: (1) a permanent peace officer license to a reserve applicant who meets the full peace officer training standard and who has passed the peace officer exam; or (2) a conditional reserve license to an applicant who has passed the reserve exam and who: (A) under the professional training path, has received credit for at least the 228-hour basic reserve course; or (B) under the academic path, has successfully completed at least the college level law enforcement courses which are known as the criminal justice transfer curriculum with law enforcement emphasis and the course, known as Texas peace officer skills, from the Texas peace officer sequence. (c) A conditional reserve license expires if the holder has not received credit for the following training, or successfully completed the following courses, under each respective path, within the specified time from the conditional license date: (1) under the professional training path: (A) the 190-hour intermediate reserve course within two years; (B) both the 190-hour intermediate reserve and the 142-hour advanced reserve courses within four years; and (2) under the academic path: (A) the Texas peace officer laws course within two years; or (B) both the Texas peace officer laws and procedures courses within four years. (d) In any event, a conditional reserve license will expire after four years if the holder has not passed the peace officer exam and, if it has expired after four years, such license will never be reinstated or reissued. If it has expired after two years, the commission may reinstate an expired conditional reserve license for the balance of the original four-year period, but only if the holder has been reported to the commission as having successfully completed either the 190-hour intermediate reserve course or the Texas peace officer laws course, under each respective path. (e) The commission may, through its executive director, review documentation of previous training submitted by a potential license applicant or an appointing agency and may then either: (1) accept that training as equivalent to any training required under the current commission standards; or (2) require specific supplementary or remedial training necessary to equate the previous training to those current standards. (f) However, if the previous training is out-of-state, the applicant may challenge the state license exam referred to in sec.211.74 of this title (relating to State Examinations) once. If challenged and passed, the license will be issued. If failed, the applicant may not be retested until successful completion of a supplementary peace officer training course in addition to any out-of-state training which may have been credited. (g) Each reserve course, basic, intermediate, and advanced, shall cover the subjects and be taught in accordance with the current instructor guides provided by the commission. (h) The basic reserve course shall consist of 228 hours of instruction, including the following topics and hours: Introduction and Orientation (2 hours), U.S. & Texas Constitutions and Bill of Rights (10 hours), Penal Code (40 hours), Use of Force-Law (8 hours), Use of Force-Concepts (16 hours), Strategies of Defense-Mechanics of Arrest (40 hours), Strategies of Defense-Firearms (40 hours), Traffic Law (24 hours), Code of Criminal Procedure (16 hours), Emergency Medical Assistance (16 hours), Professionalism and Ethics (8 hours), Juvenile Issues-Texas Family Code (8 hours). (i) The intermediate reserve course shall consist of 190 hours of instruction, including the following subjects and topics: Arrest, Search & Seizure (24 hours), Traffic (48 hours), Patrol Procedures (40 hours), Civil Process and Liability (12 hours), Interpersonal Communications/Report Writing (24 hours), Field Notetaking (4 hours), Texas Alcoholic Beverage Code (4 hours) , Emergency Communications (12 hours), Family Violence and Related Assaultive Offenses (16 hours), Recognizing & Interacting with Persons with Mental Illness & Mental Retardation (6 hours) (j) The advanced reserve course shall consist of 142 hours of instruction, including the following topics and hours: Drugs (8 hours), Multiculturalism and Human Relations (12 hours), Victims of Crime (8 hours), Crowd Management (2 hours), Hazardous Materials Awareness (6 hours), Fitness and Wellness (6 hours), Criminal Investigation (45 hours), Professional Police Driving (32 hours), History of Policing (3 hours), Criminal Justice System (2 hours), Stress Management for Peace Officers (8 hours), Problem Solving and Critical Thinking (4 hours), Professional Policing Approaches (6 hours). (k) On and after January 1, 1989, an applicant for a conditional reserve license, who has met the minimum training standards for reserves, must pass the required state licensing examination before two years has elapsed after meeting those standards. If not, training or courses that would otherwise meet the minimum standards of this section must be supplemented by completion of the supplementary peace officer training course. The executive director may, in his discretion, determine the exact date of completion or credit in unusual or questionable cases. (l) The effective date of this section is December 1, 1994. 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 authority. Issued in Austin, Texas, on October 26, 1994. TRD-9450089 D. C. Jim Dozier Executive Director Texas Commission on Law Enforcement Officer Standards and Education Effective date: December 1, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 450-0188 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Management Advisory Committees 43 TAC sec.1.85 The Texas Department of Transportation adopts an amendment to sec.1.85, concerning Department Advisory Committees, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6751). Section 1.85 is amended to establish a Bicycle Advisory Committee. Texas Civil Statutes, Article 6673h require the commission to adopt rules regarding departmental policies affecting bicycle use of the state highway system. To provide for sufficient public input and ensure effective communication with the bicycle community, and to ensure that the bicyclist's perspective will be considered in the development of departmental policies affecting bicycle use, it is necessary to amend sec.1.85(a) by adding paragraph (19) to establish a Bicycle Advisory Committee. The committee will provide advice to the department with respect to bicycle issues including, the design, construction and maintenance of highways. On September 12, 1993, the department conducted a public hearing on the proposed amendment. One individual submitted oral comments on the proposed amendment, stating that she was in favor of the amendment. The amendment is proposed under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6252-33, which provide that a state agency that is advised by an advisory committee shall adopt rules that state the purpose of the committee and describe the task of the committee and the manner in which the committee will report to the agency and Texas Civil Statutes, Article 6673h, which require the commission to adopt rules regarding departmental policies affecting bicycle use of state highway system. 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 October 31, 1994. TRD-9450229 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 21, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 463-8630 Chapter 7. Bridge Division Railroad Grade Crossings 43 TAC sec.7.72 The Texas Department of Transportation adopts the repeal of sec.7.72, related to warning sign visibility at railroad grade crossings, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6752). Section 7.72 is no longer necessary due to the simultaneous adoption of new sec.sec.25.70-25.73, concerning Railroad Grade Crossings. Due to the consolidation under Chapter 25, Traffic Operations of all rules concerning warning signs and signals at railroad grade crossings, the subject matter is being reenacted in Chapter 25, Traffic Operations, as new sec.sec.25.70-25.73. On September 6, 1993, the department conducted a public hearing on the proposed repeal. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 28, 1994. TRD-9450210 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 18, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 463-8630 Chapter 9. Contract Management Subchapter C. Contracting for Architectural and Engineering 43 TAC sec.sec.9.30-9.40 The Texas Department of Transportation adopts new sec. sec.9.30-9.40, concerning the contracting of architectural and engineering services, with changes to the proposed text as published in the August 12, 1994, issue of the Texas Register (19 TexReg 6344). Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act, sets forth requirements for selection and contracting of architectural and engineering services. Texas Civil Statutes, Article 6674g-1 sets forth the policy of the department regarding the use of private sector professional services for preliminary and construction engineering and engineering design. General Appropriations Act, 73rd Legislature, Article V, sec.41, provides schedules and provisions for payment to architects and engineers. It is necessary to permanently adopt new sec.sec.9.30-9.40 to provide for a fair and equitable process by which the department selects engineering and architectural firms and manages contracts for engineering and architectural services, and to inform potential providers and the general public of department policy and procedure. On August 23, 1994, the department held a public hearing to receive data, comments, views, and testimony concerning the proposed new sections. The Consulting Engineers Council of Texas suggested revisions, requested clarification, or expressed opposition or approval to the proposed changes in new sec.sec.9.31, 9.33-9.39 orally and in writing. One commenter from the Austin Minority Women Alliance expressed approval, suggested revisions and requested clarification to the proposed new sec.sec.9.34-9.37 and 9.40. Another commenter from the Austin Minority Women Alliance expressed approval, or suggested revisions to sec.sec.9.35, 9.37, and 9.40. No comments were received concerning new sec.9.32. The comments received and the department's response are presented in the order in which they appear in the proposed rules. Three commenters expressed approval of the department having a written consistent process to procure providers. One commenter suggested alternate wording for the definition of "Current Dollar Volume of Contract" in sec.9.31. This definition provides an indicator of availability to do work. The commenter suggested adding wording that would reflect the fees remaining to be earned consider only active, authorized contracts. The department agrees to modify the definition to reflect active, authorized contracts. The definitions for "DBE/HUB Special Provision" and "Good Faith Effort" were added for clarity. One commenter objected to the process of advertising and receiving proposals from all interested parties in sec.9.33 as expensive and time-consuming both for the provider to prepare and for the department to review, and suggested a pre- qualification process with a limited number of proposals solicited. Texas Civil Statutes, Article 6669c instructs the department to set and strive to meet annual goals for the awarding of state or federally funded contracts to disadvantaged business in accordance with provision of law and state policy. In order to comply with these requirements, the department developed the advertising and proposal processes in order to open the processes to all interested providers. The department will monitor the implementation and progress of these rules, and propose appropriate changes as necessary. A commenter suggested that a provider be able to respond to the advertisement with a telephone request, in addition to the letter of intent required in sec.9.33(b). In order for the department to have proper documentation for its files and for proper mail distribution, it is essential that the request be made in writing. The subsection has been clarified to allow submittal of the letter of intent by electronic facsimile. A lobbying certification/disclosure (if federally funded) requirement has been added to sec.9.33(c) to comply with 49 Code of Federal Regulations Part 20. A copy of the proposed contract, with all the attachments has been added to the Request for Proposal (RFP) for information purposes. A commenter suggested that the preproposal meetings required by sec.9.33(d) should be limited to the contracts that require significant explanation, and suggested that the threshold for mandatory meetings be raised to contracts with estimated fees in excess of $500,000. The department proposed the preproposal meetings to ensure that all participants would be fully informed and provided with the information necessary to complete the contract. This opens the information process to all providers. A benefit of this rule is that it provides an avenue for smaller firms to network. The department has revised the rule to provide for a mandatory preproposal meeting for contracts with estimated fees greater than $250,000, an increase from the original $100,000 estimated fee. Another commenter suggested that the size of the RFP in sec.9.34(a) be relative to the size of the project. The rules specify that the department will identify a maximum proposal size in the RFP. It was suggested that sec.9.34(b), concerning delivery of proposals, be clarified to allow delivery services or express mail delivery services. The department agrees that this was the intent, and the subsection has been modified to clarify that the proposal is to be received by the date, time, and place specified. In sec.9.35(a)(6), concerning evaluation, a commenter recommended that the word "adverse" be deleted, so that the provider is evaluated on all prior performance evaluations. The department's intent was to consider prior performance evaluations as part of the qualifications and experience. That subsection has been deleted and sec.9.35(a)(2) and sec.9.38(f) have been revised to clarify this item. One commenter suggested that the 0-3 evaluation scale in sec.9.35(b) would not result in sufficient differentiation among proposals. The department agrees that there is a potential for a smaller point spread, however, the evaluation score is identifiable. The department will monitor the implementation and progress of these rules, and propose appropriate changes as necessary. Two commenters expressed concern that sec.9.35 and sec.9.37 placed too much emphasis on work experience rather than qualifications. The department uses work experience as a means of determining qualifications, and prior similar work is considered, including experience gained while employed by another firm, similar work performed for other clients, or experience gained as a subprovider to a prime provider. The experience requirements will be different for different contracts, depending on the complexity of the work, therefore a firm with sufficient experience in the specified work tasks would be considered qualified to perform the proposed work. A comment was received recommending that the maximum number of firms to be interviewed in sec.9.36(a) be limited to five in order to reduce the expenditure of resources. Another commenter identified the interview as an expensive process that could be a challenge to HUB-owned firms. In order to determine the best qualified firm, the department needs to interview the project manager to be directly involved in performing the contract work to assure qualifications and understanding of the project. The rule has been changed to indicate that the DCRC will choose from three (except in cases when less than three providers submit a proposal) to ten providers based upon the number of proposals, qualifications, and score on the proposal evaluation scale. Section 9.37(a)(1)(B), adding the criteria of the experience of the project manager, has been added to clarify the evaluation interview evaluation process. This information will be obtained in the interview under sec.9.36. A commenter encouraged the department to give points in the evaluation for HUB involvement, both as subproviders and as primes in sec.9.37. Another commenter expressed concern that during the evaluation process that consideration was not given for utilization of HUBs. The department has determined that the practice of giving points could be considered a quota which the United States Supreme Court has ruled unconstitutional under City of Richmond v. J.A. Croson Company, 488 U.S. 469 (1989). DBE/HUB utilization is not an element of the criteria for selection under the Professional Services Procurement Act. Section 9.37(d)(4) has been added to require a provider to meet the DBE/HUB participation goal or provide written documentation that a good faith effort was conducted to attempt to meet the goal. One commenter recommended deleting the DBE/HUB goal participation of proposed sec.9.37(a)(1)(D), the DBE/HUB composite utilization of proposed sec.9. 37(b)(1) from the short list summary, and the DBE/HUB participation of proposed sec.9.37(b)(2)(B)(ii) from the interview evaluation section. The commenter recommended moving those requirements to the negotiation stage and requiring the provider to provide information on DBE/HUB subcontracting in sec.9.37(d). The department agrees that the provider shall submit with the proposal a statement of intent to meet the department's DBE/HUB goal or provide proof of a good faith effort to meet the goal during the negotiation process as amended in sec.9.37(d)(4). If the provider is unable to meet the goal or provide proof of good faith effort outlined in the DBE/HUB attachment to the standard contract, negotiations will cease with the provider and will be initiated with the next ranked provider. The names of the subproviders have been added to the short list summary in sec.9.37(b)(1) so that the team as well as the project manager may be considered. The work "proposal" has been added to clarify the documents that the CRC will review in sec.9.37(b)(2)(A). The CAT will be provided the ranking of the DCRC as part of the short list under sec.9.37(b)(2)(A). Because the CAT will receive this information, "ranking of the DCRC" has been added to the factors to be considered by the CAT in sec.9.37(b)(2)(A). One commenter suggested consolidating the CRC and the CAT. That commenter suggested in the alternative, for clarity, to amend sec.9.37(b)(2)(A) to state whether the proposal and interview evaluations completed by the DCRC are forwarded to the CRC/CAT. The department believes that the CRC and the CAT should remain separate committees because each committee completes a different function, and therefore the committees will not be consolidated. Section 9. 37(b)(2)(A) has been clarified to require that the CRC review the DCRC's recommendation for compliance with state and federal laws, department procedures, and policies. The commenter also suggested that the DCRC's recommendation of the provider should bear considerable weight because the district personnel will be performing primary evaluations and supervision. Section 9.37(b)(1) and sec.9. 37(b)(2)(B)(vi) have been clarified to include the DCRC's ranking. Consideration of the subproviders included on the team has also been added to 9.37(b)(2)(B)(i) for clarity as the CAT will be provided that information. In sec.9.37, one commenter noted that the term "available personnel," is not defined. The following definition will be added to sec.9.31: Available personnel-The total number of personnel employed by the provider, in all offices or branches, regardless of location or discipline. One commenter suggested that prenegotiation audits only be performed on contracts expected to exceed $250,000 and that sec.9.37(d)(1) be amended to accept independent audits performed by another federal, state or local agency. This section has been revised to clarify that the determination of the fairness and reasonableness of the contract price will include a prenegotiation audit. All audits will conform to state and federal law and rules, accepted audit procedures, and current audit office policies. To ensure that both sides take the 35-working day limit on negotiations in sec.9.37(d) seriously, one commenter suggested that the 35-day negotiation period commence upon notification to the provider in writing, accompanied by the detailed scope of services. It is the intent of the department to provide the detailed scope with the RFP. The section has been revised to commence the negotiation period on the date of the notification letter issued by the DCRC to the provider. A commenter suggested that the provision of revised sec.9.38(b)(1) that states that a prime must perform at least 30% of the contract work with its own work force be amended to provide that no subprovider may perform a higher percentage of the work than the prime provider. The department agrees that this was the intent, and the subsection has been revised to clarify the item. An exception to the percentage of subcontracting allowed has been added as sec.9.38(a) in compliance with Texas Civil Statues Article 601i. New sec.9.38(a) provides that if the subprovider or the prime provider is to receive credit as a DBE/HUB provider then all work in the trade of the provider must be accomplished by employees of that provider. In proposed sec.9.38(a)(2)(A), a commenter recommended the deletion of the parenthetical phrase providing that DBE/HUB prime providers are not required to subcontract with DBE/HUB subproviders. The provision for the DBE/HUB prime provider to subcontract with DBE/HUB subproviders is no longer a requirement in federally funded contracts. The parenthetical has been deleted, and the section modified to clarify that the DBE/HUB goal may be satisfied by the prime. Clarification was requested of proposed sec.9.38(a)(4). A commenter questioned whether the statement regarding prohibition of multipliers includes applying a multiplier to the subcontracts to cover insurance and administration of the subcontract. If so, the commenter disagrees. The department has always prohibited the use multipliers (i.e. supplies plus 10%) by prime providers and subproviders. Non-labor direct contract cost (except subcontract cost) such as travel, reproduction, supplies, can be included in the computation of the profit amount (fixed fee). All other multipliers are prohibited. All costs incurred by the prime provider associated with the management and administration of the subcontract is billable as either as direct or indirect cost. Since all direct and indirect costs of the prime provider (exclusive of subcontract cost) can be considered in the negotiation of the fixed fee amount, the use of a multiplier (subcontract cost plus 10%) is prohibited. One commenter recommended that the department delete the requirement of retainage from revised sec.9.38(b)(5), and the department's policies. It is the commenter's position that the law regarding retainage is only applicable to contractors or vendors who provide labor and materials for construction of highway improvements, not to providers of professional services. The department disagrees with this interpretation and believes applicable law not only authorizes, but mandates retainage in a highway design contract entered into by the department. Texas Civil Statutes, Article 6674m has not related to materialmen or laborers since its amendment in 1963 by the 58th Legislature. The statute had originally been enacted in 1925 to require withholding of 10% of payment until the work was completed and accepted and until payment to laborers and materialmen had been made. The 1963 amendment dropped the payment requirement. Thus cases cited by the commenter are not dispositive of the issue. As to the type of contracts covered by the retainage requirement, Article 6674m refers to "said contracts" which term referred to highway improvement contracts and must be read in the context of the original act in which it appeared. The 1925 legislation, Senate Bill Number 74, described, inter alia, the new step by step process for entering highway improvement contracts by the department. Those steps were set out in sequential sections of the bill, and were preceded by a definitions section. Most salient was the definition of "improvement" which includes construction, reconstruction or maintenance and the plans and surveys involved. Subsequent codification of the bill assigned a separate statute number to each of its sections, surviving today in Article 6674a, et seq., with the retainage language of sec.13 becoming Article 6674m. Later enactment of the Professional Services Act, formerly Texas Civil Statutes, Article 664-4, now Government Code sec.sec.2254.001-2254.005 altered the process only to the extent of forbidding the award of an engineering design contract solely on the basis of competitive bids. Design contracts, i.e.,to prepare plans for construction or reconstruction of the State Highway System, as well as construction and maintenance contracts continue to be contracts "for the improvement of any highway constituting a part of the State Highway System" within the context of Article 6674m and the clear and unambiguous letter and intent of its enacting legislation. The commenter also cites the department rule in 43 TAC sec.3.1 as proof that only construction contracts are covered. The rule in question only relates to a policy for approving the establishment of interest bearing accounts for the amounts retained from a construction contract. The department may ,of course, promulgate similar policies for interest bearing accounts for other retainages. A commenter on proposed sec.9.38(e) suggested that the requirement for final audits be deleted if prenegotiation audits have been performed. Prenegotiation audits, performed prior to the award of the contract, are not connected with final audits which are performed after all work on the contract has been completed. The value of the final audit is a decision for the department. Final audits are not performed on all negotiated contracts. For example lump sum, specific rates, and cost per unit are excluded. It is the department's opinion that the cost of our provider engineering services would significantly increase and the department would be at considerable risk without the efforts of the prenegotiation and final audits. A commenter suggested that the DCRC should conduct the performance evaluation in proposed sec.9.38(f). A question is also raised regarding the audit office manual. It was the intent that the DCRC conduct the performance evaluation, and that the divisions involved also provide input. The reference to the audit office manual was apparently a typographical error and has been removed. Section 9.39 has been changed to authorize the executive director's designee to certify an emergency. In the case of an emergency, the DCRC will select the provider. This has been changed from the CAT to bring the selection closer to area needing the emergency provider. Two commenters commended the department on the 30% DBE/HUB goal contained in sec.9.40. One commenter requested that a public hearing be held for revised rules. Because the revisions either clarify the previous rules or do not place additional restrictions on the person who must comply with the rules, under the provision of the Administrative Procedure Act, another hearing is not required. If the rules are revised in the future, a public hearing will be held at that time. The new sections are permanently adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the department, and specifically Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act which sets forth requirements for selection and contracting of architectural and engineering services, and Article 6674g-1 which sets forth the policy of the department regarding the use of private sector professional services for preliminary and construction engineering and engineering design. sec.9.30. Purpose. This subchapter establishes standard procedures for selection and contract management of architectural and professional engineering service providers in accordance with Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act. sec.9.31. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Available personnel -The total number of personnel employed by the provider in all offices or branches, regardless of location or discipline. Business Opportunity Programs Office (BOP)-The chief administrating office for DBEs and HUBs which certifies that a DBE meets the criteria to be a DBE. Child support statement-A signed, sworn statement, required by sec.14.52 of the Family Code, accompanying a proposal, affirming that a sole proprietor, partner, majority shareholder, or substantial owner of the provider business entity is not 30 days or more delinquent in providing child support under a court order or a written repayment agreement. Close out-The actions required to close out or complete the contract, including receipt and acceptance of deliverables, resolution of audit findings, receipt of outside approvals if applicable, resolution of other contract-related issues, and issuance of final payment. Consultant approval team (CAT)-The department team that receives provider recommendations from the DCRC through the CRC, and selects the provider for the contract. Consultants review committee (CRC)-The department committee that oversees the provider review process and reviews eligibility of providers. Current dollar volume of contract-The total dollar amount of fees under an active, authorized contract to a provider by the department, on which the work is less than 90% complete, including fees as a prime provider (less any fees for work subcontracted), and fees resulting from a subcontract through another prime provider. Disadvantaged Business Enterprise (DBE)-As defined in 49 CFR sec.23.5, a small business concern, certified by BOP, which is 51% owned by one or more minorities, women, or others that can prove social and economic disadvantages, or in the case of a publicly owned business, at least 51% of the stock is owned by one or more minorities, women, or others that can prove social and economic disadvantages, and whose management and daily business operations are controlled by one or more such individuals. DBE\HUB goal participation-The percentage goal of participation by DBE/HUB providers determined by the percentage of work performed by the DBE/HUB providers. DBE/HUB Special Provision-A special provision to the provider contract that identifies Good Faith Effort, and the procedure to demonstrate that Good Faith Effort was attempted if the DBE/HUB goal could not be fulfilled. Debarment certification -A certification that the provider and its principals are not debarred from participation and not under consideration for debarment anywhere, and are eligible to perform the contract. Department-The Texas Department of Transportation. District, division or special office consultants review committee (DCRC)-A department committee that drafts RFPs, evaluates proposals, and recommends providers for selection. Good Faith Effort -A provider must demonstrate to the department's satisfaction, that sufficient effort on its part was made to obtain DBE/HUB participation. Good Faith Effort is identified in the DBE/HUB Special Provision to the contract. Historically Underutilized Business (HUB)-A corporation, sole proprietorship, partnership, or joint venture formed for the purpose of making a profit, certified by the General Services Commission, in which 51% of the company is owned by one or more persons who are socially disadvantaged because of their identification as a member of certain groups including Black Americans, Hispanic Americans, Women, Asian Pacific Americans, Asian Indian Americans, Native Americans, and have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control; and have a proportionate interest and demonstrate active participation in the control, operation, and management of the business affairs. Lower tier debarment certification (form 1734)-A debarment certification form that is completed by subproviders or other lower tier participants. Lower tier participant -A subprovider or other participant in the contract, other than the state, that is not the prime provider. Preproposal meeting -A meeting held to answer questions regarding the contract and to distribute RFP information. Prime provider -The provider awarded a department provider contract. Professional services provider (provider)-An individual or entity that provides engineering or architectural services. Request for proposal (RFP)-A request for submittal of a technical proposal from a provider that demonstrates competence and qualifications to perform the requested services, and shows an understanding of the specific contract. Relative importance factor (RIF)-The weight of each evaluation criterion as it relates to a particular contract. Short list-A list of providers identified as qualified and able to competently perform the requested services for further consideration by the department. Small business concern-A small business as defined in the Small Business Act, codified in 15 United States Code sec.632, and relevant regulations. Team-The provider and all proposed subproviders who will be working on a particular contract. sec.9.32. Provider Services Policy. Pursuant to Texas Civil Statutes, Article 6674g-1, it is the policy of the department regarding the regular use of private sector professional services for preliminary construction engineering and engineering design, to achieve a balance between the use of department employees and the use of private contractors, provided the costs are equivalent. In order to do so, the department may contract the following types of work: (1) preliminary engineering, design, plan work, specifications, and estimates; (2) bridge inspection and scour analysis services; (3) environmental engineering, project observation, and inspection; (4) architectural design, plan work, specifications, and estimates; (5) architectural observation and inspection; and (6) other engineering or architectural services as defined in Government Code, Chapter 2254, Subchapter A. sec.9.33. Request for Proposals and Preproposal Meetings. (a) Notice. (1) Texas Register and newspapers. The department will prepare a notice identifying a proposed contract and a due date for providers to send letters of intent to the department. The department will publish this notice in the Texas Register and newspapers a minimum of ten days prior to the event. The department will select newspapers based on general circulation to provide statewide distribution. (2) Electronic notice. The department will publish a notice containing the same information as the notices in the Texas Register and newspapers on an electronic bulletin board a minimum of ten days prior to the event. (3) Organizations. The department will publish a monthly statewide list of projected contracts for consulting engineering and architectural services and will furnish the list on a monthly basis to community, business, and professional organizations for dissemination to their membership. (b) Letter of intent. Within ten days of the publication of the notice concerning the contract, the provider shall send a letter of intent to the department notifying the department of the provider's intent to submit a proposal. The department will accept a letter of intent by electronic facsimile. The department will notify the provider of the date for the preproposal meeting, if applicable, and send the provider a copy of the RFP. (c) Requests For Proposals. An RFP will include the following proposal requirements: (1) deadline, date, location, and time for submittal; (2) scope of services to be provided by the department; (3) scope of services to be provided by the provider; (4) an outline of the proposal format and content; (5) any geographic constraints directly relating to the performance of the contract, if applicable; (6) description of the evaluation criteria including minimum and preferred qualifications; (7) a copy of the evaluation matrices; (8) a standard form for a statement of intent to meet department goals for DBE/HUB participation in accordance with sec.9.38(a) of this title (relating to Contract Management) and sec.9.40 of this title (relating to Affirmative Action) (the department's assigned DBE/HUB participation goal for the contract will be stated on this form); (9) a child support statement form; (10) a debarment certification form; (11) a lower tier debarment certification form; (12) a lobbying certification/disclosure form (if federally funded); (13) a copy of the proposed contract, with all attachments including, but not limited to, the DBE/HUB special provision; and (14) any special contract requirements. (d) Preproposal meeting. The preproposal meeting provides an opportunity for the provider to seek clarification of questions concerning the contract. The meeting is mandatory for contracts with an estimated fee over $250,000. The meeting is optional at the discretion of the district for contracts with an estimated fee less than or equal to $250,000. The department will not accept proposals from providers that did not have a representative at the preproposal meeting. sec.9.34. Proposals. (a) Proposal format. The proposal shall be limited to the length and contain the information specified in the RFP. (b) Receipt of proposals. All proposals must be received by the date, time, and place specified in the RFP. The department will not accept a proposal by electronic facsimile. sec.9.35. Proposal Evaluation. (a) Criteria. The DCRC will evaluate proposals based on the following criteria: (1) professional qualifications of firm, including subproviders; (2) experience of the project manager, project team, and ability to commit resources (the project manager may not be changed without prior consent of the department, and performance evaluations within the last five years, involving any member of the proposed team, may be considered in evaluating applicable experience); (3) demonstrated understanding of the scope of services, including identifying which type of work will be performed by each subprovider; (4) demonstrated understanding of applicable rules, regulations, and policies, and information to be gathered; and (5) ability to meet the schedule of the district, division, or special office. (b) Evaluation scale. The DCRC will assign a numerical value to the proposal based upon the following evaluation scale of 0 to 3 points per criterion: (1) 0 = does not meet minimum qualifications; (2) 1 = meets minimum qualifications; (3) 2 = meets preferred qualifications; and (4) 3 = exceeds preferred qualifications. sec.9.36. Interview. (a) Identification of providers for interview. The department will evaluate each proposal and prepare a proposal evaluation matrix which totals the scores from the proposal evaluations. The DCRC will then choose a minimum of three providers to interview (provided that no less than three providers have submitted proposals) up to ten of those qualified from the highest ranking scores to interview based upon the number of proposals, qualifications, and score on the proposal evaluation scale. (b) Interview structure. The interview allows the providers to briefly address items within the proposal and demonstrate their understanding of the project and knowledge of applicable rules, regulations, codes, and special information to be gathered. sec.9.37. Selection. (a) Evaluation criteria. (1) Factors considered. The DCRC will consider the following factors in its evaluation of the provider's interview: (A) understanding of the scope of services; (B) experience of the project manager and project team; and (C) ability to meet district, division, or special office schedule, and commit resources. (2) Evaluation. The DCRC will prepare a numerical interview evaluation matrix to evaluate the interview based upon the following scale of 0 to 3 points: (A) 0 = does not meet minimum qualifications; (B) 1 = meets minimum qualifications; (C) 2 = meets preferred qualifications; and (D) 3 = exceeds preferred qualifications. (b) Short list. (1) Short list summary. The department will prepare a short list summary which will include the DCRC's ranking of qualified providers, the name of the project managers, the names of any subproviders included on the team, and current dollar volume of the providers interviewed compared to the ratio of available personnel. All those interviewed will be included, unless the department discovers that a provider has misrepresented information in the proposal. (2) Selection. (A) The CRC will review the DCRC recommendations to ensure compliance with state and federal laws, and department policies and procedures, and forward the short list, proposals, and its recommendations to the CAT for approval. (B) The CAT will consider the following factors in selecting a provider: (i) professional qualifications, including the subproviders on the team; (ii) good faith effort commitment to meet the department's DBE/HUB goal in accordance with sec.9.38(a) of this title (relating to Contract Management) and sec.9.40 of this title (relating to Affirmative Action); (iii) current dollar volume of work with the department compared to the ratio of available personnel; (iv) the project manager; (v) the ability of the provider to commit resources; and (vi) the DCRC ranking of qualified providers. (c) Notification. The department will: (1) prepare a letter to notify the provider selected; (2) prepare a letter to each of the remaining short list of providers not selected, naming the one selected; and (3) set up a meeting with the selected provider to begin contract negotiations. (d) Negotiations. (1) Selected provider. The department will enter into negotiations with the selected provider. The provider shall submit the information requested in the contract, a work outline, work schedule, and cost proposal. The provider shall furnish data as to professional fees as required by the department to determine the fairness and reasonableness of the contract price during the prenegotiation audit. (2) Contract execution. The provider shall sign the contract 35 working days from the date of notification to the provider. The department may grant one 30- working day extension. (3) Selection of alternative providers. If the department is unable to execute a satisfactory contract containing a fair and reasonable price within the allotted time period with the selected provider, negotiations shall formally end with that provider and negotiations shall begin with the provider ranked second. Negotiations shall be undertaken in this sequence until a contract is made. (4) DBE/HUB goal documentation. The selected provider shall provide written documentation that the provider has met the specified DBE/HUB goal or made a good faith effort to meet the goal in accordance with sec.9.38(a) of this title (relating to Contract Management) and sec.9.40 of this title (relating to Affirmative Action). If the provider does not submit such documentation, the department will cease negotiation with the provider and enter into negotiation with the next provider in the order of preference for this contract. sec.9.38. Contract Management. (a) DBE/HUB participation. (1) DBE/HUB program goals may be satisfied by the prime. (2) If the prime provider or the subprovider is a DBE/HUB, all work in the trade of that DBE/HUB provider must be accomplished by employees of that provider in accordance with Texas Civil Statutes, Article 601i. (b) Subcontracts. (1) A prime provider shall perform at least 30% of the contracted work with its own work force. No subcontractor may perform a higher percentage of the work than the prime provider. (2) The department will review subcontracts for compliance with the requirements of this subsection. Subcontracts shall incorporate by reference all of the provisions of the prime contract. (3) Subcontracts shall: (A) refer to the prime contract and have the same purpose; (B) include nondiscrimination attachment; (C) include DBE/HUB special provision; (D) include lower tier debarment certification (negotiated contracts); and (E) provide clear payment terms. (4) Subcontracts shall not include: (A) multipliers, such as supplies plus 10%; and (B) the state as a party to the subcontract. (c) Operations. (1) Management responsibility. The division, special office, or district administrative officer requesting the provider contract will manage it. (2) Commencement of work. The provider shall not proceed with any contract work until advised in writing by the department to proceed. (3) Suspension of work. The department may suspend the work by: (A) verbally notifying the provider; (B) providing written notification of the suspension; (C) identifying the reason for suspension; and (D) identifying approximate length of suspension and payment based on actual work completed as of the date of suspension. (4) Payment on engineering contracts. Payment for eligible costs will be made within thirty days after receiving a correct invoice. Payment may be withheld pending verification of satisfactory work performed. To obtain payment, the provider shall submit the following documents to the department project manager: (A) a monthly progress report; (B) an itemized and certified invoice (form 132 or other acceptable format); and (C) a DBE/HUB report (the BOP may require proof of DBE/HUB use, including submittal of cancelled checks that are properly identified by department project number or contract number). (5) Retainage on engineering contracts. The department will withhold 5.0% of each monthly payment until completion of the contract work. The department will withhold the entire retainage for lump sum contracts which allow monthly billing until satisfactory completion of the contract. For contracts which require a final audit, the department may reduce retainage from 5.0% to 2.0% upon successful completion and approval of the contract work. The department may request an interim audit upon successful completion and approval of all contract work prior to the release of the retainage. The department will release the final 2. 0% upon completion of the final audit. (6) Interim audit. The department may require the services of the provider during the construction phase to review shop drawings, plans or procedures, or perform other services related to its design. If these services are anticipated, the department may request an interim audit upon completion and approval of the plans, specifications, and cost estimate. (d) Supplemental agreements. (1) The original executed contract will require a supplemental agreement if: (A) additional funding is required in accordance with terms of the contract; (B) additional time is needed to complete work in progress; or (C) changes in scope of services are necessary. (2) The supplemental agreement will be executed: (A) prior to the expiration date of the original contract; (B) prior to exceeding the contract amount; and (C) prior to performance of unauthorized work. (e) Errors and omissions. (1) Policy. It is the department's policy to require providers to perform such additional work as may be necessary to correct errors or omissions in the work required under the contract without undue delay and without additional cost to the department. (2) Procedure. (A) Notification. The department will notify the provider of the errors and omissions. (B) Resolution. A dispute involving errors and omissions shall be resolved in accordance with sec.1.68 of this title (relating to Contract Claim Procedure). (f) Contract close out. (1) Final audit. The department audit office will perform a site audit of the provider's records in accordance with the terms of the contract. (2) Time. A contract is ready for close out when: (A) services have been provided; (B) products are received and accepted; (C) approval is received from the U.S. Department of Transportation, when federally funded; (D) payments are made; (E) audit findings are resolved; and (F) on expiration date, unless extended by supplemental agreement. (g) Provider performance evaluations. The DCRC will evaluate the provider's performance in the categories of cost administration, engineering/architectural or services delivery quality, and conformance upon completion of the contract. These performance evaluations may be used in determining the qualifications of the provider. sec.9.39. Emergency Selection. If the executive director of the department or his or her designee certifies in writing that there is good cause to believe that an emergency situation exists, including hazards to safety and imminent expiration of a contract on an incomplete project, he or she will authorize the DCRC to select a provider on an emergency basis. sec.9.40. Affirmative Action. The department's overall participation goal for DBEs and HUBs is 30%. The department goals will be established for each contract on an individual basis to achieve the overall goal. The department requires as a minimum, written documentation of a good faith effort toward meeting the specified goal for DBE/HUB participation. 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 October 27, 1994. TRD-9450154. Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 25, 1994 Proposal publication date: August 12, 1994 For further information, please call: (512) 463-8630 Chapter 11. Design Continuous Lighting Systems 43 TAC sec.11.61 The Texas Department of Transportation adopts the repeal of sec.11.61, concerning Financing of Continuous Lighting Systems, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6752). Section 11.61 is no longer necessary due to the simultaneous adoption of new sec.25.11, concerning Continuous and Safety Lighting Systems. Due to the transfer of responsibilities for roadway lighting from the department's Design Division to its Traffic Operations Division and in order to revise the roadway lighting policy to provide for lighting of bikeways and pedestrian ways, and to protect the state's investment by providing for lighting agreement default procedures, the subject matter is being reenacted in Chapter 25, Traffic Operations, as new sec.25.11. On September 6, 1993, the department conducted a public hearing on the proposed repeal. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 28, 1994. TRD-9450212 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 18, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 463-8630 Chapter 25. Traffic Operations General 43 TAC sec.25.11 The Texas Department of Transportation adopts new sec.25.11, concerning Continuous and Safety Lighting Systems, without changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6753). Section 25.11 replaces sec.11.61, concerning Financing of Continuous Lighting Systems, which is simultaneously being adopted for repeal. Due to the transfer of responsibilities for roadway lighting from the department's Design Division to its Traffic Operations Division and in order to revise the roadway policy to provide for lighting of bikeways and pedestrian ways, and to protect the state's investment by providing for lighting agreement default procedures, the subject matter is being reenacted in Chapter 25, Traffic Operations, as new sec.25.11. On September 6, 1993, the department conducted a public hearing on the proposed new section. No comments were received regarding adoption of the new rule. The new section is adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 28, 1994. TRD-9450211 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 18, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 463-8630 Railroad Grade Crossings 43 TAC sec.sec.25.70-25.73 The Texas Department of Transportation adopts new sec. sec.25.70-25.73, relating to Railroad Grade Crossings, with changes to the proposed text as published in the August 26, 1994, issue of the Texas Register (19 TexReg 6756). The Texas Transportation Commission has previously adopted rules relating to the procedures and policies applicable to the Bridge Division of the Department codified under Title 43, Texas Administrative Code, Chapter 7. House Bill 1657, 73rd Legislature, Regular Session, 1993, added Texas Civil Statutes, Article 6370d, which prohibits a person from dismantling a warning signal at a grade crossing on an active rail line if the cost of the warning signal was originally paid either entirely or partly from public funds unless the person: 1) obtains a permit from the governmental entity that maintains the road or highway that intersects the rail line at the grade crossing; and 2) pays to the governmental entity that maintains the road or highway that intersects the rail line at the grade crossing an amount equal to the present salvage value of the warning signal, as determined by the governmental entity under applicable law. To comply with House Bill 1657, and to consolidate under Chapter 25, Traffic Operations all rules concerning warning signs and signals at railroad grade crossings, it is necessary to adopt new sec.sec.25.70-25.73, with the following changes: The definition of "person" has been changed in sec.25.71 to add the "individual" in order to clarify the intent of the department. To comply with the intent of the legislature, sec.25.72 has been changed to exempt Class I and II railroads in compliance with Texas Civil Statutes, Article 6370d. On September 6, 1993, the department conducted a public hearing on the proposed new sections. No comments were received regarding adoption of the new rules. The new sections are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation; and Texas Civil Statutes, Article 6370d, which provide the department with the authority to adopt any rules necessary to administer this Act under the procedures and policies applicable to the Traffic Operations Division of the department codified under Title 43, Texas Administrative Code, Chapter 25, Traffic Operations. sec.25.70. Purpose and Scope. The sections under this undesignated head describe the policies and procedures governing the department's statutory responsibilities concerning warning signs and signals at railroad grade crossings. sec.25.71. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Active rail line-Any railroad tracks that are classified by the Interstate Commerce Commission to carry freight or passenger trains, and are currently being operated and maintained by a railroad company or railroad carrier. Active warning device-A bell, flashing light, gate, wigwag, or other automatically activated warning device. Applicant-A person applying to the department for a permit issued under sec.25.72 of this title (relating to Dismantling Warning Signals at Railroad Grade Crossings). Crossbuck-A standard railroad/highway crossing sign design as Number R 15- 1, and described in the Manual of Uniform Traffic Control Devices (MUTCD), issued by the United States Department of Transportation, Federal Highway Administration. Department-The Texas Department of Transportation. Director-The director of the department's Traffic Operations Division. District-One of the 25 geographical areas, managed by a district engineer, in which the department conducts its primary work activities. Grade crossing -The intersection of a railroad and a public roadway at grade. Local jurisdiction -A city or county government responsible for the building and maintenance of public roadways. Nonsignalized crossing -A grade crossing not protected by active warning devices. On-system-A public roadway designated as part of the state highway system. Off-system-A public roadway not designated as part of the state highway system. Person-An individual, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity. Public roadway -A roadway built and maintained with public funds. Railroad company -A business operating and maintaining rail transportation of freight and passengers. Retroreflectorized material -Material that reflects light so that the paths of the reflected light rays are parallel to those of the incident rays. Salvage value-Any monetary value that may be derived from signal equipment being retired or removed or any material necessary for its operation, including but not limited to the following: (A) the depreciated value of reusable electrical equipment, such as signal controllers, relays, rectifiers, batteries, etc.; (B) signal equipment, such as signal heads, lenses, signal hoods and backgrounds, light bulbs, crossbuck signs, gate arm mechanisms, gate arms, lights, counterweights, etc.; (C) track circuit equipment, such as termination shunts, capacitors, chokes, tuned joint couplers, insulated joints, etc.; and/or (D) the scrap value of all of the above, including all material or aluminum components, such as signal masts or cantilevers, gate mechanisms, counterweights, signal cabins or signal cases. Warning device -An active warning device, crossbuck, or other traffic control sign, the purpose of which is to alert motorists of a grade crossing. Warning signal -A traffic control device that is activated by the approach or presence of a train, including a flashing light signal, automatic gate, or similar device that warns motorists of the approach or presence of a train. sec.25.72. Dismantling Warning Signals at Railroad Grade Crossings. (a) Purpose. In accordance with Texas Civil Statutes, Article 6370d, a person may not dismantle a warning signal at a grade crossing on an active rail line, as defined in sec.25.71 of this title (relating to Definitions), if the cost of the warning signal was originally paid either entirely or partly from public funds, unless the person: (1) obtains a permit from the governmental entity that maintains the road or highway that intersects the rail line at the grade crossing; and (2) pays to the governmental entity that maintains the road or highway that intersects the rail line at the grade crossing an amount equal to the present salvage value of the warning signal, as determined by the governmental entity under applicable law. (b) Permit Application. (1) This subsection applies to warning signals at railroad grade crossings on a rail line that intersects a highway maintained by the department. (2) An applicant for a permit to dismantle a warning signal must submit an application, on a form prescribed by the department, to the department's district office in the district where the warning signal is located. The application must be accompanied by a statement certifying the justification for the request to dismantle the warning signal. If the applicant is a corporation, the application must be accompanied by a resolution from the board of directors certifying the justification for the request to dismantle the warning signal. (c) Conditional approval. (1) The district engineer will approve the application conditioned on payment of salvage value if, based on information provided in the permit application and the accompanying justification, he or she determines that removal of the warning signal would not adversely affect public safety. (2) The district engineer will consider the following factors in determining if removal of the warning signal would adversely affect public safety: (A) current and projected average daily traffic using the grade crossing; (B) the nature or type of vehicle traffic using the grade crossing; (C) the total daily number and speed of trains conducted through the grade crossing; (D) the nature or type of train operations conducted through the grade crossing; (E) the sight distance in each quadrant on the roadway approaches to the grade crossing; and (F) train-involved and non-train-involved accident history at the grade crossing. (d) Salvage value. Upon approval of an application, the department will assess the salvage value of the warning signal and inform the applicant of its assessment. (e) Permit issuance. Upon receipt of payment of the assessed salvage value of the signal, the department will issue a permit for removal of the warning signal. (f) Appeal process. An applicant may appeal the denial of a permit or the assessment of salvage value to the director. An applicant may appeal an adverse decision of the director by filing a petition for an administrative hearing pursuant to sec.sec.1.21-1.63 of this title (relating to Contested Case Procedure). (g) Other governmental entities. A person desiring to dismantle a warning signal at a grade crossing may request the department to determine what governmental entity is responsible for maintaining the intersecting road or highway and whether the warning signal was originally paid either entirely or partly from public funds by submitting a request to the department's district office in the district where the warning signal is located. (h) Exempt railroads. The provisions of this section shall not apply to Class I or Class II railroads as defined by Interstate Commerce Commission rules and regulations. sec.25.73. Warning Sign Visibility at Railroad Grade Crossings. (a) Purpose. In accordance with Texas Civil Statutes, Article 6370b, the department is authorized to develop guidelines and specifications for the installation and maintenance of retroreflectorized material at all public railroad grade crossings not protected by active warning devices. This section prescribes the requirements and procedures for installation and maintenance to implement the provisions of the Act. (b) Installation. (1) Retroreflectorized material shall be affixed to the back of crossbucks and support posts at all public railroad grade crossings not protected by active warning devices in a manner that retroreflects light from vehicle headlights to focus attention to the presence of a nonsignalized crossing. (2) Each railroad company owning or operating a nonsignalized crossing shall permit, by written letter agreement, department personnel to enter railroad company property at nonsignalized grade crossings for the purpose of affixing retroreflectorized material to the backs of crossbucks and support posts. (3) The retroreflectorized material shall satisfy the specifications shown in Appendix A of this section. (4) All new installations or replacements of crossbucks and supports shall meet the current design standards and retroreflectorized material requirements of the department and MUTCD. The current design standards and retroreflectorized material requirements of the department and MUTCD are available upon request, free of charge, from the department at the following address: Texas Department of Transportation, Traffic Operations Division, 125 East 11th Street, Austin, Texas 78701-2483. (c) Maintenance. Subject to subsection (d) of this section, maintenance of crossbucks, support posts, and retroreflectorized material shall be the responsibility of the railroad company owning or operating the crossing. (d) Costs. (1) The initial cost of affixing the retroreflectorized material shall be paid from money appropriated to the department for the purpose of installing safety devices at public grade crossings. (2) Subsequent maintenance costs of retroreflectorized material installed by the department pursuant to this section shall be the responsibility of: (A) the department for on-system crossings; or (B) the local jurisdiction for off-system crossings. (e) Specifications. The following Appendix A indicates the design specifications and installation instructions for retroreflectorized material. Figure 1: 43 TAC sec.25.73(e) 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 October 28, 1994. TRD-9450213 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 18, 1994 Proposal publication date: August 26, 1994 For further information, please call: (512) 463-8630 Chapter 31. Public Transportation Federal Programs 43 TAC sec.31.31 The Texas Department of Transportation adopts an amendment to sec.31.31, concerning the sec.16 grant program, without changes to the proposed text as published in the July 19, 1994, issue of the Texas Register (19 TexReg 5617). Section 31.31 is amended to formally adopt policies that will then be incorporated in the state management plans for this program as required by the Federal Transit Administration. On July 19, 1993, the department conducted a public hearing on the proposed amendments. No written or oral comments were received concerning the proposed amendment. The amendment is proposed under Texas Civil Statutes, Articles 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and specifically to administer the state public transportation fund and state and federal public transportation 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 October 31, 1994. TRD-9450230 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 21, 1994 Proposal publication date: July 19, 1994 For further information, please call: (512) 463-8630