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 7. BANKING AND SECURITIES Part IV. Texas Savings and Loan Department Chapter 53. Additional Offices The Texas Savings and Loan Department adopts amendments to sec.sec.53.1, 53.2, and 53.5 and the repeal of sec.53.6, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6809). Prior rules required the submission of an extensive application for the establishment of loan offices and administrative offices. Other regulatory agencies (i.e., the Office of Thrift Supervision and the Federal Deposit Insurance Corporation) require only notification of the establishment of a loan or administrative office and nondepository financial institutions, such as mortgage banking institutions, have no application or notification requirements for such business decisions. The rules as amended will afford savings associations additional flexibility to service and manage their operations and to respond more quickly in strong lending markets. The changes also reduce paperwork and application delay. Savings associations will be required to provide the Department with prior written notification of the opening and closing of these facilities. No comments were received regarding adoption of the amendments and repeal. 7 TAC sec.sec.53.1, 53.2, 53.5 The amendments are adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450278 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 7 TAC sec.53.6 The repeal is adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450279 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 Chapter 55. Agencies 7 TAC sec.sec.55.1-55.7 The Texas Savings and Loan Department adopts the repeal of sec.sec.55.1-55.7, without changes to the text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6810). The repeal of Chapter 55 relating to agency offices is based upon the belief that the use of agents by savings associations is seldom used, if ever. Therefore, the Department is repealing this chapter as obsolete. The most common agency offices relate to loan production offices, which are specifically addressed in the rules. Other types of agency facilities could fall within the parameters of administrative offices. No comments were received regarding the repeals. The repeals are adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450280 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 Chapter 57. Change of Office Location or Name 7 TAC sec.57.1, sec.57.4 The Texas Savings and Loan Department adopts amendments to sec.57.1 and sec.57.4, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6810). Prior rules required the submission of an extensive application for the relocation of loan offices. Other regulatory agencies (i.e., the Office of Thrift Supervision and the Federal Deposit Insurance Corporation) require only notification of the establishment of a loan office, much less the relocation of that office. Nondepository financial institutions, such as mortgage banking institutions, have no application or notification requirements for such business decisions. The rules as amended will afford savings associations additional flexibility to service and manage their operations and to respond more quickly in strong lending markets. The changes also reduce paperwork and application delay. Savings associations will be required to provide notification of the opening and closing involved in the relocation of these offices to the Department. No comments were received regarding amendments. The amendments are adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450281 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 Chapter 63. Fees and Charges 7 TAC sec.63.2 sec.63.4 The Texas Savings and Loan Department adopts amendments to sec.63.2 and sec.63.4, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6811). By separate action, the Department has eliminated the separate applications requirements for the establishment of loan offices and administrative offices of savings associations. These amendments modify the application fee rules to delete references to fees for loan offices and administrative offices. Other fees applicable to the establishment of other types of offices will not be changed. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450282 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 Chapter 75. Applications The Texas Savings and Loan Department adopts amendments to sec.sec.75.31, 75. 32, 75.34, and 75.38 and the repeal of sec.75.40, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6811). Prior rules required the submission of an extensive application for the establishment of loan offices and administrative offices. Other regulatory agencies (i.e., the Office of Thrift Supervision and the Federal Deposit Insurance Corporation) require only notification of the establishment of a loan or administrative office and nondepository financial institutions, such as mortgage banking institutions, have no application or notification requirements for such business decisions. The proposed repeal of sec.75.40 relating to agency offices is based upon the belief that the use of agents by savings banks is seldom used, if ever. The most common agency offices relate to loan production offices which are specifically addressed in the rules. Other types of agency facilities could fall within the parameters of administrative offices. Therefore, the Department has proposed to repeal this section as obsolete. The rules as amended will afford savings banks additional flexibility to service and manage their operations and to respond more quickly in strong lending markets. The changes also reduce paperwork and application delay. Savings banks will be required to provide the Department with prior written notification of the opening and closing of these facilities. No comments were received regarding adoption of the amendments and repeal. Additional Offices 7 TAC sec.sec.75.31, 75.32, 75.34, 75.38 The amendments are adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450283 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 Additional Offices 7 TAC sec.75.40 The repeal is adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450284 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 Chapter 79. Miscellaneous Fees and Charges 7 TAC sec.79.92, sec.79.94 The Texas Savings and Loan Department adopts amendments to sec.79.92 and sec.79.94, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6812). By separate action, the Department has eliminated the separate application requirements for the establishment of loan offices and administrative offices of savings banks. These amendments modify the application fee rules to delete references to fees for loan offices and administrative offices. Other fees applicable to the establishment of other types of offices will not be changed. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 342-114, which provide the Finance Commission of Texas with the authority to promulgate general rules and regulations not inconsistent with the constitution and statutes of the state and, from time to time, to amend same. 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-9450277 James L. Pledger Commissioner Texas Savings and Loan Department Effective date: November 21, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 475-1350 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 15. Alternative Fuels Research and Education Division Media Rebate Program 16 TAC sec.sec.15.201, 15.205, 15.210, 15.215, 15.220, 15.225, 15. 230, 15.235, 15.240, 15.245 The Railroad Commission of Texas adopts new sec.sec.15.201, 15.205, 15.210, 15.215, 15.220, 15.225, 15.230, 15.235, 15.240, and 15.245, relating to the establishment and administration of a one-year pilot media rebate program for propane (liquefied petroleum gas; LPG) retailers. The rules are adopted without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6976) and will not be republished. The new rules establish a voluntary program that authorizes media rebate payments to participating propane retailers entirely at the discretion of the Railroad Commission of Texas. No person has a legal entitlement or other right to a rebate under this program. New sec.15.201 states the purpose of the program, and new sec.15.205 defines terms used in the rule. New sec.15.210 establishes the media rebate program for a period of one year unless the commission changes the termination date. Eligibility requirements, application procedures and conditions for receipt of rebates are described in new sec.15.215 and sec.15.220. New sec.15.225 and sec.15. 230 authorize the commission to set the percentage and maximum amount of the rebate; define the eligible media outlets; and prescribe verification procedures and the basis on which any rebate will be calculated. Conditions under which a propane dealer may be suspended or declared ineligible to participate in the media rebate program are set out in new sec.15.235. Procedures for the receipt and handling of complaints and penalties for violation of rebate program rules are set out in new sec.15.240 and sec.15.245. The commission views the media rebate program as an innovative tool that encourages propane dealers to use advertising in furtherance of the commission's statutory charge to increase public awareness and assist in marketing of environmentally beneficial alternative fuels. The commission has set at $225,000 the amount available for media rebates under the program. The commission has also set the minimum advertising purchase that is eligible for a rebate at $200 and the maximum total rebate amount available to each participating propane dealer during the one-year pilot program at an amount equal to $300 times the number of retail propane delivery trucks operated by the dealer and registered with the commission. The commission received only one comment from a group or association: Texas Propane Gas Association (TPGA) supported adoption of the rule. TPGA requested that the commission consider continuing the program for a second year if adequate participation is achieved during the pilot year. The commission responds that pilot-year participation will be monitored closely and that this and other information will be used to determine whether continuation of the program is justified. The association also requested that commission-produced advertising provide for identification of specific propane marketers placing the advertising. The commission responds that the advertising will so provide. The new rules are adopted under Texas Natural Resources Code, sec.113.241, which authorizes the commission to adopt rules relating to educating the public regarding the use of LPG and other environmentally beneficial alternative fuels that are or have the potential to be effective in improving the quality of air in this state; Texas Natural Resources Code, sec.113.243(c) (2), which authorizes the commission to implement marketing and advertising programs relating to alternative fuels to make alternative fuels more understandable and readily available to consumers; and Texas Natural Resources Code, sec.113.243(c)(6), which authorizes the commission to use money in the Alternative Fuels Research and Education Fund to implement programs necessary to promote the use of LPG or other environmentally beneficial alternative fuels. Texas Natural Resources Code sec.sec.113.248, 113.249, and 113.250 prescribe civil and criminal penalties and establish an enforcement mechanism for violations of the Texas Natural Resources Code or commission rules. 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 24, 1994. TRD-9450285 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission Effective date: November 21, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 463-7008 TITLE 25. HEALTH SERVICES Part V. Center for Rural Health Initiatives Chapter 500. Center for Rural Health Initiatives Subchapter C. Community Scholarship Program 25 TAC sec.sec.500.61-500.73 The Center adopts new sec.sec.500.61-500.73, concerning the community scholarship program which provides scholarship funds to individuals pursuing certain health care professions, without changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5822) and Correction of Error published in the August 9, 1994, issue of the Texas Register (19 TexReg 6306). The sections are adopted to establish the purpose and administration of the program; provide definitions; establish eligibility and application requirements; establish criteria for selection; identify conditions for scholarship; provide for disbursement of scholarship funds; establish conditions for breach of contract; allow for repayment of funds including enforcement of collection; provide for waivers and suspensions; and establish reporting and monitoring requirements. These sections are adopted to implement the National Health Service Corps Community Scholarship Program. No comments were received regarding adoption of the sections. The sections are adopted under the Health and Safety Code, sec.106.003, and House Bill 2241, 73rd Legislature, 1993, which provided the Executive Committee of the Center for Rural Health Initiatives with the authority to adopt rules to implement the Center's program. 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-9450294 Laura M. Jordan Excutive Director Center for Rural Health Initiatives Effective date: November 29, 1994 For further information, please call: (512) 479-8891 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 305. Consolidated Permits Subchapter G. Additional Conditions for Solid Waste Storage, Processing, or Disposal Permits sec.30 TAC sec.305.149 The Texas Natural Resource Conservation Commission (TNRCC) adopts new sec.305.149, concerning Additional Conditions for Solid Waste Storage, Processing, or Disposal Permits. Section 305.149 is adopted with changes to the proposed text as published in the June 7, 1994, issue of the Texas Register (19 TexReg 4409). Notice of adoption of sec.305.149 was originally published in the October 25, 1994, issue of the Texas Register (19 TexReg 8546); however, due to an oversight on the part of the TNRCC, the text of the adoption did not reflect changes made to the rule as a result of public comment. As a result, the TNRCC is withdrawing the adoption of sec.305.149 as published on October 25, 1994, issue of the Texas Register (19 TexReg 8546). The notice of adoption published here contains the text of sec.305.149, with changes, as it was adopted by the commissioners of the Texas Natural Resource Conservation Commission. Section 305.149 is adopted pursuant to new provisions of the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.0232, promulgated by the legislature in Senate Bill 1099, 72nd Legislature (1991). Section 361.0232 directed the TNRCC to conduct a needs assessment for commercial hazardous waste management. The information in the needs assessment was to be used to develop rules which allow for the prioritization of permit applications for commercial facilities. These rules will enable the TNRCC to make a reasonable estimate of when capacity will be available to the state's generators. By encouraging applicants to seek permits only for units they intend to construct within defined time limits, sec.305.149 is designed to facilitate an assessment of accurate hazardous waste capacity under the Act, sec.361.0232(b). Historically, there has been difficulty with the permitting of facilities which do not move forward with the construction of units once they receive authorization. This permitted yet unrealized capacity impedes commission staff from making an accurate assessment of hazardous waste capacity in the state. The Act, sec.361.0871(c), instructs the commission to develop a prioritization process that shall provide for priority consideration in permit processing for those applications that address the highest priority need. One of the reasons for developing a prioritization process is to ensure that the commission's limited staff resources are allocated to processing permit applications which address the highest priority need. Because commission staff is constrained by resource limitations and can process only a finite number of permits, it is important not only to encourage applicants to permit the types of units for which there is the highest need, but also to encourage applicants to permit only the capacity they intend to construct in the near future. As part of this process of efficient resource allocation, the commission has adopted sec.305.149, which sets construction-period time limits for permitted units at commercial facilities. The rule is intended to encourage applicants to permit only the capacity they intend to build in the near term. Section 305.149(b) sets out time limits for the construction of units subject to RCRA permitting which manage hazardous waste from off-site at a commercial hazardous waste management facility. Applicants subject only to Underground Injection Control requirements will not be subject to this rule at this time. Under the rules, unit construction schedules will be set in one of two ways: by rule or by permit. Section 305.149(b)(1)-(3) lays out an initial two-year timeframe for unit construction, with procedures for requesting six-month or greater than six-month extensions to the two-year period. As proposed in the June 7, 1994, Texas Register, sec.305.149(a)(1) applied to units permitted prior to the date of the rule's adoption and stated that the two-year deadline ran from the effective date of the rule. In response to comments expressing concern that the rule had an impermissible retroactive application to existing permittees and applicants, sec.305.149(a) has been revised to apply only to facilities for which applications, Class 3 modification requests or major amendment requests are filed after the effective date of the rule. Under sec.305.149(a), the two-year deadline for the construction of all permitted units runs from the date of final administrative and judicial disposition of the permit, modification, or amendment. A certification that construction had been completed would have to be submitted within 90 days of the end of the two-year period. Section 305.149(b)(2) allows for a one-time extension of six months or less to the initial two-year construction-period time limit. This extension would be requested as a Class 2 permit modification and must comply with applicable provisions of sec.305.69. The request must be submitted within the initial two- year construction-period time limit and, if granted, would begin to run at the end of the two-year period. Once a Class 2 modification request has been submitted within the initial two-year construction period, authorization for unit construction continues until the commission takes final action on the modification request. A certification that construction had been completed would be required within 90 days of the end of the extension. Section 305.149(b)(3) allows for two types of permit modification for extensions of unit construction schedules. The first type of modification is for any extension which is greater than six months. The second type of modification is for an extension of any length which is requested after an applicant has been previously granted an extension of six months or less under sec.305.149(b)(2). Extensions requested under sec.305.149(b)(3) are Class 3 permit modifications and must comply with all applicable provisions of sec.305. 69. In order to be considered, any requests made to extend the time period under proposed sec.305.149(b)(3) must be submitted before any previously authorized time periods have expired. Once a Class 3 modification request has been submitted within the authorized time period, authorization for unit construction continues under sec.305.149(b)(3)(A) until the commission takes final action on the modification request. Section 305.149(b)(4) allows for a longer construction time limit to be proposed by the applicant in its permit application, and if approved, would be included as a condition in a RCRA Subtitle C permit. Justification for the proposed extended schedule shall be submitted with the permit application. Extensions to a permitted construction period can be requested, if made during the time period stated in the permit. Extensions to the construction time limits stated in the permit can be requested only as permit modifications as provided in sec.305.149(b)(4). The extensions would be requested as Class 2 or Class 3 modifications, depending on the length of time requested for extension. Units that are not constructed within the construction-period time limit specified under sec.305.149(b)(1), (2), or (3), or as a permit condition pursuant to sec.305.149(b)(4), would lose authorization to construct the unit or manage hazardous waste in the unit. The permit remains valid and only the affected unit would cease to be authorized. This action would not constitute revocation of the permit. Comments on the proposed text were received from Ford & Ferraro; the Texas Association of Business; Safet-Kleen; and Akin, Gump, Strauss, Hauer & Feld, L. L.P. The following is a summary of the comments, along with the TNRCC's response to the comments. One commenter stated that the proposed rules are contrary to Texas Solid Waste Disposal Act, sec.361.0234(c), which provides that assessments and rules adopted under sec.361.0232 and sec.361.0234 shall not be applied retroactively to any application that was declared administratively and technically complete and for which public hearings had commenced before June 7, 1991. Another commenter stated that the proposed rules conflict with Government Code, sec.481. 143, which mandates that the approval, disapproval or conditional approval of an application for a permit shall be considered by each regulatory agency on the basis of orders, regulations, ordinances or other duly adopted requirements in effect at the time the original application is filed. The Commission should note that this section specifically does not apply to rules relating to Resource Conservation and Recovery Act (RCRA) facilities pursuant to sec.481.143(b)(3). The commission responds that sec.305.149(a) and (b)(1) have been changed in response to the comment so that the rule no longer applies to all existing permittees. The applicability of the rule has been narrowed so that only existing permittees who apply for Class 3 modifications or major amendments after the effective date of the rule will be subject to the unit construction schedule requirements, in addition to facilities filing new permit applications. Any Class 3 modification request or major amendment request will subject existing permittes to the rule and require construction of all permitted units within the designated timeframe. Several commenters additionally noted that proposed sec.305.149 effectively discriminated between those persons currently possessing valid permits and those seeking permits in the future. These commenters indicated that the proposed rule imposes construction schedules on existing permittees effective upon adoption of the rule while permit applicants' construction schedules do not begin to run until after all administrative and judicial proceedings related to the permit have been resolved. The TNRCC does not agree that the proposed rule would discriminate between existing permittees and permit applicants. The rule, as adopted, is clearly applicable to those seeking commercial hazardous waste permits on or after its effective date and to those existing permittees who seek Class 3 modifications or major amendments after the effective date of the rule. Existing permittees may avail themselves of all of the benefits of sec.305.149(b) when seeking either a Class 3 modification or major amendment, thus eliminating any concerns of discriminatory treatment of existing permittees. Existing permittees requesting Class 3 modifications or major amendments may seek an alternative schedule accompanied by a showing of good cause pursuant to sec.305.149(b)(1), if they do not want to be bound by the two- year construction schedule of sec.305.149(b)(1). An existing permittee's request for an alternate construction schedule under sec.305.149(b)(4) may be submitted and processed contemporaneously with the underlying Class 3 modification or major amendment request triggering application of the rule. Additionally, once a construction schedule is established, such existing permittees have the same right as new permittees to seek extensions of their schedules pursuant to the requirements of sec.305.149(b)(2) and (3). Several commenters stated that the Act, sec.361.0232, and its underlying legislative authority do not contemplate permit modification or construction schedules in TNRCC permits, and therefore the proposed rules are in excess of the authority granted by the Legislature. The TNRCC responds that the Act, sec.361.0232, authorizes the Commission to conduct a needs assessment. It is not possible to accurately assess the State's needs for commercial hazardous waste management capacity without addressing the problem of permitted capacity that has not been constructed. The proposed rules are intended to facilitate a more accurate assessment of capacity. The Act, sec.361.0232, grants broad authority to the Commission to adopt rules to facilitate an accurate assessment of the State's commercial hazardous waste management capacity. The rule as proposed is well within that authority. A commenter stated that as applied to existing permittees, the proposed new rules provide for a "de facto" permit revocation in violation of due process, the Administrative Procedure Act and the Act, sec.361.089. The TNRCC responds that, with respect to existing permittees, this concern has been addressed by the changes to the final rule, eliminating existing permittees from the rule's coverage. With respect to future permittees, new sec.305.149 is less restrictive than existing sec.305.66(2), which expressly authorizes the revocation of an entire permit for abandonment after an unspecified period of time lapses. The new rules do not authorize the revocation of a permit. Rather, authorization to construct a particular unit is lost if that unit has not been constructed in accordance with the applicable schedule as determined under the rule. Furthermore, unlike sec.305.66(2), the new rules provide specific timeframes for taking action and therefore provide more guidance as to when a unit may be considered "abandoned". A commenter stated that the two-year construction requirement is inadequate for many commercial hazardous waste management facilities and ignores a permittee's need to change construction plans as market conditions change. The TNRCC responds that in its experience the two-year construction schedule should be adequate for unit construction in most cases. To the extent additional time is needed, the appropriate procedures will be in place to request necessary extensions. Several commenters expressed concern that the rule ignores economic realties which require permittees to seek permit capacity based on long-term growth projections in particular waste management areas. If and when those projections are realized, capacity can then be built to adapt to rapidly changing market conditions. The TNRCC responds that the mechanisms provided in the rule for seeking extensions of construction schedules allows facilities the flexibility they need to respond to changing business conditions. Moreover, speculative permitting should be discouraged. The rules are intended to encourage applicants to permit only the capacity they intend to build in the near future. Otherwise, accurately assessing hazardous waste management capacity is made problematic because of excess permitted, yet unrealized, capacity. Furthermore, the TNRCC recognizes that staged-construction landfills are constructed differently than other commercial hazardous waste management units and that strict application of the construction requirements set forth in this rule is impracticable. For such staged-construction landfills which become subject to this rule, the construction timeframe requirements will be deemed satisfied upon certification that construction of the first landfill cell associated with staged landfilling activities has begun within the applicable timeframe. Several commenters stated that the permit modification procedures in the proposed rules are unnecessary and disregard existing regulations with respect to the classification and implementation of permit modification requests. The TNRCC responds that the new rules are necessary to enable the commission to accurately assess commercial hazardous waste management capacity. The commission recognizes that extension requests that would be classified as Class 2 or 3 permit modifications impose certain procedural requirements and will require applicants and Commission staff to devote resources to the processing of any such request. The classification scheme for extension requests is intended to impress upon the regulated community the importance of applying only for commercial hazardous waste management capacity which applicants intend to construct in the near future. Several commenters stated that less restrictive alternatives exist for keeping track of constructed commercial hazardous waste management units. The TNRCC responds that the construction schedule requirement called for in the rule is preferred not only because it serves the purpose of facilitating an accurate assessment of capacity, but also because it furthers the Commission's goals of eliminating speculative permitting and ensuring that units are constructed in accordance with recent standards. Several commenters stated that staff has failed to substantiate its claim that a problem exists with permittees failing to timely construct units. The TNRCC responds that 14 permittees presently have permitted, but unconstructed, commercial hazardous waste management capacity. Several commenters stated that the five-year and ten-year timeframes in commercial hazardous waste management permits provide a sufficient mechanism for ensuring that units are constructed in accordance with current standards. The TNRCC responds that the five-year and ten-year timeframes apply to operation of the unit. The expiration date is developed under the assumption that the unit will be operating before the expiration of that time period. The length of the permit and the time period for construction address different concerns. Several commenters stated that existing permittees need more of an opportunity to submit an alternate schedule without having to go through a Class 2 or 3 modification procedure. The TNRCC responds that this is a moot point now that existing permittees have been eliminated from coverage in the final version of the rule. Several commenters stated that if one of the purposes of implementing construction schedules is to protect the environment, the rule should apply to non-commercial as well as commercial hazardous waste management units. The TNRCC responds that it has not experienced problems with generators seeking permits and then not moving forward with the construction of the permitted unit to manage wastes on-site. In the Commission's experience, such parties do not apply for a permit unless they intend to use it in the near future. Accordingly, there is no need to develop construction timeframes for such permittees. Additionally, the TNRCC responds that the needs assessment legislation only authorizes the promulgation of rules concerning commercial facilities. The new rule is adopted under the Texas Water Code, sec. sec.5.103, 5.105, and 26.011, which provides the Texas Natural Resource Conservation Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Texas Water Code, the Texas Solid Waste Disposal Act, and other laws of the State of Texas, and to establish and approve all general policy of the commission. sec.305.149. Time Limitation for Construction of Commercial Hazardous Waste Management Units. (a) Applicability. This section applies to facilities which provide commercial capacity for the storage, processing or disposal of hazardous waste and for which permit applications, Class 3 permit modification requests or major permit amendment requests are filed after the effective date of this rule. (b) Schedule for construction of commercial hazardous waste management units. (1) The facility owner or operator shall construct all permitted units within two years of final administrative and judicial disposition of the permit, modification or amendment referenced in subsection (a) of this section. Within 90 days after the end of the two-year construction period time limit, the facility owner or operator shall certify to the executive director that the unit has been constructed in accordance with applicable permit provisions. (2) A one-time six-month extension to the two-year construction period time limit may be requested as a Class 2 permit modification. All modification requests and subsequent procedures must comply with applicable provisions of sec.305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. The request must be made within the initial two-year period and, if granted, the six-month extension shall begin at the end of the initial two-year construction period time limit specified under paragraph (1) of this subsection. Construction of the unit is authorized under this subsection until the commission takes final action on the modification request; however, in no event shall authorization continue under this subsection beyond six months following the end of the initial two-year construction period specified under paragraph (1) of this subsection. Within 90 days of the end of the authorized extension period, the facility owner or operator shall certify to the executive director that the unit has been constructed in accordance with applicable permit provisions. (3) Extensions for greater than six months, or any extension to the construction period time schedule authorized under an approved Class 2 permit modification pursuant to paragraph (2) of this subsection, shall be requested as a Class 3 permit modification. All requests and subsequent procedures must comply with applicable provisions of sec.305.69 of this title (relating to Solid Waste Permit Modification at the Request of the Permittee) and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. (A) Extension requests made under this paragrah shall be submitted during the periods authorized under paragraph (1) or (2) of this subsection. Construction of the unit is authorized under this subsection until the commission takes final action on the modification request. (B) The commission shall not consider requests made under this paragraph which are submitted after the expiration of the time periods authorized under paragraph (1) or (2) of this subsection. (4) Under circumstances which require a delayed or staged unit construction schedule longer than that specified under paragraph (1) of this subsection, justification for the proposed extended schedule shall be submitted with the permit application. The submitted schedule shall become part of the permit only upon the approval of the commission. Requests for changes to the approved schedule submitted during the period covered by the approved schedule shall comply with Class 2 or Class 3 permit modification rules, pursuant to sec.305.69. The class of the modification shall be determined by the length of the extension requested. An extension request of six months or less shall be a Class 2 modification and an extension request of greater than six months shall be a Class 3 modification request. All requests and subsequent procedures must comply with applicable provisions of sec.305.69 and must comply with any applicable statutory or regulatory requirements which take effect prior to final administrative disposition of the modification request. (c) Authorization status. Unit construction or management of hazardous waste in a unit is not authorized under any of the following conditions: (1) the permittee has not constructed the unit within the time period specified under subsection (b)(1) of this section and: (A) the permittee does not submit a modification request as specified in subsection (b)(2) or (3) of this section; or (B) the commission has denied a request for an extension under subsection (b)(2) or (3) of this section and the construction period time limit specified in subsection (b)(1) or (2) of this section has expired; (2) the unit has not been constructed within the time period specified in the permit as per subsection (b)(4) of this section and: (A) the permittee does not submit a modification request as specified in subsection (b)(4) of this section; or (B) the commission has denied a request for an extension under subsection (b)(4) of this section and the construction period time limit specified in the permit has expired. 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 November 1, 1994. TRD-9450352 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 23, 1994 Proposal publication date: June 7, 1994 For further information, please call: (512) 239-6087 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 443. Certification Curriculum Manual 37 TAC sec.sec.443.1, 443.3, 443.7, 443.9 The Texas Commission on Fire Protection adopts the repeal of Chapter 443, including sec.sec.443.1, 443.3, 443.7, and 443.9, concerning adoption by reference of the standards curriculum manual, without changes to the text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6894). The justification for enforcing or administering the repealed sections will be that the language deemed obsolete and unnecessary will be deleted. The repealed chapter will be replaced by a new chapter entitled dealing with the same subject matter that provides for a new certification curriculum approval process. No comments were received regarding this proposal. The repeals are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 27, 1994. TRD-9450262 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 21, 1994 Proposal publication date: September 2, 1994 For further information, please call: (512) 918-7184 37 TAC sec.sec.443.1, 443.3, 443.7, 443.9 The Texas Commission on Fire Protection adopts new Chapter 443 titled Certification Curriculum Manual, including sec. sec.443.1, 443.3, 443.7, and 443.9, concerning certification curriculum manual, with changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6894). The changes to the proposed text correct the spelling of "curricula" throughout the chapter. The justification for adopting the new chapter will be that limiting curriculum changes to annual revisions will aid local budgeting and planning for training. In addition, the requirement for curriculum revisions affected by changes to National Fire Protection Association standards provides consistency with nationally recognized standards and provides ground work for accreditation by the International Fire Service Accreditation Congress of the commission's certification program. The new chapter provides for a new certification curriculum approval process which does not require adoption by reference of the curriculum manual, but maintains the requirement of approval by the commission and the Fire Protection Personnel Advisory Committee. In addition, the new approval process provides for annual changes only unless a safety consideration is found and requires compliance with new or revised National Fire Protection Association standards pertaining to the curricula. No comments were received regarding adoption of the new rules. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel. sec.443.1. Curriculum approval by the Fire Protection Personnel Advisory Committee. (a) All new curricula or changes to curricula for fire protection personnel must be submitted to the Fire Protection Personnel Advisory Committee for approval. (b) The Fire Protection Personnel Advisory Committee may: (1) submit new curricula or changes to curricula to a subcommittee formed of members of the Fire Protection Personnel Advisory Committee for study and review before approval; or (2) submit new curricula or changes to curricula to an advisory committee formed of members of the fire service who are recommended by the Fire Protection Personnel Advisory Committee and appointed by the Commission to report to the Fire Protection Personnel Advisory Committee, for study and review before approval. (c) All new curricula or changes to curricula approved by the Fire Protection Personnel Advisory Committee shall be placed on the next scheduled meeting agenda of the Texas Commission on Fire Protection. sec.443.3. Curriculum approval by the Texas Commission on Fire Protection. (a) All new curricula or changes to curricula approved by the Fire Protection Personnel Advisory Committee must receive final approval by the Texas Commission on Fire Protection. (b) Curricula not approved by the Commission shall be sent back to the Committee for further development. The Commission shall indicate to the Committee the reasons that the curriculum was not approved. sec.443.7. Effective Date of New Curricula or Changes or Revisions to Existing Curricula Which are Voluntary. (a) New curricula will become effective on the date recommended by the Fire Protection Personnel Advisory Committee and specified by the Commission. (b) Changes to curricula will become effective on the date recommended by the Fire Protection Personnel Advisory Committee and specified by the Commission. (c) Changes to curricula that involve a safety consideration as determined by the Fire Protection Personnel Advisory Committee shall become effective immediately following final approval by the Commission. sec.443.9. National Fire Protection Association Standard. (a) All curricula for fire protection personnel must, as a minimum, meet the standards, to include manipulative skills objectives and knowledge objectives, of the current NFPA standard pertaining to the discipline, if such a standard exist and subject to subsection (c) of this section. (b) New curricula presented to the Fire Protection Personnel Advisory Committee must, as a minimum, meet the standards of the current edition of the applicable NFPA standard for the discipline, if such a standard exist. (c) If a NFPA standard is adopted or an existing NFPA standard is revised, all curricula for fire protection personnel must meet the standards of the new or revised applicable NFPA standard, on the first day of January following 365 days from the official adoption date of the applicable NFPA standard. 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 27, 1994. TRD-9450261 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 21, 1994 Proposal publication date: September 2, 1994 For further information, please call: (512) 918-7184 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 9. Contract Management Construction Division Practice and Regulations 43 TAC sec.sec.9.1-9.3 The Texas Department of Transportation adopts the repeal of sec.sec.9.1-9.3, concerning prequalification of contractors, transmittal of notice to contractors, and issuance and submission of proposals, without changes to the proposed text as published in the August 19, 1994, issue of the Texas Register (19 TexReg 6544). Sections 9.1-9.3 are no longer necessary due to the simultaneous adoption of new sec.sec.9.10-9.19, governing bidder qualification, bidding, award, and execution of highway improvement contracts. Texas Civil Statutes, Article 6674i, require the commission to prescribe rules on all bidders on bids for contracts awarded for the improvement of the state highways system. Sections 9.10-9.19, expand and update the provisions of existing sec.sec.9.1-9.3; ensure a fair and equitable bidding process for highway improvement contracts; inform potential bidders and the general public of department policy and procedures; and consolidate commission policy and procedures including those found in sec.sec.9.1-9.3. On August 29, 1994, the department conducted a public hearing on the proposed repeal of sec.sec.9.1-9.3. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Articles 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 6674i, which require the commission to prescribe rules on all bidders on bids received for contracts awarded for the improvement of the 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 November 2, 1994. TRD-9450332 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 23, 1994 Proposal publication date: August 19, 1994 For further information, please call: (512) 463-8630 Subchapter B. Highway Improvement Contracts 43 TAC sec.sec.9.10-9.19 The Texas Department of Transportation adopts new sec. sec.9.10-9.19, concerning Highway Improvement Contracts, prescribing the policies and procedures governing bidder qualification, bidding, award, and execution of a contract entered under Texas Civil Statutes, Article 6674a et seq, with changes to the proposed text as published in the August 19, 1994, issue of the Texas Register (19 TexReg 6545). Texas Civil Statutes, Article 6674i, require the commission to prescribe rules on all bidders on bids for contracts awarded for the improvement of the state highways system and Texas Civil Statutes, Article 6674h-2, authorize the department under certain conditions to award highway improvement contracts in cases of emergency. These new sections reenact simultaneously repealed sec.sec.9. 1-9.3, concerning prequalification of contractors, transmittal of notice to contractors, and issuance and submission of proposals and sec.sec.9.20-9.22, concerning emergency contract procedures. These new sections expand and update the provisions of existing sec.sec.9.1-9.3; ensure a fair and equitable bidding process for highway improvement contracts; inform potential bidders and the general public of department policy and procedures; and consolidate commission policy and procedures. On August 29, 1994, the department conducted a public hearing to seek comments concerning the proposed repeal of sec.sec.9.1-9.3, relating to prequalification of contractors, transmittal of notice to contracts, and issuance and submission of proposals, the proposed repeal of sec.sec.9.20-9.22, relating to emergency contract procedures, and the proposed adoption of new sec.sec.9.10-9.19, relating to highway improvement contracts. No oral testimony was given at the hearing. One written comment was received by mail from the Association of General Contractors. The Association of General Contractors of Texas, Highway, Heavy, Utilities and Industrial Branch (AGC) requested reconsideration of sec.9.18(b), concerning unbalanced bids. Subsection (b) provided for the evaluation of unit bid prices of the apparent low bid, and required that, "A low bid that is found to be mathematically unbalanced, but not materially unbalanced, and that is awarded a contract will be subject to withholding of payment on the mathematically unbalanced bid items for the portion of the unbalanced unit bid price that exceeds the department's current 12-month average for the same item number or a similar item number." The AGC maintained that this provision "would make it impossible for successful bidders to know when and if they would be paid for work performed. This change would increase risk and therefore cost with no additional benefit to the state." The department believes that further review of this provision is necessary to determine its impact upon contractors and the department. The subsection is revised to delete the requirement for withholding of payment. Section 9.13(a)(2)(B) provided for the advertisement of contracts involving less than $100,000. The subparagraph is revised so that it applies to contracts "with an engineer's estimate" of less than $100,000. This revision is made to clarify the department's original intent and to be consistent with sec.9.15(a)(2), concerning the opening and reading of bids. Section 9.16(a), concerning the official bid amount, provided an exception for lump sum building contracts. Highway improvement contracts may also have lump sum bid items, therefore, this subsection is revised to except "lump sum bid items." Section 9.13(b)(4) provides that "the department will not issue a proposal form for a highway improvement contract to a bidder who has received compensation from the department to participate in the preparation of the plans or specifications on which the bid or contract is based." This bidding restriction was intended to assure equitable and legal competitive bidding. To prevent unfair competitive advantage that could occur if a subsidiary or affiliate participates in the preparation of the plans or specifications, the provision is clarified to include such activities by a subsidiary or affiliate of the bidder. The new sections are adopted under Texas Civil Statutes, Articles 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 6674a et seq, which authorize the department to construct and maintain the state highway system; Article 6674h-2, which authorize the department under certain conditions to award highway improvement contracts in cases of emergency; and Article 6674i, which require the commission to prescribe rules on all bidders on bids received for contracts awarded for the improvement of the state highway system. sec.9.10. Purpose. The sections under this subchapter prescribe the policies and procedures governing bidder qualification, bidding, award, and execution of a contract entered under Texas Civil Statutes, Article 6674a, et seq. sec.9.11. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Available bidding capacity-Bidding capacity less uncompleted work under contract. Bidder-An individual, partnership, limited liability company, corporation or any combination submitting a proposal. Bidding capacity -The maximum dollar value a contractor may have under contract at any given time. Building contract -A contract entered under Texas Civil Statutes, Article 6674a et seq for the construction or maintenance of a department building or appurtenant facilities. Commission-The Texas Transportation Commission. Construction contract -A contract entered under Texas Civil Statutes, Article 6674a et seq for the construction or reconstruction of a segment of the state highway system. Department-The Texas Department of Transportation. Deputy executive director-Any one of six by the executive director to the position of deputy executive director or assistant executive director. Disadvantaged business enterprise-As defined in 49 Code of Federal Regulations (CFR), sec.23.5, a small business concern, certified by the department, which is 51% owned by one or more minorities or women, or in the case of a publicly owned business, at least 51% of the stock is owned by one or more minorities or women, and whose management and daily business operations are controlled by one or more such individuals. District engineer -The chief executive officer in each of the designated district offices of the department. Electronic bid -The submission of bid information on a computer diskette as a supplement to the proposal for use in the bid tabulation. Emergency-Any situation or condition of a designated state highway, resulting from a natural or man-made cause, which poses an imminent threat to life or property of the travelling public or which substantially disrupts or may disrupt the orderly flow of traffic and commerce. Executive director -The executive director of the Texas Department of Transportation. Highway improvement contract-A construction, maintenance, or building contract. Maintenance contract -A contract entered under Texas Civil Statutes, Article 6674a, et seq, for the maintenance of a segment of the state highway system. Materially unbalanced bid-A bid which generates a reasonable doubt that award to the bidder submitting a mathematically unbalanced bid will result in the lowest ultimate cost to the state. Mathematically unbalanced bid-A bid containing lump sum or unit bid items which do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder's anticipated profit, overhead costs, and other indirect costs. Proposal-The offer of the bidder, made out on the prescribed form, giving bid prices for performing the work described in the plans and specifications. Proposal guaranty -The security designated in the proposal and furnished by the bidder as a guaranty that the bidder will enter into a contract if awarded the work. sec.9.12. Qualification of Bidders and Registration of Subcontractors. (a) Audited financial qualification of construction and maintenance bidders. Unless waived under paragraph (2) of this subsection, to be eligible to bid on a construction or maintenance contract a potential bidder must be prequalified in accordance with paragraph (1) of this subsection. (1) Requirements. (A) To be qualified to bid on a construction or maintenance contract, a potential bidder must: (i) submit a confidential questionnaire in a form prescribed by the department, which shall include certain information concerning the bidder's equipment and experience as well as financial condition; and (ii) have its certified public accountant or public accountant submit the audited and other financial information required by the current edition of the department's Bulletin Number 2, titled "Contractor's Financial Resources." (B) The department will make its examination and determination based on the information submitted, and advise the bidder of its approved bidding capacity. (2) Waiver. (A) The department will waive the audited financial qualification requirements of paragraph (1) of this subsection if the engineer's estimate is $250,000 or less, or the project pertains to specialty items not normal to the department's roadway projects program unless the department's director of Construction and Maintenance Division determines that audited financial qualification should be required due to: (i) safety considerations; (ii) the complexity of the work; or (iii) the potential impact of the work on adjacent property owners. (B) To be eligible to bid on a contract for which the audited financial qualification requirements have been waived under subparagraph (A) of this paragraph, or on a contract to be awarded under sec.9.19 of this title (relating to Emergency Contract Procedures), a bidder must submit: (i) a bidder's questionnaire, in the form prescribed by the department, which includes certain information concerning a bidder's equipment and experience; and (ii) unaudited and other financial data as required in the instructions to the bidder's questionnaire. (C) The department will make its examination and determination based on the information submitted, and advise the bidder of its approved bidding capacity. (b) Registration of subcontractors. To be eligible as a subcontractor for a construction or maintenance contract entered by the commission under Texas Civil Statutes, Article 6674a, et seq, a subcontractor must submit a completed subcontractor's questionnaire. (c) Building contracts. A bidder and a subcontractor do not have to comply with this section to be eligible to bid or be a subcontractor on a building contract. sec.9.13. Notice of Letting and Issuance of Proposals. (a) Notice to bidders and advertisements. (1) Notice. (A) Mailing list. The department will maintain a mailing list of all registered subcontractors and bidders approved to bid under sec.9.12 of this title (relating to Qualification of Bidders and Registration of Subcontractors) . The department will also maintain a mailing list of parties who have purchased a notice subscription for $25 per year to cover costs of mailing the notices. (B) Fee. The following entities are not required to pay the notice subscription fee: (i) qualified bidders and registered subcontractors approved under sec.9.12 of this title (relating to Qualification of Bidders and Registration of Subcontractors); (ii) other state agencies; (iii) other state departments of transportation; (iv) disadvantaged business enterprises and historically underutilized businesses; (v) offices of the federal government; and (vi) organizations performing work under supportive service contracts awarded by the commission. (C) Distribution. The department will send to prepaid subscribers and entities on the mailing list who are waived from paying the fee written notice of projects to be let. (2) Advertising. (A) Notice of the time, when, and place where contracts will be let and bids opened will be published in a newspaper in the county where the work is to be done once a week for at least two weeks prior to the time set for the letting of the contract and in two other newspapers designated by the department. If there is no newspaper in the county in which the work is to be done, the advertising shall be for publication in a newspaper in the county nearest the county seat of the county in which the work is to be done. (B) Notice of the time, when, and place where contracts with an engineer's estimate of involving less than $100,000 will be let and bids opened will be published in two successive issues of a newspaper published in the county in which the work is to be done, and if there is no newspaper in the county in which the work is to be done, the advertising shall be for publication in a newspaper in the county nearest the county seat of the county in which the work is to be done. (b) Proposal form. (1) Proposal form content. A proposal form will include: (A) the location and description of the proposed work; (B) an approximate estimate of the various quantities and kinds of work to be performed or materials to be furnished; (C) a schedule of items for which unit prices are requested; (D) the time within which the work is to be completed; and (E) the special provisions and special specifications. (2) Form of request. (A) A request for a proposal form on a building contract or a state funded construction or maintenance contract may be made orally or in writing. (B) A request for a proposal form on a federal aid construction or maintenance contract must be submitted in writing, and must include a statement in a form prescribed by the department certifying whether the bidder is currently disqualified by an agency of the federal government as a participant in programs and activities involving federal financial and nonfinancial assistance and benefits. (c) Issuance of proposal form. (1) Construction and maintenance contracts. (A) Issuance. Except where prohibited under subparagraph (B) of this paragraph, the department will, upon receipt of a request, issue a proposal form for a construction or maintenance contract as follows: (i) for a project on which audited financial prequalification is not waived, only to a prequalified bidder, and only if the estimated cost of the project is within that bidder's available bidding capacity; and (ii) for a project on which audited financial qualification is waived under sec.9.3(a)(2) of this title (relating to Qualification of Bidders and Registration of Subcontractors) , only if the estimated cost of the project is within that bidder's available bidding capacity. (B) Non-issuance. Except as provided in subparagraph (C) of this paragraph, the department will not issue a proposal form requested by a bidder for a construction or maintenance contract: (i) for a federal-aid project, if at the time of the request the bidder is disqualified by an agency of the federal government as a participant in programs and activities involving federal assistance and benefits; (ii) for either a state funded or a federal-aid project, if at the time of the request the bidder is suspended or debarred by order of the commission, or is prohibited from rebidding a specific project because of default of the first awarded bid; or (iii) for either a state funded or a federal-aid project, if at the time of the request the bidder has not fulfilled the requirements for qualification under sec.9.3 of this title (relating to Qualification of Bidders and Registration of Subcontractors). (C) Exception. The department may issue a proposal to a bidder who is ineligible under subparagraph (B)(iii) of this paragraph if the bidder has substantially complied with the requirements of sec.9.3 of this title (relating to Qualification of Bidders and Registration of Subcontractors). (2) Informational proposal. The department will issue an information proposal form upon request. (3) Building contracts. Except as provided in paragraph (4) of this subsection, the department will, upon request, issue a proposal form to any bidder for a building contract. (4) All contracts. The department will not issue a proposal form for a highway improvement contract to a bidder if the bidder or a subsidiary or affiliate of the bidder has received compensation from the department to participate in the preparation of the plans or specifications on which the bid or contract is based. sec.9.14. Submittal of Proposal. (a) Delivery. (1) The bidder shall place each completed proposal form in a sealed envelope marked to show its contents. When submitted by mail, this envelope shall be placed in another envelope which shall be sealed and addressed as indicated in the notice. Bids must be received on or before the hour and date set for the receipt and opening of bids and must be in the hands of the department letting bid receipt official by that time. (2) In addition to the proposal form submitted under paragraph (1) of this subsection, and when authorized in the proposal, a bidder may submit an electronic bid in the same manner. A bidder delivering an electronic bid shall submit the proposal in accordance with paragraph (1) of this subsection, and must: (A) include the computer diskette containing the electronic bid data in a separate sealed envelope; (B) state the exact qualified name of the bidder on the envelope; (C) state on the computer diskette the exact qualified name of the bidder and the job number as taken from the order of tabulation of projects, for which electronic bids are being submitted; (D) submit a computer diskette containing bid data for those projects which are to be opened and read for that letting day only, as reflected in the notice; and (E) provide the electronic bid information on a computer diskette, free of virus, which has been prepared through the electronic bidding system utilized by the department. (3) Electronic bids are not accepted for building contracts. (b) Proposal content. The bidder shall submit the proposal on the form furnished by the department and in compliance with the following requirements. (1) Except as provided in paragraph (2) of this subsection and subsection (c) of this section, the blank spaces for each item as required in the proposal form shall be filled in by writing in words in ink. (2) The bidder shall submit a unit price for each item for which a bid is requested (including a zero if appropriate), except in the case of a regular item that has an alternate bid item. In such case, prices must be submitted for the base bid or with the set of items of one or more of the alternates. (3) The proposal shall be executed with ink in the complete and correct name of the bidder making the proposal and be signed by the person or persons authorized to bind the bidder. (4) Except in the case of regular bid item that has an alternate bid item, unit prices shall be stated in dollars and/or cents for each bid item listed in the proposal. (c) Computer printouts. (1) In lieu of writing in words in ink, a bidder may submit an original computer printout sheet bearing the required certification by and signature for the bidder. The unit prices shown on acceptable printouts will be the official unit prices used to tabulate the official total bid amount and used in the contract if awarded by the commission. (2) Computer printouts are not acceptable on building contracts. (d) Electronic bids. Electronic bid data must be in the form outlined under subsection (a)(2) of this section. The electronic bid information will be a supplement to the proposal for the purposes of tabulation only. Each proposal submitted must be accompanied by a computer printout meeting the requirements under subsection (c) of this section. The computer diskette will remain the property of the department. (e) Proposal guaranty. (1) A bidder must submit a proposal guaranty with the proposal form in the amount specified by the proposal form. The proposal guaranty shall be payable to the commission and shall be a cashier's check or money order on a state or national bank or savings and loan association, or a state or federally chartered credit union. (2) A check or money order must be payable at or through the institution issuing the instrument, or must state that the issuing institution is both the drawer and drawee of the official obligation to pay the amount stated. (3) The department will not accept as a proposal guaranty: (A) a check labeled official check, officer's check, or teller's check; (B) personal checks or certified checks; (C) other types of money orders or bank drafts; or (D) bid bonds. (f) Certification. (1) A bidding proposal on a federal-aid project shall include, in a form prescribed by the department, a certification of eligibility status. The certification shall describe any suspension, debarment, voluntary exclusion, or ineligibility determination actions by an agency of the federal government, and any indictment, conviction, or civil judgment involving fraud or official misconduct, each with respect to the bidder or any person associated therewith in the capacity of owner, partner, director, officer, principal investor, project director/supervisor, manager, auditor, or a position involving the administration of federal funds; and shall cover the three-year period immediately preceding the date of the proposal. (2) Information adverse to the bidder as contained in the certification will be reviewed by the department and by the Federal Highway Administration, and may result in rejection of the bid and disqualification of the bidder. sec.9.15. Acceptance, Rejection, and Reading of Proposals. (a) Public reading. (1) Bids will be opened and read at a public hearing conducted by the director of the department's Construction and Maintenance Division, or his or her designee on behalf of the commission. Each hearing shall be in the City of Austin, at a time and location specified in the advertisement. (2) Bids for contracts with an engineer's estimate of less than $100,000 may be opened and read at a public hearing conducted by the district engineer, or his or her designee on behalf of the commission. Each such hearing shall be held at the district headquarters in the district in which the work is to occur. (b) Proposals not read. (1) The department will not accept and will not read a proposal if: (A) the proposal is submitted by an unqualified bidder; (B) the proposal is in a form other than the official proposal form issued to the bidder; (C) the certification and affirmation are not signed; (D) the proposal was received after the time or at some location other than that specified in the advertisement; (E) the unit prices are written in the proposal in numerals; (F) the proposal guaranty, when required, does not comply with sec.9.14(e) of this title (relating to Submittal of Proposal); (G) the bidder did not attend a specified mandatory pre-bid conference; (H) the proprietor, partner, majority shareholder, or substantial owner is 30 or more days delinquent in providing child support under a court order or a written repayment agreement; (I) a computer printout proposal, when used, does not have the unit bid prices entered in designated spaces, does not include the proper certification, is not signed in the name of the firm to whom the proposal was issued, or omits required bid items or includes items not shown in the proposal; (J) the bidder was not authorized to be issued a proposal under sec.9.13(c) of this title (relating to Notice of Letting and Issuance of Proposals); or (K) the proposal did not otherwise conform with the requirements of sec.9.14 of this title (relating to Submittal of Proposal). (2) If more than one proposal involving a bidder under the same or different names is submitted, the department will not accept and will not read any of the proposals submitted by that bidder. (c) Revision of bid by bidder. (1) A bidder may change a bid price before it is submitted to the department by changing the price and initialing the revision in ink. (2) A bidder may change a bid price after it is submitted to the department by requesting return of the bid in writing prior to the expiration of the time for receipt of bids, as stated in the advertisement. The request must be made by a person authorized to bind the bidder. The department will not accept a request by telephone or telegraph, but will accept a properly signed telefacsimile request. The revised bid must be resubmitted prior to the time specified for the close of the receipt of bids. (d) Withdrawal of bid. A bidder may withdraw a bid by submitting a request in writing before the time and date of the bid opening. The request must be made by a person authorized to bind the bidder. The department will not accept telephone or telegraph requests, but will accept a properly signed telefacsimile request. sec.9.16. Tabulation of Bids. (a) Official bid amount. Except for lump sum building contracts bid items, the official total bid amount for each bidder will be determined by multiplying the unit bid price written in for each item by the respective quantity and totaling those amounts. (b) Department interpretations. (1) Proposal entries such as no dollars and no cents or zero dollars and zero cents will be interpreted to be one-tenth of a cent ($.001) and will be entered in the bid tabulation as $.001. Any entry less than $.001 will be interpreted and entered as $.001. (2) If a bidder submits both a completed proposal form and a properly completed computer printout, the department will use the computer printout to determine the total bid amount of the proposal. If the computer printout is incomplete, the department will use the completed proposal form to determine the total bid amount of the proposal. (3) If a bidder submits two computer printouts reflecting different totals, both printouts will be tabulated, and the department will use the lowest tabulation. (4) If a unit bid price is illegible, the department will make a documented determination of the unit bid price for tabulation purposes. (5) If a unit bid price has been entered for both the regular bid and a corresponding alternative bid, programmatically, the department will determine the lowest item amount for the regular bid or the alternative bid and tabulate as such. If both the regular and alternate bids have been bid at the same unit price, the department will select the regular bid item or items. (6) if a bidder submits an electronic bid and the diskette furnished is unusable by the department, then the required computer printout will be used to determine the total bid amount of the proposal. (7) If the unit bid prices or the total bid amount reflected by the electronic bid differs from the amounts reflected on the required computer printout, then the amounts reflected on the printout will be used to determine the total bid amount. sec.9.17. Award of Contract. (a) The commission may reject any and all bids opened, read, and tabulated under sec.9.15 and sec.9.16 of this title (relating to Acceptance, Rejection, and Reading of Proposals, and Tabulation of Bids). It will reject all bids if: (1) there is reason to believe collusion may have existed among the bidders; (2) the low bid is determined to be both mathematically and materially unbalanced; (3) the lowest bid is higher than the department's estimate and the commission determines that re-advertising the project for bids may result in a significantly lower low bid; or (4) the lowest bid is higher than the department's estimate and the commission determines that the work should be done by department forces. (b) Except as provided in subsection (c) of this section, if the commission does not reject all bids, it will award the contract to the lowest bidder. (c) In accordance with the Government Code, Chapter 2252, Subchapter A, the commission will not award a contract to a nonresident bidder unless the nonresident underbids the lowest bid submitted by a responsible resident bidder by an amount that is not less than the amount by which a resident bidder would be required to underbid the nonresident bidder to obtain a comparable contract in the state in which the nonresident's principal place of business is located. sec.9.18. After Contract Award. (a) Contract execution. (1) Construction and maintenance contracts. Within 15 days after written notification of award of a construction or maintenance contract, the successful bidder must execute and furnish to the department the contract with: (A) a performance bond and a payment bond, if required and as required by the Government Code, Chapter 2253, with powers of attorneys attached, each in the full amount of the contract price, executed by a surety company or surety companies authorized to execute surety bonds under and in accordance with state law; and (B) a certificate of insurance showing coverages in accordance with contract requirements. (2) Building contracts. A successful bidder on a building contract must execute the contract and comply with paragraph (1)(A) and (B) of this subsection within 27 days after written notification of award of the contract. (3) Construction contracts. Within 15 days after written notification of award of the contract the successful bidder on a construction contract who is not a disadvantaged business enterprise must submit all the information required by the department relating to the subcontracting to be used to achieve the contract's disadvantaged business enterprise goal. (b) Unbalanced bids. The department will examine the unit bid prices of the apparent low bid for reasonable conformance with the department's estimated prices. The department will evaluate a bid with extreme variations from the department's estimate, or where obvious unbalancing of unit prices has occurred. (c) Proposal guaranty. (1) Apparent low bidder. The department will retain the proposal guaranty of the successful bidder until after the contract has been awarded, executed, and bonded. If the successful bidder does not comply with subsection (a) of this section within 15 days of notification of the award of the contract (27 days for building contracts), the proposal guaranty will become the property of the state, not as a penalty but as liquidated damages; provided, however, the department may, based on documentation submitted by the contractor, grant a 15- day extension to comply with the requirements under subsection (a)(3) of this section. A bidder who forfeits a proposal guaranty will not be considered in future proposals for the same work unless there has been a substantial change in the design of the project subsequent to the forfeiture of the proposal guaranty. (2) Other bidders. Not later than 72 hours after bids are opened, the department will mail the proposal guaranty of all bidders except the apparent low bidder to the address specified on each bidder's return bidder's check form included in the proposal. sec.9.19. Emergency Contract Procedures. (a) Purpose. In accordance with Texas Civil Statutes, Article 6674h-2, the department is authorized under certain conditions to award highway improvement contracts in cases of emergency. This section provides for an alternate procedure for the expedited award of highway improvement contracts to meet emergency conditions in which essential corrective or preventive action would be unreasonably hampered or delayed by compliance with other laws, this subchapter, or other sections of Part I of this title. (b) Certification of emergency. (1) A district engineer who identifies an emergency situation in the geographic area under his jurisdiction and determines that expedited action is required shall immediately notify the executive director or his designee to describe the fact and nature of the emergency. Upon receiving authorization to proceed, the district engineer may initiate procedures for the award of an emergency contract. All such notification will be documented in writing. (2) Examples of types of work which may qualify for emergency contracts include but are not limited to emergency repair or reconstruction of streets, roads, highways, and bridges; clearing debris or deposits from the roadway or in drainage courses within the right of way; removal of hazardous materials; restoration of stream channels outside the right of way in certain conditions; temporary traffic operations; and mowing to eliminate safety hazards; provided, however, that in each instance, the proposed work must satisfy the requisites of emergency as defined in this subchapter. (3) Before the contract is awarded, the executive director or his designee not below the level of deputy executive director must certify in writing the fact and nature of the emergency giving rise to the award. (c) Contractor eligibility. To be eligible to bid on an emergency project, a contractor must be included in the department's list of prequalified bidders pursuant to sec.9. 12 of this title (relating to Qualification of Bidders and Registration of Subcontractors) or must complete a bidder's questionnaire in a form prescribed by the department. (d) Notification of prospective bidders. (1) After an emergency is certified, the district engineer will review the department's file of eligible bidders and, if there is a sufficient number of firms, notify at least three of the proposed emergency contractors. 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 November 2, 1994. TRD-9450334 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 23, 1994 Proposal publication date: August 19, 1994 For further information, please call: (512) 463-8630 Emergency Contract Procedures 43 TAC sec.sec.9.20-9.22 The Texas Department of Transportation adopts the repeal of sec.sec.9.20-9.22, concerning emergency contract procedures, without changes to the proposed text as published in the August 19, 1994, issue of the Texas Register (19 TexReg 6550). Sections 9.20-9.22 are no longer necessary due to the simultaneous adoption of new sec.sec.9.10-9.19, governing bidder qualification, bidding, award, and execution of highway improvement contracts. Texas Civil Statutes, Article 6674h-2, authorize the department under certain conditions to award highway improvement contracts in cases of emergency. Sections 9.10-9.19 ensure a fair and equitable bidding process for highway improvement contracts; inform potential bidders and the general public of department policy and procedures; and consolidate commission policy and procedures including those found in sec.sec.9.20-9.22. On August 29, 1994, the department conducted a public hearing on the proposed repeal of sec.sec.9.1-9.3. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Articles 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 6674h-2, which authorize the department under certain conditions to award highway improvement contracts in cases of emergency. 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 November 2, 1994. TRD-9450333 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: November 23, 1994 Proposal publication date: August 19, 1994 For further information, please call: (512) 463-8630