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 X. Department of Information Resources Chapter 201. Planning and Management of Information Resources Technologies 1 TAC sec.201.17 The Department of Information Resources adopts new sec.201.17, concerning the State Strategic Plan for Information Resources Management Advisory Committee, without changes to the proposed text as published in the March 10, 1995, issue of the Texas Register (20 TexReg 1733). The section is adopted to comply with the provisions of Texas Civil Statutes, Article 6252-33, which requires agencies to adopt rules which state the purpose of advisory committees and to describe the tasks of the committee and the manner in which the committee will report to the agency. The section defines and details the composition and purpose of the advisory committee which will assist the Department in the development of the State Strategic Plan for Information Resources Management. The Department received no comments for or against the proposed section. The new section is adopted under the Government Code, Chapter 2054, sec.2054. 052, which authorizes the Department to adopt rules as necessary to carry out its responsibility under the Information Resources Management Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506459 C. J. Brandt General Counsel Department of Information Resources Effective date: June 16, 1995 Proposal publication date: March 10, 1995 For further information, please call: (512) 475-4714 TITLE 22. EXAMINING BOARDS Part XV. Texas State Board of Pharmacy Chapter 291. Pharmacies All Classes of Pharmacies 22 TAC sec.291.5 The Texas State Board of Pharmacy adopts an amendment to sec.291.5 regarding closing a pharmacy, without changes to the proposed text as published in the March 17, 1995 issue of the Texas Register (20 TexReg 1848). The amendment clearly outlines the requirements for closing a pharmacy and specifies that a pharmacy that dispenses prescription drug orders must notify the public of the closing at least 14 days prior to the closing. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes): sec.4 which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; sec.16(a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; and sec.17(b)(2) and (3) which gives the Board the authority to specify minimum standards for drug storage, maintenance of prescription drug records and procedures for the delivery, dispensing in a suitable container appropriately labeled, providing of prescription drugs or devices, monitoring of drug therapy, and counseling of patients on proper use of prescription drugs and devices within the practice of pharmacy. 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 May 30, 1995. TRD-9506517 Fred S. Brinkley, Jr., R.Ph, M.B.A. Executive Director Texas State Board of Pharmacy Effective date: June 20, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 632-0661 22 TAC sec.291.34, sec.291.36 The Texas State Board of Pharmacy adopts amendments to sec.291.34 and sec.291.36 concerning Records in a Community Pharmacy (Class A) and Class A Pharmacies Compounding Sterile Pharmaceuticals without changes to the proposed text as published in the March 17, 1995, issue of the Texas Register (20 TexReg 1849). The amendments specify the procedures for pharmacists to follow when dispensing an emergency refill of a prescription and specify that a pharmacist may not refuse to transfer a prescription to another pharmacy when requested to do so by the patient. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Pharmacy Act (Article 4542a-1, Texas Civil Statutes): sec.4 which specifies that the purpose of the Act is to protect the public through the effective control and regulation of the practice of pharmacy; sec.16(a) which gives the Board the authority to adopt rules for the proper administration and enforcement of the Act; sec.17(b)(2) and (3) which gives the Board the authority to specify minimum standards for drug storage, maintenance of prescription drug records and procedures for the delivery, dispensing in a suitable container appropriately labeled, providing of prescription drugs or devices, monitoring of drug therapy, and counseling of patients on proper use of prescription drugs and devices within the practice of pharmacy; and sec.40B which establishes the emergency refill. 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 May 30, 1995. TRD-9506516 Fred S. Brinkley, Jr., R.Ph, M.B.A. Executive Director/Secretary Texas State Board of Pharmacy Effective date: June 20, 1995 Proposal publication date: March 17, 1995 For further information, please call: (512) 632-0661 Part XVI. Texas Board of Physical Therapy Examiners Chapter 329. Licensing Procedure 22 TAC sec.329.6 The Texas Board of Physical Therapy Examiners adopts an amendment to sec.329.6, concerning Licensure of Persons Currently Licensed in Other States, the District of Columbia, or Territories of the United States, without changes to the proposed text as published in the March 31, 1995, issue of the Texas Register (20 TexReg 2377). This section is being amended to clarify what is required of an applicant licensed in another state, the District of Columbia or territories of the United States to obtain a license to practice physical therapy in Texas. This section requires all applicants to provide evidence to the board that they have completed an accredited program or equivalent program in physical therapy education. No comments were received regarding adoption of the amendment. The rule is adopted under the Physical Therapy Practice Act, TCS, Article 4512e, which provides the Texas Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on May 30, 1995. TRD-9506518 John P. Maline Executive Director Texas Board of Physical Therapy Examiners Effective date: June 20, 1995 Proposal publication date: March 31, 1995 For further information, please call: (512) 443-8202 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 7. Bridge Division Drainage Facilities 43 TAC sec.7.31 The Texas Department of Transportation permanently adopts the repeal of sec.7.31, concerning drainage channels, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1634). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.7.31 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506473 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Chapter 11. Design Local Governmental Units 43 TAC sec.11.41 The Texas Department of Transportation permanently adopts the repeal of sec.11.41, concerning responsibilities of local governmental units in construction, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1634). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.11.41 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506474 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Freeway Mainlanes 43 TAC sec.11.71 The Texas Department of Transportation permanently adopts the repeal of sec.11.71, concerning control of Access on freeway mainlanes, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1635). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15. 54 concerning federal, state, and local participation, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.11.71 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506475 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Chapter 15. Transportation Planning and Programming Transportation Planning 43 TAC sec.15.3 The Texas Department of Transportation permanently adopts the repeal of sec.15.3, concerning federal aid urban system, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1635). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.15.3 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506476 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Federal, State, and Local Participation 43 TAC sec.sec.15.50-15.54 The Texas Department of Transportation adopts new sec. sec.15.50-15.54, concerning federal, state and local participation, with changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1636). The new sections replace existing sec.7.31 concerning drainage channels, sec.11.41 concerning responsibilities of local governmental units in construction, sec.11.71 concerning control of access on freeway mainlanes, sec.15.3 concerning federal aid urban system, and sec.sec.19.1-19.31 concerning secondary roads which are simultaneously being repealed. These new sections are necessary to update the applicable rules to carry out the provisions of state and federal laws and regulations pertaining to funding of construction projects. The new sections define and establish participation ratios of governmental units in the development of construction projects to be used as the basis of agreement between the department and the local unit of government. The sections increase the department's assistance to the local unit of government in the development of certain projects by increasing state participation in: procurement of right of way on existing farm to market roads to expedite the accomplishment of needed safety improvements and make consistent participation with that of other state road systems for right of way; reconstruction and restoration of urban streets; and engineering and construction costs associated with upgrading bridge structures off the state highway system for needed safety improvements and to upgrade to current design standards. Section 15.50 describes federal, state, and local financing arrangements to provide for the construction, maintenance, and operation of the transportation system. Section 15.51 furnishes definitions. Section 15.52 defines the responsibilities of local governments for preliminary engineering and construction engineering expenses associated with the development of construction projects; establishes the amount of the state, local, and federal participation in preliminary and construction engineering expenses; and specifies the requirement of an agreement between the department and the local unit of government when the local unit of government is responsible for providing funds for a proposed project. Section 15.53 describes the conditions under which state, federal, and local financing of transportation project construction costs are to be shared in a construction project and establishes the amount of the state, local, and federal participation in construction expenses; specifies that the local unit of government shall be responsible for the total cost of non-federal-aid eligible construction in federal-aid contracts off the state highway system; specifies the requirement of an agreement with the local unit of government outlining construction responsibilities; establishes the criteria for the department to provide for sidewalk construction on the designated state highway system; establishes the criteria for construction of frontage roads and the construction costs responsibilities; and describes the responsibilities of the department and local unit of government in the construction of a drainage system within the state highway right-of-way and their respective costs responsibilities. Section 15.54 specifies the federal, state, and local cost participation ratios for the various types of projects on the state highway system in the form of a chart which includes increased state participation with local units of government in: right of way procurement for certain projects on the existing farm to market road system; project engineering and construction costs for certain reconstruction and restoration projects on urban streets; and engineering and construction costs for upgrading bridge structures off the state highway system. On March 22, 1995, the department conducted a public hearing on the proposed adoption of sec.sec.15.50-15.54 and oral or written comments were received. The City of San Antonio, the City of Kirby, and the San Antonio Metropolitan Planning Organization commented against the proposed rules. Many commenters (one representing the city of San Antonio, two representing the Bexar County Metropolitan Planning Organization, two representing the city of Kirby, one representing the Council of Mayors of Windcrest, Kirby, Schertz, and Live Oak, and one representative from each of the following cities: Windcrest, Live Oak, Universal City, Schertz, Balcones Heights, Converse, Castle Hills and Hill Country Village) expressed concern about the modification of the department's previous policy for local participation in highway improvement projects. The commenters stated that the department should allow cities with populations less than 50,000 to be exempt from 20% matching construction funding for projects for local streets which materially aid traffic operation on the state system. Of the commenters, several commenters representing suburban municipalities with less than 50,000 in population stated that the local share for funding local arterial street improvements was beyond their economic resources. They noted that critical arterial projects in suburban municipalities would not be planned and implemented, resulting in more traffic congestion, delays, wasted fuel, and air pollution. The commission recognizes a genuine need on the part of a local unit of government responding with a financial commitment to highway improvement projects. This commitment on the part of a local unit of government establishes a partnership between federal, state, and local governments that embraces the intent of the Intermodal Surface Transportation Efficiency Act of 1991. In this way, the partnership can identify and expedite the development of mutually beneficial and priority projects by maximizing the use of local, state, and federal funding. Conversely, the commission recognizes the unique challenges associated with meeting public road and bridge needs with scarce fiscal resources. This challenge faces governmental units at all levels with responsibility for construction of public roads and bridges. While the commission's previous policy encouraged the improvement of arterial streets under the jurisdiction of municipalities if the improvement would benefit the state system by improving traffic flow in the corridor, the commission has determined that to maintain the program without additional fiscal commitment from the local partnership would preclude the department from addressing future highway system needs across the state. The department will continue to honor all current project agreements under the prior commission policy concerning local participation. It should be noted that without the contribution of federal or state funds of 80% as provided in sec.15.54, the local entity would otherwise have to fund all of the cost of the improvement to its facility instead of the proposed 20%. A commenter representing Bexar County expressed concern over increased cost associated with the local purchase of additional right-of-way and utility adjustments on farm to market roads. The commenter noted that future land development significantly inflates costs such that the 10% requirement for local participation related to right-of-way and utility adjustments costs are not able to be borne by the county. The commission understands this commenter's concern about increased costs in not only this area but all areas of road and bridge improvement. In addition, since the farm to market road system has a significant number of roadways and bridges that were constructed over the past thirty years, significant costs are encountered when traffic demands and accident rates require the reconstruction of these facilities to current design standards. It should be noted that current policy requires the local unit of government to fund 100% of the cost of right- of-way and utility adjustments for farm to market road system improvement projects. Under sec.15.54, the state will be funding 90% of these costs, leaving a local responsibility to fund the remaining 10%. This increase in state funding responsibility will significantly assist local units of government in addressing state highway system needs in their locality. The commission has determined that to fund 100% of the future right-of-way and utility costs would preclude the department from addressing other future highway system needs across the state. A commenter representing the City of Schertz expressed concern over the increased cost of local government participation in future continuous lighting systems on the state highway system. This reference in sec.15.53(h) constitutes no change to the current policy or cost for continuous lighting systems. The purpose of this subsection is to place the percentage of required matching funds into Appendix A of sec.15.54 for ease of reference and to cross-reference sec.25.5 of this title (relating to Installation, Operation, and Maintenance of Traffic Signals) and sec.25.11 of this title (relating to Continuous and Safety Lighting Systems). The local participation policy for traffic signals for highways in areas with populations less than 50,000, or freeways in nonurban areas, was inadvertently omitted in proposed Appendix A to sec.15.54. This participation requirement has not been changed from current policy, but the requirement has been added to the Appendix for clarification purposes. A local unit of government participating in a traffic signal project under the above noted criteria is required to fund in 10% of the cost of right of way and utility relocation costs. The remaining 90% is funded by the state. The new sections are adopted 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 department and Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain the state highway system. sec.15.50. Purpose. This undesignated head describes federal, state, and local responsibilities for cost participation in the construction of the state highway system. sec.15.51. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Added capacity -An increase in the carrying capacity of a segment of the state highway system, including the addition of new travel lanes (other than high occupancy vehicle lanes or auxiliary lanes). Congestion Mitigation and Air Quality Improvement Program (CMAQ)-A federal program, established and administered in accordance with 23 United States Code sec.104 and federal regulations, which provides federal funds for a project in a non-attainment area that contributes to the attainment of a natural ambient air quality standard or will have certified benefits to air quality. Construction engineering cost/expenses-Engineering or project administration costs and expenses identified with a construction project after contract letting. Construction cost -Costs associated with the work required to construct a project in accordance with approved plans and specifications, including the furnishing of all labor, materials, equipment, and other incidentals necessary for the successful completion of the project, and the carrying out of all duties and obligations imposed by the plans and specifications. Farm and Ranch to Market (FM/RM) System Route-A system of roads designated by the commission under Texas Civil Statutes, Articles 6665, 6670, and 6673c. Federal funds-Monies provided from federal agencies as match financing for expenditure on state and local transportation projects developed and approved in accordance with federal law and regulations. Interstate Maintenance Program (IM)-A federal program which provides federal funding to reconstruct, rehabilitate, or maintain a portion of the Interstate Highway System; criteria for eligible projects in this program are set forth in federal law and regulations. Local funds-Monies provided by local units of government to participate in costs associated with project development. Local unit of government-Any county, city, or other political subdivision of this state that has the authority to finance the construction, maintenance, or operation of a segment of the state highway system. Matching funds/participation ratio-Those portions of funds required or chargeable for the contribution toward a project's cost by a government entity. Metropolitan planning organization (MPO)-An organization designated in certain urbanized areas to carry out the transportation planning process as required by 23 United States Code sec.134. National Highway System (NHS)-A part of the National Intermodal Transportation System consisting of the National System of Interstate and Defense Highways and those principal arterial roads which are essential for interstate and regional commerce and travel, national defense, intermodal transfer facilities, and international commerce and border crossings as designated by the United States Congress by criteria set forth in federal law. National System of Interstate and Defense Highways (Interstate Highway System) -A system of roads and bridges that constitute a part of the National Highway System designated by the United States Congress as essential for interstate and regional commerce and travel, national defense, intermodal transfer facilities, and international commerce and border crossings. New construction (I)-Activities authorized for the completion of the originally designated Interstate Highway System. New route-Activities related to an existing roadway or new location not previously designated on the state highway system. Off-State Highway System Bridge Program-A federally mandated program by which federal funds are made available on a discretionary basis to replace or rehabilitate bridges under the jurisdiction of a local government and not on the state highway system, administered in accordance with criteria set forth under federal law and regulations and state law, safety standards, design standards, and construction standards. Off-state highway system routes-Those routes not designated on the state highway system which are the responsibility of local units of government. Off-State Highway System Safety Program-A federally mandated program by which federal funds are made available to local units of government for safety improvements in accordance with criteria set forth under federal law and regulations. On-State Highway System Bridge Program-A federally mandated program by which federal funds are made available on a discretionary basis to replace or rehabilitate the state's bridges in accordance with criteria set forth under federal law and regulations. On-State Highway System Safety Program-A federally mandated program by which federal funds are made available to states for safety improvements in accordance with criteria set forth under federal law and regulations. Principal Arterial Street System (PASS) Program -A commission approved program to improve urban arterial streets designated on this system to relieve major traffic corridors and enhance total system operations in urban areas over 200,000 in population. Preliminary engineering cost/expenses-Those engineering or project administration costs or expenses identified prior to the construction of a project. Reconstruction-The primary activities involving the rebuilding of a segment of the state highway system along existing routes as well as those associated with the acquisition of rights- 27>of-way where necessary to upgrade to current standards. Rehabilitation-The primary activities to restore, or re-establish in good condition, a segment of the state highway system (not including the construction of additional travel lanes, other than high occupancy vehicle lanes or auxiliary lanes). Right of way costs-Costs attributable to the purchase of land or an interest in land (including access rights to abutting properties and usually including eligible utility relocation/adjustment costs). Right of way procurement-That process identified with the acquisition of real property, access rights, mineral rights, and easements permitted in accordance with state law for the construction of approved projects. State funds-Those monies received by the state, other than federal funds, to be expended for the improvement of the state highway system. State highway system-The system of highways in the state included in a comprehensive plan prepared by the department's executive director under the direction and with the approval of the commission in accordance with Texas Civil Statutes, Article 6674b. State highway system routes-Those state numbered routes designated as a part of the state highway system. State Park Road Program-A state program by which state funds are utilized to construct roads to public parks administered by the Texas Parks and Wildlife Department or other qualified state agencies. Surface Transportation Program (STP)-A federal-aid program where states may obligate federal match funds to projects related to certain public roads, in accordance with the criteria established in federal law and regulations. Transportation Enhancement Program-A federally mandated program identified in sec. sec.11.200 et seq of this title (relating to Statewide Transportation Enhancement Program), providing federal funding for activities that enhance the intermodal transportation systems and facilities within the state for the enjoyment of the users of those systems. Transportation Improvement Program (TIP)-A transportation program cooperatively developed with metropolitan planning organizations which includes improvement projects proposed for federal funding in accordance with the criteria set forth in federal law and federal regulations. Urban Road System -A commission designated system of routes that consist of the continuation of Farm to Market Roads in urban areas over 50,000 in population. United States (US) System Route-Those routes designated on the state highway system as U.S. highways subject to eligibility for federal aid funds as set forth in federal law and regulations. Urban Streets Program-A state program of projects on certain urban streets developed and constructed in accordance with state law, and safety, design, and construction standards. Urbanized area -As defined in 23 United States Code sec.101, an area with a population of 50,000 or more designated by the United States Bureau of Census, within boundaries to be fixed by responsible state and local officials in cooperation with each other, and subject to the approval of the United States Secretary of Transportation. Utility relocation/adjustment costs-Costs of work related to the adjustment, relocation, and removal of utility facilities on a segment of the state highway system accomplished in accordance with sec.21.21 of this title (relating to State Participation in Relocation, Adjustment, and/or Removal) and sec. sec.21.31-21.55 of this title (relating to Utility Accommodation). sec.15.52. Preliminary and Construction Engineering Expenses. (a) Purpose. This section defines the responsibility of local governments for preliminary engineering and construction engineering expenses associated with the development of projects for the construction and reconstruction of a segment of the state highway system. (b) Funding. Preliminary and construction engineering expenses may be funded by the commission at the entire expense of the state, with local participation, and/or with federal participation, as shown in Appendix A of sec.15.54 of this title (relating to Construction Cost Participation), and in accordance with criteria set forth by federal law and regulations. (c) Agreement. If the local unit of government is responsible for providing funds for a proposed project, an agreement between the department and the local unit of government shall be executed with the following provisions. (1) The local unit of government, if owners of the site, will permit the department or its contracted consultant and the department's contractor access to perform all engineering, surveying, and construction activities required to execute the work. (2) The local unit of government will provide all necessary right of way and utility adjustments, whether publicly or privately owned, in accordance with Appendix A of sec.15.54 of this title (relating to Construction Cost Participation). Existing utilities will be adjusted with respect to location and type of installation in accordance with the requirements of the department as specified in sec.21.21 of this title (relating to State Participation in Relocation, Adjustment, and/or Removal) and sec.sec.21.31-21.55 of this title (relating to Utility Accommodation). (3) The local unit of government will pay its part of the actual construction cost of the project, including preliminary engineering and construction engineering as shown in Appendix A of sec.15.54 of this title (relating to Construction Cost Participation), plus that portion of the cost of the project not reimbursable by the Federal Highway Administration. This amount shall include compensation to the state for work performed under this agreement based upon direct labor, equipment, material and other direct expenditures; and indirect costs at the rates in effect for the fiscal years during which the work is accomplished. The indirect cost rate will be based on the department's Indirect Cost Recovery Plan. (4) Following execution of the agreement, the local unit of government will pay its obligatory portion of the estimated cost of preliminary engineering for the construction project plus the estimated indirect costs to the department for performance of that service. Prior to the department's scheduled date for the contract letting, the local unit of government will remit to the department an amount equal to the remainder of the local unit of government's obligatory participation in the project including indirect costs on that remaining participation. If, at any time during plan development or construction of the project, it is found that the amount received is insufficient to pay the local unit of government's obligation, then the department shall immediately notify the local unit of government which shall promptly transmit the required amount to the department. After the project is completed, the actual cost will be determined by the department, based on its standard accounting procedures, and any excess funds paid by the local unit of government shall be returned. (5) If, after execution of the agreement, the local unit of government elects to terminate the project, the local unit of government shall be responsible for those expenses incurred by the state which are attributable to the project. (6) As part of preliminary and construction engineering, the department will prepare or provide for the construction plans, advertise for bids, and let the construction contract, or otherwise provide for the construction, and will supervise the construction as required by the plans. It is mutually agreed that as the project is developed to the construction stage, both parties shall approve the plans by signature. (7) In the event the terms of the agreement are in conflict with the provisions of any other existing agreements between the local unit of government and the department, the latest agreement shall take precedence over the other agreements. (8) Upon completion of the project, maintenance of the facility shall be as outlined in an approved maintenance agreement. (9) The local unit of government must acknowledge that while not an agent, servant, nor employee of the state, it is responsible for its own acts and deeds and for those of its agents or employees during the performance of the work authorized in the contract. sec.15.53. Construction. (a) Purpose. This section describes the conditions under which state, federal, and local financing of transportation project construction costs are to be shared in implementing improvements to the state highway system. As described in Appendix A of sec.15.54 of this title (relating to Construction Cost Participation), construction costs may be funded by the commission at the entire expense of the state, with local participation, and/or with federal participation, and in accordance with criteria set forth by federal law and regulations. (b) Funding. The local unit of government shall be responsible for providing matching funds as identified in Appendix A of sec.15.54 of this title (relating to Construction Cost Participation), and for the total cost of all nonfederal- aid construction included in federal-aid contracts off the state highway system. (c) Agreement. The department will enter into an agreement with the local unit of government outlining construction responsibilities when the local unit of government is responsible for a portion of the funding. (d) Local obligations. The local unit of government usually discharges its obligations through inclusion of such work in the state's contract with participation in costs established by the agreement. (e) Sidewalks. The department will also provide for sidewalk construction on the designated state highway system routes under the following conditions: (1) when replacing existing sidewalk; (2) where highway construction severs an existing sidewalk system, the state will make connections within highway right of way to restore sidewalk system continuity; (3) all sidewalk construction will be accomplished in accordance with the requirements of the Americans with Disabilities Act; and (4) where pedestrian traffic is causing or is expected to cause a safety conflict, sidewalks may be provided by the state. (f) Control of Access on Freeway Mainlanes. (1) For facilities with full control of access, such as interstate highways or freeways developed by commission designation pursuant to Texas Civil Statutes, Articles 6674w et seq., access to the main travel lanes is fully controlled through designation, purchase of access rights, or provision of frontage roads. (2) The department includes frontage roads in the planning stage of highways with full access control when: (A) it is necessary to unlandlock the remainder of a parcel of land which has a value equal to or nearly equal to the cost of the frontage road; (B) the appraised damages, resulting from the absence of frontage roads at the time of planning, would exceed the cost of the frontage roads; or (C) it is necessary to restore circulation of local traffic due to local roads or streets being severed or seriously impaired by the construction of the controlled access highway, and an economic analysis shows the benefits derived more than offset the costs of constructing and maintaining the frontage roads. (3) In those instances where requests for additional frontage roads are received during or subsequent to the planning stage or after the freeway has been constructed, they may be considered and placed in order of priority of highway needs. (A) When right of way and utility adjustment costs are shared with a local government on a standard participation basis applicable to the highway designation, the department may assume 100% responsibility for additional frontage road construction as follows: (i) on relatively short sections of frontage roads where through lane traffic is experiencing high accident rates due to local access and where such construction can be expected to substantially improve safety; or (ii) in heavily traveled urban corridors where gaps occur in the existing frontage systems and closing these frontage road gaps will restore system continuity and provide a cost-effective method of enhancing traffic operations in the corridor. (B) The department may assist a requesting local government in the construction of additional frontage roads as follows: (i) where a usable section of frontage road that will be of benefit to the traveling public is to be developed (usable section being defined as an addition or extension from a cross road separation to cross road separation or connecting to a public roadway or major traffic generator); (ii) where such frontage road construction is judged to not adversely impact existing traffic operations or safety; (iii) where the department is responsible for design and construction of the added frontage roads; or (iv) except as provided in subparagraph (E) of this paragraph, when the requesting local government furnishes 100% of needed right of way and utility adjustment costs and 50% of the cost of construction, including preliminary and construction engineering. (C) The department may approve additional frontage road construction, which is 100% funded by the requesting local government, as follows: (i) if the frontage road construction primarily provides new or improved access to abutting property and does not necessarily provide a usable section as defined in subparagraph (B)(i) of this paragraph (this type of additions would provide limited benefits to the general traveling public); and (ii) except as provided in subparagraph (E) of this paragraph, where the department is responsible for design and construction and the requesting local government is responsible for 100% construction, right of way and utility adjustment costs including preliminary and construction engineering. (D) Where right of way costs are 100% the responsibility of the requesting local unit of government, the costs of relocation assistance benefits will also be 100% the responsibility of the local unit of government; however, the department shall handle all relocation actions exclusive of monetary payments to insure compliance with departmental policies and procedures. (E) The department may waive any one or more of the cost conditions stated in subparagraphs (B)(iv) and (C)(ii) of this paragraph, provided that the waiver is first approved by written order of the commission. In approving a waiver, the commission will base its decision on consideration of the population level, bonded indebtedness, tax base, and tax rate of the local government involved. (4) For additional frontage roads requested subsequent to the planning stage or after the freeway has been constructed, control of access as originally conceived for the facility may be modified to allow access to the proposed frontage road only to the extent as may be permitted by safety considerations and in keeping with departmental policies and procedures. The sale or disposal of access rights shall be accomplished in accordance with sec.sec.21.101-21.104 (relating to Disposal of Real Estate Interests). (5) Access driveway facilities shall be for securing access to abutting property. Costs and provision thereof shall be in accordance with the criteria and responsibilities established in sec.sec.11.51-11.53 of this title (relating to Access Driveways to State Highways). (g) Drainage Construction Costs. (1) In general, it shall be the duty and responsibility of the department to construct, at its expense, a drainage system within state highway right of way, including outfalls, to accommodate the storm water which originates within and reaches state highway right of way from naturally contributing drainage areas. (2) Where a drainage channel, man-made, natural, or a combination of both, is in existence prior to the acquisition of highway right of way, including right of way for widening the highway, it shall be the duty and responsibility of the department to provide for the construction of the necessary structures and/or channels to adjust or relocate the existing drainage channel in such a manner that the operation of the drainage channel will not be injured. The construction expense required shall be considered a construction item. The acquisition of any land required to accomplish this work shall be considered a right of way item. (3) Where an existing highway crosses an existing drainage channel, and a political unit or subdivision with statutory responsibility for drainage develops a drainage channel to improve its operation, both upstream and downstream from the highway, and after the department establishes that the drainage plan is logical and beneficial to the state highway system, and there is no storm water being diverted to the highway location from an area which, prior to the drainage plan, did not contribute to the channel upstream of the highway, and after construction on the drainage channel has begun or there is sufficient evidence to insure that the drainage plan will be implemented, the department, at its expense, shall adjust the structure and/or channels within the existing highway right of way as necessary to accommodate the approved drainage plan. (4) Where a state highway is in existence, and there is a desire of others to cross the existing highway at a place where there is not an existing crossing for drainage, then those desiring to cross the highway must provide for the entire cost of the construction and maintenance of the facility which will serve their purpose while at the same time adequately serving the highway traffic. The design, construction, operation, and maintenance procedures for the facility within state highway right of way must be acceptable to the department. (5) In the event the local unit of government involved expresses a desire to join the department in the drainage system in order to divert drainage into the system, the local unit of government shall pay for the entire cost of collecting and carrying the diverted water to the state's system and shall contribute its proportional share of the cost of the system and outfall based on the cubic feet per second of additional water diverted to it when compared to the total cubic feet per second of water to be carried by the system. The local unit of government requesting the drainage diversion shall indemnify the state against damages or claims for damages resulting from such diversion. (h) Continuous and safety lighting systems and traffic signals. For the installation, maintenance, and operation of continuous and safety lighting systems and traffic signals, the local unit of government shall be responsible for providing matching funds as identified in Appendix A of sec.15.54 of this title (relating to Construction Cost Participation). Such installation, maintenance, and operation shall be accomplished in accordance with sec.25.5 of this title (relating to Installation, Operation, and Maintenance of Traffic Signals) and sec.25.11 of this title (relating to Continuous and Safety Lighting Systems). sec.15.54. Construction Cost Participation. From available funds to the department, federal, state, and local cost participation for the various designations and categories of highways will be as described in Appendix A. Figure 1: 43 TAC sec.15.54 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 May 26, 1995. TRD-9506477 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 State Park Roads 43 TAC sec.15.60 The Texas Department of Transportation adopts new sec.15.60, concerning state park roads, with changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1640). The new sections replace existing sec.sec.19.1-19.31 concerning secondary roads which are simultaneously being adopted for repeal. Section 15.60 defines park roads on the state designated system and establishes criteria for development of new park roads on the state designated system; and describes the responsibilities of the department for design, construction, and maintenance of public roads within a state park. On March 22, 1995, the department conducted a public hearing on the proposed adoption of sec.15.60 and no oral or written comments were received. Section 15.60(b)(2) requires that all necessary right-of-way be furnished at no cost to the department. Prior to transfer of right-of-way, environmental reviews and associated environmental mitigation work must also be done. This paragraph has been changed for clarification purposes to provide that all environmental clearances and associated environmental mitigation work must be included at no cost to the department prior to transfer of right-of-way for construction of state park roads. The new section is adopted 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 department and Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain the state highway system. sec.15.60. State Park Roads. (a) Definition. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission-Texas Transportation Commission. (2) Department-Texas Department of Transportation. (3) State park-A park administered by the Texas Parks and Wildlife Department or other qualified state agency, and with title in the name of the State of Texas. (4) State park road-A public road within a state park, or a segment of the state highway system, designated by the commission as a state park road, which is located in or adjacent to a state park. (b) Upon request by a state agency or county government, the department may construct and maintain a designated park road connecting a state park to a segment of the state highway system if: (1) estimated traffic patterns justify the connection of such a facility; (2) all necessary environmental clearance, environmental mitigation, and right of way are furnished at no cost to the department; and (3) funds are available from a commission designated program. (c) In accordance with sec.1.02, House Bill 9, 72nd Legislature, First Called Session, for public roads located within a state park, the department will: (1) coordinate with appropriate state agencies having jurisdiction over state park properties for the design, construction, and maintenance of subject roads; (2) provide through memoranda of agreement with appropriate state agencies for the respective responsibilities in developing and completing state park road projects in accordance with state law; and (3) identify in such memoranda of agreement the costs/expenses associated with the respective activities of the parties involved and amend the agreement as appropriate on a five year basis unless the appropriate state agency with jurisdiction over the state park does not desire to extend the terms of the agreement. 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 May 26, 1995. TRD-9506478 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Chapter 19. Secondary Roads Division Farm and Ranch to Market Roads 43 TAC sec.19.1 The Texas Department of Transportation permanently adopts the repeal of sec.19.1, concerning route approval, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1641). The subject matter of the section adopted for repeal is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, and sec.15. 60 concerning state park roads, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.19.1 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506479 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Park Roads 43 TAC sec.19.11 The Texas Department of Transportation permanently adopts the repeal of sec.19.11, concerning construction, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1641). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, and sec.15.60 concerning state park roads, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.19.11 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506480 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Recreational Roads 43 TAC sec.19.21 The Texas Department of Transportation permanently adopts the repeal of sec.19.21, concerning route approval, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1641). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, and sec.15.60 concerning state park roads, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.19.21 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506481 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630 Off System Road Program 43 TAC sec.19.31 The Texas Department of Transportation permanently adopts the repeal of sec.19.31, concerning off system projects, without changes to the text as published in the March 7, 1995, issue of the Texas Register (20 TexReg 1641). The subject matter of the repealed section is reenacted in an amended form in Chapter 15, Transportation Planning and Programming, as new sec.sec.15.50-15.54 concerning federal, state, and local participation, and sec.15.60 concerning state park roads, which are being contemporaneously adopted. On March 22, 1995, the department conducted a public hearing on the proposed repeal of sec.19.31 and no oral or written comments were received. The repeal is adopted 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 Texas Civil Statutes, Articles 6674a, et seq, which authorize the department to construct and maintain 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 authority. Issued in Austin, Texas, on May 26, 1995. TRD-9506482 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: June 16, 1995 Proposal publication date: March 7, 1995 For further information, please call: (512) 463-8630