Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 1.
MANAGEMENT
Subchapter F. ADVISORY COMMITTEES
The Texas Department of Transportation adopts the repeal of §1.83
and §1.84, amendments to §1.82 and §1.85, and new §1.83
and §1.84, concerning advisory committees. The repeals, amendments and
new sections are adopted without changes to the proposed text as published
in the May 12, 2000, issue of the Texas Register (25 TexReg 4301) and will
not be republished.
EXPLANATION OF ADOPTED REPEALS, AMENDMENTS, AND NEW SECTIONS
Government Code, §2110.005, provides that a state agency that is advised
by an advisory committee shall adopt rules that state the purpose of the committee
and describe the task of the committee and the manner in which the committee
will report to the agency. Government Code, §2110.008, provides that
a state agency shall establish by rule a date on which the committee will
automatically be abolished unless the governing body of the agency affirmatively
votes to continue the committee in existence.
Sections 1.82 through 1.85 are reorganized to combine information pertaining
to particular advisory committees and to set forth applicable procedures more
clearly and comprehensively. After the amendments, §1.82 will deal exclusively
with procedural matters applicable to most or all statutory advisory committees, §1.83
will deal with rulemaking procedures applicable to most statutory advisory
committees, §1.84 will set forth matters pertaining to particular statutory
advisory committees, and §1.85 will set forth matters pertaining to departmental
advisory committees. Minor nonsubstantive changes have been made to correct
spelling, enhance clarity, and improve grammar.
Section 1.82(a) is amended to clarify that this general rule governs all
statutory advisory committees unless it is superceded by procedures applicable
only to a particular committee. The committee-specific procedures are set
forth in new §1.84.
Existing §1.82(b), pertaining to the membership of particular advisory
committees, is deleted because it is being reenacted as part of new §1.84.
New subsection (b) is added to clarify the general procedure relating to the
election of officers by a committee. Added language addresses the terms of
officers, specifies that there is no limit on reelection of officers, and
provides that members continue to serve until their replacements are appointed.
These additional provisions are intended to reduce the possibility of confusion
in the event of a future dispute within an advisory committee.
Section 1.82(c)(2) is amended to clarify procedures generally followed
in setting meetings and compiling an agenda. Under the amendment, the department
office designated as liaison with the committee sets meeting dates and prepares
the agenda. Any committee member may suggest the need for a meeting or an
agenda item. This reflects the current practice for most statutory advisory
committees. It is also necessary as a practical matter because the infrequency
of meetings for most committees and the requirements of the Texas Open Meetings
Act effectively preclude most committees from undertaking these functions
themselves. The liaison office is assigned the responsibility of giving notice
of meetings and sending out the agenda to relieve the committee chair of this
essentially ministerial function, and notice need no longer be given formally
to the executive director, since the liaison office can informally provide
notice if it is necessary. The reference to "regular" meetings is deleted
because there is no provision for any other type of meeting.
Section 1.82(c)(3) is amended to clarify that the chairman is included
in determining whether a quorum is present. This is consistent with current
practice under existing §1.82(c)(5), under which the chairman is permitted
to vote.
Section 1.82(c)(4) is amended to specify that a committee member may be
removed by the person or entity that appointed the member. This provision
is found in the statutes governing several committees and is made generally
applicable to all advisory committees for the sake of consistency and to reduce
the likelihood of a dispute if a committee member is removed.
Section 1.82(c)(5) is amended to correct a spelling error and to clarify
that the rules and statutes supercede Robert's Rules of Order.
Section 1.82(c)(7) is amended to clarify that while advisory committee
records are generally subject to the state Public Information Act, in particular
cases records may be withheld under the Act's exceptions.
New §1.82(i) is added to provide a single reference to the statutorily
required expiration date for statutory advisory committees. This new reference
eliminates the need to include the same information with regard to each individual
committee referenced in §1.84. This section also affirmatively continues
each statutory advisory committee in existence by extending the expiration
dates from September 1, 2001, to December 31, 2001. These committees have
not yet finished their tasks. In addition, each statutory advisory committee
continues to provide a valuable service in furnishing the commission with
necessary advice regarding matters relating to its areas of expertise. The
extension of the expiration dates provides additional time for the passage
of new rules, if necessary, after the end of the next legislative session.
Existing §1.83 is repealed. This repeal is nonsubstantive, and the
same provisions are reenacted, with the amendments noted below, as new §1.84.
The renumbering allows procedural sections to be grouped together and sections
dealing with particular committees to be grouped together.
Existing §1.84 is repealed. This repeal is nonsubstantive, and the
same provisions are reenacted, with the amendments noted below, as new §1.83.
The renumbering allows procedural sections to be grouped together and sections
dealing with particular committees to be grouped together.
New §1.83(b)(2) and §1.83(c) now clarify that the department
ordinarily schedules advisory committee meetings. This change is consistent
with the one set forth in §1.82(c)(2) and conforms to current practice
for most advisory committees. Particular advisory committees may be subject
to different procedures, which are set forth in new §1.84.
Existing §1.84(a)(5), §1.84(b)(5), §1.84(c)(5), §1.84(d)(5),
and §1.84(e)(6) are deleted. These provisions established the expiration
date for each statutory advisory committee, and this information has now been
combined in new §1.82(i).
New §1.84(a)(2) now includes membership information for the Aviation
Advisory Committee. This language is taken directly from existing §1.82(b)(1).
In addition, language from Transportation Code, §21.003 is added to specify
the legal requirements for advisory committee membership. New §1.84(a)(3)-(5)
have been renumbered accordingly.
New §1.84(a)(5) provides that §1.83 does not apply to the Aviation
Advisory Committee. This permits the Aviation Advisory Committee, at the request
of the Aviation Division Director, to comment on proposed rules more flexibly,
and it permits the department to publish rules relating to aviation issues
without formally seeking the opinion of the Aviation Advisory Committee before
the rules are published.
New §1.84(b) updates the legal citations throughout the section.
New §1.84(b)(2) now includes membership information for the Household
Goods Carriers Advisory Committee. This language is taken directly from existing §1.82(b)(2).
In addition, the new section now provides that the executive director or the
executive director's designee appoints members, rather than the assistant
executive director for motorist services, a position that no longer exists.
New §1.84(b)(3)-(6) have been renumbered accordingly.
New §1.84(c)(2) now includes membership information for the Public
Transportation Advisory Committee. This language is taken directly from existing
Section 1.82(b)(3). New §1.84(b)(3)-(6) have been renumbered accordingly.
New §1.84(c)(4) now clarifies that the committee shall meet at least
quarterly. This requirement is contained in Transportation Code, §455.004(d).
New §1.84(d) updates the legal citations throughout the section.
New §1.84(d)(2) now includes membership information for the Vehicle
Storage Facility/Tow Truck Rules Advisory Committee. This language is taken
directly from existing §1.82(b)(4). In addition, the new section now
provides that the executive director or the executive director's designee
appoints members, rather than the assistant executive director for motorist
services, a position that no longer exists. New §1.84(b)(3)-(5) have
been renumbered accordingly.
New §1.84(e)(2) now includes membership information for the Port Authority
Advisory Committee. This language is taken directly from existing §1.82(b)(5),
except that information regarding initial terms of members has been removed
as no longer relevant, the reference to the continued service of members until
a new appointment is made is now in new §1.82(b), and a reference to
the election of a vice-chair is added to reflect current practice. New §1.84(b)(3)-(5)
have been renumbered accordingly.
New §1.84(d)(3) now does not include a reference to the chair's right
to request that the department call a meeting. This matter is now addressed
in new §1.82(c)(2), which permits any member to request that a meeting
be called.
Amended §1.85 abolishes the Ad Hoc Transit Advisory Panels, Traffic
Records Council, Motor Transportation Advisory Committee, and Partners in
Texas Transportation Safety Committee.
The Ad Hoc Transit Advisory Panels are being abolished because the department
has developed more informal, successful ways to receive input from public
transportation providers and riders on single issues or programs.
The Traffic Records Council is being abolished because the department believes
that information sharing and coordination regarding traffic records may be
accomplished without a formal committee structure.
The Motor Transportation Advisory Committee is being abolished because
the department has developed more informal, successful ways to receive input
from and jointly work together with other state agencies, the trucking industry,
motor bus companies, and the public regarding the safe, effective, and efficient
movement of people and goods, and other common concerns.
The Partners in Texas Transportation Safety Committee is being abolished.
It was created as part of the federally-mandated safety management system.
The department has other ways to achieve the goals of identifying and evaluating
safety issues for consideration in transportation strategies, plans, and projects.
The amendments recreate the Intelligent Transportation Systems (ITS) Steering
Committees, the Statewide Transportation Policy Committee, and the Bicycle
Advisory Committee because these committees have not yet finished their tasks
and because experience has shown that these committees provide a valuable
service in furnishing the commission with necessary advice regarding matters
relating to their areas of expertise. In each case the termination date for
the committee is set as December 31, 2001, to provide additional time for
the passage of new rules, if necessary, after the end of the next legislative
session.
The Intelligent Transportation Systems (ITS) Steering Committees are continued
so the department may continue to seek input and cooperation from local stakeholders
such as city and county governments, emergency medical services providers,
and transit authorities during the development of ITS-related projects.
The Bicycle Advisory Committee is continued to ensure that the bicyclist's
perspective will be considered in the development of departmental policies
affecting bicycle use, including the design, construction, and maintenance
of highways. Existing §1.85(a)(8)(D), relating to the initial date on
which the committee was created, is repealed because it is no longer relevant,
and §1.85(a)(8)(E) has been redesignated as §1.85(a)(5)(D).
COMMENTS
Two written comments were received from the Calhoun County Navigation District
and its Port Director, Robert H. Van Borssum.
Comment: The first comment noted that §1.82(c)(4) permits removal
of an advisory committee member without cause by the person or entity that
appointed that particular member to the committee. The comment warns that
this could have a chilling effect on a committee member's willingness to take
independent positions and creates the possibility of patronage.
Response: The department disagrees with the comment. First, some advisory
committees already incorporate an equivalent provision in their statutory
authority. For example, Transportation Code, §53.001 provides that the
members of the Port Authority Advisory Committee are appointed by the Transportation
Commission and serve at the pleasure of the Transportation Commission. Second,
an advisory committee, by its nature, is not an entity with independent responsibilities
and powers, but is rather an extension of the entity that receives its advice
and decides whether to act on it. Thus, an advisory committee and its members
can never be, and should never be, entirely independent. Third, the ability
to remove members appears no more likely to lead to patronage than the ability
to appoint them in the first place.
Comment: The second comment was that §1.84(e)(5)(B) should be altered
to provide that a subcommittee of the Port Authority Advisory Committee must
report its findings to the committee as a whole and not merely to the chairman.
The proposal is said to foster open discussion of issues and to be more appropriate
because subcommittees are appointed by the committee as a whole, and not just
by the chair.
Response: The department disagrees with the comment. The provision in question
was renumbered and readopted without substantive change. The proposed change
is unnecessary because the reporting of the subcommittee to the chair is merely
a matter of administrative convenience and is substantively the same as reporting
to the committee as a whole, since the chair has no independent authority
to act on the report. The provision does not contemplate that the chair would
or could prevent the report from being discussed by the committee as a whole.
43 TAC §§1.82- 1.85
STATUTORY AUTHORITY
The repeals, amendments, and new sections are adopted under Transportation
Code, §201.101, which provides the Texas Transportation Commission with
the authority to establish rules for the conduct of the work of the Texas
Department of Transportation. In addition, the repeals, amendments, and new
sections are adopted under Government Code, Chapter 2110, which provides that
a state agency that is advised by an advisory committee shall adopt rules
that state the purpose of the committee, describe the task of the committee,
state the manner in which the committee will report to the agency, and establish
a date on which the committee is abolished unless the governing body of the
agency affirmatively votes to continue the committee in existence. The repeals,
amendments, and new sections are also adopted under statutory sections authorizing
the adoption of rules with respect to particular advisory committees, including
Transportation Code, §21.003(c) (Aviation Advisory Committee), §643.155(b)
(Household Goods Carriers Advisory Committee), §455.004(e) (Public Transportation
Advisory Committee), §643.202(d) (Vehicle Storage Facility/Tow Truck
Rules Advisory Committee), and §53.001(e) (Port Authority Advisory Committee).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004586
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: May 12, 2000
For further information, please call: (512) 463-8630
43 TAC §1.83, §1.84
STATUTORY AUTHORITY
The repeals are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
In addition, the repeals, are adopted under Government Code, Chapter 2110,
which provides that a state agency that is advised by an advisory committee
shall adopt rules that state the purpose of the committee, describe the task
of the committee, state the manner in which the committee will report to the
agency, and establish a date on which the committee is abolished unless the
governing body of the agency affirmatively votes to continue the committee
in existence. The repeals are also adopted under statutory sections authorizing
the adoption of rules with respect to particular advisory committees, including
Transportation Code, §21.003(c) (Aviation Advisory Committee), §643.155(b)
(Household Goods Carriers Advisory Committee), §455.004(e) (Public Transportation
Advisory Committee), §643.202(d) (Vehicle Storage Facility/Tow Truck
Rules Advisory Committee), and §53.001(e) (Port Authority Advisory Committee).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 3, 2000.
TRD-200004585
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: May 12, 2000
For further information, please call: (512) 463-8630
Subchapter B. ACCESS TO OFFICIAL RECORDS
43 TAC §§3.11 - 3.14
The Texas Department of Transportation adopts amendments
to §§3.11-3.14, concerning access to official records. The amendments
are adopted without changes to the proposed text as published in the April
14, 2000, issue of the Texas Register (25 TexReg 3183) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Senate Bill 1851, 76th Legislature, 1999, amended the Public Information
Act, Government Code, Chapter 522. These changes included requiring a showing
of substantial competitive harm before sensitive commercial information can
be withheld, permitting the department to elect not to provide documents in
response to repetitive or redundant requests, expanding the department's ability
to recover personnel and overhead charges connected with the provision of
information, and requiring itemized statements of estimated charges if expected
charges are more than $40.
The amendments to §3.11 clarify wording and bring it closer to the
words of the corresponding statutes.
Section 3.12(a)(2) is amended to require that the requestor provide a preferred
mailing, facsimile, or electronic mail address to which an itemized cost statement
can be sent. This amendment implements the legislative directive contained
in Government Code, §552.2615.
The amendments to §3.12 also remove subsection (a)(3)(C), which specified
the form of payments for vehicle title and registration information. The form
of payments to the department is now addressed more comprehensively in new
43 TAC §§5.41-5.44 as adopted and published in the May 12, 2000,
issue of the Texas Register (25 TexReg 4354).
In addition, the amendments to §3.12 add a new subsection (f) to incorporate
standards adopted in S.B. 1851 for redundant and repetitious requests. The
new language essentially tracks the language of the statute except in subsection
(f)(5), which identifies the persons who will provide the necessary certification.
The persons identified are the persons responsible for receiving public information
requests under §3.12(a)(1)(A). Because of the addition of new subsection
(f), former subsections (f) and (g) are redesignated as new subsections (g)
and (h). In addition, amendments are made throughout §3.12 to clarify
wording and bring it closer to the words of the corresponding statutes.
The amendments to §3.13 incorporate standards adopted by S.B. 1851,
including advance estimates of copying charges, personnel and overhead costs,
and required deposits or bonds. In addition, amendments are made throughout §3.13
to clarify wording.
The amendments to §3.13(a) remove references to overhead and personnel
charges because these are addressed in subsection (b). The amendments to §3.13(a)
also remove references to costs for facsimile transmissions, which have been
eliminated from the most recent cost schedule published by the General Services
Commission at 1 TAC §111.63. The amendments to §3.13(a) also eliminate
specific costs for particular sizes of maps and replace the specific costs
with a reference to actual cost. Experience with this provision has shown
that the costs of these maps can vary over time to such an extent that it
is not feasible to detail those costs in rules. For maps and publications,
a telephone number has been added to make it easier for the public to obtain
cost information.
The amendments to §3.13(b) incorporate standards adopted in S.B. 1851
for personnel and overhead costs.
New §3.13(d) incorporates standards adopted in S.B. 1851 for providing
requestors with advance estimates of expected production and copying charges.
Former subsections (d) and (e) are redesignated as new subsections (e) and
(f). The amendments to §3.14 clarify wording and correct cross-citations
to other sections and laws.
The amendments to §3.14(a) delete the last sentence, which stated
without qualification that the department would not respond via the Internet
to a public information request or other request. Although the department
is not required to respond via the Internet under existing law, the department
may do so, at its option.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004587
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
Subchapter F. EMPLOYEE TRAINING AND EDUCATION
43 TAC §§4.61, 4.63, 4.64
The Texas Department of Transportation adopts amendments
to §4.61, §4.63, and §4.64, concerning the department's employee
training and education program. The amendments are adopted without changes
to the proposed text as published in the April 14, 2000, issue of the
EXPLANATION OF ADOPTED AMENDMENTS
Government Code, §656.048 requires state agencies to adopt rules relating
to the eligibility of the department's administrators and employees for training
and education supported by the state agencies and the obligations assumed
by the administrators and employees on receiving the training and education.
Government Code, Chapter 656, Subchapter D requires a state agency to adopt
a policy governing the training of employees, in addition to the rules required
by §656.048, that requires employee training to relate to an employee's
duties following the training. Training includes a course of study at an institution
of higher education if the employing state agency spends money to assist an
employee to meet the expense of the course of study, or pays salary to an
employee to undertake the course of study as an assigned duty.
Subchapter D, Chapter 656 requires an employee that receives training paid
for by a state agency, and who does not perform the employee's regular duties
for three or more months as a result of the training, to either work for the
agency following the training for at least one month for each month of the
training period, or pay the agency for all costs of training that were paid
by the agency, including any salary not accounted for as paid leave or compensatory
time.
The department is experiencing a shortage of employees in certain critical,
hard-to-fill job fields. Existing department employees may be able to supplement
the number of available candidates for these positions, provided those employees
are able to meet the minimum educational requirements. To obtain an adequate
number of employees in these hard-to-fill positions, the department has created
a Degree Completion Program.
Under the Degree Completion Program, regular, full-time employees may apply
to attend an institution of higher learning on a full-time basis to complete
42 credit hours or less necessary to complete the requirements for obtaining
a bachelor's degree in designated majors relating to hard-to-fill positions
that are deemed critical. Employees selected to participate in the program
may receive funds for tuition, required fees, books, and supplies, plus salary
compensation.
Section 4.61 is amended to add definitions for "good standing" and "regular
employee."
Section 4.63 is amended to describe the Degree Completion Program and to
make technical corrections. This section prescribes eligibility requirements
for the Degree Completion Program, and requirements for maintaining eligibility
in the program. Technical corrections include requiring degree plans in the
Educational Assistance Program and Degree Completion Program to be signed
by an institution's department chairman or the chairman's designee. It would
be more efficient for the chairman of the relevant department, rather than
the dean of the college of which the department is a part, to carry out this
function.
To ensure that the designated critical positions are filled quickly, the
Degree Completion Program is available only to those employees with 42 credit
hours or less remaining to complete degree requirements. Additionally, those
42 credit hours or less are required to be completed in no more than three
semesters, although an extension may be granted if the employee's approved
degree program requires additional time to complete. For example, an extension
may be needed if an employee is unable to attend classes during a particular
semester because of illness. To ensure that employees selected for participation
in the Degree Completion Program are good candidates for selection for the
designated positions, the employees must have at least 12 months of service
time with the department, be in good standing with the department, and be
regular full-time employees.
An employee's district engineer, division director, office director, or
member of the administration is required to reconsider the employee's participation
in the Degree Completion Program each semester. As part of this consideration,
the employee's course schedule must be reviewed to ensure that appropriate
electives are selected. A district engineer, division director, office director,
or member of the administration would be authorized to reject an employee's
choice of electives if a determination is made that the elective is not related
to the employee's duties. However, no substitutions could be required for
courses required by the college or university for degree completion. The foregoing
would comply with the requirements of Chapter 656, while at the same time
eliminating the use of state funds for inappropriate electives.
To recognize innovative methods of education, §4.63 is finally amended
to authorize an employee to take an Internet course if a course is not available
at a public or private institution in Texas as either a correspondence or
residence course.
When the department provides educational assistance to an employee who
receives a degree, it is more beneficial to the state for the department to
receive services from the employee utilizing that degree, rather than being
repaid for the assistance. Accordingly, §4.64 is amended to require a
work obligation of three years for employees receiving a degree in the Degree
Completion Program. Employees who fail to meet all conditions of employment
and eligibility are required to repay the department for all assistance received.
This will enable the department to be recompensed for the extensive assistance
provided to an employee in a degree program.
Similarly, and to be consistent with the administration of the other three
assistance programs, the department will cancel an employee's participation
in the Degree Completion Program and require the employee to repay all funds
associated with assistance received from the department, if the employee withdraws
from or no longer can attend the institution, fails to complete the degree
in three semesters (unless an extension is granted based on the approved degree
program), fails to comply with the education assistance agreement, or is terminated
from the department while participating in the program.
Costs associated with training that an employee may be required to repay
under Government Code, Chapter 656, Subchapter D include any amounts of an
employee's salary that were not accounted for as paid vacation or compensatory
leave. Section 4.64 is amended to specify that an employee whose participation
in the Degree Completion Program is cancelled by the department must repay
all funds associated with the assistance received, including any portion of
the employee's salary that was paid and not accounted for as paid vacation
or compensatory leave. An employee who is removed or withdraws from the Degree
Completion Program, separates from department employment while participating
in the program, or who completes their degree but fails to complete their
work obligation, is liable for repayment of all education assistance provided
by the department during the time spent in the program. For employees not
performing their regular duties for three or more months while participating
in the program, the repayment obligation includes salary not accounted for
as paid vacation or compensatory leave.
To treat all education programs consistently, §4.64 is also amended
to specify that an employee's participation in the Degree Completion Program
will be suspended if the employee is placed on disciplinary probation. Employees
participating in this program are also liable to the department for any necessary
expense incurred by the department in obtaining any required payment, including
attorney's fees.
Government Code, Chapter 656, Subchapter D provides that the governing
board of a state agency, by order adopted in a public meeting, may waive the
requirements relating to any work or repayment obligation, and may release
an employee from the obligation if the governing body finds that such action
is in the best interest of the agency or because of an extreme personal hardship
suffered by the employee. The obligations imposed by that subchapter apply
by their terms to employees participating in the Degree Completion Program.
Pursuant to those provisions, §4.64 is amended to authorize the executive
director to approve the deferral or extension of any prescribed repayment
period related to that program if the student demonstrates an inability to
pay due to hardship. The Texas Transportation Commission, by minute order,
may approve the reduction or cancellation of the debt or service requirements
of an employee participating in that program who departs the program to begin
work for another state agency, or who demonstrates an inability to pay or
complete the work obligation due to a hardship. Section 4.64 is finally amended
to make various technical corrections.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
More specifically, the amendments are proposed under Government Code, §656.048,
which requires state agencies to adopt rules relating to the eligibility of
the department's administrators and employees for training and education and
the obligations assumed by the administrators and employees on receiving the
training and education.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004588
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
Subchapter A. GENERAL
43 TAC §9.1
The Texas Department of Transportation adopts new §9.1
concerning claims for purchase contracts. The new section is adopted without
changes to the proposed text as published in the April 14, 2000, issue of
the Texas Register (25 TexReg 3194) and will not be republished.
EXPLANATION OF ADOPTED NEW SECTION
Government Code, Chapter 2260, provides a resolution process for certain
contract claims against the state. Chapter 2260 applies to purchase contracts
of the Texas Department of Transportation entered into under the State Purchasing
and General Services Act.
Subsection (a) states the purpose of the section, which is to implement
Government Code, Chapter 2260.
Subsection (b) defines terms used in the new section.
Subsection (c) provides that a vendor may file a notice of claim with the
director of contract services within 180 days after the date of the event
giving rise to the claim. The claim must contain the nature of the alleged
breach, the amount the vendor seeks as damages, and the legal theory of recovery.
Subsection (d) provides that the department will begin negotiations with
the vendor within 60 days of the later of: the date of the termination of
the contract; the completion date in the original contract; or the date the
claim is received. The subsection describes the informal process of negotiation.
The process is designed to expedite early resolution of claims.
Subsection (e) provides that the department will agree to nonbinding mediation
if the department determines that the mediation would speed resolution of
the claim or otherwise benefit the department. To limit expenses for both
parties and expedite resolution, the executive director will appoint a department
employee as mediator. If the vendor objects to the appointment of a department
employee, the department will select and hire a private mediator. The parties
will share the costs for the services of a private mediator.
Subsection (f) requires the department to make a final offer to the vendor
within 90 days of beginning negotiations. The vendor must advise the director
of contract services in writing within 20 days of the date of notice if the
offer is acceptable.
Subsection (g) authorizes a vendor to petition for an administrative hearing
if the vendor is dissatisfied with the disposition, or if the claim is not
resolved before the 90th day after negotiations begin.
COMMENTS
No comments were received on the proposed new section.
STATUTORY AUTHORITY
The new section is adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Government Code, Chapter 2260, which requires each
unit of state government to develop rules governing the negotiation and mediation
of a contract claim.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004589
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
The Texas Department of Transportation adopts the repeal of §§9.50-9.59
and new §§9.50-9.57, concerning Business Opportunity Programs. The
repeals and new sections are adopted without changes to the proposed text
as published in the April 14, 2000 issue of the Texas Register (25 TexReg
3196) and will not be republished.
EXPLANATION OF ADOPTED REPEALS AND NEW SECTIONS
Transportation Code, §201.702, entitled "Disadvantaged Business Program,"
requires the department to establish a business opportunities program to assist
disadvantaged businesses. This program includes: setting goals for the awarding
of state and federally funded contracts to disadvantaged businesses; making
sure that disadvantaged businesses have full access to the department's contract
bidding process; informing the businesses about the process; offering businesses
assistance concerning the process; and identifying barriers to the businesses'
participation in the process. In performing its statutory duty under Transportation
Code, §201.702, and satisfying its requirements to the federal government
as a precondition of receiving federal monies, the department has developed
a single business opportunities program. This program has three parts. There
are two state parts; one addressing highway construction and maintenance and
the other addressing all other department contracts funded exclusively with
state and local monies. The third part of the program addresses department
contracts funded in whole or in part with federal funds. All three parts of
the department's business opportunities program have similar objectives and
procedures.
In developing its business opportunities program, the department recognizes
that a successful program requires the cooperation of all members of the affected
industries. To minimize disruption to the private sector, the department has
developed its program based on a single set of principles that satisfies the
requirements of mandated federal regulations, is consistent to the greatest
extent practicable with Government Code, Chapter 2161, and satisfies the department's
long term goals of maximizing the number of firms able to compete for department
contracts.
The first part of the department's business opportunities program, the
Historically Underutilized Business (HUB) program, is modeled on, and where
practicable, consistent with, the state Historically Underutilized Business
program described in Government Code, Chapter 2161. The department's HUB program
addresses contracts funded entirely with state and local monies for department
activities other than highway construction and maintenance. The second part,
the new Small Business Enterprises program (SBE), is open to all small businesses
that meet the required size limitations and applies only to highway construction
and maintenance contracts. The department's federally required Disadvantaged
Business Enterprises program (DBE) applies to all contracts funded in whole
or in part with federal monies.
The department, through its business opportunities program, strives to
achieve the greatest practicable coordination with other government programs
designed to aid disadvantaged businesses in gaining equal access to public
contracts. This coordination includes making use of the General Services Commission's
certified Historically Underutilized Businesses (HUBs), entering into interagency
agreements to have businesses that are certified under the federal Disadvantaged
Business Enterprise (DBE) program cross-certified as HUBs, and reporting relevant
disadvantaged business participation to the state agencies charged with gathering
that information. The department will generally refer to state HUB law procedures
for guidance in removing barriers that may keep disadvantaged businesses from
having equal access to department contracts. The department has designed its
SBE program to complement the department's HUB program by making certified
HUBs and DBEs automatically eligible to be part of the new SBE program. The
department also designed the SBE program to gather HUB data in certain circumstances
involving the SBE program.
Transportation Code, §201.702, requires that the goals established
for state funded contracts must approximate the federal requirements for federal
money used for highway construction and maintenance. The United States Department
of Transportation's Disadvantaged Business Enterprise Program, as described
in 49 CFR Part 26, sets out the requirements for a state to follow in setting
participation goals and assuring that disadvantaged businesses have equal
access to federally funded contracts. As described in these rules, the Texas
Transportation Commission, by minute order, will establish goals for the HUB
and SBE programs. These rules are designed to give the commission the greatest
possible latitude for establishing the HUB and SBE goals within the parameters
established by controlling federal case law and consistent with Government
Code, Chapter 2161.
The department has recently established its goals for disadvantaged business
participation in federally funded contracts. The department did include in
its goal setting methodology information from the State of Texas Disparity
Study referenced in Government Code, Chapter 2161, which includes information
regarding department contracts performed by certain disadvantaged businesses.
The department anticipates continuing to examine the disparity between the
availability of all disadvantaged businesses and the actual participation
of those businesses in department contracts to determine the appropriate goals
for the three parts of the department's business opportunity programs. In
order to be included in the data forming the basis of that study, the department
will operate its business opportunities programs as consistently as practicable
with the state HUB program.
These rules are adopted to: make the department's business opportunities
programs compliant with recent federal regulatory changes; modify its program
consistent with legislative amendments to the state HUB program; and create
the Small Business Enterprises program. The structure of the rules has been
changed to assist the department's stakeholders in understanding the department's
operations. In addition, several wording and grammatical revisions have been
incorporated for clarification.
To provide clarification and better organization of rules relating to the
business opportunities program, the department finds it necessary to repeal
existing §§9.50-9.59, and to contemporaneously adopt the reenacted
subject matter in new §§9.50-9.57, in an amended form to: implement
the previously cited statutes; comply with federal regulations; make department
operations as consistent as practicable with state affirmative action programs;
create the new Small Business Enterprises program; reflect minor wording changes;
and rephrase wording for clarity, continuity and proper style. The following
section by section analysis more specifically explains the substantive revisions
that will appear in the new sections.
Section 9.50
Section 9.50 describes the purpose of this subchapter, which includes implementing
the existing DBE, HUB, and new SBE programs to comply with Transportation
Code, §201.702, and 49 CFR Part 26.
Section 9.51
Section 9.51 provides the definitions and terms used in this subchapter.
In this new section, certain definitions have been added or revised from the
existing rule to provide clarification and reference the proper statutory
authority. These revisions are necessary to comply with new federal DBE regulations
contained in 49 CFR Part 26. The definition of "Good faith efforts" has been
added to comply not only with the federal DBE program, but to be consistent
with the state HUB program described in Government Code, Chapter 2161. Other
definitions have been added to implement the new SBE program. The definitions
of "Building contract," "Construction contract," "DBE, HUB or SBE participation
goal," "Maintenance contract," and "Small business enterprise," have been
added or revised to accommodate the new SBE program. The definition of "Small
business enterprise" includes a provision that businesses meeting this definition
are considered "disadvantaged" for purposes of the SBE program.
Section 9.52
Section 9.52 reflects new DBE/HUB/SBE program policy objectives in accordance
with new federal DBE regulations contained in 49 CFR §26.1, and makes
the department's HUB program consistent to the extent practicable, both in
objectives and procedures, with HUB legislation passed by the 76th Legislature,
1999. This section also describes the role that the SBE program has in the
department's efforts to serve disadvantaged businesses as directed by Transportation
Code, §201.702.
Section 9.53
Section 9.53 has been reorganized to consolidate the various DBE provisions
into a single area of the rules. This reorganization will help department
stakeholders access information regarding the department's federal DBE program.
Revisions have also been made in order to complement the department's HUB
and SBE programs.
The section addresses the establishment of goals and how credit towards
goals can be earned satisfying federal requirements in 49 CFR Part 26. These
rules also reflect the new federal DBE requirements contained in 49 CFR §26.45
which requires that the maximum feasible portion of the department's overall
DBE goal will be met using race-neutral means.
Subsection (c) clarifies the contractor's responsibility under the DBE
program as required by the new federal regulations. Subsection (c)(2)(A) refers
to the criteria describing good faith efforts found at 49 CFR Part 26, Appendix
A. These criteria specify the documented activities expected from a contractor
who is unable to meet a contract DBE goal.
Subsection (d) reflects the Disadvantaged Business Enterprise certification
procedures required by new federal regulations contained in 49 CFR Part 26.
The following describes specific revisions to conform with these federal regulations.
Subsection (d)(1) includes provision for a Unified Certification Program
(UCP) agreement with other USDOT recipients in the state. This agreement will
provide one-stop shopping for firms applying for DBE certification. The agreement
will be signed by the department by March 2002.
Subsection (d)(1) specifies that the department will certify a qualified
applicant as a DBE within 90 days from the request unless the department notifies
the firm of a 60-day extension. Subsection (d)(3) provides that, consistent
with federal requirements, out-of-state DBEs must be certified as DBEs in
the state of their principal place of business. Subsection (d)(4) clarifies
that the department's duty to safeguard certification information is subject
to the Texas Public Information Act.
The certification standards contained in subsection (d)(4) refer to the
eligibility standards listed in Subpart D of 49 CFR Part 26. Application information
submitted by a firm seeking DBE certification that may reasonably be regarded
as proprietary will be safeguarded by the department from disclosure to unauthorized
persons to the extent permitted by law. An exception is that personal financial
information that would have to be provided to the United States Department
of Transportation (USDOT) as part of the administrative record may be disclosed
for that purpose. Subsection (d)(4)(A) requires that applicant firms submit
a signed notarized affidavit certifying that each owner is socially and economically
disadvantaged. In addition, subsection (d)(4)(B) requires that each socially
and economically disadvantaged applicant firm owner submit a signed, notarized
statement of personal net worth. Individuals whose personal net worth exceeds
$750,000 will not be considered to be socially and economically disadvantaged.
Subsection (d)(5)(A) states that DBEs will be certified for the specific
types of work where the qualifying owners have the ability to control the
firm. Subsection (d)(5)(A)(iv) includes the addition of businesses operating
under a franchise or license agreement as eligible to apply for DBE certification.
Subsection (d)(7) requires that applicants verify by affidavit their recertification
request every three years. Subsection (d)(7)(A) provides that DBE certification
will be for a period of three years with provision for an annual affidavit
affirming there have been no changes affecting the firm's eligibility.
Subsection (d)(8) requires that in those instances when a firm is denied
DBE certification, the department must notify the applicant in writing of
its decision to deny certification with the reasons for denial. Further provisions
are made which allow the applicant to respond to the department's notice of
certification denial.
Subsection (d)(9) allows for a third party to challenge the eligibility
of a firm that is either certified or seeking certification as a DBE. Should
the department determine, following the review of the challenged firm's record,
that the challenged firm is ineligible for DBE certification, the challenged
firm will have the opportunity to either have an informal hearing conducted
or present information and arguments in writing. As required by federal regulations,
and at the complainant's election, the department will keep the identity of
the complainant confidential, to the extent permitted by law. If non-disclosure
of the complainant's identity hinders the investigation, the complaint may
be subject to being dismissed. This subsection allows the department the discretion
to proceed or dismiss the case if the complainant does not waive confidentiality.
Subsection (d)(10) contains provisions for informal hearings and requires
that an informal hearing be presided over by a department official who did
not take part in the actions leading to or seeking to remove the challenged
firm's eligibility. This department official will make the decision regarding
the firm's DBE eligibility. Subsection (d)(10) also limits the basis on which
the department can deny a firm's application for DBE certification.
Subsection (d)(11) requires that in those instances when a contractor or
subcontractor has its DBE eligibility removed prior to contract execution,
neither the department nor a contractor shall receive goal credit. Contractors
will further be required to either substitute a certified firm for the ineligible
firm or demonstrate their good faith efforts to do so.
Subsection (d)(12) reflects the department's efforts, consistent with federal
requirements, to help potential contractors identify DBE firms for subcontracting
opportunities.
Subsection (e) includes new federal requirements, outlined in Subpart C
of 49 CFR Part 26, regarding DBE goals, good faith efforts, and crediting
DBE participation. Subsection (e)(1) provides a method for reporting race-neutral
DBE participation.
Subsection (e)(2)(A) provides that, in addition to other requirements of
law, the commitment agreement must be in place before a contract can be awarded.
Subsection (e)(2)(A)(i)(VI) requires the commitment agreement be signed by
both the contractor and the proposed DBE. Subsection (e)(2)(B) clarifies that
in circumstances when a particular contract goal has not been met, the contractor
is responsible for documenting the good faith efforts it made to obtain DBE
participation. Subsection (e)(2)(A)(ii) requires that participation credit
be given to DBE prime contractors for only that amount of work performed by
the DBE's own forces or subcontracted to DBE subcontractors.
Subsection (e)(3) updates department reporting practices. Paragraph (A)
of this subsection requires that payments made to DBE firms by contractors
be reported to the department. This requirement extends to DBE subcontracts
which are awarded without a goal and to second-tier contracts awarded by DBE
firms to non-DBE firms. Paragraph (A) also clarifies the language describing
the content of required reports from contractors.
Subsection (e)(3)(B) has been revised to delete unnecessary references.
By referring directly to the contract provision at issue, the possibility
for confusion is reduced.
Subsection (e)(6)(A)(ii) allows DBE contractors and subcontractors to utilize
leased employees in conjunction with the requirements contained in 49 CFR §26.71(q)
and Labor Code, §91.005.
Subsection (e)(7)(B)(iii) provides that a request to replace a DBE subcontractor
will be denied if the DBE firm is able and willing to carry out the terms
of the contract.
Section 9.54
Section 9.54 has been reorganized to consolidate the various HUB provisions
into a single area of the rules. This reorganization will help department
stakeholders access information regarding the department's HUB program.
Subsection (a) describes the scope of the department's HUB program which
includes all state and locally funded projects, other than highway construction
and highway maintenance contracts. The department, under its authority in
Transportation Code, 201.702, to operate a business opportunities program
has included in its HUB program those areas most similar to other state contracting
opportunities.
Section 9.54 is developed under authority of Transportation Code, §201.702,
and is intended to be consistent where practicable with both Government Code,
Chapter 2161, and the department's DBE and SBE programs. An explanation of
these changes follows.
Subsection (b)(1) clarifies that the Texas Transportation Commission will
set annual participation goals. This subsection also describes the factors
the commission will use to establish these goals. By adopting annual goals
through a public commission meeting, the public can comment on the department's
annual HUB goals.
To maintain consistency with the state HUB program requirements contained
in Government Code, Chapter 2161, subsection (b) states that the commission
will establish an overall annual HUB participation goal and that the department
will assign individual contract goals as necessary to achieve the overall
goal. Subsection (b)(1) describes the process by which the commission will
establish annual goals making use of disparity studies, including the disparity
study described in Government Code, §2161.002(c), or its replacement,
as well as other relevant information. The department has used the disparity
study described in Government Code, §2161.002(c), and other data to establish
goals for its federal DBE program. Making use of this or other disparity studies
for establishing its HUB goals satisfies the requirement in Transportation
Code, §201.702(b), that the state goal approximate the federal requirements
for the use of federal monies in highway construction.
Subsection (c)(2)(B) clarifies that contract goals will be used only for
that portion of the department's goals that cannot be satisfied through the
use of outreach, education, or other race neutral means.
Subsection (c) describes a contractor's obligations under the department's
HUB program. The objective is to make the department's HUB program consistent
with Government Code, Chapter 2161, to the extent possible while not creating
a second set of requirements for contractors that participate in both state
and federally funded contracts.
Subsection (c)(1) is designed to be consistent with the state program that
requires a participation plan for contracts without goals. The department's
participation plan is made a condition of award consistent with the federal
DBE program and serving the same purposes as the subcontracting plan required
by Government Code, Chapter 2161.
Subsection (c)(2), by addressing contracts with goals, also emulates Government
Code, Chapter 2161, and requires subcontractor commitment agreements. Also
consistent with federal requirements, the commitment agreements are required
as a condition of award. Subsection (c)(2)(A), consistent with the federal
DBE program, requires the commitment agreement to include the original signatures
of the contractor and the HUB.
Subsection (c)(2)(B) clarifies that in circumstances when a particular
contract goal has not been met, the contractor is responsible for documenting
the good faith efforts it made to obtain HUB participation.
Subsection (c)(3) describes reporting practices that contractors must follow.
Subsection (c)(3)(A) requires that payments made to HUB firms by contractors
be reported to the department. This requirement extends to HUB subcontracts
which are awarded without a goal being attached to the project and to second-tier
contracts awarded by HUB firms to non-HUB firms. This reporting requirement
will aid the department in determining what percentage of its race conscious
goals should be assigned under Transportation Code, §201.702, and to
better assess its outreach and marketing efforts to assist HUB firms through
race-neutral measures.
Subsection (c)(4) states that all payments to HUBs for work performed,
including all subcontracted work, will be credited toward goals on contracts
within the HUB program.
Subsection (c)(5) makes HUB subcontracting requirements consistent with
the federal DBE program. The percentages of work that can be subcontracted
and are permitted by the GSC HUB program have been retained.
Subsection (d)(1) describes the memorandum of agreement between the department
and the General Services Commission regarding the certification of Historically
Underutilized Businesses.
Subsection (d)(3) describes the process to be utilized in instances where
a firm's certification as a Historically Underutilized Business is challenged.
This subsection specifies that a business certified as a HUB, based on its
status as a DBE, will lose its HUB certification if a successful challenge
is made to the certification of the DBE.
Section 9.55
Section 9.55 creates the new Small Business Enterprises program. The various
provisions affecting the SBE program have been placed in this single area
of the rules. This organization of the rules will help department stakeholders
access information regarding the department's SBE program. The department,
under its authority in Transportation Code, §201.702, to develop programs
for disadvantaged businesses has chosen to develop the SBE program to assist
disadvantaged businesses in the highly specialized fields of highway construction
and maintenance. The department has designed the SBE program to mirror the
DBE and HUB programs whenever practicable so that members of the affected
industry will not be confronted with different rules based solely on whether
a project is funded with federal as opposed to state or local dollars.
Subsection (a) describes the scope of the department's SBE program which
includes highway construction and highway maintenance projects funded with
state and local monies.
Subsection (b) describes the procedure for establishing annual and contract
goals. The commission, in a procedure similar to that required by the federal
DBE program and roughly equivalent to the HUB goal setting procedures will
establish annual goals based on the availability of SBE firms. By setting
goals at a public meeting, the public can comment on proposed SBE goals. The
department, based on the subcontracting opportunities for SBEs, will establish
contract goals as necessary to meet the annual goal.
Subsection (c) mirrors the contractor's obligations to HUB and DBE subcontractors.
These obligations will be included in a provision made a part of the prime
contract.
Subsection (c)(1) requires that contracts without an assigned goal include
a provision that encourages contractors to use disadvantaged businesses and
prohibits discrimination.
Subsection (c)(2) requires, in a manner very similar to the HUB program,
that contracts with an assigned goal include a provision addressing commitment
agreements and good faith efforts. Similar to the HUB and DBE programs, commitment
agreements are required as a condition of award.
Subsection (c) describes the reporting requirements contractors must meet
in the SBE program. These reporting requirements mirror those of the HUB program
and are designed to capture all instances when a SBE performs work on a department
contract subject to this section.
Subsection (c)(4) describes how and under what circumstances a contractor
can claim credit for using a SBE firm. This subsection gives credit for expenditures
given to contractors employing SBEs in the same manner that credit is given
for employing HUBs.
Subsection (c)(5) has been included as a limitation on SBE contractors
and subcontractors. The same limitations in the HUB program on the percentage
and type of work that may be subcontracted also apply to the SBE program.
The SBE program also mirrors the HUB program in the requirements that a contractor
not provide an SBE's work crews and only lease equipment to an SBE if there
is a separate lease agreement and only provide an operator for the equipment
if the machinery is of a specialized nature.
Subsection (d) describes the certification criteria and procedures. DBE/HUB
certified firms are automatically eligible for SBE certification without needing
to apply. All other firms must make application demonstrating their qualifications
under subsection (d)(2). These qualifications mirror the requirements of the
HUB program as presently interpreted by GSC, with the exception that race,
gender, and ethnicity are not considered.
Subsection (d)(3) and (4) describe the procedure the department uses in
certifying, reviewing, and evaluating the eligibility of firms to be included
in the SBE program. These procedures, to the extent possible, mirror the certification
procedures for the DBE program. Subsection (d)(5) provides for recertification
after a firm has been in the SBE program for two years. All firms must then
re-apply under the procedures mandated for non-DBE/HUB firms.
Subsection (6) describes the procedure the department must follow in denying
an application. This procedure is designed to follow the same steps as the
department follows in denying DBE certifications. Subsection (d)(7) provides
for third parties to challenge an SBE firm's inclusion in the SBE program.
This third party challenge procedure is the same as that available to challenge
the status of DBE firms. Subsection (d)(8) provides that the department will
maintain a directory of certified SBEs, to be made available to interested
parties.
Section 9.56
Section 9.56 addresses contract compliance requirements generally applicable
to DBE, HUB, and SBE firms. Policies and practices applicable to the DBE and
HUB programs have been extended to cover the SBE program. Uniformity of rules
and procedures consistent in all three programs aids the department, contractors,
and DBE/HUB/SBE subcontractors in maintaining consistent standards of conduct.
The department adopts §9.56 to implement Transportation Code, §201.702,
to satisfy requirements of the federal DBE regulations, and to be consistent
with Government Code, Chapter 2161.
Subsection (b) clarifies the language of this section and explains the
requirement that a contractor representative be assigned on contracts with
an SBE goal.
Subsection (c) includes the requirement that contractors not withhold or
reduce payments to SBE firms inconsistent with industry practices.
Subsection (d) includes SBEs in the list of firms that must comply with
the terms of their individual contracts.
Subsection (e) adds the requirement that DBE, HUB, or SBE firms submitted
on a commitment agreement not be terminated without prior approval of the
department. This provision is required by federal regulations for DBE firms
and has been extended to HUB and SBE firms to bring consistency to department
operations.
Subsection (g) extends to contractors employing HUB and SBE firms the same
protections in responding to a charge of non-compliance as exists in the DBE
program.
Subsection (h) extends the department's authority to impose sanctions against
firms not complying with the SBE program requirements. Subsection (h)(3) describes
when the department will impose sanctions. This section more accurately reflects
the department's policy to ensure that all firms have a level playing field
on which to compete for department projects.
Section 9.57
Section 9.57 explains that complaints filed under these rules must be in
writing. Subsection (d)(1)(B) concerning appeals by a DBE company, includes
the new federal requirements contained in 49 CFR §26.89 and §26.103
regarding the deadlines for filing appeals with USDOT. Firms that believe
they have been wrongly denied certification or that have challenged certification,
may appeal a department decision to USDOT within 90 days after the date of
the department's final decision. Firms alleging discrimination on a federally
funded contract or aggrieved by a department decision related to the DBE program
may file an appeal with USDOT within 180 days after the date of offense or
continuing course of conduct was discovered.
COMMENTS
No comments were received on the proposed repeals and new sections.
43 TAC §§9.50 - 9.59
STATUTORY AUTHORITY
The repeals are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.702, and 49 CFR Part
26, which require the department to establish a program to give disadvantaged
businesses full access to the department's contract bidding process.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004590
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
43 TAC §§9.50 - 9.57
STATUTORY AUTHORITY
The new sections are adopted under Transportation Code, §201.101,
which provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §201.702, and 49 CFR Part
26, which require the department to establish a program to give disadvantaged
businesses full access to the department's contract bidding process.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 3, 2000.
TRD-200004591
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
Subchapter E. FEDERAL, STATE, AND LOCAL PARTICIPATION
43 TAC §15.56
The Texas Department of Transportation adopts amendments
to §15.56, concerning local financing of highway improvement projects
on the state highway system. The amendments are adopted without changes to
the proposed text as published in the April 14, 2000, issue of the Texas Register
(25 TexReg 3212) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
Transportation Code, §222.051 authorizes a local government to finance
the construction of an approved project for the state highway system and allows
the department to reimburse the local government if funds become available.
Pursuant to this authority, the commission has adopted §15.56 to specify
the conditions under which a local government may finance the construction
of an approved highway improvement project, and the conditions under which
the commission may approve reimbursement of the local government's contribution.
This section also prescribes the conditions under which a local government
may finance the construction of a service project.
Less than half of the identified highway improvement needs of the state
are currently being met. Cost participation is required of local governments
in order to make the most efficient use of scarce state highway funding. In
some instances, a local government desires to fully fund a highway improvement
project on the state highway system in order to expedite completion of the
project.
In other cases, new development near a state highway may result in the
need for a service project to improve access to the development.
In both of these cases, the current rules require commission approval of
any request by a local government to fund a project, regardless of the cost
of the project or whether reimbursement is desired by the local government.
In order to streamline the approval process for a project to be fully funded
by other entities, the amendments as proposed will delegate approval authority
from the commission to the department unless the local government seeks reimbursement
of its contribution.
Amendments to §15.56(d)(1) authorize the executive director to approve
requests by a local government to finance an approved highway improvement
project when no reimbursement is sought. The paragraph describes the factors
to be considered by the executive director when deciding whether to approve
such a request.
Amendments to §15.56(d)(2) describe the approval authority when local
governments submit a request to finance a service project. To ensure the appropriate
level of responsibility for approval of a request to finance a service project,
the district engineer would be able to approve service projects with an estimated
total cost of less than $300,000. Projects with an estimated cost of $300,000
or more would require the approval of the executive director. The amount of
$300,000 was selected to be consistent with 43 TAC §9.15 (relating to
highway improvement contracts) which allows for bids for contracts with an
engineer's estimate of less than $300,000 to be opened and read at a public
meeting conducted by the district engineer. This section also describes the
factors to be considered by the executive director or district engineer when
deciding whether to approve such a request.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004592
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
Subchapter A. MOTOR VEHICLE CERTIFICATES OF TITLE
43 TAC §17.3
The Texas Department of Transportation adopts amendments
to §17.3, concerning motor vehicle certificates of title. The amendments
are adopted without changes to the proposed text as published in the April
14, 2000, issue of the Texas Register (25 TexReg 3213) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The 76th Legislature, 1999, enacted House Bill 381, which amended Transportation
Code, §501.031, to broaden the ability of a motor vehicle owner to enter
into a rights of survivorship agreement for transfer of ownership of a motor
vehicle and the requirements for such an agreement. The 76th Legislature also
enacted House Bill 2176, which amended Transportation Code, §501.115,
to clarify the amount of time a lienholder has to deliver a discharge of lien
to a vehicle owner or the owner's designee after receipt of a final payment.
As a result of the legislative amendments made to Transportation Code, Chapter
501, the department has determined that the information contained in §17.3(c)(2)(B)
is unnecessary because the information is now clearly set forth in Transportation
Code, Chapter 501, and certain information contained in §17.3(h) is no
longer correct.
Subsections (a) and (b) of §17.3 are amended to correct cross-references,
to enhance readability and clarity, and to improve grammar and consistency.
Section 17.3(c) is amended by deleting most of the existing language because
it is no longer correct. The criteria and requirements for rights of survivorship
agreements for a motor vehicle are sufficiently addressed in Transportation
Code, §501.115, with one exception. A new sentence is added to clarify
that rights of survivorship agreements may only be executed by natural persons
acting in an individual capacity. Thus, corporations, partnerships, trusts,
and other artificial or joint undertakings may not execute rights of survivorship
agreements. This clarification is consistent with the apparent legislative
intent underlying House Bill 381. Additional changes are made to enhance readability
and clarity and to improve grammar and consistency.
Subsections (d), (e), (f), and (g) are amended to enhance readability and
clarity and to improve grammar and consistency.
Section 17.3(h) is amended by eliminating the specific time period within
which a lienholder must deliver a release of lien after receipt of a final
payment. This information is unnecessary because Transportation Code, §501.031,
clearly provides the required time period. Additional changes are made to
enhance readability and clarity.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §501.131, which authorizes
the department to adopt rules governing the issuance of motor vehicle certificates
of title.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004593
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
43 TAC §17.22
The Texas Department of Transportation adopts amendments
to §17.22 concerning motor vehicle registration. The amendments are adopted
without changes to the proposed text as published in the April 14, 2000, issue
of the Texas Register (25 TexReg 3218) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
The 76th Legislature, 1999, enacted House Bill 89, which amended Transportation
Code, §502.176 to allow for a change in a motor vehicle's registration
renewal month if the vehicle's registration was renewed late for a valid reason.
The 76th Legislature, 1999, also enacted House Bill 924, which amended Transportation
Code, §502.407(a), to change the grace period for the expiration of motor
vehicle registration from five days to five working days. The 76th Legislature,
1999, also enacted House Bill 1743, which added Transportation Code, §502.0025,
to permit military personnel, under specified circumstances, to operate a
vehicle without Texas registration for up to 90 days after returning from
an overseas assignment. The department also desires to clarify the department's
authority with regard to objectionable numbering on license plates.
Subsections (a), (b), and (c) of §17.22 are amended to correct cross-references,
enhance readability and clarity, and improve grammar and consistency.
New subsection (c)(3) is added to permit the department to refuse to issue
license plate numbers that conflict with the department's numbering system,
that are obscene or objectionable, or that are currently issued to another
owner. This standard is also found in §17.28(c)(8)(C), where it applies
only to personalized plates. The amendment also clarifies that the department
will cancel a plate that has already been issued if it meets the standards
of this subsection. This amendment expands the department's authority to all
license plates and makes clear that the department will cancel or not issue
any license plate number, whether or not it is a personalized plate, if the
number conflicts with the department's numbering system, is obscene or objectionable,
or is currently issued to another owner.
Former subsection (c)(3) is renumbered as new subsection (c)(4).
Subsection (d) is amended to enhance readability and clarity and improve
grammar and consistency.
Subsection (d)(5)(A) is amended to conform to House Bill 924, which amended
Transportation Code, §502.407(a), by changing the grace period for the
expiration of motor vehicle registration from five days to five working days.
Subsections (d)(5)(B), (C), (D), and (E) are amended to conform to House
Bill 89, which amended Transportation Code, §502.176 to allow for a change
in a motor vehicle's registration renewal month if a county tax assessor-collector
determined that the vehicle's registration was renewed late for a valid reason.
House Bill 89 also clarified the applicability of the 20% delinquency penalty
and authorized the prorating of certain annual registration fees.
New subsection (d)(5)(F) is added to comply with the requirement in House
Bill 89 that the department adopt rules to govern the delinquent renewal of
a motor vehicle registration that is filed directly with the department. The
new language adopts the statutory standards for determining if the reason
for a late renewal is valid and implements the same procedure as if the renewal
were filed with a county tax assessor-collector.
Subsections (e) and (f) are amended to correct cross-references, to enhance
readability and clarity, and to improve grammar and consistency.
Subsection (f) is also amended to provide an exception to the general rule
that out-of-state vehicles must be registered in Texas within 30 days of being
brought into the state. This amendment conforms to House Bill 1743, which
added Transportation Code, §502.0025, to permit military personnel, under
specified circumstances, to operate a vehicle without Texas registration for
up to 90 days after returning from an overseas assignment.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §502.009, which authorizes
the department to adopt rules governing the issuance of motor vehicle registration.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004594
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
43 TAC §17.24
The Texas Department of Transportation adopts amendments
to §17.24, concerning disabled person license plates and identification
placards. The amendments are adopted without changes to the proposed text
as published in the April 14, 2000, issue of the Texas Register (25 TexReg
3221) and will not be republished.
EXPLANATION OF ADOPTED AMENDMENTS
House Bill 1032, 76th Texas Legislature, 1999, amended the Transportation
Code by changing the standards governing disabled person identification placards.
Senate Bill 21, 76th Texas Legislature, 1999, amended the Transportation Code
by providing that certain institutions, facilities, and residential retirement
communities may obtain disabled person license plates and identification placards
for display on vans and buses used to transport their residents. Senate Bill
132, 76th Texas Legislature, 1999, amended the Transportation Code by allowing
physicians licensed to practice medicine in states adjacent to Texas to sign
an application for disabled person license plates and identification placards.
The department has also determined that certain information contained in §17.24
is unnecessary because the information is already clearly set forth in Transportation
Code, Chapters 502 and 681. Finally, some changes have been made to enhance
readability and clarity, to improve grammar and spelling, and to correct cross-references.
Subsection (a) is amended to enhance readability and clarity and to improve
grammar.
Subsection (b) is amended to bring the rules into conformity with House
Bill 1032. Language has been deleted when it is unnecessary because the information
is already clearly set forth in the corresponding statutory sections. Some
changes have been made to enhance readability and clarity, to improve grammar,
and to correct cross-references.
Subsection (b)(1) is amended to reflect that the issuance of disabled person
license plates is in accordance with Transportation Code, Chapter 502.253.
The subsection is also amended by deleting the information concerning the
types of vehicles for which disabled person license plates may be issued and
the criteria for issuance because this information is already clearly set
forth in Transportation Code, Chapters 502 and 681. The reference to the international
symbol of access is moved from subparagraph (B) to subparagraph (A), and subparagraph
(B) has been given a new title that more accurately reflects the subject matter
of the subparagraph. Additional changes throughout subparagraphs (B) and (C)
enhance readability and clarity, improve grammar, and correct cross-references.
Subsection (b)(2) is amended to conform to House Bill 1032, which mandated
that placards of different colors be issued to persons with mobility-related
and non mobility-related disabilities. Some details are deleted because they
contain information that is already clearly set forth in Transportation Code,
Chapters 502 and 681. Additional changes enhance readability and clarity.
Subsection (c) is amended to conform to Senate Bill 132, which allowed
a certification of disability to be signed by a physician licensed to practice
medicine in a state adjacent to Texas. Subsection (c) is also amended to conform
to Senate Bill 21, which allowed certain licensed facilities to obtain disabled
person license plates and identification placards for display on vans and
buses used to transport their residents. Some details in subsection (c) are
deleted because they contain information already clearly set forth in Transportation
Code, Chapters 502 and 681. Additional changes throughout subsection (c) enhance
readability and clarity.
Subsection (c)(3) is amended to conform to Senate Bill 132, which permitted
a certification of disability to be signed by a physician licensed to practice
medicine in a state adjacent to Texas. The amendment identifies those states.
Information formerly contained in subsection (c)(3)(B) is expanded in detail
to conform to Senate Bill 132 and is distributed between subsections (c)(3)(B)
and (c)(3)(C).
Existing subsection (c), paragraph (4) is eliminated in its entirety because
it contains information that is already clearly set forth in Transportation
Code, Chapters 502 and 681. Subsection (c)(5) has been renumbered as paragraph
(4) and amended to enhance readability and clarity and to correct cross-references.
Subsection (c), new paragraph (5) is added to conform to Senate Bill 21,
which allowed certain institutions, facilities, and residential retirement
communities to obtain disabled person license plates and identification placards
for display on vans and buses used to transport their residents. The new language
clarifies that qualified facilities will receive license plates or blue permanently
disabled person identification placards and that the application need not
contain the supporting documentation required of individuals.
Existing subsection (c)(6) is eliminated in its entirety because it contains
information that is already clearly set forth in Transportation Code, Chapters
502 and 681.
Subsection (d) is amended to remove language in paragraph (2) that is unnecessary
because the information is already clearly set forth in Transportation Code,
Chapter 681. Amendments are made throughout subsection (d) to enhance readability
and clarity and to correct cross-references.
Subsections (e)and (f) are amended to enhance readability and clarity and
to improve spelling.
Subsection (g) is eliminated in its entirety because it contains information
that is already clearly set forth in Transportation Code, Chapter 502, and
in Texas Civil Statutes, Article 8613.
Subsection (h) has been renumbered as subsection (g) and amended to correct
cross-references. In addition, a provision is added to clarify that in an
administrative hearing mandated by Transportation Code, §681.012, the
administrative law judge must apply the standards set forth in §681.011
to determine if an offense has been committed involving the improper use of
a disabled parking placard. If such an offense is found, the placard shall
remain revoked, and a new placard shall not be issued to that person for at
least one year. The addition of this standard is necessary because the Transportation
Code mandates a hearing, but does not specify the issues to be litigated or
standards to be applied.
COMMENTS
No comments were received on the proposed amendments.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101, which
provides the Texas Transportation Commission with the authority to establish
rules for the conduct of the work of the Texas Department of Transportation,
and more specifically, Transportation Code, §502.009, which authorizes
the department to adopt rules governing the issuance of motor vehicle registration.
In addition, the amendments are adopted under the provisions of Transportation
Code, Chapter 502, which authorizes the department to adopt rules regarding
the registration of motor vehicles.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 3, 2000.
TRD-200004595
Richard Monroe
General Counsel
Texas Department of Transportation
Effective date: July 23, 2000
Proposal publication date: April 14, 2000
For further information, please call: (512) 463-8630
Subchapter B. USE OF STATE HIGHWAY RIGHT-OF-WAY
Chapter 3.
PUBLIC INFORMATION
Chapter 4.
EMPLOYMENT PRACTICES
Chapter 9.
CONTRACT MANAGEMENT
Subchapter D. BUSINESS OPPORTUNITY PROGRAMS
Chapter 15.
TRANSPORTATION PLANNING AND PROGRAMMING
Chapter 17.
VEHICLE TITLES AND REGISTRATION
Subchapter B. MOTOR VEHICLE REGISTRATION
Chapter 22.
USE OF STATE PROPERTY