TITLE 28. INSURANCE

PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

CHAPTER 164. HAZARDOUS EMPLOYER PROGRAM

28 TAC §§164.1 - 164.12, 164.14 - 164.18

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Insurance, Division of Workers' Compensation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Texas Department of Insurance (Department), Division of Workers' Compensation (Division) proposes the repeal of §§164.1 - 164.12 and §§164.14 - 164.18, relating to rules governing the administration of the Hazardous Employer Program.

Under the Hazardous Employer Program, the Division was required to identify employers as hazardous based on criteria established by the Division. The public employers identified as hazardous were required to develop accident prevention plans and the Division's predecessor, the Texas Workers' Compensation Commission (TWCC), was required to conduct follow-up inspections. Employers classified as hazardous were entitled to request a safety consultation from the TWCC. Each employer identified had the right to administrative review of the findings of the TWCC and to request a hearing to contest the findings of the TWCC.

The rules are proposed for repeal because the statutory authority for the rules, Labor Code Chapter 411, Subchapter D was repealed by House Bill (HB) 7, enacted by the 79th Legislature, Regular Session, effective September 1, 2005.

The Division continues to provide other safety services through the Occupational Safety and Health Consultation (OSHCON) program, pursuant to Labor Code §411.018. These services include safety training, Occupational Safety and Health Administration (OSHA) consultations and the OSHCON Resource Center.

Karen Puckett, Director for Outreach and Workplace Safety, has determined that, for the first five years the repeal of the sections will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal, and there will be no effect on local employment or local economy as result of the proposal.

Ms. Puckett has also determined that, for each year of the first five years the repeal of the sections will be in effect, the public benefit anticipated as a result of the repeal will be the elimination of obsolete regulations. There will be no economic cost to any individuals, or insurers or other Department regulated entities, regardless of size, as a result of the proposed repeal.

In accordance with the Government Code §2006.002(c), the Department has determined that these proposed repeals will not have an adverse economic effect on small or micro business insurance carriers because it is simply the repeal of obsolete rules. Therefore, in accordance with the Government Code §2006.002(c), the Department is not required to prepare a regulatory flexibility analysis.

The Department has determined that no private real property interests are affected by these proposed repeals and that these proposed repeals do not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on August 10, 2009. Comments may be submitted via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/index.html or by mailing or delivering your comments to Maria Jimenez, Workers' Compensation Counsel, MS-4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744.

Any request for a public hearing must be submitted separately to the Office of General Counsel, MS-1, 7551 Metro Center Drive, Austin, Texas 78744 by 5:00 p.m. on August 10, 2009. If a hearing is held, written and oral comments presented at the hearing will be considered.

The repeal of the rules is proposed under Labor Code §402.00111 and §402.061. Labor Code §402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under Labor Code, Title 5. Labor Code §402.061 provides that the Commissioner of Workers' Compensation shall adopt rules as necessary for the implementation and enforcement of the Texas Workers' Compensation Act.

No other code, statute or article is affected by this rule action.

§164.1.Criteria for Identifying Hazardous Employers.

§164.2.Notice to Hazardous Employers.

§164.3.Safety Consultation for Public Employers.

§164.4.Formulation of Accident Prevention Plan for Public Employers.

§164.5.Follow-up Inspection for Public Employers by the Division.

§164.6.Report of Follow-up Inspection, Public Employers.

§164.7.Removal of Public Employers from Hazardous Employer Status.

§164.8.Continuation of Hazardous Employer Status, Public Employers.

§164.9.Approval of Professional Sources for Safety Consultations.

§164.10.Removal from the List of Approved Professional Sources.

§164.11.Request for Safety Consultation from the Division.

§164.12.Reimbursement of Division for Services Provided to Hazardous Employer.

§164.14.Values Assigned for Computation of Hazardous Employer Identification.

§164.15.Administrative Reviews and Hearings Regarding Identification as a Hazardous Employer.

§164.16.Removal of Private Employers from Hazardous Employer Status.

§164.17.Availability of OSHCON Services.

§164.18.Severability.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 29, 2009.

TRD-200902670

Dirk Johnson

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: August 9, 2009

For further information, please call: (512) 804-4703


CHAPTER 169. WORKERS' HEALTH AND SAFETY--DRUG-FREE WORKPLACE PROGRAM

28 TAC §169.1, §169.2

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Department of Insurance, Division of Workers' Compensation or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Texas Department of Insurance (Department), Division of Workers' Compensation (Division) proposes the repeal of §169.1 and §169.2, relating to rules governing the administration of the Drug Free Workplace Program.

Under the Drug Free Workplace Program in §169.1, employers who had 15 or more employees and who maintained workers' compensation insurance coverage were required to adopt a policy for the elimination of drug abuse. Employers were required to provide their employees with a copy of the policy and provide a copy to the Division upon request.

The employer's policy was required to contain a statement that the policy included alcoholic beverages, inhalants and illegal drugs, a statement of the consequences of violation, a description of available treatment programs and a description of drug testing programs that the employer had in force.

The rules are proposed for repeal because the statutory authority for the rules, Labor Code, Chapter 411, Subchapter G was repealed by House Bill (HB) 7, 79th Legislature, Regular Session, effective Septmeber 1, 2005.

The Division continues to provide other safety services through the Occupational Safety and Health Consultation (OSHCON) program, pursuant to Labor Code §411.018. These services include safety training, Occupational Safety and Health Administration (OSHA) consultations and the OSHCON Resource Center.

Karen Puckett, Director for Outreach and Workplace Safety, has determined that, for the first five years the repeal of the sections will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal, and there will be no effect on local employment or local economy as result of the proposal.

Ms. Puckett has also determined that, for each year of the first five years the repeal of the sections will be in effect, the public benefit anticipated as a result of the repeal will be the elimination of obsolete regulations. There will be no economic cost to any individuals, or insurers or other Department regulated entities, regardless of size, as a result of the proposed repeal.

In accordance with the Government Code §2006.002(c), the Department has determined that these proposed repeals will not have an adverse economic effect on small or micro business insurance carriers because it is simply the repeal of obsolete rules. Therefore, in accordance with the Government Code §2006.002(c), the Department is not required to prepare a regulatory flexibility analysis.

The Department has determined that no private real property interests are affected by these proposed repeals and that these proposed repeals do not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking or require a takings impact assessment under the Government Code §2007.043.

To be considered, written comments on the proposal must be submitted no later than 5:00 p.m. on August 10, 2009. Comments may be submitted via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/index.html or by mailing or delivering your comments to Maria Jimenez, Workers' Compensation Counsel, MS-4D, Division of Workers' Compensation, Texas Department of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744.

Any request for a public hearing must be submitted separately to the Office of General Counsel, MS-1, 7551 Metro Center Drive, Austin, Texas 78744 by 5:00 p.m. on August 10, 2009. If a hearing is held, written and oral comments presented at the hearing will be considered.

The repeal of the rules is proposed under Labor Code §402.00111 and §402.061. Labor Code §402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under Labor Code, Title 5. Labor Code §402.061 provides that the Commissioner of Workers' Compensation shall adopt rules as necessary for the implementation and enforcement of the Texas Workers' Compensation Act.

No other code, statute or article is affected by this rule action.

§169.1.Notification of Drug Abuse Policy.

§169.2.Required Elements of Drug Abuse Policy.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 29, 2009.

TRD-200902669

Dirk Johnson

General Counsel

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: August 9, 2009

For further information, please call: (512) 804-4703