EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 25. HEALTH SERVICES Part II. Texas Department of Mental Health and Mental Retardation Chapter 401. System Administration Subchapter E. Contracts Management 25 TAC sec.401.375, sec.401.389 The Texas Department of Mental Health and Mental Retardation (TDMHMR) adopts on an emergency basis amendments to sec.409.375, concerning general requirements for the department and MHMRAs, and sec.401.389, concerning contract terminations. The purpose of the emergency adoption is to provide a mechanism by which the department can, without undue delay, terminate contracts of mental health and mental retardation authorities under certain conditions and in certain situations which represent imminent danger to public health, welfare, or safety. The sections are adopted under the Texas Health and Safety Code, Title 7, sec.532.015, which provides the Texas Board of Mental Health and Mental Retardation with broad rulemaking powers, and sec.534.052, which requires the board to promulgate rules necessary to ensure the adequate provision of community-based mental health and mental retardation services; and sec.2001.034 of the Government Code, which provides for the emergency adoption of rules. The emergency adoption affects the Health and Safety Code, sec.534.054. sec.401.375. General Requirements for the Department and MHMRAs. (a)-(h) (No change.) (i) If the department or the MHMRA determines that the contractor/subcontractor has placed the health, welfare,
    or safety of any person served in immediate jeopardy, or if the department or MHMRA has reason to believe the contractor/subcontractor has engaged in the willful or negligent discharge of its duties under the contract, including failure to comply with the terms and conditions of the contract or failure to deliver contracted services as specified, or the department or the MHMRA has reason to believe a contractor/subcontractor has engaged in the misuse of state or federal funds, fraud, or illegal acts,
      the department or the MHMRA will take such steps as are necessary to secure the [person's] health, welfare,
        or safety of persons receiving services
          , including but not limited to removal of persons
            [the person] served from the program and
              [or] termination of the contract without prior notice, and will take whatever action it deems necessary to
                [The department or the MHMRA shall] ensure the availability and
                  quality of services
                    [care] during the transition from one provider to another. (j) (No change.) sec.401.389. Contract Terminations. (a) Terminations of contracts occur when the term of the contract expires, both parties mutually agree to end the contract, and/or when either party terminates a contract because of the other party's breach of contract terms
                      [irreconcilable differences]. (b) Nothing in this section is meant to abridge the rights of the department or the MHMRA to terminate a contract immediately
                        [without notice] when the life, health, welfare,
                          or safety of individuals served is endangered or could be endangered either directly or through the contractor's willful or negligent discharge of its duties under the contract, including failure to comply with the terms and conditions of the contract or failure to deliver contracted services as specified, or when the department or the MHMRA has reason to believe that the contractor/subcontractor has engaged in the misuse of state or federal funds, fraud, or illegal acts
                            . (c)-(i) (No change.) Issued in Austin, Texas, on July 26, 1995. TRD-9509350 Ann Utley Chairman Texas Department of Mental Health and Mental Retardation Effective date: July 26, 1995 Expiration date: November 23, 1995 For further information, please call: (512) 206-4516 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 15. Transportation Planning and Programming International Bridges 43 TAC sec.sec.15.70-15.76 The Texas Department of Transportation adopts on an emergency basis new sec.sec.15.70-15.76, concerning international bridges. Texas Civil Statutes, Article 6674v-8, provide that a political subdivision or private entity authorized to construct or finance the construction of a bridge over the Rio Grande must obtain approval of the Texas Transportation Commission for the construction of the bridge before requesting approval from the federal government under Subchapter IV, Chapter 11, Title 33, United States Code 74v-8. Section 15.70 explains that the purpose of the rules is to describe the procedures and conditions by which a political subdivision or private entity may obtain the approval of the commission to provide an international bridge. Section 15.71 defines words and terms. Section 15.72 requires that in order to obtain approval to construct or finance the construction of a bridge the applicant must submit an application and comply with the requirements of this undesignated head. Section 15.73 explains design, financial feasibility, and the social and environmental impact studies which must be conducted prior to submittal of the application. Section 15.74 describes the documents that accompany an application. Section 15.75 establishes the procedure for coordination with other governmental entities, processing and analyzing the application, a public hearing, and describes the requirements of the report to be submitted to the commission. Section 15.76 describes the commission's analysis of the project including consideration of comments of other entities, project requirements, and financial requirements, and provides that the approval or disapproval of the project shall be by written order of the commission. It is necessary to adopt these new sections on an emergency basis in order to comply with Texas Civil Statutes, Article 6674v-8, which became effective on May 19, 1995, and to serve the economic needs and welfare of the border regions and the state as a whole so that the economy is not adversely affected by failure to develop the crossings that are necessary to fulfill the spirit of the North American Free Trade Agreement. The new sections are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Civil Statutes, Article 6674v-8, which provide that a political subdivision or private entity authorized to construct or finance the construction of a bridge over the Rio Grande must obtain approval of the commission for the construction of the bridge before requesting approval from the federal government under Subchapter IV, Chapter 11, Title 33, United States Code 74v-8. Texas Civil Statutes, Article 6674v-8, is affected by the emergency new sections. sec.15.70. Purpose. Texas Civil Statutes, Article 6674v-8, provides that a political subdivision or private entity authorized to construct or finance the construction of a bridge over the Rio Grande must obtain approval of the Texas Transportation Commission for the construction of the bridge before requesting approval from the federal government under Subchapter IV, Chapter 11, Title 33, United States Code. This undesignated head prescribes the procedures and conditions by which a political subdivision or private entity may obtain the approval of the commission. sec.15.71. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-A political subdivision or private entity authorized by law to construct or finance the construction of a bridge over the Rio Grande. Commission-The Texas Transportation Commission. Department-The Texas Department of Transportation. Metropolitan planning organization-An organization designated in certain urbanized areas to carry out the transportation planning process as required by Title 23, United States Code, sec.134. Project-The construction or the financing of the construction of a bridge over the Rio Grande. Study sector-The affected area of the proposed bridge as defined in the Texas Mexico Toll Bridge Study, Research Report Number 1976; this area will encompass both sides of the Texas-Mexico border affected by the proposed bridge. Texas-Mexico Toll Bridge Study-Research Report Number 1976, Center for Transportation Research, Bureau of Engineering Research, The University of Texas at Austin, April 1994. sec.15.72. New Bridge.
                              A political subdivision or private entity that desires to construct or finance the construction of a bridge over the Rio Grande must obtain approval from the commission for the construction of the bridge before requesting approval from the federal government under Subchapter IV, Chapter 11, Title 33, United States Code. To obtain such approval, the political subdivision or private entity must submit an application and comply with all requirements and conditions imposed by these sections. sec.15.73. Preliminary Studies.
                                Prior to submitting an application to the department for the approval of a project, an applicant shall conduct a study of the design, financial feasibility, and the social and environmental impact of the project. (1) Design. The applicant shall provide a preliminary design geometric layout certified by a registered professional engineer to be in accordance with standards and criteria from appropriate design manuals applicable at the date of application. The layout must identify: (A) horizontal and vertical alignments and cross-slope data of the proposed structure showing overall structure length, width, spans, span length, and type of construction, along with dimensions, where applicable, of: (i) lane width; (ii) curb width; (iii) sidewalks; (iv) shoulder width; (v) calculated minimum vertical clearance over other roadways and waterways; and (vi) toll booths and miscellaneous appurtenances; (B) geometric termini locations along with inspection stations and queue lanes where applicable; (C) the location and preliminary layout of approach roadways and intersections on both sides of the border with changes necessitated by the project to existing facilities on both sides of the border; and (D) the location and layout of any other accommodation of buildings or appurtenances deemed necessary by the applicant and any law or regulation governing the operation and maintenance of port of entry operations. (2) Financial feasibility study. An applicant shall conduct a feasibility study to determine the financial viability of the project. The study shall include the following information. (A) A financial overview of the project, which shall include: (i) summary cost estimates for the planning, design, construction, operation, and maintenance of the project; and (ii) a statement of all financing requirements for the project and sources of all financing. (B) A project construction schedule identifying the timing, amount, and source of all cash required to pay for all construction costs. (C) An analysis of the expected financing period of the project, such period to be the greater of ten years or the time taken to fully pay any and all liabilities incurred for the planning, design, construction, operation, and maintenance of the project plus the time taken to fully pay any and all liability refunding, renegotiations, conversions, and extensions. (i) An applicant that issues or contemplates issuing any form of liability with a term longer than one year within three years of the date of application shall consider a portion of that liability as incurred for the planning, design, construction, operation, and maintenance of the project unless the applicant demonstrates otherwise to the satisfaction of the commission in the financial feasibility study. A liability not less than the cost of construction and not more than the costs of planning, design, and construction shall be considered in the financial feasibility study as if it had been incurred directly for the project. (ii) The term of any liability amount determined in clause (i) of this subparagraph shall be the longest term of any liabilities issued or contemplated by the applicant within three years of the application date plus the time taken to fully pay any and all liability refundings, renegotiations, conversions, and extensions. (D) A detailed analysis of costs over the expected financing period of the project, which shall include: (i) costs of operations by reasonable expense categories for each year; and (ii) costs of maintenance for each year, such costs identifying each major system, structure, and component of the project that is subject to wear or deterioration, and the analysis of such costs stating both the cost and the expected frequency of inspection, repair, renewal, rehabilitation, and/or replacement required to keep the project in like-new condition. (E) A pro forma analysis based on Generally Accepted Accounting Principles (GAAP) for each year of planning, design, construction, and the expected financing period of the project showing: (i) anticipated revenues, sources of revenues, and rates charged to achieve those revenues; (ii) anticipated expenses; (iii) fund balances or equity balances as appropriate to the legal form of the applicant; (iv) debt service requirements including any bond sinking fund requirements and loan or liability amortization payments. (F) A pro forma analysis based on cash basis accounting for each year of planning, design, construction, and the expected financing period of the project showing: (i) anticipated cash receipts, sources of cash receipts, and rates charged to achieve those cash receipts; (ii) anticipated cash disbursements; (iii) anticipated cash balances; (iv) cash used to meet the requirements of any bond sinking fund and loan or liability amortization payments. (G) A reconciliation of pro forma amounts between GAAP and cash basis. (H) A description of the methods used in preparing the financial feasibility study, the assumptions contained in the study, and persons and entities responsible for the preparation of the study. (I) An analysis of the need for the project and potential impact on traffic congestion and mobility, including identification of the Texas-Mexico Toll Bridge Study sector in which the project is located, and: (i) average annual daily traffic (AADT) in the study sector for major arterials and controlled access roadways for both sides of the border for five years preceding the date of the application; (ii) data from any existing international bridge or other international crossing in the study sector and adjacent sectors indicating AADT for the five preceding years; (iii) data from any existing international bridge or other international crossing in the study sector and the adjacent sectors indicating average delay time for traffic seeking to use any international bridge or other international crossing for the five preceding years; (iv) projected AADT for the proposed bridge and other crossings in the study sector and adjacent sectors 20 years after completion (projections shall be based on the current department travel demand model, and the process used to make the projections shall be clearly identified and submitted with the data); (v) a comparison of the project with other similar projects already in operation; and (vi) a projection of changes in the free flow of trade caused by the project. (3) Social and environmental impact. An applicant shall conduct a study of the social and environmental impact of the project, consistent with the spirit and intent of the National Environmental Policy Act, Title 42, United States Code, sec. s4321 et seq, and Title 23, United States Code, sec.109(h), and shall provide for public involvement. (A) Environmental documentation. (i) An applicant shall prepare an environmental assessment and/or an environmental impact statement in accordance with sec.2.43(d) and (e) of this title (relating to Highway Construction Projects-State Funds). (ii) The form and content of an environmental assessment and environmental impact statement prepared by an applicant and any decision by an applicant that an environmental impact statement is not necessary must be approved by the department. (B) Public involvement. An applicant shall provide for public involvement by: (i) complying with s2.43(b) of this title (relating to Highway Construction Projects -State Funds); (ii) holding one or more public hearings following the completion of the studies required by this section as may be necessary to ensure participation by each community affected by the project; and (iii) notifying the department in writing not less than ten days in advance of all public meetings and public hearings held under this section. (C) Record. An applicant shall provide the department a summary of all public meetings and a summary and analysis of all public hearings held under this section. The summary and analysis for each public hearing shall include: (i) the verbatim transcript of the hearing; (ii) a summary of comments received, and the response to and analysis of comments; (iii) any proposed changes in project location and design planned as a result of comments; and (iv) certification that the public hearings were held in accordance with sec.2.43(b) of this title (relating to Highway Construction Projects -State Funds), and the Civil Rights Act of 1964. (D) Revision to environmental document. Following the public hearing, an applicant shall revise the environmental document for the project to address any issues or concerns identified during the public involvement process. sec.15.74. Application. To secure approval of a project, an applicant must file an application and 20 copies of the application with the department's deputy executive director for transportation planning and development or his or her designee who shall serve as department liaison for the project. The application shall be in a form prescribed by the department, and must be accompanied by: (1) a description of the applicant, including: (A) form of organization under the laws of this state; and (B) history of operations and/or business conducted; (2) a definition of major financial, operating, and business policies of the applicant that will affect operations or the conduct of business, including: (A) key operating conditions; and (B) compliance with existing federal, state, and local laws and regulations; (3) the preliminary study completed in accordance with sec.15.73 of this title (relating to Preliminary Studies); and (4) written commitments from the Undersecretary for Infrastructure of the Mexican Secretaria de Comunicaciones y Transportes to provide adequate roadway connections to the bridge, and similar commitments from state and municipal transportation agencies for any state highway or local street infrastructure necessary to make the bridge fully operational. sec.15.75. Department Action. (a) Coordination. (1) Upon the receipt of a complete application, the department will submit a copy of the application and request views and comments from the: (A) Department of Public Safety of the State of Texas; (B) Texas Natural Resource Conservation Commission; (C) Texas Historical Commission; (D) Department of Agriculture; (E) Texas Alcoholic Beverage Commission; (F) Texas Department of Commerce; (G) Office of the Governor; (H) any other state agency the department determines is appropriate considering the nature of the project; and (I) any entity which may be significantly affected by the project. (2) The department will also seek the advice of the local metropolitan planning organization, if any, as to whether the project will be consistent with the regional transportation plan. (3) The department will allow an agency or entity 20 days for the submission of views and comments under this subsection. (b) Process and analysis of application. (1) The department reserves the right to return, or hold pending corrections submitted by the applicant, an application that the department determines is not in full compliance with the requirements of sec.15. 74 of this title (relating to Application). (2) The department and the commission will not perform work to recast, redraw, calculate, construct, reconstruct, or otherwise produce any element of the preliminary study which is not adequately presented by the applicant. (3) The commission may consider missing, ambiguous, uncertain, or unclear elements in the financial feasibility study as tending to the conclusion that the project has substantial speculative elements in its financing and should not be approved. (c) Public hearing. If the department finds that the application meets the requirements of sec.15.74 of this title (relating to Application), it shall notify the applicant of its findings and shall conduct a public hearing to receive public comment on the project. A public hearing held by the department under this subsection shall be conducted by the executive director of the department or the director's designee in accordance with sec.1.5 of this title (relating to Public Hearings). Any persons, including, but not limited to, official representatives of a county, municipality, metropolitan planning organization, or other governmental entity, and any individual, group, or association may provide comment. (d) Report to commission. Subsequent to the public hearing, the department will submit the application together with its findings and recommendations to the commission for appropriate action. The department will consider the views and comments received under subsection (a) of this section prior to making its findings and recommendations. sec.15.76. Commission Action. (a) Commission analysis. (1) The commission may consider the advice of the staff of the department and consultants that the commission may choose regarding the sufficiency of the information, the probable accuracy of projections, the anticipated financial condition of the application and the project, the impact of the project on the economy and free trade, and any other information the commission determines appropriate. (2) The commission may use the Texas-Mexico Toll Bridge Study as the initial basis for evaluating the demand, impact on the economy and the potential impact on the free flow of trade anticipated by the project. An applicant may submit additional information which supports, amplifies, or rebuts data in the Texas- Mexico Toll Bridge Study in the applicant's feasibility study. (b) Comments of other entities. Prior to granting approval of a project, the commission shall consider, but is not bound by, the views and comments of an agency or entity listed in s15.75 of this title (relating to Department Action). (c) Project requirements. The commission will not approve a project unless it finds that: (1) the project will provide for all reasonable and feasible measures to avoid, minimize, or mitigate for adverse environmental impacts; (2) the project is consistent with the state transportation plan and, if appropriate, with the regional transportation plan developed by a metropolitan planning organization having jurisdiction over the project; and (3) the existing transportation infrastructure on both sides of the border will be of sufficient capacity to support the new structure. (d) Financial requirements. The commission will not approve a project if it finds that the project's financial prospects over the expected financing period of the project are likely to categorize the project as being of less than investment quality due to one or more of the following conditions: (1) the project has more than minimal speculative elements in its prospective finances; (2) the financial future of the project cannot be considered as well assured; (3) protection of any lenders or bond holders is not well safeguarded over the expected financing period of the project; (4) the project will probably cause negative impacts on the economy or the free flow of trade that are greater than any probable positive impacts in the Texas-Mexico Toll Bridge Study sector where the project is located and adjacent sectors. (e) Final action. (1) Approval or disapproval of the project shall be by written order of the commission, and shall include the rationale, findings, and conclusions on which approval or disapproval is based. (2) The commission will approve or disapprove the application within 120 days of the date of receipt of a complete application. If an application is returned under sec.15.75 of this title (relating to Department Action), the commission will approve or disapprove the application within 120 days of the date that re- submitted complete application has been received by the department. Issued in Austin, Texas, on July 31, 1995. TRD-9509495 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: July 31, 1995 Expiration date: November 28, 1995 For further information, please call: (512) 463-8630