ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 115. Building and Property Services Division State-Owned Property 1 TAC sec.115.7 The General Services Commission adopts an amendment to sec.115.7, concerning burial in the State Cemetery, without changes to the proposed text as published in the September 1, 1995, issue of the Texas Register (20 TexReg 6783). The justification for the rule action is that there will be a reduction in costs for maintenance of those grave sites surrounded by curbs or railings. Section 115.7 is adopted to provide the commission with the discretion to permit applicants to place curbs or railings around individual grave spaces. No comments were received regarding adoption of the amendment. The amendment is adopted under Senate Bill 958, sec.1, 74th Legislature, 1995 (to be codified at Government Code, sec.2165.256), which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purposes of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1995. TRD-9512710 David Ross Brown Assistant General Counsel General Services Commission Effective date: October 26, 1995 Proposal publication date: September 1, 1995 For further information, please call: (512) 463-3960 TITLE 10. COMMUNITY DEVELOPMENT Part I. Texas Department of Housing and Community Affairs Chapter 9. Texas Community Development Program Subchapter A. Allocation of Program Funds 10 TAC sec.9.1, sec.9.7 The Texas Department of Housing and Community Affairs (TDHCA) adopts amendments to sec.9.1 and sec.9.7, concerning the application, the selection criteria, and the deletion of the small business incubator program and loan program for the Texas Capital Fund Program under the Texas Community Development Program, without changes to the proposed text as published in the August 29, 1995, issue of the Texas Register (20 TexReg 6730). The amendments address the expanded role of the Texas Department of Commerce in the Texas Capital Fund Program. The amended sections are being adopted to delete the small business incubator program, delete the loan program, and redefine the application, selection criteria, and role of the Texas Department of Commerce pertaining to the Texas Capital Fund Program. The amended sections delete the small business incubator program, delete the loan program and specify the guidelines and criteria for the application, selection, and administration of the Texas Capital Fund Programs by the Texas Department of Commerce. No comments were received regarding the adoption of the amendments. The amendments are adopted under Texas Government Code, Chapter 2306, sec.2306.098, which provides the Texas Department of Housing and Community Affairs with the authority to allocate Community Development Block Grant Program nonentitlement area funds to eligible counties and municipalies according to Department rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1995. TRD-9512883 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: October 30, 1995 Proposal publication date: August 29, 1995 For further information, please call: (512) 475-3909 10 TAC sec.9.3 The Texas Department of Housing and Community Affairs (TDHCA) adopts an amendment to sec.9.3, concerning the allocation of Community Development Block Grant (CDBG) non-entitlement area funds under the Texas Community Development Program, without changes to the proposed text as published in the August 29, 1995, issue of the Texas Register (20 TexReg 6730). The amendment establishes the standards and procedures by which TDHCA will allocate fiscal years 1994 and 1995 Young v. Cisneros funds. The amendment makes changes to the application procedures and selection criteria for the Young v. Cisneros fund. No comments were received regarding the adoption of the amendment. The amendment is adopted under Texas Government Code, Chapter 2306, sec.2306. 098, which provides TDHCA with the authority to allocate Community Development Block Grant non-entitlement area funds to eligible counties and municipalities according to department rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 2, 1995. TRD-9512882 Larry Paul Manley Executive Director Texas Department of Housing and Community Affairs Effective date: October 30, 1995 Proposal publication date: August 29, 1995 For further information, please call: (512) 475-3916 TITLE 13. CULTURAL RESOURCES Part II. Texas Historical Commission Chapter 26. Practice and Procedure (Editor's Note: The 74th Legislature (TX74RSB 365) abolished the Texas Antiquities Committee and transferred its authority under the Antiquities Code of Texas (Title 9, Chapter 191 of the Texas Natural Resources Code) to the Texas Historical Commission (changes to sec.191.003(1) of the Texas Natural Resources Code and the Texas Government Code, sec.442.005(b)). The Texas Register is administratively transferring the rules listed in the table published in this issue in the Tables and Graphic Section. The rules are being transferred from Title 13, Part IV. Texas Antiquities Committee to Part II. Texas Historical Commission. The table lists the old rule number and the new rule number that corresponds.) Figure: 13 TAC sec.26.1 Part IV. Texas Antiquities Committee Chapter 41. Practice and Procedure (Editor's Note: The 74th Legislature (TX74RSB 365) abolished the Texas Antiquities Committee and transferred its authority under the Antiquities Code of Texas (Title 9, Chapter 191 of the Texas Natural Resources Code) to the Texas Historical Commission (changes to sec.191.003(1) of the Texas Natural Resources Code and the Texas Government Code, sec.442.005(b)). The Texas Register is administratively transferring the rules listed in the table published in this issue in the Tables and Graphic Section. The rules are being transferred from Title 13, Part IV. Texas Antiquities Committee to Part II. Texas Historical Commission. The table lists the old rule number and the new rule number that corresponds.) Figure: 13 TAC sec.41.1 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.8 The Railroad Commission of Texas (the commission) adopts an amendment to sec.3.8, concerning to water protection, with changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2578). The amendment adds new definitions to subsection (a) and a new subsection (j). The amendment to sec.3.8 addresses requirements under the Texas Coastal Management Plan (CMP) applicable to certain commission actions. With the exception of subparagraphs (C) and (D) of paragraph (1) of the new subsection (j) (relating to policies applicable to the issuance of water quality certifications by the commission), the CMP policies applicable to commission actions reflect current commission requirements. The amendment to sec.3.8 will not be implemented or enforced until the amendments to 31 TAC sec.505.30 et seq, proposed in the July 18, 1995, issue of the Texas Register (20 TexReg 5191), take effect. The enactment of House Bill 3226 during the 74th Legislature resulted in significant amendments to the enabling legislation for the CMP. Following the passage of House Bill 3226, the Coastal Coordination Council (council) proposed to amend the CMP rules that were adopted on September 19, 1994. The proposed amendment was published in the July 18, 1995, issue of the Texas Register (20 TexReg 5171), to be codified at Title 31, Texas Administrative Code, Chapters 501, 503, 505, and 506. None of the proposed amendments to the CMP rules have a substantive effect on the amendment to sec.3.8. Therefore, the commission is adopting final amendment to sec.3.8 prior to the council's final adoption of amendments to the CMP rules. Pending final adoption of amendments to the CMP rules, the council has suspended implementation of the rules adopted on September 19, 1994, which took effect on June 15, 1995. We anticipate that, when the council adopts amendments to the CMP rules, it will establish a revised effective date for the CMP rules. Therefore, the effective date of these rules has been linked to the effective date of the CMP rules, as amended. The CMP provides that actions of state agencies and subdivisions authorizing certain activities within the coastal zone must be consistent with the enforceable goals and policies of the CMP (the CMP rules) adopted by the council. The amendment to sec.3.8 was reviewed for consistency with the CMP rules. The amendment to sec.3.8 apply only to commission actions authorizing specific activities within the CMP boundary. The CMP boundary was proposed for amendment in the July 18, 1995, issue of the Texas Register (20 TexReg 5181), to be codified at 31 TAC sec.503.1. The proposed boundary encompasses the Gulf of Mexico to the seaward limit of Texas title and ownership and areas within the following Texas counties: Cameron, Willacy, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, Galveston, Harris, Chambers, Liberty, Jefferson, and Orange. The CMP policies for the Commission's actions are found at 31 TAC sec.501.14. In particular, sec.501.14(c)(1) of the CMP rules prohibits siting a commercial oil and gas waste disposal pit in any coastal natural resource area (CNRA) and requires that oil and gas waste disposal pits be designed to prevent releases of pollutants that may adversely affect coastal waters or critical areas. Critical areas are coastal wetlands, tidal sand and mudflats, submerged aquatic vegetation, and oyster and hard substrate reefs, as defined in 31 TAC sec.501.3(b). Subsection (j)(1)(A) incorporates these requirements into sec.3.8. After implementation of this subsection, commercial disposal pits may not be constructed in a CNRA, and all disposal pits must be designed to prevent the release of pollutants to coastal waters and critical areas. Subparagraphs (A) and (C) of sec.501.14(c)(2) of the CMP rules require that oil and gas waste discharges meet the requirements of the surface water quality standards adopted by the Texas Natural Resource Conservation Commission and that the commission consider the effects of salinity when permitting any discharge. Section 501.14(c)(2)(B) of the CMP rules requires that the outfall for any new oil and gas waste discharge be located where it will not adversely affect a critical area. Section 501.14(c)(2)(B) of the CMP rules also requires that to the extent practicable, the outfall of any existing discharge that adversely affects a critical area must be relocated within two years after the effective date of the CMP goals and polices so that the discharge does not adversely affect a critical area. Otherwise, the discharge must be discontinued. Subsection (j)(1)(B) incorporates these requirements into sec.3.8. The two-year period for relocating or discontinuing existing discharges will be measured from the effective date of the amendments to 31 TAC Chapter 501. Section 501.14(h)(1) of the CMP rules requires that dredging and the construction of structures in critical areas shall comply with the policies of this subsection regarding the conservation of critical areas functions and values, the avoidance and minimization of adverse effects, and the requirement of appropriate compensatory mitigation. Subsection (j)(1)(C) incorporates these requirements into sec.3.8. Section 501.14(j)(1) of the CMP rules requires that dredging and the disposal and placement of dredged material shall avoid and otherwise minimize adverse effects to coastal waters, submerged lands, critical areas, coastal shore areas, and Gulf beaches to the greatest extent practicable. Subsection (j)(1)(D) incorporates these requirements into sec.3.8. At its meeting on June 29, 1995, the Coastal Coordination Council (council) directed that a task force be established to resolve disparities between the various thresholds for review that had been proposed by the agencies for actions subject to the CMP. The General Land Office (GLO) was the only agency other than the commission that proposed thresholds for actions relating to oil and gas exploration, production, and development that are subject to the CMP. On May 30, 1995, the GLO proposed thresholds for oil and gas activities on state-owned land, published in the May 30, 1995, issue of the Texas Register (20 TexReg 3954). Under its thresholds, the GLO distinguished between various types of coastal natural resource areas (CNRAs) and between CNRAs in the Upper and Lower Texas Coast. The Upper Coast was defined as the area between Pass Cavallo in Matagorda Bay and the border with the State of Louisiana, and the Lower Coast was defined as the area between Pass Cavallo in Matagorda Bay and the border with the Republic of Mexico. The council's threshold task force worked for eight weeks to develop criteria that could be used in the development of uniform thresholds. At the end of this process, the GLO and the commission agreed that thresholds for development in critical areas in connection with oil and gas exploration, production, and development would be set at a level ensuring that actions authorizing permanent disturbance of five acres or more would be above the threshold for all areas except bays and estuaries in the Lower Coast. For submerged aquatic vegetation or tidal sand or mud flats in the coastal bays and estuaries between Pass Cavallo in Matagorda Bay and the border with the Republic of Mexico, the GLO and the commission agreed to a higher threshold of ten acres, based on the widespread occurrence of submerged aquatic vegetation and tidal sand or mud flats in the bays and estuaries of the Lower Coast. In accordance with the directive from the council and as a result of the negotiations with the threshold task force, the commission is adopting under subsection (j)(3)(C) a threshold of ten acres for development in submerged aquatic vegetation or tidal sand or mud flats in the bays and estuaries of the Lower Coast. This amended threshold creates a lesser burden for oil and gas operators in the Lower Coast because actions that affect less than ten acres of submerged aquatic vegetation or tidal sand or mud flats will be below the threshold for review. One comment suggested that a definition be added for "adverse effects or adversely affect." Under the proposed CMP rules,"adverse effects or adversely affect" is defined to mean"[e]ffects that directly result in the physical destruction or significant detrimental alteration of a CNRA." 20 TexReg 5174, to be codified at 31 TAC sec.501.3(a)(1). However, the council may retain the previous definition which reads as follows: "Effects that result in the physical destruction or detrimental alteration of a CNRA." Both definitions include eleven examples of such alterations. Because these terms are defined under the CMP rules, no change was made in response to this comment. One comment suggested that there is an apparent inconsistency between subsection (j)(1)(A)(i) and (3)(A). Subsection (j)(3)(A) establishes a threshold for referral for oil and gas waste disposal pits that occupy five acres or more of a CNRA. Subsection (j)(1)(A)(i) prohibits the construction of a commercial oil and gas waste disposal pit in a CNRA after the revised effective date of the applicable CMP goals and policies. The prohibition under subsection (j)(1)(A)(i) is a substantive requirement that applies only to commercial waste disposal pits. The threshold for referral under subsection (j) (3)(A) is a procedural rule that relates to the exercise of the council's authority to review the commission's actions. No change was made in response to this comment. One comment noted that the requirement of subsection (j)(1)(B)(v) for notification of the Texas Natural Resource Conservation Commission and the Texas Parks and Wildlife Department upon receipt of an application to discharge produced waters into waters under tidal influence will assist in coordination between the commission and other agencies. No change was made in response to this comment. One comment requested that the commission revisit this rule if the CMP is changed significantly by the Legislature. The amendments to the CMP rules proposed in response to legislative revisions of the CMP enabling legislation do not substantially affect the provisions of 31 TAC sec.501.14(c) that apply to the commission's actions. However, the commission makes the following changes to the proposed amendment to sec.3.8 to conform to the provisions of House Bill 3226 and the proposed changes to the CMP rules: the term "coastal area" is changed to "coastal zone" in sec.3.8(a)(35) and sec.3.8(j)(1)(A) and (B) ; the definitions of "coastal management program," "coastal natural resource area," "coastal waters," and "critical area" in sec.3.8(a)(36)-(39) are amended to conform to the definitions of these terms under House Bill 3226; the definition of "practicable" in sec.3.8(a)(40) is amended to conform to the definition under the proposed CMP rules, which appeared in the July 18, 1995, issue of the Texas Register (20 TexReg 5175), to be codified at 31 TAC sec.501.3(a)(10); references to the effective date of the CMP rules in sec.3.8(j) (1)(A)(i) and (B)(iii) and (iv) are changed to account for the proposed revisions to the CMP rules; and a citation in sec.3.8(j)(2) is changed to conform to the proposed CMP rules. The following groups or associations submitted comments regarding the proposed amendment to sec.3.8 without expressing an opinion in favor of or against the proposed amendment: City of Corpus Christi, Texas Parks and Wildlife Department, and Texas Mid-Continent Oil and Gas Association. The amendment is adopted under Texas Natural Resources Code, sec.91.101, which authorizes the commission to adopt rules and issue permits to prevent pollution of surface and subsurface waters, including permits relating to the discharge and disposal of oil and gas waste; Texas Natural Resources Code, sec.85.402(b), which authorizes the commission to adopt rules for the prevention of operations in the field that are dangerous to life or property; Texas Natural Resources Code, sec.33.205(a), which provides that agencies must comply with the CMP goals and policies when taking an action that is subject to the CMP; Texas Natural Resources Code, sec.33.2051, which relates to rulemaking actions that are subject to the CMP goals and policies; Texas Natural Resources Code, sec.33.2052, which relates to the certification of agency rules for consistency with the CMP goals and policies; and Texas Water Code, sec.26.131, which authorizes the commission to issue permits for the discharge of waste from activities associated with the exploration, development, and production of oil or gas or geothermal resources. sec.3.8. Water Protection. (a) The following words and terms when used in this section shall have the following meanings, unless the context clearly indicates otherwise. (1)-(34) (No change.) (35) Coastal zone-The area within the boundary established in Title 31, Texas Administrative Code, sec.503.1 (relating to coastal management program boundary). (36) Coastal management program (CMP) rules-The enforceable rules of the Texas Coastal Management Program codified at Title 31, Texas Administrative Code, Chapters 501, 505, and 506. (37) Coastal natural resource area (CNRA)-One of the following areas defined in Texas Natural Resources Code, sec.33.203: coastal barriers, coastal historic areas, coastal preserves, coastal shore areas, coastal wetlands, critical dune areas, critical erosion areas, gulf beaches, hard substrate reefs, oyster reefs, submerged land, special hazard areas, submerged aquatic vegetation, tidal sand or mud flats, water in the open Gulf of Mexico, and water under tidal influence. (38) Coastal waters-Waters under tidal influence and waters of the open Gulf of Mexico. (39) Critical area-A coastal wetland, an oyster reef, a hard substrate reef, submerged aquatic vegetation, or a tidal sand or mud flat as defined in Texas Natural Resources Code, sec.33.203. (40) Practicable-Available and capable of being done after taking into consideration existing technology, cost, and logistics in light of the overall purpose of the activity. (b)-(i) (No change.) (j) Consistency with the Texas Coastal Management Program. The provisions of this subsection apply only to activities that occur in the coastal zone and that are subject to the CMP rules. (1) Specific Policies. (A) Disposal of Oil and Gas Waste in Pits. The following provisions apply to oil and gas waste disposal pits located in the coastal zone: (i) no commercial oil and gas waste disposal pit constructed after the effective date of this subsection (j) shall be located in any CNRA; and (ii) all oil and gas waste disposal pits shall be designed to prevent releases of pollutants that adversely affect coastal waters or critical areas. (B) Discharge of Oil and Gas Waste to Surface Waters. The following provisions apply to discharges of oil and gas waste that occur in the coastal zone: (i) no discharge of oil and gas waste to surface waters may cause a violation of the Texas Surface Water Quality Standards adopted by the Texas Natural Resource Conservation Commission and codified at Title 30, Texas Administrative Code, sec.307; (ii) in determining whether any permit to discharge oil and gas waste that is comprised, in whole or in part, of produced water is consistent with the goals and policies of the CMP, the commission shall consider the effects of salinity from the discharge; (iii) to the greatest extent practicable, in the case of any oil and gas exploration, production, or development operation from which an oil and gas waste discharge commences after the effective date this subsection (j), the outfall for the discharge shall not be located where the discharge will adversely affect any critical area; (iv) in the case of any oil and gas exploration, production, or development operation with an oil and gas waste discharge permitted prior to the effective date of this subsection (j) that adversely affects any critical area, the outfall for the discharge shall either: (I) be relocated within two years after the effective date of this subsection, so that, to the greatest extent practicable, the discharge does not adversely affect any critical area; or (II) the discharge shall be discontinued; and (v) the commission shall notify the Texas Natural Resource Conservation Commission and the Texas Parks and Wildlife Department upon receipt of an application for a permit to discharge oil and gas waste that is comprised, in whole or in part, of produced waters to waters under tidal influence. (C) Development in Critical Areas. The provisions of this subparagraph apply to issuance under sec.401 of the federal Clean Water Act, United States Code, Title 33, sec.1341, of certifications of compliance with applicable water quality requirements for federal permits authorizing development affecting critical areas. Prior to issuing any such certification, the commission shall confirm that the requirements of Title 31, Texas Administrative Code, sec.501.14(h)(1)(A)-(G) have been satisfied. The commission shall coordinate its efforts under this subparagraph with those of other appropriate state and federal agencies. (D) Dredging and Dredged Material Disposal and Placement. The provisions of this subparagraph apply to issuance under sec.401 of the federal Clean Water Act, United States Code, Title 33, sec.1341, of certifications of compliance with applicable water quality requirements for federal permits authorizing dredging and dredged material disposal and placement in the coastal zone. Prior to issuing any such certification, the commission shall confirm that the requirements of Title 31, Texas Administrative Code, sec.501. 14(j), have been satisfied. (2) Consistency Determinations. The provisions of this paragraph apply to issuance of determinations required under Title 31, Texas Administrative Code, sec.505.30 (relating to agency consistency determination), for the following actions listed in Title 31, Texas Administrative Code, sec.505.11(a)(3): permits to dispose of oil and gas waste in a pit; permits to discharge oil and gas wastes to surface waters; and certifications of compliance with applicable water quality requirements for federal permits for development in critical areas and dredging and dredged material disposal and placement in the coastal area. (A) The commission shall issue consistency determinations under this paragraph as an element of the permitting process for permits to dispose of oil and gas waste in a pit and permits to discharge oil and gas waste to surface waters. (B) Prior to issuance of a permit or certification covered by this paragraph, the commission shall determine if the proposed activity will have a direct and significant adverse effect on any CNRA identified in the provisions of paragraph (1) of this subsection that are applicable to such activity. (i) If the commission determines that issuance of a permit or a certification covered by this paragraph would not result in direct and significant adverse effects to any CNRA identified in the provisions of paragraph (1) of this subsection that are applicable to the proposed activity, the commission shall issue a written determination of no direct and significant adverse effect which shall read as follows: "The Railroad Commission has reviewed this proposed action for consistency with the Coastal Management Program (CMP) goals and policies, in accordance with the regulations of the Coastal Coordination Council (council), and has found that the proposed action will not have a direct and significant adverse affect on any coastal natural resource area (CNRA) identified in the applicable policies. " (ii) If the commission determines that issuance of a permit or certification covered by this paragraph would result in direct and significant adverse affects to a CNRA identified in the provisions of paragraph (1) of this subsection that are applicable to the proposed activity, the commission shall determine whether the proposed activity would meet the applicable requirements of paragraph (1) of this subsection. (I) If the commission determines that the proposed activity would meet the applicable requirements of paragraph (1) of this subsection, the commission shall issue a written consistency determination which shall read as follows: "The Railroad Commission has reviewed this proposed action for consistency with the Texas Coastal Management Program (CMP) goals and policies, in accordance with the regulations of the Coastal Coordination Council (council), and has determined that the proposed action is consistent with the applicable CMP goals and policies." (II) If the commission determines that the proposed activity would not meet the applicable requirements of paragraph (1) of this subsection, the commission shall not issue the permit or certification. (3) Thresholds for Referral. Any commission action that is not identified in this paragraph shall be deemed not to exceed thresholds for referral for purposes of the CMP rules. Pursuant to Title 31, Texas Administrative Code, sec.505.32 (relating to requirements for referral of an individual agency action), the thresholds for referral of consistency determinations issued by the commission are as follows: (A) for oil and gas waste disposal pits, any permit to construct a pit occupying five acres or more of any CNRA that has been mapped or that may be readily determined by a survey of the site; (B) for discharges, any permit to discharge oil and gas waste consisting, in whole or in part, of produced waters into tidally influenced waters at a rate equal to or greater than 100, 000 gallons per day; (C) for certification of federal permits for development in critical areas: (i) in the bays and estuaries between Pass Cavallo in Matagorda Bay and the border with the Republic of Mexico, any certification of a federal permit authorizing disturbance of: (I) ten acres or more of submerged aquatic vegetation or tidal sand or mud flats; or (II) five acres or more of any other critical area; and (ii) in all areas within the coastal zone other than the bays and estuaries between Pass Cavallo in Matagorda Bay and the border with the Republic of Mexico, any certification of a federal permit authorizing disturbance of five acres of more of any critical area; (D) for certification of federal permits for dredging and dredged material disposal or placement, certification of a permit authorizing removal of more than 10,000 cubic yards of dredged material from a critical area. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512644 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 463-7008 16 TAC sec.3.93 The Railroad Commission of Texas (the commission) adopts new sec.3.93, concerning water quality certification, with changes to the proposed text as published in the April 7, 1995, issue of the Texas Register (20 TexReg 2581). Pursuant to sec.401 of the Federal Clean Water Act, United States Code, Title 33, sec.1341, the applicant for any federal permit that may result in a discharge into waters of the United States must provide the federal permitting agency with a state certification of compliance with applicable water quality requirements. These state certifications of compliance with applicable water quality requirements are called sec.401 certifications. New sec.3.93 governs issuance of sec.401 certifications by the commission. New sec.3.93 will not be implemented or enforced until the amendments to 31 TAC sec.505.30 et seq, proposed in the July 18, 1995, issue of the Texas Register (20 TexReg 5191), take effect. Under Texas Natural Resources Code, sec.91.101, and Texas Water Code, sec.26. 131, the commission has jurisdiction to grant sec.401 certifications for federal permits covering activities associated with the exploration, development, and production of oil, gas, and geothermal resources that may result in discharges to waters of the United States. Section 401 certifications are required for National Pollutant Discharge Elimination System (NPDES) permits issued by the U.S. Environmental Protection Agency (EPA) under the Federal Clean Water Act, sec.402, United States Code, Title 33, sec.1342; permits to discharge dredged or fill material issued by the U.S. Army Corps of Engineers (the corps) under sec.404 of the Federal Clean Water Act, United States Code, Title 33, sec.1344; and permits issued by the corps for activities which might affect navigation under sec.9 and sec.10 of the Rivers and Harbors Act of 1899, United States Code, Title 33, sec.402. In addition, under the Texas coastal management plan (CMP), state agencies must take into account the goals and policies of the CMP in developing rules and policies for certain activities within the coastal zone. New sec.3.93 provides that a water quality certification or waiver of certification from the commission is required for an activity conducted under a federal permit which may result in a discharge into waters of the United States. Section 401 of the federal Clean Water Act provides that states must certify that federal licenses and permits comply with applicable water quality requirements. The oil and gas exploration and production activities that will be affected by this rule include activities for which a federal wastewater discharge permit is required and permits for the dredge and fill of waters of the United States, including wetlands. New sec.3.93(d) provides that the commission will cooperate with the EPA and the corps in the issuance of joint notices and requests for certification. If joint notice is not used in an instance when certification is required, new sec.3.93(c) provides for specific notice procedures for such an instance. New sec.3.93(e) provides for public comment on a request for certification. New sec.3.93(f) describes the commission's standard of review for requests for certification. New sec.3.93(g) provides that the commission may waive certification, grant certification, conditionally grant certification, or deny certification. If a request for certification in denied, new sec.3.93(g)(5) provides that an applicant may request a hearing on the commission's final determination. New sec.3.93(h) establishes penalties for the violation of this section. One comment requested that "letters of permission" be added to the definition of "Department of Army permits" under proposed sec.3.93(a). The definition of "Department of Army permits" has been revised as requested. One comment requested that all references to the Rivers and Harbors Act be deleted. In many instances, the corps will have jurisdiction over a project under both the Rivers and Harbors Act and sec.404 of the Clean Water Act. In such instances, the corps will request sec.401 certification for the sec.404 permit. However, in those instances where only a permit under the Rivers and Harbors Act is required, the state must provide a sec.401 certification before the corps may issue the permit. For purposes of clarification, the definition of "Department of the Army permit" has been modified to include a reference to sec.10 of the Rivers and Harbors Act. One comment noted the statement in the preamble that the commission may consider the federal sec.404(b)(1) guidelines when reviewing a request for water quality certification. The comment suggested that the commission's review of the sec.404(b)(1) guidelines duplicates work performed by the U.S. Army Corps of Engineers and that the commission's review of the sec.404(b)(1) guidelines would increase the permit review time for the applicant. The commission is required to ensure that permits comply with applicable water quality requirements, including the sec.404(b)(1) guidelines. The commission will make every effort to avoid duplicating work performed by the corps or causing needless delays of the corps' sec.404 permit review process. No change was made in response to this comment. One comment stated that the proposed rule did not address activities conducted under Nationwide Permits 12, 18, and 26 and the procedures for notification adopted by the individual corps districts for these nationwide permits. Under these notification procedures, the person conducting the activity authorized by these nationwide permits must provide notice to the state but not the corps. The notice procedures under these nationwide permits do not apply to the sec.401 certification process because a proposed nationwide or general permit must receive state certification before it is adopted. The sec.401 certification procedures described herein apply when a nationwide permit or general permit is first proposed and prior to its effective date. After a nationwide permit or general permit has been adopted by the corps and taken effect, state certification is not required for individual projects that are carried out under that nationwide or general permit. No change was made in response to this comment. One comment requested that the commission review the current sec.404 permitting requirements to ensure that the request for certification contains all the information necessary for the commission's review. In response to this comment, the commission has amended sec.3.93(c) to provide that a request for certification associated with a sec.404 permit application for an activity in the coastal zone must include a description of the acreage proposed to be filled. This information is necessary to readily determine whether the proposed certification would exceed a threshold for referral for review by the Coastal Coordination Council. Otherwise, the commission believes that the information provided with the request for certification will generally be adequate. Nevertheless, sec.3.93(c) allows the commission to request additional information when necessary. Two comments requested that the time for responding to a request for additional information be increased from ten days to 20 or 30 days. In the alternative, one of these comments requested that the ten-day limitation be deleted. Section 3.93(c)(3) provides that the ten-day limitation applies "except as otherwise provided." If more than ten days will be necessary to compile the requested information, the commission may provide an applicant with additional time to comply with a request. However, new sec.3.93 also provides that the commission must issue a final determination on a request for certification within 15 days of the close of the public comment period, unless a longer period of time is agreed to by the federal permitting agency. The commission cannot delay its final determination without also delaying consideration of the federal permit by the EPA or the corps. A prompt response to a request for additional information is necessary in order to avoid any delays in the federal permitting process. No change was made in response to this comment. One comment requested clarification of the consequences if additional information is not submitted within the ten day period. The commission will request additional information where the commission believes that such information is necessary to review a request for certification. In order for the commission to coordinate the sec.401 certification process with the federal permitting agency, the commission must issue a final determination on a request for certification within 45 days of the request for certification, unless the EPA or the corps has agreed to extend the time for issuance of a certification. Thus, where additional information cannot be provided within the required ten day period, the applicant and the commission must arrange with the corps or the EPA to extend the time 27> for issuance of the certification. No change was made in response to this comment. One comment requested that the effective date of the proposed rule be delayed pending the establishment of procedures for the issuance of joint notice. The commission has been working with the EPA and the corps districts to develop procedures for the issuance of joint notice. These procedures should be finalized prior to the effective date of new sec.3.93. No change was made in response to this comment. One comment requested that the provision for notice under sec.3.93(d)(2)(B) be read to include a city's extraterritorial jurisdiction. Section 3.93(d)(2) (B) provides that, if a joint notice is not used, an applicant must provide notice to the mayor and health authorities of any city or town in which the proposed activity is located or that is within 1/2 mile of the potential discharge, and subparagraph (C)(2) requires that an applicant must provide notice to the county judge and health authorities of any county in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge. Because the rule provides that the county judge and health authorities will receive notice of a potential discharge, the commission does not agree that an applicant should be required to provide a city with notice of a potential discharge located more than 1/2 mile from the city limits. No change was made in response to this comment. One comment suggested that sec.3.93(d)(3)(E) be amended to provide that a copy of the permit application will be available for review in a Texas office of the federal permitting agency or at the commission. The request for certification that the commission receives may not include all of the information that is in the application, so a copy of the application may not be available for review at the commission. The EPA's regional office is in Dallas, and the corps has district offices in Galveston, Fort Worth, and El Paso. The office for the corps' Tulsa district is in Oklahoma. The Tulsa District includes the Texas Panhandle and counties within the watershed of the Red River. For persons conducting activities in the Tulsa District, it will probably be more convenient to review the permit applications in Tulsa than the commission offices in Austin. No change was made in response to this comment. One comment noted that the provision under subsection (d)(2)(e) for notification of the Texas Parks and Wildlife Department will assist in coordination between the commission and the Department. No change was made in response to this comment. One comment requested that the proposed rule be amended to specifically provide for the processing of emergency sec.404 actions. An "emergency" is defined under the corps' regulations as "a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures." Code of Federal Regulations, Title 33, sec.325.2(e)(4). In response to this comment, sec.3.93(d) (4) has been added to provide that the commission may waive notice and hearing requirements for a request for certification relating to a dredge or fill project in the event of an emergency. One comment noted that the corps does not issue a statement of findings until after a sec.401 certification has been received and that it is inappropriate under proposed sec.3.93(g)(1) for the commission to delay acting upon a request for certification until after the statement of findings has been issued. In response to this comment, the statement that the commission may delay acting upon a request for certification until issuance of the statement of findings by the corps has been deleted from sec.3.93(g)(1). One comment requested that the commission's procedures track the corps' procedures for sec.404 applications to reduce any delays in the sec.404 permitting process and avoid increasing applicants' expenses. These rules are intended to be consistent with existing federal regulations, and the commission will implement these rules so that administrative delays are minimized. No changes were made in response to this comment. The following groups or associations submitted comments regarding the proposed new sec.3.93 without expressing an opinion in favor of or in opposition to the proposed rule: City of Corpus Christi, El Paso Natural Gas Company, Texas Parks and Wildlife Department, Texas Mid-Continent Oil & Gas Association, and U.S. Army Corps of Engineers. The new section is adopted under Texas Natural Resources Code, sec.91.101, which authorizes the commission to adopt rules and issue permits to prevent pollution of surface and subsurface waters, including adoption of rules and issuance of permits for the management of oil and gas waste; Texas Natural Resources Code, sec.33.205, which provides that agencies must comply with the CMP goals and policies when taking an action that is subject to the CMP; Texas Natural Resources Code, sec.33.2051, which relates to rulemaking actions that are subject to the CMP goals and policies; Texas Natural Resources Code, sec.33. 2052, which relates to the certification of agency rules for consistency with the CMP goals and policies; and Texas Water Code, sec.26.131, which authorizes the commission to issue permits for the discharge of waste from activities associated with the exploration, development, and production of oil, gas or geothermal resources. sec.3.93. Water Quality Certification Definitions. The following words and terms when used in this section, shall have the following meanings, unless the context clearly indicates otherwise: (1) 401 certification-A certification issued by the commission, under the authority of the Federal Clean Water Act, sec.401, that a federal permit that may result in a discharge to waters of the United States is consistent with applicable state and federal water quality laws and regulations. (2) Commission-The Railroad Commission of Texas or its designee. (3) Department of the Army permits-Individual or general permits or letters of permission issued by the U.S. Army Corps of Engineers under the authority of the Federal Clean Water Act, sec.404, or the Rivers and Harbors Act of 1899, sec.9 andsec.10, United States Code, Title 33, sec.402 and sec.403. (4) District engineer-The U.S. Army Corps of Engineers representative responsible for administering and enforcing federal laws and regulations, including processing and issuance of permits, under the jurisdiction of the U. S. Army Corps of Engineers. (5) Federal Clean Water Act-United States Code, Title 33, Chapter 26. (6) NPDES permit-A permit issued by the regional administrator under the authority of the Federal Clean Water Act, sec.402, Title 33, United States Code, sec.1342. NPDES permits can either be individual or general permits. (7) Permitting agency-Any agency of the federal government to which application is made for any permit to conduct an activity that may result in any discharge into waters of the United States. (8) Person-A natural person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity. (9) Pollutant-Any constituent that contaminates or alters the physical, thermal, chemical, or biological quality of water so as to be harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to the public health, safety, or welfare, or that impairs the usefulness or the public enjoyment of the water for any lawful purpose. (10) Regional administrator-The administrator of the United States Environmental Protection Agency, Region 6. (11) Water quality standards-Texas Surface Water Quality Standards, Title 30, Texas Administrative Code, Chapter 307. (12) Waters of the United States-Interstate waters, the territorial seas, and waters that would or could affect interstate commerce, including tributaries of such waters and adjacent wetlands, as defined in Title 33, Code of Federal Regulations, Part 328. (b) Certification Required. No person may conduct any activity subject to the jurisdiction of the commission pursuant to a Department of the Army permit or an NPDES permit if the activity may result in a discharge into waters of the United States within the boundaries of the State of Texas, unless the commission has first issued a certification or waiver of certification under this section. (c) Request for Certification. The regional administrator, district engineer, or the permit applicant may submit a request for certification to the commission. (1) Request by Applicant. If the permit applicant requests certification, the applicant shall submit to the commission: (A) a copy of the completed permit application and any amendments thereto; (B) a list on a map or on a separate sheet attached to a map of the names and addresses of owners of tracts of land adjacent to the site where the proposed activity would occur and, where the activity may result in a discharge to watercourse other than the Gulf of Mexico or a bay, the owners of each waterfront tract between the potential discharge point and 1/2 mile downstream of the potential discharge point, except for those waterfront tracts within the corporate limits of an incorporated city, town, or village; (C) a request for certification; and (D) for Department of the Army permits in the coastal zone, as described in 31 TAC sec.503.1 (relating to coastal management program boundary), a description of the acreage proposed to be filled, if any. (2) Request by EPA or the Corps. Except as provided in subsection (d)(1) of this section, a request for certification submitted by the regional administrator or the district engineer shall contain the information specified in this paragraph: (A) a copy of the public notice; (B) a request for certification; (C) for NPDES permits, a copy of the draft permit, if available; and (D) for Department of the Army permits in the coastal zone, as described in 31 TAC sec.503.1 (relating to coastal management program boundary), a description of the acreage proposed to be filled, if any. (3) Request for Additional Information. Where the commission believes more information is required to accomplish review of a request for certification, the commission shall notify the applicant or the permitting agency and request such information. In response to such a notification from the commission, the applicant or the permitting agency shall submit such materials as the commission finds necessary for review of the request for certification. Except as otherwise provided,such information shall be provided within ten days of issuance of a request for additional information by the commission. (d) Notice of Request for Certification. (1) Joint Notice. Notice of a request for certification shall be made using a joint mailed notice issued by the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency after agreements with those agencies have been reached regarding the content of the notice and the persons entitled to notice in Texas. When a joint notice is issued by either the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency, the requirements of subsection (c)(2) of this section do not apply. (2) Notice by Applicant. If a joint notice is not used as provided in paragraph (1) of this subsection, the applicant must mail notice of the request for certification on or before the date the request for certification is filed with the commission. Such notice shall include the information required in paragraph (3) of this subsection. The applicant shall provide notice by first class mail to: (A) the owners of land adjacent to the tract upon which the activity is proposed to take place, and where the activity may result in a discharge to a watercourse other than the Gulf of Mexico or a bay, the surface owners of each waterfront tract between the potential discharge point and 1/2 mile downstream of the potential discharge point, excluding owners of those waterfront tracts within the corporate limits of an incorporated city, town, or village; (B) the mayor and health authorities of any city or town in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge; (C) the county judge and health authorities of any county in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge; (D) the Texas Natural Resource Conservation Commission; (E) the Texas Parks and Wildlife Department; (F) the U.S. Environmental Protection Agency, Region 6; (G) the U.S. Fish and Wildlife Service; and (H) for a proposed activity within the coastal management program boundary as defined under Title 31, Texas Administrative Code sec.503.1 (relating to coastal management program boundary), the Secretary of the Coastal Coordination Council. (3) Contents of Notice. Any notice provided as required in paragraph (2) of this subsection shall contain: (A) the applicant's name and mailing address, together with the name and mailing address of the party conducting the activity, if different from the applicant; (B) a brief written description of the activity; (C) a statement that the applicant is seeking certification from the commission under the Federal Clean Water Act, sec.401; (D) a statement that any comments concerning the request for certification may be submitted in writing to the assistant Director of Environmental Services, Railroad Commission, 1701 North Congress Avenue, P.O. Box 12967, Austin, Texas 78711-2967, on or before the deadline for submission of written public comments, which, absent special circumstances, shall be at least 30 days after the date notice is mailed; and (E) a statement that a copy of the permit application is available for review in the office of the federal permitting agency. (4) Emergency Actions. When the division engineer for the U.S. Army Corps of Engineers authorizes emergency procedures and it is in the public interest to provide a certification in less than 30 days, the commission may waive the notice and hearing requirements under this section and issue a final determination. For emergency actions within the coastal zone, as described in 31 TAC sec.503.1 (relating to coastal management program boundary), the commission may only issue a final determination if the emergency action is consistent with the provisions of 31 TAC sec.501.14(j)(7) (relating to policies for specific activities and coastal natural resource areas). (e) Public Comments. (1) Written Comments. The commission shall consider all comments related to the water quality impacts of the proposed activity that are submitted to the commission in writing prior to the deadline for submission of comments. (2) Public Meetings. The commission shall hold a meeting to receive public comment on a request for certification if the commission finds that such a meeting is in the public interest. If the commission holds a meeting to receive public comment on a request for certification, the commission shall notify the applicant by first class mail not less than ten days before the date set for the public meeting that a meeting to receive public comment will be held on the request for certification. The commission will also provide notice by first- class mail or by personal service to all of the persons identified under subsection (d)(2) of this section and the federal permitting agency at least ten days prior to the public meeting. The notice of public meeting shall identify the federal permit application; the date, time, place, and nature of the public meeting; the legal authority and jurisdiction under which the public meeting is to be held; the applicant's proposed action; the requirements for submitting written comments; the method for obtaining additional information; and such other information as the commission deems necessary. The notice to the federal permitting agency shall also estimate the additional time necessary to consider the request for certification and shall state that the commission is not waiving certification. (f) Commission Review of Requests for Certification. After expiration of the time for receipt of public comments, the commission shall determine whether the proposed activity for which a request for certification has been received will result in any discharge into waters of the United States within the boundaries of the State of Texas, and if so, whether the proposed activity will comply with all applicable water quality requirements. Applicable water quality requirements include, but are not limited to, state water quality standards, and any other applicable water quality requirements. For an activity within the boundary of the Texas Coastal Management Program (CMP), applicable state water quality requirements include the enforceable goals and policies of the CMP, Title 31, Texas Administrative Code, Chapter 501. (g) Final Action. (1) Issuance of Final Determination. A final determination on a request for certification of an NPDES or Department of the Army permit shall be issued by the commission within 15 days from the close of the public comment period, unless the regional administrator or the district engineer, in consultation with the commission, finds that unusual circumstances require a longer time. If the commission does not act upon the request for certification within 15 days from the close of the public comment period or within a longer time granted by the regional administrator or the district engineer, the commission will be deemed to have waived certification. Notwithstanding any contrary provisions of this paragraph, in unusual circumstances the commission may elect to delay acting upon a request for certification of an NPDES permit until after a review of the draft permit. (2) Notification of Final Determination. The commission shall notify the applicant, the regional administrator or district engineer, and any person so requesting of its final determination. Such final determination shall waive, grant, grant conditionally or deny certification. The notification of a final determination shall be in writing and shall include: (A) the name and address of the applicant; (B) a statement of conditions that are necessary to ensure compliance with the applicable water quality requirements; (C) when the state certifies a draft permit instead of a permit application, any condition required to ensure compliance with applicable water quality requirements shall be identified, citing the federal or state law references upon which that condition is based. Failure by the commission to provide such a citation waives its right to certify with respect to that condition; (D) for NPDES permits, a statement of the extent to which each condition of the draft permit can be made less stringent without the concurrence of the commission; and (E) a statement of the basis for the commission's determination to waive certification, grant certification, grant conditional certification, or deny certification. (3) Statement of Basis. (A) If a waiver of certification is made, the statement of basis for the commission's determination shall explain that the waiver is based on a determination that no discharge will result from the activity or that the activity does not fall within the commission's jurisdiction or that the commission expressly waives its authority to act on a request for certification for other reasons. (B) If a certification or conditional certification is made, the statement of basis for the commission's determination shall include either a statement that there is reasonable assurance that the activity will be conducted in a manner which will not violate any applicable water quality requirements or a statement of conditions, including monitoring conditions, that the commission deems necessary to assure that the discharge will not violate applicable water quality requirements. (C) If a denial of certification is made, the statement of basis for the commission's determination will explain why the commission has determined that the proposed activity will result in a violation of applicable water quality requirements. (4) Limitation. The commission shall not condition or deny certification of an NPDES permit on the grounds that state law allows a less stringent permit condition. (5) Request for Hearing. If the commission's final determination denies certification, the applicant may request a hearing on the final determination. If the commission's final determination grants a conditional certification and the applicant disagrees with one or more of such conditions, the applicant may request a hearing on the final determination. A request for a hearing must be filed within 15 days after the commission issues its final determination. The commission shall provide notice of the hearing to each of the parties provided notice of the final determination as provided in paragraph (2) of this subsection. After hearing, the examiner shall recommend a final action by the commission. (h) Penalties. Violations of this section may subject a person to penalties and remedies specified in the Texas Natural Resources Code, Title 3, and any other statutes administered by the commission. The certificate of compliance for any oil, gas, or geothermal resource well may be revoked in the manner provided in sec.3.68 of this title (relating to pipeline connection and severance) (Rule 73) for violation of this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512645 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: April 7, 1995 For further information, please call: (512) 463-7008 Chapter 9. Liquefied Petroleum Gas Division The Railroad Commission of Texas adopts the repeal of sec.9.161, relating to retroactivity, and amendments to sec.9.3, relating to LP-gas report forms, and sec.9.4, relating to categories of licenses and related fees, without changes to the proposed text, and adopts amendments to sec.9.1, relating to application of rules, severability, and retroactivity; sec.9.6, relating to examination and course of instruction; and sec.9.19, relating to insurance requirements, with changes to the proposed text as published in the August 15, 1995, issue of the Texas Register (20 TexReg 6181). The text of sec.sec.9.3, 9.4, and 9.161 will not be republished. The commission adopts these amendments to implement House Bill 1226 enacted by the 74th legislature and effective September 1, 1995. The bill clarifies three commonly-used industry terms and also clarifies insurance requirements. Other proposed nonsubstantive amendments include some changes in wording, punctuation, and organization to provide clearer language. In addition, the text in current sec.9.161 has been moved to sec.9.1, and the current sec.9.161 is repealed. Three other areas addressed in House Bill 1226, regarding training, reciprocity of licensing requirements between states, and acceptance of alternative insurance, are being considered for future rulemakings. One individual commented in favor of the proposed amendments. Another individual and the Texas Propane Gas Association suggested several changes to the published proposed rules. As to sec.9.1(a) and sec.9.19(c), the comments suggested minor wording changes to promote clearer understanding of the rules; the commission agrees with these suggestions and has made the appropriate changes. For sec.9.1(a)(12), the comments suggested changing the phrase "engine fuel equipment" to "industrial engine equipment;" the commission disagrees with this suggestion as the language "engine fuel equipment" is parallel to the language in the statute. The comments question the reference in sec.9.6(f) (4) to certain lines on Table 1 which do not correspond to the Table 1 currently in the LP-Gas Safety Rules ; however, the reference is to the proposed Table 1, which was published in the "Tables and Graphics" section of the August 15, 1995, Texas Register (20 TexReg 6214). Therefore, the commission makes no change to this section. The comments suggested a change in the language in sec.9.19(a) regarding the filing of valid certificates of insurance. The published wording indicates that the licensee or applicant for license must file the certificate; however, insurance industry practice is for the insurer to file these certificates. The comments recognized the commission's desire to place the burden for filing valid certificates of insurance on the licensee or applicant for license. The commission agrees with the suggested wording and has made this change in the adopted version. No other groups or associations submitted comments. Subchapter A. General Applicability and Requirements 16 TAC sec.sec.9.1, 9.6, 9.19 The amendments are adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute affected by the adopted amendments: Texas Natural Resources Code, sec.113.051. sec.9.1. Application of Rules, Severability, and Retroactivity. (a) The Liquefied Petroleum Gas Division's safety rules apply to the design, construction, location, and operation of liquefied petroleum gas systems, equipment, and appliances. These standards also apply to truck and railcar loading racks, but do not apply to marine terminals, natural gasoline plants, refineries, tank farms, gas manufacturing plants, plants engaged in processing liquefied petroleum gases, or to railcar loading racks used in connection with these excluded establishments. (1)-(11) (No change.) (12) Division XI. Division XI applies to industrial fork lifts, trucks, and other LP-gas powered vehicles and engine fuel equipment specifically designed to be used in a building or on a consumer's premises. (13)-(15) (No change.) (b)-(c) (No change.) (d) Unless otherwise stated, the LP-Gas Safety Rules are not retroactive. sec.9.6. Examination and Course of Instruction. (a) (No change.) (b) General Installers and Repairmen Exemption. (1) Any person who is currently licensed as a mater or journeyman plumber by the Texas State Board of Plumbing Examiners or who is currently licensed with a Class A or B Air Conditioning and Refrigeration Contractors License issued by the Department of Licensing and Regulation may apply for and be granted an exemption to the Category D management examination and any service and installation employee level examination, excluding an engine fuel examination, for those categories listed in Table 1 of this section, and applicable seminar or course of instruction requirements by submitting to the commission the following information: (A)-(C) (No change.) (2)-(9) (No change.) (10) Applicants for license or licensees who qualify for the general installers and repairmen exemption are not required to take the one-hour course of instruction specified in Table 1 of this section. (c)-(e) (No change.) (f) Course of instruction. (1)-(3) (No change.) (4) Ultimate consumers who have purchased, leased, or obtained other rights in any vessel defined as an LP-gas transport, including any employee of an ultimate consumer that drives or in any way operates an LP-gas transport, shall pass one or more of the employee examinations listed in section B, lines 1 and 2, of Table 1 of this section. Figure 1: 16 TAC sec.9.6(f)(4) sec.9.19. Insurance Requirements. (a) Pursuant to the Texas Natural Resources Code, Chapter 113, the Railroad Commission of Texas has adopted the minimum amounts of insurance for LP-gas licensees licensed by the State of Texas specified in Table 1 of this section. Applicants shall file or cause to be filed a valid certificate of insurance with the commission before it grants or renews a license, and a valid certificate of insurance shall remain in effect during the entire period that the license is in effect. Figure 1: 16 TAC sec.9.19(a) (b) Certificates of insurance filed with the commission shall have one of the endorsements specified in Table 1 of this section attached to the policy, and the endorsements may not be cancelled without cancellation of the policy to which they are attached. (c) Each endorsement issued and attached to a certificate of insurance requires the insurance carrier, noted as "company" on the certificate of insurance, to give the commission written notice 30 days before the insurance cancellation. The 30-day notice commences to run from the date the notice is actually received by the commission. (d) A licensee or applicant for a license that does not employ or contemplate employing any employee in LP-gas activities may file LPG Form 996B in lieu of a certificate of workers' compensation, including employer's liability insurance, or alternative accident and health insurance coverage. The licensee or applicant for license shall file the required insurance certificate with the commission before hiring any person as a dealership employee. (e) (No change.) (f) A Category A, B, C, E, or O licensee or applicant for a license that does not engage in or contemplate engaging in any LP-gas operations that would be covered by completed operations or products liability insurance, or both, may file LPG Form 998B in lieu of a certificate of completed operations and/or products liability insurance. The licensee or applicant for a license shall file the required insurance certificate with the commission before engaging in any operations that require completed operations and/or products liability insurance. (g)-(h) (No change.) (i) A state agency or institution, county, municipality, school district, or other governmental subdivision may meet the requirements of this section for workers' compensation, general liability, and/or motor vehicle liability insurance by filing LPG Form 995 with the commission as evidence of self- insurance, if permitted by the state Workers' Compensation Act, Texas Civil Statutes, Articles 8308-1.01, et seq; Texas Civil Statutes, Articles 8309b, 8309d, 8309g, 8309g-1, and 8309h; and Texas Natural Resources Code, sec.113.097. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512637 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 463-7008 278>16 TAC sec.9.3 sec.9.4 The amendments are adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute affected by the adopted amendments: Texas Natural Resources Code, sec.113.051. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512636 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 463-7008 Subchapter B. Basic Rules 16 TAC sec.9.161 The repeal is adopted under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute, article, or code affected by the repeal: Texas Natural Resources Code, sec.113.051. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512638 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 463-7008 The Railroad Commission of Texas adopts amendments to sec.9.184, relating to uniform safety requirements; sec.9.462, relating to containers manufactured for underground installation; and sec.9.771, relating to vehicle identifications labels, without changes to the proposed text, and adopts amendments to sec.9.231, relating to identification of approved appliances, and sec.9.952, relating to piping installation identification, with changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 5980). The text of sec.sec.9.184, 9.462, and 9.771 will not be republished. The adopted amendments make identification requirements consistent, allow the use of either a metal tag or a decal, and allow one tag or decal to serve as the identification required by all five sections. Four sections have been retitled for clarity. Other proposed nonsubstantive amendments include some changes in wording, punctuation, or organization to provide clearer language or sequence. The adopted amendments changed from the proposed versions of sec.9. 231(a) and sec.9.952(a) resulted from comments submitted. No groups or associations submitted comments. One individual submitted comments in favor of the proposal. Another individual submitted comments in favor of the proposal but offering two suggestions. As to the second sentence of sec.9.231(a), the comment suggests changing the word "certified" to the word "equipped" in order to make the intent of the section clearer. For sec.9.952(a), the comment suggests adding the phrase, "Except as provided for under sec.9. 177 of this chapter," in order to clarify which LP-gas activities must be done by licensees and which may be done by customers. The commission agrees that both changes should be made; however, they are outside the scope of notice for this rulemaking and will be handled in a future rulemaking. Subchapter B. Basic Rules 16 TAC sec.9.184 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute, article, or code affected by the adopted amendment: Texas Natural Resources Code, sec.113.051. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512639 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-7008 Subchapter D. LP-Gas Appliances and Appurtenant Equipment 16 TAC sec.9.231 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute, article, or code affected by the adopted amendment: Texas Natural Resources Code, sec.113.051. sec.9.231. Identification of Approved Appliances. (a) LP-gas appliances shall be approved by the commission or certified by a nationally recognized testing laboratory. If gas appliances are not certified for use with LP-gas, a licensee may convert the appliances to use LP-gas as a fuel, provided the licensee tests such appliances for proper operation before placing them in service. (b) Upon completion of the conversion and testing of LP-gas appliances, the licensee shall attach to each such appliance a decal or tag of metal or other permanent material indicating the following information: (1) the licensee's name; (2) the LP-gas license number; (3) the year the appliance was converted; and (4) the wording, "Converted to LP-Gas." (c) A single identification decal or tag may be used to satisfy the requirements in sec.sec.9.184, 9.462, 9.771, and 9.952 of this title (relating to uniform protection standards, containers manufactured for underground installation, vehicle identification labels, and piping installation identification, respectively) provided the decal or tag meets all the requirements of those sections. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512642 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-7008 Subchapter F. Consumer LP-Gas Systems 16 TAC sec.9.462 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute, article, or code affected by the adopted amendment: Texas Natural Resources Code, sec.113.051. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512640 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-7008 Subchapter I. LP-Gas Motor Fuel and Mobile Fuel Containers 16 TAC sec.9.771 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute, article, or code affected by the adopted amendment: Texas Natural Resources Code, sec.113.051. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512641 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-7008 Subchapter L. LP-Gas Piping and Piping Systems 16 TAC sec.9.952 The amendment is adopted under the Texas Natural Resources Code, sec.113. 051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public. The following is the statute, article, or code affected by the adopted amendments: Texas Natural Resources Code, sec.113.051. sec.9.952. Piping Installation Identification. (a) LP-gas piping shall be installed, altered, repaired, and tested only by persons issued a valid license by the LP-Gas Division. (b) Upon completion of the installation, alteration, repair, or testing of an LP-gas piping system, the licensee shall attach to the end of the piping nearest the container a decal or tag of metal or other permanent material indicating the following information: (1) the licensee's name; (2) the LP-gas license number; and (3) the year the piping was installed, altered, repaired, or tested. (c) A single identification decal or tag may be used to satisfy the requirements in sec.sec.9.184, 9.231, 9.462, and 9.771 of this title (relating to uniform protection standards, identification of approved appliances, containers manufactured for underground installation, and vehicle identification labels, respectively) provided the decal or tag meets all the requirements of those sections. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512643 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 25, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-7008 Part III. Texas Alcoholic Beverage Commission Chapter 45. Marketing Practices Subchapter D. Advertising and Promotion-All Beverages 16 TAC sec.45.101 The Texas Alcoholic Beverage Commission adopts an amendment to sec.45.101, concerning rebates, coupons and premium stamps, with changes to the proposed text as published in the August 29, 1995, issue of the Texas Register (20 TexReg 6732). The amendment is adopted to clarify confusing and potentially conflicting terms within the section. The amendment as initially proposed was changed by adding the phrase "except non-alcohol malt beverages and wines" to the second sentence of subsection (c). Several comments were received pointing out that the amendment as originally proposed would apply to areas of commerce beyond the purview of the Alcoholic Beverage Commission. The Texas Hotel and Motel Association, the Texas Restaurant Association and the Texas Package Stores Association were against the proposed amendment. The change incorporated into the adopted text resolved these objections. The amendment is adopted pursuant to the authority granted by the Texas Alcoholic Beverage Code, sec.5.31. The Texas Alcoholic Beverage Code, Chapter 102, Subchapter A, sec.102.07(d) and Chapter 108, Subchapter A, sec.108.06 are affected by this amendment. sec.45.101. Rebates, Coupons and Premium Stamps. (a) It shall be unlawful for the holder of a license or permit to give or offer to give to any person premium stamps or any other type of inducement with the purchase of alcoholic beverages. The term "premium stamp" is hereby declared to include but not be limited to the following: exchange stamps, trade stamps, green stamps, gold stamps, and cash register premium tapes. (b) No holder of a manufacturing, wholesale, or retail level license or permit may give any rebate or coupon redeemable by the public for the purchase of or for a discount on the purchase of any alcoholic beverage. (c) No holder of a manufacturing, wholesale, or retail level license or permit may offer or give away with or without the purchase of any alcoholic beverage, a coupon redeemable for a rebate, cents-off or for any free non-alcoholic beverage item or product. A retailer, manufacturer, or wholesaler may, however, offer a discount, rebate, or cents-off coupon on any non-alcohol product except non- alcohol malt beverages and wines that he sells if it does not require the purchase of any alcoholic beverage. (d) None of the above prohibits any retailer from offering a complimentary drink or drink discount as part of a meal package, a hotel package or any airline frequent flier program or in conjunction with any airline ticket purchase, provided, however, that no discount or complimentary beverage shall be brand identified or redeemed by a wholesaler or manufacturer. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 9, 1995. TRD-9512902 Doyne Bailey Administrator Texas Alcoholic Beverage Commission Effective date: October 26, 1995 Proposal publication date: August 29, 1995 For further information, please call: (512) 206-3204 TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 473. Fees 22 TAC sec.473.3 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.3, concerning Annual Renewal Fees, without changes to the proposed text as published in the August 15, 1995, issue of the Texas Register (20 TexReg 6187). The rule is being amended to create a separate fee for those psychologists with health service provider status who are over the age of 70. The amendment will adjust fees to reflect current professional practice. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1995. TRD-9512798 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: October 27, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 305-7700 22 TAC sec.473.5 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.5, concerning Miscellaneous Fees, without changes to the proposed text as published in the August 18, 1995, issue of the Texas Register (20 TexReg 6292). The rule is being amended to remove a portion of the existing rule for incorporation into a new separate rule. The amendment will better inform the public of open records requests costs. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1995. TRD-9512799 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: October 27, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 305-7700 22 TAC sec.473.8 The Texas State Board of Examiners of Psychologists adopts new sec.473.8, concerning Open Records Fees, with changes to the proposed text as published in the August 15, 1995, issue of the Texas Register (20 TexReg 6187). The new rule is being adopted to more accurately reflect the Board's requirements and to bring the rules into line with the requirements of the General Services Commission for all agencies. The new rule will better inform the public of open records request costs. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statutes. sec.473.8. Open Records Fees. All fees shall conform with the General Services Commission schedule, and the fee schedule shall be available to the public during the Board's regular business hours. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1995. TRD-9512800 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: October 27, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 305-7700 Part XIV. Texas Board of Veterinary Medical Examiners Chapter 573. Rules of Professional Conduct Supervision of Personnel 22 TAC sec.573.10 The Texas Board of Veterinary Medical Examiners adopts the repeal of sec.573.10, concerning Direct Supervision of Lay Personnel, without changes to the proposed text as published in the April 4, 1995, issue of the Texas Register (20 TexReg 2504). This rule is being replaced with a new version which defines acceptable levels of supervision and provides practitioners with guidelines as to what tasks a non-licensed employee may perform. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 8890, sec.7(a), which provide the Texas Board of Veterinary Medical Examiners with the authority to "...make, alter, or amend such rules and regulations as may be necessary or desirable to carry into effect the provisions of this Act." The repeal affects the Veterinary Licensing Act, Article 8890, sec.7(c), which states the Board may adopt rules for the use of registered veterinary technicians working under the supervision of a licensee. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512627 Ron Allen Executive Director Texas Board of Veterinary Medical Examiners Effective date: October 25, 1995 Proposal publication date: April 4, 1995 For further information, please call: (512) 305-7555 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 7. Corporate and Financial Regulation Subchapter N. Services of Process 28 TAC sec.7.1404 The Commissioner of Insurance adopts an amendment to sec.7.1404, concerning service of process, the Commissioner's issuance of certificates of service, and fees, without changes to the proposed text as published in the August 18, 1995, issue of the Texas Register (20 TexReg 6294). The amendment is necessary to provide greater uniformity with Article 1.36, sec.3(f) of the Insurance Code, as newly amended by the 74th Legislature in House Bill 2952. Article 1.36, sec.3(f) previously provided for the Commissioner's issuance of a certificate of service only upon request and provided for a $10 fee for such a certificate of service. House Bill 2952 now provides that certificates of service will be automatically issued by the Commissioner to plaintiffs and court clerks. Certificates of service will be issued to other parties upon request. Article 1.36, sec.3(b) authorizes the Department to charge up to $50 for service of process. The amended version of sec.7.1404(b) will raise the fee for service of process to $50. The public will benefit from the uniformity of sec.7.1404(b) and (g) and Article 1.36, sec.3(b) and (f). There will be less confusion about the amount of the fee charged. There will be more certainty about whether and when service was achieved, as a certificate of service will now be provided as a matter of course. There will be less confusion about the Department's handling of citations, as at least two certificates of service will always be generated. The public will also benefit from streamlined administration within the Department. Amended sec.7.1404(b) raises the fee for service of process to $50 and amended sec.7.1404(g) reflects the automatic issuance of certificates of service to plaintiffs and court clerks. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Insurance Code, Articles 1.36, sec.13 and 1.03A. Article 1.36, sec.13, provides that the Department may promulgate rules as may be determined by it to be essential for the effective implementation of Article 1.36. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance as authorized by statute. The following articles are affected by this the amendments: Article 1.36, sec.3(b) and Article 1.36, sec.3(f) of the Insurance Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512871 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: October 27, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 463-6327 Chapter 19. Agent's Licensing Subchapter C. Written Examination for Applicants for License to Write Insurance Upon Any One Life in Excess of $7,500 Under the Insurance Code Article 21.07, sec.4A. 28 TAC sec.19.201 The Commissioner of Insurance adopts an amendment sec.19.201, concerning the establishment of parameters for those written examinations required for the licensure of individuals who desire to write life insurance upon any one life in excess of $7,500, without changes to the proposed text as published in the August 18, 1995, issue of the Texas Register (20 TexReg 6294). Section 19.201 is amended to bring it into compliance with Insurance Code Article 21.07, sec.4A. Article 21.07, sec.4A increases from $5,000 to $7,500 the threshold amount of life insurance upon any one life relating to the written examination of individuals who desire to write such life insurance. Amending sec.19.201 brings it into compliance with the increased threshold amount of life insurance written upon any one life, as set out in the Insurance Code, Article 21.07, sec.4A. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to the Insurance Code, Articles 21.07, sec.4A and 1.03A, and the Government Code, sec. sec.2001.004 et seq (Administrative Procedure Act). Article 21.07, sec.4A requires written examination of applicants who desire to write life insurance in excess of $7,500 upon any one life, and authorizes the department to establish reasonable rules with regard to the written examination. Article 1.03A provides that the Commissioner of Insurance may adopt rules and regulations to execute the duties and functions of the Texas Department of Insurance only as authorized by statute. The Government Code, sec.sec.2001.004 et seq authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of available procedures and prescribes the procedures for adoption of rules by a state administrative agency. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512890 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Effective date: October 30, 1995 Proposal publication date: August 18, 1995 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 116. Control of Air Pollution by Permits for New Construction or Modification Subchapter C. Permit Exemptions Construction or Modification 30 TAC sec.116.211 (Editor's Note: Section 116.211 was adopted and published in the September 22, 1995, issue of the Texas Register (20 TexReg 7608). This section was adopted with changes and was republished. However, the graphic material which is adopted under subsection (f) of this section was inadvertently omitted from the September 22, 1995 issue. The graphic material is being published in this issue of the Texas Register in the tables and graphics section. Please see Figure 1: 30 TAC sec.116.211(f).) Figure 1: 30 TAC sec.116.211(f) TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter GG. Insurance Tax 34 TAC sec.3.828 The Comptroller of Public Accounts adopts new sec.3.828, concerning the definition of workers' compensation insurance gross premium for the purpose of maintenance taxes, with changes to the proposed text as published in the July 18, 1995, issue of the Texas Register (20 TexReg 5205). The proposal provides a clear definition of Workers' Compensation Insurance gross premiums to be used for maintenance tax purposes as a result of House Bill 1461, 73rd Legislature, 1993. It also addresses the proper treatment of adjustments made to retrospectively rated policies. Comments were received from Baker and Botts, L.L.P., representing the Texas Self-Insurance Association and the Texas Workers' Compensation Commission. Both commenters expressed their concern that the rule did not address the unique nature of Self-Insurers. While Certified Self-Insurers are required to pay workers' compensation maintenance taxes, they do not pay gross premiums. The Texas Self-Insurance Association suggested that the comptroller add a subsection either stating that the rule does not apply to certified self-insurers or include a definition of the tax base for certified self-insurers. The Texas Workers' Compensation Commission suggested that the comptroller add a subsection stating that the rule does not apply to certified self-insurers. The comptroller agrees that the rule does not pertain to certified self- insurers. Therefore, subsection (d) has been added to the adopted rule. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The new section implements the Texas Insurance Code, Article 5.68 and Article 5.76-5 and Texas Labor Code, sec.403.003 and sec.404.003. sec.3.828. Workers' Compensation Insurance Gross Premiums for the Purpose of Maintenance Taxes. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Basis of premium-Premiums shall be computed on the total remuneration paid or payable by the insured for services of employees covered by the policy as defined in Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance, Rule V. (2) Classification codes-Classification codes group employers into classifications so that each class reflects the exposure common to those employers. Classification codes are listed in the Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance. (3) Deductible credit-The amount by which the modified premium is reduced as a result of the policyholder's election of a deductible option. The deductible credit shall be applied according to Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance, Rule XIX. (4) Dividends paid to policyholders-Dividends paid to policyholders are a return of part of the premium paid for a policy issued on a participating basis. (5) Expense constant-An expense constant is a premium charge which applies to a policy in addition to the premium. It covers issuing, recording and auditing expenses related to the policy. It is a flat charge and is not subject to premium discount, experience rating or retrospective rating adjustment. (6) Modified premium-The modified premium is obtained by multiplying the insured's premium times the modifier (i.e., Modified Premium = Premium x Modifier). (7) Modifier-A modifier adjusts the premium upward or downward. The modifier must be calculated in accordance with Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and sec.VII, Employers' Liability Insurance. The insured and the insurance company may negotiate the calculated modifier downward in accordance with sec.V, Texas Experience Rating Plan. (8) Premium-The premium is determined by multiplying the basis of premium by the rate for each classification of employee, adjusted by any other charges that may be applicable, as provided for in the Texas Basic Manual of Rules, Classifications and Experience Rating Plan for Workers' Compensation and Employers' Liability Insurance (i.e., Premium = (Basis of premium x Rate) 626> Other charges). (9) Premium discount-A premium discount is a reduction of the premium based on the economies of scale related to the size of the policy. A retrospectively rated policy includes premium discount in rating factors rather than as a separate item. (10) Rate-The rate is the amount of premium for each $100 of payroll for each classification of employee. (11) Remuneration-Remuneration is money or substitutes for money. (12) Retrospectively rated policies-Retrospectively rated policies are policies for which the final premium is based on losses incurred during the policy period. The final premium is not determined until either all claims are closed or the pre-selected maximum has been reached. (13) Return premium-Return premium is the portion of a premium which is returned to the insured as a result of cancellation, rate adjustment, or a calculation that an advance premium was in excess of the actual premium. (14) Standard premium-The premium before the application of premium discount. It is obtained by subtracting the deductible credit from the modified premium (i.e., Standard premium = Modified premium-Deductible credit). (b) Gross premiums. (1) For policies issued with an effective date prior to September 1, 1993, gross premiums shall be computed in the following manner: Standard Premium less Premium Discount plus Expense Constant less Return Premium less Dividends Paid on that direct business (i.e., Gross Premiums = (Standard Premium-Premium Discount + Expense Constant-Return Premium)-Dividends Paid). (2) For policies issued with an effective date on or after September 1, 1993, gross premiums shall be computed in the following manner: Standard Premium less Premium Discount plus Expense Constant plus Deductible Credit less Return Premium less Dividends Paid on that direct business (i.e., Gross Premium = (Standard Premium-Premium Discount + Expense Constant + Deductible Credit-Return Premium)-Dividends Paid). (c) Retrospectively rated policies. Any adjustments made to retrospectively rated polices are to be treated as premiums written in the year of the adjustment for the purpose of computing gross workers' compensation premiums. (d) This section applies to licensed insurers only. The tax base for certified self-insurers is defined by the Labor Code, sec.407.104. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 4, 1995. TRD-9512626 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: October 15, 1995 Proposal publication date: July 18, 1995 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety Chapter 1. Organization and Administration Fees for Copies of Records 37 TAC sec.1.122 The Texas Department of Public Safety adopts an amendment to sec.1.122, concerning fees for copies of records, without changes to the proposed text as published in the August 15, 1995, issue of the Texas Register (20 TexReg 6199). The justification for the amendment is to clarify fee changes regarding driver's license records and to clarify the organizational unit of the department responsible for the collection of driver record fees. The amendment changes the section title to Driver Records Bureau Fees and changes the fee for purchasing a copy of a complete driver's license basic record back-up tape from $2.25 per 1,000 names to $1,600. The fee for updates of the tape is changed from $100 per week to $57 per week. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.411.004(3) and sec.411.006(4); and Texas Civil Statutes, Article 6687b, sec.1A, which provides the Public Safety Commission with the authority to adopt rules necessary for carrying out the department's work. The director, subject to the approval of the Commission, shall have the authority to adopt rules considered necessary for the control of the department. Also, the department may adopt rules that it determines are necessary to effectively administer the Act relating to Drivers License. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1995. TRD-9512738 James R. Wilson Director Texas Department of Public Safety Effective date: October 26, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 465-2890 Chapter 17. Administrative License Revocation 37 TAC sec.sec.17.1, 17.11, 17.16 The Texas Department of Public Safety adopts amendments to sec.17.1 and sec.17.11, and new sec.17.16, concerning Administrative License Revocation (ALR). Section 17.16 is adopted with changes to the proposed text as published in the June 6, 1995, issue of the Texas Register (20 TexReg 4119). The amendments to sec.171.1 and sec.17.11 are adopted without changes and will not be republished. The justification for the amendments and new section will be clarification of statutory requirements and elimination of confusion regarding procedures required to effect and/or perfect service on the department of certain items allowed or required to be served upon, mailed to, or filed with the department. The amendment to sec.17.1 adds language broadening the scope of ALR to include all discovery requests. Amendment to sec.17.11 adds new subsection (d) designating the department's agent for service and address in order that sensitive legal documents may be handled expediently. New sec.7.16 is amended based on comments received requesting that the department provide for documents to be delivered by facsimile transmission, hand delivered, or Federal Express. The department received one comment regarding adoption of a change to sec.17. 16, which was incorporated into the rules. This comment was received from the Texas Criminal Defense Lawyers Association. The amendments and new section are adopted under Texas Civil Statutes, Article 6687b-1, sec.9, and Texas Civil Statutes, Article 6701l-5, sec.4A, which provide for administrative license suspensions upon certain alcohol-related violations involving use of a motor vehicle. Such violations are the refusal or failure of breath or blood tests. sec.17.16. Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed with the Department. (a) Where authorized, required or permitted by statute or rule, a Request for Production and/or any tangible/documentary evidence required to be served by the defendant on the department must be served on the department by one of the following methods: (1) by first class mail, or by certified mail where required, addressed to Director of Hearings, ALR Program, Post Office Box 15327, Austin, Texas 78761- 5327; (2) by telephonic document transfer (fax) to (512) 706-7171 prior to December 4, 1995, and to (512) 424-7171, December 4, 1995, and following; (3) by hand delivery, delivered during regular business hours directly to the Legal Services Department at the headquarters of the Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752. (4) by courier receipted delivery through a commercial overnight express delivery service to the Department of Public Safety, Main Building, 5805 North Lamar Boulevard, Austin, Texas 78752. (b) This section does not authorize or confer any discovery rights on a defendant. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 27, 1995. TRD-9512927 James R. Wilson Director Texas Department of Public Safety Effective date: October 31, 1995 Proposal publication date: June 6, 1995 For further information, please call: (512) 465-2890 Chapter 21. Equipment and Vehicle Standards Equipment and Vehicle Standards 37 TAC sec.21.5 The Texas Department of Public Safety adopts the repeal of sec.21.5, concerning Equipment and Vehicle Standards, without changes to the proposed text as published in the August 15, 1995, issue of the Texas Register (20 TexReg 6199). The justification for repeal of the section is due to legislative transfer of the responsibility for hydraulic brake fluids to the Texas Department of Agriculture. The repeal removes the responsibility for hydraulic brake fluids from the Texas Department of Public Safety. The function has not been eliminated but rather transferred to a different state agency. No comments were received regarding adoption of the repeal. The repeal is adopted pursuant to Texas Civil Statutes, Articles 6701c(3), 6701i, 6687b, sec.12; and Article 6701d, sec. sec.108, 108A, 108C, 108E, 108F, and sec.139B, which authorize the Texas Department of Public Safety to adopt rules necessary for the administration and enforcement of this act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1995. TRD-9512737 James R. Wilson Director Texas Department of Public Safety Effective date: October 26, 1995 Proposal publication date: August 15, 1995 For further information, please call: (512) 465-2890 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 9. Refugee Social Services The Texas Department of Human Services (DHS) adopts new sec.sec.9.101-9.109, concerning client information, sec. sec.9.201-9.213, concerning contractor requirements, and sec. sec.9.301-9.309, concerning service requirements, in its new Refugee Social Services chapter. The justification for the new sections is to establish rules for the Refugee Social Services and Targeted Assistance contracts and to comply with federal regulations issued by the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (DHHS) under the Code of Federal Regulations (CFR), Title 45, Parts 400 and 401. The new sections will function by authorizing services to refugees according to federal regulations. Subchapter A. Client Information 40 TAC sec.sec.9.101-9.109 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs; and under the Code of Federal Regulations (CFR), Title 45, Parts 400 and 401. The new sections implement the Human Resources Code, sec. sec.22.001-22.024, and the Code of Federal Regulations (CFR), Title 45, Parts 400 and 401. sec.9.101. Eligibility. Refugee social services are restricted to persons who possess Immigration and Naturalization Services documents which meet the criteria for client eligibility specified by the Office of Refugee Resettlement. sec.9.102. Required Registration. All non-exempt Refugee Cash Assistance recipients are required to register for work with a refugee social services contractor providing employment services, if available in the community, participate in Job Search or employment services, go to all job interviews and comply with all requirements specified by the Office of Refugee Resettlement. sec.9.103. Time Frame. In order to receive Refugee Cash Assistance, all non- exempt recipients must participate in employment services within 30 days of the receipt of assistance. sec.9.104. Residency. Except for translation and referral services, refugee social services and targeted assistance services are restricted to refugees who have lived in the United States for five years or less, except refugees who are receiving employability services as of September 30, 1995, may continue to receive services without regard to their arrival date through September 30, 1996, or until the services are completed, whichever occurs first. sec.9.105. Right to Hearing. Applicants for and recipients of services must be given an opportunity for a hearing to contest any adverse determinations using hearing procedures specified in 45 Code of Federal Regulations, sec.205.10(a). For adverse determinations based on the date of entry into the United States, in lieu of a fair hearing, disputes are resolved promptly through the examination of the individual's documentation issued by Immigration and Naturalization Services (INS) or information obtained from INS. sec.9.106. Acceptance of Services. A non-exempt recipient of refugee cash assistance who is employed less than 30 hours per week must accept part-time employability services providing the services do not interfere with the recipient's job. sec.9.107. Inability to Communicate in English. Inability to communicate in English does not exempt a refugee from accepting employment or participating in contracted employment services. sec.9.108. Claim of Adverse Effects. Refugee cash assistance recipients who claim services or employment would cause adverse mental or physical effects must base the claim on adequate medical testimony from a physician or licensed or certified psychologist who indicates that participation would impair the individual's physical or mental health. sec.9.109. Confidentiality. Except for client information shared with the Texas Department of Human Services, no information in the possession of a contractor about, or obtained from, an individual can be disclosed in a form identifiable with the individual without the individual's consent, or in the case of minors, the consent of a parent or legal guardian. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1995. TRD-9512935 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: N/A For further information, please call: (512) 438-3765 Subchapter B. Contractor Requirements 40 TAC sec.sec.9.201-9.213 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public and medical assistance programs; and under the Code of Federal Regulations (CFR), Title 45, Parts 400 and 401. The new sections implement the Human Resources Code, sec. sec.22.001-22.024, and the Code of Federal Regulations (CFR), Title 45, parts 400 and 401. sec.9.201. Coordinated Services. In providing services, contractors must take into account the reception and placement services provided by the refugee's resettlement agency and ensure the provision of seamless, coordinated services which are not duplicative. sec.9.202. Priority Groups. Refugee social services and targeted assistance contractors must provide services according to the client priority groups established by the Office of Refugee Resettlement. First priority clients must not be placed on a waiting list for services. sec.9.203. Opportunity to Apply. Contractors must provide any individual wishing to do so an opportunity to apply for services and must determine the eligibility of each applicant. sec.9.204. Equal Opportunity. Contractors must give refugee women the same opportunities as men to participate in all services, including job placement services. sec.9.205. Required Records. Contractors must maintain records necessary for federal and state monitoring which include, but are not limited to, documentation of services provided, including identification of individuals receiving those services; and statistical and programmatic information on services provided, including costs. sec.9.206. Time Period for Records. Contractors must retain all records for the time period specified by federal regulations. sec.9.207. Federal Reporting. Contractors must comply with federal reporting requirements. sec.9.208. Procedures and Requirements. Contractor activities regarding eligibility determination, acting on applications and requests for services, and providing notification of the right to a fair hearing are subject to the same procedures and requirements governing state social services programs under Title XX of the Social Security Act. sec.9.209. Staff Requirements. Contractors must employ or contract with staff who speak the native language and are either from the same background or are culturally knowledgeable of the refugee populations served. sec.9.210. Scheduling of Services. Contractors must schedule and provide employment services for all non-exempt recipients of Refugee Cash Assistance in such a manner as to allow recipients to meet the 30-day participation requirement. sec.9.211. Individual Employability Plan. The individual employability plan developed by employment services contractors must: (1) be designed to lead to the earliest possible employment of the refugee; (2) not be structured in such a way as to discourage or delay employment or job-seeking; (3) contain a definite employment goal, attainable in the shortest time period consistent with the employability of the refugee; and (4) address job search requirements, if determined appropriate. sec.9.212. Notice to the Texas Department of Human Services (DHS). Refugee social services contractors who receive work registration referrals from DHS must notify DHS whenever a referred refugee: (1) fails or refuses to participate in the required services; (2) refuses to accept an offer of employment; (3) accepts a job; or (4) quits a job without good cause. sec.9.213. Compliance with Federal Definitions. Contractors must comply with federal definitions of appropriate employability services and employment for refugees specified in 45 Code of Federal Regulations sec.400.81. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1995. TRD-9512936 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: N/A For further information, please call: (512) 438-3765 Subchapter C. Service Requirements 40 TAC sec.sec.9.301-9.309 The new sections are adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public and medical assistance programs; and under the Code of Federal Regulations (CFR), Title 45, Parts 400 and 401. The new sections implement the Human Resources Code, sec. sec.22.001-22.024, and the Code of Federal Regulations (CFR), Title 45, Parts 400 and 401. sec.9.301. Federal Regulations. (a) Refugee social services are restricted to those services defined and specified in 45 Code of Federal Regulation (CFR) Parts 400.154 and 400.155. (b) Targeted assistance services provided by contractors must meet the requirements specified under 45 CFR Part 400, Subpart L. sec.9.302. Employment Services. Employment services provided by contractors must include a family self-sufficiency plan as well as individual employability plans for each employable adult in the family needing services. sec.9.303. Employability Services. Employability services provided by contractors must be designed to enable refugees to obtain jobs within one year of becoming enrolled in services. sec.9.304. Long-term Training. Refugee social services may not include long- term training or educational programs which will not lead to employment within one year. sec.9.305. English Language Instruction and Vocational Training. (a) English language instruction and vocational training must be provided to the extent possible outside normal working hours to allow employed refugees to participate. (b) English language instruction must be provided in a concurrent, rather than sequential, time period with employment or employment-related services. sec.9.306. Compatibility. Refugee social services must be provided to the maximum extent feasible in a manner that is culturally and linguistically compatible with a refugee's language and cultural background. sec.9.307. Bilingual/Bicultural Women. Services must be provided to the maximum extent feasible in a manner that includes the use of bilingual/bicultural women on service agency staffs. sec.9.308. Child Care. All child care services must meet state standards. sec.9.309. Restrictions. Except for part-time or summer jobs for students, all employment and training services and English language instruction services are restricted to refugees who are 16 years of age or older and who are not full-time students in elementary or secondary school. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 10, 1995. TRD-9512937 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: October 1, 1995 Proposal publication date: N/A For further information, please call: (512) 438-3765 Part IV. Texas Commission for the Blind Chapter 162. Criss Cole Rehabilitation Center 40 TAC sec.sec.162.1-162.5 The Texas Commission for the Blind adopts new sec.sec.162.1-162.5, concerning the commission's administration of Criss Cole Rehabilitation Center, with changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5485). The new chapter is needed in the agency's recodification efforts to establish an organized rule base that allows for orderly expansion. Previous rules on this subject were contained in Chapter 163, which has also been recodified. The new chapter will function as the commission's criteria for admittance into the center, as standards of conduct for persons receiving services at the center, and as procedures for investigating reports of abuse, neglect, and exploitation at the center. No comments were received by the Commission regarding adoption of the new sections. The text has been changed to correct the title of the chapter from Criss Cole Rehabilitation Program to Criss Cole Rehabilitation Center, which accurately reflects the subject of the rules. Section 162.2(a) has been changed to add a sentence to clarify that persons are required to meet the requirements of both the paragraph and subparagraphs. The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to prescribe policies and procedures for the administration of the state's vocational rehabilitation program in accordance with the Act. sec.162.1. Purpose. Criss Cole Rehabilitation Center (CCRC) is a comprehensive rehabilitation facility operated by the commission for the purpose of assisting consumers to achieve their rehabilitation plans. sec.162.2. Criteria for Admission. (a) To be considered for admission to CCRC, a person must be blind as defined in sec.163.4 of this title (relating to Definitions). The person must also be: (1) receiving services from and referred by one of the commission's service programs; (2) able to care for daily self-needs independently, such as toileting, dressing, and eating; (3) able to move about without assistance and have stamina to cover approximately one and one-half miles per day; (4) willing and able to attend weekday classes; (5) able to monitor own behavior (not injurious to self or others, nondestructive of property); (6) able to evacuate building once oriented; (7) psychologically and medically prepared for CCRC training; (8) in stable health; (9) willing to cooperate regarding dietary and medical needs and restrictions; and (10) preliminarily adjusted to blindness. (b) When vacancies occur, priority for admission is given to legally and totally blind consumers receiving services from the Vocational Rehabilitation Program. sec.162.3. Standards of Conduct. (a) Consumers are expected to abide by established guidelines and standards of conduct while receiving services at CCRC. These guidelines and standards of conduct are contained in a client handbook issued to consumers prior to admittance. A copy of the handbook is available for public viewing from 8:00 a.m. until 5:00 p.m. on work days at CCRC, 4800 North Lamar Boulevard, Austin, Texas, or by calling the commission's toll-free line, (800) 252-5204, and requesting a copy. (b) Violation of any one of the following rules while on the premises is grounds for immediate dismissal. Premises is defined as any and all parts of CCRC, its surrounding grounds, and auxiliary facilities. (1) The possession of weapons, illegal drugs, or alcohol on the premises is not allowed. (2) Intimate sexual conduct on the premises is not allowed. (3) Behavior on the premises that results in physical abuse of property or deliberate aggression towards self or others is not allowed. (c) Violation of any one of the following rules while on the premises is grounds for official written warning. Two written warnings are grounds for suspension or dismissal from CCRC. (1) Members of the opposite sex are allowed in residential rooms during posted hours. (2) Infringement upon other people's rights, space, and property (for example, loud talking, loud music, harassment, stealing) is not allowed. (3) Consumers may entertain outside visitors only in designated areas in accordance with posted hours. (4) Pets are not allowed. (5) Smoking is not allowed inside CCRC and auxiliary buildings. (6) Consumers who are residing in the Avenue A apartments during their rehabilitation plans are to be in their apartments during posted hours unless prior arrangements have been made with their counselors. (7) Minors and persons who have legal guardians must follow directions of staff while in training. sec.162.4. Scope of Services. CCRC provides, as appropriate to the needs of individual consumers, services such as functional evaluations; individualized and small group training in communication, home and personal management, orientation and mobility, low vision, health management, nutrition, physical conditioning, social awareness, technology awareness; and career guidance. Special summer training is available for persons preparing for higher education. This list is not to be interpreted as comprehensive; ancillary services are also available. sec.162.5. Investigations of Abuse, Neglect, and Exploitation. In compliance with Human Resources Code, Title 2, Subtitle D, Chapter 48, regarding protective services for the elderly, the commission will receive and investigate reports of abuse, neglect, and exploitation of disabled or elderly adults receiving training at CCRC. Investigations will be conducted and information will be gathered in accordance with specifications contained in Subchapter C, sec.48.036, in the following manner: (1) Any staff person of the commission having reasonable cause to believe that any elderly or disabled person located at CCRC is in the state of abuse, exploitation, or neglect shall immediately report such information both verbally and in writing to their supervisor. (2) The supervisor shall relay such information immediately to the center director and other appropriate supervisors. (3) The center director, or designee, shall initiate an investigation of the alleged abuse, neglect, or exploitation within 24 hours from the time of receipt of the information. (4) A copy of the final report and resulting investigation shall be sent to the Texas Department of Human Services. (5) Staff of the commission will cooperate fully should the Texas Department of Human Services deem that further investigation of a report is desirable. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512729 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Chapter 163. Vocational Rehabilitation Program 40 TAC sec.sec.163.1-163.32 The Texas Commission for the Blind adopts the repeal of sec.sec.163.1-163.32, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5486). The commission repeals these sections to reorganize the commission's rules into concise subchapters, which will allow for orderly expansion as new federal and commission procedures are implemented, and to comply with the agency's state mandate to provide vocational rehabilitation services according to federal guidelines. The Commission received no comments regarding the repeals. The repeals are adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to prescribe policies and procedures for the administration of the state's vocational rehabilitation program in accordance with the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512727 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 The Texas Commission for the Blind adopts new sec.sec.163.1-163.4, 163. 10- 163.18, 163.25-163.40, 163.50-163.52, 163.75, and 163.80, concerning the commission's Vocational Rehabilitation Program, without changes to the proposed text as published in the July 25, 1995, issue of the Texas Register (20 TexReg 5486). The commission adopts these sections to reorganize the commission's rules into concise subchapters, which will allow for orderly expansion as new federal and commission procedures are implemented, and to comply with the agency's state mandate to provide vocational rehabilitation services according to federal guidelines. The new sections are the commission's procedures for administering the state's Vocational Rehabilitation Program for individuals who are blind or visually impaired and include what is required of persons seeking and receiving vocational rehabilitation services from the commission The Commission received no comments regarding the new rules. Subchapter A. General Information 40 TAC sec.sec.163.1-163.4 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to prescribe policies and procedures for the administration of the state's program in accordance with the Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512730 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Subchapter B. Basic Program Requirements 40 TAC sec.sec.163.10-163.18 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to prescribe policies and procedures for the administration of the state's program in accordance with the Act. The new sections affect Human Resources Code, Title 5, Chapter 91, Subchapter D, sec.91.021, concerning Responsibility for Visually Handicapped Persons, sec.91.023, concerning Rehabilitation Services, sec.91.052, concerning the Vocational Rehabilitation Program for the Blind, sec.91.053, concerning Cooperation With Federal Government, and sec.91.056, concerning Eligibility for Vocational Rehabilitation Services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512731 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Subchapter C. Vocational Rehabilitation Services 40 TAC sec.sec.163.25-163.40 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to prescribe policies and procedures for the administration of the state's program in accordance with the Act. The new sections affect Human Resources Code, Title 5, Chapter 91, Subchapter D, sec.91.021, concerning Responsibility for Visually Handicapped Persons, sec.91.023, concerning Rehabilitation Services, sec.91.052, concerning the Vocational Rehabilitation Program for the Blind, sec.91.053, concerning Cooperation With Federal Government, and sec.91.056, concerning Eligibility for Vocational Rehabilitation Services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512732 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Subchapter D. Order of Selection for Payment of Services 40 TAC sec.sec.163.50-163.52 The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to adopt an order of selection based on serving first those individuals with the most severe disabilities when vocational rehabilitation services cannot be provided to all eligible individuals who apply for such services. The new sections affect Human Resources Code, Title 5, Chapter 91, Subchapter D, sec.91.021, concerning Responsibility for Visually Handicapped Persons, sec.91.023, concerning Rehabilitation Services, sec.91.052, concerning the Vocational Rehabilitation Program for the Blind, sec.91.053, concerning Cooperation With Federal Government, and sec.91.056, concerning Eligibility for Vocational Rehabilitation Services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512733 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Subchapter F. Maximum Affordable Payment 40 TAC sec.163.75 The new section is adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to establish a reasonable fee schedule designed to ensure the lowest reasonable cost to the program for each service. The new section affects Human Resources Code, Title 5, Chapter 91, Subchapter D, sec.91.021, concerning Responsibility for Visually Handicapped Persons, sec.91.023, concerning Rehabilitation Services, sec.91.052, concerning the Vocational Rehabilitation Program for the Blind, and sec.91.053, concerning Cooperation With Federal Government. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512734 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Subchapter G. Service Providers 40 TAC sec.163.80 The new section is adopted under the Human Resources Code, Title 5, Chapter 91, sec.91.011(g), which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to enter into cooperative arrangements with other organizations with respect to the provision of services. The new section affects Human Resources Code, Title 5, Chapter 91, Subchapter D, sec.91.021, concerning Responsibility for Visually Handicapped Persons, sec.91.023, concerning Rehabilitation Services, sec.91.052, concerning the Vocational Rehabilitation Program for the Blind, sec.91.053, concerning Cooperation With Federal Government, and sec.91.055, concerning Eligibility for Vocational Rehabilitation Services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512735 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 25, 1995 For further information, please call: (512) 459-2611 Subchapter E. Consumer Participation in Cost of Services 40 TAC sec.sec.163.60-163.66 The Texas Commission for the Blind adopts new sec.sec.163.60-163.66, concerning the commission's Vocational Rehabilitation Program, without changes to the proposed text as published in the July 28, 1995, issue of the Texas Register (20 TexReg 5610). The commission adopts these sections to reorganize the commission's rules into concise subchapters, which will allow for orderly expansion as new federal and commission procedures are implemented, and to comply with the agency's state mandate to provide vocational rehabilitation services according to federal guidelines. The new sections are the commission's procedures for determining a consumer's participation, if any, in the cost of their services. The Commission received no comments regarding the new rules. The new sections are adopted under the Human Resources Code, Title 5, Chapter 91, which authorizes the commission to adopt rules prescribing the policies and procedures followed by the commission in the administration of its programs, and 29 United States Code, 701 et seq, Title I of the Rehabilitation Act of 1973, as amended, which authorizes the commission to consider the financial need of persons for the purpose of determining the extent of their participation in the costs of vocational rehabilitation services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512728 Pat D. Westbrook Executive Director Texas Commission for the Blind Effective date: October 26, 1995 Proposal publication date: July 28, 1995 For further information, please call: (512) 459-2611 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Management Substance Abuse Program 43 TAC sec.sec.1.100-1.111 The Texas Department of Transportation adopts the repeal of sec.sec.1.100-1. 111, concerning the department's substance abuse program, without changes to the proposed text as published in the June 23, 1995, issue of the Texas Register (20 TexReg 4536). The repeals are adopted to provide ease of access to all rules relating to employment practices. Repeal of these sections is necessary because the subject matter of these sections falls within Chapter 4, Employment Practices. The subject matter is reenacted in an amended form in new sec.sec.4.30-4.40, concerning the department's substance abuse program, which are being contemporaneously adopted. On July 18, 1995, the department conducted a public hearing on the proposed repeal and no oral or written comments were received. The repeals are adopted under Transportation Code, sec.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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512828 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: June 23, 1995 For further information, please call: (512) 463-8630 Sick Leave Pool Program 43 TAC sec.sec.1.300-1.305 The Texas Department of Transportation adopts the repeal of sec.sec.1.300-1. 305, concerning the department's sick leave pool program, without changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5054). Government Code, Chapter 661 authorizes the department to establish a sick leave pool program and to adopt rules and prescribe procedures to provide additional sick leave for an employee when the employee or the employee's immediate family member has a catastrophic illness or injury which causes the employee to exhaust all leave time earned and lose compensation from the state. The General Appropriations Act, Fiscal Years 1994-1995, Article V, sec.8(2) defines family members and provides conditions when sick leave may be taken by an employee for illness of the employee or a family member. The sections are adopted for repeal to provide ease of access to all rules relating to employment practices. Repeal of these sections is necessary because the subject matter of these sections falls within Chapter 4, Employment Practices. The subject matter will be reenacted in an amended form in new sec.sec.4.50-4.56, concerning the department's sick leave pool program, which are being contemporaneously adopted. On July 25, 1995, the department conducted a public hearing on the proposed repeals and no oral or written comments were received. The repeals are adopted under Transportation Code, sec.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 Government Code, Chapter 661, which authorizes the department to adopt rules administering a sick leave pool program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512830 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 Chapter 4. Employment Practices Subchapter D. Substance Abuse Program 43 TAC sec.sec.4.30-4.40 The Texas Department of Transportation adopts new sec. sec.4.30-4.40, concerning the department's substance abuse program. Sections 4.30-4.34, 4. 36- 4.38, and 4.40 are adopted with changes to the proposed text as published in the July 11, 1995, issue of the Texas Register (20 TexReg 5055). Section 4.35 and sec.4.39 are adopted without changes and will not be republished. These sections are adopted to comply with: 49 Code of Federal Regulations (C.F.R.) Part 382 which requires that the commission develop alcohol and controlled substance testing in compliance with the procedures set forth in 49 C.F.R. Part 40 in order to help prevent accidents and injuries resulting from the misuse of alcohol or controlled substances by employees who drive commercial motor vehicles for the department; and 49 C.F.R. Part 16 and 95 which require that the commission develop alcohol testing for commercial vessel personnel, concerning programs for chemical drug and alcohol testing. The new sections are also necessary to provide for pre-employment drug testing and post-accident alcohol and drug testing for employees in safety sensitive positions. Adoption of these sections is necessary to replace, in an amended form, the provisions of sec.sec.1.100-1.111, concerning the department's substance abuse program. Sections 1.100-1.111 are being contemporaneously proposed for repeal because the subject matter of these sections fall within Chapter 4, Employment Practices. Section 4.30 describes the purpose of the policy and procedures of the substance abuse program. Section 4.31 defines terms used in the text of this subchapter. Section 4.32 prohibits employees from: consuming an alcoholic beverage; possessing an open container of an alcoholic beverage; possessing dangerous drugs with the intent to distribute, dispense, transport, sell, or manufacture in the workplace; and possessing dangerous drugs with the intent to illegally distribute, dispense, transport, sell, or manufacture outside the workplace. This section prohibits the department from hiring a final applicant who has been convicted of felony charges related to selling, distributing, transporting or manufacturing dangerous drugs or possessing with the intent to sell, distribute, transport or manufacture dangerous drugs and who is still on probation or parole for that conviction. Supervisors are prohibited from allowing an employee who is under the influence from reporting to work or performing official duties. This section describes the disciplinary actions, including mandatory referral to the Employee Assistance Program (EAP), and termination from the department of an employee who consumes an alcoholic beverage, possesses an open container of an alcoholic beverage or is suspected of working under the influence, and the opportunity for the employee to offer an explanation. This section provides that the department will terminate an employee from employment if the department discovers that the employee has been convicted of felony charges and is on parole or has received a probated sentence related to the sale, distribution transportation, or manufacture of dangerous drugs or possession with the intent to sell, distribute, transport, or manufacture dangerous drugs prior to employment with the department. An employee will be terminated from the department if the employee voluntary admits to selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the work place. This section requires an employee to report an arrest, charge, indictment or conviction for selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, within three working days after its occurrence, and provides for suspension for three days without pay if an employee fails to report the arrest, charge, or indictment. Employees are required to contact the General Counsel Office if suspicious behavior is observed in the workplace. This section describes the mandatory referral process and treatment options for employees. Section 4.33 requires employees who drive for the department to be subject to the requirements of sec.4.32 as well as this section. It also provides that the department will not offer an applicant a position if driving is an essential function of the job if the employee has received a Driving Under the Influence (DUI)/Driving While Intoxicated (DWI) within the last three years, from the date of application, unless the applicant participates in the EAP. The department will not allow an applicant to drive for the department if the applicant has received a DUI/DWI within the last three years, from the date of application, and driving is a marginal job function unless the applicant participates in the EAP. This section requires that district engineers and division directors be responsible for maintaining a list of all employees who are authorized to drive for the department, and provides a procedure for checking an employee's driving record. This section requires an employee to notify his or her supervisor and to be mandatorily referred to the EAP if he or she receives a DUI/DWI, and describes the conditions under which an employee may return to work. This section provides that if an employee receives two DUIs/DWIs within a five year period, the employee will be terminated from the department. DUIs/DWIs received prior to November 1, 1994 will not count towards termination. Section 4.34 requires that commercial drivers be subject to all the requirements of sec.4.32(a). It also describes the department's policy of prohibiting commercial drivers from: possessing alcohol; driving within four hours after consuming alcohol; using alcohol for eight hours after an accident or until he or she undergoes an post-accident alcohol test; refusing a required drug or alcohol test; and having a positive drug test result. An applicant for a position as a commercial driver is required to pass a pre-employment drug test. This section prohibits a supervisor from allowing an employee who possesses alcohol from driving. This section also provides for drug testing of applicants for commercial driver positions, establishes a procedure for post-accident testing and guidelines to determine reasonable cause testing, and provides for the supervisor to submit a written report within twenty-four hours of suspecting substance abuse. It establishes a procedure for administering a test following a determination of reasonable suspicion, conducting an alcohol test for an employee who is suspected of alcohol use, and conducting random alcohol and drug testing. This section: provides for the removal, reassignment, or transfer of an employee from driving a commercial motor vehicle if the employee fails an alcohol or drug test; describes the conditions under which an employee may return to work; allows mandatory referral to the EAP of an employee who violates these policies; and provides for disqualification of an applicant who has failed a pre-employment test. Section 4.35 prohibits crewmembers from: performing or attempting to perform any duties within four hours of consuming alcohol, working under the influence of alcohol or drugs, and consuming alcohol while on duty. It also describes the procedures for alcohol and drug testing of crewmembers, establishes disciplinary actions for policy violations, and describes the mandatory referral process. Section 4.36 identifies certain activities which are considered safety sensitive and, if performed by an employee, will subject him or her to drug and alcohol testing. It requires employees in safety sensitive positions to comply with the requirements of sec.sec.4.32, 4.33, and 4.34, and requires applicants for and employees in safety sensitive positions to be subject to pre-employment and post-accident testing. Section 4.37 describes the procedures for the collection of urine specimens and designation of a collection site, and for verification of a positive test result. It establishes procedures for conducting alcohol testing, provides an employee with an opportunity to appeal a drug test result, and provides for notification of test results to employees and applicants, if requested. Section 4.38 requires medical or personal information contained in testing program records to be treated as strictly confidential, except in certain proceedings and when requested by the employee or the department. It also provides for disciplinary action for willful disclosure or release of confidential information. Section 4.39 describes the procedure to appeal actions taken under the proposed sections. Section 4.40 describes the department's records retention procedures concerning substance abuse program records. On July 18, 1995, the department conducted a public hearing on the proposed new sections to receive comments, views, and/or testimony. Comments were received from one employee at the hearing. The total number of employees who submitted comments cannot be determined, since some of the comments were summarized into one response which was presented or sent in by one employee. After further review of the content of sec.4.31, Definitions, the department has added, or otherwise modified, language to clarify the terms "dangerous chemicals or materials", "serious accident", and "successful completion of treatment" in this section. Two commenters expressed concern about the vagueness of the term "inoperable" in the definition for "serious accident." They were concerned that a vehicle could be inoperable because of a tire flattened upon impact or other non-serious problems. The department's intent is to exclude minor accidents. Therefore, the department is placing responsibility on the supervisors or SCOs present at the accident to determine whether the damage rendering a vehicle inoperable fits the situation defined as a serious accident. Supervisors or SCOs who may be placed in such situations will receive training to help them make these decisions. Two commenters also expressed concern about the vagueness of the term "first aid" in the definition of "serious accident." They thought the phrase "requires treatment beyond first-aid" wasn't clear. They requested a definition of this term as it correlates to the severity of the accident. The department's intention was to draw a line between serious and nonserious injuries. To strengthen this definition, the department has added the phrase "treatment that can only be provided by a medical professional." One commenter asked for clarification of the words "person" and "vehicle" in the definition of "serious accident", and questioned whether these terms are referring to any person and any vehicle involved in the accident. The answer is yes. The words "person" and "vehicle" do apply to any person and any vehicle involved in the accident. Two commenters believed the definition of "serious accident" would increase the department's costs by causing more tests to be performed. They questioned why the definition changed from that required by federal law. Since 45% of total highway fatalities involve alcohol (National Highway Traffic Safety Administration, "Traffic Safety Facts 1992-Alcohol"), the department has an additional responsibility to protect the public and other employees by attempting to prevent accidents that might involve substance abuse, before a major accident occurs. The commenter has a good point about increased costs; however, because of the frequent driving performed by employees, and the associated risk of imminent danger, it would be irresponsible to defer preventive measures such as testing until that imminent danger results in a catastrophic event. Therefore, the department believes that any additional expense caused by increased post-accident testing is negligible by comparison. Three commenters questioned what the words "workplace" and "while on duty" mean in sec.4.32(a)(1), All Department Employees. They asked whether these words include lunch or traveling in any state vehicle or while accruing mileage in another vehicle. The term "workplace" is defined in sec.4.31 as "all department offices, construction sites, temporary laboratory sites, maintenance sites, ferries, and any other location where an employee is performing assigned duties." "While on duty" includes any time an employee is on the clock, reporting or claiming time worked, or accruing mileage. Therefore, lunch time would not be included in these definitions unless the employee is eating lunch while working or at the workplace. Traveling in a state vehicle would be included. Two commenters requested a definition of "under the influence" in sec.4.32(a) (2) and asked "what is the limit" for having a beer at lunch for employees not in safety sensitive positions or driving. The department considers "under the influence" to occur if the employee's work performance is negatively affected. Regarding the limits for having a beer at lunch, lunch time is personal time and is not considered "while on duty." Employees may not work under the influence; therefore, employees must carefully judge whether consuming alcohol at lunch would place them under the influence and affect their performance. One commenter wanted to know who is the department agency/person responsible for notifying the appropriate federal agency for convictions for criminal drug statute violations, and what is the appropriate federal agency discussed in sec.4.32(a)(3). The responsible reporting party is the executive director. The agency is the United States Department of Transportation. Also in sec.4.32(a)(3), two commenters wanted to add the word "use" to the following sentence: "The distribution, dispensation, transportation, sale, or manufacture of dangerous drugs or the possession with the intent to distribute, dispense, transport, sell, or manufacture dangerous drugs is prohibited in the workplace or while on duty." Adding the word "use" is not necessary. The use of dangerous drugs has already been addressed in paragraph (1) of this subsection. Two commenters said it sounds as though legal prescriptions are included when the term "dangerous drug" is used in sec.4.32(a)(3)-(4). One commenter suggested adding "illegal" to this statement. Dangerous drugs are defined in sec.4.31, as "a narcotic drug, controlled substance, and marijuana as defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. sec.802." This reference includes illegal drugs and legal, controlled drugs. Therefore, it is not necessary to add the term "illegal." One commenter wanted to know if the drug Valium, with or without a prescription, is considered dangerous, under sec.4.32(a)(3)-(4). Using the drug Valium to the extent that the employee's performance is impaired could result in some action being taken with regard to the employee. If the employee's performance is impaired due to using Valium with a prescription, the employee would be required to take leave and not return to work until his or her performance is not impaired. If the employee is using Valium without a prescription and performance is impaired, the employee would be mandatorily referred to the EAP. Regarding sec.4.32(a)(4)(A), one commenter stated that "conviction" as defined by law is a sentence ordered by a judge and served by the accused. The commenter stated that a person found guilty is sentenced by a judge but does not serve time if given probation, and therefore is not considered "convicted. " The commenter added that deferred adjudication has not been addressed and is not a conviction either. The commenter questioned how an applicant would communicate these non-convictions since they are not on the application for employment, and that attorneys sometimes advise their clients that if they have not served time in the state penitentiary to mark "No" to the question of conviction. They note that the failure to notify the employer subjects the applicant/employee to termination. The department's legal counsel agrees that the commenter would be correct from a criminal justice standpoint, but our approach is that of setting public policy. The goal of the policy is to protect the safety of employees and the traveling public. To accomplish this, the department is attempting to deal with applicants and employees whose behavior negatively affects the department. Therefore, if the situation meets the definition of "conviction," the situations mentioned will be covered by the policy. The department's definition of "conviction" in sec.4.31, Definitions, currently includes convictions, probated sentences, and cases under appeal. The term "deferred adjudications" has been added to this definition and the definition of "receiving a DUI/DWI" for the purposes of clarification. One commenter stated that applicants with convictions should be screened out before being granted an interview, and suggests that this incongruity appears in several areas of sec.4.32(a)(4)(A). If the applicant has addressed the conviction on the employment application and the applicant has been convicted of felony charges related to the illegal sale, distribution, transportation, or manufacture of dangerous drugs and is still on probation or parole for the conviction, the applicant would not be granted an interview. If an applicant does not address this issue on the application, the department has no way of screening these applicants out since we do not conduct criminal record checks at this time. Therefore, we have included language which allows us to terminate an employee under the described conditions if the conviction is discovered after the person becomes employed with the department. One commenter wanted to add violations of state or federal laws concerning drugs and alcohol to the statement "supervisors cannot let an employee stay on the job..." in sec.4.32(a)(5). This recommendation requires additional study and will be considered for further action at a later date. One commenter states that the word "program" is plural in sec.4.32(a)(7), and wanted to know if there is more than one program. The word "program" is used in singular form twice in this paragraph, once referring to the employee assistance program and once referring to a treatment program outside of the EAP. The word "programs" is used at the end of the paragraph to refer to both the EAP and/or any one or combination of programs as prescribed by the EAP. One commenter asked if a "mandatory referral" in and of itself is a disciplinary action as described in sec.4.32(b). The commenter added that prior to August 1994, the disciplinary actions were oral, written and probation. On August 26, 1994, the commenter says, probation became an adverse action, so is a mandatory referral a disciplinary action under the new rules? The commenter adds that sec.4.32(a)(6) states that in addition to or in lieu of disciplinary action, an employee will be referred to the EAP. An employee who violates sec.4. 32 is subject to immediate termination; however, if an employee agrees to be mandatorily referred to the EAP, he or she will not be terminated as long as they successfully complete treatment. Therefore, mandatory referrals are not considered disciplinary actions, but rather opportunities to avoid disciplinary action. In some cases, mandatory referrals may also be used in conjunction with the department's informal disciplinary intervention policy. However, such decisions would be left up to the supervisor, the appropriate management team member, and the director of Human Resources, working within the direction of the disciplinary action and substance abuse policies, and would depend on the incident and the circumstances surrounding it. Four commenters made similar comments regarding sec.4.32(b)(2). One commenter thought a mandatory referral to the EAP, without an investigation to confirm or deny suspicion, seemed excessive. One commenter suggested that suspicion is not enough to take disciplinary actions, unless "known by observation" or other guidelines and controls. Two commenters wanted to know what procedures exist to prove that an employee is, in fact, under the influence. The rules set up guidelines for determining if employees are working under the influence. Supervisors or substance control officers cannot arbitrarily refer employees for suspicion of working under the influence, but must objectively document observable behavior as described in this section and must allow the employee to give a reasonable explanation. Further, a mandatory referral will only be made when conclusive evidence exists. No one person will make the decision to mandatorily refer employees. Generally, decisions will involve the supervisor, the substance control officer, and the Human Resources Division. In addition, everyone involved in such decisions has had and will continue to receive training to teach them how to identify substance abuse and how to deal with such situations. Also concerning sec.4.32(b)(2), a commenter wanted to know who determines if a person is suspected of working under the influence of inappropriately used inhalants, and how do they determine this. A supervisor and substance control officer will determine if an employee is working under the influence of inhalants. They base their determination on objective, documentable evidence of the employee's behavior, appearance and functioning. Supervisors and substance control officers have received training and will continue to receive training in making this type of determination. One commenter stated that if mandatory referrals to the EAP, as described in sec.4.32(b)(2), were made without proof, the department's liability due to wrongful termination and failure to control false accusations would increase. Mandatory referrals are not made unless there is a strong indication, supported by documentation by a supervisor, that an employee is under the influence. Beyond the initial referral, the EAP alone is responsible for determining whether an employee has a problem that requires treatment. A mandatory referral is not equivalent to termination unless it exceeds the maximum number allowed. One commenter wanted to know what is meant by "specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, body odors, or performance of the employee..." as described in sec.4.32(b)(2). This means that an employee will not be mandatorily referred to the EAP unless the supervisor or SCO has a reasonable belief, based on objective, documentable signs, that an employee may be under the influence of alcohol, dangerous drugs, or inhalants. Again, concerning sec.4.32(b)(2), two commenters wondered if an employee denied being under the influence and it is subsequently discovered that he or she is working under the influence, how the employer would "later find out" and how credible that would be. They wondered if the evidence would be based on a drug/alcohol/blood test, a neighbor's opinion, or observation, how it would be verified, and whether a test would be performed. The department could possibly find out either as a result of a test result, direct observation, or conclusive evidence. The rules state that if an employee denies working under the influence and the evidence is inconclusive, no further action will be taken against the employee except to warn him or her that "if it is subsequently discovered that he or she is working under the influence...he or she will be terminated..." This paragraph assumes that the evidence gathered for that particular incident was inconclusive. If the employee is later found to be working under the influence in a separate incident where the evidence is conclusive and the circumstances are similar or otherwise related to the first incident, that employee will be terminated instead of being mandatorily referred to the EAP for treatment. If the circumstances of the first and second incidents appear unrelated or dissimilar, other action, such as a mandatory referral, would be taken. A drug or alcohol test would only be performed if the suspected employee were subject to reasonable cause testing. Regarding sec.4.32(b)(6)(B), one commenter questioned if the employee should be penalized if they are arrested and haven't any access to a phone. For example, if they are arrested out of state and can only make one or two calls. The commenter also questioned how the employee could be assured that his notification within the three days is properly noted or recorded and confidentiality maintained. The commenter suggested that an "agent" of the employee, for instance, a member of the family, a lawyer, etc., be allowed to call in for the employee and leave messages or talk with the appropriate person. The department concurs that allowing an agent to contact the employee's supervisor would be a good solution for situations in which the employee cannot contact the supervisor within the time limit. Language allowing the employee's agent to contact the department is being added. In order for confidentiality to be maintained, the person calling to report the arrest would talk to only the employee's supervisor or, in his or her absence, the substance control officer. Both must follow procedures for maintaining the information in a confidential manner. Three commenters thought statements in sec.4.32(b)(6)(B)-(E), contradict each other. In sec.4.32(b)(6)(C)-(D), if an employee is convicted or voluntarily admits to selling, distributing, transporting, or manufacturing dangerous drugs...etc., he or she will be terminated from the department. In sec.4.32(b)(6)(E), if an employee is "reasonably suspected" due to direct observation of such acts or due to arrest, charge, or indictment, an investigation will be conducted and the final determination will depend on the facts available. If an employee is arrested, charged, indicted, or convicted of the same offenses but doesn't report the arrest, charge or indictment, he or she only receives a three day suspension without pay. If this is true, why should the employee notify the department? Not reporting it might save the employee a lot of problems if there is no conviction. If the substance abuse officer or a court decides they are guilty, the employee will be terminated anyway. If the employee is convicted and will be terminated anyway, why tell the department? To avoid a three day suspension? One commenter suggested that the employee who does not report an arrest, charge, indictment, or conviction be suspended or terminated depending on the circumstances regarding the violations. The department agrees that these paragraphs are confusing, and has modified the language to make it consistent. The rules are being changed so that an employee who fails to report a conviction will receive the same penalty as an employee who does report a conviction. The three-day suspension will now apply only to employees who fail to report arrests, charges, or indictments. The reason the department requires employees to report all such incidents is so that appropriate disciplinary actions can be taken immediately. One commenter asked what is the statute of limitations for terminating employees that voluntarily admit to selling, distributing, transporting, or manufacturing dangerous drugs under sec.4.32(b)(6)(D). If an employee voluntarily admits to having sold, distributed, transported, or manufactured dangerous drugs and is still on probation or parole for the offense or if the admission relates to a reasonably current action, although no arrest or charges have been made, that employee will be terminated. One commenter wondered if terminating an employee for voluntarily admitting, pursuant to sec.4.32(b)(6)(D), without proof that he or she has sold, manufactured, distributed, etc. drugs is grounds for a lawsuit. Employees who voluntarily admit to selling, distributing, transporting, or manufacturing dangerous drugs and have not been arrested, convicted, or indicted will be required to sign a statement admitting their actions prior to termination. This is new language which is being added to ensure that no false accusations are made and no employee is "coerced" into "confessing" to something he or she did not do. We want to ensure that employees will not be terminated without reasonable proof. The department does not feel that this policy will lead to lawsuits since the admission is voluntary. One commenter asks whether the department should hold the employee's job open while they are awaiting conviction for selling drugs, as described in sec.4.32(b)(6)(E)? The answer is no. The employee will be terminated if an internal investigation under this section leads to a determination that the employee was, in fact, selling, transporting, distributing or manufacturing dangerous drugs, or if the employee fails to respond or to provide a reasonable explanation as outlined under that same subsection. The employee will be suspended from work during the internal investigation, which is not usually a lengthy process. If the internal investigation does not lead to a determination of the employee's guilt, the employee will return to work as usual unless he or she is convicted. At that point, the employee will be terminated. Regarding sec.4.32(b)(8), one commenter asked how the department can terminate on third referrals for non-drivers and positions where no license is required. Under the substance abuse policy, even employees who are not drivers or in safety sensitive positions are subject to being terminated on the third need for a referral to the EAP for having violated the substance abuse policy. The department is obligated to establish policies to protect the department and its employees. To meet this obligation, it is not unreasonable to prevent employees who have a problem with alcohol, drugs, or inhalants from continuing their employment with the department. The department tries to balance the desire to help rehabilitate and be fair to employees with the need to keep the workplace safe. Employees with substance abuse problems are given two opportunities to be rehabilitated through substance abuse treatment. Under sec.4.32(c)(2), one commenter questioned if there were a number of department paid visits to the EAP, or whether paid visits depended on the treatment plan prescribed by the EAP. An employee may receive up to seven free visits to the EAP, depending on the treatment plan the EAP prescribes. The EAP alone decides whether an employee would be better served by a referral to another source. If there is a need to refer an employee outside the EAP for other treatment before the seventh visit, the employee's insurance policy will usually cover part or all of the treatment outside the EAP. The employee is responsible for any remaining costs of treatment. Also regarding sec.4.32(c)(2), another commenter addressed a situation in which the EAP referred an employee to an out-of-town facility for treatment, making it impossible for the employee to continue working while in treatment. In such cases, will the employee be terminated, or will his or her job be held open until treatment is completed? This case should be considered highly unusual, as most cities have suitable treatment centers. If the EAP sends the employee to an out-of-town treatment center, the employee would be given the opportunity to temporarily transfer to a location near the center if the employee was able to work while in treatment and if a position were available. If this were not possible, the employee would have to use their own leave until he or she was able to return to his or her regular duties. Under these circumstances, an employee would be able to return to their regular job. Concerning sec.4.33(a), Employees Who Drive for the Department, one commenter thinks the DWI policy is burdensome to administer and inflicts needless punishment upon employees, when many employees would rather work with someone who has a DWI than someone convicted of premeditated felonies such as child molestation (and such offenders are not singled out for referral to counseling or additional punishment). The commenter added that the behavior of employees on the job differs than that off the job, and most lawyers could easily handle this defense for the department, should the department choose not to punish employees for DWIs committed while off the job. They asked, "isn't random testing and the no drinking on work time policy enough?" The answer is no. While the commenter's point of view is understandable, the department must reiterate that the DWI policy is necessary because of the risk to public safety associated with allowing a person who has engaged in unsafe behavior with a vehicle to continue to drive for the department without some action being taken. For the vast majority of jobs with the department, driving is a necessary part of the job. While felonies such as child molestation agreeably are heinous crimes, they usually do not directly relate to the employee's work duties with the department. Also regarding sec.4.33(a), another commenter wondered if driving a "boat while intoxicated" or "operating aircraft while intoxicated" count toward the number of DWIs, since these offenses are counted in the assessment of penalties by the judge in a court of law. For the purposes of the department's policies, these offenses are not counted as DWIs. If, however, the presiding judge in an employee's case takes such offenses into consideration in suspending an employee's license or other action that disqualifies an employee from driving for the department, the department will deal with the employee based on that disqualification by the court, not necessarily on the reason(s) behind it. One commenter failed to see why the department would hire an applicant with a DUI/DWI within three years if driving for the department was an essential function, pursuant to sec.4.33(b). If job applicants have a DUI/DWI on their record within the past three years, they would not be eligible for a driving position with the department unless they complete treatment as prescribed in subsection (f). Two commenters asked why the department allows only one day to report a suspended license and three days to report convictions, as described in sec.4. 33(d). They thought one day was harsh since there are three days to report a DWI conviction and also the employee is not terminated on the first DWI conviction. They believe it would be consistent to give three days to report a suspended license. In the case of a suspended license, it is the employee's duty to abstain from driving. However, an employee may not do so. Therefore, it is the department's duty to the traveling public and to other employees to make every effort to be sure that employees are not allowed to drive with suspended licenses. A one-day reporting period reduces the risk that employees will be driving with a suspended license. Four commenters questioned the reasoning of not accepting a judge's work permit as it translates into an occupational driver's license, pursuant to sec.4.33(e). The department will accept an occupational driver's license as long as it does not limit the employee from driving on the job. The term "judge's work permit" is outmoded and will be removed from the rules. Regarding sec.4.33(e), one commenter questioned how the employer is notified of the type of license given to the employee. They say, for current employees, what sense is there to notify the employer that licensing status has changed, since it only leads to termination? The employee is responsible for notifying the department within one day after the employee's license status has changed. The employee will not necessarily be terminated. Again, under sec.4.33(e), two employees had similar comments. One commenter asks how long will a position be held open when an employee's driving privileges are lost long term? And another commenter asks how long a job will be held open while an employee is on leave or leave without pay getting a fitness for duty letter. This depends on the situation. There are no definite time limits for these types of situations. A commenter asks if an employee is convicted of a DWI and reassigned to non- driving duties in lieu of being placed on paid leave or LWOP pending clearance of the employee's driving record, could the department reassign the employee to another non-driving assignment for 60-90 days until driving clearance is obtained? The answer is yes. An employee taken off driving duties will be reassigned to non-driving duties or a non-driving assignment at his or her work location, if available. If not available, the employee will be offered the option of transferring to another work location. If the employee refuses a transfer, he or she will be placed on leave as outlined in the rules. If the reassignment lasts longer than 180 days, the employee's functional title may be reassessed and a reduction in pay may result. The length of time the employee's position will be held open depends on each individual situation. One commenter stated that the following phrase from sec.4.33(f)(2)(D), is incomprehensible: "... if the EAP counselor is unable to locate a doctor or licensed practitioner who is covered by the employee's health insurance, then the EAP counselor will provide a letter to the employee's SCO stating the employee does not have an alcohol or drug addiction problem at this time." The commenter asks, does this mean if there is no available doctors that the individual ceases to have a problem and have they completed treatment? Further, does the EAP certify to this fact and are they liable for legal actions? The first part of the sentence that the commenter quotes reads: "If the employee is not referred for treatment beyond referral to the EAP...", which indicates that the EAP believes the employee does not need treatment beyond what is available through the EAP. EAP counselors, instead of providing fitness for duty letters themselves, normally will locate a doctor or other licensed practitioner to interview the employee and provide the fitness for duty letter. The employee is responsible for paying for this service, and for other services required before the employee can return to work. The EAP makes every effort to find services that will accept the employee's insurance. This subparagraph refers only to employees who are not referred beyond the EAP for treatment (i.e., the EAP determines that they do not have a serious drug or alcohol problem at that time). It states that the EAP may provide a fitness for duty letter in these cases if they cannot find a doctor or licensed practitioner covered by the employee's insurance to provide the letter. The EAP is liable for its actions in accordance with applicable law. With regard to sec.4.33(f)(2)(D), one commenter asked whether the EAP contract requires them to have a psychiatrist on staff, and couldn't he or she certify to the employee's fitness for duty? The EAP is not required to have a psychiatrist on staff. Four commenters submitted similar comments regarding sec.4.33(f)(4). Two commenters believe that relaxing the DWI policy from no more than two DWIs in a lifetime to two DWIs in five years creates an undue negligence liability and promotes the wrong image for the department. One commenter questions how the department can so strongly support MADD and Project Graduation and have a policy that allows routine violations of the DWI laws. A third commenter also believes the department is sending the wrong message and questions making it acceptable to get two DWIs every six years. This commenter asks whether an employee who receives two DWIs over a seven year period still be eligible for employment with the state? A fourth commenter questions if DWIs received prior to September 1, 1995 count toward the two in five years limit. Based on the information available, the department believes that the current penalty for two DWIs in a lifetime is unduly harsh. No state laws currently are more stringent than to consider two DWIs within a five year period. The second DWI in five years would cause the employee to lose his or her job; however, employees are sent to the EAP and must complete treatment after the first DWI. The philosophy behind this policy is that the longer between DWIs received, the less likely the person is a liability because of an alcohol/drug problem. If a person did have a problem and has been rehabilitated, they should not be punished beyond a predetermined length of time. In response to the fifth question, DWIs received before November 1, 1995 will not count toward the two in five years under this new policy, but employees who received them must still complete their treatment programs and are still subject to whatever disciplinary action has been determined necessary. The dates in sec.4.33(f)(4) have been changed due to the delay in adopting these rules in final form. One commenter asked about the scope of drugs, including prescriptions, being tested for in pre-employment testing, as described in sec.4.34(c)(1)(a), Commercial Drivers. The department only tests for those drugs required by federal regulations, which includes opiates, amphetamines, cocaine, marijuana, and PCP. If there is a positive drug test result, the MRO will contact the applicant/employee to determine whether there is a valid medical explanation for the result, such as a prescription. If there is, the MRO will then report the test result as negative. One commenter asked whether a post-accident test would be given to a driver, pursuant to sec.4.34(c)(2), if the vehicle was hit while parked/standing, or would they have to be driving the car. The determination of whether or not to test an employee would depend on the circumstances surrounding the accident. The employee's supervisor or SCO will be responsible for determining when a post- accident test is necessary. Regarding sec.4.34(c)(3), one commenter asked what would happen if an employee is in treatment with the EAP and comes up on the random test list during that time. The commenter also questioned if an employee can be sent for "probable cause" testing if the employee is already receiving treatment from the EAP. If employees have been taken off driving duties, they are no longer subject to testing for reasonable cause, random, or post-accident tests. Once back on driving duties, employees will be subject to testing as usual, even if they are still in some phase of treatment. One commenter questions whether the department's random testing, as described in sec.4.34(c)(4)(A), is consistent with methods and procedures statistically defined and utilized by the scientific testing community. The department's random selection of employees for testing is contracted to an outside vendor and is done according to established scientific methods. Under sec.4.34(c)(4)(A), one commenter wanted to change the words "equal to" to "at least" concerning random testing. This wording is verbatim from federal regulations and cannot be changed. Three commenters suggested other activities that might be added to the safety sensitive list under sec.4.36(a), Safety Sensitive Employees. They include: anyone operating gauges or devices utilizing radioactive materials, carpenters, electricians, automobile mechanics, sheet metal workers, and building constructions and maintenance personnel such as air conditioning and heating mechanics, construction workers involved in the construction or renovation of buildings, individuals who operate various types of vehicles to transport mail, supplies, and equipment, and individuals who inspect hazardous waste spills. The Human Resources Division reviews activities which may be considered safety sensitive on an on-going basis. All of these activities will be considered, and if appropriate, they will be added to the safety sensitive activities list the next time rule amendments are proposed. Regarding sec.4.36(a), one commenter was concerned about the different interpretations of safety sensitive by the different districts and divisions and suggested the classification manual be used. The Human Resources Division will determine which jobs are safety sensitive by using a certification form developed by HRD in accordance with Office of the General Counsel, Occupational Safety Division, and feedback received. The classification manual cannot be used at this time because the job descriptions currently do not identify safety sensitive activities. One commenter suggested changing "employees drive in an unusual fashion" to "operate in a fashion not usual to normal traffic" in sec.4.36(a)(1), so it would be easier to understand. This is an excellent suggestion and this language is being added to clarify this paragraph. After further review of the content of sec.4.36(a)(2), the department has deleted the word "activities" and added the phrase "job duties other than driving" in this paragraph to make it easier to understand. After further review of the content of sec.4.36(a)(3), the department has deleted the reference to the activities of storing, maintaining and safeguarding dangerous chemicals or materials and added the term "combustible" to sec.4.36(a)(3)(A)-(E) and the terms "flammable, toxic and corrosive" to sec.4. 36(a)(3)(C)-(E) in an effort to clarify this language. The department has also substituted the phrase "cuts materials" in place of "welding" in sec.4.36(a)(3) (E) to adequately describe those activities the department considers safety sensitive. After further review of the content of sec.4.36(a)(4), the department has added the phrase "specialized maintenance/construction or heavy equipment" in order to clarify this paragraph. In paragraph (4)(A), we have deleted those pieces of equipment which must be operated by a commercial driver to avoid redundancies. Also in paragraph (4)(A), the word "forklifts" has been added to subparagraph (A) to clarify the term "heavy equipment" and related language has been deleted since it is redundant. Regarding sec.4.36(c), one commenter said that requiring safety sensitive employees to abide by rules that apply to commercial drivers will be expensive (stand-by time) and delay emergency responses by requiring employees to abstain from consuming alcohol for four hours prior to working. Any expense the department incurs by having to place a small number of employees on standby time pay after work hours to ensure that a sober crew is available to report to the scene of an emergency will be negligible compared to the cost that could result from sending alcohol-impaired employees to handle an emergency. Setting a standard limit (such as four hours) for employees in safety sensitive positions helps ensure that no one will be working under the influence, thereby reducing the risk of injury to other employees and the public. Five commenters made similar comments regarding sec.4.36(d). Three commenters asked why safety sensitive employees won't be tested for random and reasonable cause and why all employees are not tested, at least for pre-employment and post-accident. They suggest it would eliminate the discrimination issue raised that only some are singled out for testing. They also questioned why safety sensitive positions are only tested for pre-employment and post-accident. One commenter questioned why all employees whose major job functions require driving, such as courtesy patrollers, won't be subject to testing. One commenter questioned why all employees who drive are not randomly tested. The commission recognizes that drug use may affect the job performance of any employee. It also recognizes the legal limits imposed upon the department concerning the testing of all employees. However, with these limits, privacy vs. safety issues come into play, and government entities are subject to additional restrictions. Urine tests, when compelled by the government, are searches and seizures within the meaning of the Fourth Amendment. Based on current court decisions and the limits of constitutional law, a governmental employer may only conduct drug testing of employees in very limited job functions, such as those where impaired performance may result in an imminent and immediate danger to the safety of the employees and others. Guidelines established by the Supreme Court have determined that testing employees in safety sensitive positions is essential to the health and safety of all employees and the traveling public; therefore, the safety interest is sufficient to override the privacy interest of the individual employee. In response to the fourth commenter, courtesy patrollers will be subject to pre-employment and post-accident testing. One commenter says there is no provision for assisting disabled employees in completing drug and alcohol tests in sec.4.37, Test Procedures. The same assistance accorded to disabled employees in any area will also apply to completing alcohol and drug tests. Regarding sec.4.37(b)(1)(B)(ix), one commenter asked for specific procedures when an employee is unable to provide a specimen, such as who notifies the MRO. Either the SCO or the Employee Relations section of the Human Resources Division will notify the MRO, depending on the circumstances. Regarding sec.4.37(b)(1)(B)(ix), one commenter asked for specific procedures when an employee is unable to provide a specimen, such as what are the MRO's procedures and follow-up responsibilities. The MRO will refer the employee for a medical evaluation to determine whether there is a physical reason for the inability to produce a specimen. If there is, the employee will not be deemed to have refused to test. If no physical reason exists, the employee will be deemed to have refused to test and will be terminated. Regarding sec.4.37(b)(1)(B)(ix), one commenter asked for specific procedures when an employee is unable to provide a specimen. What role and responsibilities does the SCO have? The SCO is responsible for notifying the MRO and/or the Employee Relations section of the Human Resources Division and for handling the termination process, should it become necessary. As a result of changes to federal regulations, the department has deleted the language in sec.4.37(b)(1)(B)(ix), which requires an employee to stay at a collection center for eight hours in cases where he or she is unable to give a specimen. Under sec.4.39, Appeals, one commenter stated that the rules provide that any challenge made by an employee under the substance abuse program is deemed adverse for purposes of granting the employee a hearing on appeal. Given this, the commenter questions whether the department is expanding the category of adverse actions to include challenges herein. The department will consider an action taken under the substance abuse program policy which is challenged by an employee as adverse so that appeals are conducted by the department's internal hearing officers and not through a contested case procedures. This was done to make it easier for employees to challenge actions they felt were unfair. Also concerning sec.4.39, one commenter asked why the employee is allowed an appeal under the substance abuse program if there is documented evidence resulting in the employee's being guilty. They ask why waste time and dollars? Employees must be given the opportunity to offer a reasonable explanation for evidence presented and to appeal decisions that cause action to be taken against them. Having an internal process helps avoid the necessity for outside appeals. Regarding sec.4.39, one commenter asks if an employee is found guilty by a jury and then during the court appeal, TxDOT decides they are not guilty, would TxDOT overturn the court's decision by saying the court erred? Further, would the department give the employee his or her job back even though he is legally considered convicted? Once an employee is convicted, the department will proceed based on that conviction. If the employee appeals the conviction in court, nothing will be done unless the verdict is overturned. If the verdict is overturned, depending upon the circumstances and the offense, the employee may or may not be reinstated. TxDOT will under no circumstances consider an employee innocent when a court declares him or her guilty. Two commenters suggested format changes to the rules, including the use of bold type and underlining, and page numbers on references to make them easier to locate. The department agrees that these changes could be done to make the rules easier to follow; however, the page numbers will change with publication and the format of the rules must remain consistent with Texas Register style. One commenter thought 63 pages was "quite lengthy" and suggested that other laws not be summarized, only referenced. Although the document is lengthy, the information included is necessary to adequately communicate this policy. DHHS and Coast Guard drug testing procedures have been summarized, for example, to make sure employees have access to that information. If this information is more readily available to employees at a later date, the department will consider deleting these summaries and referencing them. The new sections are adopted under Transportation Code, sec.201.101, which provide the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation. sec.4.30. Purpose. The sections under this subchapter set forth the Texas Transportation Commission's policy and procedures for its implementation, evidencing the department's commitment to achieving an alcohol and drug-free workplace. An alcohol and drug-free workplace helps protect the health and safety of the department's most valuable resource, its employees, as well as the health and safety of the public. In addition, these sections are intended to demonstrate the department's commitment to rehabilitating and restoring employees whose performance may be impaired by alcohol or drug abuse. These sections also meet the outline policies and procedures required by 41 United States Code sec.sec.701-707, Title 46, Code of Federal Regulations, Part 16, Title 49, Code of Federal Regulations, Part 382, and Title 28, TAC, sec.169.2. sec.4.31. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Aftercare-The second phase in treatment for alcohol, inhalant, and/or drug dependency. This phase usually follows intensive inpatient treatment or intensive outpatient treatment, and may consist of weekly counseling sessions. The frequency and duration of these counseling sessions is designated by the treatment center's staff physician. Air blank-A reading by an evidential breath testing device (EBT) of ambient air containing no alcohol; in EBTs using gas chromatography technology, a reading of the device's internal standard. Alcohol-The intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol. Alcohol concentration -The alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test. Alcohol test-A scientifically recognized chemical test which establishes an individual's blood alcohol level. Alcoholic beverage -A beverage which contains alcohol. Breath alcohol technician (BAT)-An individual who instructs and assists individuals in the alcohol testing process and operates an evidential breath testing device (EBT). Chain of custody -Procedures to account for the integrity of each urine specimen by tracking its handling and storage collection to final disposition of the specimen, utilizing an approved department chain of custody form from time of collection to receipt by the laboratory, and upon receipt of the laboratory, an appropriate laboratory chain of custody form to account for the sample or sample aliquots within the laboratory. Chain of custody form-A form which, at a minimum, includes an entry documenting date and purpose each time a specimen or aliquot is handled or transferred and identifying every individual in the chain of custody. Collection container -A container into which the employee urinates to provide the urine sample used for a drug test. Collection site -A place designated by the department where individuals present themselves for the purpose of providing a specimen of urine to be analyzed for the presence of drugs. Collection site person-A specifically trained person who instructs and assists individuals at a collection site and who receives and makes a screening examination of the urine specimen provided by those individuals. Commercial driver -An employee who operates a commercial motor vehicle on a routine, intermittent, or occasional basis for the department. Commercial motor vehicle-A motor vehicle or combination of motor vehicles used to transport passengers or property if the motor vehicle: (A) has a gross combination weight rating of 26,001 or more pounds inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; (B) has a gross vehicle weight rating of 26,001 or more pounds; (C) is designed to transport 16 or more passengers, including the commercial driver; or (D) is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 C.F.R. Part 172, Subpart F). Conviction-A conviction, probated sentence, deferred adjudication, or case under appeal. Crewmember-An individual who is: (A) on board a vessel acting under the authority of a license, certificate of registry, or merchant mariner's document whether or not the individual is a member of the vessel's crew; (B) engaged or employed on board a vessel owned in the United States that is required by law or regulation to engage, employ, or be operated by an individual holding a license, certificate of registry, or merchant mariner's document; (C) occupies a position, or performs the duties and functions of a position, required by the vessel's Certificate of Inspection; (D) performs the duties and functions of patrolmen or watchmen; or (E) is specifically assigned the duties or warning, mustering or controlling the movement of passengers during emergencies. Dangerous chemical or material-A flammable, combustible, toxic, or corrosive chemical or material which has the potential to cause serious bodily harm to the traveling public and other employees if handled improperly. Dangerous Drug -A narcotic drug, controlled substance, and marijuana as defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. sec.802. Department-The Texas Department of Transportation. DHHS guidelines -Mandatory Guidelines for Federal Drug Testing Programs of the U.S. Department of Health and Human Services (53 Fed. Reg. 11970; April 11, 1988). Directly Involved -Involved in a serious accident or a serious marine accident on a department ferry, in which the involved employee's order, action, or failure to act is determined to be, or cannot be ruled out as, a causative factor in the events leading to or causing that accident. Director-The chief administrative officer of the Human Resources Division. District-One of 25 geographical areas, managed by a district engineer, in which the department conducts its primary work activities. District engineer -The chief administrative officer in charge of a district of the department. Division-An organizational unit in the department's Austin headquarters. Division director -The chief administrative officer of a division or special office of the department. Drive for the department-Driving a vehicle or operating motor-driven equipment, including but not limited to rollers, tractors, graders, ferries, and aircraft for the department, notwithstanding ownership of the vehicle or equipment and the frequency of driving or operating duties. This includes an employee's personal vehicle when driven during the course and scope of employment. Drug test-A scientifically recognized chemical test administered in accordance with DHHS guidelines and which analyzes an individual's urine for evidence of marijuana, cocaine, opiates, phencyclidine (PCP), and amphetamines. This test consists of laboratory testing in two parts, an initial test and a confirmatory test, respectively conducted with portions of the same original specimen. EAP counselors -Licensed physicians (Medical Doctors or Doctors of Osteopathy), or licensed or certified psychologists (Texas State Board of Examiners of Psychologists or other regulating board), social workers (National Association of Social Workers or other regulating board), employee assistance professionals (Employee Assistance Professionals Association, Inc. or other regulating board), or addiction counselors (certified by the National Association of Alcoholism and Drug Abuse Counselors Certification Commission or other regulating board) with knowledge of and clinical experience in the diagnosis and treatment of alcohol and drug-related disorders. Employee-A person employed by the department in a full-time, part-time, temporary, project, or seasonal position. Employee Assistance Program (EAP)-A program designed to assist employees and their family members in dealing with emotional and personal problems, including alcohol, inhalant, and drug abuse, affecting or potentially affecting the employee's work performance and safety. Evidential breath testing device (EBT)-A device approved by the National Highway Traffic Safety Administration (NHTSA) for the evidential testing of breath and placed on NHTSA's "Conforming Products List of Evidential Breath Measurement Devices" (CPL). Final applicant -A person who is given a conditional offer of initial employment, or a department employee who is conditionally approved for a transfer or promotion. Human Resources division-An organizational unit in the department's Austin headquarters which oversees human resource functions for the department. Impaired performance -The inability to perform assigned duties or to perform those duties in a safe and effective manner. Inappropriate use of an inhalant-The use of an inhalant in a manner other than that for which it was intended and which causes or is known to cause intoxication. Incident-An action or situation that raises a reasonable suspicion of drug or alcohol misuse. Inhalant-A breathable chemical that produces mind-altering vapors, including but not limited to volatile solvents, aerosols, nitrites, and anesthetics. Investigation-The collection and analysis of information. Laboratory-A laboratory certified to meet the standards of the DHHS guidelines. Mandatory referral -A referral to the EAP which requires an employee to report to the EAP and successfully complete treatment or be terminated from employment with the department. Medical Review Officer (MRO)-A licensed physician (medical doctor or doctor of osteopathy) responsible for receiving laboratory results generated by the department's program who has knowledge of substance abuse disorders, and appropriate medical training to interpret and evaluate an individual's confirmed positive test result together with his or her medical history and any other relevant biomedical information. Operation of a vessel-To navigate, steer, direct, manage, or sail a vessel, or to control, monitor, or maintain the vessel's main or auxiliary equipment or systems, including determining the vessel's position, piloting, directing the vessel along a desired trackline, keeping account of the vessel's progress through the water, ordering or executing changes in course, rudder position or speed, and maintaining a lookout; controlling, operating, monitoring, maintaining, or testing the vessel's propulsion and steering systems, electric power generators, bilge, ballast, fire, and cargo pumps, deck machinery including winches, windlasses, and lifting equipment, lifesaving equipment and appliances, firefighting systems and equipment, and navigation and communication equipment; and mooring, anchoring, and line handling, loading or discharging of cargo or fuel, assembling or disassembling of tows, and maintaining the vessel's stability or watertight integrity. Perform on a routine basis-An activity which is an essential function of a position or an activity which must be performed in order to perform an essential function and which is performed as a normal part of an employee's job duties. Possession of alcohol or dangerous drugs -Having alcohol or dangerous drugs in an area under an employee's effective control. Program-The department's substance abuse program. Receive a DUI/DWI -A conviction, probated sentence, appeal, or deferred adjudication of a conviction or probated sentence for driving a commercial or non-commercial vehicle while under the influence of alcohol or drugs or while intoxicated (DUI/DWI), while on-duty or off-duty. Safety sensitive position-A full-time, part-time, temporary, project, or seasonal position which requires the performance of regularly assigned, routinely performed activities which if performed with inattentiveness, errors in judgement, diminished coordination, dexterity, or composure could clearly result in mistakes that could present a real and imminent threat to the personal health and safety of other employees or the public, and which are performed with such independence that it cannot be reasonably assumed that those mistakes could be prevented by a supervisor or another employee, including activities having one or more of the following characteristics: a direct, immediate relationship to safety and intimately related to the prevention of harm to the traveling public or other employees; fraught with extraordinary peril such that a single alcohol or drug-related lapse by an employee could have irreversible and calamitous consequences; and performed in an extraordinarily hazardous setting such that careless performance carries with it the attendant risk of catastrophic consequences. Serious accident -Any accident that occurs while performing a safety sensitive function or driving a commercial motor vehicle and which results in: one or more deaths; an injury to an employee, passenger, or other person which requires treatment beyond first-aid that can only be provided by a medical professional and which renders the employee unfit to perform routine duties; damage to a vehicle which causes it to be inoperable; or receipt of a citation under state or local law for a moving traffic violation arising from the accident. Serious marine accident-Any reportable marine accident which results in one or more deaths; an injury to an employee, passenger, or other person which requires professional medical treatment beyond first aid and which renders the employee unfit to perform routine duties; damage to property in excess of $100,000; actual or constructive total loss of any ferry subject to Coast Guard inspection under 46 U.S.C. sec.3301, or not subject to Coast Guard inspection if of 100 gross tons or more; a discharge of oil of 10, 000 gallons or more into navigable waters of the United States, or a discharge of a reportable quantity of a hazardous substance into navigable waters or the environment of the United States. Special office -A specialized organizational unit of the department which is headquartered in Austin. Specimen bottle -A bottle, after being labeled and sealed, used to transmit a urine sample to the laboratory. Statement of Notification (Form 1835)-A department form signed by employees which acknowledges their awareness of the DUI/DWI policy. Substance Control by a district engineer or a division director to administer the Substance Abuse Program for his or her district, division, or special office. Successful completion of treatment-Completion of a treatment program, the composition and length of which is to be prescribed by the EAP counselor or the treatment program's staff physician, which may include aftercare. This includes compliance with all EAP treatment recommendations and requirements and passing all required drug and alcohol tests while in treatment. Treatment-Medical and/or psychological treatment for alcohol, inhalant, and/or drug dependency, which may consist of intensive inpatient treatment followed by aftercare, intensive outpatient treatment followed by aftercare, or educational and/or counseling sessions. United States Department of Transportation (DOT) -The cabinet level department of the United States government administering regulations requiring alcohol or drug testing (14 C.F.R. Parts 61, 63, 65, 121, and 135; 49 C.F.R. Parts 199, 219, 382, 653, and 654), in accordance with 49 C.F.R. Part 40. Use of alcohol or a dangerous drug-The consumption of a beverage, mixture, or preparation, including a medication, containing alcohol or the taking of a dangerous drug (whether orally, by inhalation, or by injection), or being under the influence of alcohol or a dangerous drug. Workplace-All department offices, construction sites, temporary laboratory sites, maintenance sites, ferries, and any other location where an employee is performing assigned duties. sec.4.32. All Department Employees. (a) Prohibited conduct. (1) The consumption of an alcoholic beverage, the possession of an open container of an alcoholic beverage, the inappropriate use of an inhalant, and the illegal use or possession of a dangerous drug is prohibited in the workplace or while on duty. (2) An employee is prohibited from reporting to work or performing official duties while under the influence of alcohol, inhalants, or illegally used drugs or, if performance is impaired, while under the influence of lawfully prescribed or over-the-counter substances. The appropriate use of prescribed or over-the- counter drugs is permitted if work performance is not impaired. (3) The department prohibits the distribution, dispensation, transportation, sale, or manufacture of dangerous drugs or the possession with the intent to distribute, dispense, transport, sell, or manufacture dangerous drugs in the workplace or while on duty. This prohibition includes any violation of state and federal controlled substances acts. Each employee must notify his or her supervisor of a conviction on charges of criminal drug statute violations occurring in the workplace, no later than three days after such conviction. Pursuant to the Drug Free Workplace Act 1988, 41 U.S.C. sec.sec.701-707, the department will in turn notify the appropriate federal agency of such conviction within 10 days of receipt of the notice. (4) The department prohibits the illegal sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs by any employee outside of the workplace. (A) A final applicant who has been convicted of felony charges related to the sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs and who is still on probation or parole for that conviction will not be hired by the department. (B) Department employees have an obligation to project a positive image at all times to other employees and the public in order to uphold the public's trust in the department. (5) No supervisor having actual knowledge that an employee possesses or is using dangerous drugs, possesses an open container of an alcoholic beverage or is consuming an alcoholic beverage while performing official duties for the department may allow the employee to continue to perform official duties. (6) An employee who violates the policies and prohibitions of this section will be subject to consistently applied discipline, up to and including termination from the department. In addition to or in lieu of disciplinary action, an employee will be mandatorily referred to the EAP and required to successfully complete treatment, as described in subsection (c) of this section. (7) The department provides an employee assistance program and encourages employees to voluntarily use the services of the employee assistance program or treatment program to deal with alcohol, inhalant, or drug abuse before it affects job performance. Successful completion of such programs may mitigate the need for discipline. (8) Each employee, as a condition of employment, must comply with this section and must signify his or her acknowledgement by signing a form prescribed by the department. (b) Disciplinary Actions. (1) Consumption of an alcoholic beverage, the possession of an open container of an alcoholic beverage, drug possession or use, or the inappropriate use of an inhalant. If an employee is directly observed possessing an open container of an alcoholic beverage or consuming an alcoholic beverage, possessing or taking a dangerous drug whether orally or by inhalation or injection, or inappropriately using an inhalant in the workplace, the following procedure shall be followed: (A) The employee will be given an opportunity to offer a reasonable explanation for the observed circumstances and behaviors. At the same time, the supervisor or substance control officer will immediately provide the employee with a letter which: (i) summarizes the observed circumstances and behavior; (ii) notifies the employee that the consumption of alcohol, the possession or use of dangerous drugs, or the inappropriate use of an inhalant in the workplace subjects the employee to termination from the department; (iii) advises the employee that he or she is being given an opportunity to offer a reasonable explanation; and (iv) advises the employee of the disciplinary action to be taken if he or she refuses to explain his or her actions or if his or her response indicates that he or she violated the policies and prohibitions of subsection (a) of this section or is insufficient or not acceptable. (B) If the employee refuses to explain his or her actions or if the employee's response indicates that he or she has violated the policies and prohibitions of subsection (a) of this section or is insufficient or not acceptable, then the supervisor or the substance control officer will mandatorily refer the employee to the EAP and require him or her to successfully complete treatment, pursuant to subsection (c) of this section. Additional disciplinary actions may also be taken. In addition, the employee will be removed from his or her normal job duties and required to take vacation leave, compensatory leave or leave without pay if the employee has exhausted his or her accrued leave, until 24 hours have passed. (2) Working under the influence. If an employee is suspected of working under the influence of alcohol, dangerous drugs, or inappropriately used inhalants due to a reasonable, articulable belief by a supervisor or substance control officer which is based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, body odors, or performance of the employee, then the procedures described in subsection (b)(1) of this section will be followed. If the employee denies working under the influence of alcohol, dangerous drugs or inappropriately used inhalants, and the evidence is not conclusive, the supervisor or substance control officer will take no further action, but will advise the employee that if it is subsequently discovered that he or she is working under the influence of alcohol, dangerous drugs or inappropriately used inhalants, he or she will be terminated from the department. (3) Impaired performance due to lawful use of drugs. When, due to the use of lawfully prescribed or over-the-counter substances, the employee is unable to perform his or her assigned duties or perform any duty in a safe manner, the employee will be subject to temporary reassignment of duties or be required to take sick leave, vacation leave, compensatory leave or leave without pay if the employee has exhausted his or her accrued leave. (4) Voluntary admission of an alcohol, inhalant, or drug problem. An employee who voluntarily admits having a problem with alcohol, inhalant, or drug abuse will be mandatorily referred by his or her supervisor or substance control officer to the EAP and required to successfully complete treatment as described in subsection (c) of this section. Disciplinary action will not be taken against an employee who voluntarily admits having a problem with alcohol, inhalant, or drug abuse, provided, that in the case of a commercial driver, crewmember or an employee in a safety sensitive position, the admission occurs prior to a determination that the employee should be tested pursuant to sec.4.34, sec.4.35, or sec.4.36 of this title (relating to Commercial Drivers, Crewmembers, and Safety Sensitive Employees). The mandatorily referred employee must successfully complete treatment and provide a letter from the EAP staff or the treatment program's staff physician certifying successful completion to the substance control officer. (5) Conviction of criminal drug statute violations in the workplace. Employees are prohibited from violating criminal drug statutes in the workplace. As soon as the department becomes aware of a criminal drug statute violation occurring in the workplace, the following procedure shall be followed within 30 days. If an employee fails to report a criminal drug statute violation occurring in the workplace within three working days, he or she will be suspended for three days without pay. (A) Employees who are convicted of criminal drug statute violations in the workplace which pertain to the sale, distribution, transportation, or manufacture of dangerous drugs or the possession with the intent to sell, distribute, transport, or manufacture dangerous drugs shall be terminated from the department. (B) Employees who are convicted of criminal drug statute violations in the workplace which involve possession with the intent to use a dangerous drug shall be mandatorily referred by the employee's supervisor or the substance control officer to the EAP and required to successfully complete treatment, as described in subsection (c) of this section. (6) Sale, distribution, transportation, or manufacture of dangerous drugs inside and/or outside the workplace. The illegal sale, distribution, transportation, manufacture or possession with intent to sell, distribute, transport or manufacture dangerous drugs by any employee inside or outside of the workplace is prohibited. Employees who engage in such behavior shall be terminated from the department. (A) If a final applicant for a department position has been convicted of felony charges related to the selling, distributing, transporting, or manufacturing of dangerous drugs and he or she is on probation or parole for that conviction, he or she will not be hired by the department. If an applicant is hired by the department, and it is later discovered that the employee had been convicted prior to employment with the department and is on probation or parole for selling, distributing, transporting, or manufacturing dangerous drugs, he or she will be immediately terminated from the department. (B) If an employee is arrested, charged, or indicted for selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, the employee or his or her designated agent shall report the arrest, charge, or indictment directly to his or her supervisor or substance control officer within three working days after its occurrence. Failure to report the arrest, charge or indictment will subject the employee to suspension for three days without pay. (C) If an employee is convicted of selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, he or she will be terminated from the department. The employee or his or her designated agent shall report the conviction immediately to his or her supervisor or substance control officer within three working days after its occurrence. If the conviction is not reported, the employee will be terminated when the department discovers the conviction. (D) If an employee voluntarily admits to selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace, he or she will be terminated from the department. An employee must sign a statement admitting his or her actions prior to termination. (E) If an employee is reasonably suspected of selling, distributing, transporting, or manufacturing dangerous drugs inside and/or outside the workplace, due to direct observation of such acts in the workplace or by reason of the indictment, arrest, or charge of selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace the following procedure shall be followed. (i) The employee's supervisor will place the employee on immediate suspension with pay (administrative leave), pending appropriate investigation and confirmation by the department. If such acts are confirmed by the substance control officer, the employee is subject to immediate termination from the department. (ii) The employee shall immediately be provided with a letter which: (I) summarizes the facts upon which such action is taken; (II) notifies the employee that selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace subjects the employee to termination from the department; (III) advises the employee that he or she will have a specified period of time in which to provide a reasonable explanation to his or her supervisor or substance control officer; and (IV) advises the employee that if his or her response indicates that he or she violated the policies and prohibitions of this title or if it is insufficient or not acceptable or if an investigation by law enforcement, the department, or other authorities confirms the suspicion, the employee will be terminated from the department. (iii) The employee shall be terminated from the department if: (I) the employee fails to respond within the specified period or to provide an acceptable explanation; or (II) investigation by law enforcement or other authorities confirms the suspicion that the employee was selling, distributing, transporting, or manufacturing dangerous drugs. (iv) If the investigation reveals that the employee was using dangerous drugs inside the workplace and not selling, distributing, transporting or manufacturing dangerous drugs inside and/or outside the workplace, the employee will be mandatorily referred by his or her supervisor or substance control officer to the EAP and required to successfully complete treatment, as described in subsection (c) of this section. (v) If the investigation reveals that the employee was using dangerous drugs outside the workplace and not selling, distributing, transporting or manufacturing dangerous drugs inside and/or outside the workplace, the employee will be given the opportunity to successfully complete treatment. (vi) When suspicious behavior is observed in the workplace, the substance control officer shall contact the Office of the General Counsel or the Human Resources Division at the earliest possible time before turning the matter over to law enforcement authorities. (7) Suspicious substance found. If a substance which appears to be a dangerous drug is found within an area under the effective control of an employee, actions contained in paragraph (6) of this subsection shall be followed. (8) Recurrence of Substance Abuse after Successful Completion of Treatment. Upon the need to mandatorily refer an employee to the EAP for the third time for treatment under the department's substance abuse program, including mandatory referrals made under sec.sec.4.34, 4.35, and 4.36 of this title (relating to Commercial Drivers, Crewmembers, and Safety Sensitive Employees), the employee will not be referred but will be terminated from the department. (9) Failure to successfully complete treatment. Employees who are mandatorily referred to the EAP and who are required to successfully complete treatment, as described in subsection (c) of this section, shall be subject to termination from the department if they fail to report to the EAP or fail to successfully complete treatment. Successful completion of treatment must be certified by the EAP, in writing, to the employee's substance control officer. (c) Mandatory Referral and Treatment. (1) Mandatory Referral. Except for policy violations which involve the sale or distribution of dangerous drugs, refusing a required alcohol or drug test, or a third occurrence of substance abuse after successful completion of treatment, an employee who voluntarily admits to or is otherwise established to have an alcohol, inhalant or drug abuse problem shall be mandatorily referred to the EAP for assessment and referral to treatment. The employee's supervisor or substance control officer will meet with the employee to make the mandatory referral. During this meeting: (A) the supervisor or substance control officer will contact the EAP; (B) the supervisor or substance control officer will tell the EAP counselor that a mandatory referral is being made, the type of employee, the employee's name, the reason for the mandatory referral and any other background information requested by the counselor; and (C) the supervisor or substance control officer will have the employee talk to the EAP counselor, in private, to make an appointment. (2) Treatment. The department will pay for the cost of EAP counseling sessions, which includes an initial assessment. An EAP counselor shall evaluate a referred employee to determine the extent of the dependence upon alcohol, inhalants, or drugs and, as may be appropriate, will refer the employee to treatment, which will include one or more of the following. (A) Intensive inpatient treatment program. Employees participating in an inpatient rehabilitation treatment program will not be able to work while enrolled in the program. After completing the initial phase of treatment, he or she will be conditionally reinstated contingent on the employee's willingness to follow through with the aftercare plan as prescribed by the treatment center's staff physician and successful completion of treatment. (B) Outpatient treatment program. This program provides individual counseling, group therapy, and educational services for varying lengths of time, normally up to ten weeks, and also includes an aftercare program. Employees participating in an outpatient program will normally be able to continue to work while participating in the program. In such cases, the employee will be conditionally reinstated, based on completion of the initial phase of the program and willingness to follow through with the aftercare treatment and successful completion of treatment. (C) Counseling program. This program provides education and/or counseling sessions. The EAP staff, in consultation with the counseling program staff, will prescribe the content, frequency, and duration of these sessions, as appropriate, and may include group or individual education and/or counseling sessions. (3) Certification of successful treatment. After successfully completing treatment, as described in paragraph (2) of this subsection, completion must be certified by the EAP, in writing, to the employee's substance control officer. (d) Confidentiality. The department will hold all information related to policy violations and disciplinary action in strict confidence consistent with the provisions of applicable law. (e) Education. The department will conduct an alcohol and drug-free awareness program which will provide all employees and supervisors with initial and ongoing periodic training regarding the department's policy, the personnel actions that will be taken for violations of the policy, the specifics of the program, the dangers of alcohol, inhalant, and drug abuse in the workplace, and the available employee assistance and treatment programs. sec.4.33. Employees Who Drive For The Department. (a) Employees who are authorized to drive for the department are subject to sec.4.32 of this title (relating to All Department Employees), as well as the requirements of this section. (b) The department will not offer a position to a final applicant when driving for the department is an essential function of the job, as listed on the job vacancy notice, if the applicant has received a DUI/DWI within the three year period immediately preceding the date of application, unless he or she complies with the procedures described in subparagraph (f) of this section. The department may hire a final applicant for a position where driving is a marginal function, as listed on the job vacancy notice, but will not allow the applicant to drive for the department, if he or she has received a DUI/DWI within the last three years, from the date of application, unless the applicant complies with the procedures described in subsection (f) of this section. (c) District engineers and division directors will maintain a current list of all employees who are authorized to drive for the department. Each district engineer and division director will be responsible for checking each listed employee's driving record at least once every 12 months, and employees who drive for the department who are subject to this policy will be required to sign Form 1835, Statement of Notification. (d) License Suspension. If an employee has his or her license suspended, the employee is required to report the suspension within one work day to his or her supervisor. If an employee does not report the license suspension and it is subsequently discovered by the department, the employee will be terminated. (e) Work Permits. An employee must have a valid Texas driver's license to drive for the department. An occupational driver's license will be accepted if it allows the employee to perform his or her usual driving duties for the department. Otherwise, employees without a valid Texas driver's license will be removed from all driving duties and reassigned. The department will assign non- driving duties, if available, at his or her current work location. If unavailable, the department will offer the employee the option of transferring to another work location. If the employee refuses a transfer, he or she will be required to take all available vacation and/or compensatory time. Once this is exhausted, the employee will be required to take leave without pay until he or she is able to resume driving duties. (f) Receiving a DUI/DWI. If an employee receives a DUI/DWI, the following procedures shall be followed. (1) The employee shall notify his or her supervisor of a conviction within three workdays after receiving the conviction. If an employee does not report the conviction, and it is subsequently discovered by the department, the employee will be suspended for three days without pay. (2) The employee will be immediately provided with a letter which summarizes the following actions to be taken. (A) The department will immediately remove the employee from driving until he or she obtains a fitness-for-duty letter or a letter from the Employee Assistance Program (EAP) counselor, as provided in subparagraphs (C) and (D) of this paragraph. If the employee is able to work while in treatment, the department will assign non-driving duties, if available, at his or her current work location. If unavailable, the department will offer the employee the option of transferring to another work location. If the employee refuses a transfer, he or she will be required to take all available vacation and/or compensatory time. Once this is exhausted, the employee will be required to take leave without pay until he or she is able to provide a fitness-for-duty letter as provided in subparagraphs (C) and (D) of this paragraph. (B) The department will mandatorily refer the employee to the EAP and require successful completion of treatment, as described in this subsection. The department will terminate employees who do not report to the EAP or fail to successfully complete treatment. (C) The employee will be referred by the EAP counselor to a medical doctor or other licensed practitioner for a fitness-for-duty letter. In order for the employee to be reinstated to driving duties, the fitness-for-duty letter must state that the employee is able to safely drive for the department. (D) If the employee is not referred for treatment beyond referral to the EAP and if the EAP counselor is unable to locate a doctor or licensed practitioner covered by the employee's health insurance to provide a fitness for duty letter, then the EAP counselor will provide a letter to the employee's substance control officer stating that the employee does not have an alcohol or drug addiction problem at this time. (E) The employee must have a valid Texas driver's license or an occupational driver's license that allows them to perform his or her usual driving duties before being reinstated to driving for the department. (3) The employee who receives the letter, as described in paragraph (2) of this subsection, informing him or her of these actions must acknowledge receipt by signing at the bottom. (4) An employee who receives two DUIs/DWIs within a five year period beginning on or after November 1, 1995, during his or her employment with the department, will be terminated from the department. If the conviction is appealed and overturned, the employee will be reinstated. A DUI/DWI received prior to November 1, 1995 will not count towards termination from the department. sec.4.34. Commercial Drivers. (a) An employee who is a commercial driver is subject to all of sec.4.32 and sec.4.33 of this title (relating to All Department Employees and Employees Who Drive for the Department), as well as the requirements of this section. (b) Prohibitions. In addition to the prohibitions in sec.4.32 and sec.4.33 of this title (relating to All Department Employees and Employees Who Drive for the Department), a commercial driver is prohibited from: (1) reporting to work within four hours of consuming alcohol; (2) reporting to work or remaining at work while under the influence of alcohol or dangerous drugs; (3) consuming or possessing alcohol while on duty or while driving a commercial motor vehicle; (4) using alcohol within eight hours following an accident or prior to undergoing a post-accident alcohol test, whichever comes first; (5) having a positive drug test result or an alcohol test result of .04 or higher; and (6) refusing to submit to a required alcohol or drug test. (c) Testing. An employee will be notified, in writing, that he or she is subject to drug and alcohol testing, prior to requiring him or her to submit to an alcohol or drug test. (1) Pre-employment testing. (A) The department shall not engage, employ or otherwise give a commitment of employment to a final applicant for a position as a commercial driver unless that person passes a drug test and has an alcohol test result below 0.04, if required by the Federal Highway Administration. A current employee, who is not subject to drug or alcohol testing, who is a final applicant for a commercial driver position and who fails a drug test or who has an alcohol test result of .04 or higher will be mandatorily referred to the EAP and required to successfully complete treatment, as described in sec.4.32(c) of this title (relating to All Department Employees). (B) The department will notify a final applicant of the results of a pre- employment drug test if the applicant requests such results within 60 calendar days of being notified of the disposition of the employment application. The department will also inform the applicant which drugs were verified as positive. (2) Post-accident Testing. A commercial driver who is directly involved in a serious accident, or in any accident in which the events and circumstances give rise to a reasonable suspicion that the employee is under the influence of alcohol or dangerous drugs at the time of the occurrence, in accordance with paragraph (3) of this subsection, is subject to post-accident alcohol and drug testing. (A) If a commercial driver does not remain readily available for such testing, the substance control officer may record that the employee refused to submit to testing. (B) Nothing in this section will be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit an employee from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care. (C) No commercial driver required to take a post-accident alcohol test may use alcohol for eight hours following the accident or until he or she undergoes an alcohol test, whichever occurs first. (D) If an alcohol test is not administered within two hours following the accident, the substance control officer will prepare and maintain a record stating the reasons the test was not promptly administered. (E) If an alcohol test is not administered within eight hours following the accident, the substance control officer will cease attempts to administer an alcohol test and will prepare and maintain the same record. (F) If a drug test is not administered within 32 hours following the accident, the substance control officer will cease attempts to administer a drug test, and prepare and maintain a record stating the reasons the test was not promptly administered. (G) The results of a breath or blood test for the use of alcohol or a urine test for the use of dangerous drugs, conducted by federal, state, or local officials having independent authority for the test, will be considered to meet the requirements of this section, provided such tests conform to applicable federal, state or local requirements, and that the department obtains the results of the tests. (3) Reasonable cause testing. A commercial driver who is reasonably suspected of using alcohol or dangerous drugs in the workplace or of performing official duties while under the influence of alcohol or dangerous drugs will be required to undergo an alcohol and/or drug test. (A) The decision to test must be based on a reasonable and articulable belief by a supervisor, who has been trained in the detection of alcohol and dangerous drug use, that the commercial driver has used alcohol or dangerous drugs based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech, body odors, or performance indicators of probable use of the commercial driver. The observations of physical, behavioral, or performance indicators of probable use may include indications of the chronic and withdrawal effects of dangerous drugs. (B) When a supervisor reasonably suspects a commercial driver of using alcohol or dangerous drugs in the workplace or of performing official duties while under the influence of alcohol or dangerous drugs, he or she shall contact the substance control officer immediately. A written report of his or her observations shall be submitted within 24 hours, in a form prescribed by the Director. (C) When there is reasonable suspicion to believe that a commercial driver is under the influence of alcohol or drugs, and it is reasonable to conclude that the commercial driver may be impaired to the extent that his or her continued performance of such duties, pending a decision to test pursuant to this subsection, will constitute a real and present danger to personal safety or property, the commercial driver will be removed from driving, and, if appropriate, reassigned or placed on administrative leave. (D) The substance control officer will make an immediate inquiry into the circumstances and will confer or counsel with the employee, as may be appropriate. Based on the supervisor's report and the officer's independent analysis and the approval of the district engineer or division director, the officer will document, in a form prescribed by the Director, whether testing is justified. (E) If an alcohol test is not administered within two hours following an incident, the substance control officer will prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. (F) If an alcohol test is not administered within eight hours following an incident, the department will cease attempts to administer an alcohol test and will prepare and maintain the same record. (G) If a drug test is not administered within 32 hours following an incident, the department will cease attempts to administer a drug test, and prepare and maintain a record stating the reasons the test was not promptly administered. (H) Even if a reasonable cause test is not administered, no commercial driver will drive or operate motorized equipment, inspect, service or condition any vehicle, or supervise, assist with or load or unload a motor vehicle, until: (i) an alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or (ii) twenty-four hours have elapsed following the determination that there is reasonable suspicion to believe that the driver has violated the prohibitions concerning the use of alcohol. (4) Random testing. All commercial drivers are subject to random alcohol and drug testing. (A) A commercial driver subject to random testing for dangerous drugs and alcohol will be selected for testing on a random basis in a manner to ensure that each commercial driver has a substantially equal chance of selection on a scientifically valid basis. The testing frequency and selection process will be such that a commercial driver's chance of selection continues to exist throughout his or her employment in a commercial driver position. (B) The Human Resources Division will ensure that commercial drivers are tested on a random basis at an annual rate of not less than 25% for alcohol testing and not less than 50% for drug testing of those respective employee categories in each payroll unit or equivalent work unit. The frequency of testing will also be at random, but will be sufficient to assure that the number of random tests conducted annually will be equal to 25% or 50%, respectively, of the number of commercial drivers. (C) Random selection of commercial drivers may be accomplished by periodically selecting one or more sections and testing all commercial drivers, provided each section remains equally subject to selection. (d) Disciplinary Action. In addition to being subject to disciplinary actions described in sec.4.32 and sec.4.33 of this title (relating to All Department Employees and Employees Who Drive for the Department), a commercial driver who violates subsection (b) of this section will be subject to the procedures described in paragraphs (1)-(4) of this subsection. (1) The supervisor or substance control officer will immediately remove a commercial driver from performing the duties listed in subsection (c)(3)(H) of this section until he or she meets all of the criteria listed in paragraph (3) of this subsection. (2) The employee's supervisor will assign duties other than those described in subsection (c)(3)(H) of this section to the employee, if available, at his or her current work location. If unavailable, the employee's supervisor will offer him or her the option of transferring to another work location. If the employee refuses the transfer, he or she will be required to take all available vacation or compensatory time. Once this is exhausted, the supervisor will require the employee to take leave without pay until he or she is able to provide a fitness- for-duty letter as provided in paragraph (3)(C) of this subsection. (3) In addition, a commercial driver will complete the following requirements. (A) The supervisor or the substance control officer will mandatorily refer the commercial driver to the Employee Assistance Program (EAP) and the driver will be required to successfully complete treatment, as described in sec.4.32(c) of this title (relating to All Department Employee), which may include aftercare for a length of time to be specified by the treatment program's staff physician. The treatment program must be approved by the Texas Department of Mental Health and Mental Retardation or by the Texas Commission on Alcohol and Drug Abuse. (B) The commercial driver will undergo a return-to-duty alcohol test prior to resuming driving duties with a result indicating an alcohol concentration below 0.02 if the conduct involved alcohol or a drug test with a verified negative result if the conduct involved a dangerous drug. (C) The commercial driver will provide a fitness-for-duty letter. The EAP counselor will refer the employee to a medical doctor or other licensed practitioner for a fitness-for-duty letter once he or she has completed the initial phase of treatment. In order for the employee to be reinstated to driving duties, the fitness-for-duty letter must state that the employee is able to safely operate a commercial motor vehicle for the department. (D) If the employee is not referred for any type of treatment beyond referral to the EAP and if the EAP counselor is unable to locate a doctor or licensed practitioner who is covered by the employee's health insurance, then the EAP counselor will provide a letter to the employee's substance control officer stating that the employee does not have an alcohol or drug addiction problem at this time. (E) The commercial driver will undergo follow-up testing for alcohol or dangerous drugs for a period of up to 60 months and which consists of at least 6 tests in the first 12 months following the employee's return-to-duty. The number and frequency of follow-up testing shall be as directed by the EAP staff following the employee's return-to-duty. The EAP may determine that return-to- duty and follow-up testing for both alcohol and dangerous drugs is necessary for the employee. The EAP may terminate the requirement for follow-up testing at any time after the first six tests have been administered, if it determines that such testing is no longer necessary. (F) The department will terminate the commercial driver from employment unless he or she complies with all the requirements of this paragraph. (4) A commercial driver who has an alcohol test result of . 02 to .04 will be removed from official duties and required to take vacation leave, compensatory leave or leave without pay, if the employee has exhausted his or her accrued leave, until 24 hours have passed. (e) Refusal to consent to testing. The department will terminate a commercial driver from employment if he or she: (1) refuses to consent to an alcohol or drug test; (2) fails to arrive at the testing site at the assigned time; (3) fails to cooperate with the collection site person; or (4) refuses to sign the certification on the Breath Alcohol Testing form. (f) Mandatory Referral and Treatment. (1) Mandatory Referral. Mandatory referrals will be made pursuant to sec.4.32(c) of this title (relating to All Department Employees). In the case of a commercial driver, the supervisor or substance control officer will send a copy of the employee's job description, including a list of all driving duties to the EAP. The EAP will coordinate with the doctor or licensed practitioner who will provide the fitness-for-duty letter and ensure that he or she is aware of the reasons the letter is required. (2) Treatment. Treatment is described in sec.4. 32(c) of this title (relating to All Department Employees). (g) Confidentiality. All information related to the alcohol and drug testing of individuals will be held in strict confidence consistent with the provisions of applicable law. (h) Education. All commercial drivers and supervisors of commercial drivers will receive yearly training on the effects and consequences of alcohol and drug use on personal health, safety, and the work environment and the manifestations and behavioral changes that may indicate alcohol or drug use or abuse. sec.4.36. Safety Sensitive Employees. (a) Applicability. A position is considered safety sensitive for the purposes of this subsection if the employee holding the position performs one or more of the following activities or job functions. (1) The employee routinely operates a motor vehicle along a roadway in traffic in a fashion not usual to normal traffic patterns. This includes driving slowly along the roadway or right of way, frequently pulling in and out of traffic, making frequent turns and stops, and getting in and out of a vehicle near traffic. Vehicle operation in this unusual manner in high speed traffic produces a high risk of causing immediate, catastrophic consequences. Examples of activities that fit this description include: (A) inspecting roadways and bridges for repairs; (B) inspecting barricades, traffic control devices, and traffic control setups; (C) inspecting maintenance projects such as bridge/roadway repairs or sign and striping operations; (D) assisting stranded motorists; (E) inspecting materials and work being performed at construction sites when unusual driving is required; (F) inspecting vegetation growing along roadways; (G) inspecting utility placements on roadways and rights of way; (H) inspecting driveway placements; (I) inspecting restorations of state rights of way; (J) supervising the installation of signals; (K) supervising sign installation; (L) monitoring ramp meters; (M) inspecting barrier fences; (N) inspecting for damaged signs; or (O) inspecting draw bridges. (2) The employee performs job duties other than driving on highways or rights of way, in or around traffic on a routine basis, such as: (A) repairing signals; (B) installing signals; (C) flagging traffic and assisting with traffic control; (D) installing reflective pavement markings; (E) repairing roadway surfaces and bridges; (F) performing water blasting; (G) setting up and taking down signs and barricades; (H) picking up litter on the right of way; (I) removing encroachments from state rights of way; (J) cleaning road signs; (K) replacing signs; (L) repairing sign illumination; or (M) clearing debris from roadways and rights of way. (3) The employee uses dangerous chemicals/materials around other employees and/or the traveling public on a routine basis in the following manner. (A) performs lab tests which require the use of materials which are combustible, flammable, toxic or corrosive; (B) tests materials which are combustible, flammable, toxic or corrosive; (C) operates photoprocessing equipment used in a laboratory to process film which requires the use of materials which are combustible, flammable, toxic or corrosive; (D) silkscreens signs which requires the use of materials which are combustible, flammable, toxic or corrosive; or (E) cuts materials using combustible, flammable, toxic or corrosive materials. (4) The employee operates specialized maintenance/construction or heavy equipment in and around traffic or around one or more other employees on a routine basis. Examples of activities that fit this description include, but are not limited to the following: (A) large/heavy equipment such as hole diggers, rotary brooms, front end loaders, aerial buckets, snow plows, pony blades, epoxy machines, ladder trucks, cable lift hysters, rollers, cranes, paint machines, bulldozers, chip spreaders, rotomillers, backhoes, drilling augers, steel wheel pneumatic compacters, maintainers, wing plows, bucket trucks, drag lines, mechanical rig runners, maze meters, and forklifts; and (B) trucks and automobiles that are operated in support of road crews or that are driven along the roadway in traffic in a fashion not usual to normal traffic patterns (examples of trucks may include, service, litter, fuel, paint, supply, sign, and herbicide trucks). (5) The employee operates aircraft or swing bridges on a routine basis. The operation of aircraft or swing bridges carries with it a high risk of potential harm such that a single drug or alcohol related lapse could have immediate, irremediable, and calamitous consequences to employees, passengers, and/or the traveling public. (6) The employee conducts or assists with underwater bridge inspections on a routine basis. The performance of this activity carries with it a high risk of potential harm such that a single alcohol or drug related lapse could have immediate, irremediable, and calamitous consequences to other employees. (b) An employee in a safety sensitive position is subject to sec.sec.4. 32(a), 4.33, and 4.34(a) of this title (relating to All Department Employees, Employees Who Drive for the Department, and Commercial Drivers) as well as the requirements of this section. (c) Prohibitions. An employee in a safety sensitive position is subject to the prohibitions in subsections sec.sec.4. 32(b), 4.33, and 4.34(b) of this title (relating to All Department Employees, Employees Who Drive for the Department, and Commercial Drivers). (d) Testing. An employee will be notified, in writing, that he or she is subject to drug and alcohol testing, prior to requiring him or her to submit to an alcohol or drug test. (1) Pre-employment testing. Pre-employment testing shall be conducted pursuant to sec.4.34(c)(1) of this title (relating to Commercial Drivers). (2) Post-accident testing. An employee in a safety sensitive position will only be tested if he or she is directly involved in a serious accident. (e) Disciplinary Action. In addition to being subject to disciplinary actions described in sec.4.32 and sec.4.33 of this title (relating to All Department Employees and Employees Who Drive for the Department), employees in safety sensitive positions who violate subsection sec.4.34(c)(1)-(5) of this title (relating to Commercial Drivers) will be subject to the procedures described in sec.4.34(d) of this title (relating to Commercial Drivers). The only exception is that the employee's supervisor will assign non-safety sensitive duties to the employee, if available, at his or her current work location. (f) Refusal to consent to testing. A safety sensitive employee will be terminated if he or she engages in any of the behaviors described in sec.4.34(e) of this title (relating to Commercial Drivers). (g) Mandatory Referral and Treatment. (1) Mandatory Referral. Mandatory referrals will be made pursuant to sec.4.32(c) of this title (relating to All Department Employees). In the case of an employee in a safety sensitive position, the supervisor or substance control officer will send a copy of the employee's job description, including a list of all safety sensitive duties, to the EAP. The EAP will coordinate with the doctor or licensed practitioner who will provide the fitness-for-duty letter and ensure that he or she is aware of the reasons the letter is required. (2) Treatment. Treatment is described in sec.4. 32(c) of this title (relating to All Department Employees). (h) Confidentiality. All information related to the alcohol and drug testing of individuals will be held in strict confidence consistent with the provisions of applicable law. (i) Education. Training shall be conducted for employees in safety sensitive positions and their supervisors on a yearly basis. The training requirements are described in sec.4.34(h) of this title (relating to Commercial Drivers). sec.4.37. Test Procedures. (a) Drug and alcohol testing. An individual who is required to undergo an alcohol or drug test, will be requested to sign a consent form and to report to a collection site, or in the case of an alcohol breath test to report to a test site to be designated by the department. All alcohol and drug tests will be conducted at department's expense with the exception of the retest as discussed in subsection (c) of this section. (b) Drug test administration. Collection site personnel will administer drug tests according to Department of Health and Human Services (DHHS) guidelines and alcohol blood tests according to Coast Guard guidelines. DHHS guidelines are summarized as follows. (1) Specimen collection procedures. (A) A chain of custody for each specimen to be chemically tested will be established and maintained from the time of specimen collection through the testing of the specimen. (i) If a specimen is not immediately prepared for shipment, it will be safeguarded during temporary storage. (ii) Every effort will be made to minimize the number of persons handling specimens. (B) Specimen collection and shipping will be conducted as follows. (i) Procedures for collecting urine specimens will allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided. (ii) To deter the dilution of specimens at the collection site, toilet bluing agents will be placed in toilet tanks wherever possible, so the reservoir of water in the toilet bowl always remains blue. There will be no other source of water (e.g., no shower or sink) in the enclosure where urination occurs. (iii) When an individual arrives at the collection site, the collection site person will request the individual to present photo identification. If the individual's identity cannot be established, the collection site person will not proceed with the collection. If the employee requests, the collection site person will show his or her identification to the employee. (iv) The collection site person will ask the individual to remove any unnecessary outer garments such as a coat or jacket that might conceal items or substances that could be used to tamper with or adulterate the individual's urine specimen. The collection site person will ensure that all personal belongings such as a purse or briefcase remain with the outer garments. The individual may retain his or her wallet. If the employee requests a receipt for any personal belongings, the collection site person will provide it. (v) The individual will be instructed to wash and dry his or her hands prior to urination. (vi) After washing hands, the individual will remain in the presence of the collection site person and will not have access to any water fountain, faucet, soap dispenser, cleaning agent or any other materials which could be used to adulterate the specimen. (vii) The individual may provide his or her specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy. (viii) The individual shall urinate into a collection container or a specimen bottle capable of holding at least 60 milliliters. (ix) If the individual is unable to provide an adequate quantity of urine, the collection site person will instruct the individual to drink not more than 24 ounces of fluids and, after a period of up to two hours, again attempt to provide a complete sample using a fresh collection container. The original insufficient specimen will be discarded. If the employee is still unable to provide an adequate specimen, the insufficient specimen will be discarded, testing discontinued, and the department so notified. The medical review officer will refer the individual for a medical evaluation to develop pertinent information concerning whether the individual's inability to provide a specimen is genuine or constitutes a refusal to test. (x) Both the individual being tested and the collection site person shall keep the specimen in view at all times after the specimen is given, prior to the specimen being sealed and labeled. The specimen shall be sealed with a tamperproof seal over the bottle cap and down the sides of the bottle, and labeled in the presence of the employee. (xi) The collection site person shall place an identification label securely on the bottle which contains the date, the individual's specimen number, and any other identifying information provided or required by the department. If separate from the label, the tamperproof seal shall also be applied. The individual being tested shall be present during these procedures. (xii) The individual shall initial the identification label on the specimen bottle to certify that it is the specimen collected from that individual. (xiii) The individual shall be asked to read and sign a statement on the drug testing custody and control form certifying that the specimen identified as having been collected from that individual is in fact the specimen he or she provided. (xiv) The collection site person will note any unusual behavior or appearance in the permanent record book. (xv) Whenever there is reason to believe that a particular individual may alter or substitute the specimen to be provided, a second specimen will be obtained as soon as possible under the direct observation of a same gender collection site person. (xvi) A designated collection site may be any suitable location where a specimen can be collected under conditions set forth in this subchapter, including a properly equipped mobile facility. A designated collection site will have an enclosure where private urination can occur, a toilet for completion of urination (unless a single-use collector is used with sufficient capacity to contain the void), and a suitable clean surface for writing. The site must also have a source of water for washing hands, which, if practicable, should be external to the enclosure where urination occurs. (xvii) If a collection site facility is dedicated solely to urine collection, the department will secure it at all times. If a facility cannot be dedicated solely to drug testing, the department will secure the portion of the facility used for testing during drug testing. (xviii) Specimens will be shipped by an expeditious means to the laboratory. (2) Laboratory analysis procedure. (A) Each specimen will be analyzed in accordance with DHHS guidelines which requires testing for the following substances: (i) marijuana; (ii) cocaine; (iii) opiates; (iv) phencyclidine (PCP); and (v) amphetamines. (B) DHHS guidelines presently specify the following confirmatory test cutoff levels. Figure 1: 43 TAC sec.4.37(b)(2)(B) (C) The initial test will use an immunoassay screen which meets the requirements of the Food and Drug Administration for commercial distribution. (D) All specimens identified as positive on the initial test will be confirmed by a confirmatory test using gas chromatography/mass spectrometry (GC/MS) techniques. (E) A specimen which indicates the presence of a dangerous drug at a level equal to or exceeding the levels established in DHHS guidelines is reported to the medical review officer as positive. (F) Quality assurance and quality control designed, implemented, and reviewed to monitor the conduct of each step of the process of testing for drugs will be in accordance with DHHS guidelines. (3) Reporting and reviewing of drug test results. (A) The laboratory will report all test results as required within an average of five days after the laboratory receives the specimen. (B) The laboratory will report as negative all specimens which are negative on the initial test or negative on the confirmatory test. Only specimens confirmed positive are reported positive to the medical review officer for a specific drug or drug metabolite. (C) The medical review officer will review and interpret all test results before transmitting the results to the department. In carrying out this responsibility, the medical review officer will examine alternate medical explanations for any positive test result. This action could include conducting a medical interview with the individual, review of the individual's medical history, or review of any other relevant biomedical factors. The medical review officer will review all medical records made available by the tested individual when a confirmed positive test could have resulted from legally prescribed medication. (D) Prior to making a final decision to verify a positive test result, the medical review officer will contact the individual directly, on a confidential basis, to discuss the test result with him or her. (i) If, after making all reasonable efforts and documenting them, the medical review officer is unable to reach the individual directly, the medical review officer will contact the substance control officer who will direct the individual to contact the medical review officer as soon as possible or within 24 hours. If this becomes necessary, the requirement that the employee contact the medical review officer is held in confidence. If after making all reasonable efforts, the substance control officer is unable to contact the employee, the substance control officer will notify the medical review officer that he or she was unable to make contact with the employee. The substance control officer will continue to try and contact the employee until otherwise notified by the medical review officer. (ii) The medical review officer may verify a test as positive without having communicated directly with the employee about the test if the employee expressly declines the opportunity to discuss the test or the substance control officer has successfully made and documented a contact with the employee and instructed the employee to contact the medical review officer and more than five days have passed since the date the employee was successfully contacted by the substance control officer. (iii) If more than five days have passed since the verified positive test, the employee may present to the medical review officer information documenting that serious illness, injury, or other circumstances unavoidably prevented the employee from timely contacting the medical review officer. The medical review officer, on the basis of such information, may reopen the verification, allowing the employee to present information concerning a legitimate explanation for the confirmed positive test. If the medical review officer concludes that there is a legitimate explanation, the medical review officer will declare the test to be negative. (E) If the medical review officer determines there is a legitimate medical explanation for the positive test result, he or she shall report the test result to the department as negative. (F) In the case of an individual holding a license, certificate of registry or merchant mariners document, the department shall report the positive drug test result in writing to the nearest Coast Guard Officer in Charge, Marine Inspection (OCMI) pursuant to 46 C.F.R. sec.16.201, Application. (c) Retesting. A final applicant or employee may appeal the results of a positive drug test by following the procedures listed below. (1) Final applicants or employees must request, in writing, that the split specimen be provided to another DHHS certified laboratory for retesting. (2) The applicant or employee must make the request, in writing, to the medical review officer within 72 hours after notification of a confirmed positive test result. The same medical review officer will be used to interpret the results of the retest. All the costs related to the retest are at the expense of the final applicant or employee. (3) In the event that the result of the retest is negative, indicating that the positive result of the first test was erroneous, the department will reimburse the final applicant or employee for the cost of the retest. (4) If more than five days have passed since the initial verified positive test, the employee may present to the medical review officer information documenting that serious illness, injury, or other circumstances unavoidably prevented the employee from contacting the medical review officer in a timely manner. The medical review officer, on the basis of such information may reopen the verification, allowing the employee to present information concerning a legitimate explanation for the confirmed positive test. (5) If the medical review officer concludes that there is a legitimate explanation, the medical review officer will declare the test to be negative. (d) Alcohol test administration. Alcohol tests may be conducted on either blood or breath specimens. A blood or breath alcohol test level of .04% or above is considered to be a positive test result for alcohol. (1) Breath testing procedure. The breath alcohol technician (BAT) will administer breath alcohol tests according to Federal Highway Administration (FHWA) guidelines, as follows. (A) The BAT will complete a breath alcohol testing form for the initial breath test and for the confirmatory breath test. (B) The BAT will conduct a breath alcohol test as follows. (i) A BAT will administer the tests, except that a BAT qualified supervisor of the employee may not conduct the breath alcohol test. (ii) The BAT will conduct the alcohol testing in a location that affords visual and aural privacy, sufficient to prevent unauthorized persons from seeing or hearing test results. (iii) The BAT will require the employee to provide positive identification (through use of a photo I.D. card or identification by a department representative). If the employee requests identification, the BAT will provide it to the employee. (iv) The BAT will explain the testing procedure to the employee. (v) The BAT and the employee will complete Part I of the Breath Alcohol Testing Form (as prescribed by the U.S. Department of Transportation) prior to the breath test which includes the employee signing the certification. Refusal by the employee to sign this certification will be regarded as a refusal to take the test. (vi) The BAT will open an individually sealed mouth piece in view of the employee and attach it to the Evidential Breath Testing Device (EBT) for both the initial and confirmation tests. (vii) The BAT will use a log book in conjunction with any EBT used for screening tests that does not meet the requirements of the National Highway Traffic Safety Administration's (NHTSA) Conforming Products List (CPL). (viii) The BAT will instruct the employee to blow forcefully into the mouthpiece for at least 6 seconds or until the EBT indicates that an adequate amount of breath has been obtained. (ix) If an adequate amount of breath is not obtained, the BAT will again instruct the employee to attempt to provide an adequate amount of breath. If the employee refuses to make the attempt, the BAT will immediately inform the substance control officer. (x) If the employee attempts and fails to provide an adequate amount of breath, the BAT will so note in the "Remarks" section of the breath alcohol testing form and immediately inform the substance control officer. (xi) If the result of the initial test is a breath alcohol concentration of less than 0.02, the BAT and employee will complete the form. No further testing is authorized. (xii) If the result of the initial test is an alcohol concentration of 0.02 or greater, the BAT will conduct a confirmation test within 20 minutes of the completion of the screening test. The BAT will instruct the employee not to eat, drink, put any object or substance in his or her mouth, and, to the extent possible, not belch. The BAT will explain to the employee the reason for this requirement (to prevent any accumulation of mouth alcohol leading to an artificially high reading) and the fact that it is for the employee's benefit. The BAT will also explain that the test will be conducted at the end of the waiting period, even if the employee has disregarded the instruction. The results of the confirmatory test are final. (xiii) If a BAT other than the one who conducted the screening test is conducting the confirmation test, the new BAT will initiate a new Breath Alcohol Testing form. (xiv) If the employee attempts and fails to provide an adequate amount of breath, the substance control officer will direct the employee to obtain, at their own expense, as soon as practical, an evaluation from a licensed physician to determine whether a medical condition could have precluded the employee from providing an adequate amount of breath. If such a medical condition exists, the employee's failure to provide an adequate amount of breath shall not be deemed a refusal to take a test. (xv) If the licensed physician is unable to make a determination whether or not an employee has a medical condition that precluded them from providing an adequate amount of breath, the employee's failure to provide an adequate amount of breath will be regarded as a refusal to take a test. (xvi) A mobile collection facility may be used if it meets the requirements of clause (ii) of this subparagraph. In unusual circumstances (e. g., when it is essential to conduct a test outdoors at the scene of an accident), a test may be conducted at a location that does not fully meet these requirements but the BAT will provide visual and aural privacy to the greatest extent practicable. (xvii) No unauthorized persons will be permitted access to the testing location. (xviii) All EBTs will use a quality assurance plan approved by the National Highway Traffic Safety Administration (NHTSA) to ensure the accurate calibration of an EBT in accordance with FHWA guidelines. (C) A breath alcohol test will be invalid under the following circumstances: (i) the Breath Alcohol Technician (BAT) does not observe the minimum 15-minute waiting period prior to the confirmation test; (ii) the BAT does not perform an air blank of the EBT before a confirmation test, or an air blank does not result in a reading of 0.00 prior to or after the administration of the test; (iii) the BAT does not sign the Breath Testing Alcohol form; (iv) the BAT fails to note on the remarks section of the Breath Alcohol Testing form that the employee has failed or refused to sign the form following the recording or printing on or attachment to the form of the test result; or (v) an EBT fails to print a confirmation test result. (2) Report and review of alcohol test results. The BAT will transmit all results of the initial and confirmation tests to the substance control officer in a confidential manner. sec.4.38. Confidentiality. (a) All information relating to a final applicant's or employee's alcohol or drug test including other medical or personal information contained in testing program records shall be treated as strictly confidential; provided however, that, unless otherwise confidential as a matter of law, such information may be disclosed when: (1) a proceeding is initiated by the final applicant or employee and the information is relevant to the claim or defense in such proceeding; (2) required by applicable law; (3) requested in writing by the employee; (4) requested by a person bearing the written consent of the final applicant or employee; or (5) required by an office or employee of the department who has a need for the information in the performance of official duties. (b) An employee who willfully discloses or releases information in violation of this section will be subject to disciplinary action up to and including immediate termination from the department. sec.4.40. Records and Retention. The substance control officer will be responsible for retaining all confidential records relating to the substance abuse program which include training, testing, disciplinary actions, documentation of post-accident and reasonable cause determinations, consent forms, treatment, appeals, and litigation. All documentation which contains information related to an employee's positive test result, such as documentation of disciplinary actions, should be maintained in a locked file separate and apart from that employee's standard personnel file. All records of individuals who pass a test will be retained for at least one year. All records of individuals who do not pass a test will be retained for at least five years. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512829 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: June 23, 1995 For further information, please call: (512) 463-8630 Subchapter E. Sick Leave Pool Program 43 TAC sec.sec.4.50-4.56 The Texas Department of Transportation adopts new sec. sec.4.50-4.56, concerning the department's sick leave pool program. Sections 4.50, 4.51, and 4.54-4.56 are adopted with changes to the proposed as published text in the July 11, 1995, issue of the Texas Register (20 TexReg 5055). Section 4. 52 and sec.4.53 are adopted without changes and will not be republished. Government Code, Chapter 661 authorizes the department to establish a sick leave pool program and to adopt rules and prescribe procedures to provide addition sick leave for an employee when the employee or the employee's immediate family member has a catastrophic illness or injury which causes the employee to exhaust all leave time earned and lose compensation from the state. The General Appropriations Act, Fiscal Years 1994-1995, Article V, sec.8(2) defines family members and provides conditions when sick leave may be taken by an employee for illness of the employee or a family member. Adoption of sec.sec.4.50-4.56 is necessary to replace, in an amended form, the provisions of sec.sec.1.300-1.305, concerning the department's sick leave pool program which are being contemporaneously repealed because the subject matter of these sections fall within Chapter 4, Employment Practices. New sec.sec.4.50-4.56 allow for greater control of the pool balance by allowing for the recertification of an employee's or employee's immediate family member's illness or injury; setting emergency procedures for controlling the balance of hours in the sick leave pool program when it reaches 7,200 hours or below; limiting the employee's use of hours from the sick leave pool for family members not residing in that employee's household to the time necessary to provide care and assistance to a spouse, child, or parent who needs such care as a direct result of a documented medical condition; identifying the specific criteria used to determine if an illness or injury is catastrophic and allowing the patient's health care provider to make that determination based on this criteria; and allowing the department to seek a second and third opinion by a health care provider other than the patient's health care providers, if the validity of the certification is questioned. On July 25, 1995, the department conducted a public hearing on the proposed repeal and new sections, no oral comments were received. Five employees submitted written comments concerning the proposed new sections. Regarding sec.4.51, Definitions, two commenters suggested that the definition of "immediate family" mirror the definition in the departments Human Resources Manual; more specifically, it should include restrictions related to family members not living in the same household. In response, this definition simply defines what is meant by "immediate family" throughout the text. This definition, in conjunction with the stipulation in sec.4.56(a)(5) related to the use of sick leave pool hours for an immediate family member not residing in the employee's home, is essentially the same as the definition included in the Human Resource Manual. One commenter suggested that the department elaborate on the definition of "permanent disability" and determine who will interpret this definition. In response, the department felt that the Americans With Disabilities Act (ADA) definition of "permanent disability" was most applicable. Furthermore, sec.4.52, administration of the pool, stipulates that the pool administrator shall issue interpretations and clarifications related to this program, which includes interpretations of all definitions. Regarding sec.4.55(a)(5), Contribution Returns, one commenter asked what is meant by "refunded" in this subsection. In response, it means the returning of hours contributed by an employee to the pool. Regarding sec.4.56(a)(6), Withdrawals, one commenter expressed concerns that this subsection contains no language regarding the confidentiality of the information received by the medical certification. In response to the comment, the department agrees that an additional sentence is needed and has been added to this paragraph stating that employee medical information related to requests for withdrawals from the sick leave pool may only be released to the human resources officer and for a legitimate business necessity unless otherwise required by law. Also regarding sec.4.56(a)(4), one commenter asks how the department will monitor or enforce this subsection which restricts the use of hours granted from the pool for a condition resulting in a permanent disability to time necessary for treatment of the illness and not the rehabilitation or training needed as a result of the disability. Though monitoring and enforcing this paragraph does pose a challenge, it is necessary to maintain the integrity of the pool. The pool administrator will utilize monthly recertification and information gained from the human resources officer, the employee, and the employee's doctor to meet this challenge. Also regarding sec.4.56(a)(6), one commenter stated that this subsection is confusing and requested further clarification. In response, the first sentence specifies the maximum number of hours which can be granted per request. The second sentence specified the maximum number of hours which can be granted per catastrophic condition. Government Code, Chapter 661, Subchapter A, State Employee Sick Leave Pool, prohibits granting more than one-third the balance of the pool or 90 days (720 hours), whichever is less. Because the department allows multiple requests for hours from the pool, it is necessary to separate the maximum hours allowed per request and per catastrophic condition. The maximum hours allowed per request cannot exceed one-third the balance of the pool at the time of the request nor can it exceed 90 days (720 hours). However, the employee is not limited to one-third the balance of the pool per catastrophic condition. The only limitation in this case is 90 days (720 hours) . For example, if an employee suffers a catastrophic condition, requests hours from the sick leave pool, and the pool balance is 420 at the time of the request, he or she may be granted 140 hours (one-third of pool balance) maximum. However, he or she may request additional hours, up to a total of 720 hours, when the pool balance can better accommodate his or her need. Another commenter suggested that the department specify the criteria for which the pool administrator may require monthly recertification. The department believes this is a good idea and has amended this subsection to specify that the pool administrator may require a monthly recertification when the necessary information to make a definite determination of the employee's need for pool hours is changed, uncertain, or not available. For instance, if an employee's health care provider cannot give a definite estimate of when the employee will be able to return to work, yet his or her condition meets the criteria for a catastrophic condition, it may be necessary to require a monthly certification. A commenter also suggested that the department include sending a copy of the employee's medical certification to the Human Resources Officers (HRO) in our procedures. For the sake of confidentiality, it has been our practice to not routinely send HROs a copy of the doctor's medical certification. However, if the district, division, or special office can demonstrate a legitimate business necessity for this information, the pool administrator may authorize its release. Section 4.54(a)(2) stated that contributions may not be specified for a certain individual. For further clarification, the department has included specific office or work unit. Section 4.54(b)(1) stated that the department would encourage retirees and separating employees to contribute to the pool. So that the departments efforts to encourage contributions are made clear, this sentence was reworded to show that all employees will be encouraged to contribute, including retirees and separating employees. Section 4.56(a)(2) provides for the written certification of a health condition by a health care provider. For the sake of clarity, a sentence has been added to acknowledge the confidentiality of this information. In sec.4.56(a)(6), the word "transferred" was replaced with "granted" for clarity to indicate the distribution of the sick leave pool hours. Section 4.56(a)(13) gave the pool administrator the authority to approve the use of a withdrawal on an intermittent basis. The department feels that a less burdensome method of monitoring and controlling the pool balance would be to grant hours in a block of time. Unused hours shall be returned at the end of the time unless an immediate need for such leave still exists. This clause would be less burdensome for the employee because he or she would not have to provide justification for the intermittent uses. It would also be less burdensome for the pool administrator who would not have to judge whether the justification is acceptable. Section 4.56(a)(14), as proposed, allows the pool administrator to require recertification of a health condition by a health care provider on a monthly basis. For the sake of clarity, the department has modified this paragraph to specify the conditions that recertification on a monthly basis will only be required when the necessary information to make a definite determination of the employee's need for pool hours is changed, uncertain, or unavailable. The new sections are adopted under Transportation Code, sec.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 Government Code, Chapter 661, which authorizes the department to adopt rules administering a sick leave pool program. sec.4.50. Purpose. The purpose of the sick leave pool program is to provide additional sick leave for an employee when the employee or the employee's immediate family member has a catastrophic illness or injury which causes the employee to exhaust all leave time earned and lose compensation from the state. Authority for the creation of the sick leave pool program is contained in Government Code, Chapter 661, Subchapter A, State Employee Sick Leave Pool. sec.4.51. Definitions. The following words and terms, when used in the sections under this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Accrued leave time-Vacation leave, sick leave, and compensatory time. Catastrophic illness or injury-A severe condition or combination of conditions affecting the mental or physical health of an employee or an employee's immediate family member that requires the services of a health care provider for a prolonged period of time and that forces the employee to exhaust all leave time earned by that employee and to lose compensation from the state. Contribute-To give sick leave from an employee's personal sick leave account to the department sick leave pool. Employee-A person, other than the executive director, who is employed by the department. Health care provider-A practitioner as defined by Texas Civil Statutes, Article 4590i, who is practicing within the scope of his or her license. Human resources officer-An employee in a district, division, or special office who is responsible for verifying the accuracy of all employee leave time records, and for the district, division, or special office extended sick leave program. If more than one employee has these responsibilities, their activities will be coordinated for the purpose of this subchapter. Immediate family -Those individuals who are related by kinship, adoption, or marriage, as well as foster children certified by the Texas Department of Protective and Regulatory Services. Permanent disability -A physical or mental impairment that substantially limits one or more major life activities. Pool administrator -The Director of the Human Resources Division or his or her designee who administers the department's sick leave pool program. Request-An initial application for withdrawal from the sick leave pool or an application for an extension of a withdrawal due to a catastrophic illness or injury. Severe condition -Any illness or injury that poses an imminent threat to the life of the patient, results in a permanent disability, or causes the employee to be off work for three continuous months or more for the current episode. Sick leave pool -A department-wide pool that receives voluntary contributions of sick leave from employees and which transfers approved amounts of sick leave to eligible employees. Withdrawal-An approved transfer of sick leave hours from the department sick leave pool. sec.4.54. Contributions. (a) Restrictions. (1) An employee may voluntarily contribute any amount of sick leave hours allowed by Government Code, Chapter 661, Subchapter A, State Employee Sick Leave Pool. (2) Contributions may not be specified for use by a certain individual. (b) Procedures. (1) The department will encourage an employee who is planning to retire, terminate employment, or resign to contribute sick leave hours upon separation, if the employee has not already contributed the amount allowed. (2) An employee who wishes to contribute sick leave to the pool shall submit a contribution form prescribed by the pool administrator to his or her human resources officer. (3) After verifying the accuracy of information on the application, the human resources officer shall sign the application and submit it to the pool administrator. (4) Once the application is approved by the pool administrator, the pool administrator shall transfer hours from the employee's account to the sick leave pool account. sec.4.55. Contribution Returns. (a) Restrictions. (1) An employee or employee's immediate family member must suffer an illness or injury, not necessarily catastrophic, to have the employee's contribution returned. (2) The number of hours that may be returned to an employee shall not exceed the total number of hours he or she has contributed since the beginning of the program, June 1, 1990. (3) All accrued leave time must be exhausted by the employee before hours will be returned from a previous contribution. (4) The maximum number of hours that may be returned per request shall not exceed the amount needed. The amount needed is determined by the amount of unpaid leave incurred because of the illness or injury. (5) If the pool balance cannot accommodate the amount needed, the employee shall be refunded one-third the balance of the pool. (6) An employee who is planning to retire and who has contributed sick leave to the pool may not have his or her contributions returned in order to receive a retirement credit. (b) Procedures. (1) The employee shall complete a withdrawal of contribution form prescribed by the pool administrator. (2) The human resources officer shall verify leave balances and the date and time all accrued leave time was or will be exhausted. (3) The pool administrator shall review the contribution form and approve or deny the transfer of hours from the sick leave pool to the employees personal sick leave account. sec.4.56. Withdrawals. (a) Restrictions. (1) An employee or an employee's immediate family must have a catastrophic illness or injury to be eligible to withdraw from the pool. The patient's health care provider must certify in writing that the illness or injury of the employee or member of the employee's immediate family is catastrophic. (2) A written certification from a health care provider must be submitted with all requests for withdrawals. The certification should include the diagnosis and prognosis of the condition or combination of conditions and the date the employee or employee's immediate family member will be able to return to normal activities. If the certification is for the employee's immediate family member, it should also include the amount of time the employee will be needed to provide primary care. The health care provider certification shall be in a form prescribed by the pool administrator. (3) The employee must submit an updated health care provider's certification that certifies that the catastrophic illness or injury still exists or that it is necessary for the employee to be off work to recover or assist in the recovery from the treatment of the catastrophic illness or injury before an extension may be approved. (4) Hours transferred from the pool for an illness or injury resulting in a permanent disability may be used solely for the treatment of the illness or injury and not for rehabilitation or training needed as a result of the disability. (5) An employee's use of a transfer from the sick leave pool for family members not residing in that employee's household is strictly limited to the time necessary to provide assistance to a spouse, child, or parent of the employee who needs such care and assistance as a direct result of a documented medical condition. (6) The maximum hours that may be transferred per request is 720 hours (90 calendar days) or one third of the balance of the pool, whichever is less at the time request is received. The maximum number of hours that may be transferred per catastrophic condition is 720 hours (90 calendar days). (7) When the pool balance is below 7,200 hours, an employee may not be transferred more than 340 hours (approximately two months) per request, unless unpaid leave is incurred before the request is approved. If unpaid leave is incurred, the employee may not be transferred more than the sum of the unpaid leave and 340 hours. The time transferred will begin on the date and time the employee exhausted all accrued leave. Additionally, the pool administrator will approve or deny all requests in the order in which they are received. (8) An employee who uses pool sick leave in accordance with this subchapter is not required to pay back that leave. (9) An employee must exhaust all accrued leave time before being eligible to use hours approved for a particular catastrophic illness or injury from the sick leave pool. (10) All withdrawals from the pool must be used solely for the catastrophic illness or injury for which they were granted. (11) An employee who is in need of additional sick leave after exhausting all accrued leave time shall exhaust all available extended sick leave before using time granted from the sick leave pool. (12) An employee who is injured on the job, who is entitled to receive worker compensation payments, and who chooses to integrate his or her sick leave, and vacation leave, or compensatory time is also eligible to receive a withdrawal in accordance with this subchapter. (13) The pool administrator may approve the use of a withdrawal on an intermittent basis provided that the employee justifies his or her need for such use and support the amount of time the employee expects to use within a three month period, with documentation from his or her health care provider. The employee may request an extension of time used intermittently if the need still exists after the three month period is over. (14) The pool administrator may require the patient's condition to be recertified by a health care provider on a monthly basis. If the employee is determined to be able to return to work sooner than a previous certification, the pool administrator may require the unused portion of a withdrawal to be returned to the pool. If the employee fails to cooperate with recertification requirements and reevaluation procedures, the pool administrator may deny the request or require that the unused portion of a withdrawal be returned to the sick leave pool. (15) Unused sick leave from the pool shall be returned to the pool when the need for such leave ceases to exist or the pool administrator requires it in accordance with this subchapter. (16) The estate of a deceased employee is not entitled to payment for unused sick leave from the pool. (b) Procedures. (1) The employee shall complete the application for withdrawal. The human resources officer shall assist the employee by verifying leave balances and the date and time all accrued leave time was or will be exhausted. (2) The employee shall submit the application and the health care provider's certification form to his or her health care provider no earlier than 15 workdays before the need for the withdrawal. The health care provider will complete the certification and mail it, with the completed application, directly to the pool administrator. (3) The pool administrator will consider applications for withdrawal in the order in which they are received. The pool administrator shall stamp the date and time of receipt on each application, and shall approve or deny the request within five working days of that date. (4) If the pool administrator questions the validity of the certification completed by the employee's health care provider, based on the average expected duration or severity of the condition, the administrator may request a health care provider, contracted by the department, to review the patient's medical records. The contracted health care provider may consult with the patient's health care provider if more information is needed. If the determination of the contracted health care provider differs from the patient's health care provider, the pool administrator may request that the patient's medical records be reviewed by a third health care provider who is not under contract with the department. The pool administrator and the employee must agree on the third health care provider. The determination of the third health care provider is binding. The department will pay for both reviews. If the employee fails to cooperate with the medical records review, the pool administrator may deny the request or require that the unused portion of the withdrawal to be returned to the sick leave pool. (5) The pool administrator will determine the amount of sick leave transferred for each request based on: (A) the number of hours requested by the employee; (B) the health care provider's certification which indicates the approximate date the patient will be able to return to light and normal duties or the amount of time that the employee is needed to provide primary care for the immediate family member; (C) the date and time all accrued leave time was or will be exhausted; and (D) the balance of the pool. (6) The pool administrator shall approve or deny the transfer of hours from the sick leave pool to the employees personal sick leave account. (7) The human resources officer shall inform the pool administrator of the amount of leave the employee used for the illness or injury at the end of each month, and, if he or she has returned to work, the total number of hours used and how many hours are being returned. (8) The pool administrator shall return all unused hours to the pool. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512831 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: July 11, 1995 For further information, please call: (512) 463-8630 Chapter 5. Finance 43 TAC sec.5.10 The Texas Department of Transportation adopts new sec.5.10, concerning the collection of debts, without changes to the proposed text as published in the August 11, 1995, issue of the Texas Register (20 TexReg 6109). The new section is necessary to comply with Government Code, sec.2107.002, which requires the department to establish procedures by rule for collecting a delinquent obligation, and Title 1, Texas Administrative Code, sec.59.2 which establishes the attorney general guidelines for state agencies concerning the collection process. Section 5.10 defines terms, and establishes procedures for determination of liability, collection from contractors, demand letters, record retention, referrals of a delinquent obligation to the attorney general, and supplemental and alternative collection procedures. On August 21, 1995, the department conducted a public hearing on the proposed new section and no oral or written comments were received. The new section is adopted under Transportation Code, sec.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 Government Code, sec.2107.002, which requires the department to establish procedures by rule for collecting a delinquent obligation and a reasonable period for collection and requires the department's collection procedures to conform to the guidelines established by the attorney general. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512832 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: August 11, 1995 For further information, please call: (512) 463-8630 Chapter 17. Vehicle Title and Registration Motor Vehicle Registration 43 TAC sec.17.22 The Texas Department of Transportation adopts an amendment to sec.17.22, concerning motor vehicle registration, with changes to the proposed text as published in the June 23, 1995, issue of the Texas Register (20 TexReg 4551). The only changes to the rule are to the citations to the Transportation Code in accordance with Senate Bill 971, 74th Legislature, 1995, which re-codified the statutes relating to transportation. The amendment is necessary due to the passage of Senate Bill 178, 74th Legislature, 1995, which was signed by the governor on May 1, 1995. Senate Bill 178 eliminated the need for a vehicle emissions certificate or evidence of residency as a prerequisite to motor vehicle registration. The amendment removes references to sec.17.80, concerning vehicle emission verification system, which is being simultaneously adopted for repeal. Senate Bill 178 removed the department's authority to implement a vehicle emission verification system as previously required by the Health and Safety Code, Chapter 382; the Texas Uniform Act Regulating Traffic on Highways, Texas Civil Statutes, Article 6701d, sec.142; and Texas Civil Statutes, Articles 6675a-2 and 6675a-3. No oral or written comments were received on the amendment. The amendment is adopted under Transportation Code, sec.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 Transportation Code, Chapter 502, which authorizes the department to promulgate rules necessary to carry out the provision of laws governing the issuance of motor vehicle registration. sec.17.22. Motor Vehicle Registration. (a) Registration. Unless otherwise exempted by law or this chapter, a vehicle to be used upon the public highways of this state must be registered in accordance with Transportation Code, Chapter 502, and the provisions of this section. (b) Initial application for vehicle registration. (1) An applicant for initial vehicle registration must file an application on a form prescribed by the department. The form shall at a minimum require: (A) the signature of the owner; (B) the motor vehicle description which includes, but is not limited to, the motor vehicle's year, make, model, vehicle identification number, body style, manufacturer's rated carrying capacity in tons for commercial motor vehicles, and empty weight; (C) the license plate number; (D) the odometer reading, or the word "exempt" if the motor vehicle is exempt from federal and state odometer disclosure requirements; (E) the name and complete address of the applicant; and (F) the name, mailing address, and date of any liens. (2) The application must be accompanied by the following documents: (A) evidence of vehicle ownership as specified in Transportation Code, sec.501.030; (B) registration fees as may be prescribed by law; (C) any local fees or other fees as may be prescribed by law and collected in conjunction with registering a vehicle; (D) evidence of financial responsibility as required by Transportation Code, sec.502.153, unless otherwise exempted by law; and (E) any other documents or fees required by law. (3) Place of registration. An initial application for registration shall be filed with the tax assessor-collector of the county in which the owner resides; provided, however: (A) registration involving the transfer of vehicle ownership by a motor vehicle dealer shall be governed by sec.17.74(c) of this title (relating to Records of Sales and Inventory); and (B) an application for registration as a prerequisite to filing an application for certificate of title may be filed with the county tax assessor-collector in the county in which the motor vehicle is purchased or encumbered. (c) Vehicle registration insignia. (1) Upon receipt of a complete initial application for registration with the accompanying documents and fees, the department will issue vehicle registration insignia to be displayed on the vehicle for which the registration was issued for the current registration period. (A) If the vehicle has a windshield, the symbol, tab or other device prescribed by and issued by the department must be attached to the inside lower left corner of the vehicle's front windshield directly above the vehicle inspection sticker in a manner that will not obstruct the vision of the driver. (B) If the vehicle has no windshield, the symbol, tab, or other device prescribed by and issued by the department shall be attached to the rear license plate. (2) Unless otherwise prescribed by law, each vehicle registered under this undesignated head must display two license plates, one at the front and one at the rear of the vehicle. (3) The provisions of paragraph (1) of this subsection do not apply to vehicles registered with annual license plates issued by the department. (d) Vehicle registration renewal. (1) A vehicle owner shall apply to the tax assessor-collector of the county in which the owner resides for registration renewal prior to the expiration of the vehicle's registration. (2) The department will mail a license plate renewal notice, indicating the proper registration fee and the month and year the registration expires to each vehicle owner approximately six to eight weeks prior to the expiration of the vehicle's registration. (3) The license plate renewal notice must be returned by the vehicle owner to the appropriate county tax assessor-collector or his deputy, either in person or by mail, and shall be accompanied by the following documents and fees: (A) registration renewal fees as may be prescribed by law; (B) any local fees or other fees as may be prescribed by law and collected in conjunction with registration renewal; and (C) evidence of financial responsibility as required by Transportation Code, sec.502.153, unless otherwise exempted by law. (4) If a renewal notice is lost, destroyed, or not received by the vehicle owner, the vehicle may be registered if the owner presents personal identification acceptable to the tax assessor-collector. Failure to receive the notice does not relieve the owner of the responsibility to renew the vehicle's registration. (5) Renewal of expired vehicle registrations. (A) In accordance with Transportation Code, sec.502.407, a vehicle with expired registrations may not be operated upon the highways of the state after the fifth day after the date a vehicle registration expires. (B) A 20% delinquency penalty is due any time a vehicle is operated upon the public streets or highways without the required registration. (C) If an owner renews the registration of a vehicle more than one month after the previous registration has expired and the vehicle has not been operated upon the public streets or highways, the vehicle owner will be required to execute a non-use affidavit stating such, and the registration fee will be prorated for the balance of the registration year. (D) If an owner renews the registration of a vehicle more than one month after the previous registration has expired and cannot execute the non-use affidavit because the vehicle has been operated, the full annual fee shall be collected plus a 20% delinquency penalty as provided by Transportation Code, sec.502.176. (6) License plate reissuance and recall program. (A) The county tax assessor-collectors are authorized to issue new multi-year license plates at no additional charge upon request by the owner at the time of registration renewal, provided the current plates are over five years old. (B) The county tax assessor-collectors shall issue new multi-year license plates at no additional charge at the time of registration renewal provided the current plates are over eight years old. (e) Out-of-state vehicles. A vehicle brought to Texas from out-of-state must be registered within 30 days of the date which the owner establishes residence or secures gainful employment. Accompanying a completed application, an applicant shall provide: (1) an application for certificate of title as required by the Certificate of Title Act, Transportation Code, Chapter 501, if the vehicle to be registered has not been previously titled in this state; and (2) an identification certificate required by the Transportation Code, sec.547.202 and sec.501.030. (f) Enforcement of traffic warrant. The department or a county tax assessor- collector may, pursuant to the provisions of a contract entered into under Transportation Code, sec.702.003, refuse to register a vehicle owned by a person for whom a warrant of arrest is outstanding for failure to appear or pay a fine on a complaint involving a violation of a traffic law. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512833 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: June 23, 1995 For further information, please call: (512) 463-8630 Vehicle Emissions Verification System 43 TAC sec.17.80 The Texas Department of Transportation adopts the repeal of sec.17.80, concerning vehicle emissions verification system, without changes to the proposed text as published in the June 23, 1995, issue of the Texas Register (20 TexReg 4552). The section is no longer necessary due to the passage of Senate Bill 178, 74th Legislature, 1995, which was signed by the governor on May 1, 1995. Senate Bill 178 eliminated the need for a vehicle emissions certificate or evidence of residency as a prerequisite to motor vehicle registration. Senate Bill 178 removed the requirement that the department implement a vehicle emission verification system as previously required by the Health and Safety Code, Chapter 382; the Texas Uniform Act Regulating Traffic on Highways, Texas Civil Statutes, Article 6701d, sec.142; and Texas Civil Statutes, Articles 6675a-2 and 6675a-3. No oral or written comments were received on the repeal. The repeal is adopted under Transportation Code, sec.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 Transportation Code, Chapter 502, which authorizes the department to promulgate rules necessary to carry out the provision of laws governing the issuance of motor vehicle registration. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512834 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: June 23, 1995 For further information, please call: (512) 463-8630 Chapter 25. Traffic Operations General 43 TAC sec.25.7 The Texas Department of Transportation adopts new sec.25.7, concerning removal and storage of spilled cargo and personal property, with changes to the proposed text as published in the August 8, 1995, issue of the Texas Register (20 TexReg 6010). The only changes to the rule are the citations to the statutory authority that have been changed to the Transportation Code, sec.sec.472.011-472.014 in accordance with Senate Bill 971, 74th Legislature, 1995, which re-codified the statutes relating to transportation. The new section is necessary to comply with Transportation Code, sec.sec.472. 011-472.014, which provides authorization for the department to remove, store, and dispose of cargo and personal property spilled on the state highway system and state right of way. Section 25.7 defines the department's criteria for removal of this property, the procedures for contacting the owner of the property, the procedures for storage of the property if necessary, and the owner's responsibilities in regard to reimbursement for storage and removal costs. On September 6, 1995, the department conducted a public hearing on the proposed new section; and no comments were received regarding adoption of the new section. The new section is adopted under Transportation Code, sec.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, sec.sec.472.011-472.014, which authorizes the Texas Department of Transportation to remove and dispose of spilled cargo and other personal property, on state highways and right of way. sec.25.7. Removal and Storage of Spilled Cargo and Personal Property. (a) Purpose. Transportation Code, sec.sec.472.011-472.014, authorize the Texas Department of Transportation to remove and dispose of spilled cargo or other personal property on state rights of way or a portion of the roadway of the state highway system. This section prescribes the requirements and procedures for the removal of spilled cargo or other personal property from the highway system. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Department-The Texas Department of Transportation. (2) District-One of the 25 geographical areas managed by a district engineer, in which the department conducts its primary work activities. (3) Hazardous material-Material as defined by the Hazardous Material Transportation Act (49 U.S.C. sec.1801). (4) Hazardous substance-Material as defined by the Texas Hazardous Substances Spill Prevention and Control Act (Water Code, sec.26.263). (5) Spilled cargo or personal property-Material that separates from the vehicle in which it is being transported and which comes to rest within state right of way or a portion of the roadway of the state highway system. (c) General conditions warranting removal of spilled cargo or personal property. (1) The department may, without the consent of the owner or carrier, remove spilled cargo or other personal property from the state's right of way if the department considers this cargo or property to be blocking the roadway or endangering public safety. (2) For each occurrence, the department will determine whether the removal of the cargo or property is warranted based on the following considerations: (A) the safety of department employees; (B) the safety of the public; (C) the operation of the highway facilities; (D) the protection of the state investment; (E) the availability of resources for removal operations; and (F) the availability of storage space at a department facility. (3) If the department determines that removal is necessary, it will remove the cargo or property with as much care as is practical under the existing conditions. (4) The department will remove cargo or property that it believes is a hazardous material or a hazardous substance in compliance with Government Code, sec.411.018, and the Texas Hazardous Substances Spill Prevention and Control Act, Water Code, Chapter 26, Subchapter G. (5) The department and its employees do not assume responsibility for damage to the cargo or property resulting from removal. (d) Notification of property owner. (1) The department, through its local districts, will attempt to contact the owner or carrier of the cargo or property through information obtained from the property or through inquiries from the owner or carrier. (2) If the department is unable to ascertain the identity of the property owner within 30 days of the removal, the department will dispose of the property in the manner the department deems most suitable. (e) Storage of Cargo and Property. (1) Removal of cargo or property may include transportation to andor storage of the property at a site other than the spill location. (2) The owner or carrier is responsible for the security of the cargo or property and the integrity of any perishable goods at all times. (3) The owner or carrier will claim and take possession of the cargo or property as soon as possible after its relocation from the spill site. The department may dispose of the cargo or property if the owner, after notification, fails to take possession of the cargo within ten days. (4) The owner or carrier is responsible for the costs of removal and disposing of the cargo or property. The department will bill the responsible party for all costs and the responsible party shall remit the costs to the department within 30 days of the date of billing. If the responsible party fails to remit all costs, the department may refer the matter to the Office of the Attorney General for collection. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512835 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: August 8, 1995 For further information, please call: (512) 463-8630 Information Logo Sign Program 43 TAC sec.sec.25.400-25.407, 25.409 The Texas Department of Transportation adopts amendments to sec.sec.25.400-25. 407 and new sec.25.409 concerning the information logo sign program, with changes to the proposed text as published in the August 11, 1995, issue of the Texas Register (20 TexReg 6111). Section 25.403 is adopted with changes and sec.sec.24.400-25.402, 25.404-25.407, and 25.409 are adopted without changes. These revisions are adopted under Texas Civil Statutes, Article 4477-9a as amended by Senate Bill 882 of the 74th Texas Legislature. Senate Bill 882 expanded the existing information logo sign program and created a new category of logo sign, the major shopping area guide sign. Section 25.400 is amended to expand the eligible areas of the logo sign program and provide signing for major shopping areas within urbanized areas of greater than 200,000 population. Section 25.401 is amended to include the definitions of close proximity interchange, multiple crossroad interchange, driveway access, eligible highway, eligible urban highway, gross building area, information logo sign, major shopping area, major shopping area guide sign, major shopping area ramp sign, multiple crossroad interchange, and retail shopping mall. Section 25.402 is amended to allow the contractor to priority market the specific information logo signs to those commercial establishments that are located within the first one mile within the initial three mile radius of the interchange. If adequate participation is not found, the contractor may increase the radius in one mile increments. In addition, this amendment requires the contractor to develop an inventory of the retail shopping malls, determine eligibility for major shopping guide signs, and determine if ground mount or overhead signing will be needed. If overhead signing is needed, the signing for the retail shopping mall becomes the responsibility of the department. For specific information logo signs, the contractor is required to obtain department approval before developing site plans at close proximity or multiple crossroad interchanges to insure fair and equitable chance of participation for all eligible commercial establishments at these interchanges, as well as the needs of the motorists. The contractor is required to cooperate and transfer the names of potential commercial establishments to the other contractors of information logo sign programs operating in the area, attend meetings as required by the department, and refund advance payments for logo sign or major shopping area signing if the department creates a situation where the existing logo signs or major shopping area guide signs at an interchange are permanently removed. The amendments explain the different fees and how they affect the commercial establishment or retail shopping mall. Section 25.403 is amended to lengthen the page limits allowed for a statement of interest. Section 25.404 is amended to include additional terms and a revised bidding formula to include major shopping area guide signs. The numbers resulting from this formula are the final criteria for the department's selection of a contractor to operate the information logo sign program. Section 25.405 is amended to provide specifications for design, content, placement, and relation to existing signs for specific information logo signs and ramp signs, allow the maximum number of business logos allowed per sign to increase from four to six per sign, limit the maximum number of services to three, and allow the department the approval authority before signs are fabricated. This section includes the specifications for design, content, placement, and relation to existing signs of major shopping area guide signs and ramp signs. Section 25.406 is amended to include a visibility requirement for commercial establishment eligibility. This allows only those businesses that can be easily located by the motorists to participate in the specific information logo sign program. This section also give priority to those commercial establishments that are located within the first one mile radius of the interchange. The contractor may market commercial establishments, in increments up to fifteen miles, outside the initial three mile radius if no commercial establishment within the three miles of the interchanges is willing to participate. Section 25.407 is amended to prioritize the arrangement of the six commercial establishment logo spaces within the sign based on the results of a random drawing if the logo sign will contain two or more services. This section also includes responsibilities and rights of commercial establishment and the retail shopping mall with regard to multi-year participation agreements between the contractor and commercial establishment or retail shopping mall, and removal of business logo and forfeiture of advance payments if the commercial establishment or retail shopping mall defaults on the participation agreement. New sec.25.409 defines the parameters of major shopping area eligibility for signing. On August 22, 1995, the department conducted a public hearing to seek comments concerning the proposed amendments to sec. sec.25.400-25.407 and new sec.25. 409 concerning the information logo sign program for Texas eligible highways and eligible urban highways. Representatives of Texas Logos, Inc., and 3M Corporation were in attendance and indicated they were in favor of the amended rules. One commenter gave oral testimony at this hearing. The department also received one written response by mail from the same commenter. Concerning sec.25.403, one commenter requested that the department reevaluate its method of contract prequalification and selection and suggested that the department select a contractor based upon an evaluation of the various contractors and then enter negotiations with the top-ranked firm instead of selecting a contract through low bid. The department is required to use the competitive bid process for highway improvement projects under Transportation Code, sec.223.001. The low bid selection procedure for choosing a contract complies with Transportation Code, sec.223.001, and the department believes it is also in the best interest of the department and the public. The department method is comprised of a two step process. First, the contractor must become prequalified through a selection committee that evaluates each contractor's proposal based on criteria related to the qualification, experience, and financial resources. Second, those prequalified contractors then submit bids for operating the program. The contract is awarded to the low bidder. The selection by low bid recognizes all prospective prequalified contractors on an equal basis, and allows them a fair and equitable chance. Furthermore, the final selection by low bid method eliminates any possible bias for or against a contractor. The commenter also suggested that the department inform any prospective contractors that the amount of fees currently charged to the businesses may not be raised for additional contracts. Consideration of the amount of fees that will be charged to the businesses is included in the low bid process. The commenter requested that the department allow expansion of the current logo sign contract to include the newly added interchanges. The department considers this option to be a viable alternative with many advantages and chooses to amend the existing contract for the following reasons: the existing logo contractor has completed the necessary sign construction well in advance of the required schedule, the participating businesses will contract with the same contractor and pay the same amount of fees statewide, the fees are competitive with the other states' fees for similar programs, and the department believes the contractor will complete the signing in less than one year. The amendments and new section are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation and more specifically, Transportation Code, sec.sec.391.091-391.096, as amended, which authorizes the Texas Department of Transportation to erect and maintain information logo signs within eligible highways and urban rights of way. sec.25.403. Prequalification. (a) Eligibility. If the department elects to let a contract for the implementation of the information logo sign program, a contractor must prequalify by submitting an introductory letter and a statement of interest to be eligible to submit a bid under Transportation Code, Chapter 223. A committee of department employees appointed by the director of the division of traffic operations will evaluate and score each statement of interest. To prequalify, a contractor must receive a final score of not less than 70 points on the statement of interest. (b) Introductory letter. The introductory letter shall be addressed to Director of Traffic Operations, Texas Department of Transportation, 125 E. 11th Street, Austin, Texas 78701-2483, and shall contain: (1) an expression of the contractor's interest in the project; (2) a summary of the contractor's qualifications to do the work; and (3) any other summary information concerning the project team or the contractor that may be useful or informative to the department, contractors, or subcontractors. (c) Statement of interest. The statement of interest shall contain the following components in the order listed. (1) Staffing. (A) The contractor shall specify the identity of key individuals, including subcontractors, who are proposed to be part of the contractor's project team together with their respective qualifications and experience on similar or related projects, the expected amount of involvement, and the time commitment for each individual and subcontractor. (B) Evaluation will be on the basis of the qualifications, experience, and time allocation of the members of the project team as they relate to the specific project, with a maximum of 20 points. (2) Capability. (A) The contractor's capability for actually undertaking and performing the work shall be described, to include the types and locations of similar work performed in the last three years that best characterizes the quality and cost control of the contractor as well as the names, addresses, and phone numbers of knowledgeable individuals who can be contacted. This component shall also include a discussion of the contractor's internal policies and procedures that are related to work quality, cost control, and resources, including management and organization capabilities currently available for performing the work for the project. (B) Evaluation will be on the basis of the contractor's capability to perform the work, including internal quality and cost control procedures, with a maximum of 15 points. (3) Understanding of the project. (A) The contractor's understanding of the project, based on information available from the department, site visits by the contractor, and applicable regulations or requirements known and as understood by the contractor, shall be discussed. (B) Evaluation will be on the basis of the contractor's demonstrated knowledge of the required work as contained in a clear and concise explanation, with a maximum of 15 points. (4) Approach to the project. (A) The approach or course of action by which the contractor proposes to meet the goals and objectives of the project shall be described. The approach must be realistic, clear and concise, and shall identify potential impacts, impediments, or conflicts. (B) Evaluation will be on the basis of how well the contractor has planned a preliminary or basic course of action, what alternative and/or innovative approaches are proposed, and what provisions are identified for dealing with potential impacts, impediments, or conflicts, with a maximum of 15 points. (5) Schedule control. (A) Internal methods that will be used by the contractor for schedule control must be fully described. Current references must be listed that confirm the contractor's ability for the timely completion of project work. The intent of this section is to make sure that the project is expedited. (B) Evaluation will be on the basis of the internal measure used by the contractor to ensure timely completion along with his or her demonstrated reputation for project completion, with a maximum of ten points. (6) Location of the work. (A) The location or locations where the work will be accomplished by the contractor and any subcontractor, the identities of those who will be involved at each work location for the major work elements on the project, the location of the business offices, and the location where the signs will be fabricated shall be identified. (B) Evaluation will be on the basis of the contractor's ability to erect, maintain, and replace signs in a timely and effective manner, with a maximum of 15 points. (7) Audited financial statement. (A) The contractor must furnish audited financial statements as required dated no later than the fiscal year immediately preceding the date of the introductory letter. (B) Evaluation will be on the basis of the contractor's financial ability to implement and operate the program, with a maximum of ten points. (8) Supporting information. (A) The contractor may provide supporting information, such as graphs, charts, photos, resumes, and references. (B) This component will not be evaluated or scored as part of the statement of interest. (d) Page limits. The entire statement of interest including the eight sections listed in subsection (c) of this section should not exceed 25 pages. A page is defined as an 8.5 by 11 inch or 11 by 17 inch sheet containing text, pictures, graphs, charts, plan sheets, or any other graphics. Not more than five 11 by 17 inch sheets may be used in conjunction with pictures, graphs, charts, plans, and other graphics. If 11 by 17 inch sheets contain text only, they will be counted as two pages. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1995. TRD-9512836 Robert E. Shaddock General Counsel Texas Department of Transportation Effective date: October 27, 1995 Proposal publication date: August 11, 1995 For further information, please call: (512) 463-8630