PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION Part III. Office of the Attorney General Chapter 61. Crime Victims Compensation 1 TAC sec.sec.61.2, 61.7, 61.10, 61.20, 61.23, 61.25, 61.31, 61. 33, 61.35 The Office of the Attorney General proposes amendments to sec.sec.61.2, 61.7, 61.10, 61.20, 61.23, 61.25, 61.31, and 61.35; and new sec.61.33, concerning crime victims' compensation. Section 61.33 addresses the new procedure for the application of the medical fee guidelines to medical bills of victims. Section 61.2 is amended for consistency and clarifies what kind of property loss is compensable. Section 61.7 clarifies who must substantiate lost wages due to the crime. Section 61.10 deletes limits on transportation services. Section 61. 20 clarifies that the good cause exception applies to all factors. Section 61. 23 is amended to correspond with the requirements of the statute. Section 61. 25 adds a time period for administrative closure. Section 61.31 deletes the disparity in compensation among providers. Section 61.35 clarifies the appeals process. Elly Del Prado Dietz, Assistant Attorney General, has determined that for the first five-year period the sections are in effect there will be fiscal implications for state or local government as a result of enforcing or administering the sections. It will cost the Crime Victims' Compensation Fund approximately $300,000 per year in increased payments to medical providers. Ms. Dietz also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be having increased benefits without economic cost to persons. There will be no effect on small businesses. There will be no cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Elly Del Prado Dietz, Crime Victims Compensation Division, Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548. Comments will be accepted for 30 days after the publication in the Texas Register. The amendments and new section are authorized under Crime Victims' Compensation Act, Texas Code of Criminal Procedure, Subchapter 56B, Article 56. 33, which provides the Office of the Attorney General with the authority to promulgate and adopt rules consistent with the Act governing its administration, including rules relating to the method of filing claims and the proof of entitlement to compensation. The amendments and new section affect the following articles of the code: sec.sec.61.2, 61.7, and 61.10 affect Texas Code Criminal Procedure, Article 56. 32(9). Section 61.20 affects Texas Code Criminal Procedure, Article 56.45(1). Section 61.23 affects Texas Code Criminal Procedure, Article 56.38. Section 61.25 affects Texas Code Criminal Procedure, Article 56.40. Section 61. 31 affects Texas Code Criminal Procedure, Article 56.32(9). Section 61.33 affects Texas Code Criminal Procedure, Article 56.34(d). Section 61.35 affects Texas Code Criminal Procedure, Article 56.40. sec.61.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Accomplice-A person who is criminally responsible as a party to an offense under Texas Penal Code, Chapter 7, as amended or as may hereafter be amended. Chief-The administrative head of the Crime Victims Compensation Division. Interested person -The term as used in the Act, Article
    [article] 56.40 does not include the accused criminal offender or non-claimant creditors. Another person -The term as used in the Act, Article
      [article] 56.45 does not include persons related to the claimant within the third degree of affinity or consanguinity; nor does it include purely donative contributors, such as community, civic, or religious organizations. Pecuniary loss -Includes eyeglasses, corrective lenses, dental devices, and prosthetic devices. It does not include lost[, damaged,] or stolen property. Physical therapy -Health care that prevents, identifies, corrects, and alleviates acute or prolonged movement dysfunction or pain of anatomical or physiological origin. Physical therapy includes the testing and measurement of the function of the musculoskeletal, neurological, pulmonary, and cardiovascular systems and rehabilitative treatment concerned with the restoration of function and prevention of disability caused by injury from criminally injurious conduct. Physical therapy also includes treatment, consultative, educational, and advisory services for the purpose of reducing the incidence and severity of disability and pain to enable, train, or retrain an individual to perform the independent skills and activities of the victim's daily living which the victim experienced immediately before the criminally injurious conduct. Psychiatric care or counseling-Psychiatric care or counseling performed by psychiatrists (M.D. or D.O.), psychologists (Ph.D.), clinical nurse specialists (C.N.S. in psychiatric care), licensed professional counselors (LPC), licensed marriage and family therapists (LMFT) and licensed masters in social work- advanced clinical practitioners (LMSW-ACP). Reports-The term as used in the Act, Article
        [article] 56.46 includes both written and oral reports. Resident-The term as used in the Act, Article
          [article] 56.32 includes a person who is in Texas with the intent to establish a permanent presence within the state. A person who is in Texas in pursuit of temporary business, recreational activities or whose presence in Texas is of a transient nature is not a "resident of this state" for purposes of the Act. State-A state of the United States of America, the District of Columbia, the Commonwealth of Puerto Rico, or any possession or territory of the United States. sec.61.7. Loss of Earnings. The Chief shall determine an award for actual loss of earnings and the anticipated loss of future earnings as follows. (1) If the victim was employed at the time of the incident upon which the claim is based and incurred a disability as a direct result of the criminally injurious conduct that prevented the victim from working, the Chief shall compute the actual loss of earnings by determining the weekly net earnings of the victim multiplied by the disability period. In this subsection, "disability period" means the length of time that a victim is unable to work as a direct result of the personal injury as determined by a physician
            or as a direct result of
              emotional trauma caused by the crime, as determined by a mental health professional licensed to provide care or counseling as defined in sec.61.2
                [physician]. In this subsection, "net earnings" means gross earnings less federal withholding's tax, FICA tax and Medicare taxes. (2)-(4) (No change.) sec.61.10. Limits on Compensation. In addition to the rates established under the Act, the following limits for compensation are deemed to be an amount reasonably incurred under the Act, Article 56.32(9): [(1) ground ambulance transportation rates are limited to $250 for each ambulance response and transport; [(2) air ambulance transportation rates are limited to $1,500 for each air ambulance response and transport;] (1)
                  [(3)] funeral and burial expenses are limited to $4,500; (2)
                    [(4)] loss of earnings and loss of support to a dependent are limited to $400 per week; (3)
                      [(5)] care of dependents or minor children is limited to $100 per week per dependent or child; (4)
                        [(6)] costs of crime scene cleanup are limited to $750 in the aggregate; and (5)
                          [(7)] costs for the replacement of clothing, bedding or other property is limited to $750 in the aggregate. Under unusual fact and circumstance, the Chief may authorize awards in excess of the limits contained in this rule. sec.61.20. Cooperation with Law Enforcement Agencies. When determining whether a crime victim has cooperated with the reasonable requests of the law enforcement agency investigating the criminally injurious conduct, the chief shall consider the following factors: (1)-(3) (No change.) (4) whether the victim cooperated with the investigating law enforcement agency within a reasonable period of time after the crime, but not later than 30 days after the victim receives a request from the law enforcement agency, so as to enable the law enforcement agency to identify and apprehend the offender or conduct a complete investigation of the crime. The chief may waive the provisions of this section upon good cause shown by the victim or claimant.
                            [The chief may waive the provisions of this section upon good cause shown by the victim or claimant.] sec.61.23. Compliance Necessary.
                              Whenever an application is incomplete or otherwise lacks information required to make a determination of an application, the Chief shall request the claimant to provide the required information. If a claimant fails within 30
                                [60] days to provide the information or indicate why the information is unavailable, the claimant shall be denied an award. The Chief may waive this provision upon a showing by the claimant that the failure to provide the required information was completely beyond the control of the claimant. sec.61.25. Closing Claims.
                                  A claim for an award is closed when any of the following conditions occurs: (1) (No change.) (2) the 60-day time period for appealing the decision of the chief to award or deny a claim has passed without a request from the victim or
                                    claimant for reconsideration
                                      [a hearing]; (3) the 30-day time period for appealing the decision of the hearing officer at a prehearing conference or upon reconsideration has passed without a request from the victim or claimant for a final ruling hearing; or (4)
                                        [(3)] the 20-day time period for appealing the decision of the hearing officer
                                          [examiner] in a final ruling has passed and the victim or
                                            claimant has not filed a notice of dissatisfaction with the attorney general as required under the Act, Article 56.48(a). sec.61.31. Mental Health Counseling Expenses. Counseling expenses are limited to 40 sessions or an amount not to exceed $3,000 for psychiatrists, psychologists, licensed professional counselors, marriage and family therapists and certified social workers-advanced clinical practitioners. Fees and billing procedures per session are to be determined as established by the Office of the Attorney General. [The Chief may reimburse psychologists (Ph.D.) at the rate not to exceed the amount established in the Texas Workers' Compensation Medical Fee Guidelines for reimbursement to psychiatrists (M.D. or D.O.) for comparable services. The Chief may reimburse clinical nurse specialists (CNS in psychiatric care), licensed professional counselors (LPC), licensed masters in social work- advanced clinical practitioner (LMSW-ACP) and licensed marriage and family therapists (LMFT) at the rate of 60% of the amount established in the Texas Workers' Compensation Medical Fee Guidelines for reimbursement to psychiatrists for comparable services. In the event the Texas Workers' Compensation Medical Fee Guidelines include a reimbursement rate for psychologists (Ph.D.), clinical nurse specialists (CNS in psychiatric care), licensed professional counselors (LPC), licensed masters in social work-advanced clinical practitioner (LMSW-ACP) and licensed marriage and family therapists (LMFT), the Chief may reimburse those practitioners at the rate established by the Texas Workers' Compensation Medical Fee Guidelines.] Under unusual facts and circumstances, additional sessions may be allowed, but limited to those which are pre-authorized and approved in accordance with general standards of utilization review. sec.61.33. Medical Fee Guidelines. Crime victims shall be reimbursed for all out of pocket medical expenses incurred as a result of the crime regardless of the medical fee guideline. In cases where an insurance company pays the bill, the unpaid balance of said bill is determined to be the pecuniary loss suffered and payment shall not exceed the allowable amount for that service under the medical fee guidelines. sec.61.35. Request for Reconsideration, Pre-hearings and Hearings. The attorney general may determine that reconsideration of a decision or a hearing is necessary. The claimant may also request reconsideration of a decision or may request a hearing. (1) Review. (A) (No change. ) (B) The attorney general may appoint hearing officers to conduct reconsideration,
                                              prehearing conferences and hearings under this subsection. (C) Interested persons shall be notified in writing by mail not less than ten
                                                [20] days prior to the date of the prehearing conference or hearing. The notice of a prehearing conference or hearing shall include: (i)-(iv) (No change.) (D)-(G) (No change.) (2) (No change.) (3) Final hearings. If the claimant is dissatisfied with the ruling of the hearing officer at the prehearing conference or upon reconsideration
                                                  , the claimant may file a written request for a final hearing within 30 days of the date of the written notification of the ruling [in the prehearing conference]. If the claimant does not request a final hearing within 30 days of the written notification of the hearing officer, the ruling of the hearing officer [at the prehearing conference] becomes the final decision of the agency. The hearing officer shall conduct the final hearing as follows: (A)-(J) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 21, 1995. TRD-9516635 Suzanne Marshall Assistant Attorney General Office of the Attorney General Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 465-4291 TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 461. General Rulings 22 TAC sec.461.18 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.461.18, concerning Complaint Procedure Notification. The amendment is being proposed in order to correct the address and phone number of the Board since the Board's office changed locations and to show that all licensees and certificands are provided with the notification statement approved by the Board. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure that the information provided to the public regarding assistance for filing complaints is correct. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.461.18. Complaint Procedure Notification. (a) Methods of Notification. The Board and its licensees/certificands shall provide notification to the public that complaints can be filed with the Board by publishing the Board's name, its mailing address, and telephone number by the following method: (1) Displaying a sign in a prominent location, on a wall in all rooms where psychological services are conducted in a position that is reasonably likely to be viewed by individuals occupying the room, on paper of no less than 8 1/2 inches by 11 inches in size, with the Board approved notification statement printed in black. The Board approved notification statement must be printed in both English and Spanish. (A) The Board approved English notification statement reads as follows: "Be it known that the Texas State Board of Examiners of Psychologists receives questions and complaints regarding the practice of psychology. For assistance please contact: Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700
                                                    [9101 Burnet Road, Suite 212, Austin, Texas 78758, (512) 835-2036]." (B) The Board approved Spanish notification statement reads as follows: "Se desea informar que la Comision Estatal Examinadora de Psicologos de Texas recibe toda clase de consultas y quejas sobre el ejercicio profesional de la psicologia en el Estado de Texas. Si usted necesita de este servicio, comuniquese con: Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700
                                                      [9101 Burnet Road, Suite 212, Austin, Texas 78758, (512) 835-2036]." (2) The Board approved notification statement is provided to all licensees and certificands
                                                        [Licensed Psychological Associates, Certified Psychologists, and Licensed Psychologists] at the time of licensure or certification
                                                          . Additional Board approved notification statements may be obtained directly from the Board's office at any time. (b) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516624 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 Chapter 463. Applications 22 TAC sec.463.6 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.463.6, concerning Experience. The amendment is being proposed in order to clarify that the rule pertains only to those individuals seeking licensure as a psychologist and to delete a statement which is in contradiction to another part of the rule. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to provide clarification that this rule only applies to applicants for licensure as a psychologist. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.463.6. Experience. Supervision for licensure as a psychologist
                                                            may be obtained only in a full-time or half-time setting. (1)-(11) (No change.) (12) For applications for licensure received after August 31, 1995, [the] one year of experience must be an internship certified by the Director of Internship Training and must be satisfied by either: (A) (No change.) (B) The successful completion of an organized internship meeting the following criteria: (i) -(iii) (No change.) (iv) Internship supervision was provided by a staff member of the internship agency or by an affiliate of that agency who carried clinical responsibility for the cases being supervised. [At least half of the internship supervision was provided by one or more psychologists.] (v)-(xiii) (No change.) (C)-(D) (No change.) (13)-(15) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516625 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 Chapter 465. Rules of Practice 22 TAC sec.465.10 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.465.10, concerning Applicability of the Act and Rules of the Board. The amendment is being proposed in order to simplify the wording of the rule so that the rule does not have to be amended each time there is a change in classifications of licensees and/or certificands. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to make the rules easier for the public to follow. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.465.10. Applicability of the Act and Rules of the Board. Irrespective of any training other than that which is primarily psychological which any certificand or licensee of this Board
                                                              [the psychologist or psychological associate] may have completed, or any other certification or licensure which any certificand or licensee of this Board
                                                                [the psychologist or psychological associate] may possess, or any other professional title or label he or she may claim, anyone certified or licensed by this Board
                                                                  [as a psychologist or licensed as a psychological associate] is bound by the provisions of the Act and the rules of the Board in rendering psychological services for compensation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516626 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 22 TAC sec.465.19 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.465.19, concerning Persons with Criminal Backgrounds. The amendment is being proposed in order to simplify the wording of the rule so that the rule does not have to be amended each time there is a change in classification of licensees and/or certificands. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to make the rules easier for the public to follow. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.465.19. Persons with Criminal Backgrounds. (a) The Board may revoke or suspend an existing valid certificate or license, disqualify a person from receiving or renewing a certificate or license, or deny to a person the opportunity to be examined for a certificate or license because of a person's conviction of a felony if the offense directly relates to the performance of the activities of a certificand or licensee
                                                                    [psychologist or psychological associate] and the conviction directly affects such person's present fitness to perform as a certificand or licensee of this Board
                                                                      [psychologist or psychological associate]. (b) No person currently serving a sentence in prison for a felony is eligible to obtain or renew his/her [psychologist's] certificate or license [or a psychological associate's license]. (c) In determining whether a criminal conviction directly relates to the performance of a certificand or licensee
                                                                        [certified and/or licensed psychologist or licensed psychological associate], the Board shall consider the factors listed in the Texas Civil statutes, Article 6252.13c(4)(b). (d) Those crimes which the Board considers as directly related to the performance of a certificand or licensee
                                                                          [certified and/or licensed psychologist or a licensed psychological associate] include but are not limited to: (1) -(11) (No change.) (e)-(g) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516627 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 22 TAC sec.465.33 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.465.33, concerning Sexual Intimacies and Sexual Harassment. The amendment is being proposed in order to simplify the wording of the rule so that the rule does not have to be amended each time there is a change in classifications of licensees and/or certificands. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to make the rules easier for the public to follow. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.465.33. Sexual Intimacies and Sexual Harassment. (a) Applicability of Rule. This rule applies to any person subject to the rules and regulations of the Texas State Board of Examiners of Psychologists including certificands, licensees
                                                                            [licensed psychologists, certified psychologists, psychological associates], supervisees of a psychologist, and/or applicants for certification or licensure. Acts described in this rule constitute unprofessional conduct. (b)-(f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516628 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 Chapter 471. Renewals 22 TAC sec.471.1 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.471.1, concerning Notification of Renewal. The amendment is being proposed in order to simplify the wording of the rule so that the rule does not have to be amended each time there is a change in classifications of licensees and/or certificands. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to make the rules easier for the public to follow. There will be no effect on small businesses. There will be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.471.1. Notification of Renewal. All certificates and licenses issued by the Board shall be subject to annual renewal. Annual renewals are due on the last day of each persons's birth month. Persons whose certification or licensure
                                                                              [psychologists' certification, licensure, specialty certification, or psychological associate licensure] is about to expire shall be notified once by regular mail at least 30 days before the last day of their birth month each year and shall be notified by certified mail if they fail to renew by the last day of their birth month. The second notice will not be mailed prior to the last day of their birth month. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516629 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 Chapter 473. Fees 22 TAC sec.473.1 The Texas State Board of Examiners of Psychologists proposes an amendment to sec.473.1, concerning Application Fees. The amendment is being proposed in order to reflect changes made in the Psychologists' Certification and Licensing Act by the 74th Legislature. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to clarify the fee for temporary licensure or certification by the Board. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the section as proposed will be in direct proportion to the type of license or certificate for which the person is applying. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The amendment is proposed under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed amendment does not affect other statutes, articles, or codes. sec.473.1. Application Fees. (Not refundable) (a)-(d) (No change.) (e) Temporary
                                                                                [Provisional] License/Certificate $260. (f) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516630 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 305-7700 Part XXXIII. Texas State Board of Examiners of Perfusionists Chapter 761. Perfusionist 22 TAC sec.761.14 The Texas State Board of Examiners of Perfusionists (board) proposes new sec.761.14, concerning licensed perfusionists and provisional licensed perfusionists. The new section establishes continuing education requirements for licensed and provisionally licensed perfusionists. Jo Whittenberg, executive secretary, has determined that for the first five- year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Whittenberg also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to assure the regulation of perfusionists continues to identify competent practitioners and that licensees are increasing their knowledge and abilities through continuing education. There will be no effect on small business. The anticipated economic cost to persons are the fees set out in the body of the rules and the cost for attending continuing education events is estimated at $100-$200. There will be no effect on local employment. Comments on the proposal may be submitted in writing to Jo Whittenberg, Executive Secretary, Texas State Board of Examiners of Perfusionists, 1100 West 49th Street, Austin, Texas 78756-3183, (512) 834-6751. Comments will be accepted for 30 days from the date of publication of this proposal in the Texas Register. The new section is proposed under the Licensed Perfusionists Act, Texas Civil Statutes, Article 4529e, sec.7, which provide the Texas State Board of Examiners of Perfusionists with the authority to adopt rules concerning the regulation and licensure of perfusionists. The new section affects Texas Civil Statutes, Article 4529e. sec.761.14. Continuing Education. (a) Purpose. The purpose of this section is to establish the minimum continuing education (CE) requirements a licensee shall meet to maintain licensure. These requirements are intended to maintain and improve the quality of services to the public by a licensed perfusionist and a provisional licensed perfusionist. (b) Completion of CE requirements with current certification by the American Board of Cardiovascular Perfusion (ABCP) or its successor agency. Completion of continuing education requirements shall be documented by demonstrating current certification by the ABCP upon annual license renewal. (c) Completion of CE requirements without current certification by the ABCP. Licensed perfusionists without current certification by the ABCP at the time of license renewal must meet the following criteria. (1) Document a minimum of 150 relicensure points in a three-year period by submitting the professional activity report on the approved form every third year. The activity period covered in the professional activity report is from the date of licensure to the third licensure renewal date and every subsequent third license renewal date. (2) Document a minimum of 40 clinical perfusions in a one-year period by submitting the clinical activity report on the approved form upon annual license renewal. The first clinical activity report from a newly licensed perfusionist is due on the second license renewal date. (3) Relicensure points shall be based upon the following criteria. (A) A relicensure point is equivalent to an ABCP recertification point. All relicensure points shall be approved by the ABCP using their criteria for recertification point assignment. (B) Two relicensure points are equivalent to one contact hour. One contact hour is equivalent to 50 minutes spent in an organized learning experience. This is the unit of measure to be used for all meetings which shall be approved by the ABCP. (C) Points are assigned on a per contact hour basis and programs not approved by the ABCP in advance will receive only 50% of the maximum allowable points. To receive these points, perfusionists must include a copy of the program with their request when filing with the ABCP. The summary of recertification points is listed in the following chart.
                                                                                  Figure: 22 TAC s761.14(c)(3)(C) (D) A minimum of 40 clinical perfusions per year is required for a maximum of 20 relicensure points per year (1/2 point per case). Clinical perfusion is defined as intra-operative cardiopulmonary bypass and cardiopulmonary support procedures. (i) Clinical perfusions performed as an instructor in an accredited program have the same point value (1/2 point per case) as primary perfusions. (ii) Of the 40 cases required each year, a maximum of 15 cases may be performed as either first assistant perfusionist for cardiopulmonary bypass cases, primary perfusionist for ECMO cases, or primary perfusionist for Ventricular Assist or VENO-VENO Bypass for Liver Transplantation procedures. All qualify for 1/4 point per case. (4) Documentation of activities. Licensed perfusionists are responsible for providing documentation of their professional activities. This documentation must be submitted along with the professional activity report. Credit will not be granted for activities that are not documented. The suitable documentation is outlined as follows. (A) Meetings may be documented by copies of registration receipts or name tags that are appropriately labeled. To document content of meetings that do not have prior approval, a copy of the meeting program must be enclosed. (B) Local meetings attendance must be documented by listing topics, dates, time and location of such meetings. (C) Presentations must be documented by copies of the program (or portion thereof) that show the scheduling of presentation. (D) Publications authored must be documented by a complete reference of that paper (list of authors, title of article, name of journal, volume, pages, year). (E) Hospital medical conferences or seminars must be documented by listing the dates, titles, and locations. (F) When submitting documentation, condense name tags or receipts on photocopies and keep the originals for your records. One documentation per meeting is sufficient, provided it is properly labeled. (d) Exceptions. Any deviation from the continuing education requirements will be reviewed on a case-by-case basis by the Board. A request for special consideration shall be submitted in writing a minimum of 60 days prior to expiration of the license. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516722 Shannon E. Ballard Chairman State Board of Examiners of Perfusionists Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 458-7236 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 120. Control of Air Pollution From Hazardous Waste or Solid Waste Management Facilities Subchapter B. Pollution Prevention Requirements: Source Reduction and Waste Minimization 30 TAC sec.sec.120.101-120.103, 120.105-120.110 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Natural Resource Conservation Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes the repeal of sec.sec.120.101-120.103 and sec.sec.120.105-120.110, concerning Definitions, Pollutants and Contaminants, Applicability, Source Reduction and Waste Minimization Plans, Reporting and Recordkeeping Requirements, Exemptions, Enforcement, Compliance Schedules, and Confidentiality. These Subchapter B rules are duplicated in 30 TAC Chapter 335, Subchapter Q, concerning Industrial Solid Waste and Municipal Hazardous Waste. However, the proposed repeals do not affect the existing rules in Subchapter Q. This proposal is the second part of a rules revision project that started in September 1994. The rules revision project identified TNRCC rules and regulations which need clarification for the benefit of the public, appear to be outdated, seem to impose regulatory requirements in excess of their contribution to the commission's mission, or are duplicated, unnecessary, or inconsistent. Subchapter B was developed to satisfy requirements of Senate Bill (SB) 1099, passed by the 72nd Texas State Legislature. This subchapter added sections to implement the statutory requirements of SB 1099, referred to as the Waste Reduction Policy Act of 1991. This subchapter is no longer necessary, as the Texas Air Control Board and the Texas Water Commission merged into one agency September 1, 1993. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period the repeals are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals. Mr. Minick also has determined that for each year of the first five years the repeals are in effect the public benefit anticipated as a result of enforcing the repeals will be in the elimination of rules that are redundant or no longer apply. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeals as proposed. A public hearing on the proposal will be held January 23, 1996, at 10:00 a. m. in Room 254S of TNRCC Building E, located at 12100 North IH-35, Park 35 Technology Center, Austin. The hearing is structured for the receipt of oral or written comments by interested persons. Individuals may present oral statements when called upon in order of registration. Open discussion within the audience will not occur during the hearing; however, a TNRCC staff member will be available to discuss the proposal 30 minutes prior to the hearing and answer questions before and after the hearing. Written comments not presented at the hearing may be submitted to the TNRCC Office of Policy and Regulatory Deveopment in Austin through February 2, 1996. Material received by the TNRCC Office of Policy and Regulatory Development by 4:00 p.m. on that date will be considered by the commission prior to any final action on the proposal. Please mail comments to Lisa Martin, Office of Policy and Regulatory Development, MC 205, P.O. Box 13087, Austin, Texas 78711-3087, and reference Rules Tracking Log Number 95174-120-AI. Please fax comments to (512) 239-4808. Copies of the revision are available from the Air Policy and Regulations Division, located at 12100 North IH-35, Park 35 Technology Center, Building F, Austin, and at all TNRCC regional offices. For further information, please contact Monica Pesek at (512) 239-1971. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. The repeals are proposed under the Texas Health and Safety Code, Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purpose of the TCAA. The proposed repeals implement the Texas Health and Safety Code, sec.382.017, concerning Rules. sec.120.101. Definitions. sec.120.102. Pollutants and Contaminants. sec.120.103. Applicability. sec.120.105. Source Reduction and Waste Minimization Plans. sec.120.106. Reporting and Recordkeeping Requirements. sec.120.107. Exemptions. sec.120.108. Enforcement. sec.120.109. Compliance Schedules. sec.120.110. Confidentiality. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516595 Kevin McCalla Director, Legal Services Division Texas Natural Resource Conservation Commission Proposed date of adoption: March 20, 1996 For further information, please call: (512) 239-1966 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part XV. Texas Low-Level Radioactive Waste Disposal Authority Chapter 449. General Provisions Subchapter F. Above and Belowground Disposal 31 TAC sec.449.71 The Texas Low-Level Radioactive Waste Disposal Authority proposes new sec.449.71, concerning belowground and aboveground disposal of low-level radioactive waste by the authority. The new section defines the two types of waste disposal methods and states the benefits of belowground disposal over aboveground disposal. Tim Schaffner, Director of Finance, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Schaffner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be a better public understanding that the authority's chosen disposal technology-belowground disposal-better protects the public health and environment than aboveground disposal. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Lee H. Mathews, Deputy General Manager and General Counsel, Texas Low-Level Radioactive Waste Disposal Authority, 7701 North Lamar Boulevard, Suite 300, Austin, Texas 78752. The new section is proposed under the Health and Safety Code, sec.402.054, which provides the Texas Low-Level Radioactive Waste Disposal Authority with the authority to adopt rules, standards, and orders necessary to properly carry out the Texas Low-Level Radioactive Waste Disposal Authority Act, and sec.402.225, which requires that a rule concerning aboveground and belowground disposal be adopted. The Texas Low-Level Radioactive Waste Disposal Authority Act, sec.402.225 is affected by the new section. sec.449.71. Above and Belowground Disposal. (a) The Authority has determined that belowground disposal of low-level waste provides greater protection than aboveground disposal for public health and the environment for the period for which the low-level waste will continue to pose a hazard to public health and the environment, based on the following considerations: (1) reduced radiation doses from belowground disposal to: (A) intruders; (B) an adjacent property; and (C) workers; and (2) decreased vulnerability of belowground disposal to: (A) high velocity transport mechanisms such as wind and rain; (B) long-term degradation; (C) seismic events; and (D) abovegrade accidents. (b) In this section, (1) "aboveground disposal" means the emplacement of low-level radioactive waste in engineered containment structures which are located above natural grade of the land surface which are not covered with earthen material; and (2) "belowground disposal" means the emplacement of low-level radioactive waste in engineered containment structures which are located below natural grade of the land surface. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516601 Lee H. Mathews Deputy General Manager and General Counsel Texas Low-Level Radioactive Waste Disposal Authority Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 451-5292 Subchapter G. Historically Underutilized Businesses Program 31 TAC sec.sec.449.81-449.87 The Texas Low-Level Radioactive Waste Disposal Authority proposes new sec.sec.449.81-449.87, concerning the use of historically underutilized businesses (HUBs) by the authority. The new sections define types of businesses which are determined to be historically underutilized, sets annual contract procurement goal for employing HUBs, specifies good faith criteria for employing HUBs, and requires annual compliance reporting. Tim Schaffner, Director of Finance, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Schaffner also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to promote public understanding of authority efforts to utilize HUBs and to increase the number of HUBs that contract and subcontract with the authority. The only anticipated economic cost to persons and small businesses who are required to comply with the subchapter as proposed is the cost of acquiring a commodities booklet (estimated at about $20 per copy) for everyone that is a certified HUB. Comments on the proposal may be submitted to Lee H. Mathews, Deputy General Manager and General Counsel, Texas Low-Level Radioactive Waste Disposal Authority, 7701 North Lamar Boulevard, Suite 300, Austin, Texas 78752. The new sections are proposed under the Health and Safety Code, sec.402.054, which provides the Texas Low-Level Radioactive Waste Disposal Authority with the authority to adopt rules, standards, and orders necessary to properly carry out the Texas Low-Level Radioactive Waste Disposal Authority Act, and the 1995 General Appropriations Act (74th Legislature), section III, which requires agencies to adopt HUB rules. The Texas Health and Safety Code, sec.402.054 are affected by the new sections. sec.449.81. Policy and Goal. It is the policy of the authority to encourage the use of historically underutilized businesses by the authority and to achieve this policy through race, ethnic, and gender neutral means. The goal of this program is to promote full and equal business opportunity for all businesses that may contract with the authority. sec.449.82. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Authority or Agency-The Texas Low-Level Radioactive Waste Disposal Authority. Commission-The Texas General Services Commission. Commoditis-Materials, supplies, or equipment. Contractor-A supplier of commodities or services to the authority under a purchase order contract or other contract. Directory-The Texas Certified Historically Underutilized Business Directory published by the commission. Disparity study -The State of Texas Disparity Study, performed by the National Economic Research Associates, Inc. Historically Underutilized Business (HUB)-A business outlined in subparagraphs (C)-(H) in which the owner(s): (A) have a proportionate interest and demonstrate active participation in the control, operation, and management of the business's affairs; and (B) have been socially disadvantaged because of their identification as members of the following groups: (i) which includes persons having origins in any of the Black racial groups of Africa; (ii) Hispanic Americans-which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (iii) American Women which includes all women of any ethnicity except those specified in clauses (i), (ii), (iv), and (v) of this subparagraph; (iv) Asian Pacific Americans which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, Guam, the U.S. Trust Territories of the Pacific, the Northern Marianas, and Subcontinent Asian Americans which includes persons whose origins are from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, or Nepal; and (v) Native Americans which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians; and (C) a corporation formed for the purpose of making a profit in which at least 51% of all classes of the shares of stock or other equitable securities are owned by one or more persons described by subparagraphs (A) and (B) of this section; or (D) a sole proprietorship created for the purpose of making a profit that is 100% owned, operated, and controlled by a person described by subparagraphs (A) and (B) of this section; or (E) a partnership formed for the purpose of making a profit in which 51% of the assets and interest in the partnership is owned by one or more persons who are described by subparagraphs (A) and (B) of this section; or (F) a joint venture in which each entity in the joint venture is an historically underutilized business under this subdivision; or (G) a supplier contract between an historically underutilized business under this subdivision and a prime contractor under which the historically underutilized business is directly involved in the manufacture or distribution of the supplies or materials or otherwise warehouses and ships the supplies; or (H) a business other than described in subparagraphs (D), (F), and (G) of this section, which is formed for the purpose of making a profit and is otherwise a legally recognized business organization under the laws of the State of Texas, provided that at least 51% of the assets and interest and 51% of any classes of stock and equitable securities are owned by one or more persons described by subparagraphs (A) and (B) of this section. Other services -All services other than construction and professional services, including consulting services subject to Texas Government Code, Chapter 2254, Subchapter B. Person-U.S. citizen, born or naturalized. Professional services -Services of accountants, architects, engineers, land surveyors, and physicians that must be purchased by state agencies under Texas Government Code, Chapter 2254, Subchapter A. Subcontractor-A supplier of commodities or services to a contractor. Subcontractor Funds -Payments made to certified historically underutilized businesses by a contractor or supplier under contract with the authority. sec.449.83. Annual Procurement Utilization Goals. (a) The authority shall make a good faith effort to utilize HUBs in contracts for construction, services, including professional and consulting services, and commodities purchases. The authority may achieve the annual program goals set out in subsection (b) of this section by contracting directly with HUBs or indirectly through subcontracting opportunities. (b) The authority shall make a good faith effort to assist HUBs in receiving a portion of the total contract value of all contracts that the agency expects to award in a fiscal year in accordance with the following percentages: (1) 11.9% for heavy construction other than building contracts; (2) 26.1% for all other building construction, including general contractors and operative builders contracts; (3) 57.2% for all special trade construction contracts; (4) 20% for professional services contracts; (5) 33% for all other services contracts; and (6) 12.6% for commodities contracts. (c) The authority shall make a good faith effort to meet or exceed the goals outlined in subsection (b) of this section. The percentage goals established in subsection (b) are overall annual program goals applicable to the total annual dollar amount of the authority's contracts for each of the specific types of contracts. It may not be practicable to apply these goals to each contract. For each contract, the authority may set higher or lower program goals than those outlined in subsection (b) of this section. The authority may consider HUB availability, HUB utilization, geographical location of the project, the contractual scope of work or other relevant factors. By implementing the following procedures, the authority shall be presumed to have made a good faith effort: (1) prepare and distribute information on procurement procedures in a manner that encourages participation in authority contracts by all businesses; (2) divide proposed requisitions into reasonable lots in keeping with industry standards and competitive bid requirements; (3) assess bond and insurance requirements and design such requirements to reasonably permit more than one business to perform the work; (4) specify reasonable, realistic delivery schedules consistent with the authority's actual requirements; (5) ensure that specifications, terms, and conditions reflect the authority's actual requirements, are clearly stated and do not impose unreasonable or unnecessary contract requirements; (6) provide contractors with referenced list of certified HUBs for subcontracting; (7) determine whether specific program goals are appropriate under the Disparity Study because some HUB groups have not been underutilized within applicable contracting categories and should not be included in the HUB goals for that category. (d) The authority may also demonstrate good faith under this section by including with the report required in sec.449.86(b) of this title (relating to Reporting Requirements) a supplemental letter with documentation as prescribed by the commission: (1) identifying the percentage of contracts awarded to women and/or minority owned businesses that are not certified as HUBs; (2) demonstrating that a different goal from that identified in subsection (b) of this section was appropriate given the authority's mix of purchases; (3) demonstrating that a different goal was appropriate given the particular qualifications required by the authority for its contracts; or (4) demonstrating that a different goal was appropriate given that graduated HUBs as defined in commission rules, 1 TAC sec.111.23, cannot be counted toward the goal. sec.449.84. Subcontracts. (a) The authority's bid and contract documents for construction, professional services, other services, and commodities exceeding $100,000 shall include HUB subcontracting good faith effort and goals as established in sec.449.83 of this title (relating to Annual Procurement Utilization Goals). Therefore, a contractor must make a good faith effort to award necessary subcontracts to HUBs in accordance with the goals set forth in sec.449.83(b) of this title. When the contractor is a HUB, it must satisfy the good faith effort requirements by performing at least 25% of the contract work with its employees as defined by the Internal Revenue Service. The HUB prime contractor may subcontract the remaining 75% of the contact with HUB or non HUB subcontractors. Any contractor that seeks to satisfy the good faith effort requirement in this manner shall report quarterly to the authority, in the form required by the agency, the volume of work performed under the contract and the portion of the work that was performed with its employees. If a HUB contractor performs less than 25% of the cumulative total contract with its employees, then for the next quarter, the contractor shall report its subcontractors as required by a HUB contractor. (b) A potential contractor shall state whether it is a Texas certified HUB and whether one or more subcontractors will be used to perform the contract. The contractor shall submit a copy of the notice described in subsection (c)(2) of this section with its offer, and shall submit a statement within seven working days following its offer that specifies the expected percentage of work, if any, to be subcontracted. (c) By implementing the following procedures, a contractor shall be presumed to have made a good faith effort: (1) To the extent consistent with prudent industry practice, divide the contract work into reasonable lots. (2) Notify HUBs of the work that the contractor intends to subcontract. The notice shall be in writing. The notice shall include a description of the subcontracting opportunities and identify the location to review contract specifications. The notice shall be provided to potential subcontractors prior to submission of the contractor's bid. (3) The contractor shall send the notice described in subsection (c)(2) of this section to at least five businesses in the current directory that perform the type of work required in the area in which the work will be performed. (4) If a non HUB subcontractor is selected through means other than competitive bidding, or a HUB bid is the lowest price responsive bidder to a competitive bid, but is not selected, the contractor shall document the selection process. (5) The contractor shall maintain business records documenting its compliance with this section and shall make, in the format required by the authority's contract documents, a compliance report to the authority provided that reporting shall be required at least once for each calendar quarter during the term of the contract. (6) If the contract is a state lease contract, the contractor or lessor shall comply with the requirements of this section from and after the occupancy date provided in the lease, or such other time as may be specified in the invitation for bid for the lease contract. (d) If the directory does not include at least five businesses, the contractor shall send the notice to HUBs on lists of minority and women owned businesses maintained by other government agencies or organizations. If a contractor uses a source other than the directory, the selected HUB subcontractor must become certified by the commission in accordance with its procedures. (e) A contractor must comply with this section as a condition of awarding any contract. (f) In showing that a good faith effort has been made, the contractor shall, within 14 days following selection, but prior to award of the contract, demonstrate that the contractor: (1) provided written notices to at least five qualified HUBs or the contractor advertised in general circulation, trade association, and/or minority/women focus media concerning subcontracting opportunities; (2) provided written notice to at least five qualified HUBs allowing sufficient time for HUBs to participate effectively; (3) divided the contract work into reasonable portions in accordance with standard industry practices; (4) documented reasons for rejection or met with the rejected HUB to discuss the rejection; (5) provided qualified HUBs with adequate information about bonding, insurance, the plans, the specifications, scope of work and requirements of the contract; and (6) negotiated in good faith with qualified HUBs, not rejecting qualified HUBs who are also the lowest responsive bidder. (g) Contractors are encouraged to use the services of available minority and women; community organizations contractor groups; local, state, and federal business assistance offices; and other organizations that provide support services to HUBs. (h) The authority shall review the information provided in subsection (f) of this section and issue a written notice to the contractor of acceptance or deficiency of a good faith effort within 14 days of the agency's receipt. The notice of deficiency shall state the reasons for the deficiency. sec.449.85. Agency Planning Responsibilities. (a) The authority's strategic plan shall include a plan for increasing the use of HUBs in purchasing and construction contracting. (b) The authority adopts the requirements of sec. s449.81-449.84 of this title (relating to Policy and Goal, Definitions, Annual Procurement Utilization Goals, and Subcontracts) as part of its plan. sec.449.86. Reporting Requirements. (a) The authority shall continuously maintain, and compile monthly, information relating to the agency's use, and the use by each operating division of the agency, of historically underutilized businesses, including information regarding subcontractors. (b) The authority shall report to the commission, not later than March 15 of each year regarding the previous six month period and on September 15 of each year regarding the preceding fiscal year: (1) the total payments made by the authority for the purchase of goods, services, and construction; (2) the total dollar amount of payments for HUB contracts and subcontracts for goods, services, and construction; and (3) additional information requested by the commission. (c) On a quarterly basis, a contractor to whom the authority has awarded a contract shall report to the agency the identity and the amount paid to each HUB to whom the contractor has awarded a subcontract for the purchase of supplies, materials, and equipment. Contractors must document progress payments made to subcontractors, professional consultants or suppliers certified as HUBs by submitting invoices to the authority. sec.449.87. Use of the Directory. The authority shall use the directory to solicit bids from certified HUBs for state purchasing and construction contracts. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 20, 1995. TRD-9516602 Lee H. Mathews Deputy General Manager and General Counsel Texas Low-Level Radioactive Waste Disposal Authority Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 451-5292 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 13. Title IV-A Emergency Assistance Program Program Requirements 40 TAC sec.13.105, sec.13.110 The Texas Department of Human Services (DHS) proposes amendments to sec.13. 105 and sec.13.110, regarding eligibility and service provision in its Title IV- A Emergency Assistance Program rule chapter. The program is currently operated through interagency agreement with DHS and the Texas Department of Protective and Regulatory Services (TDPRS). The purpose of the amendments is to incorporate Services to Truants and Runaways (STAR) Program. This prevention program serves children and youths at risk who have run away from home, have been truant from school, have been involved in family conflict, or have allegedly committed offenses. This program will be implemented January 1, 1996. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed sections will be in effect there will be fiscal implications as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections will be in effect is an estimated additional cost of $1,223,097 in fiscal year (FY) 1996; $2,600,447 in FY 1997; $2,600,447 in FY 1998; $2,600,447 in FY 1999; and $2,600,447 in FY 2000. There will be no effect on local government as a result of enforcing or administering the sections. Mr. Raiford also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that the rules regarding the Title IV-A Emergency Assistance Program to families with children for both agencies will be consistent. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Rita King at (512) 438-4148 in DHS's Client Self-support Services Department. Comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy Services-118, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendments are proposed under the Human Resources Code, Title 2, Chapters 22 and 34, which provides the department with the authority to administer public assistance and emergency relief programs. The amendments implement the Human Resources Code sec.22.002 and sec.34.001. sec.13.105. Eligibility. (a) A Texas Department of Protective and Regulatory Services (TDPRS) or its authorized designee
                                                                                    [caseworker] determines presumptive eligibility of a child and/or his family for Title IV-A Emergency Services if all of the following criteria are met: (1) (No change.) (2) The family applies for care and services available in emergency situations, or [a] TDPRS or its authorized designee
                                                                                      [caseworker] applies on behalf of a child whose parents are unavailable or unwilling to apply. (3)-(5) (No change.) (b) An emergency exists when TDPRS: (1)-(2) (No change.) (3) determines that a child formerly in its care is at risk of being returned to that care, or
                                                                                        [.] (4) determines a child or youth is at risk who is: (A) between the ages of seven and 17 years inclusively who: (i) has run away from home; or (ii) has been truant from school; or (iii) has been involved in family conflict; (B) between the ages ten and 16 years and has allegedly committed a misdemeanor or state jail felony offense, but has not been adjudicated; or (C) between the ages of seven and nine years and who is alleged to have committed a delinquent offense. (c) (No change.) sec.13.110. Service Provision.
                                                                                          The Texas Department of Protective and Regulatory Services (TDPRS) provides services to an eligible child and/or his family under the Title IV-A Emergency Assistance Program as determined necessary and appropriate and as authorized by TDPRS. Service provision is limited to a period not exceeding 12
                                                                                            [six] months in any 12-month period for each family. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516699 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 438-3765 Part IV. Texas Commission for the Blind Chapter 169. Blind and Visually Impaired Children's Program The Texas Commission for the Blind proposes the repeal of sec.sec.169.1-169. 15 and simultaneously proposes new ssec.169.1-169.5, 169.10-169.16, 169.25-169. 34, 169.40, 169.50-169.52, and 169.60-169.63, concerning services for blind and visually impaired children. The purpose of the repeal is to continue the agency's recodification efforts in bringing all agency rules into consistent form and language. The purposes of the new sections are to better organize the agency's procedures for receiving services from the program, to institute an order of selection for services in times of limited funding, and to explain case management reimbursement charges allowed under Public Law 100-203, sec.4118(i), the Omnibus Budget Reconciliation Act of 1987. The new sections will serve as the agency's policies and procedures for administering the Blind and Visually Impaired Children's Program and include what is required of persons seeking and receiving services from the commission. Pat D. Westbrook, Executive Director, has determined that for the first five years the rules are in effect there will be no fiscal implications on local government as a result of enforcing or administering the sections. As the authorized provider of case management for children who are blind and visually impaired in Texas, the Commission is authorized to bill Medicaid for certain services allowed under the chapter. Therefore, as a result of administering Subchapter F, relating to case management services, the agency expects to recoup a portion of the state's funds expended for case management. The amount will fluctuate each year according to the total number of children being served in the children's program who are receiving Medicaid benefits and the total number of qualifying services. Ms. Westbrook also has determined that for each year of the first five years the rules as proposed are in effect the public benefits anticipated as a result of enforcing the rules will be comprehensive procedures for applying for and receiving services. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with Subchapter F, relating to case management reimbursement charges, is anticipated to be neglible. Most children served by this program fall within the economic guidelines for reduced case management fees or no fees. Questions about the content of this proposal may be directed to Jean Wakefield at (512) 459-2611, and written comments on the proposal may be submitted to Policy and Rules Coordinator, P.O. Box 12866, Austin, Texas 78711, within 30 days from the date of this publication. 40 TAC sec.sec.169.1-169.15 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Commission for the Blind or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed 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. The repeals affect Human Resources Code, Title 5, Chapter 91, sec.91.028, Services for Visually Handicapped Children. sec.169.1. General Scope. sec.169.2. Public Access to internal Procedural Documents. sec.169.3. Definitions. sec.169.4. Eligibility for Services. sec.169.5. Economic Need. sec.169.6. Services Not Requiring Application of Economic Need Criteria. sec.169.7. Prior Authorization of Services. sec.169.8. Transportation Services. sec.169.9. Purchase of Nonmedical Diagnostic Evaluations. sec.169.10. Eye Treatment Services. sec.169.11. In-Patient Care. sec.169.12. Counseling, Guidance, and Follow-Up Services. sec.169.13. Skills Development Services. sec.169.14. Educational Support Services. sec.169.15. The Individualized Written Service Program (IWSP). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516603 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 Subchapter A. General Information 40 TAC sec.sec.169.1-169.5 The new sections are proposed 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. The new sections affect Human Resources Code, Title 5, Chapter 91, sec.91. 028, Services for Visually Handicapped Children. sec.169.1. Purpose and Legal Authority. The Blind and Visually Impaired Children's Program is established to implement Human Resources Code, Chapter 91, sec.91.028 (relating to Services for Visually Handicapped Children). The purpose of the program is to provide children who are blind and children who have visual impairments with habilitative services. Services are supplemental to those services for children provided by regularly established educational agencies and other state authorities. sec.169.2. Public Access to Information, Forms and Documents. Copies of agency forms and documents used in the administration of the Blind and Visually Impaired Children's Program are available for public viewing at any agency office, including the central office, 4800 North Lamar Boulevard, Austin, Texas, between 8:00 a.m. and 5:00 p.m. on work days. A person may call toll-free (800) 252-5204 work days to request a copy or to seek information about the program. sec.169.3. Remedy of Dissatisfaction. In the event there is dissatisfaction with services received or denial of services under this chapter, a family may seek a remedy under the provisions of sec.159.21 of this title (relating to Appeals Process, Reviews and Hearings). sec.169.4. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. The use of the singular or plural case is not meant to be limiting unless the context clearly indicates otherwise. Authorization-Written approval to authorize a service provider to perform or provide a certain service. Blind-Best corrected visual acuity of 20/200 or less in the better eye, or a visual loss that results in a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees, which means a field of no greater than 20 degrees in the better eye. BVIC Program-Blind and Visually Impaired Children's Program. Caseworker-An employee of the Commission designated to provide BVIC Program services. Commission-The Texas Commission for the Blind. Comparable services and benefits-Services and benefits available to a child that are paid for or provided, in whole or in part, by other federal, state, or local public agencies, health insurance, employee benefits, family resources, or donations. Eligible Child -A child who has met eligibility criteria and for whom a plan of services is being or has been developed. Family-Except as provided in Subchapter D of this chapter (relating to Economic Need) and Subchapter E of this chapter (relating to Order of Selection for Payment of Services), includes the child and the child's parents, foster parents, or legal guardians, as appropriate. Used to indicate that the child is considered a part of a family unit for purposes of administering the program. Federal poverty level-The amount of income, depending on family size, that the United States Department of Health and Human Services determines to be the level of income below which a family is classified as being in poverty. Habilitation services -Services that assist a child who has a visual impairment to achieve financial self-sufficiency, the potential for independent living, and a fuller and richer life; used interchangeably with rehabilitative services. Parent-A child's natural or adoptive parent or the spouse of a natural or adoptive parent. Referral-A child who has been referred to the BVIC Program for services but for whom an application has not been completed. Rehabilitation services -Services that assist a child who has a visual impairment to achieve financial self-sufficiency, the potential for independent living, and a fuller and richer life; used interchangeably with habilitative services. Severely visually impaired-Best corrected visual acuity of between 20/70 and 20/200 in both eyes, or a visual loss such that the visual field is 30 degrees or less but greater than 20 degrees with best correction. Visual impairment -An injury, disease, or other disorder that materially reduces, or if not treated will probably result in materially reducing, visual functioning. Visually impaired (a child who is)-A child whose visual acuity in one eye meets the definition of blind or severely visually impaired and whose visual acuity in the other eye with best correction is better than 20/70, or a child whose visual acuity in both eyes with best correction is better than 20/70. sec.169.5. Comparable Services and Benefits. (a) The Commission shall give full consideration of comparable services and benefits prior to expending Commission funds for all BVIC Program services. (b) Families are required to apply for assistance from other state or federal agencies and provide such information as may be necessary to receive assistance. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516604 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 Subchapter B. Basic Program Requirements 40 TAC sec.sec.169.10-169.16 The new sections are proposed 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. The new sections affect Human Resources Code, Title 5, Chapter 91, sec.91. 028, Services for Visually Handicapped Children. sec.169.10. Referral and Application. (a) A child may be referred to the BVIC Program by letter, telephone, direct contact, or by another means by providing a name and address to any Commission office. (b) A child may be referred by the Commission to another Commission program if necessary to better meet the child's needs. (c) A child is considered an applicant for BVIC Program services on the day the Commission receives a properly completed application form signed by the child's parent or guardian. sec.169.11. Eligibility. (a) The Commission is solely responsible for determining the eligibility of an applicant for services under this chapter. (b) To be determined eligible, an applicant must reside in Texas, be under the age of 18, and have a visual impairment as defined in sec.169.4 of this title (relating to Definitions). (c) The Commission determines eligibility without regard to sex, race, creed, color, national origin, or duration of residence in Texas. sec.169.12. Prior Authorization of Services. The Commission shall not pay for any service not authorized in advance by the caseworker. sec.169.13. Plan of Services. The Commission shall document all phases of an eligible child's rehabilitation process in a plan of services. Included on the plan are specific services, family responsibilities, caseworker responsibilities, and other information as deemed necessary by the Commission. sec.169.14. Case Closures. (a) The Commission shall close a case when the child's plan of services has been completed, or sooner if: (1) the child has moved out of the state; (2) the child cannot be located; (3) the child has died; (4) the parents or guardians refuse to cooperate with the Commission; or (5) the child's case is transferred to another program of the Commission. (b) The Commission shall inform the child's parents or guardians prior to closing a child's case by sending a letter to their last known address. sec.169.15. Reopening Closed Cases. The Commission will not reopen closed cases for the sole purpose of providing routine eye exams, glasses, and treatment such as drops for glaucoma, conjunctivitis, etc., unless the caseworker suspects that a child's vision is threatened due to medical neglect or abuse. sec.169.16. Reports of Suspected Neglect or Abuse.
                                                                                              In compliance with state laws governing such reports, the Commission shall report instances in which the agency suspects a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516605 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 Subchapter C. Scope of Services 40 TAC sec.sec.169.25-169.34 The new sections are proposed 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. The new sections affect Human Resources Code, Title 5, Chapter 91, sec.91. 028, Services for Visually Handicapped Children. sec.169.25. Initial Diagnostic Study to Determine Eligibility. (a) Subject to application of Subchapter E (relating to Order of Selection for Payment of Services), all applicants shall participate in an initial diagnostic study for the purpose of helping to determine eligibility, the nature and scope of needed services, or ineligibility. The study includes an evaluation of pertinent medical, psychological, social, educational, and other factors that bear upon the child's functioning. (b) The Commission requires an applicant to submit a copy of a recent eye examination completed by an ophthalmologist or an optometrist. In the event a recent eye examination does not exist, the Commission will purchase one, subject to application of Subchapter D of this chapter (relating to Economic Need) and Subchapter E (relating to Order of Selection for Payment of Services). (c) The Commission may pay for a second opinion eye exam after application of Subchapter D of this chapter (relating to Economic Need), if the second opinion has been: (1) requested by the family because of dissatisfaction with the results of the previous eye exam; (2) recommended by the attending eye specialist or medical consultant; or (3) judged by the caseworker to be in the child's best interests. (d) Payment for subsequent opinions is the family's responsibility unless determined by the caseworker to be in the child's best interests. sec.169.26. Eye Specialty Examinations. (a) The Commission may purchase eye specialty examinations for an eligible child when recommended by the examining ophthalmologist or the local medical consultant to obtain a more definitive diagnosis of the child's eye condition. (b) Services in this section are subject to Subchapter D of this chapter (relating to Economic Need), Subchapter E of this chapter (relating to Order of Selection for Payment of Services) and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). sec.169.27. Physical Examinations and Other Medical Specialty Examinations. (a) The Commission may purchase physical examinations and other necessary medical specialty examinations for an eligible child when recommended by an ophthalmologist, or in the case of physical examinations, when the caseworker has reason to believe that the child may have a health problem. (b) Services in this section are subject to Subchapter D of this chapter (relating to Economic Need), with the exception of purchasing copies of existing medical records, Subchapter E of this chapter (relating to Order of Selection for Payment of Services), and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). sec.169.28. Other Diagnostics/Evaluations. (a) Diagnostics and evaluations not covered in sec.169.26 and sec.169.27 are purchased only for eligible children who are permanently severely visually impaired. Examples of diagnostics and evaluations included in this section include: (1) Audiological; (2) Psychological; (3) Low vision; (4) Orientation and mobility; (5) Occupational therapy; (6) Vocational; (7) Neuropsychological; (8) Physical therapy; (9) Speech; and (10) Language. (b) Payment for examinations recommended by the public school for a child's academic program is the responsibility of the school unless the school provides to the Commission a written explanation of the circumstances that preclude the school from paying for the examinations. (c) Services included in this section are purchased without regard to economic need of the family but are subject to Subchapter E of this chapter (relating to Order of Selection for Payment of Services) and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). sec.169.29. Eye Treatment Services. (a) Eye treatment services are provided to eliminate or reduce limitations imposed by a visual impairment on the functioning of an eligible child. (b) Eye treatment services do not include routine eye exams, treatments such as drops for glaucoma and conjunctivitis, or glasses or lenses for children whose only eye problem is a refractive error in which the uncorrected visual acuity is 20/70 or better in both eyes. (c) Eye treatment services are subject to application of Subchapter D of this chapter (relating to Economic Need), Subchapter E of this chapter (relating to Order of Selection for Payment of Services), and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). (d) Eye treatment services must be based on the written recommendation of an ophthalmologist or optometrist. (e) Only one pair of replacement glasses or contact lenses will be purchased per year for a child receiving eye treatment services unless there is a .5 or greater diopter change in either prescribed lens. sec.169.30. Transportation Services. (a) Transportation services are limited to necessary travel fares or costs in connection with transporting an eligible child so that the child may receive habilitation services included in the child's service plan. (b) Transportation associated with a child's receiving restoration services is subject to application of Subchapter D of this chapter (relating to Economic Need), Subchapter E of this chapter (relating to Order of Selection for Payment of Services), and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). (c) Transportation associated with all other services is subject to application of Subchapter F of this chapter (relating to Case Management Reimbursement Charges). (d) Reimbursement for transportation costs shall be at the rate applicable to state employees at the time of travel. In the event commercial transportation is used for the purposes allowed under this chapter, services are limited to the expenses of the child and one travel companion. (e) To receive reimbursement for transportation expenses, a family is required to submit certain receipts and information as may be prescribed by the Commission. sec.169.31. Maintenance. (a) Maintenance may be provided to cover lodging and food in connection with transportation services in order for an eligible child to receive rehabilitation services. (b) Maintenance is subject to application of Subchapter D of this chapter (relating to Economic Need), Subchapter E of this chapter (relating to Order of Selection for Payment of Services), and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). (c) Payment for food and lodging is limited to the actual expenses incurred by the child and one travel companion, but may not exceed the state per diem rate in effect at the time of travel. sec.169.32. Skills Development Services and Purchase of Equipment. (a) Skills development services are those services that will enhance the functioning of an eligible child in a noneducational setting. Examples are physical therapy, speech or hearing therapy, low vision aids, and developmental toys. (b) Skills development services are purchased by the Commission only for eligible children who are permanently severely visually impaired. (c) The purchase of skills development equipment that costs more than $500 is based on economic need. (d) Technological equipment for skills development is sometimes available for loan to an eligible child. Issuance is dependent upon the severity of the child's visual functioning, family income, support available for use of the equipment, and the child's need for the equipment to achieve a higher level of functioning. To request loaner equipment, the family must agree, at a minimum, to: (1) keep the equipment in good working condition at their own expense; (2) immediately notify the Commission of any change of location or loss by fire or theft; (3) insure the equipment against damage or loss if required by the Commission; and (4) return the equipment within 30 days when the child's case is closed, if the equipment is no longer needed or being used by the child, or the support available to the child for use of the equipment is significantly reduced. (e) This section is subject to Subchapter D of this chapter (relating to Economic Need), Subchapter E of this chapter (relating to Order of Selection for Payment of Services), and Subchapter F of this chapter (relating to Case Management Reimbursement Charges). sec.169.33. Counseling, Guidance, and Follow-Up Services.
                                                                                                Counseling, guidance, and follow-up services by caseworkers are available to all eligible children. sec.169.34. Educational Support Services. (a) Educational support services are those services supportive of a child's educational program or for assisting a permanently severely visually impaired child to find the most appropriate educational placement. (b) Educational support services are available without regard to economic need. However, Subchapter E of this chapter (relating to Order of Selection for Payment of Services) and Subchapter F of this chapter (relating to Case Management Reimbursement Charges) apply. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516606 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 Subchapter D. Economic Need 40 TAC sec.169.40 The new section is proposed 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. The new section affects Human Resources Code, Title 5, Chapter 91, sec.91. 028, Services for Visually Handicapped Children. sec.169.40. Determination. (a) Economic need of the family is determined before the Commission authorizes the purchase of certain services listed in Subchapter C (relating to Scope of Services). (b) For the purposes of this section, a foster child is considered as a one member family with no income. (c) For the purposes of this section, a family includes the child, the child's parent or legal guardian and all persons residing in the household for whom the parent or legal guardian have legal and/or financial responsibility. (d) Economic need is determined by the size and adjusted net monthly income of the family, relative to a certain percentage of the federal poverty level. The percentage of the federal poverty level at which the agency is operating is dependent on the funds available to the Commission for BVIC Program services and is available by calling any Commission office and requesting the information. Families with net monthly income below the defined level will be considered as having economic need. (e) Monthly income is any compensation available to the child and the child's family, which includes, but is not limited to, the following: (1) net monthly wages or salary, defined as the pay of a person after deductions for income tax, social security tax, one qualified retirement program, health insurance premiums, and trade or professional dues and assessments. (2) contributions from relatives, individuals, or organizations received on a regular basis; (3) child support payments; (4) net rentals from property; (5) scholarships/fellowships; (6) public assistance payments (including SSI and AFDC); (7) assistance from private welfare agencies; (8) income from stock dividends and bond interest; (9) any available pension, annuity, compensation, or insurance, including SSDI, health/hospitalization insurance plans, Worker's Compensation, veteran's benefits, Old Age and Survivors Insurance (OASI) from the Social Security Administration, labor union insurance and/or health and welfare benefits, and unemployment compensation; (10) participation in savings plans and deductions for savings bonds; (11) income from self-employment, which is defined as gross receipts, minus allowable Internal Revenue Service expenses, from one's own business that results in income. Gross receipts include the value of all goods sold and services rendered. Expenses include cost of goods purchased, rent, utilities, wages and salaries paid; and business taxes (not personal income taxes or self- employment social security taxes); and (12) any other amounts generally recognized as income. (f) The monthly costs of the following are deducted from the monthly income prior to establishing net monthly income: (1) prescribed diets and medications used by the child or family members, (2) obligations imposed by a court order, and (3) medical costs and debts resulting from a permanent disability or chronic illness of the child or family member. (g) Monthly income is determined at application for services and is based on the preceding month. Income data is updated at least annually, or when family size or employment changes, or in other circumstances as may be deemed appropriate by the caseworker. (h) If the preceding month's income does not accurately reflect the family's economic status, e.g., a recent job loss or employment after a long period of unemployment, the average monthly income of the preceding 12 months may be used. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516607 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 Subchapter E. Order of Selection for Payment of Services 40 TAC sec.sec.169.50-169.52 The new sections are proposed 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. The new sections affect Human Resources Code, Title 5, Chapter 91, sec.91. 028, Services for Visually Handicapped Children. sec.169.50. Defined Purpose. (a) The purpose of this subchapter is to establish an order of selection for payment of services. The order of selection is the priority assigned to categories of visual impairment for payment of services to assure that blind and severely visually impaired children receive as many services as possible during periods of limited funding. (b) The order of selection and priority levels for the expenditure of funds are established by the Commission's executive director and are approved by the Commission's governing board based on the amount of funds available for purchase of services. sec.169.51. Application of Order of Selection. (a) The order of selection is applied after eligibility for services is determined. (b) A service that can be paid from resources other than the Commission's may be provided to a child regardless of the order of selection. sec.169.52. Order of Selection Expenditure Categories. (a) Order of Selection expenditure categories, from most restrictive to least restrictive, are: (1) Category A-No expenditure of case service funds. (2) Category B-Expenditure of case service funds only for diagnostics. (3) Category C-Expenditure of case service funds authorized for any planned, necessary BVIC Program services according to the following disability categories: (A) Priority 1-Children who meet the definition of blind, or children who have been determined functionally blind by an ophthalmologist or optometrist. (B) Priority 2-Children who meet the definition of blind in one eye and the definition of severely visually impaired in the other eye. (C) Priority 3-Children who meet the definition of severely visually impaired. (D) Priority 4-Children who have an uncorrected visual acuity of 20/200 in the better eye; children who have a visual impairment resulting in a degenerative eye condition; or children who need prosthesis and care; (E) Priority 5-Children with treatable visual impairments that affect visual acuity and who are in need of services other than correction of refractive error; or children who are visually impaired; or children whose visual acuity is better than 20/70 in both eyes and who are certified as visually impaired by the local education agency. (F) Priority 6-Children with treatable visual impairments that may or may not affect visual acuity; or children with an uncorrected visual acuity of 20/70 or worse in both eyes who need no other services other than correction of refractive error. (b) The expenditure category at which the Commission is operating is available by contacting any Commission office or the information may be obtained in accordance with sec.169.3 of this title (relating to Public Access to Forms and Documents). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516608 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 Subchapter F. Case Management Reimbursement Charges 40 TAC sec.sec.169.60-169.63 The new sections are proposed 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. The new sections affect Human Resources Code, Title 5, Chapter 91, sec.91. 028, Services for Visually Handicapped Children. sec.169.60. Legal Basis and Policy. Public Law 100-203, sec.4118(i), the Omnibus Budget Reconciliation Act of 1987, has been invoked by the Texas Department of Health, which limits the provider of case management for children who are blind and visually impaired in Texas to the Texas Commission for the Blind; therefore, it is the policy of the Commission to seek reimbursement for case management services provided to eligible children under this chapter. sec.169.61. Scope of Subchapter. Case management contacts on the behalf of all eligible children under 16 are subject to this subchapter, regardless of the family's ability to pay. sec.169.62. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Allowable costs -Expenses relating to case management services that are reasonable and necessary in the normal conduct of operations. Also refer to definitions of "reasonable cost" and necessary cost" in this section. Case management -Assisting eligible children under this chapter in gaining access to medical, social, educational, vocational, and other appropriate services to help these individuals reach or maintain an optimal level of functioning in a community-based setting. Contact-An action taken by a caseworker on behalf of an eligible child under this chapter to locate, coordinate, and monitor necessary and appropriate services with a specific person or organization. Contacts may be face-to-face or by telephone. Case management monthly rate-A prospective rate based on the average monthly cost of providing case management services for an eligible child under this chapter. Necessary cost -A cost that is usual and customary in the operation of case management services and that meets the following requirements: (A) the cost is not for personal or other activity not specifically related to the provision of the case management services; (B) the cost is not allowable under other federal, state, or local laws or regulations; (C) the cost bears a significant relationship to case management services. The test of significance is whether there would be an adverse impact on the delivery of case management services if the expenditure were eliminated. Prospective rate -A fixed rate of payment determined for a future period of time and not readjusted during that period. Reasonable cost -An amount not exceeding the cost that would be incurred by a prudent business operator seeking to contain costs. sec.169.63. Billing for Case Management Services. (a) The Commission bills for case management contacts at a case management monthly rate equal to the rate set annually for case management reimbursements to the Commission for Medicaid recipients. (b) A family who does not have Medicaid and whose income exceeds 250% of the federal poverty level is billed on a sliding scale, based on the family's gross income and the number of persons residing in the household for whom the parents or legal guardians have legal and/or financial responsibility. Written information about the different levels at which families are billed is available according to sec.169.2 of this title (relating to Public Access to Information, Forms and Documents). This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 19, 1995. TRD-9516609 Pat D. Westbrook Executive Director Texas Commission for the Blind Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 459-2611 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 9. Contract Management Subchapter A. General 43 TAC sec.9.6, sec.9.8 The Texas Department of Transportation proposes amendments to sec.9.6 and sec.9.8, concerning the procedure for debarment of a contractor and supplemental procedure for suspension or debarment of a contractor. Government Code, Chapter 2161, Transportation Code, sec.201.702, and Title 49, Code of Federal Regulations, Part 23, provide for a Disadvantaged Business Enterprise (DBE) Program on contracts that are funded in whole or in part by federal funds, and for a Historically Underutilized Business (HUB) Program for contracts that are funded in whole by state funds. Section 9.6 and sec.9.8 are amended to provide for the debarment and suspension of highway construction contractors who violate the new sec.sec.9.50-9. 61, concerning the department's business opportunity program which are being simultaneously proposed for permanent adoption, and certain contract provisions concerning discrimination. James Dossett, Director of the Business Opportunity Programs Office, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Dossett has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed amendments. Mr. Dossett also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the ability to debar and suspend contractors who violate new sec. s9.50-9.61, and certain contract provisions concerning discrimination. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed sections. The public hearing will be held at 1:30 p.m. on January 17, 1996, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 1:00 p.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible. Presentations must remain pertinent to the issue being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who have special communication or accommodation needs and who plan to attend the hearing and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lungren, Director of the Public Information office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed amendments may be submitted to James Dossett, Director of Business Opportunity Programs Office, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be at 5:00 p.m. on February 2, 1996. The amendments are proposed under the 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 Texas Civil Statutes; Government Code, Chapter 2161, which provides for a Historically Underutilized Business Program for contracts that are funded in whole by state funds; and Transportation Code, sec.201.702, which provides for a Disadvantaged Business Enterprise Program. No statutes, articles, or codes are affected by the proposed amendments. sec.9.6. Procedure for Debarment of a Contractor. (a)-(b) (No change.) (c) Debarment. (1) The commission, at its sole discretion, may debar a contractor and/or its affiliates from bidding on and/or entering into contracts let by the department, from participating as a subcontractor on any such contract, and/or from supplying materials or equipment to be used in the construction or maintenance of a part of the state highway system for any of the following reasons: (A) (No change.) (B) conviction of the contractor of any offense, including but not limited to, the bribery of or the payment of kickbacks or secret rebates to officials, employees or agents of any state, which indicates a lack of moral or ethical integrity and which reasonably relates to or reflects upon the business practices of the contractor;
                                                                                                  [:] (C) disqualification of the contractor by any state and/or by an agency of the federal government for substantially any of the reasons listed in this paragraph or in sec.9.8 of this title (relating to Supplemental Procedures for Suspension or Debarment of a Contractor). In such a case, the period of debarment shall be that established by such state and/or the federal agency; or (D) disqualification of the contractor by the department in accordance with sec.9.58 of this title (relating to Contract Compliance)
                                                                                                    . (2)-(4) (No change.) (d)-(h) (No change.) sec.9.8. Supplemental Procedures for Suspension or Debarment of a Contractor. In addition to the provisions and procedures for suspension and/or debarment of contractors and their affiliates from bidding on and/or contracting for highway improvement contracts, or from participating as a subcontractor under any such contract, all as detailed more fully in sec.9.6 of this title (relating to Procedure for Debarment of a Contractor), [and] sec.9.7 of this title (relating to Procedure for Suspension of a Contractor), and sec.9.58 of this title (relating to Contract Compliance),
                                                                                                      the commission may also suspend or debar a contractor and its affiliates in the same manner and pursuant to the same procedures for the following reasons. (1)-(2) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516666 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630 Subchapter B. Highway Improvement Contracts 43 TAC sec.9.21 The Texas Department of Transportation proposes new sec.9.21, concerning affirmative action in highway improvement contracts. Government Code, Chapter 2161, Transportation Code, sec.201.702, and Title 49, Code of Federal Regulations, Part 23, provide for a Disadvantaged Business Enterprise (DBE) Program on contracts that are funded in whole or in part by federal funds, and for a Historically Underutilized Business (HUB) Program for contracts that are funded in whole by state funds. New sec.9.21 is proposed to provide that the department will periodically establish and publish overall DBE and HUB participation goals for highway improvement contracts in the Texas Register and other media. James Dossett, Director of the Business Opportunity Programs Office, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Dossett has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed new section. Mr. Dossett also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the ability to notify the public of the department's overall DBE and HUB participation goals. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed section. The public hearing will be held at 1:30 p.m. on January 17, 1996, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 1:00 p.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible. Presentations must remain pertinent to the issue being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who have special communication or accommodation needs and who plan to attend the hearing and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lungren, Director of the Public Information office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed new section may be submitted to James Dossett, Director of Business Opportunity Programs Office, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be at 5:00 p.m. on February 2, 1996. The new section is proposed under the 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 Texas Civil Statutes; Government Code, Chapter 2161, which provides for a Historically Underutilized Business Program for contracts that are funded in whole by state funds; and Transportation Code, sec.201.702, which provides for a Disadvantaged Business Enterprise Program. No statutes, articles, or codes are affected by the proposed new section. sec.9.21. Affirmative Action.
                                                                                                        The department will periodically establish overall DBE and HUB participation goals. The goals will be published in the Texas Register
                                                                                                          and other media as appropriate. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516667 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630 Subchapter C. Contracting for Architectural and Engineering 43 TAC sec.9.40 The Texas Department of Transportation proposes an amendment to sec.9.40, concerning affirmative action in architectural and engineering contracts. Government Code, Chapter 2161, Transportation Code, sec.201.702, and Title 49, Code of Federal Regulations, Part 23, provide for a Disadvantaged Business Enterprise (DBE) Program on contracts that are funded in whole or in part by federal funds, and for a Historically Underutilized Business (HUB) Program for contracts that are funded in whole by state funds. In order to adjust the goals based on the underutilization of specific groups and to allow flexibility in the DBE and HUB programs based on availability, sec.9.40 is amended to change the department's overall architectural and engineering participation goal for DBEs and HUBs from 30% to a percentage that the department will periodically establish and publish in the Texas Register and other media. James Dossett, Director of the Business Opportunity Programs Office, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Dossett has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed amendment. Mr. Dossett also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the department's goals will be adjusted to reflect availability of DBEs and HUBS. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed section. The public hearing will be held at 1:30 p.m. on January 17, 1996, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 1:00 p.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible. Presentations must remain pertinent to the issue being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who have special communication or accommodation needs and who plan to attend the hearing and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lungren, Director of the Public Information office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed amendment may be submitted to James Dossett, Director of Business Opportunity Programs Office, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be at 5:00 p.m. on February 2, 1996. The amendment is proposed under the Transportation Code, s201.101, 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 Texas Civil Statutes; Government Code, Chapter 2161, which provides for a Historically Underutilized Business Program for contracts that are funded in whole by state funds; and Transportation Code, sec.201.702, which provides for a Disadvantaged Business Enterprise Program. No statutes, articles, or codes are affected by the proposed amendment. sec.9.40. Affirmative Action. The department will periodically establish overall DBE and HUB participation goals. The goals will be published in the Texas Register
                                                                                                            and other media as appropriate. [The department's overall participation goal for DBEs and HUBs is 30%.] The department goals will be established for each contract on an individual basis to achieve the overall goal. The department requires as a minimum, written documentation of a good faith effort toward meeting the specified goal for DBE/HUB participation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516668 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630 Subchapter D. Business Opportunity Programs 43 TAC sec.sec.9.50-9.61 The Texas Department of Transportation proposes new sec. s9.50-9.61, concerning the department's business opportunity programs. Government Code, Chapter 2161, Transportation Code, sec.201.702, and Title 49, Code of Federal Regulations, Part 23, provide for a Disadvantaged Business Enterprise (DBE) Program on contracts that are funded in whole or in part by federal funds, and for a Historically Underutilized Business (HUB) Program for contracts that are funded in whole by state funds. New sec.9.50 explains the purpose of new Subchapter D, ssec.9.50-9.61, to establish policies and procedures to implement the department's DBE and HUB programs and for resolving complaints concerning department contracting policies and procedures. New sec.9.51 defines terms used in the subchapter. New sec.9.52 provides the department's policy to ensure that DBEs and HUBs have the maximum opportunity to participate in the performance of contracts and subcontracts. New sec.9.53 provides an explanation of the application of DBE and HUB programs to contracts and purchases. New sec.9.54 provides that the department will establish individual contract and overall DBE and HUB goals and describes the criteria for assigning the goals. New sec.9.55 requires that a contractor document the efforts taken in good faith to obtain DBE/HUB participation, provides a list of the types of efforts the department will consider as good faith for DBE participation, and refers to Title 1, TAC sec.111.14(c) for the procedures to document good faith efforts for HUB participation. New sec.9.56 provides: application and certification procedures; that the department maintain a directory of certified DBEs; the size and ownership, and eligibility standards for certification as a DBE, Joint Venture, Truck Owner- Operator, Regular Dealer, and Manufacturer; and the circumstances that would initiate an on-site review and the procedures followed depending on the results of the review. This section also provides the procedures for a third-party to challenge a firm's DBE status, procedures for eligibility conferences, and provides that any party aggrieved by the department's determination may appeal to the United States Department of Transportation. New sec.9.57 provides that the General Services Commission (GSC) certifies businesses as HUBs, maintains a directory of certified HUBs, and will not require a firm to apply for HUB certification if the firm is certified as a DBE and has not been previously denied certification as a HUB. New sec.9.58 provides that contract provisions addressing DBE or HUB requirements will be included in department contracts, that the department will monitor contractor compliance, that a contractor with a goal must designate an employee to serve as a DBE/HUB contact person, and the contractor will submit the names of the DBE/HUBs to meet the contract goal. This section requires a contractor with a goal to submit periodic reports, outlines criteria for receiving credit for payments made to a DBE firm, provides that a DBE may subcontract no more than 70% of the contract, requires a HUB prime contractor to perform at least 25% of the contract, requires that a HUB subcontractor perform all the work of his or her trade with its own employees, and prohibits a contractor from furnishing work crews or equipment to a DBE/HUB without prior authorization from the department. Section 9.58: requires that a contractor justify to the department that a DBE/HUB is unwilling or unable to perform prior to substituting a firm; provides that any party aggrieved by the department's determination regarding substitution of a subcontractor my avail itself of the complaint procedure under sec.9.59; requires that a contractor must retain all records for three years after final payment; and provides that the department will sanction a contractor who does not comply with contract requirements for not furnishing the required DBE/HUB commitment, for discriminating against a DBE/HUB firm, for committing one or more contract violations. New sec.9.59 provides that a claim for additional compensation or time extension will be heard in accordance with sec.1.68 of this tile (relating to Contract Claim Procedures), and establishes a complaint process for a Bidder/Proposer that was not selected for a department contract or for reason of discrimination if not awarded a contract by a contractor. If the protesting firm is not satisfied with the response it may request an investigation or file an appeal with the United States Department of Transportation. Section 9. 59 also provides a complaint process for a business to complain about any department policy relating to contracts and that a business may pursue the complaint with the United States Department of Transportation. This section provides a complaint process for anyone who believes himself, herself, another person, or any specific class of individuals is subject to a violation of the DBE/HUB program and that if the complaint is not satisfied the aggrieved party may request an investigation. It establishes a complaint process for an aggrieved person or firm to file a complaint involving any issue (except award) related to contracts with the department and requires that the disputant attempt mediation prior to requesting an investigation. New sec.9.60 provides that a person or business that is aggrieved by a finding, response, or determination resulting from any protest, complaint or dispute under the DBE/HUB program may request a formal investigation and provides for an appeal of the final determination to the Business Appeal Committee (BAC). New sec.9.61 provides that a firm that believes that it has been wrongly denied certification, any third party who has challenged certification, any firm alleging discrimination on a federally funded contract, or any firm aggrieved by a department determination related to the DBE program may file an appeal with the United States Department of Transportation. This section provides that the BAC will hear appeals relating to contract complaints, or disputes, protests, or complaints relating to the DBE/HUB programs and that a person not satisfied with the BAC findings may petition the executive director of the department for a formal administrative hearing. James Dossett, Director of the Business Opportunity Programs Office, has determined that for the first five-year period the sections are in effect there will be fiscal implications as a result of enforcing or administering the sections. The effect on state government will be an estimated additional cost of $1.8 million each year that the sections are in effect. The estimated cost does not include the cost for administrative hearings because the cost of the hearings cannot be determined due to the unpredictability of the number and nature of the hearings. Mr. Dossett has determined that there will be no fiscal implications to local governments as a result of enforcing or administering the proposed sections. Mr. Dossett also has determined that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed sections. Economic costs to individuals, businesses, including small businesses, who are required to comply with the sections depends on the business itself and other variables such as type of business, type of certification (since cost for certification as a DBE is greater than certification as a HUB), number and type of contracts the businesses are participating in, and the number and nature of complaints filed. Mr. Dossett also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the increased participation of minority and women-owned small businesses in the contracting activities of the department. Other benefits include the mediation of disputes which provides businesses an alternative to seeking remedies within the legal system, and a complaint process for businesses to voice their concerns regarding the business practices and policy decisions of the department. Pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed sections. The public hearing will be held at 1:30 p.m. on January 17, 1996, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 1:00 p.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible. Presentations must remain pertinent to the issue being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who have special communication or accommodation needs and who plan to attend the hearing and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lungren, Director of the Public Information office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed new sections may be submitted to James Dossett, Director of Business Opportunity Programs Office, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be at 5:00 p.m. on February 2, 1996. The new sections are proposed under the 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 Texas Civil Statutes; Government Code, Chapter 2161, which provides for a Historically Underutilized Business Program for contracts that are funded in whole by state funds; and Transportation Code, sec.201.702, which provides for a Disadvantaged Business Enterprise Program. No statutes, articles, or codes are affected by the proposed new sections. sec.9.50. Purpose. This subchapter establishes policies and procedures to implement the department's Disadvantaged Business Enterprise and Historically Underutilized Business programs in compliance with Transportation Code, sec.201.702; Government Code, Chapter 2161; and 49 Code of Federal Regulations, Part 23. This subchapter also establishes policies and procedures for resolving complaints concerning department contracting policies and procedures. sec.9.51. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. sec.8(a) Certification -The certification of a business as socially and economically disadvantaged by the United States Small Business Administration (SBA) pursuant to sec.8(a) of the Small Business Act, 15 United States Code, Chapters 631-656. Affiliate-Closely connected or associated businesses in which one directly or indirectly controls or has the power to control the other, a third party controls or has the power to control both, or businesses closely allied through an established course of dealings including, but not limited to, the lending of financial assistance or engaging in joint ventures or other activities that create a public perception that the two firms are a single entity. Bidder-An individual, partnership, limited liability company, corporation, or any combination that submits a bid for a contract advertised by the department. Broker-An intermediary or middleman who does not take possession of a commodity or act as a regular dealer selling to the public. Business appeal committee (BAC)-A department committee appointed by the executive director to allow an aggrieved party to rebut the findings of a formal investigation. Business opportunity programs office (BOP)-The department office that certifies DBEs and administers the DBE and HUB programs. Commission-The Texas Transportation Commission. DBE certification -The process governed by 49 Code of Federal Regulations, Part 23, which verifies an applicant's eligibility to be a DBE. DBE/HUB participation goal-A number representing participation in contracts and purchasing by a DBE/HUB firm determined by a percentage of the total cost of the contract or purchase. Debar/Debarment-To disqualify (the disqualification of) a contractor from bidding on and/or entering into a department contract, or from participating as a subcontractor under any such contract, or as a supplier of materials or equipment to be used in the construction or maintenance of a part of the state highway system. Department-The Texas Department of Transportation. Disadvantaged Business Enterprise (DBE)-As defined in 49 Code of Federal Regulations, sec.23.62, a small business concern, certified by BOP, which is 51% owned by one or more minorities, women, or others that can prove social and economic disadvantage, or in the case of a publicly owned business, at least 51% of the stock is owned by one or more minorities, women, or others that can prove social and economic disadvantage, and whose management and daily business operations are controlled by one or more such individuals. Federal aid contract-A contract between the department and a contractor that is paid for in whole or in part with United States Department of Transportation or other federal financial assistance. General Services Commission (GSC)-The state agency responsible for regulating the procurement of goods and services for all state agencies. Highway improvement contract-A contract awarded by the commission under Transportation Code, Chapter 223. Historically Underutilized Business (HUB)-Any business so certified by the General Services Commission. Joint venture-An association of two or more businesses to carry out a single business enterprise for profit which combines their property, capital efforts, skills, and knowledge. Liquidated damages -The sum which a party to a contract agrees to pay for violating a provision of the contract. Minority-As defined by 49 Code of Federal Regulations, sec.23.5, a person who is a citizen or lawful permanent resident of the United States and who is: (A) Black (a person having origins in any of the black racial groups of Africa); (B) Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race); (C) Portuguese (a person of Portuguese, Brazilian, or other Portuguese culture or origin, regardless of race); (D) Asian American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islanders); (E) American Indian and Alaskan Native (a person having origins in any of the original peoples of North America); or (F) members of other groups, or other individuals, found to be economically and socially disadvantaged by the Small Business Administration under 15 United States Code, sec.637(a). Minority Business Enterprise (MBE)-As defined by 49 Code of Federal Regulations, sec.23.5, a small business concern which is owned and controlled by one or more minorities or women. Packager-A person or firm engaged in the commercial packing of materials or supplies produced by others. Proposer-An individual, partnership, limited liability company, corporation, or any combination that submits a proposal for a contract advertised by the department. Small business concern-A small business as defined in the Small Business Act, codified in 15 United States Code, sec.632, and related regulations. Socially and economically disadvantaged individuals -As defined in 49 Code of Federal Regulations, s23.62, individuals who are United States citizens (or lawfully admitted permanent residents) and who are Women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian-Indian Americans, or any other minorities or individuals found to be disadvantaged by the Small Business Administration's sec.8(a). There is a rebuttable presumption that individuals in the following groups are socially and economically disadvantaged: (A) Black Americans which includes persons having origin in any of the Black racial groups of Africa; (B) Hispanic Americans which includes persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race; (C) Native Americans which includes persons who are American Indian, Eskimo, Aleut, or native Hawaiian; (D) Asian-Pacific Americans which includes persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, Philippines, Samoa, Guam, the Northern Marianas or the United States Pacific Trust Territories; (E) Asian-Indian Americans which includes persons whose origins are from India, Pakistan, or Bangladesh; or (F) women. Subcontractor-An individual, partnership, corporation, or other business entity to which the prime contractor sublets, or proposes to sublet, any portion of a contract. sec.9.52. Policy. It is the policy of the department that: (1) disadvantaged business enterprises (DBEs) and historically underutilized businesses (HUBs) shall have the maximum opportunity to participate in the performance of contracts; and (2) all necessary and reasonable steps will be taken to ensure that DBEs and HUBs have maximum opportunity to compete for and perform contracts and subcontracts. sec.9.53. Applicability. (a) The DBE program is applicable to all department contracts and purchases funded in whole or in part with federal funds received from the United States Department of Transportation through the Federal Highway Administration, Federal Transit Administration, Federal Aviation Administration, or any other federal agency. (b) The HUB program is applicable to all department contracts and purchases funded in whole with state funds. sec.9.54. Goals. The department will set an annual goal for all agency contracting activities and individual contracting goals for each contract and each type of contract. Goals may be achieved by contracting directly with a DBE or HUB or indirectly through subcontracts with DBE/HUB firms. (1) Annual goals. (A) Each year the department will establish an agency DBE goal developed after a review of results of previous efforts to contract with DBEs, an estimate of the number and types of contracts to be awarded in the next fiscal year, and a projection of the availability of DBEs to compete for contracts. The annual goal will be consistent with the federal requirement for federal money used for highway construction and maintenance and compatible with other applicable state and federal law. The department will publish the annual goal in the Texas Register
                                                                                                              and other publications as appropriate. (B) The department will periodically establish agency HUB contracting goals consistent with GSC goals set forth at Title 1, Texas Administrative Code, sec.111.13(b) (relating to Annual Procurement Utilization Goals), and will publish the goal in the Texas Register
                                                                                                                and other publications as appropriate. (2) Contract goals. Individual contracts having the potential for DBE/HUB participation are assigned participation goals based on the availability of qualified DBE/HUBs, work site location, dollar value of the contract, and type of work items specified in the contract. (A) The department will assign individual contract goals for DBE participation in highway improvements, building construction and maintenance, professional services, aviation, public transportation, private consultant services, and purchasing activities. (B) Pursuant to Title 1, Texas Administrative Code, s111.13(c) (relating to Annual Procurement Utilization Goals), the department will establish HUB goals for individual contracts. sec.9.55. Good Faith Effort. When a specific contract goal has not been met, the contractor must document the steps taken in good faith to obtain DBE/HUB participation. (1) DBE goals. The department will consider the following efforts to determine if a contractor has made a good faith effort to meet the DBE contract goal: (A) attendance at a pre-bid meeting; (B) advertisement of the contracting opportunity to the DBE community; (C) written notification of the contracting opportunity to DBE firms; (D) follow-up with DBE firms to determine interest in the initial solicitation; (E) selection of work that could be performed by DBE firms; (F) efforts to negotiate with DBE firms for specific categories of work; (G) reasons for rejecting a bid or proposal submitted by a DBE firm; (H) efforts made to assist a DBE to obtain bonds or insurance; and (I) effective use of services of available minority community organizations, minority contractors' groups, local, state and federal minority business assistance offices, and other organizations that provide assistance in the recruitment and placement of DBEs. (2) HUB goals. The department will consider a contractor to have made a good faith effort by complying with Title 1, TAC sec.111.14(c) (relating to Subcontracts). sec.9.56. DBE Certification. (a) Responsibility. The department will not credit an expenditure to a DBE unless the firm has been duly certified as such. The department will certify a small business as a DBE, a joint venture, a disadvantaged truck owner-operator, a regular dealer and/or manufacturer. The department will maintain a directory of certified DBEs. (b) Requests. A business must submit a written request for certification as a DBE using an application form approved by the department. New applications are required if: (1) a DBE has never been certified; (2) a DBE has been certified but certification has lapsed; (3) a previous application was withdrawn; (4) there is a change of ownership or control of a certified firm at any time; or (5) a firm has been certified as a DBE by another state department of transportation but not by the department (An out of state firm must be certified by the resident state department of transportation or equivalent agency). (c) Certification standards. (1) Size. The firm must be a small business concern. (A) The firm must meet the criteria included in sec.3 of the Small Business Act and 13 Code of Federal Regulations, Part 121 to be considered a small business concern. (B) If a firm is not a small business concern according to the standards promulgated at 13 Code of Federal Regulations, Part 121, the department will not certify the firm as a DBE even though it may be owned and controlled by minorities, women, or socially and economically disadvantaged individuals, and is eligible in all other respects. (2) Ownership. At least 51% of the firm or, in the case of any publicly owned business, at least 51% of the stock must be owned by one or more socially and economically disadvantaged individuals. (3) Eligibility standards. A firm must meet each of the following certification standards to be certified as a DBE. (A) Minority status. (i) The department will accept the Small Business Administration certification of social and economic disadvantage under the sec.8(a) program, and will certify an applicant as a DBE if the firm meets size and ownership requirements. (ii) If an applicant has not been certified by SBA under the s8(a) program, the applicant may establish his or her membership in a bona fide minority group on the basis of the individual's claim that he or she is a member of a minority group and is so regarded by that particular minority community. The department will not certify a firm as a DBE if it determines the applicant's claim to be invalid. (B) Social and economic disadvantage. If an individual is not a member of a minority group or a woman, but can prove social and economic disadvantage on an individual basis using standards set forth in Appendix C to Subpart D, Guidance for Making Determinations of Social and Economic Disadvantage, 49 Code of Federal Regulations, Part 23, the department will consider that individual to be socially and economically disadvantaged. (C) Independent business. A business must be an independent, for-profit operation. The department will consider the date the business was established, the adequacy of its resources for the work of the contract and the degree to which financial, equipment leasing, and other relationships with non-minority firms vary from industry practice. Recognition of the business by the Internal Revenue Service as a separate entity for tax or corporate purposes is not in itself sufficient for DBE certification. (D) Management and operation. The management and daily business operations must be controlled by one or more of the socially and economically disadvantaged individuals who own it. The ownership and control by minorities or women must be real, substantial, and continuing, and must go beyond the form of the ownership as reflected in its ownership documents. (i) The minority or women owners must enjoy the customary incidents of ownership and must share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than the form of the arrangement. (ii) The minority or women owners must possess and exercise the power to direct or cause the direction of the management and policies of the firm and to make the day-to-day as well as major decisions on matters of management, policy, and operations. (iii) A firm must not be subject to any formal or informal restrictions which limit the customary discretion of the minority or women owners, including, but not limited to, bylaw provisions, partnership agreements, or charter requirements for cumulative voting rights or other rules that prevent the minority or women owners from making a business decision of the firm without the cooperation or vote of any owner who is not a minority or woman. (E) Management responsibility. If the owners of a firm who are not minorities or women are disproportionately responsible for the operation of the firm, the firm will not be considered a DBE. Where the actual management of the firm is contracted out to individuals other than the owner, those persons who have the ultimate power to hire and fire the managers will be considered as controlling the business. (F) Securities. The minorities or women must directly hold all securities constituting ownership and/or control of a corporation for purposes of establishing it as a DBE. The department will not consider securities held in trust for any reason in determining the ownership or control of the corporation. (G) Real contributions. The minority or women owners' contributions of capital or expertise to acquire their interests in the firm must be real and substantial. A promise to contribute capital, a note payable to the firm or its owners who are not socially and economically disadvantaged, or the participation as an employee rather than a manager constitute insufficient contributions by the minority or women owners. (H) Special considerations. The department will give special consideration to the following circumstances in determining eligibility: (i) newly formed firms and firms whose ownership and/or control has changed since the date of the advertisement of a contract under which the new firm will contract to determine reasons affecting the timing of the formation of or change in ownership or control; (ii) previous and/or continuing employer-employee relationship between or among present owners to determine that the employee-owner has management responsibilities and capabilities described in subparagraphs (D) and (E) of this paragraph; and (iii) any relationship between a DBE and a non-DBE business having an interest in the DBE to determine if the interest of the non-DBE conflicts with ownership and control requirements. (d) Joint venture. (1) A joint venture may apply for DBE status using the application form approved by the department. (2) The department will certify the joint venture if all of the following criteria are met: (A) one or more of the partners of the joint venture must be a certified DBE; (B) the DBE partner is responsible for a clearly defined portion of the work to be performed; and (C) the DBE partner shares in the ownership, control, management responsibilities, risks, and profits of the joint venture. (e) Disadvantaged truck owner-operator. (1) An independent owner-operator of one truck may apply for disadvantaged truck owner-operator status using the department approved application form. (2) The department will certify a truck owner-operator who does not have an employee/employer relationship with a prime contractor, and who: (A) claims membership in a bona fide minority group in accordance with requirements of subsection (c)(3)(A) of this section; (B) proves ownership of the truck; and, (C) proves ability to operate the truck, including, but not limited to, maintaining a commercial driver's license. (f) DBE regular dealer. (1) A dealer may apply for DBE status using the application form approved by the department. (2) A firm may be certified as a DBE regular dealer if it meets all other certification requirements set forth in subsections (c) and (d) of this section and: (A) owns, operates, or maintains a store, warehouse, or other establishment in which materials or supplies required for a contract are bought, kept in stock, and regularly sold to the public in the usual course of business; or (B) is a dealer in bulk items such as steel, cement, gravel, stone, and petroleum products not kept in stock which are distributed or delivered using the firm's own equipment; (C) engages in the purchase and sale of the products as its principal business and in its own name; and (D) is not a broker or packager. (g) DBE manufacturer. (1) A manufacturer may apply for DBE status using the application form approved by the department. (2) A firm may be certified as a DBE manufacturer if it operates or maintains a factory or an establishment that produces on the premises materials or supplies to be used in a contract, and meets all other certification requirements set forth in this section. (h) On-site review. (1) The department will conduct an on-site review of any firm when: (A) it applies for DBE certification for the first time; (B) certification is challenged by a third party; or (C) the department questions its DBE eligibility. (2) If the review involves a certified firm, the firm's certification remains valid unless the department notifies the firm in writing that its certification is suspended during the review. (3) If the on-site review indicates that the firm meets eligibility standards, the firm will be certified or remain certified. (4) If the on-site review indicates that the firm does not meet eligibility standards, the firm will be denied certification in accordance with subsection (k) of this section. (i) Certification renewals. (1) DBE certifications are valid for one year. (2) To be recertified as a DBE, a firm must submit a written renewal application. (3) Renewals are subject to certification standards set forth in subsection (c) of this section. (j) Third-party challenges. (1) Any third party may challenge the department's certification of a firm's DBE status when certification is based upon the department's presumption that the owner is socially and economically disadvantaged. (2) DBE certification remains valid during the department's proceedings under the challenge. (3) A third-party challenge must be made in writing, signed and dated by the challenger, and set forth the reasons for the challenge. (4) After receiving a written challenge, the department will determine if there is reason to believe that the challenged party is in fact not socially and economically disadvantaged on the basis of the information provided by the challenging party. (A) If the department based certification upon SBA 8(a) program certification pursuant to 49 Code of Federal Regulations, sec.23.62, the department will take no action other than to inform the challenging party in writing that there is no reason to believe the challenge is valid. (B) If the department based certification upon an applicant's claim to be socially and economically disadvantaged, and if there is a basis to believe that the challenged party is not socially and economically disadvantaged, the department will: (i) notify the firm that the individual's social/economic disadvantaged status has been challenged, identify the challenging party, summarize the grounds for the challenge, and request information to substantiate the claim of social and economic disadvantage; (ii) by using standards set forth in Appendix C to Subpart D, Guidance for Making Determinations of Social and Economic Disadvantage, 49 Code of Federal Regulations, Part 23, make a determination of social and economic disadvantage; and (iii) notify both parties in writing, setting forth reasons for the proposed finding, and asking each party to respond in writing to the proposed determination. (C) If both parties accept the department's determination, the challenge is closed. (D) If either party is aggrieved by the department's determination, the aggrieved party may request an eligibility conference in accordance with subsection (l) of this section. (k) Denial of certification. (1) The department will notify an applicant in writing if certification is to be denied and set forth reasons for denial. (2) An applicant who withdraws its application may reapply at any time. (3) An applicant may answer the department's notice of denial within 15 working days after receiving notice of denial. If the applicant does not answer within the 15-day period, the denial of certification is final. (A) If an applicant answers within the 15-day period, and the response resolves eligibility deficiencies, the department will certify the applicant. (B) If an applicant answers within the 15-day period, but does not resolve eligibility deficiencies, the applicant may accept the department's denial of certification or it may request an eligibility conference. (l) Eligibility conference. (1) An applicant who believes the department has wrongly denied certification may request an eligibility conference no later than 15 days after receiving notification of the department's denial of certification. (2) A third party who has challenged the department's certification of a firm pursuant to subsection (j) of this section may request an eligibility conference no later than 15 days after receiving notification of the department's certification of the challenged firm. (3) During an eligibility conference, the applicant, challenged firm, or challenging party may submit additional information to substantiate or refute eligibility. (4) If the applicant or challenged firm successfully resolves eligibility issues during the conference, the department will certify the firm. If the applicant or challenged firm does not resolve the eligibility issues or does not attend the eligibility conference, the applicant or challenged firm will not be certified. (A) If a challenging party is not satisfied with the department's certification determination or does not attend the eligibility conference, it has no further recourse under department procedures. (B) If an applicant is not satisfied with the department's certification determination, it has no recourse under department procedures. An applicant denied certification must wait six months from the date of denial to reapply for certification. (5) Any party aggrieved by the department's certification determination may appeal to the United States Department of Transportation in accordance with sec.9.61 of this title (relating to Appeals). sec.9.57. HUB Certification. (a) The GSC will certify businesses as HUBs using procedures set forth at Title 1, Texas Administrative Code, sec.sec.111.11-111.23. Businesses may appeal the GSC determination in accordance with procedures set forth at Title 1, Texas Administrative Code, s111.14 (relating to Protests). (b) GSC will maintain a directory of certified HUBs. (c) GSC will not require a DBE to apply for HUB certification as long as a firm maintains its DBE status and has not been previously denied certification as a HUB. sec.9.58. Contract Compliance. (a) Contract provision. Department contracts involving the expenditure of funds will include a contract provision addressing DBE or HUB requirements. (1) A contract with a goal assigned will include a provision which sets forth program requirements for the type of contract receiving the goal, including, but not limited to, the department's DBE policy, the DBE contract goal, activities that contribute to meeting the goal, conditions of DBE participation, good faith efforts, compliance procedures, and sanctions for noncompliance with the terms of the contract provision. (2) A contract without a goal assigned will include a provision encouraging the use of minority, disadvantaged, and historically underutilized business enterprises in subcontracting activities. (b) Monitoring. The department will monitor contractor compliance by reviewing contractor reports, making on-site visits to the project or the offices of a contractor or subcontractor, and conducting random project reviews. (c) Contractor representative. A contractor receiving a contract with a goal assigned must designate an employee to serve as a DBE/HUB contact person during the contract, and must inform the department of the representative's name, title, and telephone number no later than five days after the contract is signed. The DBE/HUB representative is responsible for submitting reports, maintaining records, and documenting good faith efforts to use DBE/HUBs pursuant to sec.9.55 of this title (relating to Good Faith Effort). (d) Commitments. (1) When the commission awards a highway improvement contract, the contractor must within the time period specified in the award document furnish a list of commitments made to certified DBE/HUBs to meet the contract goal along with a commitment agreement including the original signatures of the contractor and the proposed DBE/HUB which includes, but is not limited to, the following provisions: (A) a statement that the contractor intends to provide the DBE/HUB the opportunity to perform the subcontract; (B) the items of work to be performed; (C) the quantities of work or material; (D) the unit measure, unit price, and total cost for each item; (E) the total amount of the DBE/HUB commitment; and (F) if the commitment involves a DBE material supplier, an explanation of the function to be performed and a description of any arrangements made with other material suppliers, manufacturers, distributors, hauling firms, or freight companies. (2) A contractor selected for a contract not awarded by the commission must identify the intended DBE/HUB subcontractors, the anticipated amount of the subcontracts, and the estimated date the subcontractors will begin work. If the contractor does not meet the contract goal, it must document good faith efforts taken to meet the goal as set forth at sec.9.55 of this title (relating to Good Faith Efforts). (e) Reporting. (1) Each contractor receiving a contract with a goal assigned must submit periodic reports at intervals specified in the contract using a report form acceptable to the department that includes, but is not limited to, identification of the DBE/HUB by name and vendor number, and showing the actual amount paid to the DBE/HUB. The report must be submitted even if no payments were made during the preceding month. When required by the department, the contractor must attach proof of payment including, but not limited to, copies of canceled checks. (2) Each contractor receiving a contract with a goal assigned must submit a final report with the request for final payment or when all work has been completed, whichever occurs first, using a form acceptable to the department which shows: (A) the total paid to each DBE/HUB; and (B) if the contract goal was not met, a description of good faith efforts taken in accordance with sec.9.55 of this title (relating to Good Faith Effort). (f) Credit for expenditures. (1) A contractor awarded a federal aid contract will receive credit for all payments made to a DBE firm except when credit is subject to limitations set forth in paragraph (2) of this subsection or prohibited as follows: (A) a DBE firm is paid but does not provide the goods or perform the services paid for; (B) a DBE firm does not perform a commercially useful function as set forth in subsection (g)(1) of this section; (C) a contractor makes payment directly to a non-DBE material supplier for the cost of materials or supplies used by a DBE subcontractor; (D) a contractor deducts payment of the cost of materials used by a DBE/HUB subcontractor or the cost of leased or rented equipment used by the DBE/HUB from an invoice submitted by the DBE; (E) a contractor cannot link an invoice or canceled check to the contract under which credit is claimed; or (F) a payment is made to a broker or a firm with a brokering-type operation. (2) A contractor is subject to the following limitations when calculating credit for payments: (A) 60% credit for payment made to a DBE nonmanufacturing material supplier who has assumed contractual responsibility for providing materials and supplies under the contract and provides a commercially useful function; (B) the percent credit for payment made to a joint venture corresponds to the percentage of DBE ownership in the joint venture; (C) full credit for payments made for materials and supplies if payment is made directly to the DBE subcontractor in accordance with an invoice submitted by the DBE subcontractor, or with a joint check to the DBE subcontractor and the material supplier in accordance with a joint invoice submitted by the material supplier; and (D) full credit for payment of a fee or commission if: (i) the amount of the fee or commission charged for providing a bona fide service, such as professional, technical, consultant, or managerial services, and assistance in the procurement of essential personnel, facilities, equipment, materials, or supplies required for performance of the contract, provided that the fee or commission does not exceed that customarily allowed for similar services; (ii) the amount of the fee charged for delivery of materials and supplies required on a job site, but not the cost of the materials and supplies themselves when the hauler, trucker, or delivery service is not also a manufacturer of or a regular dealer in the materials and supplies, provided that the fee does not exceed that customarily allowed for similar services; and (iii) the amount of fee or commission charged for providing any bonds or insurance specifically required for the performance of the contract, provided that the fee or commission does not exceed that customarily allowed for such fee or commission. (3) Any arrangement between a contractor, and a DBE/HUB material supplier for payment with a joint check must be approved by BOP before the joint check is issued. (4) A contractor will receive credit for all payments actually made to a HUB for work performed and costs incurred in accordance with the contract with the following exceptions. (A) Payments to brokers or firms with a brokering-type operation will be credited only for the amount of the commission. (B) Payments to a joint venture will not be credited unless all partners in the joint venture are HUBs. (C) Payments to a HUB subcontractor who has subcontracted a portion of the work required under the subcontract will not be credited. (5) The department may request a contractor to furnish proof of payment made to a DBE/HUB firm including, but not limited to, canceled checks to substantiate expenditures. (6) A contractor must not withhold or reduce payments to any DBE/HUB firm for any reason without BOP consent, which is based upon the contractor's justification based on standard business practice. (g) Performance. A DBE/HUB contractor or subcontractor must comply with the terms of the contract or subcontract for which it was selected. Work products, services, and commodities must meet contract specifications whether performed by a contractor or subcontractor. (1) DBE subcontractors must perform a commercially useful function required in the contract in order for payments to be credited toward meeting the contract goal. A DBE performs a commercially useful function when it: (A) is responsible for a distinct element of the work of a contract; and (B) actually manages, supervises, and controls the materials, equipment, employees, and all other business obligations attendant to the satisfactory completion of contracted work. (2) The department may review a DBE's performance to determine that it is performing a commercially useful function: (A) in response to a challenge of a DBE firm's performance; (B) when it receives a high dollar volume of department contracts or subcontracts; and (C) on a nondiscriminatory random basis. (3) If the department determines that a DBE firm is not performing a commercially useful function under the contract, the department may: (A) deny credit for payments made to the DBE; (B) review DBE certification; and (C) revoke DBE certification. (4) A DBE contractor or subcontractor may subcontract no more than 70% of the contract. (5) A HUB prime contractor must perform at least 25% of the contract work with its employees (as defined by the Internal Revenue Service). A HUB prime contractor may subcontract the remaining 75% of the contract to a HUB or non-HUB firm. (6) A HUB subcontractor must perform all the work of his or her trade with its own employees or, if the subcontractor uses an employee leasing firm for the purpose of providing salary and benefit administration, with employees who in all other respects are supervised and perform on the job as if they were employees of the subcontractor. (7) A contractor may not furnish work crews or equipment to a DBE/HUB subcontractor. The BOP office may authorize a contractor to lease equipment with or without an operator to a DBE/HUB subcontractor on a case by case basis. (8) A contractor must not create unnecessary barriers or artificial requirements to hinder a DBE/HUB's performance under the contract. (h) Substitutions. If for any reason a contractor wishes to subcontract with a DBE/HUB firm other than the firm originally authorized, the contractor must request approval from BOP to do so. (1) A contractor must provide written justification for a request to substitute a DBE/HUB firm, including, but not limited to, demonstrating that the original firm is not able or not willing to carry out the terms of the subcontract. (2) The department will contact the DBE/HUB to be displaced and other parties as needed to determine if the DBE/HUB firm to be displaced is willing and able to carry out the terms of the contract. (A) If the displaced firm is not willing or able, the department will notify the contractor in writing of its consent to the substitution, and the contractor must make a good faith effort to substitute another certified DBE/HUB firm for the one being displaced. (B) If the displaced firm is willing and able, the department will: (i) notify the contractor; (ii) request additional justification for the substitution; (iii) evaluate any additional justification; and (iv) notify the contractor of its approval to substitute or to continue the subcontract with the original DBE/HUB firm. (3) Any party aggrieved by the determination affecting substitution of subcontractors may avail itself of the complaint procedures under sec.9.59 of this title (relating to Complaints). (i) Records. A contractor must retain all records relating to contract compliance for three years after final payment is made under the contract, or until any investigation, audit, examination, or other review undertaken during the three years is completed. The records must be made available to representatives of the department and other agencies for inspection, audit, examination, investigation, or other review at all reasonable times during the retention period. (j) Sanctions. The department will sanction a contractor who does not comply with contract requirements. (1) If a successful bidder for a highway improvement contract does not furnish the required DBE/HUB commitment information during the time period specified in the award document, the department may declare the contractor to be in default and retain the proposal guaranty as liquidated damages. (2) If a contractor is found to have discriminated against a DBE/HUB firm, and if such discrimination is a first offense, the department will debar the contractor for six months. (3) If a contractor is found to have discriminated against a DBE/HUB firm for a second or subsequent offense, the department will terminate the contract under which the discriminatory action occurred, debar the contractor for 12 months, and review other contracts the department might have with the contractor to determine compliance with the nondiscrimination provision. (4) If a contractor is found to have committed one or more of the following offenses during a three-year period, the department will impose sanctions described in paragraph (5) of this subsection: (A) shortfall of the DBE/HUB goal at the completion of the project and good faith effort to meet the goal is not adequately documented: (B) DBE/HUB commitments were not kept; or (C) DBE/HUB firms were not given the maximum opportunity to perform under a subcontract. (5) The department will sanction a contractor who commits one or more of the offenses identified in paragraph (4) of this subsection as follows: (A) for a first offense, a written reprimand; (B) for a second offense, assess liquidated damages against the contractor for the amount of the DBE/HUB goal shortfall, the amount due the DBE/HUB, or the amount committed to a DBE/HUB; (C) for a third offense, contract termination; and (D) for a fourth or subsequent offense, debarment for 12 months. sec.9.59. Business Complaints. (a) Contractor claims. A claim for additional compensation or time extension for any reason under a contract between the department and a contractor will be heard in accordance with sec.1. 68 of this title (relating to Contract Claim Procedures). (b) Bidder/proposer protest. (1) A firm may file a written protest for any reason within 90 calendar days after being notified that it was not awarded or selected to receive a contract offered by the department, other than one awarded to the low bidder pursuant to Subchapter B of this chapter (relating to Highway Improvement contracts), or for reason of discrimination if not awarded or selected to receive a contract by a contractor. (2) The BOP office will forward the written protest to the appropriate office for a written response. (3) The BOP office will forward the written response to the protesting firm. (4) If the protesting firm accepts the response, further appeal is barred. (5) If the protesting firm is not satisfied with the response, it may request an investigation in accordance with sec.9.60 of this title (relating to Investigation) or file an appeal with the United States Department of Transportation in accordance with sec.9.61 of this title (relating to Appeals). (c) Policy complaint. (1) A business may submit a written complaint about any department policy relating to contract specifications, award, execution, or administration. (2) The department will review the complaint and issue a response. (3) The department's response is final and the complaining business is barred from further department appeal. (4) If the complaining business is not satisfied with the response, it may pursue the complaint with the United States Department of Transportation in accordance with sec.9.61 of this title (relating to Investigation). (d) Program Complaint. (1) An aggrieved person who believes himself, herself, another person, or any specific class of individuals to be subject to a violation of the DBE/HUB program may file a written complaint with the BOP. (2) A written complaint must be filed no later than 90 calendar days after the date of an alleged violation or the date on which a continuing course of conduct in violation of the program was disclosed. (3) BOP will seek to resolve the complaint with the involved parties. (A) If the complaint is satisfied, no further recourse is available to the complaining party. (B) If the complaint is not satisfied, BOP furnishes the aggrieved party with complaint procedures set forth at s9.60 of this title (relating to Investigation). (e) General complaints. An aggrieved person or firm may file a complaint within 90 calendar days from the incident involving any issue related to contracts with the department including, but not limited to, specifications, execution, or administration, other than those awarded under Government Code, Chapter 2161. The person or firm filing the complaint is hereafter called the disputant and the firm or person against whom the complaint is filed is called the respondent. (1) A complaint must be made in writing to BOP. (2) BOP will contact the parties and seek to resolve the complaint. If the complaint is resolved as a result of this contact, the disputant will take no further recourse. (3) If the dispute is not resolved, the disputant may request mediation using the request form provided by the department. (A) A disputant may submit a request for mediation to the department no later than the tenth calendar day after receiving the form. (B) If a disputant does not submit the request for mediation within the ten- day period, the disputant is barred from further department appeal. (C) If the request for mediation is received within the ten-day period, the department will contact the respondent and request participation in the mediation. (D) The respondent is not required to participate in the mediation process; if the respondent does not participate in mediation, the disputant may request a formal investigation using procedures set forth at sec.9.60 of this title (relating to Investigation) no later than ten days after respondent declines mediation. (E) If the respondent agrees to mediation, BOP will conduct the mediation. If mediation resolves the dispute, BOP will assist the parties prepare and execute a mediation agreement. (F) If the dispute is not resolved through mediation, the disputant may request a formal investigation no later than ten days after the unsuccessful mediation. (G) If the disputant does not request a formal investigation within the specified time period, no further appeal is available to the disputant except to the United States Department of Transportation as provided at sec.9.61 of this title (relating to Appeals). sec.9.60. Investigation. (a) If a person or business is aggrieved by a finding, response, or determination resulting from any protest, complaint, or dispute under sec.9.59 of this title (relating to Business Complaints), except for certification or policy complaints, the aggrieved person or business may request a formal investigation into the protest, complaint, or dispute. The request must be made in writing within the time period specified in the complaint procedure at sec.9.59 of this title (relating to Complaints). (b) The Civil Rights Division will review the prior proceedings and determine that there is no valid reason for further action, notifying the disputant of the determination and setting forth the reasons for taking no further action or an investigation is warranted, notifying the disputant. (1) The aggrieved person or business will be referred to as the complainant. (2) The department or contractor or any employee of the contractor will be referred to as the respondent. (c) If the complaint involves a department employee acting in his or her official capacity, the investigation will be conducted in accordance with department policy set forth in Chapter 2 of the department's Human Resources Manual (relating to Employee Grievances). (d) The Civil Rights Division will notify the appropriate agencies of the investigation, meet separately with complainant and respondent, and prepare a Report of Investigation. (1) If the investigation finds no cause for the complaint, the department will issue a finding of no cause. (2) If the investigation finds cause for the complaint, BOP will meet with the complainant and respondent to discuss a conciliation agreement. (A) If the parties concur, BOP will prepare a conciliation agreement for execution, and monitor the agreement to completion. (B) If the respondent does not agree to a conciliation agreement, the appropriate deputy or assistant executive director will make a final determination of corrective action needed. BOP will monitor corrective actions undertaken by the respondent. (C) If the final determination made by the deputy or assistant executive director is not acceptable to one of the parties, the aggrieved party may appeal to the Business Appeal Committee in accordance with sec.9.61 of this title (relating to Appeals). (D) If an appeal is not filed within ten days after receiving notice of final determination, the determination made by the assistant or deputy executive director will be final and further administrative appeal will be barred. sec.9.61. Appeals. (a) Appeal to United States Department of Transportation. (1) Pursuant to the appeals process outlined in 49 Code of Federal Regulations, sec.23.55, any firm which believes that it has been wrongly denied certification under sec.9.56 of this title (relating to DBE Certification), any third party who has challenged certification under sec.9. 56(k) of this title (relating to Third Party Challenges), any firm alleging discrimination on a federally funded contract under sec.9.59 (relating to Business Complaints), or any firm aggrieved by a department determination related to the DBE program may file an appeal with the United States Department of Transportation at any time. (2) The appeal must be made in writing, signed and dated, no later than 180 days after the date of the offense. The Secretary of Transportation may extend the time for filing or waive the time limit in the interest of justice. (3) The outcome of the United States Department of Transportation appeal process is final. (b) Department appeals. The Business Appeals Committee (BAC) will hear appeals relating to contract complaints, other than contractor claims set forth at sec.1.68 of this title (relating to Contractor Claims), including, but not limited to, specifications, award, execution, and administration, or disputes, protests, or complaints about any aspect of the DBE/HUB programs except for certification or policy disputes. (1) An aggrieved person, contractor, or subcontractor involved in a contract complaint or any other complaint involving discrimination or any aspect of the DBE/HUB program becomes the appellant when appealing a finding of a formal investigation set forth at sec.9.60 of this title (relating to Investigation). (2) BAC will review the finding of the investigation conducted in accordance with sec.9. 60 of this title (relating to Investigation), and the appellant may rebut the proposed finding. (3) BAC may secure detailed reports from the affected parties and confer informally with the appellant and with any other office deemed appropriate by the committee. (4) BAC will give written notice of finding to the appellant. If the finding is acceptable to the appellant, the appellant shall advise the committee chairman in writing within 20 days of the date such notice is received, and the chairman will forward the agreed disposition to the executive director for a final and binding order on the complaint. (5) If the appellant is not satisfied with the BAC findings, no later than 20 days after notice of the committee's recommendation is received, the appellant may petition the executive director of the department for a formal administrative hearing to litigate the claim pursuant to the provisions of sec.sec.1.21-1.63 of this title (relating to Contested Case Procedures). A request for a formal administrative hearing must be made within 20 days of the date the appellant is notified by BAC of the proposed findings. (6) If the appellant does not submit the request within 20 days after receiving notice of the BAC recommendation, that recommendation will be final and all further appeal will be barred. (7) Proceedings before BAC are an attempt to mutually resolve a business complaint without litigation and are not admissible for any purpose in a formal administrative hearing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516669 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630 Chapter 21. Right-of-Way Control of Signs Along Rural Roads 43 TAC sec.21.411, sec.21.421 The Texas Department of Transportation proposes amendments to sec.21.411 and sec.21.421, concerning definitions and exemptions which relate to control of outdoor signs on rural roads. Senate Bill 971, 74th Legislature, 1995, re-codified the statutes relating to transportation into the Transportation Code. Transportation Code, Chapter 394, previously codified at Texas Civil Statutes, Article 6674v-3 (the "Rural Road Act"), provides the department with authority to control outdoor signs on rural roads. Senate Bill 888, 74th Legislature, 1995, amended the Rural Road Act to extend the period of time during which a political sign may be erected from 60 to 90 days before an election. The amendments to sec.21.411 and sec.21.421 extend the period of time which a political sign may be erected from 60 to 90 days before an election. The signs must still be removed ten days after an election. The amendments also provide for minor corrections to statutory citations. Gary Bernethy, P.E., Director, Right of Way Division, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Bernethy has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed amendments. Mr. Bernethy also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to allow for greater exposure to political campaign signs and compliance with Senate Bill 888, 74th Legislature, 1995. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Written comments on the proposed amendments may be submitted to Gary Bernethy, P.E., Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2383. The deadline for receipt of written comments will be 5:00 p.m. on February 2, 1996. The amendments are proposed under the 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 Texas Transportation Code, sec.394.004, which authorizes the commission to adopt rules to regulate the erection and maintenance of signs along rural roads. The amendments do not affect other statutes, articles, or codes. sec.21.411. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-Transportation Code, Chapter 394
                                                                                                                  [Texas Civil Statutes, Article 6674v-3]. Commission-The Texas
                                                                                                                    [State Highway and Public] Transportation Commission. Department-The Texas Department of
                                                                                                                      [State Department of Highways and Public] Transportation. Permit-The authorization granted pursuant to action by the Texas
                                                                                                                        [State Highway and Public] Transportation Commission for the erection of a sign, subject to these sections and the Act. sec.21.421. Exemptions. (a) The following are exempt from these sections: (1) a sign, the erection and maintenance of which is allowed under the highway beautification provisions of the Transportation Code, Chapter 391
                                                                                                                          [Article IV, Texas Litter Abatement Act, Texas Civil Statutes, Article 4477-9a]; (2)-(6) (No change.) (7) a sign erected solely for and relating to a public election, but only if: (A) (No change.) (B) the sign is erected no sooner than the 90th
                                                                                                                            [60th] day before the election and is removed no later than the tenth day after the election; (C)-(E) (No change.) (8) -(9) (No change.) (10) signs required by the Texas Railroad Commission at the principal entrance to or on each oil or gas producing property, well, tank, or measuring facility to identify or to locate such property; such signs shall be no larger in size than is necessary to comply with the Texas Railroad Commission regulations and will have no advertising message other than the name or logo of the company and the necessary directions; and (11) (No change.) (b)-(d) (No change. ) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516671 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630 Chapter 25. Traffic Operations Debarment of a Maintenance Contractor 43 TAC sec.25.503 The Texas Department of Transportation proposes an amendment to sec.25.503, concerning the procedure for debarment of a maintenance contractor. Government Code, Chapter 2161, Transportation Code, sec.201.702, and Title 49, Code of Federal Regulations, Part 23, provide for a Disadvantaged Business Enterprise (DBE) Program on contracts that are funded in whole or in part by federal funds, and for a Historically Underutilized Business (HUB) Program for contracts that are funded in whole by state funds. Section 25.503 is amended to provide for the debarment and suspension of maintenance contractors who violate new sec. s9.50-9.61, concerning the department's business opportunity program which are being simultaneously proposed for permanent adoption, and certain contract provisions concerning discrimination. James Dossett, Director of the Business Opportunity Programs Office, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Dossett has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed amendment. Mr. Dossett also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the ability to debar maintenance contractors who violate new sec. s9.50-9.61, and certain contract provisions concerning discrimination. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed section. The public hearing will be held at 1:30 p.m. on January 17, 1996, in the first floor hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 1:00 p.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views, and same or similar comments, through a representative member where possible. Presentations must remain pertinent to the issue being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who have special communication or accommodation needs and who plan to attend the hearing and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lungren, Director of the Public Information office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed amendment may be submitted to James Dossett, Director of Business Opportunity Programs Office, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be at 5:00 p.m. on February 2, 1996. The amendment is proposed under the Transportation Code, s201.101, 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 Texas Civil Statutes; Government Code, Chapter 2161, which provides for a Historically Underutilized Business Program for contracts that are funded in whole by state funds; and Transportation Code, sec.201.702, which provides for a Disadvantaged Business Enterprise Program. No statutes, articles, or codes are affected by the proposed amendment. sec.25.503. Debarment. (a) The deputy director may debar a contractor, and/or a contractor's affiliate or successor, from bidding on, entering, and/or participating as a subcontractor under a maintenance contract, if that contractor: (1)-(3) (No change.) (4) commits an act or offense, or engages in conduct which is a basis for debarment of a contractor pursuant to s9.6 of this title (relating to Procedure for Debarment of a Contractor),
                                                                                                                              [or] sec.9.8 of this title (relating to Supplemental Procedures for Suspension or Debarment of a Contractor), or sec.9.58 of this title (relating to Contract Compliance)
                                                                                                                                . (b)-(c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516672 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630 Chapter 29. Maintenance Subchapter A. General 43 TAC sec.29.3 The Texas Department of Transportation proposes new sec.29.3, concerning distribution of roadway material to counties. House Bill 1, 74th Legislature, 1995, the General Appropriations Bill for Fiscal Years 1996-1997 requires that the department supply the counties with surplus materials on hand, not to exceed a maximum amount of $12 million over two years. The materials will be used to repair county roads that have been damaged by legally permitted overweight truck traffic. New sec.29.3 explains the purpose of the section, defines words, explains the amount of material that will be distributed, provides the formula for distribution of materials, and provides procedures for application for materials and selection of projects. This section provides that any projects not selected will be forwarded to the construction and maintenance division and the division director will prioritize those projects and may use funds which are still available. This section also provides that any remaining funds will be distributed in a subsequent program and requires a county to haul the material from the district storage site. Walter W. Chambers, P.E., Director of Construction and Maintenance has determined that there will be fiscal implications as a result of enforcing or administering the section. The effect on state government for the two-year period the section will be in effect is an estimated additional cost of $6 million each year. The effect on local government for each year of the two-year period the section will be in effect is an estimated reduction in cost of $6 million. Mr. Chambers has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the section. Mr. Chambers also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be the improved condition of county roads in the counties participating in this program. There will be no effect on small businesses. State and local governmental entities are the only entities required to comply with the new section. Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed section. A public hearing will be held at 9:00 a.m. on January 17, 1996, in the first floor hearing room of the of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 8:30 a.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member where possible. Comments on the proposed test should include appropriate citations to sections, subsections, paragraphs, etc., for proper reference. Any suggestions or requests for alternative language or other revisions in the proposed text should be submitted in written form. Presentations must remain pertinent to the issues being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing- impaired, readers, large print or braille, are requested to contact Eloise Lundgren, Director of Public Information Office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two working days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed new section may be submitted to Walter W. Chambers, P.E., Director of Construction and Maintenance Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be 5:00 p.m. on February 2, 1996. The new section is proposed under the 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 House Bill 1, 74th Legislature, 1995, the General Appropriations Bill for Fiscal Years 1996-1997 which requires that the department supply the counties with surplus materials on hand, not to exceed a maximum amount of $12 million over two years. No statutes, articles, or codes are affected by the proposed new section. sec.29.3. Distribution of Roadway Material to Counties. (a) Purpose. Rider 42 to the department's appropriations for fiscal years 1996-1997 requires the department to assist counties with materials on hand to repair county roads that are damaged as a result of vehicles operating with a permit issued under Transportation Code, sec.623.011. This section prescribes the policies and procedures for the implementation of Rider 42. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Commission-The Texas Transportation Commission. (2) Condition score-A measure of the condition of the pavement of a segment of the state highway system, including surface distress and ride quality, as determined by the department's annual pavement survey. (3) Construction and maintenance division-A division of the department responsible for oversight of the department's statewide construction and maintenance operations. (4) Cost of materials-A statewide average cost of roadway maintenance material available to the counties, such cost to include indirect costs in an amount prescribed by the department's Indirect Cost Recovery Program. (5) County-One of the 254 geographical political subdivisions of the state. (6) County road-A public road under the jurisdiction of a county. (7) Department-The Texas Department of Transportation. (8) District-A subdivision of the department responsible for the day-to-day operations of the department in a specific geographically defined area. (9) District engineer-The chief administrative officer of a district of the department. (10) House Bill 2060 Permit-A permit issued by the department under Transportation Code, sec.623.011 authorizing a vehicle to exceed maximum legal weight limitations. (11) Materials on hand-Roadway maintenance materials previously acquired by the department which are currently in department stock accounts. (12) State highway system-The system of highways in the state included in a comprehensive plan prepared by the department's executive director under the direction and with the approval of the commission in accordance with Transportation Code, sec.221.001. (c) Distribution of material. (1) Amount. In fiscal years 1996 and 1997 the department will distribute up to $6 million worth of material on hand per year to repair county roads that are damaged as a result of vehicles operating with a House Bill 2060 permit. (2) Distribution formula. The materials will be distributed to department districts by giving equal weight to the following factors: (A) lane miles of county roads in each district divided by the total lane miles of county roads in the state; and (B) lane miles of farm-to-market and ranch-to-market roads in the district with a condition score of less than 35 divided by the total lane miles of farm- to-market and ranch-to-market roads in the state with a condition score of less than 35. (d) Application for materials. (1) Material list. Each district will make available to the counties within the district a list of material on hand available for county use, such list to include the cost of materials. (2) Program call. The department will periodically mail applications for the purpose of requesting material on hand to the county judge of each county. A county judge desiring to obtain materials under this section must submit a completed application to the local district engineer prior to the deadline indicated on the application. (3) Form of application. The application shall be in a form prescribed by the department and shall contain at a minimum the following information pertinent to each county road for which material is requested: (A) county road number, location, and project limits; (B) description of damage; (C) average daily traffic (ADT); (D) type and quantity of material requested; (E) the House Bill 2060 permit number and the name of the permittee for each vehicle the county determines has caused damage to the road; (F) the relative priority of each project, if the county requests materials for more than one project; and (G) the projected date the work is to be completed. (e) Selection of projects. (1) Except as provided in paragraph (2) of this subsection, the district will provide the material requested to each county submitting a completed application. (2) If the total dollar value of requests exceeds the district's allocation, the district engineer will prioritize projects based on an engineering analysis. The engineering analysis will take into account: (A) ADT, as provided in the county's application; (B) the impact of the damage on the serviceability of the road; and (C) continued deterioration anticipated by delaying the proposed work. (3) Any projects not selected under paragraph (2) of this subsection will be forwarded to the construction and maintenance division. The division director will prioritize those projects in accordance with paragraph (2) of this subsection. Any district funds distributed under subsection (c)(2) of this section which are not needed to satisfy county requests in a district will be made available to the construction and maintenance division and will be used to fund the projects with top state-wide priority as those available funds permit. (4) Any funds remaining after the distribution provided for in paragraph (3) of this subsection will be distributed in a subsequent program call in accordance with subsection (d) of this section until a total of $12 million has been expended or until the end of fiscal year 1997. (f) County requirements. A county whose project was selected under subsection (e) of this section shall be responsible for the hauling of the material from the site where the material is stored. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on December 22, 1995. TRD-9516673 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: February 2, 1996 For further information, please call: (512) 463-8630