TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 4. EMPLOYMENT PRACTICES

SUBCHAPTER D. SUBSTANCE ABUSE PROGRAM

43 TAC §§4.33, 4.34, 4.37, 4.39

The Texas Department of Transportation (department) adopts amendments to §§4.33, 4.34, 4.37, and 4.39, concerning the substance abuse program. The amendments to §§4.33, 4.34, 4.37, and 4.39 are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10532) and will not be republished.

EXPLANATION OF ADOPTED AMENDMENTS

Amendments to the Substance Abuse Program rules are proposed to more closely align the rules with federal law as well as department policy, and to create a clear and uniform administration of the rules across the department's workforce in order to strive for a safer and more productive workforce.

Amendments to §4.33, Prohibited Conduct, and §4.34, Illegal Drugs, add the word "dispensing" or "dispense" to the list of prohibited activities because the federal Drug Free Workplace Act requires that department policy specifically reference this activity.

An amendment to §4.34, Illegal Drugs, requires consultation with the Compliance Division rather than the General Counsel Division because the Compliance Division is currently responsible for coordinating reports of illegal activity to law enforcement.

Amendments to §4.37, Test Results, delete the reference to the probationary employees because department policy no longer provides for an initial probationary period for employees. Instead, the rules are amended to provide that an employee who has been employed by the department for twelve months or less will be terminated rather than mandatorily referred for testing positive for drugs or failing an alcohol test. This section is also amended to remove the reference to refusal to test because that issue is covered in §4.39. Amendments also add non-substantive subsection headings for §4.37 to be consistent with the other sections in this subchapter.

Amendments to §4.39, Refusal to Test, provide that any employee who refuses to test will be terminated. Currently, this requirement only applies to commercial drivers, safety-impact employees, and vessel crewmembers. The department has determined that the consequences for refusal to test will be consistently applied to all employees across the department, as the agency establishes a transparent and standardized administration of the rules across the workforce.

COMMENTS

No comments on the proposed amendments were received.

STATUTORY AUTHORITY

The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department.

CROSS REFERENCE TO STATUTE

None.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 29, 2017.

TRD-201701342

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Effective date: April 18, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 463-8630


CHAPTER 9. CONTRACT AND GRANT MANAGEMENT

SUBCHAPTER B. HIGHWAY IMPROVEMENT CONTRACTS

43 TAC §9.14

The Texas Department of Transportation (department) adopts amendments to §9.14, Submittal of Bid, concerning Highway Improvement Contracts. The amendments to §9.14 are adopted without changes to the proposed text as published in the December 30, 2016, issue of the Texas Register (41 TexReg 10535) and will not be republished.

EXPLANATION OF ADOPTED AMENDMENTS

The staff of the department recently performed a review of the minute orders of the Texas Transportation Commission (commission) to consider whether for each minute order that has apparent continuing effect, the reason for adopting the minute order continues to exist and if so, whether the minute order provides policy that is appropriate for the current conditions. The department determined that Minute Order 108851, adopted March 28, 2002, and relating to guaranties for bids for highway improvement contracts, remains in effect and that it is appropriate for the substance of the minute order to be placed in the commission's rules. This rulemaking amends §9.14 to place the substance of Minute Order 108851 in the rules of the commission. Additionally, this rulemaking removes references to a digital certificate as a requirement for an electronically submitted bid.

Amendments to §9.14, Submittal of Bid, delete the requirement in subsection (c)(4) of that section that an electronically submitted bid be executed by digitally signing the bid using the digital signature assigned in a digital certificate issued by the department because the currently used procedure does not require such a signature. Accordingly, subsection (c)(4), which contains a definition of "digital certificate" is also deleted as unnecessary.

Amendments to §9.14(d) add the requirements for a bid guaranty that are contained in Minute Order 108851. A bid guaranty is only required if the amount of the contract is estimated to be more than $25,000, as of the first date that the contract is advertised for bid. The amount of the guaranty is computed by multiplying the estimated amount of the contract by two percent and rounding the result to the nearest $1,000. The amount of the guaranty is capped at $100,000.

COMMENTS

No comments on the proposed amendments were received.

STATUTORY AUTHORITY

The amendments are adopted under Transportation Code, §201.101, which provides the commission with the authority to establish rules for the conduct of the work of the department, and more specifically, §223.014, which provides the commission with the authority to adopt rules to provide a method by which a bidder may submit a bid guaranty.

CROSS REFERENCE TO STATUTE

Transportation Code, Chapter 223, Subchapter A.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on March 29, 2017.

TRD-201701341

Joanne Wright

Deputy General Counsel

Texas Department of Transportation

Effective date: April 18, 2017

Proposal publication date: December 30, 2016

For further information, please call: (512) 463-8630