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) proposes amendments to §§4.33, 4.34, 4.37, and 4.39, concerning the substance abuse program.

EXPLANATION OF PROPOSED 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.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined that for each of the first five years in which the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments.

Mr. David McMillan, Human Resources Division Director, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT AND COST

Mr. McMillan has also determined that for each year of the first five years in which the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be that the substance abuse policy and procedures will be simplified and enforced equitably within the department leading to a more dependable and productive workforce. There are no anticipated economic costs for persons required to comply with the sections as proposed.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §§4.33, 4.34, 4.37, and 4.39 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "Rules for substance abuse program." The deadline for receipt of comments is 5:00 p.m. on January 30, 2016. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

STATUTORY AUTHORITY

The amendments are proposed 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.

§4.33.Prohibited Conduct. (a) Employee obligation. Department employees have an obligation to uphold the public's trust in the department by projecting a positive image to other employees and the public at all times.

(b) Alcohol and drug use. An employee is prohibited from using alcohol or drugs, possessing an open container of an alcoholic beverage, or possessing a drug in the workplace.

(c) Alcohol use after accident. An employee is prohibited from using alcohol within eight hours after an accident or before undergoing a post-accident alcohol test, whichever comes first.

(d) Sale of drugs. An employee is prohibited from the illegal sale, distribution, dispensing, transportation, or manufacture of drugs, whether in the workplace or outside the workplace. This prohibition includes any violation of state and federal controlled substances acts.

(e) Lawful medication. An employee is prohibited from reporting to work, working, or operating a state vehicle while under the influence of lawfully prescribed or over-the-counter substances if the employee's performance is impaired. An employee may appropriately use prescribed or over-the-counter medications if work performance is not impaired.

(f) Responsibilities of supervisors. A supervisor may not allow an employee to continue to work if the supervisor has actual knowledge that the employee in the workplace is using alcohol or drugs in the workplace, possesses an open container of an alcoholic beverage in the workplace, or possesses a drug in the workplace.

§4.34.Illegal Drugs.

(a) Distribution. An employee will be terminated from the department if convicted of a criminal drug violation relating to the sale, distribution, dispensing, transportation, or manufacture of drugs, whether in the workplace or outside the workplace. A final applicant will not be hired if the final applicant is on probation or parole for a felony conviction related to the sale, distribution, dispensing, transportation, or manufacture of drugs or the possession with the intent to sell, distribute, dispense, transport, or manufacture drugs. An employee will be terminated from the department if it is determined that at the time of hire, the employee was on probation or parole for a felony conviction related to the sale, distribution, dispensing, transportation, or manufacture of drugs or the possession with the intent to sell, distribute, dispense, transport, or manufacture drugs.

(b) Suspicious substance. The following procedure will be followed if a substance appearing to be a drug is found in the possession of an employee in the workplace. It will also be followed if an employee is reasonably suspected of selling, distributing, dispensing, transporting, or manufacturing drugs, or conspiring to sell, distribute, dispense, transport, or manufacture drugs, whether in the workplace or outside the workplace. Reasonable suspicion may be based on any circumstance, including direct observation in the workplace or an arrest, charge, or indictment for an offense related to selling, distributing, dispensing, transporting, or manufacturing drugs.

(1) The employee's supervisor will immediately place the employee on administrative leave pending investigation by the department.

(2) The employee will immediately be provided with a letter that:

(A) summarizes the facts on which reasonable suspicion is based;

(B) notifies the employee that involvement in selling, distributing, dispensing, transporting, or manufacturing drugs subjects the employee to termination from the department;

(C) advises that the employee will have a specified time in which to provide a reasonable explanation to the employee's supervisor or substance control officer; and

(D) advises that the employee may be terminated from the department if the employee refuses to offer a reasonable explanation, if the response indicates that the employee sold, distributed, dispensed, transported, or manufactured drugs, or conspired to sell, distribute, dispense, transport, or manufacture drugs, or if the response is insufficient or unacceptable.

(3) An employee who is suspected of involvement in selling, distributing, dispensing, transporting, or manufacturing drugs will be terminated from the department if:

(A) the employee fails to respond within the specified time or to provide a sufficient and acceptable explanation;

(B) the substance control officer confirms the illegal acts; or

(C) investigation by law enforcement or other governmental authorities confirms the illegal acts.

(4) An employee who used or possessed drugs in the workplace, but did not sell, distribute, dispense, transport, or manufacture drugs, or conspire to sell, distribute, dispense, transport, or manufacture drugs, will be mandatorily referred to the EAP and required to complete treatment if:

(A) the employee fails to respond within the specified time or to provide a sufficient and acceptable explanation;

(B) the substance control officer confirms the illegal acts; or

(C) investigation by law enforcement or other governmental authorities confirms the illegal acts.

(5) An employee will be made aware of the EAP if it is determined that the employee used drugs outside the workplace and did not use drugs in the workplace or sell, distribute, dispense, transport, or manufacture drugs.

(6) If an employee is reasonably suspected of selling, distributing, dispensing, transporting, or manufacturing drugs, or conspiring to sell, distribute, dispense, transport, or manufacture drugs, the substance control officer shall contact the Compliance Division [Office of General Counsel] or the substance abuse program staff of the Human Resources Division immediately, before turning the matter over to law enforcement authorities.

(c) Notifications.

(1) An employee shall notify the employee's supervisor in writing if the employee is arrested, charged, or indicted for an offense related to selling, distributing, dispensing, transporting, or manufacturing drugs, whether in the workplace or outside the workplace. If the employee fails to make this notification within one day after returning to work following the occurrence, the employee will be suspended three days without pay.

(2) An employee shall notify the employee's supervisor in writing if the employee is convicted of an offense related to selling, distributing, dispensing, transporting, or manufacturing drugs, whether in the workplace or outside the workplace. If the employee fails to make this notification within one day after returning to work following the occurrence, the employee will be terminated from the department whenever it is discovered.

(3) An employee shall notify the employee's supervisor in writing if the employee is convicted of any violation of any criminal drug statute based on the employee's conduct in the workplace for which notification is not required under paragraph (2) of this subsection. This notification must occur within one work day after the employee returns to work following the conviction if the violation is related to conduct that occurred in the workplace. If the employee fails to make this notification on time, the department will suspend the employee within 30 days after it discovers the conviction. The suspension will be for three days without pay. Under the Drug Free Workplace Act 1988, 41 U.S.C. §§701 - 707, the department will notify the appropriate federal agency of the conviction within 10 days after receipt of the notice.

§4.37.Test Results.

(a) Requirements after violation. An employee shall complete the following requirements if the employee has a positive drug test result or an alcohol test result of 0.04 or greater,[if the employee refuses to test,] or if the employee is a commercial driver, safety-impact employee, or vessel crewmember who violated §4.44(b)(1) - (5) of this subchapter.

(1) The supervisor or the substance control officer will mandatorily refer the employee to the EAP and require the employee to complete treatment.

(2) The employee will undergo a return-to-duty alcohol or drug test. An alcohol test must indicate a result of less than .02, and a drug test must indicate a verified negative result. An employee will be terminated from the department if the employee fails to pass the return-to-duty drug or alcohol test.

(3) The employee will provide a completed return-to-work form before resuming any critical duties. Commercial drivers, vessel crewmembers, and safety-impact employees who are not required to provide a return-to-work form will still be subject to a return-to-duty test.

(4) The employee will undergo follow-up testing for alcohol or drugs for up to 60 months. Follow-up testing will include at least 6 tests in the first 12 months after the employee's return to duty. The number and frequency of follow-up tests will be established by the EAP counselors. The EAP counselors may terminate the requirement for further testing at any time after the first six tests have been administered. An employee who fails to pass a follow-up drug or alcohol test has not completed treatment and will be terminated from the department.

(b) Termination. An employee who has accrued twelve months or less of employment with the department or who is a project or temporary employee will be terminated from the department if the employee [refuses to test or] has a positive drug test result or an alcohol test result of 0.04 or greater [and is still in the employee's initial probationary period or is a project or temporary employee].

(c) Required leave. If an employee has an alcohol test with a result of 0.02 or greater but less than 0.04, the supervisor or the substance control officer will prohibit the employee from working for 24 hours and will require the employee to take sick leave, vacation leave, compensatory time, or leave without pay. The employee will only be required to take leave without pay if the employee has exhausted all accrued leave.

§4.39.Refusal to Test.

(a) Termination for refusal. An employee who refuses to test will be terminated from the department. [Employees in general. The department will mandatorily refer an employee to the EAP if the employee refuses to test, except commercial drivers, safety-impact employees, and vessel crewmembers.]

(b) Characterization of refusal. [Commercial drivers, safety-impact employees, and vessel crewmembers. A commercial driver, safety- impact employee, or vessel crewmember will be terminated from the department if the employee refuses to test.]

[(c) Covered conduct.] An employee will be considered to have refused to test under any of the following circumstances.

(1) The employee explicitly declines to take a required test, whether a first test or a subsequent test.

(2) The employee fails to appear for an alcohol or drug test, except a pre-employment test, within a reasonable time, as determined by the department, after being directed to do so.

(3) The employee fails to remain at the testing site until the testing process is complete. In the case of a pre-employment test, a final applicant who leaves the testing site before the testing process begins has not refused to test.

(4) The employee does not attempt to provide a breath specimen for a required alcohol test or to provide a urine specimen for a required drug test.

(5) The employee does not permit the observation or monitoring of the employee's provision of a specimen in the case of directly observed or monitored collection.

(6) The employee fails to provide a sufficient breath specimen or a sufficient amount of urine when directed and there is no adequate medical explanation for the failure, as determined through a required medical evaluation.

(7) The employee fails to undergo a medical examination or evaluation that was directed by an appropriate official. In the case of a pre-employment test, the final applicant has refused to test on this basis only if the test is conducted after the final applicant has been given a conditional offer of employment.

(8) The employee fails to sign the certification at Step 2 of the Alcohol Testing Form.

(9) The employee fails to cooperate in any part of the testing process, including refusing to empty pockets when so directed by the collector, behaving in a confrontational way that disrupts the collection process, fails to wash hands after being directed to do so by the collector, or any other uncooperative behavior.

(10) The specimen contains levels of a substance that is lower than expected for human urine, a specimen that contains levels of a substance that are inconsistent with human urine, or a specimen has a creatinine and specific gravity value lower than expected for human urine.

(11) An employee does not remain available for any mandatory alcohol or drug test.

(12) For an observed collection, the employee fails to follow the observer's instructions to raise clothing above the waist, lower clothing and underpants, or to turn around to permit the observer to determine if the employee has any type of prosthetic or other device that could be used to interfere with the collection process.

(13) The employee possesses or wears a prosthetic or other device that could be used to interfere with the collection process.

(14) The employee admits to the collector or medical review officer that the employee adulterated or substituted the specimen.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 15, 2016.

TRD-201606615

Leonard Reese

Associate General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 29, 2017

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) proposes amendments to §9.14, Submittal of Bid, concerning Highway Improvement Contracts.

EXPLANATION OF PROPOSED 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.

FISCAL NOTE

Brian Ragland, Chief Financial Officer, has determined that for each of the first five years in which the amendments as proposed are in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the amendments.

Mr. Tracy Cain, Director, Construction Division, has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments.

PUBLIC BENEFIT AND COST

Mr. Cain has also determined that for each year of the first five years in which the sections are in effect, the public benefit anticipated as a result of enforcing or administering the amendments will be clarity in the bidding requirements for highway improvement contracts and accuracy of the applicable rules of the commission. There are no anticipated economic costs for persons required to comply with the sections as proposed.

SUBMITTAL OF COMMENTS

Written comments on the proposed amendments to §9.14 may be submitted to Rule Comments, General Counsel Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 or to RuleComments@txdot.gov with the subject line "Rules for highway contract bids." The deadline for receipt of comments is 5:00 p.m. on January 30, 2017. In accordance with Transportation Code, §201.811(a)(5), a person who submits comments must disclose, in writing with the comments, whether the person does business with the department, may benefit monetarily from the proposed amendments, or is an employee of the department.

STATUTORY AUTHORITY

The amendments are proposed 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.

§9.14.Submittal of Bid. (a) Acceptable methods. Bids for department highway improvement contracts may be submitted either manually or electronically.

(b) Manually submitted bids. For the purpose of manually submitting a bid, an acceptable bid form is the form that is printed and given to the bidder by the department, a computer printout that meets the requirements of paragraph (3) of this subsection, or a form printed by the bidder from EBS.

(1) Delivery of Bid. The bidder shall place each completed bid form in a sealed envelope marked to show its contents. When submitted by mail, this envelope shall be placed in another envelope which shall be sealed and addressed as indicated in the notice. Bids must be received on or before the hour and date set for the receipt and opening of bids and must be in the hands of the department letting official by that time.

(2) Bid content. The bidder shall submit the bid in compliance with the following requirements.

(A) Except as provided in subparagraph (B) of this paragraph and paragraph (3) of this subsection, the blank spaces for each item as required in the bid form shall be filled in by writing in words in ink.

(B) The bidder shall submit a unit price for each item for which a bid is requested (including a zero if appropriate), except in the case of a regular bid item that has an alternate bid item. In such case, prices must be submitted for the base bid or with the set of items of one or more of the alternates.

(C) The bid shall be executed with ink in the complete and correct name of the bidder making the bid and be signed by the person or persons authorized to bind the bidder.

(D) Except in the case of a regular bid item that has an alternate bid item, unit prices shall be stated in dollars and/or cents for each bid item listed in the bid form.

(3) Computer printouts.

(A) For manually submitted bids, a bidder may, in lieu of writing in words in ink, submit an original computer printout sheet bearing the authorized signature for the bidder. The unit prices shown on acceptable printouts will be the official unit prices used to tabulate the official total bid amount and used in the contract if awarded by the commission.

(B) Computer printouts are not acceptable on building contracts.

(c) Electronically submitted bids. In lieu of submitting a printed bid form, the bidder may submit the bid electronically using EBS in accordance with this subsection.

(1) Bids must be received by the electronic vault on or before the time and date set for the receipt and opening of bids.

(2) For the submission or withdrawal of electronic bids, the bidder is responsible for obtaining its use of a computer system and access to the Internet.

(3) The department is not responsible for a bidder being unable to submit or withdraw a bid due to the unavailability of the Internet.

(4) The bid shall be in the correct name of the bidder making the bid [and executed by digitally signing the bid by the person or persons authorized to bind the bidder or bidders, in the case of a joint venture, using the digital signature assigned in the digital certificate issued to the person by the department].

[(5) For purposes of this subsection, digital certificate means an electronic identifier assigned in a digital certificate and intended by the person using it to have the same force and effect as the use of a manual signature for signing an electronic document.]

(d) Bid guaranty. Except as provided in paragraph (4) [(5)] of this subsection, a bidder must submit a bid guaranty with the bid for a contract that, on the date of the release of its advertisement, has an engineer's estimate of more than $25,000. The amount of the guaranty is equal to two percent of the estimate, rounded to the nearest $1,000, not to exceed $100,000.

(1) Except as provided in paragraph (2) or (4) [(5)] of this subsection, the bid guaranty must be [in the amount specified by the bid form,] made payable to the order of the commission[,] and in the form of a cashier's check, money order, or teller's check drawn by or on a state or national bank, savings and loan association, or a state or federally chartered credit union (collectively referred to as a "bank"). The check must be payable at or through the institution issuing the instrument, or must be drawn by a bank on a bank, or by a bank and payable at or through a bank. The form of the instrument must be identified on the instrument's face.

(2) A bidder may submit a bid bond, in lieu of providing the guaranty required in paragraph (1) of this subsection. The bid bond shall be on the form [and in the amount] specified by the department. A bid bond will only be accepted from a surety company authorized to execute a bond under and in accordance with state law. The bond must be dated on or before the date of the bid opening, bear the impressed seal of the surety company and the name of the bidder, and be signed by the bidder or bidders, in the case of a joint venture, and an authorized representative of the surety company. As an alternative for joint venture bidders, each of the bidders may submit a separate bid bond, completed as outlined in this paragraph. Powers of attorney must be attached to the bid bond. The bid bond amount required by the department must be within the surety company's authorized bonding limit.

(3) The department will not accept as a bid guaranty:

(A) personal checks or certified checks;

(B) other types of money orders; or

(C) checks or money orders more than 90 days old.

[(4) The commission will establish by order bid guaranty and bid bond amounts. The commission may require a greater amount for a bid bond in order to compensate for increased administrative costs associated with bid bonds.]

(4) [(5)] For bids submitted electronically under subsection (c) of this section, the bid guaranty must be an electronic bid bond, the form of which must be the most current version issued by the department. For joint venture bidders, the bond must be made in the name of all joint venture bidder participants. The bond authorization code must be entered into the authorization code field contained in EBS. Only bond authorization codes from the companies listed in the most recent version of EBS are acceptable. Printed checks or bid bond forms are not acceptable as guaranties for electronic bids.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 15, 2016.

TRD-201606616

Leonard Reese

Associate General Counsel

Texas Department of Transportation

Earliest possible date of adoption: January 29, 2017

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