Docstoc

Volume 27 Number 11 March 15, 2002

Document Sample
Volume 27 Number 11 March 15, 2002 Powered By Docstoc
					Volume 27   Number 11 March 15, 2002   ________ ______ _______   __Pages 1941-2129
This month's front cover artwork:
  Artist: Trista Doss
  12th Grade
  Blanket High School

    School children's artwork has decorated the blank filler pages of the Texas Register
since 1987. Teachers throughout the state submit the drawings for students in grades K-
12. The drawings dress up the otherwise gray pages of the Texas Register and introduce
students to this obscure but important facet of state government.
    We will display artwork on the cover of each Texas Register. The artwork featured on
the front cover is chosen at random.
    The artwork is published on what would otherwise be blank pages in the Texas
Register. These blank pages are caused by the production process used to print the Texas
Register. The artwork does not add additional pages to each issue and does not increase
the cost of the Texas Register.



   Texas Register, (ISSN 0362-4781), is published weekly, 52 times a year. Issues
will be published by the Office of the Secretary of State, 1019 Brazos, Austin,
Texas 78701. Subscription costs: printed, one year $200. First Class mail
subscriptions are available at a cost of $300 per year. Single copies of most issues
for the current year are available at $10 per copy in printed format.
   Material in the Texas Register is the property of the State of Texas. However, it
may be copied, reproduced, or republished by any person without permission of
the Texas Register Director, provided no such republication shall bear the legend
Texas Register or "Official" without the written permission of the director.
   The Texas Register is published under the Government Code, Title 10, Chapter
2002. Periodicals Postage Paid at Austin, Texas and additional mailing offices.
   POSTMASTER: Send address changes to the Texas Register, P.O. Box
13824, Austin, TX 78711-3824.


                             a section of the                   Texas Administrative Code
                             Office of the Secretary of State   Dana Blanton
                             P.O. Box 13824                     Roberta Knight
                             Austin, TX 78711-3824
                             (800) 22607199                     Texas Register
                             (512) 463-5561                     Leti Benavides
                             FAX (512) 463-5569                 Carla Carter
                             http://www.sos.state.tx.us         Melissa Dix
                             Secretary of State - Gwyn Shea     Kris Hogan
                             Director - Dan Procter             Diana Muniz-Franklin

                             Customer Relations                 Circulation/Marketing
                             Blythe Cone                        Jill S. Ledbetter
                             LaKiza Fowler-Sibley
GOVERNOR                                                                                                       FEES
Appointments.................................................................................1947     22 TAC §223.1 ...............................................................................1968
ATTORNEY GENERAL                                                                                      TEXAS STATE BOARD OF PHARMACY
Request for Opinions .....................................................................1949                 LICENSING REQUIREMENTS FOR PHARMACISTS
EMERGENCY RULES                                                                                       22 TAC §283.1, §283.6 ..................................................................1969

TEACHER RETIREMENT SYSTEM OF TEXAS                                                                             PHARMACIES
         INSURANCE PROGRAMS                                                                           22 TAC §291.1, §291.4 ..................................................................1970

34 TAC §§41.33 - 41.35.................................................................1951           22 TAC §291.11 .............................................................................1972

PROPOSED RULES                                                                                                 PHARMACISTS
                                                                                                      22 TAC §§295.5, 295.7, 295.9 .......................................................1973
OFFICE OF THE SECRETARY OF STATE
                                                                                                      TEXAS BOARD OF VETERINARY MEDICAL
         ELECTIONS
                                                                                                      EXAMINERS
1 TAC §81.412 ..............................................................................1953
                                                                                                               LICENSING
TEXAS BUILDING AND PROCUREMENT
                                                                                                      22 TAC §571.3 ...............................................................................1974
COMMISSION
                                                                                                      22 TAC §571.4 ...............................................................................1975
         EXECUTIVE ADMINISTRATION DIVISION
                                                                                                      22 TAC §571.18 .............................................................................1976
1 TAC §§111.14, 111.17, 111.28 ...................................................1953
                                                                                                               RULES OF PROFESSIONAL CONDUCT
         CENTRAL PURCHASING DIVISION
                                                                                                      22 TAC §573.11 .............................................................................1976
1 TAC §113.21 ...............................................................................1956
                                                                                                      TEXAS DEPARTMENT OF INSURANCE
         SURPLUS AND SALVAGE PROPERTY PROGRAMS
                                                                                                               PROPERTY AND CASUALTY INSURANCE
1 TAC §§126.1 - 126.5...................................................................1956
                                                                                                      28 TAC §5.206 ...............................................................................1977
1 TAC §§126.1 - 126.6...................................................................1957
                                                                                                      28 TAC §5.3700 .............................................................................1978
DEPARTMENT OF INFORMATION RESOURCES
                                                                                                      TEXAS NATURAL RESOURCE CONSERVATION
    PLANNING AND MANAGEMENT OF                                                                        COMMISSION
INFORMATION RESOURCES TECHNOLOGIES
                                                                                                               PUBLIC DRINKING WATER
1 TAC §201.12 ...............................................................................1960
                                                                                                      30 TAC §290.251, §290.261 ..........................................................1978
         STATE WEB SITES
                                                                                                               UTILITY REGULATIONS
1 TAC §§206.1 - 206.5...................................................................1961
                                                                                                      30 TAC §291.145 ...........................................................................1982
TEXAS HEALTH AND HUMAN SERVICES
COMMISSION                                                                                               INDUSTRIAL SOLID WASTE AND MUNICIPAL
                                                                                                      HAZARDOUS WASTE
    COORDINATED PLANNING AND DELIVERY OF
HEALTH AND HUMAN SERVICES                                                                             30 TAC §335.29 .............................................................................1988
1 TAC §§351.17, 351.19, 351.21, 351.23 ......................................1965                     30 TAC §335.67 .............................................................................1989

TEXAS DEPARTMENT OF AGRICULTURE                                                                       30 TAC §335.322, §335.323 ..........................................................1989

         COTTON PEST CONTROL                                                                          TEXAS GROUNDWATER PROTECTION COMMITTEE
4 TAC §20.13 .................................................................................1966             GROUNDWATER CONTAMINATION REPORT
TEXAS SAVINGS AND LOAN DEPARTMENT                                                                     31 TAC §§601.2, 601.3, 601.5 .......................................................1990

    MORTGAGE BROKER AND LOAN OFFICER                                                                  OFFICE OF THE FIRE FIGHTERS’ PENSION
LICENSING                                                                                             COMMISSIONER
7 TAC §80.9 ...................................................................................1967       RULES OF THE TEXAS STATEWIDE EMERGENCY
                                                                                                      SERVICES RETIREMENT FUND
BOARD OF NURSE EXAMINERS
                                                                                                      34 TAC §301.5, §301.6 ..................................................................1992




                                                                                                                   TABLE OF CONTENTS 27 TexReg 1943
TEXAS DEPARTMENT OF HUMAN SERVICES                                                                  1 TAC §§123.23 - 123.33...............................................................2006
         TEXAS WORKS                                                                                1 TAC §123.43, §123.44 ................................................................2007
40 TAC §3.7603 .............................................................................1994    DEPARTMENT OF INFORMATION RESOURCES
   LICENSING STANDARDS FOR HOME AND                                                                     PLANNING AND MANAGEMENT OF
COMMUNITY SUPPORT SERVICES AGENCIES                                                                 INFORMATION RESOURCES TECHNOLOGIES
40 TAC §97.602 .............................................................................1994    1 TAC §201.5 .................................................................................2007
TEXAS DEPARTMENT OF TRANSPORTATION                                                                  1 TAC §201.7 .................................................................................2007
         MANAGEMENT                                                                                 1 TAC §201.18 ...............................................................................2008
43 TAC §1.506 ...............................................................................1995   TEXAS SAVINGS AND LOAN DEPARTMENT
         EMPLOYMENT PRACTICES                                                                           MORTGAGE BROKER AND LOAN OFFICER
                                                                                                    LICENSING
43 TAC §4.13, §4.14 ......................................................................1996
                                                                                                    7 TAC §80.20 .................................................................................2008
    TRANSPORTATION PLANNING AND
PROGRAMMING                                                                                         PUBLIC UTILITY COMMISSION OF TEXAS
43 TAC §§15.140 - 15.145.............................................................1997               SUBSTANTIVE RULES APPLICABLE TO
                                                                                                    TELECOMMUNICATIONS SERVICE PROVIDERS
WITHDRAWN RULES
                                                                                                    16 TAC §26.315 .............................................................................2009
TEXAS BUILDING AND PROCUREMENT
COMMISSION                                                                                          TEXAS DEPARTMENT OF HEALTH
         EXECUTIVE ADMINISTRATION DIVISION                                                                   NUTRITION SERVICES
1 TAC §§111.14, 111.17, 111.28 ...................................................2001              25 TAC §§31.21, 31.30, 31.32 - 31.37...........................................2014

OFFICE OF THE FIRE FIGHTERS’ PENSION                                                                         RADIATION CONTROL
COMMISSIONER                                                                                        25 TAC §289.202 ...........................................................................2019
    RULES OF THE TEXAS STATEWIDE EMERGENCY                                                          TEXAS DEPARTMENT OF MENTAL HEALTH AND
SERVICES RETIREMENT FUND                                                                            MENTAL RETARDATION
34 TAC §301.5, §301.6 ..................................................................2001                 OTHER AGENCIES AND THE PUBLIC
ADOPTED RULES                                                                                       25 TAC §§403.41 - 403.53.............................................................2041
TEXAS BUILDING AND PROCUREMENT                                                                               LOCAL AUTHORITY RESPONSIBILITIES
COMMISSION                                                                                          25 TAC §§412.101 - 412.115.........................................................2041
         CENTRAL PURCHASING DIVISION
                                                                                                    COMPTROLLER OF PUBLIC ACCOUNTS
1 TAC §113.17 ...............................................................................2003
                                                                                                             TAX ADMINISTRATION
         FACILITIES LEASING PROGRAM                                                                 34 TAC §3.316 ...............................................................................2051
1 TAC §§115.1 - 115.10.................................................................2003
                                                                                                    34 TAC §3.320 ...............................................................................2051
1 TAC §§115.1 - 115.11.................................................................2004
                                                                                                    34 TAC §3.368 ...............................................................................2053
   FACILITIES CONSTRUCTION AND SPACE                                                                34 TAC §3.1281 .............................................................................2053
MANAGEMENT DIVISION
                                                                                                             PROPERTY TAX ADMINISTRATION
1 TAC §123.1, §123.2 ....................................................................2005
                                                                                                    34 TAC §9.417 ...............................................................................2053
1 TAC §123.12, §123.13 ................................................................2005
                                                                                                    34 TAC §9.419 ...............................................................................2055
1 TAC §§123.23 - 123.33...............................................................2005
1 TAC §123.43, §123.44 ................................................................2005
                                                                                                    EMPLOYEES RETIREMENT SYSTEM OF TEXAS
                                                                                                             HEARINGS ON DISPUTED CLAIMS
   FACILITIES CONSTRUCTION AND SPACE
MANAGEMENT DIVISION                                                                                 34 TAC §67.57 ...............................................................................2058
1 TAC §123.1, §123.2 ....................................................................2006                BENEFITS
1 TAC §123.12, §123.13 ................................................................2006         34 TAC §73.11 ...............................................................................2058




TABLE OF CONTENTS                                   27 TexReg 1944
         HAZARDOUS PROFESSION DEATH BENEFITS                                                         43 TAC §§53.60 - 53.71.................................................................2075
34 TAC §75.1 .................................................................................2058   43 TAC §§53.90 - 53.94.................................................................2076
34 TAC §75.2 .................................................................................2059   EXEMPT FILINGS
OFFICE OF THE FIRE FIGHTERS’ PENSION                                                                 Texas Department of Insurance
COMMISSIONER
                                                                                                     Proposed Rule Action ....................................................................2077
    RULES OF THE TEXAS STATEWIDE EMERGENCY
SERVICES RETIREMENT FUND                                                                             RULE REVIEW
34 TAC §301.2 ...............................................................................2060    Proposed Rule Reviews
TEXAS DEPARTMENT OF HUMAN SERVICES                                                                   Texas Department of Banking........................................................2083
                                                                                                     Texas Groundwater Protection Committee ....................................2083
         TEXAS WORKS
                                                                                                     Texas Department of Health ..........................................................2084
40 TAC §3.1203 .............................................................................2060
    NURSING FACILITY REQUIREMENTS FOR                                                                Adopted Rule Review
LICENSURE AND MEDICAID CERTIFICATION                                                                 Public Utility Commission of Texas ..............................................2084
40 TAC §19.210 .............................................................................2061     TABLES AND GRAPHICS
40 TAC §19.2308 ...........................................................................2061      Tables and Graphics
TEXAS DEPARTMENT OF TRANSPORTATION                                                                   Tables and Graphics .......................................................................2097
         ENVIRONMENTAL POLICY                                                                        IN ADDITION
43 TAC §2.23, §2.25 ......................................................................2063       Coastal Bend Workforce Development Board
43 TAC §2.23 .................................................................................2064   Public Notice to Comment on Draft Workforce Development Inte-
         EMPLOYMENT PRACTICES                                                                        grated Plan Modification ...............................................................2099

43 TAC §§4.60 - 4.64.....................................................................2065        Comptroller of Public Accounts
43 TAC §§4.60 - 4.63.....................................................................2066        USAS Certification Notice ............................................................2099
         VEHICLE TITLES AND REGISTRATION                                                             Office of Consumer Credit Commissioner
43 TAC §§17.1 - 17.3.....................................................................2067        Notice of Rate Ceilings .................................................................2100
43 TAC §§17.21, 17.22, 17.52 .......................................................2067             Texas Council for Developmental Disabilities
         RIGHT OF WAY                                                                                Deadline Extended for Training Proposals ....................................2100
43 TAC §§21.111 - 21.117.............................................................2071            Texas Department of Criminal Justice
43 TAC §§21.111 - 21.118.............................................................2071            Notice to Bidders ...........................................................................2100
         TRAVEL INFORMATION                                                                          Deep East Texas Local Workforce Development Board
43 TAC §23.29 ...............................................................................2071    Public Hearing Notice....................................................................2101
TEXAS TURNPIKE AUTHORITY DIVISION OF THE                                                             East Texas Council of Governments
TEXAS DEPARTMENT OF TRANSPORTATION                                                                   Request for Proposals for Operation and Management of East Texas
         MANAGEMENT                                                                                  Workforce Centers .........................................................................2101
43 TAC §50.1, §50.2 ......................................................................2074       Edwards Aquifer Authority
43 TAC §§50.3 - 50.30...................................................................2074         Removal of rules from Title 31 Texas Administrative Code, Part 20
                                                                                                     ........................................................................................................2101
43 TAC §50.32, §50.33 ..................................................................2074
                                                                                                     Texas Ethics Commission
43 TAC §§50.41 - 50.45.................................................................2074
                                                                                                     List of Late Filers...........................................................................2101
43 TAC §§50.50 - 50.54.................................................................2075
                                                                                                     Texas Commission on Fire Protection
43 TAC §§50.60 - 50.62.................................................................2075
                                                                                                     Notice.............................................................................................2102
    CONTRACTING AND PROCUREMENT
PROCEDURES                                                                                           Texas Department of Health




                                                                                                                   TABLE OF CONTENTS 27 TexReg 1945
Licensing Actions for Radioactive Materials.................................2102                          Notice of Opportunity to Comment on Default Orders of Administra-
                                                                                                          tive Enforcement Actions...............................................................2115
Notice of Emergency Cease and Desist Order on Oscar Benavides,
M.D. ..............................................................................................2105   Notice of Opportunity to Comment on Settlement Agreements of Ad-
                                                                                                          ministrative Enforcement Actions ................................................2115
Notice of Emergency Order on David E. Garza, D.O., P.A. ..........2106
                                                                                                          Notice of Public Hearing on Proposed Revisions to Chapter 291, Utility
Notice of Intent to Revoke Certificates of Registration ................2106
                                                                                                          Regulations ....................................................................................2117
Notice of Intent to Revoke the Radioactive Material License of Quan-
                                                                                                          Notice of Water Quality Applications............................................2117
tum MRI West Loop and Diagnostic Center..................................2106
                                                                                                          Notice of Water Rights Applications .............................................2119
Notice of Public Meetings Concerning the Rabies Immunization Re-
quirements for Dogs and Cats in Texas .........................................2106                       Proposal for Decision.....................................................................2121
Texas Health and Human Services Commission                                                                Public Utility Commission of Texas
Public Notice..................................................................................2107       Notice of Workshop Concerning Planning Reserve Margin Require-
                                                                                                          ments ..............................................................................................2122
Public Notice..................................................................................2107
                                                                                                          Public Notice of Interconnection Agreement ................................2122
Public Notice..................................................................................2107
                                                                                                          Requests for Comments on Proposed Changes to Earnings Report
Request for Proposals ...................................................................2107
                                                                                                          Forms .............................................................................................2122
Heart of Texas Council of Governments                                                                     Request for Proposals for Assistance in the Performance of Indepen-
Public Notice..................................................................................2108       dent Measurements and Tests to Evaluate the Effectiveness of the PUC
                                                                                                          Customer Education Campaign Related to Electric Restructuring 2123
Texas Department of Housing and Community Affairs
                                                                                                          Texas Racing Commission
Housing Trust Fund Capacity Building Program - Notice of Funds
Available ........................................................................................2108    Correction of Error.........................................................................2123
Housing Trust Fund Pre-development Loan Fund Program - Notice of                                          South Plains Regional Workforce Development Board
Funds Available .............................................................................2109
                                                                                                          Request for Evaluators...................................................................2123
Notice of Public Hearing - Multifamily Housing Revenue Bonds
(Stonebrook Villas Apartments) Series 2002 ................................2109                           Telecommunications Infrastructure Fund Board
                                                                                                          Community Network Technology Standards.................................2124
Texas Department of Insurance
Company Licensing ......................................................................2110              Texas A&M University, Board of Regents
Notice ............................................................................................2110   Request for Proposal......................................................................2127

Texas Lottery Commission                                                                                  The University of Texas System
Instant Game 279 "Dough In A Row" ...........................................2110                         Notice of Intent to Procure Consulting Services ...........................2127

Manufactured Housing Division                                                                             Texas Water Development Board
Notice of Administrative Hearing..................................................2114                    Applications Received ...................................................................2127

Notice of Administrative Hearing..................................................2114                    Texas Workers’ Compensation Commission
Texas Natural Resource Conservation Commission                                                            Invitation for Consultants...............................................................2128




TABLE OF CONTENTS                                      27 TexReg 1946
THE GOVERNOR
As required by Government Code, §2002.011(4), the Texas Register publishes executive orders issued by the Governor of Texas.
Appointments and proclamations are also published. Appointments are published in chronological order. Additional information
on documents submitted for publication by the Governor’s Office can be obtained by calling (512) 463-1828.


 Appointments                                                            TRD-200201329
 Appointments for February 26, 2002.                                                        ♦             ♦            ♦
 Appointed to the Texas Agricultural Finance Authority Board of Direc-   Appointments for March 6, 2002.
 tors for terms to expire January 1, 2003, Ruben O. Bosquez of McAllen
 (replacing Renato Ramirez of Zapata whose term expired), Darwin         Appointed to the Angelina and Neches River Authority Board of Di-
 Dallas DeWees of San Angelo (reappointed), Sue Kennedy of Nacog-        rectors for a term to expire on September 5, 2005, James E. Raney
 doches (reappointed), Albert Todd Lowry of Laredo (replacing Robert     of Nacogdoches (replacing Kamberly Luna of Nacogdoches who re-
 Henry of Vernon whose term expired).                                    signed).

 Appointed to the Texas Health Care Information Council for terms to     Appointed to the Angelina and Neches River Authority Board of
 expired on September 1, 2007, Kathleen O. Angel of Austin (replacing    Directors for terms to expire on September 5, 2007, Al Chavira of
 Susan Nelson of Dallas whose term expired), Gene Freeland of Dallas     Jacksonville (replacing Susan Heckman of Tyler who resigned-term
 (replacing Jack Blaz of Dallas whose term expired), Jean L. Freeman,    extended to return board to Legislative compliance), Joe M. Deason
 PhD of Galveston (reappointed), Peter Chukwuemeka Okose, MD of          of Lufkin (replacing Stewart Kenderdine of Palestine whose term
 Friendswood (replacing Amanullah Khan of Dallas whose term ex-          expired), George S. Vorpahl of Lufkin (replacing Jack Sweeney of
 pired), Imogen S. Papadopoulos of Houston (reappointed).                Diboll whose term expired).

 Appointed to the Texas Board of Licensure for Professional Medical      Appointed to the Board of Vocational Nurse Examiners for a term to
 Physicists for terms to expired February 1, 2007, Lamk M. Lamki, MD     expire on September 6, 2003, Thomas Franklin Kennedy of Sweetwater
 of Houston (replacing Ralph Blumhardt of San Antonio whose term ex-     (replacing Rex Howard of Richardson who resigned).
 pired), Adrian David LeBlanc, PhD of Houston (reappointed), Richard     Appointed to the Board of Vocational Nurse Examiners for terms to ex-
 E. Wendt, III, PhD of Bellaire (replacing Paul Murphy of Houston        pire on September 6, 2007, Joyce M. Adams of Houston (reappointed),
 whose term expired).                                                    Richard Robert Gibbs of Mesquite (replacing Kathleen Powell of Fort
 Appointed to the Texas Parks and Wildlife Commission for a term to      Worth whose term expired), Malinda Deloise Miller of Forest Hill (re-
 expire on February 1, 2003, Kelly Rising, MD of Beaumont (replacing     placing Lillian Brown of San Angelo whose term expired), Frank D.
 Carol Dinkins who resigned).                                            Sandoval, Jr. of San Antonio (reappointed), Susan K. Tripplehorn of
                                                                         Pampa (replacing Ginger Brenner of Sugar Land whose term expired).
 Appointments for March 1, 2002.
                                                                         Rick Perry, Governor
 Appointed to the Texas Board of Social Worker Examiners for a term to
                                                                         TRD-200201396
 expire February 1, 2007, Beatrice Ruiz Mireles of Amarillo (replacing
 Gerianne Waring of El Paso whose term expired).                                            ♦             ♦            ♦
 Rick Perry, Governor




                                                                         GOVERNOR March 15, 2002 27 TexReg 1947
                             OFFICE OF THE
                     ATTORNEY GENERAL
        Under provisions set out in the Texas Constitution, the Texas Government Code. Title 4,
        §402.042, and numerous statutes, the attorney general is authorized to write advisory opinions
        for state and local officials. These advisory opinions are requested by agencies or officials when
        they are confronted with unique or unusually difficult legal questions. The attorney general also
        determines, under authority of the Texas Open Records Act, whether information requested for
        release from governmental agencies may be held from public disclosure. Requests for opinions,
        opinions, and open records decisions are summarized for publication in the Texas Register. The
        attorney general responds to many requests for opinions and open records decisions with letter
        opinions. A letter opinion has the same force and effect as a formal Attorney General Opinion, and
        represents the opinion of the attorney general unless and until it is modified or overruled by a
        subsequent letter opinion, a formal Attorney General Opinion, or a decision of a court of record.
        You may view copies of opinions at http://www.oag.state.tx.us. To request copies of opinions,
        please fax your request to (512) 462-0548 or call (512) 936-1730. To inquire about pending
        requests for opinions, phone (512) 463-2110.




Request for Opinions                                                      Re: Applicability of chapter 149, Agriculture Code, to horse slaughter
                                                                          plants that process, sell and transport horsemeat to foreign countries
RQ-0509
                                                                          for human consumption, and related questions (Request No. 0512-JC)
Mr. Jerry L. Benedict, Administrative Director, Office of Court Ad-
                                                                          Briefs requested by March 28, 2002
ministration, 205 West 14th Street, Austin, Texas 78711-2066
                                                                          RQ-0513
Re: Whether a part-time Title IV-D court master may engage in the
practice of law (Request No. 0509-JC)                                     The Honorable Clyde Herrington, Angelina County District Attorney,
                                                                          P.O. Box 908, Lufkin, Texas 75902-0908
Briefs requested by March 25, 2002
                                                                          Re: Salary of county court-at-law judges in Angelina County (Request
RQ-0510
                                                                          No. 0513-JC)
The Honorable Michael A. McDougal, District Attorney, Ninth Judi-
                                                                          Briefs requested by March 28, 2002
cial District, 301 North Thompson, Suite 106, Conroe, Texas 77301-
2824                                                                      RQ-0514
Re: Whether a peace officer employed by a drainage district may make      The Honorable Kip Averitt Chair, House Committee on Financial In-
warrantless arrests for traffic violations (Request No. 0510-JC)          stitutions Texas House of Representatives P.O. Box 2910 Austin, Texas
                                                                          78768-2910
Briefs requested by March 27, 2002
                                                                          Re: Whether a bank may use information contained in the magnetic
RQ-0511
                                                                          strip of a driver’s license (Request No. 0514-JC)
The Honorable Charles D. Penick, Bastrop County Criminal District
                                                                          Briefs requested by March 27, 2002
Attorney, 804 Pecan Street, Bastrop, Texas 78602
                                                                          RQ-0515
Re: Whether an autopsy report may be withheld from the public if a
prosecutor determines that its release would hinder a murder investiga-   The Honorable Kim Brimer, Chair, Business and Industry Committee,
tion (Request No. 0511-JC)                                                Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-
                                                                          2910
Briefs requested by March 26, 2002
                                                                          Re: Authority of a general law municipality to assign to a "city admin-
RQ-0512
                                                                          istrator" duties reserved by statute to the mayor or city manager, and
The Honorable Tony Goolsby, Chair, Committee on House Adminis-            related questions (Request No. 0515-JC)
tration, Texas House of Representatives, P.O. Box 2910, Austin, Texas
                                                                          Briefs requested by March 26, 2002
78768-2910
                                                                          RQ-0516




                                                            ATTORNEY GENERAL March 15, 2002 27 TexReg 1949
Mr. Jim Nelson, Commissioner of Education, Texas Education                 TRD-200201356
Agency, 1701 North Congress Avenue, Austin, Texas 78701-1494               Susan D. Gusky
Re: Whether a member of a school district board of trustees may serve      Assistant Attorney General
as county chair of a political party, and related questions (Request No.   Office of the Attorney General
0516-JC)                                                                   Filed: March 5, 2002
Briefs requested by March 26, 2002                                                             ♦            ♦   ♦
For further information, please call the Opinion Committee at 512/
463-2110 or access the website at www.oag.state.tx.us.




27 TexReg 1950 March 15, 2002 Texas Register
                     EMERGENCY RULES
        An agency may adopt a new or amended section or repeal an existing section on an emergency
        basis if it determines that such action is necessary for the public health, safety, or welfare of this
        state. The section may become effective immediately upon filing with the Texas Register, or on a
        stated date less than 20 days after filing and remaining in effect no more than 120 days. The
        emergency action is renewable once for no more than 60 additional days.
        Symbology in amended emergency sections. New language added to an existing section is
        indicated by the text being underlined. [Brackets] and strike-through of text indicates deletion of
        existing material within a section.


TITLE 34. PUBLIC FINANCE                                                program as considered necessary by the trustee." As described
                                                                        above, the sections are also adopted under Government Code
PART 3. TEACHER RETIREMENT                                              §2001.034.
SYSTEM OF TEXAS                                                         There are no other codes affected.
                                                                        §41.33. Definitions Applicable to the Texas School Employees Uni-
CHAPTER 41. INSURANCE PROGRAMS                                          form Group Health Coverage Program.
SUBCHAPTER C. TEXAS SCHOOL                                              The following words and terms when used in subchapter C or in con-
EMPLOYEES GROUP HEALTH                                                  nection with the administration of Insurance Code §3.50-7 shall have
                                                                        the following meanings unless the context clearly indicates otherwise.
34 TAC §§41.33 - 41.35                                                            (1)     Full-time employee -- A participating member who:
The Teacher Retirement System of Texas (TRS) adopts on an
                                                                                        (A) is currently employed by a participating entity;
emergency basis new §§41.33, 41.34 and 41.35 concerning the
Texas School Employees Uniform Group Health Coverage Pro-                             (B) is eligible for TRS membership based on current
gram ("Program"). The new sections relate to definitions, eligi-        full-time service as described by §25.1 of this title (relating to Full-
bility requirements and coverage plans. The new sections are            Time Service), or based on current employment as a bus driver as de-
adopted on an emergency basis pursuant to §2001.034 of the              scribed by §25.2 of this title (relating to Bus Drivers); and
Government Code, which allows a state agency to adopt an
                                                                                       (C) is not receiving coverage as an employee or retiree
emergency rule if a requirement of state or federal law requires
                                                                        of an institution that participates in a uniform group insurance program
adoption of the rule on less than 30 days notice.
                                                                        under the Texas Employees Uniform Group Insurance Benefits Act (In-
In accordance with Insurance Code article 3.50-7, the new sec-          surance Code article 3.50-2) or the Texas State College and University
tions set forth definitions, coverage plans and eligibility criteria.   Employees Uniform Group Insurance Benefits Act (Insurance Code
Among other things, the sections provide notice to participating        article 3.50-3) or the Texas Public School Employees Group Insurance
entities and their employees of the requirements for eligibility in     Program established under Insurance Code article 3.50-4 (TRS-Care).
the Program.
                                                                                   (2) Participating entity -- An entity participating in the
This emergency adoption is necessary because TRS is required            TRS-ActiveCare program including a school district; another educa-
to comply with timelines under House Bill 3343, 77th Legisla-           tional district whose employees are members of the retirement system;
ture, including Insurance Code article 3.50-7 and sections 5.01         a regional education service center; and a charter school that meets the
through 5.07 of Acts 2001, 77th Leg., ch. 1187 including require-       requirements of Insurance Code article 3.50-7. An entity is considered
ments in section 5.01 that TRS develop coverage plans "with             to be participating in the TRS-ActiveCare program on and after the
coverage beginning September 1, 2002." Printed materials re-            first date coverage becomes effective for its employees.
flecting criteria in the new sections must be completed in March
                                                                                  (3) Participating member -- A person defined by Govern-
2002 so that enrollment can proceed and coverage can begin
                                                                        ment Code §§822.001 and 822.002 whose membership in the retire-
September 1. Accordingly, TRS finds that the requirements of
                                                                        ment system has not been terminated as described by Government Code
state law require the adoption of the new sections on fewer than
                                                                        §§822.003 - 822.006 and who is currently contributing to the Teacher
30 days notice.
                                                                        Retirement System of Texas pension trust fund in accordance with Gov-
The new sections are adopted on an emergency basis under                ernment Code §825.403.
the Government Code, Chapter 825, §825.102, which autho-
                                                                                  (4)     Part-time employee -- An individual who:
rizes the Board of Trustees of the Teacher Retirement System to
adopt rules for, among other things, the transaction of business                        (A) is neither a participating member nor a full-time
of the board. The new sections are also adopted under House             employee;
Bill 3343, which was passed by the 77th Legislature, 2001, in-
                                                                                     (B) is currently employed by a participating entity for
cluding Insurance Code article 3.50-7, which authorizes TRS to
                                                                        10 hours or more each week; and
adopt rules relating to various matters including coverage plans
and applicable definitions. Insurance Code article 3.50-7, §3(c)                       (C) is not receiving coverage as an employee or retiree
further authorizes TRS, as trustee, to "adopt rules relating to the     of an institution that participates in a uniform group insurance program




                                                            EMERGENCY RULES March 15, 2002 27 TexReg 1951
under the Texas Employees Uniform Group Insurance Benefits Act (In-           of 1996 (Pub. L. No. 104-191, 110 Stat. 1936 (1996)) (HIPAA),
surance Code article 3.50-2) or the Texas State College and University        except for any provisions of HIPAA from which TRS has elected to
Employees Uniform Group Insurance Benefits Act (Insurance Code                be exempt in accordance with its status as a self-insured non-Federal
article 3.50-3) or the Texas Public School Employees Group Insurance          governmental plan.
Program established under Insurance Code article 3.50-4 (TRS-Care).
                                                                                       (7) Any other individuals who are required to be covered
          (5) TRS-ActiveCare program -- The Texas School Employ-              under applicable law.
ees Uniform Group Health Coverage Program established by Insurance
                                                                              §41.35. Coverage Plans.
Code article 3.50-7.
         (6) Trustee or TRS -- The Teacher Retirement System of                      (a) The TRS-ActiveCare program shall include at least three
Texas acting in its capacity as trustee under Insurance Code article          coverage plans including a catastrophic care coverage plan and a pri-
3.50-7.                                                                       mary care coverage plan, in accordance with Insurance Code article
                                                                              3.50-7. The coverages provided for eligible persons under the three
§41.34. Eligibility for Coverage under the Texas School Employees             plans will include, but are not limited to, basic medical expense cover-
Uniform Group Health Coverage Program.                                        age and prescription drug coverage, in accordance with terms, condi-
The following persons are eligible to be enrolled in the TRS-Active-          tions, and limitations adopted by resolution of the trustee.
Care program under terms, conditions and limitations established by                  (b) The TRS-ActiveCare program may also include additional
the trustee unless expelled from the program under provisions of In-          plans for health-care coverage under terms, conditions and limitations
surance Code article 3.50-7.                                                  adopted by resolution of the trustee.
           (1) A full-time employee as defined in §41.33 of this title             (c) The coverage plans offered under the TRS-ActiveCare pro-
(relating to Definitions Applicable to the Texas School Employees Uni-        gram will each include at least two of the following rating tiers:
form Group Health Coverage Program).
                                                                                        (1)   Employee only;
            (2) A part-time employee as defined in §41.33 of this ti-
tle (relating to Definitions Applicable to the Texas School Employees                   (2)   Employee and spouse;
Uniform Group Health Coverage Program).                                                 (3)   Employee and children;
           (3) Dependents, as defined under Insurance Code article                      (4)   Employee and family.
3.50-7, section 2(3)(A), (B) or (C), of either a full-time employee or a
part-time employee. A child defined in Insurance Code article 3.50-7,                (d) TRS may offer optional coverages that may include but
section 2(3)(C) is eligible for coverage only if, and only for so long        are not limited to life, dental care, eye care, long-term care, disability,
as, such child’s mental retardation or physical incapacity is a medi-         or other coverages considered advisable to eligible persons in accor-
cally determinable condition that prevents the child from engaging in         dance with terms, conditions and limitations adopted by resolution of
self-sustaining employment as determined by TRS.                              the trustee.
            (4) Individuals employed or formerly employed by a par-           This agency hereby certifies that the emergency adoption has
ticipating entity, and their dependents, who are eligible for, or partici-    been reviewed by legal counsel and found to be within the
pating in, continuation coverage under the Consolidated Omnibus Bud-          agency’s legal authority to adopt.
get Reconciliation Act of 1985 (Pub. L. 99-272), through a group health
benefit plan sponsored by the individual’s employer on the first day that     Filed with the Office of the Secretary of State on February 26,
employer becomes a participating entity if such individuals or their de-      2002.
pendents would have met the requirements for eligibility in paragraphs
(1), (2), or (3) of this section on the individual’s last day of employment   TRD-200201187
with the participating entity.                                                Charles Dunlap
                                                                              Executive Director
           (5) Individuals who become eligible as determined by
                                                                              Teacher Retirement System of Texas
TRS for continuation coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985 (Pub. L. No. 99-272), through               Effective Date: February 26, 2002
their participation in the TRS-ActiveCare program.                            Expiration Date: July 24, 2002
                                                                              For further information, please call: (512) 542-6115
          (6) Individuals who become eligible for coverage under
provisions of the Health Insurance Portability and Accountability Act                              ♦              ♦             ♦




27 TexReg 1952 March 15, 2002 Texas Register
                     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 text being underlined. [Brackets] and strike-through of text indicates deletion of existing
        material within a section.




TITLE 1. ADMINISTRATION                                                   The new rule is proposed pursuant to the Election Code, Chap-
                                                                          ter 31, Subchapter A, §31.003, which provides the Secretary of
PART 4. OFFICE OF THE SECRETARY                                           State authority to promulgate rules to obtain uniformity in the in-
                                                                          terpretation and application of the Code.
OF STATE
                                                                          The Election Code, Chapter 13, subchapter D, §13.104 is af-
CHAPTER 81. ELECTIONS                                                     fected by this proposed rule.
SUBCHAPTER L. ELECTRONIC STORAGE                                          §81.412.    Optional Storage Method.
MEDIUM STANDARDS                                                          A voter registrar who records voter registration data for storage pur-
                                                                          poses on optical disk or other computer storage medium, shall follow
1 TAC §81.412
                                                                          the procedures for such storage as set forth in the rules of the Texas State
The Office of the Secretary of State, Elections Division, proposes        Library and Archives Commission under Title 13 Texas Administrative
new §81.412, concerning the standards an optical disk or other            Code, Chapter 7, Subchapter C, concerning Standards and Procedures
electronic storage medium must meet to enable voter registrars            for Management of Electronic Records. This rule is authorized and is
to record voter registration applications and other documentation         pursuant to Chapter 205 of the Texas Local Government Code.
in that storage medium.
                                                                          This agency hereby certifies that the proposal has been reviewed
A version of this rule with slightly different wording is currently in    by legal counsel and found to be within the agency’s legal author-
effect under §81.88. The existing §81.88 has been proposed for            ity to adopt.
repeal. Proposed new §81.412 contains wording that will clarify
a reference to the rules of the Texas State Library and Archives          Filed with the Office of the Secretary of State on March 4, 2002.
Commission. Also, §81.412 is organized under the more appro-              TRD-200201316
priate Subchapter L of Chapter 81, which relates to electronic
                                                                          David Roberts
storage medium standards. An earlier proposal of this rule, un-
                                                                          General Counsel
der the section number §81.10, published in the September 21,
2001, Texas Register (26 TexReg 7190), was withdrawn.                     Office of the Secretary of State
                                                                          Earliest possible date of adoption: April 14, 2002
Ann McGeehan, Director of Elections, has determined that for              For further information, please call: (512) 463-5569
the first five-year period that this rule is in effect there will be no
fiscal implications for state or local governments as a result of                              ♦              ♦              ♦
enforcing or administering the rule.
Ms. McGeehan has determined also that for each year of the first
                                                                          PART 5. TEXAS BUILDING AND
five years that the rule is in effect the public benefit anticipated      PROCUREMENT COMMISSION
as a result of enforcing the rule will be to place the rule within
its correct subject-matter subchapter. There will be no effect on         CHAPTER 111. EXECUTIVE ADMINISTRA-
small businesses. There are no anticipated economic costs to
persons who are required to comply with the rule as proposed.
                                                                          TION DIVISION
Comments on the proposal may be submitted to Ann McGeehan,
                                                                          SUBCHAPTER B. HISTORICALLY
Director of Elections, Office of the Secretary of State, P.O. Box         UNDERUTILIZED BUSINESS PROGRAM
12060, Austin, Texas 78711-2060.
                                                                          1 TAC §§111.14, 111.17, 111.28



                                                                 PROPOSED RULES March 15, 2002 27 TexReg 1953
The Texas Building and Procurement Commission proposes                     identifying the subcontractors that will be used during the course of
amendments to Title 1, TAC, Chapter 111, Subchapter B,                     the contract, the expected percentage of work to be subcontracted and
§111.14, relating to subcontracts, §111.17, relating to the                the approximate dollar value of that percentage of work. The potential
Certification Process; and §111.28, relating to the Mentor                 contractor/vendor shall provide all additional information required by
Protege Program. The amendments are proposed due to                        the agency.
the enactment of Senate Bill 311, Article 13, 77th Legislative
                                                                                     (1) - (2)   (No change.)
Session (2001), which amended the statutory language of
§2161.061 and §2161.253, Texas Government Code. The                                   (3) In making a determination whether a good faith effort
amended statutory language found in §13.01, Senate Bill 311                has been made in the development of the required HUB subcontract-
relates to the Commission’s approval of local governments or               ing plan, a state agency shall require the potential contractor/vendor to
nonprofit organizations certification programs for businesses              submit supporting documentation explaining in what ways the poten-
that substantially fall under the same definition for a Historically       tial contractor/vendor has made a good faith effort according to each
Underutilized Business found in §2161.001, Texas Government                criterion listed in subsection (b)(1) of this section. The documentation
Code. Amended statutory language in §13.02, Senate Bill 311                shall include at least the following:
determines that a contractor has made a good faith effort if a
                                                                                         (A) - (E) (No change.)
contractor participates in a Mentor Protege Program and sub-
mits a protégé as a subcontractor in the contractor’s historically                       (F) whether the potential contractor/vendor assisted
underutilized business subcontracting plan.                                noncertified [non-certified] HUBs to become certified.
Previously proposed rule amendments were published in the                            (4) A potential contractor/vendor’s participation in a Men-
November 30, 2001, issue of the Texas Register (26 TexReg                  tor Protege Program under the Texas Government Code §2161.065,
9681). Based on comments received, the previously proposed                 and the submission of a protege as a subcontractor in the HUB sub-
amendments were withdrawn and revised to clarify the reporting             contracting plan constitutes a good faith effort for the particular area
of Mentor Protege Agreements to the Commission, a well as the              to be subcontracted with the protege. When submitted, state agencies
determination of good faith effort with regard to the Mentor Pro-          may accept a Mentor Protege Agreement that has been entered into by
tege program.                                                              the potential contractor/vendor (mentor) and a certified HUB (protege).
                                                                           The agency shall consider the following in determining the potential
Cindy Reed, Deputy Executive Director of Administration and
                                                                           contractor/vendor’s good faith efforts:
Procurement, determined for the first five year period the amend-
ments are in effect, there will be no fiscal implication for the state                  (A) whether the potential contractor has entered into a
or local governments as a result of enforcing or administering             fully executed Mentor Protege Agreement that has been registered with
these amendments.                                                          the commission prior to submitting the plan, and
Cindy Reed further determines that for each year of the first                           (B) whether the potential contractor/vendor’s HUB
five-year period the amendments are in effect, the public ben-             subcontracting plan identifies the areas of subcontracting that will be
efit anticipated as a result of enforcing these amendments will            performed by the protege.
be compliance with law enacted in Senate Bill 311, Article 13,
                                                                                      (5) [(4)] The HUB subcontracting plan shall be reviewed
77th Legislative Session (2001) relating to the Historically Under-
                                                                           and evaluated prior to contract award and, if accepted, shall become
utilized Business Certification Program and the Mentor Protege
                                                                           a provision of the agency’s contract. No changes shall be made to an
Program. There will be no effect on large, small, or micro-busi-
                                                                           accepted subcontracting plan prior to its incorporation into the contract.
nesses. There is no anticipated economic cost to persons who
                                                                           State agencies shall review the supporting documentation submitted by
are required to comply with these amendments and there is no
                                                                           the potential contractor/vendor to determine if a good faith effort has
impact on local employment.
                                                                           been made in accordance with this section and the bid specifications. If
Comments on the proposals may be submitted to Juliet King,                 the agency determines that a submitted HUB subcontracting plan was
Legal Counsel, Texas Building and Procurement Commission,                  not developed in good faith, the agency shall treat the lack of good faith
P.O. Box 13047, Austin, Texas 78711-3047. Comments must be                 as a material failure to comply with advertised specifications, and the
received no later than 30 days from the date of publication of the         subject bid or other response shall be rejected. The reasons for rejection
proposal to the Texas Register.                                            shall be recorded in the procurement file.
The amendments are proposed under the authority of the Texas                          (6) [(5)] If the potential contractor/vendor can perform all
Government Code, Title 10, Subtitle D, §§2152.003, 2161.002,               the subcontracting opportunities identified by the agency, a statement
2161.061, and 2161.253, which provide the Texas Building and               of the potential contractor’s/vendor’s intent to complete the work with
Procurement Commission with the authority to promulgate rules              its employees and resources without any subcontractors will be sub-
necessary to implement the sections.                                       mitted with the potential contractor’s/vendor’s bid, proposal, offer, or
                                                                           other expression of interest. If the potential contractor/vendor is se-
The following code is affected by these rules: Government Code,
                                                                           lected and decides to subcontract any part of the contract after the
Title 10, Subtitle D, Chapter 2161.
                                                                           award, as a provision of the contract, the contractor/vendor must com-
§111.14. Subcontracts.                                                     ply with provisions of this section relating to developing and submit-
                                                                           ting a subcontracting plan before any modifications or performance in
      (a)   (No change.)
                                                                           the awarded contract involving subcontracting can be authorized by the
       (b) Development and evaluation of HUB subcontracting                state agency. If the selected contractor/vendor subcontracts any of the
plans. A state agency shall require a potential contractor vendor to       work without prior authorization and without complying with this sec-
state whether it is a Texas certified HUB. Potential contractors/vendors   tion, the contractor/vendor would be deemed to have breached the con-
shall follow, but are not limited to, procedures in subsection (b)(1) of   tract and be subject to any remedial actions provided by Texas Gov-
this section when developing the HUB subcontracting plan. The HUB          ernment Code, Chapter 2161, state law and this section. Agencies may
subcontracting plan shall include the form provided by the agency          report nonperformance [non-performance] relative to its contracts to



27 TexReg 1954 March 15, 2002 Texas Register
the commission in accordance with Chapter 113, Subchapter F of this          these businesses in obtaining state certification through the commis-
title (relating to the Vendor Performance and Debarment Program).            sion.]
      (c) - (d)   (No change.)                                                      (j) [(g)] The commission will send all certified HUBs an
                                                                             orientation packet including a certificate, description of certifica-
§111.17. Certification Process.
                                                                             tion value/significance, list of agency purchasers, and information
      (a) - (e) (No change.)                                                 regarding electronic commerce, the Texas Marketplace, and the state
                                                                             procurement process.
       (f) The Commission may approve the existing Certification
Program of one or more local governments or nonprofit organizations          §111.28. Mentor Protege Program.
in this state that certify historically underutilized businesses, minor-           (a) - (g) (No change.)
ity business enterprises, women’s business enterprises, disadvantaged
business enterprises that substantially fall under the same definition,             (h) The protege must maintain its HUB certification status for
to the extent applicable for Historically Underutilized Business found       the duration of the agreement. If a contractor/vendor has been awarded
in §2161.001, Texas Government, and maintain them on the Commis-             a contract with a state agency and the Mentor Protege Agreement is ter-
sion’s Historically Underutilized Businesses list, if                        minated, or the protege’s HUB certification expires, the contractor/ven-
                                                                             dor must either
          (1) the local government or nonprofit organization meets
or exceeds the standards established by the Commission as set out in                    (1)   enter into a new agreement with a certified HUB pro-
Chapter 111, Subchapter B of this title (relating to the Historically Un-    tege, or
derutilized Business Program); and                                                    (2) comply with the requirements of this title relating to
           (2) agrees to the terms and conditions as required by statute     developing and submitting a HUB subcontracting plan.
relative to the agreement between the local government and/or nonprof-              (i) [(h)] Each agency must notify its mentors and proteges that
its for the purpose of certification of Historically Underutilized Busi-     participation is voluntary. The notice must include written documenta-
nesses.                                                                      tion that participation in the agency’s Mentor Protege Program is nei-
        (g) The agreement in subsection (f) of this section must take        ther a guarantee for a contract opportunity nor a promise of business;
effect immediately and contain conditions as follows:                        but the Program’s intent is to foster positive long-term business rela-
                                                                             tionships.
          (1) allow for automatic certification of businesses certified
by the local government or nonprofit organization (Program) as pre-                  (j) [(i)] State agencies may demonstrate their good faith under
scribed by the commission;                                                   this section by submitting a supplemental letter with documentation to
                                                                             the commission with their HUB Report or legislative appropriations re-
          (2) provide for the efficient updating of the commission           quest identifying the progress and testimonials of mentors and proteges
database containing information about historically underutilized busi-       that participate in the agency’s Program. In accordance with §111.26
nesses and potential historically underutilized businesses as prescribed     of this title (relating to HUB Coordinator Responsibilities) the agency’s
by the commission;                                                           HUB Coordinator shall facilitate compliance by its agency.
           (3) provide for a method by which the commission may                      (k) Each state agency that sponsors a Mentor Protege Program
efficiently communicate with businesses certified by the local govern-       must report that information to the commission upon completion of
ment or nonprofit organization;                                              a signed agreement by both parties. Information regarding the Men-
          (4) provide those businesses with information about the            tor Protege Agreement shall be reported to the commission in a form
state’s Historically Underutilized Business Program; and                     prescribed by the commission within 21 calendar days after the agree-
                                                                             ment has been signed. The commission will register that agreement on
            (5) require that a local government or nonprofit organiza-       the approved list of mentors and proteges. Approved Mentor Protege
tion that enters into an agreement under subsection (f) of this section,     Agreements are valid for all state agencies in determining good faith
complete the certification of an applicant with written justification of     effort for the particular area of subcontracting to be performed by the
its certification denial within the period established by the commission     Protege as identified in the HUB subcontracting plan.
in its rules for certification.
                                                                                   (l) The commission shall maintain and make available to state
       (h) The commission will not accept the certification of a local       agencies all registered Mentor Protege Agreements. The sponsoring
government or nonprofit organization that charges for the certification      agency shall monitor and report the termination of an existing Mentor
of businesses to be listed on the Historically Underutilized Business list   Protege Agreement that has been registered with the commission within
maintained by the commission.                                                21 calendar days.
       (i) The commission may terminate an agreement made under              This agency hereby certifies that the proposal has been reviewed
this section if a local government or nonprofit organization fails to meet   by legal counsel and found to be within the agency’s legal author-
the standards established by the commission for certifying Historically      ity to adopt.
Underutilized Businesses. In the event of the termination of an agree-
ment, those HUB’s that were certified as a result of the agreement will      Filed with the Office of the Secretary of State on March 1, 2002.
maintain their HUB status during the fiscal year in which the agreement
                                                                             TRD-200201289
was in effect. Those HUB’s who are removed from the HUB list as a
                                                                             Juliet King
result of the termination of an agreement with a local government or
nonprofit organization may apply directly to the commission for certi-       Legal Counsel
fication as a Historically Underutilized Business.                           Texas Building and Procurement Commission
                                                                             Earliest possible date of adoption: April 14, 2002
     [(f) The commission will develop agreements with local gov-
                                                                             For further information, please call: (512) 463-3960
ernments to identify historically underutilized businesses and assist
                                                                                                  ♦             ♦             ♦


                                                                    PROPOSED RULES March 15, 2002 27 TexReg 1955
CHAPTER 113. CENTRAL PURCHASING                                             Juliet King
                                                                            Legal Counsel
DIVISION
                                                                            Texas Building and Procurement Commission
SUBCHAPTER A. PURCHASING                                                    Earliest possible date of adoption: April 14, 2002
1 TAC §113.21                                                               For further information, please call: (512) 463-3960

The Texas Building and Procurement Commission proposes new                                      ♦              ♦             ♦
Title 1, TAC, §113.21, concerning the reverse auction purchas-
ing procedure. The new rule authorizes the use of the reverse               CHAPTER 126. SURPLUS AND SALVAGE
auction procedure in accordance with Texas Government Code,                 PROPERTY PROGRAMS
§2155.062 (amended by Senate Bill 221 and §7.01, Senate Bill
311, (77th Legislature (2001)) which added the procedure to the             SUBCHAPTER A. STATE SURPLUS AND
Commission’s purchasing methods.                                            SALVAGE PROPERTY
Cindy Reed, Deputy Executive Director of Administration and                 1 TAC §§126.1 - 126.5
Procurement, has determined that for the first five-year period
the rule is in effect, there will be positive fiscal implications for       (Editor’s note: The text of the following sections proposed for repeal
the state as a result of enforcing or administering this new rule.          will not be published. The sections may be examined in the offices of the
The Texas State Comptroller’s office, in its study of the reverse           Texas Building and Procurement Commission or in the Texas Register
auction procedure, estimated that potential savings generated               office, Room 245, James Earl Rudder Building, 1019 Brazos Street,
by using the reverse auction procedure range from 2% to 10%.                Austin.)
Cindy Reed, Deputy Executive Director of Administration and                 The Texas Building and Procurement Commission proposes the
Procurement, further determines that for each year of the first             repeal of Title 1, TAC, Chapter 126, Subchapter A--State Sur-
five-year period the new rule is in effect, the public benefit an-          plus and Salvage Property, §§126.1 - 126.5. The repeal of these
ticipated as a result of enforcing this rule will be reduced costs          rules is being proposed in order to delete obsolete language as
in purchasing. Internet real time reverse auction allows for con-           a result of new requirements under Texas Government Code,
tinuous bids in a specified period of time until the lowest bid is          Chapter 2175, Subchapters A, B, C, and D (amended by Arti-
reached. There will be no effect on large, small or micro-busi-             cle 11, Senate Bill 311, and House Bill 834, House Bill 936 and
nesses. There is no anticipated economic costs to persons who               Senate Bill 1438, 77th Legislature). The repeal of Subchapter A,
are required to comply with the rule and there is no impact on              Chapter 126, allows for new rules to be proposed and published
local employment.                                                           simultaneously in this publication of the Texas Register.
Comments on the proposals may be submitted to Juliet King,                  Mr. Bill Sullivan, Deputy Executive Director of Programs, has
Legal Counsel, Texas Building and Procurement Commission,                   determined for the first five year period the repeal is effect there
P.O. Box 13047, Austin, Texas 78711-3047. Comments must be                  will be no fiscal implications to the state or local governments as
received no later than 30 days from the date of publication of the          a result of enforcing this repeal.
proposal to the Texas Register.                                             Mr. Bill Sullivan, Deputy Executive Director of Programs, has de-
The new rule is proposed under the authority of the Texas Gov-              termined that for each year of the first five-year period the pro-
ernment Code, Title 10, Subtitle D, §2152.003 and §2155.062                 posed repeal is in effect, the public benefit will be the deletion of
which provides the Texas Building and Procurement Commis-                   obsolete language that will allow for the creation of more efficient
sion with the authority to promulgate rules necessary to imple-             new rules under Title 1, TAC, Chapter 126, Subchapter A--State
ment the sections.                                                          Surplus and Salvage Property. There will be no anticipated cost
                                                                            to large, small or micro-businesses and/or persons as a result of
The following codes are affected by these rules: Government                 repealing these rules.
Code, Title 10, Subtitle D, Chapter 2155 and; Local Government
Code, §§252.021, 262.023, 271.083, 271.906; and the Educa-                  Comments on the proposed repeal may be submitted to Ms.
tion Code, §44.931.                                                         Juliet King, Legal Counsel, Texas Building and Procurement
                                                                            Commission, P.O. Box 13047, Austin, Texas 78711-3047.
§113.21.   Reverse Auction.                                                 Comments must be received no later than 30 days from the
Pursuant to Government Code, §2155.062(a)(4) and (d), the commis-           date of publication of the proposal in the Texas Register
sion may use the reverse auction procedure as a method of purchasing        The repeal is being proposed under the authority of the Texas
goods and services. In this competitive method of purchasing, bid-          Government Code, §2152.003 and §2175.001 which provides
ding is a real time process lasting for a specified period of time, which   the Texas Building and Procurement Commission with the au-
multiple suppliers anonymous to each other submit bids to provide the       thority to promulgate rules necessary to implement the sections.
designated goods or services to an internet location.
                                                                            The following codes are affected by these rules: Government
This agency hereby certifies that the proposal has been reviewed            Code, Title 10, Subtitle D, Chapter 2175, Subchapters A, B,
by legal counsel and found to be within the agency’s legal author-          C, and D; Agriculture Code, §74.1011; Government Code,
ity to adopt.                                                               §2308.253; and the Education Code, Chapter 32, Subchapter
                                                                            C.
Filed with the Office of the Secretary of State on March 1, 2002.
                                                                            §126.1. Definitions.
TRD-200201286
                                                                            §126.2. Disposition of Surplus and Salvage Property to State Agen-
                                                                            cies, Political Subdivisions and Assistance Organizations.
                                                                            §126.3. Disposition of Surplus and Salvage Property to the Public.



27 TexReg 1956 March 15, 2002 Texas Register
§126.4. Proceeds.                                                        2175.065, 2175.129, and 2175.130 which provides the Texas
                                                                         Building and Procurement Commission with the authority to
§126.5. Purchase of Chairs.
                                                                         promulgate rules necessary to implement the sections.
This agency hereby certifies that the proposal has been reviewed
                                                                         The following codes are affected by these rules: Government
by legal counsel and found to be within the agency’s legal author-
                                                                         Code, Title 10, Subtitle D, Chapter 2175, Subchapters A, B,
ity to adopt.
                                                                         C, and D; Agriculture Code, §74.1011; Government Code,
                                                                         §2308.253; and the Education Code, Chapter 32, Subchapter
Filed with the Office of the Secretary of State on March 1, 2002.
                                                                         C.
TRD-200201288
                                                                         §126.1. Definitions.
Juliet King
Legal Counsel                                                            The following words and terms, when used in this chapter, shall have
Texas Building and Procurement Commission                                the following meaning, unless the context clearly indicates otherwise.
Earliest possible date of adoption: April 14, 2002                                 (1)   Assistance organization--
For further information, please call: (512) 463-3960
                                                                                      (A) a nonprofit organization that provides educational,
                    ♦             ♦             ♦                        health, or human services or assistance to homeless individuals; or
1 TAC §§126.1 - 126.6                                                                  (B) a nonprofit food bank that solicits, warehouses, and
                                                                         distributes edible but unmarketable food to agencies that feed needy
The Texas Building and Procurement Commission proposes
                                                                         families and individuals; or
new Title 1, TAC Chapter 126, Subchapter A, §§126.1 - 126.6,
concerning the State Surplus and Salvage Property. The new                             (C) Texas Partners of the Americas, a registered agency
rules are proposed in accordance with new requirements under             with the Advisory Committee on Voluntary Foreign Aid, with the ap-
Texas Government Code, Chapter 2175, Subchapters A, B, C,                proval of the Partners of the Alliance office of the Agency for Interna-
and D (amended by Article 11, Senate Bill 311, House Bill 834,           tional Development; or
House Bill 936 and Senate Bill 1438, 77th Legislature). Govern-
                                                                                       (D) a group, including a faith-based group, that enters
ment Code, §2175.065 directs the commission to establish by
                                                                         into a financial or non-financial agreement with a health or human ser-
rule the criteria for determining that a delegation of authority to
                                                                         vices agency to provide services to that agency’s clients; or
a state agency results in cost savings to the state; §2175.001
amends the definition for "assistance organization" to include                         (E) a non profit organization approved by the Supreme
nonprofit organizations; §2175.129 requires the commission               Court of Texas that provides free legal services for low-income house-
to establish guidelines for determining the method of sale               holds in civil matters; or
(competitive bid, auction or direct sale) most advantageous to
                                                                                       (F) The Texas Boll Weevil Eradication Foundation Inc.,
the state; §2175.130 allows for direct sale to the public in order
                                                                         or an entity designated by the commissioner of agriculture as the foun-
to maximize the resale value of surplus or salvage property to
                                                                         dation’s successor entity under §74.1011, Agriculture Code; or
the state, and §2175.193 which requires that the commission
contract for the disposal of property that has no resale value                       (G) a local workforce development board created under
and is considered worthless salvage. The proposed new rules              §2308.253 of the Texas Government Code.
will also replace obsolete language found in the current rules
                                                                                   (2) Certificate of Acquisition--A form prescribed by the
proposed for repeal as Title 1, TAC, Chapter 126, §§126.1 -
                                                                         commission that verifies the qualifications of a qualified assistance or-
126.5, and are published simultaneously in this publication of
                                                                         ganization or political subdivision as an entity entitled to receive state
the Texas Register for repeal.
                                                                         surplus or salvage property.
Mr. Bill Sullivan, Deputy Executive Director of Programs, has
                                                                                   (3) Data processing equipment--Equipment as defined by
determined for the first five year period the rules are in effect,
                                                                         Texas Government Code, §2054.003 to be information technology
there will be positive fiscal implications which will result in cost
                                                                         equipment and related services designed for the automated storage,
savings to the state or local governments as a result of enforcing
                                                                         manipulation, and retrieval of data by electronic or mechanical means
or administering these new rules.
                                                                         to include:
Mr. Bill Sullivan, Deputy Executive Director of Programs, further
                                                                                       (A) central processing units, front-end processing units,
determines that for each year of the first five-year period the new
                                                                         miniprocessors, microprocessors, and related peripheral equipment
rules are in effect, the public benefit anticipated as a result of en-
                                                                         such as data storage devices, document scanners, data entry equipment,
forcing these rules will be an increase of cost savings to the state
                                                                         terminal controllers, data terminal equipment, computer-based word
and the development of guidelines for the more efficient disposal
                                                                         processing systems other than memory typewriters, and equipment
of surplus and salvage property. There will be no effect on large,
                                                                         and systems for computer networks;
small or micro-businesses. There is no anticipated economic
costs to persons who are required to comply with these rules                          (B) all related services, including feasibility studies,
and there is no impact on local employment.                              systems design, software development, and time-sharing services,
                                                                         provided by state employees or others; and
Comments on the proposals may be submitted to Juliet King,
Legal Counsel, Texas Building and Procurement Commission,                              (C) the programs and routines used to employ and con-
P.O. Box 13047, Austin, Texas 78711-3047. Comments must be               trol the capabilities of data processing hardware, including operating
received no later than 30 days from the date of publication of the       systems, compilers, assemblers, utilities, library routines, maintenance
proposal to the Texas Register.                                          routines, applications, and computer networking programs.
The new rules are proposed under the authority of the                             (4) Personal property--property that is lawfully confiscated
Texas Government Code, §§2152.003, 2175.001, 2175.061,                   and subject to disposal by a state agency. Personal property affixed to



                                                                 PROPOSED RULES March 15, 2002 27 TexReg 1957
real property may be sold as surplus or salvage property if its removal      in accordance with the Texas Government Code, §2175.125 or other
and disposition is for a lawful purpose under Texas Government Code,         law, shall be transferred by the state agency or institution to a school
Chapter 2175, Subchapter C or another law.                                   district or open-enrollment charter school in this state under Subchap-
                                                                             ter C, Chapter 32, of the Education Code, or to the Texas Department of
           (5) Method of payment--A cashier’s check, certified check,
                                                                             Criminal Justice. The state agency or institution may not collect a fee
a money order, or any other approved method of purchase at the time
                                                                             or other reimbursement from the district, the school, or the Texas De-
of sale is acceptable payment under this section.
                                                                             partment of Criminal Justice for the surplus or salvage data processing
          (6) Political subdivision--Each political subdivision of the       equipment. Pursuant to Texas Government Code, §2175.305, the Sec-
state and volunteer fire departments.                                        retary of State shall give preference to transferring surplus computer
                                                                             equipment to counties for the purpose of improving voter registration
          (7) Salvage property--Any personal property which
                                                                             technology in compliance with the Election Code, §18.063.
through use, time, or accident is so depleted, worn out, damaged,
used, or consumed that it has no value for the purpose for which it was                  (5) Purchaser’s fee. The commission or agency disposing
originally intended.                                                         of surplus or salvage property under this subchapter shall assess and
                                                                             collect from the purchaser a fee over and above the proceeds from the
          (8)    State agency--
                                                                             sale of property, to recover the costs associated with the sale of property.
              (A) a department, commission, board, office, or other          The fee shall be set and reviewed annually by the commission and shall
agency in the executive branch of state government created by the state      be at least two percent (2%) but not more than twelve percent (12%) of
constitution or a state statute;                                             the sale proceeds. Property disposed of by direct transfer under §126.3
                                                                             of this title (relating to Direct Transfer, Priority, Reporting, and other
             (B) the supreme court, the court of criminal appeals, a
                                                                             Disposition) is not subject to the purchaser’s fee.
court of appeals, or the Texas Judicial Council;
                                                                                        (6) Delegation of authority to state agency. If a state agency
                (C) the Texas Civil Air Patrol; and
                                                                             demonstrates to the commission its ability to dispose of its own surplus
           (D) excluding those entities in Texas Government                  or salvage property to the public in a manner that results in cost savings
Code, §§2175.301, 2175.302, 2175.304.                                        to the state, the commission may authorize the agency to do so. The
                                                                             agency shall follow procedures provided by the commission at the time
          (9) Surplus property--Personal property that exceeds a
                                                                             the delegation is granted and shall provide a report of the proceeds by
state agency’s needs and is not required for the agency’s foreseeable
                                                                             assigned sale number no later than September 10th of each year for the
needs; including used or new property that retains some usefulness for
                                                                             prior fiscal year.
the purpose for which it was intended or for another purpose.
                                                                                          (A) Delegation of authority will be based on receipt of
§126.2. General Terms and Conditions.
                                                                             and concurrence by the commission of the agency’s projection of cost
General terms and conditions of this subchapter are as follows:              savings to the state.
           (1) Method of disposal. A state agency that determines that                     (B) Criteria used to delegate authority to a state agency
it has surplus property or salvage property shall inform the commission      demonstrating cost savings to the state may include information about
and the comptroller of the property’s kind, number, location, condition,     the property such as age, condition, limited use, size, volume, expected
original cost or value, and date of acquisition. Additionally, based on      return and/or location; information about the agency such as its ability
the condition of the property, a state agency shall determine whether        to account for and report staffing, disposals, location, and/or specific
the property is:                                                             knowledge about the property.
              (A) surplus property that should be offered for transfer                 (7) Delegation of deletion authority to state agencies. The
under §2175.125 of the Texas Government Code and §126.3 of this title        commission hereby delegates to state agencies the authority to delete
(relating to Direct Transfer, Priority, Reporting, and other Disposition);   surplus or salvage property from the State Property Accounting System
or                                                                           after any method of disposition listed under this subchapter.
              (B) should be disposed of by competitive bidding, auc-                   (8) Firearms. The purchaser of a surplus firearm must be a
tion or direct sale under §126.4 of this title (relating to Disposition of   licensed firearm dealer.
Surplus and Salvage Property to the Public by Competitive Bidding,                     (9) Rejection of bids. The state reserves the right to reject
Auction, or Direct Sale); or is                                              any bid or part of a bid, and or waive minor technicalities.
                (C) salvage property.                                                  (10) List of buyers. The commission shall maintain an an-
            (D) A state agency making this determination shall in-           nually updated list of qualified buyers of surplus and salvage property.
form the commission and the comptroller of its determination.                The commission shall renew annually a list it maintains of
           (2) Notice of availability. The commission shall maintain a                    (A) assistance organizations and individuals responsi-
list of current surplus or salvage property and inform other state agen-     ble for purchasing for political subdivisions who have requested infor-
cies, political subdivisions, and assistance organizations of the comp-      mation regarding available state surplus or salvage property; and
troller’s website that lists such property that is available for sale.                     (B) other prospective buyers of surplus and salvage
          (3) Priority for transfer to state agency. During the ten (10)     property.
business days after property is posted on the comptroller’s website,                     (C) Names may be deleted from lists maintained by the
a transfer to another state agency has priority over any other type of       commission for failure to bid, failure to make a payment or failure to
transfer under this subchapter.                                              remove awarded items.
          (4) Disposition of surplus or salvage data processing equip-                      (D) A buyer who has been removed from the buyers list
ment. Data processing equipment from state agencies, institutions of         for failure to make a payment or to remove surplus or salvage property
higher education, or eleemosynary institutions if not disposed of under



27 TexReg 1958 March 15, 2002 Texas Register
may not reinstated to the list until a written request has been presented                (2) Delegation of disposal authority. The commission may
to and approved by the commission.                                           delegate its authority to dispose of property not disposed of under
                                                                             §126.3 of this title to a state agency having possession of the property
§126.3. Direct Transfer, Priority, Reporting, and other Disposition.
                                                                             by any method listed in paragraph (1) of this subsection, so long as
        (a) Disposition of state surplus and salvage property by direct      the method of sale chosen is most advantageous to the state under the
transfer. During the ten (10) business days after surplus or salvage         circumstances. Commission procedures shall establish guidelines for
property is posted on the Comptroller’s website, a state agency, po-         making this determination. Any delegation under this section shall be
litical subdivision, or assistance organization may coordinate directly      subject to the procedures and reporting requirements in §126.2(6) of
with the reporting state agency for a transfer of property at a price es-    this title (relating to General Terms and Conditions).
tablished by the reporting agency.                                                      (3) Requirement to advertise. If the value of any property
      (b) Priority of claim.                                                 to be disposed of under this section is estimated to be worth more than
                                                                             $5,000, the sale shall be advertised at least one time in at least one
          (1) The first state agency, political subdivision or assistance    newspaper of general circulation in the vicinity in which the property
organization that agrees to the established price before the expiration      is located.
of ten (10) business days shall be entitled to the property provided,
however, a state agency shall have first priority over all other entities.         (b) Disposition by competitive sealed bids. Sealed bids will
                                                                             be handled in accordance with §113.5 of this title (relating to Bid Sub-
           (2) In the event two competing and equivalent requests are        mission, Bid Opening, and Tabulation).
received from parties of equal standing the commission in coordination
with the reporting agency shall award the property in the best interests                (1) Bid deposits. When a bid deposit is required, the de-
of the state and the reporting agency. Two or more requests shall be         posit must be in the amount specified in the bid invitation. Only the
considered "competing and equivalent" for purposes of this rule if each      following will be considered as meeting the bid deposit requirements: a
meets the price established by the reporting state agency on the same        cashier’s check, a certified check, a money order, or cash in the amount
business day, and within the ten (10) business day period following          specified in the bid invitation. Failure to include a bid deposit in the
posting on the comptroller’s website.                                        proper amount will automatically disqualify a bid.
      (c)   Reporting requirements.                                                     (2) Notice of award. The commission will notify the suc-
                                                                             cessful bidder or bidders, on a sealed bid sale of surplus or salvage
          (1) Reporting by state agencies. If a transfer is made to a        property, that an award has been made to them and specify a period of
state agency, the participating agencies shall report the transaction to     time for payment. In the event that a successful bidder fails to make
the comptroller as provided by law. The comptroller shall then debit         payment within the specified time, the commission may retain the bid
and credit the proper appropriations within the systems maintained by        deposit and consider it forfeited. Furthermore, the bidder forfeits his
the comptroller.                                                             rights to the property and ownership of the property remains with the
            (2) Reporting by other entities. A political subdivision or      state.
assistance organization acquiring surplus or salvage property from a                     (3) Transfer of property and forfeiture. When a successful
state agency must in conjunction with the state agency complete a "Cer-      bidder has paid the full amount due for the purchase of surplus or sal-
tificate of Acquisition". A political subdivision or assistance organiza-    vage property obtained through a sealed bid sale, the commission shall
tion must certify its qualification and an assistance organization must      notify both the successful bidder and the agency holding the title of the
additionally provide documentation as required. "Certificate of Acqui-       surplus or salvage and authorize the transfer of possession. In the case
sition" is to be retained by the state agency and documentation of the       of vehicles or other items which require title transfer, it shall be the re-
transaction is to be entered into the Comptroller’s State Property Ac-       sponsibility of the agency holding title to complete the transfer of title
counting System.                                                             to the successful bidder. In the event a bidder pays for the property but
       (d) Other disposition. If a direct transfer of the property is not    fails to remove the property within the time specified, the bidder for-
arranged within ten (10) business days after the posting of the property     feits his rights to the property and ownership of the property reverts to
on the comptroller’s website in subsection (a)(1) of this section, the       the state.
commission shall, with the exception of data processing equipment,                  (c) Disposition by live auctions. Surplus or salvage sold
dispose of the surplus or salvage property to the public in accordance       through the live auction method shall be accompanied by an auc-
with §126.4 of this title (relating to Disposition of Surplus and Sal-       tioneer’s paid receipt. The auctioneer’s paid receipt will serve as the
vage Property to the Public by Competitive Bidding, Auction, or Direct       authorization of the commission that the purchaser has in good faith
Sale).                                                                       complied with the conditions of the sale. In the case of vehicles or
§126.4. Disposition of Surplus and Salvage Property to the Public by         other items carrying titles, the agency holding the original title shall
Competitive Bidding, Auction, or Direct Sale.                                be responsible for the transfer to the successful bidder. In the event
                                                                             that a successful bidder fails to make payment or remove the property
       (a) Generally. If no state agency, political subdivision, or as-      within the specified time, the bidder forfeits his rights to the property
sistance organization desires to receive any property reported as surplus    and ownership of the property remains with the state.
or salvage, the commission may dispose of the property, with the ex-
ception of data processing equipment, in a method that is most advan-               (d) Disposition by direct sale to the public.
tageous to the state and the reporting agency under the circumstances.                  (1) Generally. If the commission or a state agency which
Commission procedures shall establish guidelines for making this de-         has been delegated authority under subsection (a)(2) of this section or
termination.                                                                 under §126.2(6), determines that selling the property by competitive
            (1) Disposal. Property not disposed of under §126.3 of this      sealed bid or auction, would not maximize the resale value of property
title (relating to Direct Transfer, Priority, Reporting, and other Dispo-    to the state, the commission or state agency may sell surplus or salvage
sition) may be disposed of by sealed bids, auction, or direct sale to the    property directly to the public.
public, including a sale using an internet auction site.



                                                                    PROPOSED RULES March 15, 2002 27 TexReg 1959
          (2) Fixed price. The commission, in cooperation with the            executive or legislative agency other than the legislature used during
state agency that declared the property as salvage or surplus, or a state     his or her tenure of service and which the official desires to purchase
agency which has delegated authority under subsection (a)(2) of this          upon vacation of office or termination of service.
section or under §126.2(6) of this title shall set a fixed price for the
                                                                                    (b) The property manager of the state agency shall submit the
property.
                                                                              following information about the chair to the commission:
          (3) Location and method of direct sales. Direct sales op-
                                                                                        (1)   acquisition date;
erations may be conducted at designated state facilities or warehouses
approved by the Commission, or by Internet auction.                                     (2)   original cost;
              (A) Access. The general public and assistance organi-                     (3)   inventory number;
zations will have equal access.
                                                                                        (4)   description of chair including brand and model number;
             (B) Payment. A purchaser under this section must pay
                                                                                        (5)   current condition;
for the property by an approved method at the time sale and prior to
obtaining possession or actual title to the property.                                   (6)   current estimated value; and
               (C) Forfeiture. In the event a purchaser pays for prop-                  (7) name of the appointed or elected official or executive
erty but fails to remove it with the time specified at sale, the purchaser    head of the state agency and the date of vacation of office or termination
forfeits any ownership rights and subsequently, ownership reverts to          of service.
the state without recourse.
                                                                                      (c) The commission will determine the fair market value of
              (D) Internet auction. The commission may contract               the chair an notify in writing the property manager of the state agency
with one or more commercial Internet auction sites for sale of state          requesting the determination. Upon payment of the determined fair
surplus or salvage property. Property on the Internet auction site shall      market value of the chair, the property manager may transfer the chair
be posted for at least ten (10) calendar days.                                to the state official and remove the chair from any inventory of personal
                                                                              property.
       (e) Disposition of property with no resale value (salvage). If
the commission or a state agency with delegated authority under sub-          This agency hereby certifies that the proposal has been reviewed
section (a)(2) of this section or under §126.2(6) of this title does not      by legal counsel and found to be within the agency’s legal author-
dispose of property under another method in this subchapter, and has          ity to adopt.
advertised the property for sale and received no bids, or has determined
that the property has no resale value, the agency may delete the property     Filed with the Office of the Secretary of State on March 1, 2002.
on the State Property Accounting System and dispose of the property           TRD-200201287
in a manner that best serves the interests of the state in accordance with
                                                                              Juliet King
Government Code, §2175.193.
                                                                              Legal Counsel
        (f) Purchaser’s title. A purchaser of surplus or salvage prop-        Texas Building and Procurement Commission
erty at a sale conducted under this section obtains good title to the prop-   Earliest possible date of adoption: April 14, 2002
erty if the purchaser in good faith has complied with all the terms and       For further information, please call: (512) 463-3960
conditions of the sale.
       (g)   Reporting of sale.
                                                                                                   ♦               ♦           ♦
           (1) On a sale by the commission of any property under this         PART 10. DEPARTMENT OF
section, the commission shall report the property sold and the sales
price to the agency that declared the property surplus or salvage.
                                                                              INFORMATION RESOURCES
          (2) The commission or a state agency with delegated au-             CHAPTER 201. PLANNING AND
thority under this subchapter shall report the sale and the amount of the
sale proceeds to the comptroller. The comptroller by law shall remove
                                                                              MANAGEMENT OF INFORMATION
the property from the State Property Accounting System.                       RESOURCES TECHNOLOGIES
§126.5. Proceeds.                                                             1 TAC §201.12
The proceeds from the sale of any surplus or salvage property, less the       (Editor’s note: The text of the following section proposed for repeal
costs of advertising, selling, auctioneer services, if any, and any fee       will not be published. The section may be examined in the offices of the
collected under §126.2(5) of this title (relating to General Terms and        Department of Information Resources or in the Texas Register office,
Conditions), shall be deposited to the credit of the item of appropriation    Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
to the agency for which the sale was made. The portion of the proceeds
from the sale of any surplus or salvage property equal to the costs of        The Department of Information Resources (department)
advertising, the sale and the costs of auctioneer services, if any, shall     proposes to repeal §201.12, concerning state web sites.
be deposited with the Comptroller of Public Accounts to the credit of         Simultaneous with the publication of the proposed repeal, the
the item of appropriation to the commission from which such costs             department is proposing new §206.1, concerning definitions ap-
were expended. The fee collected under §126.2(5) of this title shall be       plicable to state web sites; new §206.2, concerning accessibility
deposited with the Comptroller of Public Accounts to the credit of the        and usability of state web sites; new §206.3, concerning privacy
general revenue fund.                                                         and security of state web sites; new §206.4, concerning state
                                                                              web site link and privacy policy; and new §206.5, linking and
§126.6. Purchase of Chairs.                                                   indexing of state web sites.
       (a) The commission shall determine the fair market value of
the chair which an appointed or elected official or executive head of an



27 TexReg 1960 March 15, 2002 Texas Register
Mr. Mel Mireles, director of the Enterprise Operations Division,      page" and "transaction payment information." Proposed §206.1
has determined that for each year of the first five years after re-   deletes the definitions found in existing §201.12 of "alt tags," "his-
peal of the rule, there will be no cost for state government as a     torical document," and "IETF." The purpose of the changes is to
result of such repeal. Mr. Mireles does not anticipate either a       clarify the terms used in the state web site rules.
loss of, or increase in, revenues to state or local government as
                                                                      Proposed §206.2 requires state agencies to develop and pub-
a result of the proposed repeal. There will be no fiscal implica-
                                                                      lish an accessibility policy for their web sites or pages that com-
tions for local government as a result of repealing §201.12.
                                                                      plies with certain standards. It also requires that the agency’s
There will be no effect on small businesses. There will be no         home page and key public entry points include an accessibility
additional anticipated economic cost to persons as a result of        link to a web page containing the agency’s accessibility, policy,
adoption of the repeal. The public benefit of repeal of the rule      site validation, contact information for the agency’s accessibility
is to clarify the department’s rules by having the state web site     coordinator and a link to the Governor’s Committee on People
rules located in only one chapter, rather than in two chapters.       with Disabilities web site. The purpose of this section is provide
It is necessary to repeal §201.12 to relocate the state web site      accessibility of state agency web sites to users.
rules to new chapter 206.
                                                                      Proposed §206.3 requires each state agency to publish a
Comments on the proposed repeal may be submitted to Renee             privacy and security policy applicable to its web site. Existing
Mauzy, General Counsel, Department of Information Resources,          §201.12(b)(1)(D) required publication of only a privacy policy. In
via mail to P.O. Box 13564, Austin, Texas 78711, or electroni-        addition to the requirements carried over from existing §201.12,
cally to renee.mauzy@dir.state.tx.us no later than 5:00 p.m. CST      proposed §206.3(a) requires the privacy and security policy
within 30 days after publication.                                     to address options concerning whether personal information
                                                                      collected from individuals may be used for purposes beyond
Repeal of §201.12 is proposed under Texas Government Code
                                                                      the purposes for which the information was provided, whether
§2054.052(a), which provides the department may adopt rules
                                                                      the individual wishes to have that information shared, how the
as necessary to implement its responsibilities.
                                                                      individual may obtain, or have corrected, the information about
Texas Government Code §2054.051 is affected by the proposed           him or her held by the state agency and the procedures that
repeal.                                                               ensure the information collected from individuals is accurate and
                                                                      secure from unauthorized use. Proposed §206.3(b) requires
§201.12.    State Web Sites.
                                                                      that web pages designed for children comply with federal and
This agency hereby certifies that the proposal has been reviewed      state laws intended to protect minors. Proposed §206.3(c)
by legal counsel and found to be within the agency’s legal author-    requires state agencies to conduct transaction risk assessments
ity to adopt.                                                         and implement appropriate privacy and security safeguards
                                                                      before providing access to information or services on a state
Filed with the Office of the Secretary of State on February 26,       web site that require user identification. Certain information
                                                                      must be protected by a secure socket layer session or equivalent
2002.                                                                 technology to encrypt the data. Proposed §206.3(d) provides
TRD-200201181                                                         that any web-based forms that request information from the
Renee Mauzy                                                           public must link to the associated privacy and security policy.
General Counsel                                                       Certain of the changes proposed in this section result from
Department of Information Resources                                   enactment of HB 2589 and HB 1922, 77th legislature.
Earliest possible date of adoption: April 14, 2002                    As required by HB 2589 and HB 1922, 77th legislature, proposed
For further information, please call: (512) 475-4750                  §206.4 establishes a state web site link and privacy policy that
                    ♦             ♦             ♦                     contains the requirements for linking to state agency web sites,
                                                                      provides for protection of the privacy rights of individuals by non-
                                                                      judiciary state governmental bodies, and specifies certain web
CHAPTER 206.             STATE WEB SITES                              site requirements applicable to all state agencies.
1 TAC §§206.1 - 206.5                                                 Proposed §206.5 sets forth descriptive page title and meta tag
The Department of Information Resources (department) pro-             requirements applicable to state publications as well as certain
poses new §206.1, web site definitions; §206.2, accessibility         link requirements.
and usability of state web sites; §206.3, privacy and security        Mr. Mel Mireles, director of the Enterprise Operations Division,
of state web sites; §206.4, state web site link and privacy           has determined that for each year of the first five years after
policy; and §206.5, linking and indexing of state web sites.          adoption of the proposed rules, there will be no fiscal implica-
Simultaneous with publication of these proposed rules, the            tions for state or local government as a result of adoption of the
department is proposing the repeal of §201.12, state web sites        rules. He does not anticipate either a loss of, or increase in, rev-
so that all state web site rules are transferred from chapter 201     enues to state or local government as a result of the propose
to chapter 206 of Title 1.                                            rules.
Proposed §206.1 contains the definitions applicable within chap-      There will be no effect on small businesses and no additional
ter 206. The section contains many of the definitions from the de-    anticipated economic cost to persons as a result of adoption of
partment’s state web site rule located in §201.12. It also contains   the proposed rules. The public benefit of adoption of the rules is
new definitions of "accessible," "accessibility policy," "Compact     greater protection of individuals’ privacy, increased state agency
with Texans," "link policy," "open records/Public Information Act     web site accessibility by individuals and a reduced chance of
notice," "usability," "web bug," and "web page." Proposed §206.1      public confusion associated with linking of site owners to state
also amends the definitions in existing §201.12 of "generally ac-     agency web sites.
cessible Internet site," "privacy and security policy," "Texas home



                                                              PROPOSED RULES March 15, 2002 27 TexReg 1961
Comments on the proposed new §§206.1-206.5 may be sub-                              (12) Open Records/Public Information Act notice --
mitted to Renee Mauzy, General Counsel, Department of In-                   An agency’s policies and practices for providing public access to
formation Resources, via mail to P.O. Box 13564, Austin, Texas              governmental information and decisions.
78711, or electronically to renee.mauzy@dir.state.tx.us no later
                                                                                      (13) Privacy and Security Policy -- a statement about what
than 5:00 p.m. CST within 30 days after publication.
                                                                            information is collected by an agency Web site, how the information
The new rules are proposed pursuant to Texas Government                     will be used and protected, under what conditions the information may
Code §2054.052(a) which provides the department may adopt                   be shared or released to another party, and the procedure under which
rules as necessary to implement its responsibilities under the              an individual is entitled to receive and/or correct information that an
Information Resources Management Act, Texas Government                      agency maintains about the individual.
Code §559.002 and §559.003, enacted in HB 1922, 77th
                                                                                      (14) State Web site -- a state agency-owned, -operated
legislature, which provide for a right to notice about certain
                                                                            by/or for, or -funded Web site connected to the Internet, including a
information laws and practices and the right to correct incorrect
                                                                            state agency’s home page and any key public entry points.
information held by state agencies and Texas Government Code
§2054.121, enacted HB 2589, 77th legislature, which requires                            (15)   SSN -- Social Security Number.
the department to adopt a state web site linking policy.
                                                                                      (16) SSL -- Secure Sockets Layer; The Internet security
Texas Government Code §§559.002, 559.003 and 2054.121 are                   standard for point-to-point, encrypted connections between Web
affected by the proposed rules.                                             servers and client browsers.
§206.1. Definitions.                                                                    (17)   Statewide Search -- a link to the TRAIL Web site.
The following words and terms, when used with this chapter, shall have                (18) TCP/IP -- Transmission Control Protocol/Internet
the following meanings, unless the context clearly indicates otherwise.     Protocol; a suite of protocols developed by the IETF and published as
                                                                            Request for Comments (RFCs).
         (1) Accessible -- A Web page that can be used in a variety
of ways and that does not depend on a single sense or ability.                       (19) Texas home page -- http://www.state.tx.us
                                                                            or its successor as identified in the guidelines available at
          (2) Accessibility Policy -- An agency’s policies to ensure
                                                                            http://www.dir.state.tx.us/standards/srrpub11.htm.
that access to its information, services, and programs are accessible,
usable, understandable and navigable.                                                (20) TRAIL -- Texas Records and Information Lo-
                                                                            cator or its successor.     Additional information is available at
          (3) Agency contact information -- a list of key personnel
                                                                            http://www.tsl.state.tx.us.
and/or position or program contacts, including public contact telephone
numbers, general e-mail address, and other information deemed neces-                   (21) Transaction payment information -- bank account and
sary by the agency for facilitating public access.                          routing number, credit, debit, charge, or other forms of card-based, ac-
                                                                            cess device number, and/or Internet based, payment systems. Access
          (4) Compact With Texans -- Agency customer service stan-
                                                                            device means a card, plate, code, account number, personal identifica-
dards and performance measures as required by Section 2113.006 Gov-
                                                                            tion number, electronic serial number, mobile identification number, or
ernment Code.
                                                                            other telecommunications service, equipment, or instrument identifier
          (5) Generally accessible Internet site -- A state Web             or means of account access that alone or in conjunction with another
site that provides for graceful transformation, and making content          access device may be used to:
understandable and navigable. Additional information and resources
                                                                                           (A) obtain money, goods, services, or another thing of
are included in the accessibility-usability guidelines available at
                                                                            value; or
http://www.dir.state.tx.us/standards/srrpub11-accessibility.htm
                                                                                          (B) initiate a transfer of funds other than a transfer orig-
            (6)   Home page -- The initial page or entry point to a state
                                                                            inated solely by paper instrument.
Web site.
                                                                                     (22) Transaction Risk Assessment -- An evaluation
            (7)   HTML -- HyperText Markup Language.
                                                                            of the security and privacy required for an interactive Web ses-
          (8) Internet -- the network of interconnected networks em-        sion providing public access to government information and
ploying standards published by the Internet Engineering Task Force          services. Additional information and guidelines are available at
(IETF).                                                                     http://www.dir.state.tx.us/standards/srrpub11.htm
           (9) Key public entry point -- A Web page that a state agency              (23) Usability -- Web design criteria that focuses on user
has specifically designed for members of the general public to access       performance, ease of navigation, is understandable and is visually ap-
official information (e.g., the governing or authoritative documents)       pealing.
from the agency.
                                                                                      (24) W3C -- World Wide Web Consortium. Additional in-
           (10) Link Policy -- State Web Site Link and Privacy Pol-         formation and copies of the current standards and recommendations are
icy that identifies the terms under which a person may use, copy in-        available at http://www.w3.org.
formation from, or link to a generally accessible Internet site for a
                                                                                      (25) Web bug -- code used to track and/or report informa-
state agency. The state policy is in §206.4 and will be available at
                                                                            tion about a visitor to a Web page, or used in an e-mail message. Also
http://www.dir.state.tx.us/standards/link_policy.htm for state agencies
                                                                            known as a Web Beacon or Clear GIF.
to links.
                                                                                      (26) Web page -- A document that a state agency has specif-
          (11) Logging software and cookies -- Particular methods
                                                                            ically designed for people to access the official information (e.g., the
employed for the purpose of tracking visitors to Web sites. The infor-
                                                                            governing or authoritative documents) from the agency via the Internet.
mation collected for analysis can include where the request came from,
time, pages visited, and identifiable information about the visitor.        §206.2. Accessibility and Usability of State Web Sites.



27 TexReg 1962 March 15, 2002 Texas Register
       (a) All state agencies shall develop and publish an accessibility    The following outlines the policies for linking to, the use of, or copying
policy for their Web site and/or Web pages that addresses the following:    information from State of Texas agency Web sites and protecting the
                                                                            personal information of members of the public who access state agency
         (1) At least one copy of an agency Web page, whether static
                                                                            information through a state agency Web site. It also requires that state
or dynamic, must be in an accessible format.
                                                                            agencies link to the policy.
          (2) State Web sites shall meet the definition of a generally
                                                                                    (1) Requirements Applicable to Those Linking to State
accessible Internet site, and ensure that Web pages transform gracefully
                                                                            Agency Web Sites
and remain accessible despite any physical, sensory, or environmental
constraints or technological barriers.                                                      (A) Linking to State Agency Web Sites Organizations
                                                                            and individuals (the site owner) are encouraged to link to state agency
          (3) State Web sites shall avoid vendor specific "non-stan-
                                                                            information. Advance permission is not required before linking. Links
dard" extensions and comply with Internet and W3C standards. The
                                                                            should be made using the appropriate base URL of www.agency-iden-
policy should cover testing and validation of Web pages.
                                                                            tifier.state.tx.us or such other URL as the agency may use. Because
          (4) State Web sites are designed with consideration for the       state agencies may change subpages at any time without notice, the
types of Internet connections available to the citizens of Texas, and       site owner should routinely verify links to state agency subpages.
undergo accessibility and usability testing.
                                                                                           (B) What Site Owners May Not Do in Linking to State
       (b) The home page of a state Web site, and key public entry          Agency Web Sites Site owners may not capture state agency pages
points, shall include an "Accessibility" link to a Web page that contains   within the site owner’s frames, present state agency Web site content
the agency’s accessibility policy, site validation (e.g., W3C), contact     as that of the site owner, otherwise misrepresent the content of the state
information for the agency’s accessibility coordinator, and a link to the   agency pages or misinform users about the origin or ownership of the
Governor’s Committee on People with Disabilities Web site.                  content of the state agency Web site. Any link to a state agency site
                                                                            should be a full forward link that passes the client browser to the state
§206.3. Privacy and Security of State Web Sites.
                                                                            agency site unencumbered. The BACK button should return the visitor
        (a) A state agency shall publish a privacy and security policy      to the site owner’s site if the visitor wishes to back out. Although the
for its Web site, and post a link to the policy from its home page. The     content of state agency Web sites is available to the public, certain in-
privacy and security policy shall address the following:                    formation on some state agency Web sites may be trademarked, service
                                                                            marked, or otherwise protected as the state agency’s intellectual prop-
          (1) Notice: Disclose the agency’s information practices be-       erty, and all agency content is protected by federal copyright laws. Use
fore collecting personal information from the public. The use of log-       of protected intellectual property must be in accordance with federal
ging software, cookies, and/or Web bugs. Information collected by           and state law and must reflect the copyright, trademark, service mark
other technologies and processes. Information collected via e-mail and      or other intellectual property ownership of the state agency. Site own-
Web-based forms.                                                            ers should not link to individual state agency graphics or tables within
          (2) Choice: Options with respect to how personal informa-         state agency pages, especially in an effort to place the downloading
tion collected from them may be used for purposes beyond those for          burden on the state agency servers. Such an action may be considered
which the information was provided and whether they wish to have            a misuse of state resources. Site owners should contact the appropriate
that information shared.                                                    state agency to request permission to use a copy of the state agency’s
                                                                            graphics within the site owner’s pages.
          (3) Access: The procedure under which an individual may
obtain and/or have the agency correct information about the individual.                  (C) Accessibility Owners of sites linked to state agency
                                                                            pages shall use reasonable efforts to ensure that persons with disabili-
          (4) Security: The procedures to ensure that information           ties may access these sites.
collected from individuals is accurate and secure from unauthorized
use.                                                                                       (D) Copying and Use of Information by Web Site Own-
                                                                            ers Linking to State Agency Sites Other than Universities The informa-
       (b) Web pages designed for children must comply with all ap-         tion posted on a state agency Web site may be copied so long as it is
plicable federal and state laws intended to protect minors.                 presented in a non-misleading way and does not imply that either the
       (c) Prior to providing access to information or services on a        site owner or the information, as it is presented on the site owner’s Web
state Web site that require user identification, each state agency shall    site, is endorsed by the State. Use of the information must identify the
conduct a transaction risk assessment, and implement appropriate pri-       state agency that is the source of the information, its Web address, the
vacy and security safeguards. At a minimum, state Web sites that re-        date the information was copied from the state agency’s Web site by
quire an individual to enter the following information shall use an SSL     the site owner and must be accompanied by a statement that neither the
session or equivalent technology to encrypt the data:                       site owner nor the information, as it is presented on the site owner’s
                                                                            Web site, is endorsed by the State or any state agency. A state agency
          (1) Both the individual’s name and other personal informa-        may not charge a fee to access, use or reproduce information on its
tion, such as an SSN;                                                       Web site or to link to information on its Web site, unless specifically
          (2)   Transaction payment information;                            authorized to do so by the Texas Legislature. To protect the intellectual
                                                                            property of state agencies, copied information must reflect the copy-
          (3)   An individual’s access identification code and pass-        right, trademark, service mark or other intellectual property rights of
word.                                                                       the state agency whose protected information is being used by the site
          (4)   An individual’s e-mail address.                             owner.
       (d) Any Web based form that requests information from the                         (E) Copying and Use of Information by Web Site Own-
public shall have a link to the associated privacy and security policy.     ers Linking to University Web Sites Much of the information posted
                                                                            on University Web sites is owned by the individual who posts it rather
§206.4. State Web Site Link and Privacy Policy.




                                                                   PROPOSED RULES March 15, 2002 27 TexReg 1963
than by the University, pursuant to the Universities’ Intellectual Prop-      members of the public that are provided to non-judiciary state govern-
erty Policies. Whether information is owned by the University or by an        mental bodies for electronic communication with state governmental
individual, permission should be obtained from the content owner for          bodies are confidential and may not be disclosed by state governmental
any use beyond Fair Use. Such materials may only be used in accor-            bodies unless the affected member of the public affirmatively consents
dance with any limitations requested by the owner.                            to the disclosure of his or her e-mail address.
               (F) Links From a State Agency Web Site A state agency                      (3)    Requirements Applicable to State Agencies
that only provides links to other state agencies and Universities will
                                                                                            (A) With the exception of confidential information, in-
post a link to this State Web Site Link and Privacy Policy. A state
                                                                              formation protected by laws designed to protect an individual’s privacy
agency that provides links to private Web sites shall publish a link-
                                                                              interests, and information not subject to disclosure under the Texas
ing policy that includes its standards and criteria for linking to the pri-
                                                                              Public Information Act, state agencies are encouraged to post infor-
vate Web site. State agencies are strongly encouraged to publish a dis-
                                                                              mation on the Internet, in an accessible format. Information about the
claimer policy that specifically disclaims liability and responsibility for
                                                                              design and posting of information on state Web sites is available at
private Web site content. State agencies that link to private Web sites
                                                                              http://www.dir.state.tx.us/standards/srrpub11.htm.
will post a link to this State Web Site Link and Privacy Policy from the
Web page that identifies their specific policies.                                           (B) State agencies may not sell or release the e-mail ad-
                                                                              dresses of members of the public that have been provided to commu-
          (2) Protection of the Privacy Rights of Individuals by Non-
                                                                              nicate electronically with a government body without the affirmative
Judiciary State Governmental Bodies
                                                                              consent of the affected member of the public.
              (A) Under Texas law, Chapter 559, Texas Government
                                                                              §206.5. Linking and Indexing State Web Sites .
Code, unless a state governmental body, other than a state governmen-
tal body that is part of the judiciary, is allowed to withhold requested             (a) All new or changed HTML documents on a state agency
information from an individual pursuant to Chapter 552, Texas Govern-         Web site that meet the criteria of a "state publication" as defined by the
ment Code (the Texas Public Information Act), the individual is entitled      Texas State Library and Archives Commission shall include a descrip-
to be informed about information collected by the state governmental          tive page title and the following meta tags:
body about that individual.                                                               (1)    Description - brief description of the subjects covered.
              (B) Each non-judiciary state governmental body that                      (2) Keywords - specific to the page subject, and should not
collects information about an individual by means of a form that the          exceed 25 words.
individual completes and files with the state governmental body in
a paper format or in an electronic format on an Internet site shall                     (3) Author - State of Texas, agency name, and/or other
prominently state, on the paper form and prominently post on the state        identifying information as set by the agency.
governmental body’s Internet site in connection with the electronic                (b) The home page of a state Web site shall incorporate TRAIL
form, that:                                                                   metadata and shall:
                  (i) with few exceptions, the individual is entitled on                  (1)    Provide links to the following State of Texas resources:
request to be informed about the information that the state governmen-
tal body collects about the individual;                                                         (A) Texas home page;

                 (ii) the individual is entitled to receive and review                          (B) Link Policy;
the information; and                                                                            (C) Statewide Search.
               (iii) the individual is entitled to have the state gov-                    (2)    Provide links to the following agency information:
ernmental body correct incorrect information about the individual.
                                                                                                (A) Privacy and Security policy;
               (C) Each non-judiciary state governmental body that
collects information about an individual by means of an Internet site                           (B) Accessibility policy;
or that collects information about the computer network location or                             (C) Agency contact information;
identity of a user of the Internet site shall prominently post on the state
governmental body’s Internet site:                                                        (D) Description of the agency’s Open Records/Public
                                                                              Information Act policy/procedures
                 (i) what information is being collected through the
site about the individual; and                                                                  (E)   Compact With Texans.

                 (ii) what information is being collected through the               (c)     All key public entry points shall provide links to the fol-
site about the computer network location or identity of a user of the         lowing:
state governmental body’s Internet site, including what information is                    (1)    Agency contact information;
being collected by means that are not obvious.
                                                                                          (2)    Agency home page;
              (D) Each non-judiciary state governmental body must
establish a reasonable procedure under which individuals may have in-                     (3)    Accessibility policy;
correct information about them that is held by the state governmental                     (4)    Privacy and Security policy.
body corrected. The correction procedure may not unduly burden the
individual seeking to have information corrected.                             This agency hereby certifies that the proposal has been reviewed
                                                                              by legal counsel and found to be within the agency’s legal author-
               (E) Each non-judiciary state governmental body shall           ity to adopt.
identify its information collection practices and post that information
in its Internet site privacy and security policy. The e-mail addresses of     Filed with the Office of the Secretary of State on February 26,
                                                                              2002.



27 TexReg 1964 March 15, 2002 Texas Register
TRD-200201182                                                             be no foreseeable economic implications relating to the costs or
Renee Mauzy                                                               revenues of the state or local governments.
General Counsel                                                           Small and Micro-business Impact Analysis
Department of Information Resources
Earliest possible date of adoption: April 14, 2002
                                                                          The proposed rules will not result in additional costs to persons
                                                                          required to comply with the rules and will not negatively affect
For further information, please call: (512) 475-4750
                                                                          local employment.
                    ♦             ♦             ♦                         Regulatory Analysis
PART 15. TEXAS HEALTH AND                                                 The HHSC has determined that none of the proposed rules is
                                                                          a "major environmental rule" as defined by §2001.0225, Gov-
HUMAN SERVICES COMMISSION                                                 ernment Code. "Major environmental rule" is defined to mean
                                                                          a rule the specific intent of which is to protect the environment
CHAPTER 351. COORDINATED PLANNING                                         or reduce risks to human health from environmental exposure
AND DELIVERY OF HEALTH AND HUMAN                                          and that may adversely affect in a material way the economy, a
                                                                          sector of the economy, productivity, competition, jobs, the envi-
SERVICES                                                                  ronment, or the public health and safety of the state or a sector
1 TAC §§351.17, 351.19, 351.21, 351.23                                    of the state. None of the proposed rules is specifically intended
                                                                          to protect the environment or reduce risks to human health from
The Health and Human Services Commission (HHSC) proposes                  environmental exposure.
to add to Chapter 351, Coordinated Planning and Delivery of
Health and Human Services, new §351.17, Right to Correct In-              Takings Impact Assessment
correct Personal Information; §351.19, Requesting a Correction            The HHSC has evaluated the takings impact of the proposed
of Personal Information; § 351.21, Where to Send a Request                rules under Texas Government Code, §2007.043. The HHSC
for Correction of Personal Information; and §351.23, Review of            has determined that this action does not restrict or limit an
Requests for Correction of Personal Information. The proposed             owner’s right to their property that would otherwise exist in
sections establish procedures by which individuals may request            the absence of governmental action and therefore does not
correction of information collected about an individual ("personal        constitute a taking. The proposed rules are administrative and
information") by the HHSC and the process the HHSC will use               do not impose any new regulatory requirements. The proposed
to review such requests.                                                  rules are reasonably taken to fulfill requirements of state law.
Background and Summary of Factual Basis for the Rules                     Public Comment
The 77th Texas Legislature enacted House Bill 1922, which                 Public comment may be submitted in writing to Connie
added Chapter 559, "State Government Privacy Policies," to the            Gilkey, Records Manager/Coordinator, Health and Human
Texas Government Code. This provision requires the HHSC                   Services Commission, by mail addressed to 4900 North Lamar
to establish reasonable procedures by which an individual may             Boulevard, 4th Floor, Austin, Texas 78751-2316, or email at
request the correction of personal information collected by the           Connie.Gilkey@HHSC.state.tx.us, or by facsimile to (512)
HHSC. The purpose of the proposed amendments to Chapter                   424-6586. Comments must be submitted in writing by 5:00
351 is to inform the public about the right to correct incorrect          p.m., Central Time, April 15, 2002.
personal information and to adopt such procedures.
                                                                          Legal Authority
Section-by-Section Summary
                                                                          These rules are proposed under authority granted to the HHSC
Section 351.17 establishes an individual’s right to ask the HHSC          by section 531.033, Government Code, which authorizes the
to correct information the HHSC has collected about the individ-          Commissioner of Health and Human Services to adopt rules nec-
ual. Section 351.19 sets forth the requirements for submitting            essary to implement the Health and Human Services Commis-
written requests for correction of personal information and ex-           sion’s duties, and under section 62.051(d), Health and Safety
plains that the HHSC may, in certain situations, seek clarification       Code, which directs the HHSC to adopt rules as necessary to
of the correction request. Section 351.21 tells individuals where         implement the Children’s Health Insurance Program. No other
to send correction requests. Finally, Section 351.23 sets forth           statutes, articles, or codes are affected by the proposed rules.
the process the HHSC will use to review requests for correction
of personal information.                                                  §351.17.   Right to Correct Incorrect Personal Information.
Public Benefit                                                                   (a) An individual may ask the Health and Human Services
                                                                          Commission (HHSC) to correct information HHSC collects about that
The HHSC has determined that during the first five years that the         individual (personal information).
proposed rules are in effect, the public will benefit from adoption
of the rules in that the rules will establish the right to request cor-          (b) HHSC will review the request and decide, in accordance
rection of personal information, explain how to make a correction         with this chapter, if the information should be corrected.
request, and set forth the process the HHSC will use to review                    (c) This chapter does not apply when there are other require-
such requests.                                                            ments that an individual give HHSC updated and corrected information
Fiscal Note                                                               or when HHSC has another applicable change process. Also, individ-
                                                                          uals are encouraged to use other informal processes such as telephone
Don Green, Chief Financial Officer, has determined that for the           calls, in-person discussion, and email to correct information.
first five years that the proposed rules are in effect, there will
                                                                          §351.19.   Requesting a Correction of Personal Information.




                                                                 PROPOSED RULES March 15, 2002 27 TexReg 1965
       (a) A request to correct information collected about an indi-                         ♦            ♦            ♦
vidual must be in writing and must:
                                                                          TITLE 4. AGRICULTURE
           (1)   identify the individual requesting the correction,
           (2)   identify the information to be corrected,                PART 1. TEXAS DEPARTMENT OF
           (3)   state why the information is incorrect,                  AGRICULTURE
           (4)   include any evidence that shows the information is in-   CHAPTER 20. COTTON PEST CONTROL
correct,
                                                                          SUBCHAPTER B. QUARANTINE
           (5)   state what correction is requested; and
                                                                          REQUIREMENTS
          (6) include a return address, telephone number or email ad-
dress at which the individual can be contacted.                           4 TAC §20.13
      (b) If the Health and Human Services Commission (HHSC)              The Texas Department of Agriculture (the department) proposes
cannot identify the individual, locate the information in question, or    an amendment to §20.13, concerning functionally eradicated ar-
determine what correction is requested, HHSC may contact the indi-        eas under the department’s cotton pest control program. The
vidual to clarify the request. If HHSC cannot clarify the request, the    amendment is proposed to add the Rolling Plains Central Boll
request will be denied.                                                   Weevil Eradication Zone (Rolling Plains Central Zone) to the list
                                                                          of areas that have been declared functionally eradicated. The
§351.21.    Where to Send a Request for Correction of Personal Infor-     boll weevil eradication program in Texas was initiated in 1994 in
mation.                                                                   an effort to rid the state of the boll weevil. There are now eleven
       (a) Individuals must send requests for corrections of personal     active eradication zones in the state comprising approximately
information to the Health and Human Services Commission (HHSC)            six million acres of cotton. The Rolling Plains Central Zone has
division that originally collected the information in question.           now reached the functionally eradicated status. Once a zone has
                                                                          achieved this status but is still surrounded by infested counties,
      (b) Individuals who do not know where to send a request             the zone can become re-infested with boll weevil from outside ar-
should send it to HHSC’s Records Manager/Coordinator at 4900              eas. Elimination of boll weevil re- infestations can be expensive.
North Lamar Boulevard, 4th Floor, Austin, Texas 78751-2316.               In areas of the southeastern United States, the control to stop
§351.23.    Review of Requests for Correction of Personal Information.    re-infestations ranged from $20,000 to over one million dollars
                                                                          with an average cost of $125,000 per outbreak. The designa-
       (a) The Health and Human Services Commission (HHSC) will           tion as functionally eradicated will help protect the Rolling Plains
decide whether information collected about an individual should be        Central Zone from boll weevil re-infestation through the estab-
corrected. HHSC will notify the individual of the decision in writing     lishment of quarantine restrictions on the movement of regulated
within 60 days of the receipt of the request for correction. HHSC may     articles from a quarantined area into a restricted area.
extend this period for an additional 30 days. The HHSC will notify the
individual of the extension in writing.                                   In accordance with 4 T.A.C. §20.13, the Texas Boll Weevil Erad-
                                                                          ication Foundation (the foundation) recommended that the de-
       (b) Records may not be destroyed or altered to make a cor-         partment to declare the Rolling Plains Central Zone as function-
rection. HHSC will add the correct information to the record with the     ally eradicated. The foundation provided scientific documenta-
incorrect information and make a notation that the correct information    tion acceptable to the department indicating that movement of
supercedes the incorrect information.                                     regulated articles into this zone presented a threat to the suc-
        (c) HHSC will not review information as provided in this chap-    cess of boll weevil eradication. The data indicated that boll weevil
ter if HHSC previously reviewed the information to determine its accu-    numbers were well below the requirement of an average of 0.001
racy under a different review process. Examples of other review pro-      boll weevils per trap per week for the season. Consequently, the
cesses include personnel grievance hearings, client fair hearings, for-   Commissioner of Agriculture declared the Rolling Plains Central
mal appeals, informal dispute resolution, and informal reconsideration.   Zone to be functionally eradicated on February 19, 2002.
       (d) If HHSC receives a request for correction from a person        Ed Gage, coordinator for pest management programs, has de-
other than the individual who is the subject of the information, HHSC     termined that for the first five-year period the proposed amend-
will not correct the information unless the subject of the information    ment is in effect, there is no anticipated fiscal impact on state or
agrees the earlier information is incorrect or HHSC can independently     local governments as a result of administration and enforcement
determine the information is incorrect.                                   of the sections.
This agency hereby certifies that the proposal has been reviewed          Mr. Gage has also determined that for each year of the first five
by legal counsel and found to be within the agency’s legal author-        years the proposed amendment is in effect, the public benefit an-
ity to adopt.                                                             ticipated as a result of administering and enforcing the new and
                                                                          amended sections is that the risk of artificial re- infestation of a
Filed with the Office of the Secretary of State on March 4, 2002.         restricted area by boll weevils will be minimized thereby protect-
                                                                          ing the investment that cotton producers and the State of Texas
TRD-200201315
                                                                          have made to eradicate the pest. Once the boll weevil is re-
Marina S. Henderson                                                       duced to low levels or eradicated from cotton producing areas
Executive Deputy Commissioner                                             of the state, fewer insecticide applications should be necessary
Texas Health and Human Services Commission                                to produce high quality cotton. In other eradicated areas of the
Earliest possible date of adoption: April 14, 2002                        United States, it is estimated that growers are saving an average
For further information, please call: (512) 424-6576                      of $36 per acre in reduced pesticide applications and earning an




27 TexReg 1966 March 15, 2002 Texas Register
additional $42 per acre from increased cotton yield. Prevent-          The code that is affected by the proposal is Texas Agriculture
ing re-infestation by boll weevils in restricted areas may enable      Code, Chapter 74, Subchapters A and D.
Texas cotton producers to achieve similar results.
                                                                       §20.13. Functionally Eradicated Areas.
There will be a cost to some individuals, microbusinesses and
small businesses including cotton producers, transporters, gin-                (a)   (No change.)
ners and others directly involved in cotton production. There will            (b) The Southern Rolling Plains and Rolling Plains Central
be a cost incurred for cleaning and/or treating equipment, such        Boll Weevil Eradication Zones [Zone], as defined in the Texas Agri-
as cotton pickers, cotton strippers, boll buggies, and module          culture Code, §74.1021, have[has] been declared as functionally erad-
trucks, used for harvesting or transporting cotton when moved          icated by the commissioner.
into or through restricted areas. There will also be a cost in-
curred for cleaning and/or treating equipment used in stalk de-        This agency hereby certifies that the proposal has been reviewed
struction, such as tractors, shredders, plows, and disks, when         by legal counsel and found to be within the agency’s legal author-
moved into or through restricted areas. Cleaning involves the          ity to adopt.
physical removal of hostable material through methods such as
removal by hand, high-pressure air cleaning, or high pressure          Filed with the Office of the Secretary of State on February 28,
washing. Treatment of equipment will involve fumigation of regu-       2002.
lated articles as prescribed by the department. Costs associated
                                                                       TRD-200201258
with cleaning or treating equipment will vary depending upon the
cleaning or treatment method used, the cleanliness of the equip-       Dolores Alvarado Hibbs
ment, the capabilities of the grower, and the type of equipment        Deputy General Counsel
being cleaned or treated. Because of the wide range of variables       Texas Department of Agriculture
involved in cleaning and treating equipment, a cost to affected        Earliest possible date of adoption: April 14, 2002
persons cannot be determined at this time. There may also be           For further information, please call: (512) 463-4075
costs associated with implementing a protection plan if mitigating
measures are required to safeguard a restricted area from re-in-                            ♦            ♦             ♦
festation by boll weevil. A protection plan is defined as a plan       TITLE 7. BANKING AND SECURITIES
developed for the purpose of mitigating, with the goal of prevent-
ing, boll weevil infestation and establishment in an area. Miti-       PART 4. TEXAS SAVINGS AND LOAN
gating measures will vary depending upon the location selected,
the type of equipment being used, and the associated quaran-           DEPARTMENT
tined article. Measures may include, but are not limited to, the
following: approved insecticide field treatment of cotton and cot-     CHAPTER 80. MORTGAGE BROKER AND
ton products prior to delivery to an area or a gin; requirements       LOAN OFFICER LICENSING
for moving, handling, storage and treatment or use of approved
insecticide applications to regulated articles; and the monitor-       SUBCHAPTER B. PROFESSIONAL CONDUCT
ing of boll weevils at a specified site(s). Costs associated with      7 TAC §80.9
implementing a protection plan will vary due to the wide range
of mitigating measures possible. In some circumstances, the            The Finance Commission of Texas (the "Finance Commission")
use of current practices or equipment by a producer, transporter,      proposes to amend 7 TAC §80.9 through the proposal of a
ginner, or other responsible parties may be approved in the pro-       new subsection §80.9(c) concerning the filing of consumer
tection plan, thereby minimizing costs to those affected by the        complaints with the Texas Savings and Loan Department (the
proposed rule. Because each plan may be unique and situation           "department").
specific, costs associated with implementing a protection plan         The new Subsection 80.9(c) will implement the requirements of
cannot be determined at this time.                                     Finance Code, §11.307, pertaining to the filing of consumer com-
Comments on the proposal may be submitted to Ed Gage, coor-            plaints with the department, as enacted by the 77th Legislative
dinator for pest management, Texas Department of Agriculture,          through House Bill 1763.
P.O. Box 12847, Austin, Texas 78711. Comments must be re-              Proposed §80.9(c) will specify the manner in which Mortgage
ceived no later than 30 days from the date of the publication of       Brokers and Loan Officers provide consumers with information
the proposal in the Texas Register.                                    on how to file complaints with the department. The proposed
The amendment to §20.13 is proposed in accordance with the             subsection will also require that the information on how to file
Texas Agriculture Code (the Code), §74.006, which provides the         complaints be included with each privacy notice a Mortgage Bro-
department with the authority to adopt rules as necessary for          ker or Loan Officer is required by law to provide to consumers.
the effective enforcement and administration of Chapter 74, Sub-       James L. Pledger, Commissioner, Texas Savings and Loan De-
chapter A; §74.004 which provides the department with the au-          partment, has determined that, for each year of the first five years
thority to establish regulated areas, dates and appropriate meth-      that the subsection is in effect, there will be no fiscal implication
ods of destruction of stalks, other cotton parts and products of       for state or local government as a result of enforcing or adminis-
host plants for cotton pests; and §74.122, which provides the de-      tering the subsection as adopted.
partment with the authority to adopt rules relating to quarantin-
ing areas of Texas that are infested with the boll weevil, including   Commissioner Pledger also has determined that, for each of the
rules addressing the storage and movement of regulated articles        first five years the subsection as adopted is in effect, the public
into and out of a quarantined area; and §74.123, which autho-          benefit anticipated as a result of the adoption of this subsection
rizes the department to issue or authorize the issuance of cer-        will be the provision of information to the consumers of Mort-
tificates or permits relating to movement of a regulated article.      gage Brokers and Loan Officers on how to file complaints with



                                                               PROPOSED RULES March 15, 2002 27 TexReg 1967
the department. There will be minimal costs incurred by a per-                notice: (Name of Mortgage Broker or Loan Officer) is licensed under
son required to comply with this subsection and there will be no              the laws of the State of Texas and by state law is subject to regula-
deleterious effect on small businesses.                                       tory oversight by the Texas Savings and Loan Department. Any con-
                                                                              sumer wishing to file a complaint against (name of Mortgage Broker or
Comments on proposed §80.9(c) may be submitted in writing
                                                                              Loan Officer) should contact the Texas Savings and Loan Department
to James L. Pledger, Commissioner, Texas Savings and Loan
                                                                              through one of the means indicated below: In Person or by U.S. Mail:
Department, 2601 North Lamar Boulevard, Suite 201, Austin,
                                                                              2601 North Lamar Boulevard, Suite 201, Austin, Texas 78705-4294,
Texas, 78705-4294, or e-mailed to: TSLD@tsld.state.tx.us.
                                                                              Telephone No.: (877) 276-5550, Fax No.: (512) 475-1360, E-mail:
Subsection 80.9(c) is proposed under the authority of Finance                 TSLD@tsld.state.tx.us
Code, §11.307, which requires the Finance Commission to
                                                                                            (B) A required notice must be included in each privacy
adopt rules specifying the manner in which Mortgage Brokers
                                                                              notice that a Mortgage Broker or Loan Officer sends out.
and Loan Officers provide consumers with information on how
to file complaints with the department.                                                     (C) Regardless of whether a Mortgage Broker or Loan
                                                                              Officer is required by any state or federal law to give privacy notices,
The proposed amendment implements Finance Code, §11.307.
                                                                              each Mortgage Broker or Loan Officer must take appropriate steps to let
§80.9.    Required Disclosures.                                               its consumers know how to file complaints by giving them the required
        (a) At the time an application for a Mortgage Loan is made to         notice in compliance with paragraph (2) (A) of this subsection or by
a Mortgage Broker or Loan Officer, the Mortgage Broker or Loan Offi-          providing the disclosure specified in Section 80.9(c).
cer shall provide the Mortgage Applicant with a disclosure describing                       (D) The following measures are deemed to be appropri-
their relationship, the duties of the Mortgage Broker or Loan Officer to      ate steps to give the required notice:
the Mortgage Applicant, and a description of how the Mortgage Bro-
ker or Loan Officer will be compensated for his or her services. Such                           (i) In each registered office or branch office where a
disclosures are to be made using forms promulgated by the Commis-             Mortgage Broker or Loan Officer conducts business on a face-to-face
sioner. Such disclosures shall include a statement to the effect that the     basis, the required notice, in the form specified in paragraph (2) (A)
Department oversees the enforcement of the Act (including conduct-            of this subsection, must be conspicuously posted. A notice is deemed
ing investigations of any complaints) and provide a consumer toll free        to be conspicuously posted if a customer with 20/20 vision can read it
telephone number for the Department.                                          from the place where he or she would typically conduct business or if
                                                                              it is included on a bulletin board, in plain view, on which all required
       (b) Anytime a Mortgage Broker or Loan Officer charges or               notices to the general public (such as equal housing posters, licenses,
receives from a Mortgage Applicant a fee for a service that is provided       etc.) are posted;
by a third party and retains any portion of the fee so charged or received:
                                                                                                (ii) If a Mortgage Broker or Loan Officer maintains
          (1) The portion retained by the Mortgage Broker or Loan             a web site, the required notice must be included in a screen which the
Officer and a description of the service actually rendered by the Mort-       consumer must view whenever the site is accessed; or
gage Broker or Loan Officer shall be disclosed to the Mortgage Appli-
cant in writing and                                                                           (iii) Providing a completed disclosure in the form re-
                                                                              quired by subsection (a) hereof.
          (2) The portion so retained by the Mortgage Broker or Loan
Officer shall not exceed the reasonable value of services actually ren-       This agency hereby certifies that the proposal has been reviewed
dered by the Mortgage Broker or Loan Officer for the benefit of the           by legal counsel and found to be within the agency’s legal author-
Mortgage Applicant.                                                           ity to adopt.
           (3) Any Mortgage Broker or Loan Officer retaining any              Filed with the Office of the Secretary of State on February 25,
portion of any fee or fees charged by third parties, however denomi-
nated, shall maintain appropriate documentation to substantiate the ba-       2002.
sis for the retention of such monies, including the reasonable value of       TRD-200201166
the services rendered for such fee or fees.                                   Timothy K. Irvine
          (4) Affiliated business arrangements, as provided for un-           General Counsel
der the Real Estate Settlement Procedures Act, and payments made              Texas Savings and Loan Department
pursuant thereto shall be disclosed to Mortgage Applicants as provided        Earliest possible date of adoption: April 14, 2002
for by the Real Estate Settlement Procedures Act and the regulations          For further information, please call: (512) 475-1350
implementing that act.
                                                                                                  ♦             ♦             ♦
         (c)     Consumer Complaint Procedure
               (1)   Definitions
                                                                              TITLE 22. EXAMINING BOARDS
             (A) "Privacy notice" means any notice which a Mort-              PART 11. BOARD OF NURSE
gage Broker or Loan Officer gives regarding a consumer’s right to pri-
vacy, regardless of whether it is required by a specific state or federal
                                                                              EXAMINERS
law or given voluntarily.
                                                                              CHAPTER 223.             FEES
             (B) "Required notice" means a notice in a form set forth
or provided for in paragraph (2) (A) of this subsection.                      22 TAC §223.1
               (2)   Notice of how to file complaints                         The Board of Nurse Examiners proposes an amendment to
                                                                              §223.1, concerning Fees. This section establishes the fees
             (A) In order to let its consumers know how to file com-          necessary for the administration of the Board’s functions. On
plaints, Mortgage Brokers and Loan Officers must use the following



27 TexReg 1968 March 15, 2002 Texas Register
July 20, 2001, the Board originally met and approved increased          No other rules, codes, or statues will be affected by this proposed
fees to fund the Board’s appropriation. The 77th Legislature            amendment.
in Rider 2 of the Fiscal Year 2002-2003 Appropriations Act
                                                                        §223.1. Fees.
approved budget appropriations for the Board contingent on
those appropriations being paid through Board fee collections.                (a) The Board of Nurse Examiners has established reasonable
The fees were adopted on an emergency basis in order to                 and necessary fees for the administration of its functions.
comply with the legislative mandate to cover all appropriations
through fees which appeared in the August 17, 2001, issue of                        (1) - (4)    (No change.)
the Texas Register (26 TexReg 6071). The amendment became                           (5)    endorsement--$125.00 [$100.00]
effective August 6, 2001, and the fees were applied beginning
September 1, 2001. On December 4, 2001, the emergency                            (6) licensure (each biennium)--$45.00 [$42.00]; effective
adoption expired without the fees being subsequently proposed           May 1, 2002, $47.00
and adopted on a permanent basis.                                                   (7) - (13)    (No change.)
In addition to the necessary fees for revenue, the amendment will                   (14)    advanced practice nurse--initial credentials--$75.00
increase the renewal fee for registered nurses by an additional         [$50.00];
$2 and for advanced practice nurses by $4 to cover the Board’s
participation in the Texas Online Project beginning May 1, 2002.                    (15)    declaratory order of eligibility--$150.00 [$100.00];
The collection of fees for revenue for fiscal year 2002 will become                 (16)    eligibility determination--$150.00 [$100.00];
effective upon adoption of the proposed amendment, but the fees
for the Texas Online Project will not take effect until May 1, 2002.                (17) - (18) (No change.)
Section 2054.252 of the Texas Government Code creates the                        (19) advanced practice nurse renewal--$50.00; effective
Texas Online Authority and the Texas Online Project. The leg-           May 1, 2002, $54.00
islation encourages the Board and other licensing agencies to
participate in the project. Subsection (d) of §2054.2606 autho-                     (20) - (22) (No change.)
rizes the Texas Online Authority to set the amount of fee that                (b)     all fees are non-refundable.
a participating licensing agency may charge its license holders.
The increase in fees must be in effect in order to raise the nec-       This agency hereby certifies that the proposal has been reviewed
essary revenue for fiscal year 2002 and to offset the additional        by legal counsel and found to be within the agency’s legal author-
administrative costs incurred by the Board from its participation       ity to adopt.
in the Texas Online Project.
                                                                        Filed with the Office of the Secretary of State on March 1, 2002.
Katherine A. Thomas, MN, RN, Executive Director, has deter-
                                                                        TRD-200201291
mined that the rule amendment is necessary to cover an esti-
mated shortfall in revenue in excess of $800,000.00 from the            Katherine A. Thomas
2002-2003 legislative appropriation. The fee change is projected        Executive Director
to cover the revenue shortfall and the new administrative costs         Board of Nurse Examiners
associated with the Texas Online Project. In addition, the addi-        Earliest possible date of adoption: April 14, 2002
tional $2 increase in renewal fees for registered nurses and $4         For further information, please call: (512) 305-6823
renewal fee for advanced practice nurses which begin May 1,
2002, will cover the costs of implementing the online services.                                  ♦           ♦             ♦
Other than the increase in fees, there will be no fiscal implica-
tions for state or local government for the first five-year period as   PART 15. TEXAS STATE BOARD OF
a result of enforcing or administering the amended rule.                PHARMACY
Ms. Thomas has determined that the public benefit for the first
five-year period of the proposed amendment will be greater pro-         CHAPTER 283. LICENSING REQUIREMENTS
tection for the people of Texas and greater efficiency in the li-       FOR PHARMACISTS
censing of registered nurses. There will be no cost to small busi-
nesses, but the amended rule will affect all applicants applying        22 TAC §283.1, §283.6
for initial licensure or endorsement, all currently licensed regis-     The Texas State Board of Pharmacy proposes amendments to
tered nurses and advanced practice nurses who renew their li-           §283.1, concerning Purpose, and §283.6, concerning Preceptor
censes. The rule will also affect initial approval fees for advanced    Requirements. The amendments, if adopted, will (1) change a
practice nurses; and all new licensure requests which will require      pharmacist preceptor’s certification renewal period to coincide
a declaratory order or licensure eligibility determination.             with his or her pharmacist license renewal period; (2) require
Written comments on the proposal may be submitted to Kather-            three hours of preceptor training every two years rather than
ine A. Thomas, MN, RN, Executive Director, Board of Nurse Ex-           every three years; and (3) update citations to the new codified
aminers, PO Box 430, Austin, Texas 78767-0430.                          Texas Pharmacy Act.

This amendment is proposed under §301.151 of the Texas Oc-              Gay Dodson, R.Ph., Executive Director/Secretary, has deter-
cupations Code which provides the Board of Nurse Examiners              mined that, for the first five- year period the rule is in effect, there
with the authority and power to make and enforce all rules and          will be no fiscal implications for state government as a result of
regulations necessary for the performance of its duties and con-        enforcing or administering the rule. There are no anticipated
ducting of proceedings before it.                                       fiscal implications for local government.




                                                                PROPOSED RULES March 15, 2002 27 TexReg 1969
Ms. Dodson has determined that, for each year of the first five-                       [(3) complete 3 hours of preceptor training developed by
year period the rule will be in effect, the public benefit antici-           a Texas college of pharmacy and provided by an ACPE approved
pated as a result of enforcing the rule will be increased training           provider every 3 years; and]
for pharmacist preceptors who in turn train pharmacist interns.
                                                                                       (3)   [(4)] meet the requirements of subsection (f) of this sec-
The majority of preceptor pharmacists get their preceptor train-
                                                                             tion.
ing free because they precept students for a college of pharmacy
offering training. The few remaining preceptor pharmacists will                      (d) Beginning July 1, 2002, approval and certification as a pre-
pay approximately $25.00 for a training course every two years               ceptor shall coincide with the preceptor pharmacist’s license renewal
rather than every three years as is currently required. There is no          period. For preceptors whose preceptor certification expires on or af-
additional fiscal impact anticipated for small or large businesses.          ter July 1, 2002, the Board shall extend their preceptor expiration date
                                                                             to the next expiration date of the preceptor pharmacist’s license. [Any
Written comments on the proposed rules may be submitted to
                                                                             preceptor approved and certified by the board shall be approved and
Steve Morse, R.Ph., Director of Professional Services, Texas
                                                                             certified for a three-year period commencing on the date of such ap-
State Board of Pharmacy, 333 Guadalupe Street, Box 21, Austin,
                                                                             proval and certification.]
Texas, 78701-3942, FAX (512) 305-8082. Comments must be
received by 5 p.m., May 2, 2002.                                                    (e) A preceptor may supervise only one pharmacist-intern at
                                                                             any given time. Texas Colleges of Pharmacy may request a different
The amendment is proposed under §551.002, and §554.051 of
                                                                             preceptor to pharmacist-intern ratio during the board’s annual review
the Texas Pharmacy Act (Chapters 551-566, Texas Occupations
                                                                             and approval of their college based, structured internship program. Any
Code). The Board interprets §551.002 as authorizing the agency
                                                                             such ratio shall apply only to the internship experience acquired as a
to protect the public through the effective control and regulation
                                                                             part of the college based, structured internship program. [For the pur-
of the practice of pharmacy. The Board interprets §554.051 as
                                                                             pose of this subsection, the approval of internship programs previously
authorizing the agency to adopt rules for the proper administra-
                                                                             granted by the Board shall remain in effect through August 31, 1996.]
tion and enforcement of the Act.
                                                                                    (f) No pharmacist may serve as a preceptor if his or her license
The statutes affected by this rule: Chapters 551-566, Texas Oc-
                                                                             to practice pharmacy has been the subject of an order of the board im-
cupations Code.
                                                                             posing any penalty set out in the Act, §565.051, [§28(a),] during the pe-
§283.1. Purpose.                                                             riod he or she is serving as a preceptor or within the three-year period
                                                                             immediately preceding application for approval as a preceptor. Pro-
The purpose of this chapter is to provide a comprehensive, coherent          vided, however, a pharmacist who has been the subject of such an order
regulatory scheme for the licensing of those wishing to engage in the        of the board may petition the board, in writing, for approval to act as a
practice of pharmacy in this state. The provisions of this chapter govern    preceptor.
in conjunction with the Texas Pharmacy Act (Chapters 551-566, Occu-
pations Code, as amended) [(Texas Civil Statutes, Article 4542a-1)] the      This agency hereby certifies that the proposal has been reviewed
method for the issuance of a certificate to act as a pharmacist in Texas.    by legal counsel and found to be within the agency’s legal author-
This chapter also provides a framework for any board-approved intern-        ity to adopt.
ship program.
                                                                             Filed with the Office of the Secretary of State on March 4, 2002.
§283.6. Preceptor Requirements.
                                                                             TRD-200201301
     (a) Preceptors shall be pharmacists whose license to practice           Gay Dodson, R.Ph.
pharmacy in Texas is current and not on inactive status with the board.      Executive Director/Secretary
       (b) Preceptors are required to be approved and certified by the       Texas State Board of Pharmacy
board. A preceptor shall publicly display the preceptor certificate with     Earliest possible date of adoption: April 14, 2002
his/her license to practice pharmacy and the license renewal certificate.    For further information, please call: (512) 305-8082
      (c)    For certification as a preceptor a pharmacist must:                                  ♦             ♦             ♦
            (1)   have at least:
                                                                             CHAPTER 291. PHARMACIES
              (A) one year of experience in the type of internship
practice setting; or                                                         SUBCHAPTER A. ALL CLASSES OF
               (B) six months of residency training if the pharmacy          PHARMACIES
resident is in a program accredited by the American Society of Health        22 TAC §291.1, §291.4
System Pharmacists; [.]
                                                                             The Texas State Board of Pharmacy proposes amendments to
            (2)   have completed:                                            §291.1, concerning Pharmacy License Application, and §291.4,
              (A) for initial certification, three hours [3 hours] of pre-   concerning Change of Ownership. The amendments, if adopted,
ceptor training developed by a Texas college of pharmacy and provided        will help ensure that pharmacy licenses are issued to individuals
by an ACPE approved provider within the previous two years; or [3            who plan to operate a bona fide business activity.
years;]                                                                      Gay Dodson, R.Ph., Executive Director/Secretary, has deter-
             (B) to continue certification, three hours of preceptor         mined that, for the first five- year period the rule is in effect,
training developed by a Texas college of pharmacy and provided by            there will be fiscal implications for state government as a result
an ACPE approved provider within the preceptor pharmacist’s current          of enforcing or administering the rule. There are no anticipated
license renewal period; and                                                  fiscal implications for local government. Fiscal implications for
                                                                             state government will primarily be the cost to the Texas State
                                                                             Board of Pharmacy for computer programming necessary to



27 TexReg 1970 March 15, 2002 Texas Register
implement the rule. The estimated cost to the Texas State                                 (E)         current Texas Franchise Tax Certificate of Good
Board of Pharmacy for the next five years will be: FY2002 -                   Standing; and
$2,682.33; FY2003 - $633; FY2004 - $633; FY2005 - $633; and
                                                                                           (F) approved credit application from primary whole-
FY2006 - $633.
                                                                              saler or documents showing credit worthiness;
Ms. Dodson has determined that, for each year of the first five-
                                                                                            (7)    the signature of the pharmacist-in-charge;
year period the rule will be in effect, the public benefit anticipated
as a result of enforcing the rule will be increased confidence that                     (8) the notarized signature of the owner, or if the pharmacy
pharmacy licenses are issued for legitimate purposes. Fiscal                  is owned by a partnership or corporation, the notarized signature of an
impact anticipated for small or large businesses will be the cost             executive officer; [and]
for pharmacy license applicants to comply with the rule. It is
                                                                                        (9) current driver license or state issued photo ID card of
anticipated that approximately 533 pharmacy applications per
                                                                              owner, or if the pharmacy is owned by a partnership or closely held
year will be required to comply with these new requirements.
                                                                              corporation, a current driver license or state issued photo ID card for
Cost to each of these pharmacies to gather and submit additional
                                                                              each executive officer;
requirements is anticipated to be less than $25 per application.
                                                                                            (10)    federal tax ID number;
Written comments on the proposed rules may be submitted to
Steve Morse, R.Ph., Director of Professional Services, Texas                           (11) description of business services that will be offered
State Board of Pharmacy, 333 Guadalupe Street, Box 21, Austin,                and reason for business;
Texas, 78701-3942, FAX (512) 305-8082. Comments must be
                                                                                        (12) name and address of malpractice insurance carrier or
received by 5 p.m., May 2, 2002.
                                                                              statement that the business will be self-insured; and
The amendment is proposed under sections 551.002, 554.051,
                                                                                            (13)    [(9)] any other information requested on the applica-
and 560.052 of the Texas Pharmacy Act (Chapters 551-566,
                                                                              tion.
Texas Occupations Code). The Board interprets section 551.002
as authorizing the agency to protect the public through the ef-                      (b) A fee as specified in §291.6 of this title (relating to Phar-
fective control and regulation of the practice of pharmacy. The               macy License Fees) will be charged for the issuance of a pharmacy
Board interprets section 554.051 as authorizing the agency to                 license.
adopt rules for the proper administration and enforcement of the
                                                                                     (c) For purpose of this section, [subsection,] managing officers
Act. The Board interprets section 560.052 as authorizing the
                                                                              are defined as the top four executive officers, including the corporate
agency to require information on a pharmacy application that the
                                                                              officer in charge of pharmacy operations, who are designated by the
Board determines necessary for the proper administration and
                                                                              partnership or corporation to be jointly responsible for the legal opera-
enforcement of the Act.
                                                                              tion of the pharmacy.
The statutes affected by this rule: Chapters 551-566, Texas Oc-
                                                                                     (d) If the applicant holds an active pharmacist license in Texas,
cupations Code.
                                                                              the applicant is not required to provide copies of a social security card
§291.1. Pharmacy License Application.                                         or birth certificate as set forth in subsection (a)(6)(B) of this section.
      (a) To qualify for a pharmacy license, the applicant must sub-                 (e) Prior to the issuance of a pharmacy license, the board shall
mit an application including the following information:                       conduct an on-site inspection of the pharmacy in the presence of the
                                                                              pharmacist-in-charge and owner or representative of the owner, to en-
            (1)     name and address of pharmacy;                             sure that the pharmacist-in-charge and owner can meet the require-
            (2)     type of ownership;                                        ments of the Texas Pharmacy Act and Board Rules.
           (3) names, home addresses, dates of birth, phone numbers,                 (f) If the applicant holds an active pharmacy license in Texas
and social security numbers of all owners; if a partnership or corpora-       as of June 1, 2002, the following is applicable:
tion, the name, title, home address, home phone number, date of birth,                   (1) the applicant is not required to provide with the phar-
and social security number of all managing officers;                          macy application, the documents set forth in subsections (a)(6)(B)-(F)
          (4) name and license number of the pharmacist-in-charge             of this section; and
and of other pharmacists employed by the pharmacy;                                       (2) the board may waive the pre-licensing on-site inspec-
            (5)     anticipated date of opening and hours of operation;       tion as set forth in subsection (e) of this section.
            (6)     copies of the following documents:                        §291.4. Change of Ownership.
                                                                                     (a) When a pharmacy changes ownership, a new/completed
              (A) [copy of] lease agreement or alternatively, a nota-
                                                                              pharmacy application must be filed with the board and the licensed
rized statement signed by the lessee and lessor certifying the existence
                                                                              issued to previous owner shall be returned to the board.
of a lease agreement, or if the location of the pharmacy is owned by the
applicant, a notarized statement certifying such location ownership;                  (b)     The new application shall include the following informa-
                                                                              tion:
              (B) social security card and birth certificate of owner,
or if the pharmacy is owned by a partnership or corporation, copy of                        (1)    the name and address of pharmacy;
social security card and birth certificate of each executive officer;
                                                                                            (2)    the type of ownership;
              (C) Certificate of Authority, if applicant is an out-of-
                                                                                         (3) names, home addresses, dates of birth, phone numbers,
state corporation;
                                                                              and social security numbers of all owners; if a partnership or corpora-
                  (D) Articles of Incorporation, if the applicant is a cor-   tion, the name, title, home address, home phone number, date of birth,
poration;                                                                     and social security number of all managing officers; [the names and




                                                                     PROPOSED RULES March 15, 2002 27 TexReg 1971
addresses of all owners; if a partnership or corporation, the name, title,        Filed with the Office of the Secretary of State on March 4, 2002.
and address of managing officers;]                                                TRD-200201302
          (4) the name and license number of the pharma-                          Gay Dodson, R.Ph.
cist-in-charge and of other pharmacists employed by the pharmacy;                 Executive Director/Secretary
            (5)    the hours of operation;                                        Texas State Board of Pharmacy
                                                                                  Earliest possible date of adoption: April 14, 2002
            (6)    copies of the following documents:                             For further information, please call: (512) 305-8028
              (A) [(5)] a copy of lease agreement or alternatively, a
notarized statement signed by the lessee and lessor certifying the exis-
                                                                                                       ♦             ♦             ♦
tence of a lease agreement, or if the location of the pharmacy is owned           22 TAC §291.11
by the applicant, a notarized statement certifying such location owner-
ship;                                                                             The Texas State Board of Pharmacy proposes new §291.11,
                                                                                  concerning Operation of a Pharmacy. The new rule, if adopted,
              (B) [(6)] a copy of the purchase contract or mutual                 will clarify what constitutes operation of a pharmacy.
agreement between the buyer and seller, or a notarized statement of
intent to convey ownership signed by both the buyer and seller, stating           Gay Dodson, R.Ph., Executive Director/Secretary, has deter-
the proposed date of ownership change;                                            mined that, for the first five- year period the new rule is in effect,
                                                                                  there will be no fiscal implications for state government as
              (C) social security card and birth certificate of owner,            a result of enforcing or administering the rule. There are no
or if the pharmacy is owned by a partnership or corporation, copy of              anticipated fiscal implications for local government.
social security card and birth certificate of each executive officer;
                                                                                  Ms. Dodson has determined that, for each year of the first five-
              (D) Certificate of Authority, if applicant is an out-of-            year period the rule will be in effect, the public benefit anticipated
state corporation;                                                                as a result of enforcing the rule will be an increased understand-
                  (E)     Articles of Incorporation, if the applicant is a cor-   ing by pharmacy owners of what constitutes proper operation of
poration;                                                                         a pharmacy. There is no additional fiscal impact anticipated for
                                                                                  small or large businesses.
            (F)           current Texas Franchise Tax Certificate of Good
Standing; and                                                                     Written comments on the proposed new rule may be submitted
                                                                                  to Steve Morse, R.Ph., Director of Professional Services, Texas
             (G) approved credit application from primary whole-                  State Board of Pharmacy, 333 Guadalupe Street, Box 21, Austin,
saler or documents showing credit worthiness;                                     Texas, 78701-3942, FAX 512/305-8082. Comments must be re-
            (7)    the signature of the pharmacist-in-charge;                     ceived by 5 p.m., May 2, 2002.

          (8) the notarized signature of the owner, or if the pharmacy            The new rule proposed under sections 551.002, and 554.051 of
is owned by a partnership or corporation, the notarized signature of an           the Texas Pharmacy Act (Chapters 551-566, Texas Occupations
executive officer; [and]                                                          Code). The Board interprets section 551.002 as authorizing the
                                                                                  agency to protect the public through the effective control and reg-
          (9) current driver license or state issued photo ID card of             ulation of the practice of pharmacy. The Board interprets section
owner, or if the pharmacy is owned by a partnership or closely held               554.051 as authorizing the agency to adopt rules for the proper
corporation, a current driver license or state issued photo ID card for           administration and enforcement of the Act.
each executive officer;
                                                                                  The statutes affected by this rule: Chapters 551-566, Texas Oc-
            (10)        federal tax ID number;                                    cupations Code.
         (11) description of business services that will be offered               §291. 11.   Operation of a Pharmacy.
and reason for business;
                                                                                         (a) For the purposes of §565.002(7) fo the Texas Pharmacy
          (12) name and address of malpractice insurance carrier or               Act, the following words and terms shall be defined as follows.
statement that the business will be self-insured; and
                                                                                             (1) "Failure to engage in the business described in the ap-
            (13)        [(9)] any other information requested on the applica-     plication for a license" means the holder of a pharmacy license has not
tion.                                                                             commenced operating the pharmacy within six months of the date of
     (c) A fee as specified in §291.6 of this title (relating to Phar-            issuance of the license.
macy License Fees) will be charged for issuance of a new license.                            (2) "Ceased to engage in the business described in the ap-
       (d) If the applicant holds an active pharmacist license in Texas,          plication for a license" means the holder of a pharmacy license, once it
the applicant is not required to provide copies of a social security card         has been in operation, discontinues operating the pharmacy for a period
or birth certificate as set forth in subsection (a)(6)(C) of this section.        of six months or longer.

       (e) If the applicant holds an active pharmacy license in Texas                    (b) For the purposes of this section, the term "operating the
as of June 1, 2002, the applicant is not required to provide with the phar-       pharmacy" means the pharmacy shall demonstrate observable phar-
macy application, the documents set forth in subsections (a)(6)(C)-(G)            macy business activity on a regular, routine basis, including a sufficient
of this section.                                                                  number of transactions of receiving, processing, or dispensing prescrip-
                                                                                  tion drug orders or medication drug orders.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency’s legal author-                      (c)   No person may operate a pharmacy in a personal residence.
ity to adopt.




27 TexReg 1972 March 15, 2002 Texas Register
This agency hereby certifies that the proposal has been reviewed            years old [and which such pharmacist is not actively practicing phar-
by legal counsel and found to be within the agency’s legal author-          macy,] shall be renewed without payment of a fee provided such phar-
ity to adopt.                                                               macist is not actively practicing pharmacy. The renewal certificate of
                                                                            such pharmacist issued by the board shall reflect an inactive status. A
Filed with the Office of the Secretary of State on March 4, 2002.           person whose license is renewed pursuant to this subsection may not
TRD-200201303                                                               engage in the active practice of pharmacy without first paying the fee
                                                                            as set out in subsection (a) of this section.
Gay Dodson, R.Ph.
Executive Director/Secretary                                                      (c)-(d)       (No change.)
Texas State Board of Pharmacy                                               §295.7. Pharmacist License Renewal.
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 305-8028                        For the purposes of the Act, Chapter 559, Subchapter A. [Texas Civil
                                                                            Statutes, Article 4542a-1, §24.]
                    ♦              ♦             ♦                                      (1)    (No change.)
CHAPTER 295.               PHARMACISTS                                                (2) Before the expiration date of the license [Timely receipt
22 TAC §§295.5, 295.7, 295.9                                                of the completed application and renewal fee] means the receipt in the
                                                                            board’s office of a completed [such] application and renewal fee on or
The Texas State Board of Pharmacy proposes amendments                       before the last day of the assigned expiration month.
to §295.5, concerning Pharmacist License or Renewal Fees,
§295.7, concerning Pharmacist License Renewal, and §295.9                             (3) As specified in §559.003, [subsections (d)-(f) of Texas
concerning Inactive License. The proposed amendments, if                    Civil Statutes, Article 4542a-1, §24,] if the completed application and
adopted, will: (1) permit a pharmacist, who is at least 72 years            renewal fee is not received on or before the last day of the assigned ex-
old and not actively practicing pharmacy, to renew his or her               piration month, the person’s license to practice pharmacy shall expire.
license without payment of a renewal fee; and (2) updates                   A person shall not practice pharmacy with an expired license. An ex-
citations to the new codified Texas Pharmacy Act and makes                  pired license may be renewed according to the following schedule.
other changes necessary due to the codification.                                              (A)-(C)   (No change.)
Gay Dodson, R.Ph., Executive Director/Secretary, has deter-                 §295.9. Inactive License.
mined that, for the first five- year period the new rule is in effect,
there will be no fiscal implications for state government as                       (a) Placing a license on inactive status. A person who is li-
a result of enforcing or administering the rule. There are no               censed by the board to practice pharmacy but who is not eligible to
anticipated fiscal implications for local government.                       renew the license for failure to comply with the continuing education
                                                                            requirements of the Act, Chapter 559, Subchapter A, [§24,] and who
Ms. Dodson has determined that, for each year of the first five-            is not engaged in the practice of pharmacy in this state, may place the
year period the rule will be in effect, the public benefit anticipated      license on inactive status at the time of license renewal or during a li-
as a result of enforcing the rule will be to no longer require a phar-      cense period as follows.
macist who is at least 72 years old to bear the burden of renewal
fees if he or she is not actively practicing pharmacy. There is no                      (1)-(2)    (No change.)
additional fiscal impact anticipated for small or large businesses.               (b)     (No change.)
Written comments on the proposed new rule may be submitted                        (c)     Reactivation of an inactive license.
to Steve Morse, R.Ph., Director of Professional Services, Texas
State Board of Pharmacy, 333 Guadalupe Street, Box 21, Austin,                        (1) A holder of a license that is on inactive status may return
Texas, 78701-3942, FAX 512/305-8082. Comments must be re-                   the license to active status by:
ceived by 5 p.m., May 2, 2002.                                                                (A) (No change.)
The amendments are proposed under sections 551.002,                                         (B) providing copies of completion certificates from ap-
554.051, and 554.006 of the Texas Pharmacy Act (Chapters                    proved continuing education programs as specified in §295.8(e) of this
551-566, Texas Occupations Code). The Board interprets                      title (relating to Continuing Education Requirements) for the number of
section 551.002 as authorizing the agency to protect the public             hours that would otherwise have been required for the renewal of the
through the effective control and regulation of the practice of             license, up to 45 [36] hours. Approved continuing education earned
pharmacy. The Board interprets section 554.051 as authorizing               within two years prior to the licensee applying for the return to active
the agency to adopt rules for the proper administration and                 status may be applied toward the continuing education requirement;
enforcement of the Act. The Board interprets section 554.006                and
as authorizing the agency to establish reasonable fees sufficient
to cover the costs of administering the Texas Pharmacy Act.                                   (C) (No change.)
The statutes affected by this rule: Chapters 551-566, Texas Oc-                         (2)    (No change.)
cupations Code.                                                             This agency hereby certifies that the proposal has been reviewed
§295.5. Pharmacist License or Renewal Fees.                                 by legal counsel and found to be within the agency’s legal author-
                                                                            ity to adopt.
      (a)   (No change.)
      (b) The license of a pharmacist who has been licensed by the          Filed with the Office of the Secretary of State on March 4, 2002.
Texas State Board of Pharmacy for at least 50 years or who is at least 72   TRD-200201305




                                                                   PROPOSED RULES March 15, 2002 27 TexReg 1973
Gay Dodson, R.Ph.                                                         §571.3. Eligibility for Examination and Licensure.
Executive Director/Secretary
                                                                                 (a) Definitions. The following words and terms, when used in
Texas State Board of Pharmacy                                             this chapter, have the following meaning:
Earliest possible date of adoption: April 14, 2002
For further information, please call: (512) 305-8028                                     (1)   Board - the Texas Board of Veterinary Medical Exam-
                                                                          iners.
                    ♦             ♦             ♦                                    (2) Locally derived scaled score - the equivalent of the
PART 24. TEXAS BOARD OF                                                   criterion referenced passing point for the national examination or the
                                                                          NAVLE.
VETERINARY MEDICAL EXAMINERS                                                        (3) National Board of [Examination Committee for] Vet-
CHAPTER 571. LICENSING                                                    erinary Medical Examiners (NBVME) [Medicine (NBEC)] - the or-
                                                                          ganization responsible for producing, administering and scoring the
SUBCHAPTER A. EXAMINATION                                                 NAVLE.
22 TAC §571.3                                                                       (4) National examination - the examination in existence
                                                                          and effective prior to the inauguration date of the NAVLE and which
The Texas Board of Veterinary Medical Examiners ("Board") pro-
                                                                          consists of the national board examination (NBE) and the clinical
poses amendments to §571.3 concerning Eligibility for Exami-
                                                                          competency test (CCT).
nation and Licensure. This section contains the requirements
for regular veterinary licensure in Texas. The purpose of the                      (5) North American Veterinary Licensing Examination
amendments is to make changes in the name of the board that               (NAVLE) - the examination which replaced [replaces] the national
is responsible for administering and scoring the North American           examination in the year 2000.
Veterinary Licensing Examination (NAVLE); change the pass-
                                                                                     (6) Passing score - an examination score of at least 75 per-
ing score on the State Board Examination (SBE) from 75 to 85
                                                                          cent on [which for] the national examination and NAVLE which is
percent; and clarify the requirements for an applicant to sit for
                                                                          based on a locally derived scaled score [.], and an examination score of
the NAVLE. The amendments require that an applicant for the
                                                                          at least 85 percent on the SBE.
NAVLE must, prior to sitting for the examination, take and pass
an English proficiency test. The Board believes that raising the                    (7) Testing window - a period of consecutive days of the
passing score on the SBE will encourage applicants to better              year specified by NBVME [NBEC] when qualified candidates can sit
prepare for the examination. The Board has observed that be-              for the NAVLE.
cause applicants who are deficient in English language skills of-
                                                                                    (8) Texas State Board Licensing Examination (SBE) - the
ten fail to pass the NAVLE, thus wasting fees and testing time, a
                                                                          state examination developed and administered by the Board.
pre-NAVLE English proficiency test should be implemented.
                                                                                   (b) - (c)    (No Change)
Mr. Ron Allen, Executive Director, has determined that for the
first five-year period the amended section is in effect there will                 (d)     Licensing Examination
be no fiscal implications for state or local government as a result
                                                                                         (1)   Eligibility
of enforcing or administering the section.
                                                                                        (A) An applicant may sit for the [NAVLE or] SBE pro-
Mr. Allen has also determined that for the first five years the sec-
                                                                          vided that the requirements of subsection (c) of this section have been
tion is in effect the public benefit anticipated as a result of enforc-
                                                                          met and the applicant is a graduate of:
ing the amended section will be to (a) increase the knowledge
and professionalism of license applicants who are required to                              (i) an approved and accredited veterinary medical
meet more stringent test scores, and increase the confidence of           school or college, as defined in subsection (b) (1) (C) of this section; or
the public in the veterinarians that are licensed in Texas; and (b)
                                                                                           (ii) a veterinary medical school or college not ap-
increase the communicative skills of persons that are required
                                                                          proved and accredited, as defined in subsection (b) (1) (C) of this sec-
to pass an English proficiency test prior to those persons taking
                                                                          tion, but who has obtained an ECFVG Certificate or a PAVE Certificate.
the examination, and increase the efficiency of the testing pro-
cedures. There will be no effect on small businesses. There will                        (B) An applicant may sit for the NAVLE provided that
be no anticipated economic cost to persons required to comply             the requirements of subsection (c) of this section have been met and the
with the amended section as proposed.                                     applicant is a graduate of:
Comments on the proposed amendments may be submitted                                       (i) an approved and accredited veterinary medical
in writing to Judy Huppert, Texas Board of Veterinary Med-                school or college, as defined in subsection (b) (1) (C) of this section; or
ical Examiners, 333 Guadalupe, Suite 2-330, Austin, Texas
                                                                                           (ii) a veterinary medical school or college not ap-
78701-3998, phone (512) 305-7555, and must be received by
                                                                          proved and accredited, as defined in subsection (b) (1) (C) of this sec-
May 1, 2002.
                                                                          tion, but who is enrolled in the ECFVG or has received a certificate
The amendments are proposed under the authority of the Veteri-            from PAVE.
nary Licensing Act, Texas Occupations Code, Section 801.151
                                                                                        (C) Prior to sitting for the NAVLE , an applicant who
(a) which states that the Board may adopt rules necessary to ad-
                                                                          is a graduate of a veterinary medical school or college not approved
minister the chapter.
                                                                          and accredited, as defined in subsection (b) (1) (C) of this section, and
The amendments affect the Veterinary Licensing Act, Texas Oc-             is enrolled in the ECFVG, must take and pass all English language
cupations Code, Section 801.252 which pertains to licensing el-           proficiency tests required, or have completed the PAVE certification
igibility requirements.                                                   program.




27 TexReg 1974 March 15, 2002 Texas Register
            (D) [(B)] A person must first take and pass the national          Ron Allen
examination or the NAVLE in order to sit for the SBE.                         Executive Director
          (2) Eligibility Prior to Graduation. An applicant who has           Texas Board of Veterinary Medical Examiners
not graduated from veterinary medical school may sit for examinations         Proposed date of adoption: June 13, 2002
provided the following conditions have been complied with:                    For further information, please call: (512) 305-7555
             (A) To sit for the SBE, an applicant must be enrolled                                  ♦             ♦            ♦
in an approved and accredited veterinary medical school or college as
defined in subsection (b) (1) (C) of this section and must obtain a doc-      22 TAC §571.4
ument from the dean [Dean] of the school or college from which the            The Texas Board of Veterinary Medical Examiners ("Board")
applicant expects to graduate certifying that the applicant is within 60      proposes amendments to §571.4 concerning Special Licenses.
days of completion of a veterinary college program and is expected to         Special licenses may be issued to members of the staff of
graduate.                                                                     the Texas A&M Veterinary Medical School and veterinary
              (B) An applicant enrolled in a joint or combined degree         employees of the Texas Animal Health Commission and the
program who has completed the applicant’s veterinary medical educa-           Texas Veterinary Medical Diagnostic Laboratory, and to licensed
tion but has not received a diploma or transcript certifying award of the     veterinarians in other states whose specialty practice is unrep-
applicant’s DVM degree, must obtain a letter from the dean [Dean] of          resented or under represented in Texas. The amended section
the school or college of veterinary medicine stating the applicant did        will raise the required passing score for the special license
in fact graduate before the applicant is eligible to sit for the SBE or the   examination (jurisprudence examination) from 75 percent to
NAVLE.                                                                        85 percent. The Board believes that raising the passing score
                                                                              on the jurisprudence examination will encourage applicants to
              (C) To sit for the NAVLE, a candidate must, at the time         better prepare for the examination.
an application is submitted, demonstrate that the candidate is within six
months of the expected graduation date falling within the appropriate         Mr. Ron Allen, Executive Director, has determined that for the
testing window and comply with all of the NBVME’s [NBEC’s] testing            first five-year period the amended section is in effect there will
requirements for the NAVLE.                                                   be no fiscal implications for state or local government as a result
                                                                              of enforcing or administering this section.
          (3) Results of Examinations. The Board will accept certi-
fied scores issued by the:                                                    Mr. Allen has also determined that for the first five years the
                                                                              section is in effect the public benefit anticipated as a result of
              (A) American Association of Veterinary State Boards             enforcing the amended section will be to increase the knowledge
(AAVSB) [Interstate Reporting Service of the Professional Examina-            and professionalism of license applicants who are required to
tion Service], or its successor, for the national examination; and            meet more stringent test scores, and increase the confidence of
                (B) the official reporting service for the NAVLE.             the public in veterinarians that are licensed in Texas. There will
                                                                              be no effect on small businesses. There will be no anticipated
          (4)-(6)     (No change.)                                            economic cost to persons required to comply with the amended
          (7)     Appearance for Examinations                                 section as proposed.

             (A) An applicant for the SBE must submit a new appli-            Comments on the proposed amendments may be submitted
cation and the current fees prior to admission for examination if the         in writing to Judy Huppert, Texas Board of Veterinary Med-
applicant:                                                                    ical Examiners, 333 Guadalupe, Suite 2-330, Austin, Texas
                                                                              78701-3998, phone (512) 305- 7555, and must be received by
                    (i) does not appear for the scheduled examination;        May 1, 2002.
or
                                                                              The amendments are proposed under the authority of the Vet-
                    (ii) fails to attain a passing score on the scheduled     erinary Licensing Act, Texas Occupations Code, §801.151 (a)
examination.                                                                  which states that the Board may adopt rules necessary to ad-
               (B) A candidate for the NAVLE must take the examina-           minister the chapter.
tion within the testing [test] window in which the candidate is autho-        The amendments affect the Veterinary Licensing Act, Texas Oc-
rized for testing.                                                            cupations Code, §801.252 which pertains to licensing eligibility
                (i) A candidate who fails to take the examination             requirements.
within the appropriate testing [test] window shall forfeit the candidate’s    §571.4. Special Licenses
fees.
                                                                                    (a) General requirements for licensure; examination scores; is-
                  (ii) A candidate who desires to take the examination        suance and renewal.
during a subsequent testing [test] window must have the candidate’s
eligibility reconfirmed by the Board and the candidate must pay new                     (1) - (3)   (No Change)
fees.                                                                                     (4) The applicant must submit with his application a writ-
This agency hereby certifies that the proposal has been reviewed              ten statement from his employer describing the applicant’s official du-
by legal counsel and found to be within the agency’s legal author-            ties that require the issuance of a special license under §801.256 (a) (1)
ity to adopt.                                                                 - (3), Texas Occupations Code. Upon completion of the jurisprudence
                                                                              examination, the board shall notify the applicant by letter of his score.
Filed with the Office of the Secretary of State on March 4, 2002.             [the pass/fail results. A grade of 75% has been established as the mini-
                                                                              mum passing grade.] For [successful] candidates who attain a passing
TRD-200201314                                                                 score of 85 percent, the letter shall constitute the special license for
                                                                              limited practice in the State of Texas.



                                                                     PROPOSED RULES March 15, 2002 27 TexReg 1975
            (5) - (7)   (No Change)                                          that are substantially equivalent to the requirements of the Veterinary
                                                                             Licensing Act, Texas Occupations Code, Chapter 801.
      (b) - (d)     (No Change)
                                                                                        (2) proof of receipt of a passing score on the national exam-
This agency hereby certifies that the proposal has been reviewed
                                                                             ination or NAVLE. The Board may, upon written petition of the appli-
by legal counsel and found to be within the agency’s legal author-
                                                                             cant, provide an exception to this requirement based on the applicant’s
ity to adopt.
                                                                             satisfaction of the other requirements of this section and consideration
                                                                             of factors set out in section 571.3 (b) (2).
Filed with the Office of the Secretary of State on March 4, 2002.
TRD-200201313
                                                                                       (3) proof of sponsorship by a veterinarian licensed by the
                                                                             Board who will directly supervise the provisional licensee’s practice
Ron Allen
                                                                             during the term of the provisional license. An applicant requesting
Executive Director
                                                                             waiver of the sponsorship requirement due to hardship must make a
Texas Board of Veterinary Medical Examiners                                  personal appearance before the Board to obtain a waiver.
Proposed date of adoption: June 13, 2002
For further information, please call: (512) 305-7555                                   (4) a passing score of 85 percent on the Board’s [state
                                                                             board] jurisprudence examination.
                        ♦             ♦          ♦                                     (5)     payment of the required application fee.
22 TAC §571.18                                                                          (6) proof of graduation from a college of veterinary
The Texas Board of Veterinary Medical Examiners ("Board") pro-               medicine accredited by the Council on Education of the American
poses amendments to §571.18 concerning Provisional Licen-                    Veterinary Medical Association (AVMA) or an Educational Com-
sure. Provisional licenses may be issued to applicants for regular           mission for Foreign Veterinary Graduates (ECFVG) Certificate or a
licensure who want to practice prior to taking the regular exam-             Program for Assessment of Veterinary Education Equivalence (PAVE)
ination on its scheduled date. The amended section will raise                Certificate.
the required passing score for the provisional license examina-                         (7) proof of veterinary experience. This requirement can be
tion (jurisprudence examination) from 75 percent to 85 percent.              satisfied by letter of reference from at least two veterinary employers
The Board believes that raising the passing score on the jurispru-           or persons with direct knowledge of the applicant’s veterinary practice
dence examination will encourage applicants to better prepare                and experience.
for the examination.
                                                                                   (c) - (g)    (No change)
Mr. Ron Allen, Executive Director, has determined that for the
first five-year period the amended section is in effect there will           This agency hereby certifies that the proposal has been reviewed
be no fiscal implications for state or local government as a result          by legal counsel and found to be within the agency’s legal author-
of enforcing or administering this section.                                  ity to adopt.
Mr. Allen has also determined that for the first five years the              Filed with the Office of the Secretary of State on March 4, 2002.
section is in effect the public benefit anticipated as a result of
enforcing the amended section will be to increase the knowledge              TRD-200201312
and professionalism of license applicants who are required to                Ron Allen
meet more stringent test scores, and increase the confidence of              Executive Director
the public in veterinarians that are licensed in Texas. There will           Texas Board of Veterinary Medical Examiners
be no effect on small businesses. There will be no anticipated               Proposed date of adoption: June 13, 2002
economic cost to persons required to comply with the amended                 For further information, please call: (512) 305-7555
section as proposed.
Comments on the proposed amendments may be submitted
                                                                                                   ♦             ♦            ♦
in writing to Judy Huppert, Texas Board of Veterinary Med-                   CHAPTER 573. RULES OF PROFESSIONAL
ical Examiners, 333 Guadalupe, Suite 2-330, Austin, Texas
78701-3998, phone (512) 305- 7555, and must be received by                   CONDUCT
May 1, 2002.                                                                 SUBCHAPTER B. SUPERVISION OF
The amendments are proposed under the authority of the Veteri-               PERSONNEL
nary Licensing Act, Texas Occupations Code, Section 801.151
(a) which states that the Board may adopt rules necessary to ad-             22 TAC §573.11
minister the chapter.                                                        The Texas Board of Veterinary Medical Examiners ("Board")
The amendments affect the Veterinary Licensing Act, Texas Oc-                proposes amendments to §573.11 concerning Responsibility
cupations Code, Section 801.252 which pertains to licensing el-              for Unlicensed and Licensed Employees. The Board has deter-
igibility requirements.                                                      mined that occasionally a person employed or supervised by a
                                                                             veterinarian to practice veterinary medicine does not possess
§571.18. Provisional Licensure.                                              proper credentials such as a veterinary license or controlled
      (a)     (No change)                                                    substance certificates from the federal Drug Enforcement Ad-
                                                                             ministration (DEA) or Texas Department of Public Safety (DPS).
       (b) The Board may grant a provisional license containing spe-         The amended rule expands the responsibility of veterinarians for
cific practice restrictions to a person who meets the following criteria:    acts of an unlicensed or uncredentialed employee by requiring
           (1) proof of a current license in good standing in another        that an employing or supervising veterinarian be responsible
state or jurisdiction of the United States that has licensing requirements



27 TexReg 1976 March 15, 2002 Texas Register
for assuring that the employee is licensed and possesses the              PART 1. TEXAS DEPARTMENT OF
appropriate DEA and DPS certificates.
                                                                          INSURANCE
Mr. Ron Allen, Executive Director, has determined that for the
first five-year period the amended section is en effect there will        CHAPTER 5. PROPERTY AND CASUALTY
be no fiscal implications for state or local government as a result
of enforcing or administering the section.
                                                                          INSURANCE
                                                                          The Texas Department of Insurance proposes the amendment of
Mr. Allen has also determined that for the first five years the sec-
                                                                          §5.206 concerning the designation of underserved ZIP codes for
tion is in effect the public benefit anticipated as a result of enforc-
                                                                          private passenger automobile insurance and §5.3700 concern-
ing the amended section will be to better protect the public from
                                                                          ing the designation of underserved areas for residential prop-
persons who are not authorized to practice veterinary medicine
                                                                          erty insurance. The department proposes to amend §5.206 by
or who are not properly certified to handle and dispense con-
                                                                          deleting subsection (h) and §5.3700 by deleting subsection (g)
trolled substances. There will be no effect on small businesses.
                                                                          because both of these subsections have been declared invalid
There will be no anticipated economic cost to persons required
                                                                          by final court judgments. Section 5.206(h) was declared invalid
to comply with the amended section as proposed.
                                                                          and of no force or effect on June 29, 2001 in the case styled
Comments on the proposed amendments may be submitted                      and numbered, National Association of Independent Insurers, et
in writing to Judy Huppert, Texas Board of Veterinary Med-                al. v. John Cornyn, Attorney General of Texas, et al., cause no.
ical Examiners, 333 Guadalupe, Suite 2-330, Austin, Texas                 97-09206, in the 98th Judicial District of Travis County, Texas.
78701-3998, phone (512) 305-7555, and must be received by                 Section 5.3700 (g) was declared invalid and of no force or ef-
May 1, 2002.                                                              fect on July 24, 2001 in the case styled and numbered, National
                                                                          Association of Independent Insurers, et al. v. John Cornyn, At-
The amendments are proposed under the authority of the Vet-
                                                                          torney General of Texas, et al., cause no. GN 00-1769, in the
erinary Licensing Act, Texas Occupations Code, §801.151 (a)
                                                                          201st Judicial District of Travis County, Texas. It is necessary for
which states that the Board may adopt rules necessary to ad-
                                                                          the department to delete these subsections to comply with the
minister the chapter.
                                                                          Government Code §2002.058 which requires state agencies to
The amendments affect the Veterinary Licensing Act, Texas Oc-             repeal its rules that have been declared invalid by a final court
cupations Code, Subchapter H, which pertains to practice by vet-          judgment.
erinarians.
                                                                          C. H. Mah, Senior Associate Commissioner, Property and Casu-
§573.11. Responsibility for Unlicensed and Licensed Employees.            alty Division, has determined that during the first five years that
[Discouragement of Unauthorized Practice]                                 the proposed amendments are in effect, there will be no fiscal
                                                                          impact on state or local government as a result of enforcing or
       (a) A veterinarian who employs and/or supervises an un-
                                                                          administering the sections. There will be no measurable effect
licensed person shall be responsible for any acts of the unlicensed
                                                                          on local employment or the local economy as a result of the pro-
person committed within the scope of the person’s employment that
                                                                          posal.
constitute the unauthorized practice of veterinary medicine.
                                                                          C. H. Mah has also determined that for each year of the first five
       (b) A veterinarian who employs and/or supervises a person
                                                                          years the sections are in effect, the public benefit anticipated as
practicing veterinary medicine shall assure that the person is:
                                                                          a result of administration and enforcement of the proposed sec-
          (1)   licensed; and                                             tions will be the elimination of possible confusion resulting from
                                                                          rules which have been declared invalid by a final court judge-
          (2) meets the requirements of Rule 573.43 for registration
                                                                          ment. There is no anticipated economic cost to persons who are
with the federal Drug Enforcement Administration (DEA) and the
                                                                          required to comply with the proposal. There is no anticipated
Texas Department of Public Safety (DPS). [A licensed veterinarian
                                                                          difference in cost of compliance between small and large busi-
shall be professionally and legally responsible for the unauthorized
                                                                          nesses.
practice of veterinary medicine by unlicensed employees within the
scope of their employment. An employee’s unauthorized practice            To be considered, written comments on the proposal must be
of veterinary medicine without a license constitutes grounds for the      submitted no later than 5:00 p.m. on April 15, 2002 to Lynda
Texas State Board of Veterinary Medical Examiners to take action          H. Nesenholtz, General Counsel and Chief Clerk, Mail Code
against the licensed veterinarian.]                                       113-1C, Texas Department of Insurance, P.O. Box 149104,
                                                                          Austin, Texas 78714-9104. An additional copy of the comment
This agency hereby certifies that the proposal has been reviewed
                                                                          must be simultaneously submitted to C. H. Mah, Senior Asso-
by legal counsel and found to be within the agency’s legal author-
                                                                          ciate Commissioner, Property and Casualty Division, Mail Code
ity to adopt.
                                                                          105-5G, Texas Department of Insurance, P.O. Box 149104,
                                                                          Austin, Texas 78714-9104. A request for a public hearing must
Filed with the Office of the Secretary of State on March 4, 2002.
                                                                          be submitted separately to the Office of Chief Clerk.
TRD-200201311
Ron Allen
                                                                          SUBCHAPTER A. AUTOMOBILE
Executive Director                                                        INSURANCE
Texas Board of Veterinary Medical Examiners                               DIVISION 3. MISCELLANEOUS
Proposed date of adoption: June 13, 2002
For further information, please call: (512) 305-7555                      INTERPRETATIONS
                    ♦             ♦             ♦                         28 TAC §5.206

TITLE 28. INSURANCE


                                                                 PROPOSED RULES March 15, 2002 27 TexReg 1977
The amendments of §5.206 and §5.3700 are authorized by the                  repeal its rules that have been declared invalid by a final court
Texas Government Code §2002.058 and the Texas Insurance                     judgment.
Code §36.001. The Texas Government Code §2002.058 re-
                                                                            The proposed amendments affect regulation pursuant to the
quires that state agencies repeal any of their rules that have been
                                                                            following statutes: Texas Insurance Code, Articles 5.35-3,
declared invalid by a final court judgment. The Texas Insurance
                                                                            21.49-12 and 21.81.
Code §36.001 provides that the Commissioner of Insurance may
adopt rules to execute the duties and functions of the Texas De-            §5.3700. Designation of Underserved Areas for Residential Property
partment of Insurance only as authorized by statute.                        Insurance for Purposes of the Insurance Code, Articles 5.35-3 and
                                                                            21.49-12.
The proposed amendments affect regulation pursuant to the
following statutes: Texas Insurance Code, Articles 5.35-3,                          (a) - (f)   (No change.)
21.49-12 and 21.81.                                                                [(g) Quarterly report. The Department shall, upon request,
§5.206. Designation of Underserved ZIP Codes.                               provide a quarterly listing of the number of residential property insur-
                                                                            ance policies in force by type of policy by company by ZIP code or
        (a) - (g)   (No change.)                                            the number of residential property insurance policies written by type
      [(h) Upon request, the Department shall publish a listing of          of policy by company by ZIP code. The availability of this informa-
the number of average vehicles on policies in force by company by           tion will enable insurers and the public to monitor the effectiveness of
ZIP Code in this state. This information will enable the Texas Auto-        the Property Protection Program and the Market Assistance Program
mobile Insurance Plan Association, insurers and the public to make the      in improving the availability of residential property insurance.]
necessary credit calculations and allow all interested parties to monitor   This agency hereby certifies that the proposal has been reviewed
which ZIP Codes may be underserved in the future.]                          by legal counsel and found to be within the agency’s legal author-
This agency hereby certifies that the proposal has been reviewed            ity to adopt.
by legal counsel and found to be within the agency’s legal author-
ity to adopt.                                                               Filed with the Office of the Secretary of State on February 26,
                                                                            2002.
Filed with the Office of the Secretary of State on February 26,
                                                                            TRD-200201190
2002.                                                                       Lynda Nesenholtz
TRD-200201189                                                               General Counsel and Chief Clerk
Lynda Nesenholtz                                                            Texas Department of Insurance
General Counsel and Chief Clerk                                             Earliest possible date of adoption: April 14, 2002
Texas Department of Insurance                                               For further information, please call: (512) 463-6327
Earliest possible date of adoption: April 14, 2002
                                                                                                  ♦            ♦            ♦
For further information, please call: (512) 463-6327
                      ♦            ♦             ♦                          TITLE 30. ENVIRONMENTAL QUALITY
SUBCHAPTER D. FIRE AND ALLIED LINES                                         PART 1. TEXAS NATURAL RESOURCE
INSURANCE                                                                   CONSERVATION COMMISSION
DIVISION 8. UNDERSERVED AREAS FOR                                           CHAPTER 290. PUBLIC DRINKING WATER
RESIDENTIAL PROPERTY INSURANCE                                              SUBCHAPTER G. WATER SAVING
28 TAC §5.3700                                                              PERFORMANCE STANDARDS
The Texas Department of Insurance proposes the amendment of                 30 TAC §290.251, §290.261
§5.206 concerning the designation of underserved ZIP codes for
private passenger automobile insurance and §5.3700 concern-                 The Texas Natural Resource Conservation Commission (com-
ing the designation of underserved areas for residential prop-              mission) proposes an amendment to §290.251. The commis-
erty insurance. The department proposes to amend §5.206 by                  sion also proposes new §290.261.
deleting subsection (h) and §5.3700 by deleting subsection (g)              BACKGROUND AND SUMMARY OF THE FACTUAL BASIS
because both of these subsections have been declared invalid                FOR THE PROPOSED RULES
by final court judgments. Section 5.206(h) was declared invalid
and of no force or effect on June 29, 2001 in the case styled               The proposed rules implement House Bill (HB) 2403, 77th
and numbered, National Association of Independent Insurers, et              Texas Legislature, 2001, which amended Texas Health and
al. v. John Cornyn, Attorney General of Texas, et al., cause no.            Safety Code (THSC), Chapter 372, adding §372.004, which
97-09206, in the 98th Judicial District of Travis County, Texas.            requires that appropriate industry trade associations or other
Section 5.3700 (g) was declared invalid and of no force or ef-              entities, by January 31st of each year, report to the commission
fect on July 24, 2001 in the case styled and numbered, National             the number of clothes washing machines imported into the
Association of Independent Insurers, et al. v. John Cornyn, At-             state. Section 372.004 also requires the report to categorize
torney General of Texas, et al., cause no. GN 00-1769, in the               the clothes washing machines according to four different water
201st Judicial District of Travis County, Texas. It is necessary for        consumption factors. The proposed rules do not apply to clothes
the department to delete these subsections to comply with the               washing machines with a capacity of more than 3.5 cubic feet or
Government Code §2002.058 which requires state agencies to                  less than 1.6 cubic feet. The first report under §372.004 must
                                                                            be submitted to the commission by January 31, 2003.



27 TexReg 1978 March 15, 2002 Texas Register
SECTION BY SECTION DISCUSSION                                          11 that were imported into this state during the preceding cal-
                                                                       endar year; 2) the number of clothes washing machines with a
Throughout these sections minor grammatical revisions and
                                                                       water consumption factor of more than 9.5, but not more than
administrative clarifications are proposed to conform to internal
                                                                       11 that were imported into this state during the preceding year;
style standards.
                                                                       3) the number of clothes washing machines with a water con-
Section 290.251, Purpose, Authority, and Definitions, is               sumption factor of 9.5 or less that were imported into the state
proposed to be amended. Subsection (a) adds reporting re-              during the preceding calendar year; and 4) the average water
quirements for the number of certain commercial or residential         consumption factor of all clothes washing machines that were
clothes washing machines imported into the state. Subsection           imported into this state during the preceding calendar year. The
(c) adds definitions for "Import" and "Water consumption               proposed rules would not apply to machines with a capacity of
factor." The bill only requires that trade associations report on      more than 3.5 cubic feet or less than 1.6 cubic feet.
the number of washing machines that are imported into the
                                                                       At this time, there is one trade association, the Association of
state; therefore, the commission proposes to add the definition
                                                                       Home Appliance Manufacturers, that represents the majority of
of "Import" to subsection (c) as "The physical movement of
                                                                       the estimated ten clothes washing machine manufacturers in the
merchandise into the State of Texas, including shipments to
                                                                       country. Manufacturers already report general information to the
distributors, shipments to factory distributing branches, direct
                                                                       trade association, and the trade association would collect and re-
factory sales, shipments to retailers, shipments to factory dis-
                                                                       port the required information regarding the number of machines
tributing branches, shipments to sales districts, and shipments
                                                                       imported into Texas by water consumption factor. Manufactur-
to factory owned distributing outlets." The definition of "Water
                                                                       ers will need to collect and report by their water consumption
consumption factor" is defined in HB 2403 as the meaning
                                                                       factors, the number of machines shipped to Texas. According to
according to 10 Code of Federal Regulations Part 430, Subpart
                                                                       the trade association, this information is available and no signif-
B, Appendix J, as that appendix existed on September 1, 2001.
                                                                       icant fiscal implications are anticipated to the manufacturers or
The commission proposes to include that definition of "Water
                                                                       the trade association. It is not known how many clothes washing
consumption factor," which is "The quotient of the total weighted
                                                                       machines have been imported into Texas because this informa-
per cycle consumption divided by the capacity of the clothes
                                                                       tion has not been collected before and Texas is the only state
washer...." The commission also proposes to add "clothes
                                                                       known to have this requirement.
washing machines" to the definition of "manufacturer."
                                                                       Commission staff will receive the required information from the
New §290.261, Reporting on Clothes Washing Machines, is pro-
                                                                       trade association and produce a report which will be submitted
posed to specify the reporting requirements for clothes washing
                                                                       to the Legislature no later than February 28th of each year. No
machine manufacturers. The proposed new section will include
                                                                       significant fiscal implications are anticipated for the agency or
the annual reporting deadlines and the criteria for categorizing
                                                                       other units of state or local government to submit the report.
the machines by the four water consumption factors.
                                                                       PUBLIC BENEFITS AND COSTS
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERN-
MENT                                                                   Mr. Horvath has also determined that for each year of the first
                                                                       five years the proposed rules are in effect, the public benefit an-
Jeffrey Horvath, Analyst with Strategic Planning and Appropria-
                                                                       ticipated from the enforcement of and compliance with the pro-
tions, has determined that for the first five-year period the pro-
                                                                       posed rules would include compliance with state law, and the
posed rules are in effect, no significant fiscal implications are
                                                                       collection of data to make informed decisions regarding water
expected for the agency or other units of state and local govern-
                                                                       use and conservation for clothes washing machines.
ment.
                                                                       No significant fiscal implications are anticipated for businesses
The proposed rules implement HB 2403 (relating to reporting re-
                                                                       or individuals as a result of the implementation or enforcement
quirements regarding certain clothes washing machines), 77th
                                                                       of the proposed rules. The proposed rules would not impose
Legislature, 2001. This bill requires that the commission, begin-
                                                                       new regulatory requirements on manufacturers or consumers of
ning in February 2003, report to the Legislature not later than
                                                                       clothes washing machines, only a reporting requirement for cer-
February 28th of each year, the number of washing machines
                                                                       tain manufacturers or trade associations.
imported into this state the previous year by water consumption
factors. There are four water consumption factor categories de-        The proposed rules implement HB 2403. This bill requires that
fined in the bill. The bill would also require the appropriate trade   the commission, beginning in February 2003, report to the Leg-
industry associations or other entities to provide the information     islature not later than February 28th of each year, the number of
to the commission.                                                     washing machines imported into this state the previous year by
                                                                       water consumption factors. There are four water consumption
The proposed rules would require the appropriate industry trade
                                                                       factor categories defined in the bill. The bill would also require
associations, clothes washing machine manufacturers or other
                                                                       appropriate trade industry associations or other entities to pro-
entities, no later than January 31st of each year, to report to
                                                                       vide this information to the commission.
the commission the number of clothes washing machines im-
ported into the state. The report must categorize the machines         The proposed rules would require clothes washing machine
according to four different water consumption factors. A wa-           manufacturers, appropriate industry trade associations or other
ter consumption factor is defined as the quotient of the total         entities to report to the commission, no later than January 31st
weighted per cycle water consumption divided by the capacity           of each year, the number of clothes washing machines imported
of the clothes washer. The higher the water consumption factor,        into the state the previous calendar year. The report must
the greater the amount of water consumption.                           categorize the machines according to four water consumption
                                                                       factors. A water consumption factor is defined as the quotient of
The four categories would include: 1) the number of clothes
                                                                       the total weighted per cycle water consumption divided by the
washing machines with a water consumption factor of more than




                                                               PROPOSED RULES March 15, 2002 27 TexReg 1979
capacity of the clothes washer. The higher the water consump-          consumption factor of all clothes washing machines that were
tion factor, the greater the amount of water consumption.              imported into the state during the preceding calendar year. The
                                                                       proposed rules would not apply to machines with a capacity of
The four categories would include: 1) the number of clothes
                                                                       more than 3.5 cubic feet or less than 1.6 cubic feet.
washing machines with a water consumption factor of more than
11 imported into the state during the preceding year; 2) the num-      At this time, one trade association, the Association of Home Ap-
ber of clothes washing machines with a water consumption factor        pliance Manufacturers, represents the majority of the estimated
of more than 9.5, but not more than 11 imported into the state         ten clothes washing machine manufacturers in the country. Man-
during the preceding year; 3) the number of clothes washing ma-        ufacturers already report general information to the trade asso-
chines with a water consumption factor of 9.5 or less imported         ciation, and the trade association would collect and report the
into the state during the preceding year; and 4) the average wa-       required information, by water consumption factors, regarding
ter consumption factor of all clothes washing machines that were       the number of machines imported into Texas. Manufacturers will
imported into the state during the preceding calendar year. The        need to collect and report, by water consumption factors, on the
proposed rules would not apply to machines with a capacity of          number of machines shipped to Texas. According to the trade
more than 3.5 cubic feet or less than 1.6 cubic feet.                  association, this information is available and no significant fiscal
                                                                       implications are anticipated by the manufacturers or the trade
At this time, one trade association, the Association of Home Ap-
                                                                       association. There is one foreign manufacturer with a business
pliance Manufacturers, represents the majority of the estimated
                                                                       office and distribution center in Texas. It is not known how many
ten clothes washing machine manufacturers in the country. Man-
                                                                       clothes washing machines have been imported into Texas be-
ufacturers already report general information to the trade asso-
                                                                       cause this information has not been previously collected.
ciation, and the trade association would collect and report the
required information, by water consumption factor, regarding the       LOCAL EMPLOYMENT IMPACT STATEMENT
number of machines imported into Texas. Manufacturers will
                                                                       The commission has reviewed this proposed rulemaking and de-
need to collect and report on the number of machines shipped to
                                                                       termined that a local employment impact statement is not re-
Texas by their water consumption factors. According to the trade
                                                                       quired because the proposed rules do not adversely affect a lo-
association, this information is available and no significant fiscal
                                                                       cal economy in a material way for the first five years that the
implications are anticipated to the manufacturers or to the trade
                                                                       proposed rules are in effect.
association. There is one foreign manufacturer with a business
office and distribution center in Texas. It is not known how many      DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
clothes washing machines have been imported into Texas be-
                                                                       The commission reviewed the proposed rulemaking in light of the
cause this information has not been collected. Texas is the only
                                                                       regulatory analysis requirements of Texas Government Code,
state known to have this requirement.
                                                                       §2001.0225, and determined that the rulemaking is not subject
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT                           to §2001.0225 because it does not meet the definition of a "ma-
                                                                       jor environmental rule" as defined in that statute. Furthermore,
No adverse fiscal implications are anticipated as a result of the
                                                                       it does not meet any of the four applicability requirements listed
implementation and enforcement of the proposed rules for small
                                                                       in Texas Government Code, §2001.0225(a).
and micro-businesses that import into the state any clothes
washing machines with a water consumption factor of less than          A major environmental rule means a rule, the specific intent of
11 or more than 9.5. The proposed rules would not apply to             which, is to protect the environment or reduce risks to human
machines with a capacity of more than 3.5 cubic feet or less           health from environmental exposure and that may adversely af-
than 1.6 cubic feet.                                                   fect in a material way the economy, a sector of the economy, pro-
                                                                       ductivity, competition, jobs, the environment, or the public health
There are no known small or micro-businesses that import wash-
                                                                       and safety of the state or a sector of the state. The proposed
ing machines into the state, but if there are, they will be required
                                                                       rules do not meet the definition of a major environmental rule
to report on the number of clothes washing machines they im-
                                                                       because the specific intent of the proposed rulemaking is to im-
port into the state that meet certain water consumption factors.
                                                                       plement a statutory directive to compile information regarding
The proposed rules would require clothes washing machine               the water consumption of certain washing machines imported
manufacturers, appropriate industry trade associations or other        into the state. Furthermore, due to the limited applicability of this
entities to report to the commission, no later than January            rulemaking, which will only apply to importers of certain wash-
31st of each year, the number of clothes washing machines              ing machines, the proposed rules will not adversely affect in a
imported into the state. The report must categorize the ma-            material way the economy, a sector of the economy, productiv-
chines according to four different water consumption factors. A        ity, competition, jobs, the environment, or the public health and
water consumption factor is defined as the quotient of the total       safety of the state or a sector of the state.
weighted per cycle water consumption divided by the capacity
                                                                       In addition, the proposed rules do not exceed a standard set by
of the clothes washer. The higher the water consumption factor,
                                                                       federal law, exceed an express requirement of state law, exceed
the greater the amount of water consumption.
                                                                       a requirement of a delegation agreement, or propose to adopt
The four categories would include: 1) the number of clothes            a rule solely under the general powers of the agency. The pro-
washing machines with a water consumption factor of more than          posed rules do not exceed a standard set by federal law. The
11 that were imported into the state during the preceding cal-         proposal does not exceed an express requirement of state law
endar year; 2) the number of clothes washing machines with a           because it is in direct response to HB 2403, and does not ex-
water consumption factor of more than 9.5, but not more than           ceed the requirements of this bill. This proposal does not ex-
11 imported into the state during the preceding calendar year;         ceed a requirement of a delegation agreement or contract be-
3) the number of clothes washing machines with a water con-            tween the state and an agency or representative of the federal
sumption factor of 9.5 or less but were imported into the state        government to implement a state and federal program because
during the preceding calendar year; and 4) the average water           there is no applicable delegation agreement or contract. This



27 TexReg 1980 March 15, 2002 Texas Register
proposal does not adopt a rule solely under the general pow-                 (a) Purpose. The purpose of this subchapter is to establish wa-
ers of the agency, but rather under specific state law, i.e., HB     ter saving performance standards and labeling requirements for plumb-
2403, THSC, §372.004, which requires the commission to adopt         ing fixtures; establish labeling requirements for dishwashing machines,
rules which require industry trade associations or other entities    lawn sprinklers, and clothes washing machines; and establish reporting
to provide specific water consumption information to the com-        requirements for clothes washing machines. This subchapter applies to
mission. Finally, this rulemaking is not being proposed on an        plumbing fixtures, dishwashing machines, lawn sprinklers, and clothes
emergency basis to protect the environment or to reduce risks        washing machines that are manufactured, imported, or otherwise sup-
to human health from environmental exposure. The commission          plied for sale in Texas unless the item is manufactured exclusively for
invites public comment on the draft regulatory analysis determi-     sale outside of the state. [Purpose. The purpose of these sections is
nation.                                                              to establish water saving performance standards and labeling require-
                                                                     ments for sink and lavatory faucets, shower heads, drinking water foun-
TAKINGS IMPACT ASSESSMENT
                                                                     tains, urinals, toilets, and flushometer toilets that are manufactured, im-
The commission performed a preliminary analysis for these            ported, or otherwise supplied for sale in the State of Texas, and to estab-
proposed rules in accordance with Texas Government Code,             lish labeling requirements for commercial or residential clothes-wash-
§2007.043. The specific purpose of the proposed rulemaking           ing and dishwashing machines and lawn sprinklers to assist the con-
is to implement HB 2403, which directs that the commission           sumer in making an informed purchasing decision. These sections ap-
will annually report to the legislature on the water consumption     ply to manufacturers, importers, and major suppliers of plumbing fix-
of certain washing machines imported into the state. The             tures, who sell, offer for sale, distribute, or import plumbing fixtures
legislation from HB 2403 also directs the commission to adopt        into the state. These sections do not apply to plumbing fixtures manu-
rules which require industry trade associations or other enti-       factured in the State for sale outside of the state.]
ties to provide specific water consumption information to the
                                                                           (b) Authority. The authority for these sections is Texas [the]
commission. The proposed rules will substantially advance
                                                                     Health and Safety Code, Chapter 372, titled Environmental Perfor-
these stated purposes by providing specific provisions on these
                                                                     mance Standards for Plumbing Fixtures [Environmental Performance
matters. Promulgation and enforcement of these rules will not
                                                                     Standards for Plumbing Fixtures].
affect private real property because the proposed rules only
create recordkeeping and reporting requirements. Therefore,                  (c) Definitions. The following words and terms, when used
the proposed rules will not constitute a takings under Texas         in this subchapter [these sections], shall have the following meanings,
Government Code, Chapter 2007.                                       unless the context clearly indicates otherwise.
CONSISTENCY WITH THE COASTAL MANAGEMENT PRO-                                   (1) - (4)    (No change.)
GRAM
                                                                                (5) Import--The physical movement of merchandise into
The commission reviewed the proposed rulemaking and found            the State of Texas, including shipments to distributors, shipments to
that the proposed rules are neither identified in Coastal Coor-      factory distributing branches, direct factory sales, shipments to retail-
dination Act Implementation Rules, 31 TAC §505.11, relating to       ers, shipments to factory distributing branches, shipments to sales dis-
Actions and Rules Subject to the Texas Coastal Management            tricts, and shipments to factory-owned distributing outlets.
Program (CMP), nor will they affect any action or authorization
                                                                                (6) [(5)] Importer--A business or individual that brings into
identified in Coastal Coordination Act Implementation Rules, 31
                                                                     the state plumbing fixtures from other countries or states for resale or
TAC §505.11. Therefore, the proposed rules are not subject to
                                                                     installation (other than for their own domicile) within the state.
the CMP.
                                                                                (7) [(6)] Major supplier--A business or individual that pro-
SUBMITTAL OF COMMENTS
                                                                     vides plumbing fixtures to others for resale or installation (other than
Comments may be submitted to Angela Slupe, Office of En-             for their own domicile) within the state.
vironmental Policy, Analysis, and Assessment, MC 205, P.O.
                                                                              (8) [(7)] Manufacturer--Someone who manufactures [that
Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-
                                                                     makes] plumbing fixtures or clothes washing machines.
4808. All comments should reference Rule Log Number 2002-
001-290-WT. Comments must be received by 5:00 pm, April 15,                    (9)     [(8)] Model--A type or design of a plumbing fixture.
2002. For further information, contact Debra Barber, Policy and
                                                                              (10) [(9)] Order--A request to purchase plumbing fixtures
Regulations Division, at (512) 239-0412.
                                                                     from a manufacturer, major supplier, or importer.
STATUTORY AUTHORITY
                                                                               (11)     [(10)] Plumbing fixture--A sink faucet, lavatory
The amendment is proposed under HB 2403, 77th Legislature,           faucet, faucet aerator, shower head, urinal, toilet, flush valve toilet, or
2001, which requires the agency to adopt rules to implement          drinking water fountain.
THSC, §372.004. In addition, the amendment is proposed under
                                                                              (12) [(11)] Toilet--A toilet or water closet except a wall-
Texas Water Code (TWC), §5.013, which establishes the gen-
                                                                     mounted toilet that employs a flushometer valve.
eral jurisdiction of the commission; §5.102, which establishes the
commission’s general authority to carry out its jurisdiction; and              [(12)    APA--The Administrative Procedure Act.]
§5.103, which requires the commission to adopt any rule neces-
                                                                               (13) Water consumption factor--The quotient of the total
sary to carry out its powers and duties under this code and other
                                                                     weighted per cycle consumption divided by the capacity of the clothes
laws of this state.
                                                                     washer, as stated in 10 Code of Federal Regulations Part 430, Subpart
The proposed amendment implements THSC, §372.004 and                 B, Appendix J, September 1, 2001.
TWC, §5.102 and §5.103.
                                                                     §290.261.    Reporting on Clothes Washing Machines.
§290.251.   Purpose, Authority, and Definitions.




                                                             PROPOSED RULES March 15, 2002 27 TexReg 1981
        (a) A manufacturer who imports one or more clothes washing          SECTION DISCUSSION
machines into the state, a trade association representing the manufac-
                                                                            Proposed new §291.145 includes definitions for certain words;
turer, or other entities must report the following information to the ex-
                                                                            provides the purpose of the proposed rule; provides the criteria
ecutive director not later than January 31st of each year:
                                                                            used for the proposed rule; and provides notification of enforce-
           (1) the number of clothes washing machines imported into         ment actions related to the proposed rule.
the state during the preceding calendar year with a water consumption
                                                                            Proposed new subsection (a), is included to clearly define the
factor of more than 11;
                                                                            terms "operating entity" and "preenforcement threshold of non-
           (2) the number of clothes washing machines imported into         compliance" as used in the proposed rule.
the state during the preceding calendar year with a water consumption
                                                                            Proposed new subsection (b), provides that the purpose of the
factor of more than 9.5, but not more than 11;
                                                                            rule is to evaluate whether the managerial, financial, and techni-
           (3) the number of clothes washing machines imported into         cal capabilities of an operating entity who is an applicant for, or
the state during the preceding calendar year with a water consumption       recipient of, financial assistance from the EDAP are adequate to
factor of 9.5 or less; and                                                  meet program requirements or to remain financially viable and
                                                                            whether an operating entity needs training if the operating entity
          (4) the average water consumption factor of all clothes
                                                                            has a history of compliance problems.
washing machines imported into the state during the preceding
calendar year.                                                              Proposed new subsection (c), provides the criteria the commis-
                                                                            sion may use when determining whether to notify the TWDB that
       (b) A manufacturer has complied with this section if the man-
                                                                            an operating entity needs training. If an inspection or other as-
ufacturer reports the required information to an industry trade associa-
                                                                            sessment of the water system by the TWDB or the commission
tion or other entity who reports the required information to the execu-
                                                                            reveals that the governing body has failed to exercise proper care
tive director by January 31st of each year.
                                                                            in its fiduciary duties, sufficiently employ or supervise its employ-
       (c) This section does not apply to a clothes washing machine         ees’ work-related activities, or ensure adequate operation of its
with a capacity of more than 3.5 cubic feet or less than 1.6 cubic feet.    physical facilities, the commission may notify the TWDB.
       (d) The first report required by this section shall be submitted     Proposed new subsection (d), provides that the commission
to the executive director by January 31, 2003.                              shall notify the TWDB when the commission proposes to
                                                                            assess a penalty against an operating entity and that if the
This agency hereby certifies that the proposal has been reviewed
                                                                            commission assesses a penalty against an operating entity in
by legal counsel and found to be within the agency’s legal author-
                                                                            an enforcement action, the enforcement order shall contain a
ity to adopt.
                                                                            provision requiring that the operating entity receive training as
                                                                            ordered by the TWDB.
Filed with the Office of the Secretary of State on March 1, 2002.
TRD-200201294
                                                                            FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERN-
                                                                            MENT
Stephanie Bergeron
Director, Environmental Law Division                                        John Davis, Technical Specialist with Strategic Planning and Ap-
Texas Natural Resource Conservation Commission                              propriations, determined that for the first five-year period the pro-
Earliest possible date of adoption: April 14, 2002                          posed new section is in effect, there will be no significant fiscal
For further information, please call: (512) 239-4712
                                                                            implications for the commission due to administration and en-
                                                                            forcement of the proposed rule. The governing body of a politi-
                    ♦              ♦             ♦                          cal subdivision that provides and manages water and sewer ser-
                                                                            vices in economically distressed areas could incur training costs
CHAPTER 291. UTILITY REGULATIONS                                            up to $6,000 if the commission determines that these operat-
SUBCHAPTER J. ENFORCEMENT,                                                  ing entities require additional financial, managerial, or technical
                                                                            training. There would be no fiscal implications for operating enti-
SUPERVISION, AND RECEIVERSHIP                                               ties not located in economically distressed areas to comply with
                                                                            the proposed rulemaking.
30 TAC §291.145
                                                                            The proposed rule is intended to implement provisions of SB
The Texas Natural Resource Conservation Commission (com-
                                                                            649, 77th Legislature, 2001, which requires the commission to
mission) proposes new §291.145, Preenforcement Threshold of
                                                                            establish, by rule, criteria to be used to determine if an operating
Noncompliance.
                                                                            entity needs training. Operating entities, which include units of
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS                                 local government and nonprofit water supply corporations, are
FOR THE PROPOSED RULE                                                       responsible for managing and providing water and sewer ser-
                                                                            vices. This rule may affect operating entities which seek or have
Senate Bill (SB) 649 (an act relating to training requirements for
                                                                            received funding under the EDAP in economically distressed ar-
applicants for, and recipients of, financial assistance for water
                                                                            eas of the state. An economically distressed area is an area
and sewer services under the Economically Distressed Areas
                                                                            where the water supply or sewer services are inadequate to meet
Program (EDAP)), 77th Legislature, 2001 added Texas Water
                                                                            minimal needs of residential users as defined by TWDB rules;
Code (TWC), Chapter 17, Subchapter M, and mandates the
                                                                            financial resources are inadequate to provide water supply or
commission by rule to establish a preenforcement threshold of
                                                                            sewer services that will satisfy those needs; and an established
noncompliance at which the commission may notify the Texas
                                                                            residential subdivision was located on June 1, 1989, as deter-
Water Development Board (TWDB) that an operating entity
                                                                            mined by the TWDB. There are currently operating entities in 53
needs training.
                                                                            counties, primarily located along the Texas/Mexico border, that




27 TexReg 1982 March 15, 2002 Texas Register
may seek or have received financial assistance for water and            2001. The bill requires the commission to adopt rules requiring
wastewater system-related projects that may be affected by this         training under certain conditions for recipients of, and applicants
rulemaking.                                                             for, financial assistance in economically distressed areas. The
                                                                        proposed rule is intended to provide the criteria the commission
Senate Bill 649 requires the commission to adopt procedural
                                                                        will use when determining whether to notify the TWDB that op-
rules requiring training under certain conditions for recipients
                                                                        erating entities seeking financial assistance in economically dis-
of, and applicants for, financial assistance in economically dis-
                                                                        tressed areas require training on financial, managerial, and tech-
tressed areas. The proposed rule is intended to provide the cri-
                                                                        nical issues prior to receiving monetary assistance. Additionally,
teria the commission will use when determining whether to notify
                                                                        the proposed rule is intended to require the commission to in-
the TWDB that operating entities seeking financial assistance in
                                                                        clude training requirements in any enforcement action against
economically distressed areas require training on financial, man-
                                                                        an operating entity seeking financial aid.
agerial, and technical issues prior to receiving monetary assis-
tance. Additionally, the proposed rule is intended to require the       The proposed rule only affects political subdivisions, which does
commission to include training requirements in any enforcement          include nonprofit water supply and sewer corporations. These
action against an operating entity seeking financial aid. These         corporations are member owned and controlled and are not con-
provisions are not anticipated to result in significant fiscal impli-   sidered to be for-profit small and micro-businesses. Therefore,
cations for the commission.                                             the commission does not anticipate that any small or micro-busi-
                                                                        nesses will be impacted by provisions in this rulemaking.
If the commission determines an operating entity requires fur-
ther training, there will be training- related costs to comply with     LOCAL EMPLOYMENT IMPACT STATEMENT
the proposed rule. The commission estimates it would cost an
                                                                        The commission reviewed this proposed rulemaking and deter-
operating entity between approximately $1,500 to $6,000 for a
                                                                        mined that a local employment impact statement is not required
series of three three-hour seminars. The cost to operating enti-
                                                                        because the proposed rule does not adversely affect a local
ties could be reduced if they apply for and receive financial as-
                                                                        economy in a material way for the first five years that the pro-
sistance from the state. The commission does not anticipate that
                                                                        posed rule is in effect.
units of government in economically distressed areas would lose
funding due to implementation of the proposed rule.                     DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
PUBLIC BENEFITS AND COSTS                                               The commission reviewed the proposed rulemaking in light of the
                                                                        regulatory analysis requirements of Texas Government Code,
Mr. Davis also determined that for each year of the first five years
                                                                        §2001.0225, and determined that the rulemaking is not subject
the proposed rule is in effect, the public benefit anticipated from
                                                                        to §2001.0225 because it does not meet the definition of a "ma-
enforcement of and compliance with the proposed rule will be
                                                                        jor environmental rule" as defined in that statute. Major environ-
potentially increased rate of compliance with the state’s drinking
                                                                        mental rule means a rule, the specific intent of which, is to protect
water and wastewater treatment regulations through increased
                                                                        the environment or reduce risks to human health from environ-
training.
                                                                        mental exposure and that may adversely affect in a material way
This rulemaking is intended to implement provisions of SB 649,          the economy, a sector of the economy, productivity, competition,
77th Legislature, 2001, which requires the commission to adopt          jobs, the environment, or the public health and safety of the state
rules requiring training under certain conditions for recipients        or a sector of the state. The intent of the proposed rule is to im-
of, and applicants for, financial assistance in economically dis-       plement SB 649, which requires the commission to adopt rules
tressed areas. The proposed rule is intended to provide the cri-        requiring training under certain conditions for recipients of, and
teria the commission will use when determining whether to notify        the applicants for, certain financial assistance in economically
the TWDB that operating entities seeking financial assistance in        distressed areas. Furthermore, the rulemaking does not meet
economically distressed areas require training on financial, man-       any of the four applicability requirements listed in §2001.0225(a).
agerial, and technical issues prior to receiving monetary assis-        Specifically, the proposed rule does not exceed a federal stan-
tance. Additionally, the proposed rule is intended to require the       dard because there are no applicable federal standards, exceed
commission to include training requirements in any enforcement          an express requirement of state law but rather implement specific
action against an operating entity seeking financial aid.               state statutes enacted by SB 649, or exceed a requirement of a
                                                                        delegation agreement because there is no applicable delegation
This rulemaking may apply to operating entities, which include
                                                                        agreement. Finally, the proposed rule was not developed solely
nonprofit water supply corporations, providing water and waste-
                                                                        under the general powers of the commission, but specifically de-
water services within the affected 53 counties. If the commission
                                                                        veloped to implement SB 649, which requires the commission to
determines an operating entity requires further training, there will
                                                                        establish, by rule a, preenforcement threshold of noncompliance
be training related costs to comply with the proposed rule. The
                                                                        at which the commission may notify the TWDB that an operating
commission estimates it would cost an operating entity between
                                                                        entity needs training.
approximately $1,500 to $6,000 for a series of three three-hour
seminars. The cost to operating entities could be reduced if they       The commission invites public comment regarding the draft reg-
apply for and receive financial assistance from the state. The          ulatory impact analysis determination during the public comment
commission does not anticipate that operating entities in eco-          period. Written comments on the draft regulatory impact analy-
nomically distressed areas would lose funding due to implemen-          sis determination may be submitted to the contact person at the
tation of the proposed rule.                                            address listed under the SUBMITTAL OF COMMENTS section
                                                                        of this preamble.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
                                                                        TAKINGS IMPACT ASSESSMENT
There will be no adverse fiscal implications to small or micro-
businesses as a result of implementing the proposed rule, which         The commission evaluated the proposed rule and performed a
is intended to implement provisions of SB 649, 77th Legislature,        preliminary assessment of whether the rule constitutes a takings




                                                                PROPOSED RULES March 15, 2002 27 TexReg 1983
under Texas Government Code, Chapter 2007. The specific pur-            necessary to carry out its powers and duties under this code
pose of this rulemaking is to implement SB 649, which requires          and other laws of this state; and TWC, §17.993(c), as adopted
the commission to adopt procedural rules requiring training un-         by SB 649, 77th Legislature, which requires the commission to
der certain conditions for recipients of and the applicants for cer-    establish, by rule a, preenforcement threshold of noncompliance
tain financial assistance in economically distressed areas. Pro-        at which the commission may notify the TWDB that an operating
mulgation and enforcement of the proposed rule will constitute          entity needs training.
neither a statutory nor a constitutional taking of private real prop-
                                                                        The new section implements SB 649, 77th Legislature, 2001,
erty. Specifically, the subject proposed regulation does not affect
                                                                        which requires the commission to adopt procedural rules requir-
a landowner’s rights in private real property because this rule-
                                                                        ing training under certain conditions for recipients of, and the
making does not burden; nor restrict or limit the owner’s right to
                                                                        applicants for, certain financial assistance in economically dis-
property and reduce its value by 25% or more beyond that which
                                                                        tressed areas.
would otherwise exist in the absence of the regulation. There are
no burdens imposed on private real property under this rulemak-         §291.145. Preenforcement Threshold of Noncompliance.
ing as the proposed rule neither relates to nor has any impact on             (a) Definitions.
the use or enjoyment of private real property.
                                                                                   (1) Operating Entity--The governing body of a political
CONSISTENCY WITH THE COASTAL MANAGEMENT PRO-                            subdivision, as defined by Texas Water Code, §17.921(3) and by the
GRAM                                                                    rules of the Texas Water Development Board (TWDB), responsible
The commission reviewed the rulemaking and found that the               for providing water supply and sewer services and the management of
rulemaking is neither identified in the Coastal Coordination Act        its water and sewer system.
Implementation Rules, 31 TAC §505.11, relating to Actions and                     (2) Preenforcement Threshold of Noncompliance--The
Rules Subject to the Texas Coastal Management Program nor               point at which an operating entity needs training because of its history
does it affect any action or authorization identified in §505.11.       of violations of the commission’s rules relating to the financial,
The rulemaking concerns only the determination of preenforce-           managerial, or technical operation of its water or wastewater facilities.
ment thresholds of noncompliance and the subsequent appro-
priate notification. Therefore, the rulemaking is not subject to               (b) The commission may evaluate whether the managerial, fi-
the Texas Coastal Management Program.                                   nancial, and technical capabilities of an operating entity who is an ap-
                                                                        plicant for, or recipient of, financial assistance from the Economically
The commission invites public comment regarding the consis-             Distressed Areas Program are adequate to meet program requirements
tency determination during the public comment period. Written           or to remain financially viable. The commission may also evaluate
comments on the consistency of this rulemaking may be submit-           whether an operating entity needs training if the operating entity has a
ted to the contact person at the address listed under the SUB-          history of compliance problems.
MITTAL OF COMMENTS section of this preamble.
                                                                               (c) The commission may notify the TWDB that the operating
ANNOUNCEMENT OF HEARING                                                 entity needs training if an inspection or other assessment of the water
The commission will hold a public hearing on this proposal in           system by the TWDB or commission reveals that the governing body
Austin on April 9, 2002 at 10:00 a.m., in Building F, Room 2210         has failed to:
at the commission’s central office located at 12100 Park 35 Cir-                  (1)   exercise proper care in its fiduciary duties;
cle. The hearing is structured for the receipt of oral or written
comments by interested persons. Individuals may present oral                      (2) sufficiently employ or supervise its employees’ work-
statements when called upon in order of registration. Open dis-         related activities; or
cussion will not be permitted during the hearing; however, com-                   (3)   ensure adequate operation of its physical facilities.
mission staff members will be available to discuss the proposal
30 minutes before the hearing and will answer questions before                 (d) The commission shall notify the TWDB when the commis-
and after the hearing.                                                  sion proposes to assess a penalty against an operating entity. If the com-
                                                                        mission assesses a penalty against an operating entity in an enforcement
Persons with disabilities who have special communication or             action, the enforcement order shall contain a provision requiring that
other accommodation needs who are planning to attend the                the operating entity receive training as ordered by the TWDB.
hearing should contact the Office of Environmental Policy,
Analysis, and Assessment at (512) 239-4900. Requests should             This agency hereby certifies that the proposal has been reviewed
be made as far in advance as possible.                                  by legal counsel and found to be within the agency’s legal author-
                                                                        ity to adopt.
SUBMITTAL OF COMMENTS
Comments may be submitted to Patricia Durón, Office of En-              Filed with the Office of the Secretary of State on March 4, 2002.
vironmental Policy, Analysis, and Assessment, MC 205, P.O.              TRD-200201299
Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-              Stephanie Bergeron
4808. All comments should reference Rule Log Number 2001-               Director, Environmental Law Division
052-291-WT. Comments must be received by 5:00 p.m., April
                                                                        Texas Natural Resource Conservation Commission
15, 2002. For further information or questions concerning this
                                                                        Earliest possible date of adoption: April 14, 2002
proposal, please contact Debi Dyer, Policy and Regulations Di-
vision, at (512) 239-3972.                                              For further information, please call: (512) 239-4712

STATUTORY AUTHORITY                                                                          ♦             ♦             ♦
The new section is proposed under TWC, §5.103 and §5.105,               CHAPTER 335. INDUSTRIAL SOLID WASTE
which provide the commission with authority to adopt any rules
                                                                        AND MUNICIPAL HAZARDOUS WASTE


27 TexReg 1984 March 15, 2002 Texas Register
The Texas Natural Resource Conservation Commission (com-              packings and seals; sample purgings; relief device discharges;
mission) proposes amendments to §335.29, Adoption of Appen-           discharges from safety showers; rinsing and cleaning of per-
dices by Reference; §335.67, Marking; §335.322, Definitions;          sonal safety equipment; and rinsate from empty containers or
and §335.323, Generation Fee Assessment.                              from containers that are rendered empty by that rinsing. The
                                                                      federal exemption from hazardous waste regulation is based on
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS
                                                                      the economic incentive to minimize loss of product at manufac-
FOR THE PROPOSED RULES
                                                                      turing facilities.
The primary purpose of the proposed rules is to add three new
                                                                      The proposed fee exemption for hazardous wastewater gener-
exemption categories for waste generation fees. The proposed
                                                                      ated due to de minimis losses of commercial chemical products
rules would expand the current waste generation fee exemptions
                                                                      from terminal operations is consistent with the federal exemption
found in §335.323 to: 1) characteristically hazardous wastewater
                                                                      from the definition of a hazardous waste for wastewater mixed
transported via hardpiping to a publicly-owned treatment works
                                                                      with de minimis losses of commercial chemical products gen-
(POTW) for treatment; 2) Class 1 industrial wastewater trans-
                                                                      erated by manufacturing facilities. The commission proposes
ported via hardpiping to a POTW for treatment; and 3) hazardous
                                                                      a fee exemption for wastewater mixed with de minimis losses
wastewater generated due to de minimis losses of commercial
                                                                      of commercial chemical products at terminal facilities because:
chemical products at certain facilities and discharged on-site in
                                                                      1) terminal operations are closely related to manufacturing fa-
accordance with a Texas Pollutant Discharge Elimination System
                                                                      cilities (in providing storage of commercial chemical products);
(TPDES) permit or transported via hardpiping to a POTW.
                                                                      and 2) hazardous wastewater mixed with de minimis losses of
These proposed rules are related to a petition for rulemaking         commercial chemical products generated by terminal operators
filed by Texas Terminal Operators (TTO). The TTO petition re-         is similar in composition to hazardous wastewater generated by
quested fee exemptions for certain high volume wastewater gen-        manufacturing facilities which is exempt from the definition of a
erated by terminal operators and discharged via a TPDES per-          hazardous waste (and therefore not subject to fees). The com-
mitted outfall or transported off-site via hardpiping to a POTW.      mission does not propose any additional reduction in regulation
Terminal operators provide for-hire bulk loading, unloading, and      for these wastes.
storage for chemical products. Large volumes of wastewater
                                                                      The commission proposes the amendment of §335.29, Adoption
are generated at terminal operations due to stormwater runoff
                                                                      of Appendices, by reference to incorporate recent amendments
from containment areas and product loading areas, line flush-
                                                                      to Appendix VII and Appendix VIII in 40 CFR Part 261.
ing, and container rinsing. The commission denied the TTO pe-
tition for rulemaking in an order dated April 25, 2001, Docket No.    The commission also proposes an amendment to §335.67,
2001-0280-RUL. The commissioners directed staff to study the          Marking, by adding the figure in subsection (b) that describes
issues presented by the petitioners, and the commission later di-     certain requirements for hazardous waste container labeling,
rected staff to initiate a rulemaking with some modification of the   which was inadvertently deleted in a previous rulemaking. The
exemptions presented in the TTO petition.                             proposed figure requires that generators mark each hazardous
                                                                      waste container of 110 gallons or less with the generator’s
The proposed exemptions are consistent with the waste
                                                                      name and address and manifest document number before
management hierarchy in the Public Policy Concerning Haz-
                                                                      transporting the container off-site.
ardous Waste found in Texas Health and Safety Code (THSC),
§361.023. In accordance with THSC, §361.134, the com-                 SECTION BY SECTION DISCUSSION
mission may authorize additional fee exemptions if they are
                                                                      Section 335.29, Adoption of Appendices by Reference, is pro-
consistent with state waste management policy. In reference
                                                                      posed to be amended to update the Federal Register reference
to "treatment to destroy hazardous characteristics" within the
                                                                      date for amendments to Appendix VII and Appendix VIII in 40
waste management hierarchy, THSC, §361.023(b) states that
                                                                      CFR Part 261. This proposed amendment adopts by reference
"on-site destruction is preferred, but shall be evaluated in the
                                                                      the amendment of federal hazardous waste regulations which
context of other relevant factors such as transportation hazard,
                                                                      added two new hazardous wastes, K174 (wastewater treatment
distribution of risk, quality of destruction, operator capability,
                                                                      sludges from the production of ethylene dichloride or vinyl chlo-
and site suitability." In determining whether the fee exemptions
                                                                      ride monomer (EDC/VCM)) and K175 (wastewater treatment
are consistent with the waste management hierarchy, the com-
                                                                      sludges from the production of vinyl chloride monomer using
mission finds that transportation of wastewater via hardpiping to
                                                                      mercuric chloride catalyst in an acetylene-based process), as
a POTW poses a minimal transportation hazard and the quality
                                                                      promulgated in the November 8, 2000 publication of the Federal
of destruction at a POTW is equivalent to on-site treatment.
                                                                      Register (65 FR 67068). The United States Environmental
The third category of fee exemption proposed in this rulemaking       Protection Agency (EPA) listed these wastes as hazardous
applies to wastewater regulated as a hazardous waste due to           based on the criteria set out in 40 CFR §261.11(a)(3) for listing
the federal "mixture rule." The federal mixture rule states that      a waste as hazardous.
any mixture of solid waste and hazardous waste listed in 40
                                                                      Section 335.67, Marking, is amended to add the figure in
Code of Federal Regulations (CFR) Part 261, Subpart D is a
                                                                      §335.67(b) describing certain requirements for hazardous
hazardous waste. Federal regulations provide an exception to
                                                                      waste container labeling, which was inadvertently deleted
the mixture rule for wastewater mixed with de minimis losses of
                                                                      in a previous rulemaking. The proposed figure requires that
commercial chemical products and chemical intermediates listed
                                                                      generators mark each hazardous waste container of 110 gallons
in 40 CFR §261.33 from manufacturing operations. De minimis
                                                                      or less with the generator’s name and address and manifest
losses include losses from normal material handling operations
                                                                      document number before transporting the container off-site.
(e.g., spills from the unloading or transfer of materials from bins
or other containers, leaks from pipes, valves, or other devices       Section 335.322, Definitions, is proposed to be amended to add
used to transfer materials); minor leaks of process equipment,        the new definition of terminal operation, to clarify the intended
storage tanks, or containers; leaks from well-maintained pump         applicability of a newly-proposed fee exemption.



                                                              PROPOSED RULES March 15, 2002 27 TexReg 1985
Section 335.323, Generation Fee Assessment, is proposed to               to a POTW. The commission anticipates that units of state and lo-
be amended to add three new exemption categories for waste               cal government that consider changing their management prac-
generation fees. The proposed rules would expand the current             tices to qualify for these exemptions will take the potential facility
waste generation fee exemptions found in §335.323 to: 1) char-           upgrade costs into consideration.
acteristically hazardous wastewater transported via hardpiping
                                                                         The proposed amendments are anticipated to result in significant
to a POTW for treatment; 2) Class 1 industrial wastewater trans-
                                                                         fiscal implications for the commission by lowering the amount of
ported via hardpiping to a POTW for treatment; and 3) hazardous
                                                                         revenues received from waste generation fees. The commis-
wastewater generated due to de minimis losses of commercial
                                                                         sion has identified 19 industrial sites in the Houston Ship Chan-
chemical products at certain facilities and discharged on-site in
                                                                         nel/Deer Park area that would be eligible for the exemptions. As-
accordance with a TPDES permit or transported via hardpiping
                                                                         suming all of these sites qualified for exemptions from annual
to a POTW.
                                                                         waste generation fees, the loss in revenues to the commission is
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERN-                            estimated to be approximately $400,000 a year. This reduction in
MENT                                                                     revenues would begin in Fiscal Year 2004, since the waste gen-
                                                                         eration fees for 2002 are not actually invoiced until September
John Davis, Technical Specialist with Strategic Planning and Ap-
                                                                         2003. This estimate only considers the 19 known sites that would
propriations, has determined that for each year of the first five-
                                                                         be immediately eligible for the exemptions. The potential loss in
year period the proposed amendments are in effect, there will be
                                                                         revenues could be much greater than the estimate presented in
fiscal implications, which are anticipated to be significant, on the
                                                                         this fiscal note. Other facilities may qualify for the proposed ex-
agency’s revenues received from waste generation fees. Units
                                                                         emptions. It is also possible that there are other facilities oper-
of state and local government that operate facilities that generate
                                                                         ating in the state that could at some point in the future change
hazardous or Class 1 industrial wastewater may benefit from the
                                                                         their waste management practices (i.e., construct a pipeline to a
waste generation fee exemptions proposed by this rulemaking.
                                                                         POTW) and qualify for the proposed fee exemptions. The com-
Units of state and local government that do not generate haz-
                                                                         mission does not know how many additional facilities would be
ardous or Class I industrial wastewater would not be affected by
                                                                         eligible for the proposed fee exemptions. The commission does
the proposed amendments.
                                                                         not know how many additional facilities would be eligible for the
This rulemaking is intended to expand the current waste gen-             proposed fee exemptions.
eration fee exemptions by adding three new exemption cate-
                                                                         PUBLIC BENEFITS AND COSTS
gories for waste generation fees. Categories proposed for ex-
emption include hazardous wastewater transported via hardpip-            Mr. Davis has also determined that for each of the first five years
ing to a POTW for treatment, Class I industrial wastewater trans-        the proposed amendments are in effect, the public benefit antici-
ported via hardpiping to a POTW for treatment, and hazardous             pated as a result of implementing the proposed amendments will
wastewater generated at terminal operations due to de minimis            be potentially increased environmental protection by providing
losses of commercial chemical products that are treated on-site          an economic incentive for sites that generate hazardous waste-
or off-site via hardpiping to a POTW. The requirement for treat-         water to utilize more protective management practices. The fee
ment on-site or off-site via hardpiping to a POTW is considered          exemptions would only be available to certain operations that
to be a more protective waste management practice compared               treat hazardous of Class 1 wastewater either on-site or off-site
to shipping waste off-site via road or rail transportation. Facilities   via hardpiping to a POTW. Both of these treatment methods are
that meet the exemption criteria could claim the exemption from          considered to be more protective of the environment compared
annual waste generation fees.                                            to shipping waste off-site via road or rail transportation.
Examples of facilities that could take advantage of the exemp-           This rulemaking is intended to expand the current waste gen-
tion include chemical manufacturing facilities, terminal facilities,     eration fee exemptions by adding three new exemption cate-
refineries, and other industries that generate hazardous or Class        gories for waste generation fees. Categories proposed for ex-
I industrial wastewater if they meet the specific terms of the pro-      emption include hazardous wastewater transported via hardpip-
posed exemptions. The vast majority of potential entities who            ing to a POTW for treatment, Class I industrial wastewater trans-
qualify for the waste generation fee exemptions are anticipated          ported via hardpiping to a POTW for treatment, and hazardous
to be from industry rather than units of state or local government.      wastewater generated at terminal operations due to de minimis
However, there may be some units of government that could avail          losses of commercial chemical products that are treated on-site
themselves of the proposed exemptions. Analysis of commis-               or off-site via hardpiping to a POTW. Facilities that meet the ex-
sion data indicates at least 19 waste generators located within          emption criteria could qualify for these exemptions from annual
the Houston Ship Channel/Deer Park area would be eligible for            waste generation fees.
the exemptions; however, none of these facilities are owned and
                                                                         Examples of facilities that could take advantage of the exemp-
operated by units of state or local government.
                                                                         tion include chemical manufacturing facilities, terminal facilities,
The savings for units of government that qualify for exemptions          refineries, and other industries that generate hazardous or Class
would depend on the type and amount of wastewater generated.             I industrial wastewater if they meet the specific terms of the pro-
Sites that generate hazardous wastewater pay no fee if they gen-         posed exemptions. Analysis of commission data indicates at
erate less than one ton of waste; $100 if they generate from 1           least 19 waste generators located within the Houston Ship Chan-
- 50 tons; and $2.00 per ton if they generate over 50 tons of            nel/Deer Park area would be immediately eligible for the exemp-
waste. In order to take advantage of the exemptions, units of            tions.
government would either have to already be using management
                                                                         The savings for individuals and businesses that are granted ex-
practices consistent with the requirements of the exemptions, or
                                                                         emptions would depend on the type and amount of wastewater
initiate new practices that would include constructing a pipeline
                                                                         generated. Sites that generate hazardous wastewater pay no




27 TexReg 1986 March 15, 2002 Texas Register
fee if they generate less than one ton of waste; $100 if they gen-       qualify for these exemptions will take the potential facility upgrade
erate from 1 - 50 tons; and $2.00 per ton if they generate over          costs into consideration.
50 tons of waste. Class I wastewater generators will pay no fee
                                                                         The following is an analysis of the cost savings per employee for
if they generate less than one ton of waste; $50 if they gener-
                                                                         small or micro-businesses that qualify for an exemption from an-
ate from 1 - 100 tons; and $.50 per ton if they generate over
                                                                         nual waste generation fees proposed by this rulemaking. Small
100 tons of waste. Assuming all 19 of the identified waste gen-
                                                                         and micro-businesses are defined as having fewer than 100 or
eration were granted exemptions from annual waste generation
                                                                         20 employees respectively. A small business that generates a
fees, the combined savings to these facilities would be approx-
                                                                         1,000 tons of wastewater annually would save approximately $20
imately $400,000 a year. In order to take advantage of the fee
                                                                         per employee. A micro-business that generates a 1,000 tons
exemptions, facility operators would either have to already be us-
                                                                         of wastewater annually would save approximately $100 per em-
ing management practices consistent with the requirements of
                                                                         ployee.
the exemptions, or initiate new practices that would include con-
structing a pipeline to a POTW. Other facilities may qualify for         LOCAL EMPLOYMENT IMPACT STATEMENT
the proposed exemptions. It is also possible that there are other
                                                                         The commission has reviewed this proposed rulemaking and de-
eligible facilities operating in the state that could at some point in
                                                                         termined that a local employment impact statement is not re-
the future change their waste management practices (i.e., con-
                                                                         quired because the proposed rules do not adversely affect a lo-
struct a pipeline to a POTW) and qualify for the proposed fee ex-
                                                                         cal economy in a material way for the first five years that the
emptions. The commission does not know how many additional
                                                                         proposed rules are in effect.
facilities would be eligible for the proposed fee exemptions. The
commission anticipates that individuals and businesses that con-         DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
sider changing their management practices to qualify for these
                                                                         The commission reviewed the proposed rulemaking in light of the
exemptions will take the potential facility upgrade costs into con-
                                                                         regulatory analysis requirements of Texas Government Code,
sideration.
                                                                         §2001.0225, and determined that the rulemaking is not subject
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT                             to §2001.0225 because it does not meet the definition of a "ma-
                                                                         jor environmental rule" as defined in that statute. Major environ-
There are no adverse fiscal implications anticipated for small
                                                                         mental rule means a rule the specific intent of which is to protect
or micro-businesses due to implementation of the proposed
                                                                         the environment or reduce risks to human health from environ-
amendments, which are intended to expand the current waste
                                                                         mental exposure and that may adversely affect in a material way
generation fee exemptions by adding three new exemption
                                                                         the economy, a sector of the economy, productivity, competition,
categories for waste generation fees.
                                                                         jobs, the environment, or the public health and safety of the state
Categories proposed for exemption include hazardous wastewa-             or a sector of the state. The proposed amendments to Chap-
ter transported via hardpiping to a POTW for treatment, Class I          ter 335 are not anticipated to adversely affect in a material way
industrial wastewater transported via hardpiping to a POTW for           the economy, a sector of the economy, productivity, competition,
treatment, and hazardous wastewater generated at terminal op-            jobs, the environment, or the public health and safety of the state
erations due to de minimis losses of commercial chemical prod-           or a sector of the state because the primary purpose of the pro-
ucts that are treated on-site or off-site via hardpiping to a POTW.      posed rules is to expand the availability of exemptions of fees
Facilities that meet the exemption criteria could qualify for these      assessed to generators of hazardous and industrial solid waste.
exemptions from annual waste generation fees.                            The proposed rules also amend references to EPA regulations
                                                                         which added two new hazardous wastes, K174 and K175, as
Examples of facilities that could take advantage of the exemp-
                                                                         promulgated in the November 8, 2000 publication of the Federal
tion include chemical manufacturing facilities, terminal facilities,
                                                                         Register (65 FR 67068) and amend hazardous waste container
refineries, and other industries that generate hazardous or Class
                                                                         labeling requirements which were inadvertently deleted in a pre-
I industrial wastewater if they meet the specific terms of the pro-
                                                                         vious rulemaking.
posed exemptions. There are no known small or micro-busi-
nesses that would be eligible for the exemptions proposed in this        Furthermore, the proposed rules do not meet any of the four
rulemaking. The commission does not anticipate a large num-              applicability requirements listed in §2001.0225(a). Section
ber of small or micro-businesses, if any, would be eligible for the      2001.0225 only applies to a major environmental rule, the result
proposed waste generation fee exemptions, because the type of            of which is to: 1) exceed a standard set by federal law, unless
eligible facilities are anticipated to be primarily large industrial     the rule is specifically required by state law; 2) exceed an
sites.                                                                   express requirement of state law, unless the rule is specifically
                                                                         required by federal law; 3) exceed a requirement of a delegation
If there are small or micro-businesses that operate eligible facili-
                                                                         agreement or contract between the state and an agency or
ties, the savings would be the same as for larger industrial busi-
                                                                         representative of the federal government to implement a state
nesses. Sites that generate hazardous wastewater pay no fee if
                                                                         and federal program; or 4) adopt a rule solely under the general
they generate less than one ton of waste; $100 if they generate
                                                                         powers of the agency instead of under a specific state law. The
from 1 - 50 tons and $2.00 per ton if they generate over 50 tons
                                                                         proposed rules do not exceed a standard set by federal law, an
of waste. Class I wastewater generators will pay no fee if they
                                                                         express requirement of state law, a requirement of a delegation
generate less than one ton of waste; $50 if they generate from
                                                                         agreement, nor adopt a rule solely under the general powers of
1 - 100 tons; and $.50 per ton if they generate over 100 tons of
                                                                         the agency.
waste. In order to take advantage of the exemptions, facility op-
erators would either have to already be using management prac-           The proposed rules adopt by reference federal regulations
tices consistent with the requirements of the exemptions, or ini-        adding two new hazardous wastes and do not exceed a
tiate new practices that would include constructing a pipeline to        standard set by federal law. The proposed rules also expand
a POTW. The commission anticipates that small and micro-busi-            available exemptions from fees assessed to generators of
nesses that consider changing their management practices to              hazardous and industrial solid waste. Federal regulations



                                                                 PROPOSED RULES March 15, 2002 27 TexReg 1987
applicable to state hazardous waste programs do not address           The commission has prepared a consistency determination for
fees assessed for hazardous and industrial solid waste. The           the proposed rules under 31 TAC §505.22, and has found that the
proposed rules also do not exceed an express requirement of           proposed rules are consistent with the applicable Texas Coastal
state law. Texas Health and Safety Code, §361.134 authorizes          Management Program (CMP) goals and policies. The proposed
the commission to promulgate rules that establish exemptions          rules are subject to the CMP and must be consistent with ap-
from fees assessed to hazardous and industrial solid waste            plicable goals and policies which are found in 31 TAC §501.12
generators. In addition, the proposed rules do not exceed             and 501.14. The CMP goal applicable to the rules is the goal
a requirement of a delegation agreement. And finally, the             to protect, preserve, restore, and enhance the diversity, qual-
proposed rules are not under the general rulemaking powers            ity, quantity, functions, and values in Coastal Natural Resource
of the agency, but are proposed under an express authority of         Areas (CNRAs). The proposed rules do not govern any of the
THSC, §361.024 and §361.134.                                          activities that are within the designated coastal zone manage-
                                                                      ment area or otherwise specifically identified under the Texas
The commission invites public comment on the draft regulatory
                                                                      Coastal Management Act or related rules of the Coastal Coor-
impact analysis determination.
                                                                      dination Council. Interested persons may submit comments on
TAKINGS IMPACT ASSESSMENT                                             the consistency of the proposed rules with the CMP during the
                                                                      public comment period.
The commission evaluated these proposed rules and performed
a preliminary assessment of whether Texas Government Code,            SUBMITTAL OF COMMENTS
Chapter 2007 is applicable. The primary purpose of the pro-
                                                                      Comments may be submitted to Angela Slupe, Office of Envi-
posed rules is to expand the availability of certain exemptions
                                                                      ronmental Policy, Analysis, and Assessment, MC 205, P.O. Box
from the assessment of waste generation fees and would not bur-
                                                                      13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808.
den private real property. The proposed rules also adopt by ref-
                                                                      Comments must be received by 5:00 p.m., April 15, 2002, and
erence the amendment of federal hazardous waste regulations
                                                                      should reference Rule Log Number 2001-103-335-WS. For fur-
which added two new hazardous wastes, K174 and K175, as
                                                                      ther information, please contact Michael Bame, Policy and Reg-
promulgated in the November 8, 2000 publication of the Fed-
                                                                      ulations Division at (512) 239-5658.
eral Register (65 FR 67068) and add a figure for hazardous
waste container labeling requirements which was inadvertently         SUBCHAPTER A. INDUSTRIAL SOLID
deleted in a previous rulemaking. The purpose of the proposed
amendments to §335.29 and §335.67 is to ensure that Texas’
                                                                      WASTE AND MUNICIPAL HAZARDOUS
state hazardous waste rules are equivalent to the federal regu-       WASTE IN GENERAL
lations, thus enabling the state to retain authorization to oper-
ate its own hazardous waste program in lieu of the correspond-        30 TAC §335.29
ing federal program. These proposed amendments are an ac-             STATUTORY AUTHORITY
tion that is reasonably taken to fulfill an obligation mandated by
federal law, which is exempt under Texas Government Code,             The amendment is proposed under Texas Water Code (TWC),
§2007.003(b)(4).                                                      §5.103, which provides the commission authority to adopt any
                                                                      rules necessary to carry out its powers and duties under this
Nevertheless, the commission further evaluated these proposed         code and other laws of this state; §5.105, which authorizes the
rules and performed a preliminary assessment of whether these         commission to establish and approve all general policy of the
proposed rules constitute a taking under Texas Government             commission by rule; THSC, §361.024, which authorizes the
Code, Chapter 2007. The following is a summary of that                commission to adopt rules consistent with Chapter 361; and
evaluation and preliminary assessment. The primary purpose            §361.134(f), which authorizes the commission to adopt rules
of these proposed rules is to expand the exemptions available         that exempt generators of industrial solid or hazardous waste
from fees assessed to generators of hazardous and solid waste.        from the assessment of waste generation fees if consistent with
The proposed rules would substantially advance this purpose           state waste management policy.
by exempting from waste generation fees: 1) characteristically
hazardous wastewaters hardpiped to a POTW for treatment;              The proposed amendment implements THSC, Chapter 361,
2) Class I industrial wastewaters hardpiped to a POTW for             Solid Waste Disposal Act. Section 361.002 provides that it is
treatment; and 3) hazardous wastewater generated due to de            the state’s policy and the purpose of Chapter 361 to safeguard
minimis losses of chemical products at certain facilities treated     the health, welfare, and physical property of the people and to
and discharged according to permit or at a POTW.                      protect the environment by controlling the management of solid
                                                                      waste, including accounting for hazardous waste that is gener-
Promulgation and enforcement of these proposed rules would            ated. Section 361.134 requires the commission to assess a fee
be neither a statutory nor a constitutional taking of private real    for the generation of industrial solid waste or hazardous waste
property. The subject proposed rules do not affect a landowner’s      and provides that the commission may authorize exemptions
rights in private real property because this rulemaking does not      by rule from waste generation fees if consistent with sate waste
burden (constitutionally), nor restrict or limit, the owner’s right   management policy.
to property and reduce its value by 25% or more beyond which
would otherwise exist in the absence of the rules. The proposed       §335.29. Adoption of Appendices by Reference.
rules primarily expand the availability of exemptions for waste fee   The following appendices contained in 40 Code of Federal Regulations
assessments and would, therefore, reduce financial burdens on         Part 261 are adopted by reference as amended and adopted through
waste generators.                                                     April 1, 1987, and as further amended as indicated in each paragraph:
CONSISTENCY WITH THE COASTAL MANAGEMENT PRO-                                   (1)   (No change.)
GRAM




27 TexReg 1988 March 15, 2002 Texas Register
         (2) Appendix II - Method 1311 Toxicity Characteristic              Figure: 30 TAC §335.67(b)
Leaching Procedure (TCLP) (as amended through August 31, 1993[,]
                                                                            This agency hereby certifies that the proposal has been reviewed
(58 FR 46040));
                                                                            by legal counsel and found to be within the agency’s legal author-
        (3) Appendix III - Chemical Analysis Test Methods (as               ity to adopt.
amended through August 31, 1993[,] (58 FR 46040));
                                                                            Filed with the Office of the Secretary of State on March 1, 2002.
         (4) Appendix VII - Basis for Listing Hazardous Waste (as
amended through November 8, 2000 (65 FR 67068) [August 6, 1998,             TRD-200201296
(63 FR 42110)] );                                                           Stephanie Bergeron
                                                                            Director, Environmental Law Division
          (5) Appendix VIII - Hazardous Constituents (as amended
through November 8, 2000 (65 FR 67068) [May 4, 1998, (63 FR                 Texas Natural Resource Conservation Commission
24596)] ); and                                                              Earliest possible date of adoption: April 14, 2002
                                                                            For further information, please call: (512) 239-4712
         (6) Appendix IX - Wastes Excluded Under §260.20 and
§260.22 (as amended through October 19, 1999 [,] (64 FR 56256)).                                   ♦           ♦             ♦
This agency hereby certifies that the proposal has been reviewed            SUBCHAPTER J. HAZARDOUS WASTE
by legal counsel and found to be within the agency’s legal author-
ity to adopt.                                                               GENERATION, FACILITY AND DISPOSAL FEE
                                                                            SYSTEM
Filed with the Office of the Secretary of State on March 1, 2002.
TRD-200201295
                                                                            30 TAC §335.322, §335.323
Stephanie Bergeron                                                          STATUTORY AUTHORITY
Director, Environmental Law Division
                                                                            The amendments are proposed under Texas Water Code
Texas Natural Resource Conservation Commission                              (TWC), §5.103, which provides the commission authority to
Earliest possible date of adoption: April 14, 2002                          adopt any rules necessary to carry out its powers and duties
For further information, please call: (512) 239-4712                        under this code and other laws of this state; §5.105, which
                    ♦              ♦             ♦                          authorizes the commission to establish and approve all general
                                                                            policy of the commission by rule; THSC, §361.024, which
SUBCHAPTER C. STANDARDS APPLICABLE                                          authorizes the commission to adopt rules consistent with Chap-
                                                                            ter 361; and §361.134(f), which authorizes the commission
TO GENERATORS OF HAZARDOUS WASTE                                            to adopt rules that exempt generators of industrial solid or
                                                                            hazardous waste from the assessment of waste generation fees
30 TAC §335.67
                                                                            if consistent with state waste management policy.
STATUTORY AUTHORITY
                                                                            The proposed amendments implement THSC, Chapter 361,
The amendment is proposed under Texas Water Code (TWC),                     Solid Waste Disposal Act. Section 361.002 provides that it is
§5.103, which provides the commission authority to adopt any                the state’s policy and the purpose of Chapter 361 to safeguard
rules necessary to carry out its powers and duties under this               the health, welfare, and physical property of the people and to
code and other laws of this state; §5.105, which authorizes the             protect the environment by controlling the management of solid
commission to establish and approve all general policy of the               waste, including accounting for hazardous waste that is gener-
commission by rule; THSC, §361.024, which authorizes the                    ated. Section 361.134 requires the commission to assess a fee
commission to adopt rules consistent with Chapter 361; and                  for the generation of industrial solid waste or hazardous waste
§361.134(f), which authorizes the commission to adopt rules                 and provides that the commission may authorize exemptions
that exempt generators of industrial solid or hazardous waste               by rule from waste generation fees if consistent with sate waste
from the assessment of waste generation fees if consistent with             management policy.
state waste management policy.
                                                                            §335.322.    Definitions.
The proposed amendment implements THSC, Chapter 361,
Solid Waste Disposal Act. Section 361.002 provides that it is               The following words and terms, when used in this subchapter, shall
the state’s policy and the purpose of Chapter 361 to safeguard              have the following meanings, unless the context clearly indicates oth-
the health, welfare, and physical property of the people and                erwise.
to protect the environment by controlling the management of                           (1) - (11)   (No change.)
solid waste, including accounting for hazardous waste that is
generated.                                                                            (12) Hazardous waste fuel--A hazardous waste or blend of
                                                                            hazardous wastes to be burned for energy recovery which, for the pur-
§335.67. Marking.                                                           poses of assessment of fees under this section, is not subject to regu-
      (a) (No change.)                                                      lation under 40 Code of Federal Regulations (CFR) Part 264 (or Part
                                                                            265) Subpart O, relating to incinerators.
       (b) Before transporting or offering hazardous waste for trans-
portation off-site, a generator must mark each container of 110 gallons                (13) Industrial solid waste--A solid waste meeting the def-
or less used in such transportation with the following words and in-        inition of industrial solid waste under §335.1 of this title [(relating to
formation displayed in accordance with the requirements of 49 CFR           Definitions)].
§172.304: HAZARDOUS WASTE - Federal Law Prohibits Improper                            (14) - (20) (No change.)
Disposal. If found, contact the nearest police or public safety authority
or the EPA.



                                                                   PROPOSED RULES March 15, 2002 27 TexReg 1989
          (21) Terminal operations--Nonmanufacturing facilities              TITLE 31. NATURAL RESOURCES AND
that provide storage and transfer services for commercial chemical           CONSERVATION
products or chemical intermediates listed in 40 CFR §261.33.
§335.323.     Generation Fee Assessment.                                     PART 18. TEXAS GROUNDWATER
      (a)    (No change.)                                                    PROTECTION COMMITTEE
      (b) Wastewaters are exempt from assessment under the follow-           CHAPTER 601. GROUNDWATER
ing conditions.
                                                                             CONTAMINATION REPORT
           (1) Wastewaters containing hazardous wastes which are
designated as hazardous solely because they exhibit a hazardous              SUBCHAPTER A. GENERAL PROVISIONS
characteristic as defined in 40 Code of Federal Regulations (CFR) Part       RELATING TO PUBLIC FILES AND JOINT
261, Subpart C, concerning characteristics of hazardous waste, and are
rendered non-hazardous by neutralization or other treatment on-site          REPORT
in totally enclosed treatment facilities or wastewater treatment units
                                                                             31 TAC §§601.2, 601.3, 601.5
for which no permit is required under §335.2 of this title (relating to
Permit Required) or §335.41 of this title (relating to Purpose, Scope,       The Texas Groundwater Protection Committee (committee) pro-
and Applicability) are exempt from the assessment of hazardous waste         poses amendments to §§601.2, 601.3, and 601.5, concerning
generation fees.                                                             General Provisions Relating to Public Files and Joint Report.
            (2)   (No change.)                                               BACKGROUND AND SUMMARY OF THE FACTUAL BASIS
                                                                             FOR THE PROPOSED RULES
          (3) Wastewaters containing hazardous wastes which are
designated as hazardous solely because they exhibit a hazardous              The rules in Chapter 601 define the conditions that constitute
characteristic as defined in 40 CFR Part 261, Subpart C, concerning          groundwater contamination for the purpose of inclusion of cases
characteristics of hazardous waste, and are transported via direct hard      in the public files for each state agency having responsibilities
pipe connection to a publicly- owned treatment works (POTW) and              related to the protection of groundwater. The rules also de-
rendered nonhazardous by neutralization or other treatment are exempt        scribe the contents of the committee’s Joint Groundwater Mon-
from the assessment of hazardous waste generation fees.                      itoring and Contamination Report required under Texas Water
                                                                             Code (TWC), §26.406. The report describes the current status
          (4) Wastewaters classified as Class 1 industrial solid wastes
                                                                             of groundwater monitoring activities conducted by or required
because they meet the criteria for a Class 1 waste under the provisions
                                                                             by each agency at regulated facilities or associated with regu-
of §335.505 of this title and are transported via direct hard pipe con-
                                                                             lated activities; contains a description of each case of ground-
nection to a POTW for treatment and no longer meet the criteria for a
                                                                             water contamination documented during the previous calender
Class 1 waste are exempt from the assessment of waste generation fees.
                                                                             year; contains a description of each case of contamination doc-
           (5) Wastewaters which are designated as hazardous waste           umented during the previous year for which enforcement action
solely under 40 CFR §261.3(a)(2)(iv) that are generated at terminal op-      was incomplete at the time of issuance of the preceding report;
erations due to de minimis losses of commercial chemical products and        and indicates the status of enforcement action for each case of
chemical intermediates listed in 40 CFR §261.33 and are treated on-site      contamination which is listed.
or off- site at a POTW are exempt from the assessment of hazardous
                                                                             The purpose of the proposed amendments is to implement leg-
waste generation fees, provided that any discharge to a POTW is via a
                                                                             islative changes to TWC, §26.403(c) regarding committee mem-
direct hardpipe connection. For the purposes of this section, de minimis
                                                                             bership and to update the rules to reflect the change of agency
losses shall have the meaning described in 40 CFR §261.3(a)(2)(iv)(D).
                                                                             name from the Texas Natural Resource Conservation Commis-
          (6) [(3)] These exemptions or adjustments in fee assess-           sion (TNRCC) to the Texas Commission on Environmental Qual-
ment in no way limit a generator’s obligation to report such waste gen-      ity (effective September 1, 2002).
eration or waste management activity under any applicable provision
                                                                             The committee also is proposing, in concurrent action, the re-
of this chapter.
                                                                             view of Chapter 601 as required by Texas Government Code,
          (7) [(4)] A wastewater stream treated to meet a different          §2001.039. The proposed notice of review can be found in the
waste classification is subject to only one assessment under this section.   Review of Agency Rules section in this issue of the Texas Reg-
                                                                             ister.
      (c) - (f) (No change.)
                                                                             SECTION BY SECTION DISCUSSION
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency’s legal author-           The proposed amendment to §601.2, relating to Applicability,
ity to adopt.                                                                adds the Water Well Drillers and Water Well Pump Installers
                                                                             Program of the Texas Department of Licensing and Regulations
Filed with the Office of the Secretary of State on March 1, 2002.            to reflect the current membership of the committee as revised
TRD-200201297                                                                by the 76th Legislature, 1999, House Bill (HB) 1848, which
                                                                             amended TWC, §26.403(c). The name of the Texas Natural
Stephanie Bergeron
                                                                             Resource Conservation Commission has been revised to the
Director, Environmental Law Division                                         Texas Commission on Environmental Quality (effective Septem-
Texas Natural Resource Conservation Commission                               ber 1, 2002) to reflect the agency name change as required by
Earliest possible date of adoption: April 14, 2002                           HB 2912, §18.01, 77th Legislature, 2001.
For further information, please call: (512) 239-4712
                                                                             The proposed amendment to §601.3, relating to Definitions,
                      ♦            ♦             ♦                           changes to the term "commission," reflect an agency name



27 TexReg 1990 March 15, 2002 Texas Register
change from the Texas Natural Resource Conservation Com-               Code, §2001.0225, and determined that the rulemaking is not
mission to the Texas Commission on Environmental Quality as            subject to §2001.0225 because it does not meet the definition
required by HB 2912, 77th Legislature.                                 of a "major environmental rule" as defined in §2001.0225(g)(3).
                                                                       The proposed rulemaking only implements legislative changes
The proposed amendment to §601.5, relating to Joint Ground-
                                                                       to TWC, §26.403(c) regarding committee membership and up-
water Monitoring and Contamination Report, reflects the agency
                                                                       dates the rules to reflect the new agency name for the Texas Nat-
name change of the Texas Natural Resource Conservation Com-
                                                                       ural Resource Conservation Commission (TNRCC) to the Texas
mission to the Texas Commission on Environmental Quality.
                                                                       Commission on Environmental Quality (effective September 1,
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERN-                          2002). These amendments are not expected to adversely affect
MENT                                                                   in a material way the economy, a sector of the economy, produc-
                                                                       tivity, competition, jobs, the environment, or the public health and
Ms. Mary Ambrose, designated chairman of the committee, de-
                                                                       safety of the state or a sector of the state. Furthermore, even if
termined that during the first five- year period the amendments
                                                                       the proposed rules did meet the definition of a "major environ-
are in effect, there will be no fiscal implications to state and lo-
                                                                       mental rule," the proposed rules are not subject to §2001.0225
cal government as a result of the administration of the proposed
                                                                       because they do not accomplish any of the four results specified
amendments. The effects of this proposed rule change to re-
                                                                       in §2001.0225(a).
flect the change in committee membership and agency name
changes are not anticipated to be significant for any individual       First, the proposal does not exceed a standard set by federal law
agency or organization that is a member of the committee or im-        because there is no equivalent federal statute for the reporting
pose substantial costs. Similarly, fiscal implications are not an-     of groundwater contamination.
ticipated to be significant for units of local government that are
                                                                       Second, this proposal does not exceed an express requirement
currently providing information for the report. Because the rules
                                                                       of state law. The committee is specifically authorized under
govern the actions of the committee member agencies and or-
                                                                       TWC, §26.406(d) to adopt rules defining the conditions that
ganizations, no fiscal implications or employment impacts are
                                                                       constitute groundwater contamination for purposes of inclusion
anticipated for any other party.
                                                                       of cases in the public files and the joint report. Also, the
PUBLIC BENEFITS AND COSTS                                              proposed changes reflect the requirements of state law which
                                                                       in HB 1848, 76th Legislature, 1999, added a member to the
Ms. Mary Ambrose, designated chairman of the committee, also
                                                                       committee under revised TWC, §26.403(c) and under HB
determined that for the first five years these sections as pro-
                                                                       2912, 77th Legislature, 2001, changed the name of TNRCC, a
posed are in effect, the public benefit anticipated as a result of
                                                                       member on the committee.
this proposed rule change, to reflect the change in committee
membership and an agency name change, and the publication              Third, this proposal does not exceed a requirement of a delega-
of the report will be improved public access to information re-        tion agreement or contract between the state and an agency or
garding groundwater contamination. The report describes the            representative of the federal government to implement a state
current status of groundwater monitoring activities conducted by       and federal program because this report is not part of a dele-
or required by each agency at regulated facilities or associated       gation agreement or contract between the state and a federal
with regulated activities; contains a description of each case of      program. Finally, this proposal does not adopt a rule solely un-
groundwater contamination documented during the previous cal-          der the general powers of the committee instead of under a spe-
ender year; contains a description of each case of contamina-          cific state law. The amendments are specifically proposed under
tion documented during the previous year for which enforcement         TWC, §26.406(d).
action was incomplete at the time of issuance of the preceding
                                                                       TAKINGS IMPACT ASSESSMENT
report; and indicates the status of enforcement action for each
case of contamination which is listed. No public costs of this         The committee prepared a takings impact assessment for this
proposed rule change is anticipated because the changes only           rule in accordance with Texas Government Code, §2007.043.
add an agency to the list of those required to provide information     The purpose of this rulemaking is to revise the membership of
to the report and change the name of Texas Natural Resource            the committee to reflect legislative additions to membership and
Conservation Commission to the Texas Commission on Environ-            agency name changes.
mental Quality (effective September 1, 2002.)
                                                                       These rules provide for a listing of the duties and responsibilities
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT                           assigned to the committee under TWC, §26.406, concerning the
                                                                       maintenance by certain state agencies of public files containing
There will be no adverse fiscal implications for small or mi-
                                                                       documented cases of groundwater contamination and the publi-
cro-businesses as a result of implementation of the proposed
                                                                       cation by the committee, in conjunction with the TNRCC, of an-
amendments, which are intended to revise the committee’s
                                                                       nual groundwater monitoring and contamination reports and to
rules to conform to legislative provisions.
                                                                       establish general policies of the committee to guide such imple-
LOCAL EMPLOYMENT IMPACT STATEMENT                                      mentation.
The committee reviewed this proposed rulemaking and deter-             Because the rule governs the actions of the member agencies
mined that a local employment impact statement is not required         and organizations on the committee, it does not affect private
because the proposed rules do not adversely affect a local econ-       real property and does not, in whole or in part, or temporarily
omy in a material way for the first five years that the proposed       or permanently, restrict or limit a property owner’s right to the
rules are in effect.                                                   property that would otherwise exist in the absence of the rule.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION                         CONSISTENCY WITH THE COASTAL MANAGEMENT PRO-
                                                                       GRAM
The committee reviewed the proposed rulemaking in light of the
regulatory impact analysis requirements of Texas Government



                                                               PROPOSED RULES March 15, 2002 27 TexReg 1991
The proposed committee rulemaking does not authorize actions               University of Texas at Austin, [and] the State Soil and Water Conserva-
contained in the Coastal Coordination Act Implementation Rules             tion Board, and the Water Well Drillers and Water Well Pump Installers
in 31 TAC §505.11(a)(6) or (b)(2) or the Natural Resources Code            Program of the Texas Department of Licensing and Regulations.
(NRC), Chapter 33. The NRC, §33.205(a) states that "An agency
                                                                           §601.3. Definitions.
or subdivision that takes an agency or subdivision action de-
scribed by §33.2051 or §33.2053 that may adversely affect a                The following words and terms, when used in this chapter, shall have
coastal natural resource area shall comply with the goals and              the following meanings unless the context clearly indicates otherwise.
policies of the coastal management program."
                                                                                     (1)   (No change.)
Title 31 TAC §505.11(a)(6) or (b)(2), which correspond directly
with NRC, §33.2051 and §33.2053, describe agency rulemak-                           (2) Commission -- Texas Natural Resource Conservation
ing actions that require certain agencies to comply with NRC,              Commission (or effective September 1, 2002, the Texas Commission
§33.205(a) and (b) when adopting or amending a rule governing              on Environmental Quality).
certain activities. However, these provisions do not list the com-                   (3) - (7)   (No change.)
mittee as an agency subject to the provisions of NRC, §33.205(a)
and (b) or that must demonstrate compliance with the goals and             §601.5. Joint Groundwater Monitoring and Contamination Report.
policies of the Coastal Management Plan (CMP). The commit-                 In conjunction with the commission [Texas Natural Resource Conser-
tee is described as "an interagency committee" in TWC, §26.403,            vation Commission], the committee shall publish not later than April 1
with the power to adopt rules under TWC, §26.406(d). Texas Wa-             of each year a joint groundwater monitoring and contamination report
ter Code, §26.403(b) designates the TNRCC as the lead agency               covering the activities and findings of the committee made during the
for the committee, and provides that the TNRCC shall admin-                previous calendar year. The report must:
ister the activities of the committee; however, the committee is
given separate statutory power to adopt rules under §26.406(d).                      (1) - (3)   (No change.)
Therefore, cited provisions of the TAC and the NRC do not apply            This agency hereby certifies that the proposal has been reviewed
to the committee’s adoption of rules.                                      by legal counsel and found to be within the agency’s legal author-
Nonetheless, should the rulemaking actions of the committee be             ity to adopt.
interpreted for any reason as the TNRCC’s adoption of rules,
none of the proposed rules falls under the actions described in            Filed with the Office of the Secretary of State on February 27,
31 TAC §505.11(a)(6) and (b)(2) or NRC, §33.2051 or §33.2053.              2002.
Therefore, the requirements of the CMP do not apply to this rule-
                                                                           TRD-200201239
making.
                                                                           Stephanie Bergeron
SUBMITTAL OF COMMENTS                                                      Director, Environmental Law Division, Texas Natural Resource
Written comments on the proposal should reference TGWPC-                   Conservation Commission
Groundwater Contamination Report and may be submitted to                   Texas Groundwater Protection Committee
Patricia Durón, Texas Natural Resource Conservation Commis-                Earliest possible date of adoption: April 14, 2002
sion, Office of Environmental Policy, Analysis, and Assessment,            For further information, please call: (512) 239-6087
MC 205, P.O. Box 13087, Austin, Texas 78711-3087, or faxed to
(512) 239-4808. All comments sent by fax must be followed by                                     ♦           ♦            ♦
an original, signed hard copy for the committee’s records. Com-            TITLE 34. PUBLIC FINANCE
ments must be received by 5:00 p.m., April 15, 2002. For fur-
ther information concerning this proposal, please contact Mary             PART 11. OFFICE OF THE FIRE
Ambrose, Designated Chairman, Texas Groundwater Protection
Committee, at (512) 239-4813.                                              FIGHTERS’ PENSION COMMISSIONER
STATUTORY AUTHORITY                                                        CHAPTER 301. RULES OF THE TEXAS
The amendments are proposed under TWC, §26.406(d), which                   STATEWIDE EMERGENCY SERVICES
provides the committee with the authority to promulgate rules
defining the conditions that constitute groundwater contamina-             RETIREMENT FUND
tion for the purposes of inclusion of cases in the public files and        34 TAC §301.5, §301.6
the joint report under TWC, §26.406.
                                                                           The Office of the Fire Fighters’ Pension Commissioner (FFPC)
The proposed amendments implement TWC, §§26.401 - 26.407.                  proposes amendments to §301.5 and §301.6 concerning Rules
§601.2. Applicability.                                                     of the Texas Statewide Emergency Services Retirement Fund.
                                                                           These sections were previously proposed for public comment in
These rules specifically apply to each state agency or organization hav-   the January 18, 2002 issue of the Texas Register (27 TexReg
ing membership on the committee. The committee is composed of              464). Due to some changes made by the board, the Office of the
the Texas Natural Resource Conservation Commission (or effective           Fire Fighters’ Pension Commissioner (FFPC) has withdrawn that
September 1, 2002, the Texas Commission on Environmental Qual-             proposed action elsewhere in this issue of the Texas Register in
ity), the Texas Department of Health, the Texas Department of Agricul-     order to repropose these sections.
ture, the Railroad Commission of Texas, the Texas Water Development
Board, the Texas Alliance of Groundwater Districts, the Texas Agri-        Morris Sandefer, Commissioner, has determined that for the first
cultural Experiment Station, the Bureau of Economic Geology of the         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.



27 TexReg 1992 March 15, 2002 Texas Register
Mr. Sandefer also has determined that for each year of the first                             (B) Departments which habitually (2 times in 3 years)
five years the sections are in effect the public benefit anticipated          submit late reports will have an initial penalty of $1000.00 (one thou-
as a result of enforcing the sections will be current and updated             sand dollars) the second time the report is late. A penalty of $100 (one
regulations. There will be no effect on small businesses. There               hundred dollars) shall be added to the initial penalty for every 30 days
are no anticipated economic costs to persons who are required                 the report is late.
to comply with the sections as proposed.
                                                                                             (C) Every consecutive year that an annual report is sub-
Comments on the proposal may be submitted to Morris Sande-                    mitted late, the initial penalty will be at least $500 (five hundred dollars)
fer, Commissioner, Office of the Fire Fighters’ Pension Commis-               greater than the initial penalty assessed the previous year.
sioner, P.O. Box 12577, Austin, Texas 78711-2577.
                                                                                        (6) The Commissioner may[, with the approval of the state
The amendments are proposed under Texas Civil Statutes, Ar-                   board,] waive penalties when a local board demonstrates that the delay
ticle 6243e.3, (Senate Bill 411) 65th Legislature (1977), revised             in submission was beyond the control of the local entities responsible
in the 72nd Legislature (1991), revised in the 75th Legislature               for preparing and submitting the report.
(1997), and revised in the 77th Legislature (2001), which pro-
                                                                                           (A) Requests for waivers of the late annual report
vide the Office of the Fire Fighters’ Pension Commissioner with
                                                                              penalty must be in writing to the Commissioner.
the authority to promulgate rules necessary for the administra-
tion of the pension fund.                                                                   (B) The local board must demonstrate that the delay
                                                                              was beyond the control of the entities responsible for preparing and
No other statutes, articles, or codes are affected by the proposed
                                                                              submitting the report, and was not the result of neglect, indifference, or
amendments.
                                                                              lack of diligence.
§301.5. Billings and Annual Reports.
                                                                                           (C) If the Commissioner denies a waiver, the Commis-
      (a)    Billings.                                                        sioner must present the department’s documentation to the State Board
                                                                              of Trustees at its next scheduled meeting for a determination by the
         (1) Each governing body shall contribute the funds for the           State Board.
department’s participation in the system.
                                                                                            (D) A local board whose waiver of the penalty is denied
           (2) Although the department and governing body may have            by the State Board of Trustees shall have 60 days from the receipt of the
an agreement between themselves that the department will pay for par-         denial of waiver to request that the Commissioner schedule a contested
ticipation in the system, if the department is unable to pay, the govern-     case hearing with the State Office of Administrative Hearings (SOAH).
ing body is held liable for the payment.                                      The request from the local board shall be in writing.
          (3) The governing body may choose yearly or twice yearly                       (7) The Commissioner shall [with the approval of the state
billings. It may also choose to have billings based on the governing          board may] withhold an individual’s pension payments when a local
body’s fiscal year instead of a calendar year.                                board cannot verify a recipient’s eligibility to receive payments due
           (4) Billings cannot be altered by the department or govern-        to the recipient’s failure to cooperate or to provide information. The
ing body without prior approval by the Commissioner or State Board            chairman of the local board must make the request to withhold pay-
of Trustees. Payments are deemed late if they are not received by the         ments to the Commissioner in writing. The request shall outline the
Commissioner within 60 days from the mailing date as indicated on             attempts the board has made to obtain this information. The Commis-
the bill. Late payments accrue interest at the most recent assumed ac-        sioner shall make a decision and shall notify the recipient in writing of
tuarial rate of return on investments of the fund. Although the current       the decision.
assumed actuarial rate of the fund is 8%, that rate is subject to change                 (8) The Commissioner shall not begin retirement annuity,
at any time and without notice.                                               disability, or death payments based on the service of a person in de-
          (5) Requests for extensions of payments by the governing            partments whose service information has not been updated by the latest
entity must be in writing to the Commissioner. The governing entity           annual report.
must demonstrate that the delay was beyond the control of the entities                   (9) When correcting prior years of service on an annual re-
responsible for payment and was not the result of neglect, indifference       port for a member of the TSESRA (SB 411) system, the chairman, the
or lack of diligence.                                                         current chief or head of department, and the secretary of the local board
      (b)     Annual Reports.                                                 shall sign and have notarized a letter to the Commissioner correcting
                                                                              the service record. This letter shall be accompanied by a copy of the
        (1) Annual report forms are mailed by the Commissioner                minutes of the local board of trustees showing that they voted to make
in December of each year.                                                     the change.
            (2)   Annual reports are based on a calendar year in all cases.   §301.6. Local Boards of Trustees.
         (3) The reports are due in the Office of the Fire Fighters’                 (a) Composition and terms of the local board are contained
Pension Commissioner by January 31.                                           in Section 22, Local Board of Trustees, of Article 6243e.3, Vernons
                                                                              Texas Civil Statutes. The term limitations set forth in Section 22 of the
         (4) The guidelines accompanying the report forms should
                                                                              TSESRA, Article 6243e.3, do not apply to the representative appointed
be followed by the local pension board.
                                                                              by the governing body, and the governing body has the authority to
           (5) Administrative Penalties for late departmental annual          select its representative to serve on the board in a manner that the local
report. An annual report is deemed late if the complete report is not in      governing body chooses.
the office of the Commissioner within 60 days after January 31.
                                                                                     (b) Duties of the local board are contained in Section 23, Ad-
               (A) The initial penalty is $500 (five hundred dollars) for     ditional Duties of the Local Board of Trustees, and throughout the pen-
the first violation. A penalty of $100 (one hundred dollars) will be          sion fund law Article 6243e and Article 6243e.3. These duties are also
added to the initial penalty for every 30 days the report is late.            summarized in the information booklet issued by the Commissioner.



                                                                     PROPOSED RULES March 15, 2002 27 TexReg 1993
The local board members are expected to be aware of the duties im-         is no anticipated economic cost to persons who are required to
posed on them by the law and these rules, and are legally responsible      comply with the proposed section. There will be no anticipated
for errors and omissions made at the local level resulting in non-pay-     effect on local employment in geographic areas affected by the
ment of benefits.                                                          proposal.
       (c) By signing and notarizing Form LPB-411 of their depart-         Questions about the content of this proposal may be directed to
ment’s annual report, the board members are certifying that, to the best   Eric McDaniel at (512) 438- 2909 in DHS’s Texas Works policy
of their knowledge, the report is correct.                                 section. Written comments on the proposal may be submitted
                                                                           to Supervisor, Rules and Handbooks Unit-115, Texas Depart-
      (d) Meetings held by the local board of trustees shall be con-
                                                                           ment of Human Services E-205, P.O. Box 149030, Austin, Texas
ducted as open meetings under the Texas Open Meetings Act, Texas
                                                                           78714-9030, within 30 days of publication in the Texas Register.
Government Code Annotated, Chapter 551 as amended.
                                                                           Under §2007.003(b) of the Texas Government Code, the de-
       (e) In a department with five or less volunteer members all vol-
                                                                           partment has determined that Chapter 2007 of the Government
unteer members should be on the local board.
                                                                           Code does not apply to these rules. Accordingly, the department
This agency hereby certifies that the proposal has been reviewed           is not required to complete a takings impact assessment regard-
by legal counsel and found to be within the agency’s legal author-         ing these rules.
ity to adopt.
                                                                           The amendment is proposed under the Human Resources Code,
                                                                           Title 2, Chapter 31, which authorizes the department to admin-
Filed with the Office of the Secretary of State on March 4, 2002.
                                                                           ister financial assistance programs.
TRD-200201308
                                                                           The amendment implements the Human Resources Code,
Morris E. Sandefer
                                                                           §§31.001-31.030.
Commissioner
Office of the Fire Fighters’ Pension Commissioner                          §3.7603. Eligibility.
Earliest possible date of adoption: April 14, 2002                               (a) Requirements. To be eligible for services under the
For further information, please call: (512) 936-3372                       Temporary Assistance for Needy Families-State Program (TANF-SP)
                    ♦             ♦             ♦                          [TANF-SP program], the family must meet the requirements of this
                                                                           subchapter and the TANF requirements for applicants specified in this
TITLE 40. SOCIAL SERVICES AND ASSIS-                                       chapter.
TANCE                                                                              (b) TANF-SP Child Support Requirements. The Texas De-
                                                                           partment of Human Services (DHS) adheres to the requirements and
PART 1. TEXAS DEPARTMENT OF                                                procedures stated in 45 Code of Federal Regulations, §§232.11-232.20,
HUMAN SERVICES                                                             §§232.40-232.47, and §232.49 with the following exceptions [an ex-
                                                                           ception] related to penalties for noncompliance and the retaining of
CHAPTER 3. TEXAS WORKS                                                     child support. In regard to recipients subject to the requirements speci-
                                                                           fied in §3.301(d) of this title (relating to Responsibilities of Clients and
SUBCHAPTER WW. TEMPORARY                                                   the Texas Department of Human Services (DHS)), DHS applies a non-
ASSISTANCE FOR NEEDY FAMILIES--STATE                                       compliance penalty as specified in §3.301(d)(5)(A) of this title (relating
                                                                           to Responsibilities of Clients and the Texas Department of Human Ser-
PROGRAM                                                                    vices (DHS)). The Office of the Attorney General will distribute child
                                                                           support directly to the TANF-SP household. DHS will budget the child
40 TAC §3.7603
                                                                           support as unearned income and disregard up to $50 per household.
The Texas Department of Human Services (DHS) proposes to
                                                                           This agency hereby certifies that the proposal has been reviewed
amend §3.7603, concerning eligibility, in its Texas Works chap-
                                                                           by legal counsel and found to be within the agency’s legal author-
ter. The purpose of the amendment is to change the method
                                                                           ity to adopt.
in which the agency counts child support in a Temporary Assis-
tance for Needy Families-State Program (TANF-SP) case. The
                                                                           Filed with the Office of the Secretary of State on March 4, 2002.
Office of Attorney General (OAG) must distribute all child sup-
port collected directly to the household. DHS will count the col-          TRD-200201310
lections as unearned income after disregarding up to $50 per               Paul Leche
month. Current policy requires that child support received in a            General Counsel, Legal Services
TANF two-parent household be remitted to the state after certi-            Texas Department of Human Services
fication.                                                                  Earliest possible date of adoption: April 14, 2002
James R. Hine, Commissioner, has determined that, for the first            For further information, please call: (512) 438-3734
five-year period the proposed section is in effect, there will be
no fiscal implications for state or local government as a result of
                                                                                                ♦              ♦              ♦
enforcing or administering the section.                                    CHAPTER 97. LICENSING STANDARDS
Mr. Hine also has determined that for each year of the first five          FOR HOME AND COMMUNITY SUPPORT
years the section is in effect, the public benefit anticipated as
a result of enforcing the section will be that the households will         SERVICES AGENCIES
receive their entire child support payment. There will be no ad-           SUBCHAPTER F. ENFORCEMENT
verse economic effect on small or micro businesses, because
the policy does not affect the operation of businesses. There              40 TAC §97.602



27 TexReg 1994 March 15, 2002 Texas Register
The Texas Department of Human Services (DHS) proposes to                  Paul Leche
amend §97.602, concerning administrative penalties, in its Li-            General Counsel, Legal Services
censing Standards for Home and Community Support Services                 Texas Department of Human Services
Agencies chapter. The purpose of the amendment is to correct              Earliest possible date of adoption: April 14, 2002
an error in the adoption published in the November 9, 2001, is-           For further information, please call: (512) 438-3734
sue of the Texas Register (26 TexReg 9216).
James R. Hine, Commissioner, has determined that for the first
                                                                                              ♦             ♦             ♦
five-year period the proposed section will be in effect, there will       TITLE 43. TRANSPORTATION
be no fiscal implications for state or local governments as a result
of enforcing or administering the section.                                PART 1. TEXAS DEPARTMENT OF
Mr. Hine also has determined that for each year of the first five         TRANSPORTATION
years the section is in effect, the public benefit anticipated as a
result of adoption of the proposed rule will be to correct a typo-        CHAPTER 1. MANAGEMENT
graphical error in a rule that was adopted effective February 1,
2002. There will be no effect on small or micro businesses as a           SUBCHAPTER G. DONATIONS
result of enforcing or administering the section. There is no an-         43 TAC §1.506
ticipated economic cost to persons who are required to comply
with the proposed section. There is no anticipated effect on local        The Texas Department of Transportation proposes new §1.506,
employment in geographic areas affected by this section.                  concerning private participation in highway construction projects.
Questions about the content of this proposal may be directed to           EXPLANATION OF PROPOSED NEW SECTION
Linda Kotek at (512) 438- 3158 in DHS’s Long-Term Care-Policy             Transportation Code, §201.206, authorizes the department to
section. Written comments on the proposal may be submitted                accept, from any source, a donation or contribution in any form,
to Supervisor, Rules and Handbooks Unit-114, Texas Depart-                including realty, personalty, money, materials, or services. The
                                  .O.
ment of Human Services E-205, P Box 149030, Austin, Texas                 commission has previously adopted rules governing the accep-
78714-9030, within 30 days of publication in the Texas Register.          tance of donations. The rules are codified as 43 TAC §§1.500-
Under §2007.003(b) of the Texas Government Code, the de-                  1.505.
partment has determined that Chapter 2007 of the Government               The department has previously discouraged private participation
Code does not apply to these rules. Accordingly, the department           in highway construction projects because of concerns over the
is not required to complete a takings impact assessment regard-           ability to monitor and control private participation. This rule per-
ing these rules.                                                          mits private participation under specified conditions that will pro-
The amendment is proposed under the Health and Safety Code,               tect the public. Private participation will be allowed through the
§142.017, which provides DHS with the authority to adopt rules            donation of money or tangible goods. A donation of real property
relating to administrative penalties imposed on home and com-             will continue to be processed under the existing rules.
munity support services agencies (HCSSAs).                                New §1.506 allows private participation in highway construction
The amendment implements the Health and Safety Code,                      projects in a manner that is designed to permit the greatest de-
§142.017.                                                                 gree of flexibility that is consistent with protecting the public inter-
                                                                          est. Private participation may take a variety of forms and may be
§97.602. Administrative Penalties.                                        structured in any manner, as long as it is governed by a formal
      (a) - (b)    (No change.)                                           donation agreement that contains certain terms.

      (c)    Correction period.                                           Subsections (a), (b), and (c) of new §1.506 clarify that the de-
                                                                          partment may allow private participation if the private entity ex-
            (1)   (No change.)                                            ecutes a donation agreement and if private participation would
           (2) If an agency corrects the violation within the time pe-    be in the interest of the traveling public. This ensures that any
riods described in paragraph (1) of this subsection, DHS may assess       private participation will be clearly defined and will be in the gen-
an administrative penalty only for one level II violation that occurred   eral interest.
before the day on which the agency received written notice of the vio-    Subsection (d) sets out mandatory provisions in donation agree-
lation (statement of deficiencies). No administrative penalty would be    ments governing private participation in construction projects.
assessed for a level I [II] violation.                                    These provisions are in addition to those in other donation agree-
            (3)   (No change.)                                            ments. They include provisions to ensure that the department
                                                                          can effectively implement the donation agreement, provisions
      (d) - (e)    (No change.)                                           to protect the department and the public from later efforts by a
This agency hereby certifies that the proposal has been reviewed          private entity to alter its participation, and provisions governing
by legal counsel and found to be within the agency’s legal author-        the implementation of the agreement, the handling of funds, and
ity to adopt.                                                             work on the project.
                                                                          FISCAL NOTE
Filed with the Office of the Secretary of State on March 1, 2002.
                                                                          James Bass, Director, Finance Division, has determined that for
TRD-200201281                                                             each of the first five-years the new section is in effect, there will
                                                                          be no fiscal implications for state or local governments as a re-
                                                                          sult of enforcing or administering the new section. There are no




                                                                 PROPOSED RULES March 15, 2002 27 TexReg 1995
anticipated economic costs for persons required to comply with                          (A) All aspects of the project shall be carried out in
the section as proposed.                                                    compliance with applicable federal and state laws and regulations.
Jennifer Soldano, Director, Contract Services Office, has certi-                          (B) The project shall be designed in accordance with the
fied that there will be no significant impact on local economies or         latest department policies, procedures, standards, and guidelines.
overall employment as a result of enforcing or administering the
                                                                                         (C) The department shall award and manage all con-
new section.
                                                                            struction work.
PUBLIC BENEFIT
                                                                                       (7) Termination. If the private entity withdraws from the
Ms. Soldano has also determined that for each year of the first             project after the agreement is executed, it shall be responsible for all
five years the section is in effect, the public benefit anticipated         direct and indirect project costs incurred by the department for the por-
as a result of enforcing or administering the new section will be           tion of the project in which the private entity was participating.
to encourage private-public partnerships that will marshal addi-
                                                                            This agency hereby certifies that the proposal has been reviewed
tional resources for highway projects. There will be no adverse
                                                                            by legal counsel and found to be within the agency’s legal author-
economic effect on small businesses.
                                                                            ity to adopt.
SUBMITTAL OF COMMENTS
                                                                            Filed with the Office of the Secretary of State on March 1, 2002.
Written comments on the proposed new section may be submit-
ted to Jennifer Soldano, Director, Contract Services Office, 125            TRD-200201259
East 11th Street, Austin, Texas 78701-2483. The deadline for                Richard D. Monroe
receipt of comments is 5:00 p.m. on April 15, 2002.                         General Counsel
STATUTORY AUTHORITY                                                         Texas Department of Transportation
                                                                            Earliest possible date of adoption: April 14, 2002
The new section is proposed under Transportation Code,                      For further information, please call: (512) 463-8630
§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.
                                                                            CHAPTER 4. EMPLOYMENT PRACTICES
No statutes, articles, or codes are affected by the proposed new
section.                                                                    SUBCHAPTER B. JOB APPLICATION
§1.506. Private Participation in Highway Construction Projects.             PROCEDURES
      (a) A private entity may participate in a department highway          43 TAC §4.13, §4.14
construction project through a gift of money or tangible goods.
                                                                            The Texas Department of Transportation proposes amendments
       (b) The department may accept private participation in a de-         to §4.13 and §4.14, concerning job application procedures.
partment highway construction project only if it determines that the
                                                                            EXPLANATION OF PROPOSED AMENDMENTS
private participation will serve the interest of the traveling public.
                                                                            Sections 4.10-4.16 prescribe the procedures for notifying poten-
      (c) A gift governed by this section must meet all the require-
                                                                            tial applicants of vacant positions within the department, making
ments of this subchapter, including, when required, commission ap-
                                                                            applications for employment, and obtaining a veteran’s employ-
proval and the execution of a donation agreement.
                                                                            ment preference. This rulemaking proposes various revisions to
       (d) In addition to the requirements of §1.504 of this subchap-       §4.13 and §4.14 of these rules.
ter, a donation agreement governed by this section shall include the
                                                                            Transportation Code, §201.403, requires the department to open
following provisions.
                                                                            all positions compensated at or above the amount prescribed by
          (1) Funding arrangement. The agreement shall specify the          the General Appropriations Act for step 1, salary group 21, of
portion of construction costs, as defined in §15.56 of this title (relat-   the position classification salary schedule to applicants from in-
ing to Local Financing of Highway Improvement Projects on the State         side and outside the department. Section 4.13 implemented that
Highway System), to be paid by each party.                                  statutory requirement by providing that the department will notify
                                                                            its employees and the public of vacant positions by distributing
          (2) Indirect Costs. For service projects, as defined in
                                                                            notices of vacancies in salary groups 21 and above, and all jobs
§15.56 of this title, the private entity shall be responsible for all
                                                                            for which the public will be considered, with the Texas Employ-
indirect costs, as identified by the department.
                                                                            ment Commission. To be consistent with the current legislatively
          (3) Interest. The department will not pay interest on funds       established position classifications, the rule is amended to strike
provided by the private entity. Funds provided by the private entity will   the reference to group "21" and substitute "B13." A B13 salary
be deposited and retained in the state treasury.                            group is the equivalent of the former group 21. The reference to
                                                                            the Texas Employment Commission is also updated to refer to
           (4) Conditions. The agreement shall establish any condi-
                                                                            the Texas Workforce Commission.
tions on the donation, including the method and timing of the donation.
If the donation is a gift of money, full payment must be received before    Current §4.14 provides that applications must be received no
the department incurs any costs for the project.                            later than 5:00 p.m. on the closing day, or postmarked no later
                                                                            than the day before the closing day. This provision is revised
           (5) Responsibilities of the parties. The agreement shall
                                                                            to provide that applications may be postmarked on or before the
identify the responsibilities of each party.
                                                                            closing day. This revision is intended to eliminate apparent public
          (6)   Design and construction.                                    confusion with the current language.




27 TexReg 1996 March 15, 2002 Texas Register
Current §4.14 also provides that the department will only accept            in the job vacancy notice, including information or documentation re-
applications by facsimile from out-of-state applicants. This sen-           garding minimum qualifications and applicant knowledge, skills, and
tence is deleted and a new subsection is added to allow appli-              abilities as they pertain to the requirements of the job.
cants to submit applications electronically. An applicant who is
                                                                                  (b) An application will not be accepted if the applicant will not
invited to an interview must verify the submission and sign a hard
                                                                            be 17 years of age or older upon date of hire.
copy of the application before the interview. This revision is in-
tended to make the department’s job application process more                       (c) Applications must be received no later than 5:00 p.m. on
user-friendly while protecting the department from fraud.                   the closing day, or postmarked on or [no later than the day] before the
                                                                            closing day. [The department will only accept applications by facsimile
FISCAL NOTE
                                                                            from out-of-state applicants.]
James Bass, Director, Finance Division, has determined that for
                                                                                   (d) An applicant may submit an application electronically. An
each of the first five years the amendments are in effect, there
                                                                            applicant who is invited to interview must verify the submission and
will be no fiscal implications for state or local governments as a
                                                                            sign a hard copy of the application before the interview.
result of enforcing or administering the amendments. There are
no anticipated economic costs for persons required to comply                This agency hereby certifies that the proposal has been reviewed
with the sections as proposed.                                              by legal counsel and found to be within the agency’s legal author-
                                                                            ity to adopt.
Diana Isabel, Director, Human Resources Division has certified
that there will be no significant impact on local economies or
                                                                            Filed with the Office of the Secretary of State on March 1, 2002.
overall employment as a result of enforcing or administering the
amendments.                                                                 TRD-200201260
                                                                            Richard D. Monroe
PUBLIC BENEFIT
                                                                            General Counsel
Ms. Isabel has also determined that for each year of the first              Texas Department of Transportation
five years the sections are in effect, the public benefit anticipated       Earliest possible date of adoption: April 14, 2002
as a result of enforcing or administering the amendments will be            For further information, please call: (512) 463-8630
clearer and more user-friendly job application procedures. There
will be no adverse economic effect on small businesses.                                         ♦             ♦             ♦
SUBMITTAL OF COMMENTS                                                       CHAPTER 15. TRANSPORTATION PLANNING
Written comments on the proposed amendments may be sub-                     AND PROGRAMMING
mitted to Diana Isabel, Director, Human Resources Division, 125
East 11th Street, Austin, Texas 78701-2483. The deadline for re-            SUBCHAPTER L. ABANDONMENT OF RAIL
ceipt of comments is 5:00 p.m. on April 15, 2002.                           LINE BY RURAL RAIL TRANSPORTATION
STATUTORY AUTHORITY                                                         DISTRICT
The amendments are proposed under Transportation Code,
§201.101, which provides the Texas Transportation Commission
                                                                            43 TAC §§15.140 - 15.145
with the authority to establish rules for the conduct of the work           The Texas Department of Transportation proposes new
of the Texas Department of Transportation.                                  §§15.140-15.145, concerning the abandonment of a rail line by
                                                                            a rural rail transportation district.
No statutes, articles, or codes are affected by the proposed
amendments.                                                                 EXPLANATION OF PROPOSED NEW SECTIONS
§4.13. Notification.                                                        Texas Civil Statutes, Article 6550c, §5(r) provides that a rural
The department shall notify its employees and the public of vacant po-      rail transportation district (district) created under that article may
sitions by:                                                                 not abandon a rail line of the district with respect to which state
                                                                            funds have been loaned or granted unless the abandonment is
         (1) distributing job vacancy information statewide to each         approved by the Texas Transportation Commission as being con-
department area, district, and division office;                             sistent with the policies of that article. The department has pro-
          (2) distributing notices of vacancies in salary groups B13        vided rural rail transportation districts with state funds that were
[21] and above, and all jobs for which the public will be considered,       used for district costs relating to the acquisition of rail lines by
with the Texas Workforce [Employment] Commission; and                       the districts and contracts for the operation of those rail lines by
                                                                            railroad companies.
           (3) publishing vacancy information as appropriate in news-
papers and recognized minority publications of general circulation in       New §15.140 describes the purpose of the new subchapter,
the state.                                                                  which is to prescribe the policies and procedures by which a
                                                                            district may apply for and obtain approval to abandon a rail line
§4.14.     Application.                                                     of the district.
         (a) An applicant applying in response to a job vacancy notice
shall:                                                                      New §15.141 defines words and terms used in the new subchap-
                                                                            ter. This section defines state funds as funds provided by this
           (1) carefully review the job vacancy notice relative to the      state or an agency of this state for the purpose of acquiring or
qualifications described; and                                               operating a rail line. This includes the operation of the rail line
         (2) submit a completed department application form and             by the district itself or through an operating contract under which
such other information as may be required by the department that re-        the contracted operator is the proper party to seek abandonment
sponds specifically to the qualifications and location criteria described



                                                                   PROPOSED RULES March 15, 2002 27 TexReg 1997
authority to extinguish its common carrier obligation to operate          New §15.145 provides that a district’s abandonment of a rail line
the line.                                                                 remains subject to STB permission pursuant to federal law.
New §15.142 requires an application for approval to abandon a             FISCAL NOTE
rail line to be submitted to the department. Under federal law, the
                                                                          James Bass, Director, Finance Division, has determined that for
abandonment of a rail line is subject to the permission of the Sur-
                                                                          each of the first five-years the new sections are in effect, there
face Transportation Board (STB). Federal law requires notices
                                                                          will be no fiscal implications for state government as a result of
of intent to file an abandonment application and applications for
                                                                          enforcing or administering the new sections. There may be fis-
abandonment to be filed with the STB in accordance with the re-
                                                                          cal implications for local governments as a result of enforcing
quirements of STB regulations. In order to ensure compliance
                                                                          or administering the new sections. The department anticipates
with federal requirements and conditions of state funding, and
                                                                          that local governments will incur additional costs in preparing
to protect the state’s financial interests, §15.142 requires an ap-
                                                                          and processing applications for abandonment approval. Those
plication requesting abandonment approval that is submitted to
                                                                          costs cannot be quantified with any certainty, as it will depend on
the department to include documentation under which the dis-
                                                                          the nature and number of rail lines for which approval is sought.
trict obtained state funds, copies of the notice and application
                                                                          There are no anticipated economic costs for persons required to
filed with the STB, and documentation evidencing compliance
                                                                          comply with the sections as proposed.
with STB regulations relating to abandonment of rail lines.
                                                                          James L. Randall, Director, Transportation Planning and Pro-
Those regulations require a notice to be filed with the STB not
                                                                          gramming Division, has certified that there will be no significant
more than 30 days prior to the filing of the federal abandonment
                                                                          impact on local economies or overall employment as a result of
application. In order to facilitate compliance with federal require-
                                                                          enforcing or administering the new sections.
ments, §15.142 requires the application required by this section
to be submitted to the department no later than 45 days after the         PUBLIC BENEFIT
filing of a notice of intent to file an abandonment application with
                                                                          Mr. Randall has also determined that for each year of the first
the STB.
                                                                          five years the sections are in effect, the public benefit anticipated
New §15.143 prescribes procedures for conducting public hear-             as a result of enforcing or administering the new sections will be
ings to receive public comments on the proposed abandonment.              to ensure the preservation of rail lines that remain viable for con-
If the department finds that the application meets the require-           tinued rail service, thereby facilitating economic and business
ments of §15.142, it will conduct one or more public hearings to          development and the development and expansion of transporta-
receive public comment on the proposed abandonment. The de-               tion and commerce. There will be no adverse economic effect
partment will hold at least one hearing within at least one of the        on small businesses directly resulting from enforcing or admin-
counties of the district. The district will advertise each hearing        istering the new sections.
in accordance with an outreach plan developed in consultation
                                                                          PUBLIC HEARING
with the department. The commission believes that this public
involvement is necessary for the commission to determine the              Pursuant to the Administrative Procedure Act, Government
views of persons and entities that may be affected by the loss            Code, Chapter 2001, the Texas Department of Transportation
of rail service and is sufficiently flexible to adapt to the particular   will conduct a public hearing to receive comments concerning
circumstances of each application.                                        the proposed new subchapter. The public hearing will be held
                                                                          at 9 a.m. on April 2, 2002, in the first floor hearing room of
New §15.144 prescribes criteria that the commission will con-
                                                                          the Dewitt C. Greer State Highway Building, 125 East 11th
sider in determining whether to approve a district’s request to
                                                                          Street, Austin, Texas and will be conducted in accordance with
abandon a rail line. The policies of Texas Civil Statutes, Article
                                                                          the procedures specified in 43 TAC §1.5. Those desiring to
6550c include providing for the maintenance of existing rail sys-
                                                                          make comments or presentations may register starting at 8:30
tems necessary for the movement of materials and products to
                                                                          a.m. Any interested persons may appear and offer comments,
markets, economic and business development, the elimination of
                                                                          either orally or in writing; however, questioning of those making
unemployment or underemployment, and the development and
                                                                          presentations will be reserved exclusively to the presiding officer
expansion of transportation and commerce in this state. The
                                                                          as may be necessary to ensure a complete record. While any
criteria prescribed in this section are intended to ensure a pro-
                                                                          person with pertinent comments will be granted an opportunity
posed abandonment is consistent with those policies, to ensure
                                                                          to present them during the course of the hearing, the presiding
consistency with criteria considered by the STB in determining
                                                                          officer reserves the right to restrict testimony in terms of time
whether to permit abandonment, to reduce any adverse impact
                                                                          and repetitive content. Organizations, associations, or groups
on shippers or communities served by the rail line proposed for
                                                                          are encouraged to present their commonly held views and
abandonment and on the state transportation system, and to en-
                                                                          identical or similar comments through a representative member
sure the preservation of rail lines that remain viable for continued
                                                                          when possible. Comments on the proposed text should include
rail service.
                                                                          appropriate citations to sections, subsections, paragraphs, etc.
New §15.144 provides that, in approving a request to abandon              for proper reference. Any suggestions or requests for alternative
a segment of rail line, the commission will consider service per-         language or other revisions to the proposed text should be
formed on the line in the two years preceding the date of the             submitted in written form. Presentations must remain pertinent
notice, comments or other evidence of support of or opposition            to the issues being discussed. A person may not assign a
to the proposed abandonment received from interested parties,             portion of his or her time to another speaker. A person who
alternate sources of transportation services available, the impact        disrupts a public hearing must leave the hearing room if ordered
of the proposed abandonment on the operation of the state trans-          to do so by the presiding officer. Persons with disabilities who
portation system, the impact of the proposed abandonment on               plan to attend this meeting and who may need auxiliary aids
communities served by the rail line, and the viability of the rail        or services such as interpreters for persons who are deaf or
line for continued rail transportation service.                           hearing impaired, readers, large print or Braille, are requested



27 TexReg 1998 March 15, 2002 Texas Register
to contact Randall Dillard, Director, Public Information Office,                         (1) documentation under which the district obtained state
125 East 11th Street, Austin, Texas 78701-2483, 512/463-8588                   funds for the rail line;
at least two working days prior to the hearing so that appropriate
                                                                                          (2)   the notice relating to the rail line;
services can be provided.
                                                                                          (3)   the federal application relating to the rail line; and
SUBMITTAL OF COMMENTS
                                                                                        (4) documentation evidencing compliance with the re-
Written comments on the proposed new sections may be sub-
                                                                               quirements of 49 C.F.R. §1152.20.
mitted to James L. Randall, Director, Transportation Planning
and Programming Division, 125 East 11th Street, Austin, Texas                  §15.143.    Public Hearing.
78701-2483. The deadline for receipt of comments is 5:00 p.m.
on April 15, 2002.                                                                     (a) If the department finds that the application meets the re-
                                                                               quirements of §15.142 of this subchapter, it will notify the district of
STATUTORY AUTHORITY                                                            its findings and will conduct one or more public hearings to receive
The new sections are proposed under Transportation Code,                       public comment on the proposed abandonment.
§201.101, which provides the Texas Transportation Commission                         (b) The department will hold at least one hearing within at least
with the authority to establish rules for the conduct of the work of           one of the counties of the district.
the Texas Department of Transportation, and more specifically,
Texas Civil Statutes, Article 6550c, §5(r), which requires the                       (c) The department will file a notice of each hearing with the
commission to adopt by rule procedures for applying for and                    Secretary of the State for publication in the Texas Register.
obtaining approval to abandon a rail line.                                            (d) The district shall advertise each hearing in accordance with
No statutes, articles, or codes are affected by the proposed new               an outreach plan developed in consultation with the department.
sections.                                                                      §15.144.    Approval.
§15.140.    Purpose.                                                           In approving a request to abandon a segment of rail line, the commis-
Texas Civil Statutes, Article 6550c, §5(r) provides that a rural rail trans-   sion will consider:
portation district created under that article may not abandon a rail line                (1) service performed on the line in the two years preceding
of the district with respect to which state funds have been loaned or          the date of the notice;
granted unless the abandonment is approved by the Texas Transporta-
tion Commission as being consistent with the policies of that article.                   (2) comments or other evidence of support of or opposition
This subchapter prescribes the policies and procedures by which a rural        to the proposed abandonment received from interested parties;
rail transportation district may apply for and obtain approval to aban-                  (3) alternate sources of transportation services available,
don a rail line of the district.                                               including alternate sources of rail transportation service;
§15.141.    Definitions.                                                                  (4) impact of the proposed abandonment on the operation
                                                                               of the state transportation system;
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates oth-                  (5) impact of the proposed abandonment on communities
erwise.                                                                        served by the rail line; and
           (1)   Commission - The Texas Transportation Commission.                        (6)   viability of the rail line for continued rail transportation
                                                                               service.
           (2)   Department - The Texas Department of Transportation.
                                                                               §15.145.    Limitation.
          (3) Director - The director of the department’s Transporta-
tion Planning and Programming Division.                                        Abandonment of a rail line is subject to Surface Transportation Board
         (4) District - A rural rail transportation district created un-       permission pursuant to federal law.
der Texas Civil Statutes, Article 6550c.                                       This agency hereby certifies that the proposal has been reviewed
           (5) Federal application - An application for abandonment            by legal counsel and found to be within the agency’s legal author-
of a rail line filed with the Surface Transportation Board under 49            ity to adopt.
C.F.R. Part 1152, Subpart C.
                                                                               Filed with the Office of the Secretary of State on March 1, 2002.
          (6) Notice - The notice of intent to file an abandonment
                                                                               TRD-200201261
application described in 49 C.F.R. §1152.20.
                                                                               Richard D. Monroe
           (7) State funds - Funds provided by this state or an agency         General Counsel
of this state for the purpose of acquiring or operating a rail line.           Texas Department of Transportation
§15.142.    Application.                                                       Earliest possible date of adoption: April 14, 2002
                                                                               For further information, please call: (512) 463-8630
        (a) To request approval of the abandonment of a segment of
rail line with respect to which state funds have been loaned or granted,                             ♦              ♦              ♦
a district shall submit an application to the director.
        (b) An application shall be submitted no later than 45 days
after the filing of a notice under 49 C.F.R. §1152.20 and shall include
a copy of:




                                                                      PROPOSED RULES March 15, 2002 27 TexReg 1999
WITHDRAWN RULES
An agency may withdraw a proposed action or the remaining effectiveness of an emergency      action by filing a
notice of withdrawal with the Texas Register. The notice is effective immediately upon filling or 20 days
after filing as specified by the agency withdrawing the action. If a proposal is not adopted or withdrawn
within six months of the date of publication in the Texas Register, it will automatically be withdrawn by the
office of the Texas Register and a notice of the withdrawal will appear in theTexas Register.


TITLE 1. ADMINISTRATION                                           PART 11. OFFICE OF THE FIRE
PART 5. TEXAS BUILDING AND                                        FIGHTERS’ PENSION COMMISSIONER
PROCUREMENT COMMISSION                                            CHAPTER 301. RULES OF THE TEXAS
CHAPTER 111. EXECUTIVE ADMINISTRA-                                STATEWIDE EMERGENCY SERVICES
TION DIVISION                                                     RETIREMENT FUND
SUBCHAPTER B. HISTORICALLY                                        34 TAC §301.5, §301.6
UNDERUTILITZED BUSINESS PROGRAM                                   The Office of the Fire Fighters’ Pension Commissioner (FFPC)
                                                                  withdrawals the proposed amendments of §301.5 and §301.6,
1 TAC §§111.14, 111.17, 111.28                                    concerning Rules of the Texas Statewide Emergency Services
                                                                  Retirement Fund, as published in the January 18, 2002 issue of
The Texas Building and Procurement Commission has with-
                                                                  the Texas Register (27 TexReg 464). These sections are being
drawn from consideration proposed amendment to §111.14,
                                                                  re-proposed for public comment elsewhere in this issue of the
111.17, and 111.28 which appeared in the November 30, 2001,
                                                                  Texas Register. Section 301.2, which was proposed along with
issue of the Texas Register (26 TexReg 9681).
                                                                  §301.5 and §301.6, is being adopted without changes elsewhere
                                                                  in this issue of the Texas Register.
Filed with the Office of the Secretary of State on February 26,
2002.                                                             Filed with the Office of the Secretary of State on March 4, 2002.
TRD-200201191                                                     TRD-200201307
Juliet King                                                       Morris E. Sandefer
Legal Counsel                                                     Commissioner
Texas Building and Procurement Commission                         Office of the Fire Fighters’ Pension Commissioner
Effective date: February 26, 2002                                 Effective date: March 4, 2002
For further information, please call: (512) 463-3960              For further information, please call: (512) 936-3372

                    ♦             ♦             ♦                                     ♦             ♦             ♦
TITLE 34. PUBLIC FINANCE




                                                       WITHDRAWN RULES March 15, 2002 27 TexReg 2001
ADOPTED RULES
An agency may take final action on a section 30 days after a proposal has been published in the Texas
Register. The section becomes effective 20 daysafter the agency files the correct document with the Texas
Register, unless a later date is specified or unless a federalstatute or regula tion requires implementation of
the action on shorter notice.
If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and
statement of legal authority will be published. If an agency adopts the section with changes to the proposed
text, the proposal will be republished with the changes.

TITLE 1. ADMINISTRATION                                               of Information Resources statewide standards validated by
                                                                      criteria adopted by the department rule"; and §2157.063 (Id.)
PART 5. TEXAS BUILDING AND                                            requires state agencies to consider Department of Information
                                                                      Resources rules when determining best value in the purchase
PROCUREMENT COMMISSION                                                or lease of an automated information system directly for a quali-
                                                                      fied information systems vendor. Further, Government Code,
CHAPTER 113. CENTRAL PURCHASING                                       §2151.004 (enacted by the 77th Legislature) transferred all
DIVISION                                                              powers and duties for providing telecommunication services for
                                                                      state government to the Department of Information Resources.
SUBCHAPTER A. PURCHASING
                                                                      New §113.17 is adopted in order to create the standards for a
1 TAC §113.17                                                         schedule of multiple award contracts pursuant to Senate Bill 311,
The Texas Building and Procurement Commission adopts new              §2.01 (77th Legislature) and Government Code, Chapter 2155,
Title 1, TAC, Chapter 113, Subchapter A, §113.17 relating to          Subchapter I--Multiple Award Contract Schedule.
the Multiple Award Schedule. The new rule is adopted without          The adoption of new §113.17 will make available to state and lo-
changes to the proposed text that was published in the Novem-         cal government a list of contracts for goods or services that have
ber 2, 2001, issue of the Texas Register (26 TexReg 8613), and        previously been awarded by the federal government or any other
the text will not be republished.                                     governmental entity in any state. The use of multiple award con-
One comment was received from the Texas Department of In-             tracts will reduce the administrative costs for bidding and evalu-
formation Resources to amend language in §113.7(b) by insert-         ating the award of a contract.
ing the word "the" in the first sentence between the words "on"       The new rule §113.17 is adopted under the authority of Texas
and "schedule"; to change the beginning of paragraph (2) from         Government Code, §2152.003 and §2155.503 which provide the
"Have agreed" to read "contain provisions accepting and agree-        Texas Building and Procurement Commission with the authority
ing to" the State Texas General Terms and Conditions . . .; and       to promulgate rules necessary to implement the sections.
to change the beginning of paragraph (3) from "Have agreed" to
"contain provisions under which the contractor agrees to com-         This agency hereby certifies that the adoption has been reviewed
ply with applicable commission and Department of Information          by legal counsel and found to be a valid exercise of the agency’s
Resources rules". The changes would require multiple award            legal authority.
contracts for information technology purchases to comply with
the Department of Information Resources rules as well as the          Filed with the Office of the Secretary of State on February 26,
Texas Building and Procurement Commission’s rules.                    2002.
The commission agrees with the substance of the recommen-             TRD-200201215
dation, but does not agree that it needs to be restated, as it is a   Juliet King
matter of existing law. The commission does not find it necessary
                                                                      Legal Counsel
to add the words "accepting and agreeing" to §113.17(b)(3), as
                                                                      Texas Building and Procurement Commission
the current language "Have agreed to the State of Texas General
terms and conditions" is in keeping with §2155.502, Government        Effective date: March 18, 2002
Code, which states the "commission shall modify any contractual       Proposal publication date: November 2, 2001
terms, with the agreement of the parties".                            For further information, please call: (512) 463-3960

New §113.17(b)(4) sets as one of the standards for all contracts                          ♦             ♦             ♦
on the multiple award schedule, compliance with all state and
federal procurement requirements. This would encompass the            CHAPTER 115. FACILITIES LEASING
following purchasing laws, which mandate compliance with the          PROGRAM
Department of Information Resources rules. Government Code,
§2157.003(7) requires as part of the criteria the commission          SUBCHAPTER A. STATE LEASED PROPERTY
uses in determining best value for the purchase of automated
information systems, "compliance with applicable Department
                                                                      1 TAC §§115.1 - 115.10




                                                               ADOPTED RULES March 15, 2002 27 TexReg 2003
The Texas Building and Procurement Commission adopts the re-          The adopted new rules will delete obsolete language found in the
peal of Title 1, TAC, Chapter 115, Subchapter A--State Leased         adopted repeal of Title 1, TAC, Chapter 115, §§115.1 - 115.10
Property, §§115.1 - 115.10 that was published in the November         that is published simultaneously in this publication of the Texas
30, 2001, issue of the Texas Register (26 TexReg 9685) with-          Register. The new rules will also result in reduced life cycle costs
out changes to the proposed repeal, and the text of the repealed      for leased space and on time delivery of space, which should
rules will not be republished. The adoption of the repealed rules     also result in lower costs for space.
is being published simultaneously in this issue of the Texas Reg-
                                                                      No comments have been received concerning the adoption of
ister with the adoption of new rules under Title 1, TAC, Chap-
                                                                      new Title 1, TAC, Chapter 115, Subchapter A, §§115.1 - 115.11.
ter 115, Subchapter A, §§115.1 - 115.11--Facilities Leasing Pro-
gram.                                                                 The new rules are adopted under the authority of the Texas
                                                                      Government Code, Title 10, Subtitle D, §§2152.003, 2166.062,
The repeal of Title 1, TAC, Chapter 115, Subchapter A, §§115.1
                                                                      2166.202, 2166.2525 (new by SB 311, §9.02, 77th Legislature
- 115.10 is adopted in order to allow for the adoption of new rules
                                                                      (2001)), 2166.2526 (new by SB 311, §9.03, 77th Legislature
for Title 1, TAC, Chapter 115, Subchapter A, §§115.1 - 115.11
                                                                      (2001)) which provides the Texas Building and Procurement
due to the enactment of Senate Bill 311, Article 10, 77th Legis-
                                                                      Commission with the authority to promulgate rules necessary
lature (2001) that affect the Facilities Leasing Program.
                                                                      to implement the sections.
The repeal will delete obsolete language and allows for the adop-
                                                                      This agency hereby certifies that the adoption has been reviewed
tion of more efficient rules in accordance with the Texas Govern-
                                                                      by legal counsel and found to be a valid exercise of the agency’s
ment Code, Chapter 2167 and Senate Bill 311, Article 10, 77th
                                                                      legal authority.
Legislature (2001).
No comments have been received concerning the repeal of Title         Filed with the Office of the Secretary of State on February 26,
1, TAC, Chapter 115, Subchapter A, §§115.1 - 115.10.
                                                                      2002.
The repeal is adopted under the authority of the Texas Gov-           TRD-200201213
ernment Code, Title 10, Subchapter D, §§2152.003, 2165.004,
                                                                      Juliet King
2165.108 and 2167.008 which provides the Texas Building and
                                                                      Legal Counsel
Procurement Commission with the authority to promulgate rules
necessary to implement the sections.                                  Texas Building and Procurement Commission
                                                                      Effective date: March 18, 2002
This agency hereby certifies that the adoption has been reviewed      Proposal publication date: November 30, 2001
by legal counsel and found to be a valid exercise of the agency’s
                                                                      For further information, please call: (512) 463-3960
legal authority.
                                                                                          ♦             ♦             ♦
Filed with the Office of the Secretary of State on February 26,
2002.
                                                                      CHAPTER 123. FACILITIES CONSTRUCTION
TRD-200201214
                                                                      AND SPACE MANAGEMENT DIVISION
Juliet King                                                           The Texas Building and Procurement Commission adopts the
Legal Counsel                                                         repeal of old Title 1, TAC, Chapter 123, Subchapter A--General
Texas Building and Procurement Commission                             Matters, §123.1 and §123.2; Subchapter B--Real Property
Effective date: March 18, 2002                                        Acquisition, §123.12 and §123.13; Subchapter C--Construction
Proposal publication date: November 30, 2001                          Project Administration, §§123.23 - 123.33; and Subchapter
                                                                      D--Wage Rates, §123.43 and §123.44 that was published in the
For further information, please call: (512) 463-3960
                                                                      November 30, 2001, issue of the Texas Register (26 TexReg
                    ♦             ♦             ♦                     9688) without changes to the proposed repeal, and the text of
                                                                      the repealed rules will not be republished.
1 TAC §§115.1 - 115.11
                                                                      The adoption of these repealed rules is being published simulta-
The Texas Building and Procurement Commission adopts new              neously in this issue of the Texas Register with the adoption of
Title 1, TAC, Chapter 115, Subchapter A--State Leased Prop-           new rules under Title 1, TAC, Chapter 123 relating to the Facili-
erty, §§115.1 - 115.11, concerning the Facilities Leasing Pro-        ties Construction and Space Management Division.
gram. The new rules are adopted without changes to the pro-
posed text that was published in the November 30, 2001, issue         The repeal of old Title 1, TAC, Chapter 123, Subchapter A--Gen-
of the Texas Register (26 TexReg 9686), and the text will not be      eral Matters, §123.1 and §123.2; Subchapter B--Real Property
republished. The adoption of these new rules is being published       Acquisition, §123.12 and §123.13; Subchapter C--Construction
simultaneously in this issue of the Texas Register with the adop-     Project Administration, §§123.23 - 123.33; and Subchapter
tion of the repeal of the old Title 1, TAC, Chapter 115, Subchapter   D--Wage Rates, §123.43 and §123.44 relating to the Facilities
A, §§115.1 - 115.10--Facilities Leasing Program.                      Construction and Space Management Division is adopted in
                                                                      order to allow for the adoption of more efficient and streamlined
The new rules to Title 1, TAC, Chapter 115, Subchapter A,             new rules that are compliant with the requirements of Senate
§§115.1 - 115.11 are adopted in accordance with Senate Bill           Bill 311, Art. 9, §14.05 and Senate Bill 1268, 77th Legislature
311 (SB 311), Article 10, 77th Legislature (2001) which added         (2001).
language concerning best value standard for lease space; use
of private firms to obtain space; and reporting requirements for      The repeal of Title 1, TAC, Chapter 123 will delete obsolete lan-
state agencies noncompliant with leasing requirements.                guage and allow for the adoption of new rules.




27 TexReg 2004 March 15, 2002 Texas Register
No comments were received concerning the adoption of the re-        Texas Building and Procurement Commission with the authority
peal to Title 1, TAC, Chapter 123.                                  to promulgate rules necessary to implement the sections.
SUBCHAPTER A. GENERAL MATTERS                                       This agency hereby certifies that the adoption has been reviewed
                                                                    by legal counsel and found to be a valid exercise of the agency’s
1 TAC §123.1, §123.2                                                legal authority.
The repeal of Title 1, TAC, Chapter 123, §123.1 and §123.2 is
adopted pursuant to the Texas Government Code, Title 10, Sub-       Filed with the Office of the Secretary of State on February 26,
title D, §§2152.003, 2166.062, and 2166.202 which provides the      2002.
Texas Building and Procurement Commission with the authority
to promulgate rules necessary to implement the sections.            TRD-200201211
                                                                    Juliet King
This agency hereby certifies that the adoption has been reviewed
                                                                    Legal Counsel
by legal counsel and found to be a valid exercise of the agency’s
legal authority.                                                    Texas Building and Procurement Commission
                                                                    Effective date: March 18, 2002
Filed with the Office of the Secretary of State on February 26,     Proposal publication date: November 30, 2001
                                                                    For further information, please call: (512) 463-3960
2002.
TRD-200201209
                                                                                        ♦             ♦             ♦
Juliet King
                                                                    SUBCHAPTER D. WAGE RATES
Legal Counsel
Texas Building and Procurement Commission                           1 TAC §123.43, §123.44
Effective date: March 18, 2002                                      The repeal of Title 1, TAC, Chapter 123, §123.43 and123.44 is
Proposal publication date: November 30, 2001                        adopted pursuant to the Texas Government Code, Title 10, Sub-
For further information, please call: (512) 463-3960                title D, §§2152.003, 2166.062, and 2166.202 which provides the
                    ♦             ♦             ♦                   Texas Building and Procurement Commission with the authority
                                                                    to promulgate rules necessary to implement the sections.
SUBCHAPTER B.                 REAL PROPERTY                         This agency hereby certifies that the adoption has been reviewed
                                                                    by legal counsel and found to be a valid exercise of the agency’s
ACQUISITION                                                         legal authority.
1 TAC §123.12, §123.13
                                                                    Filed with the Office of the Secretary of State on February 26,
The repeal of Title 1, TAC, Chapter 123, §123.12 and §123.13 is
adopted pursuant to the Texas Government Code, Title 10, Sub-       2002.
title D, §§2152.003, 2166.062, and 2166.202 which provides the      TRD-200201212
Texas Building and Procurement Commission with the authority        Juliet King
to promulgate rules necessary to implement the sections.
                                                                    Legal Counsel
This agency hereby certifies that the adoption has been reviewed    Texas Building and Procurement Commission
by legal counsel and found to be a valid exercise of the agency’s   Effective date: March 18, 2002
legal authority.                                                    Proposal publication date: November 30, 2001
                                                                    For further information, please call: (512) 463-3960
Filed with the Office of the Secretary of State on February 26,
2002.
                                                                                        ♦             ♦             ♦
TRD-200201210                                                       CHAPTER 123. FACILITIES CONSTRUCTION
Juliet King
                                                                    AND SPACE MANAGEMENT DIVISION
Legal Counsel
Texas Building and Procurement Commission                           The Texas Building and Procurement Commission adopts new
Effective date: March 18, 2002                                      Title 1, TAC, Chapter 123, Subchapter A--General Matters,
                                                                    §123.1 and §123.2; Subchapter B--Real Property Acquisition,
Proposal publication date: November 30, 2001
                                                                    §123.12 and §123.13; Subchapter C--Construction Project
For further information, please call: (512) 463-3960
                                                                    Administration, §§123.23 - 123.33; and Subchapter D--§123.43
                    ♦             ♦             ♦                   and §123.44, concerning the Facilities Construction and Space
                                                                    Management Program. The new rules are adopted without
SUBCHAPTER C. CONSTUCTION PROJECT                                   changes to the proposed text that was published in the Novem-
                                                                    ber 30, 2001, issue of the Texas Register (26 TexReg 9690),
ADMINISTRATION                                                      and the text will not be republished. The adoption of the new
1 TAC §§123.23 - 123.33                                             rules are being published simultaneously in this issue of the
                                                                    Texas Register with the adoption of the repeal of old Title 1,
The repeal of Title 1, TAC, Chapter 123, §§123.23 - 123.33 is       TAC, Chapter 123.
adopted pursuant to the Texas Government Code, Title 10, Sub-
title D, §§2152.003, 2166.062, and 2166.202 which provides the      The adopted new rules will delete obsolete language found in
                                                                    the adopted repeal of old Title 1, TAC, Chapter 123--Facilities




                                                             ADOPTED RULES March 15, 2002 27 TexReg 2005
Construction and Space Management Division. The new rules            2166.202, 2166.2525 (new by Senate Bill 311, §9.02, 77th
are expected to result in better contracts for the state.            Legislature (2001)), 2166.2526 (new by Senate Bill 311, §9.03,
                                                                     77th Legislature (2001)) which provides the Texas Building and
One comment was received from the Texas Department of Pub-
                                                                     Procurement Commission with the authority to promulgate rules
lic Safety concerning §123.23(e). The comment expressed con-
                                                                     necessary to implement the sections.
cern that the provisions of Government Code Chapter 771--In-
teragency Cooperation Act--was impermissibly relied upon to au-      This agency hereby certifies that the adoption has been reviewed
thorize the transfer of funds in the manner contemplated by the      by legal counsel and found to be a valid exercise of the agency’s
proposed §123.23(e). The comment also noted that this ad-            legal authority.
vance transfer would reduce "ability to participate in managing
the quality and timeliness of the services performed by the com-     Filed with the Office of the Secretary of State on February 26,
mission."
                                                                     2002.
The second part of the Texas Department of Public Safety’s           TRD-200201205
comment addressed by reference to the powers and duties,
                                                                     Juliet King
expressed and implied, under Chapter 2166 and, specifically,
                                                                     Legal Counsel
§2166.356(a) which states "The commission is responsible
for directing final payment for work done on each project.           Texas Building and Procurement Commission
(etc.)" Therefore, the authority for management of quality and       Effective date: March 18, 2002
timeliness of performance regarding construction projects is         Proposal publication date: November 30, 2001
within the commission’s purview.                                     For further information, please call: (512) 463-3960
Government Code §771.007(c) is not relied on for the Texas                               ♦             ♦             ♦
Building and Procurement Commission’s source of authority
to transfer funds to the commission before services are per-         SUBCHAPTER B.                 REAL PROPERTY
formed. The rule making authority granted by Government
Code §2166.062(a) states "The commission may adopt rules
                                                                     ACQUISITION
necessary to implement its powers and duties under this              1 TAC §123.12, §123.13
chapter".    (See Chapter 2166, Building Construction and
Acquisition). The new rule also implements a recommendation          The new rules are adopted under the Government Code, Title 10,
for advance payment made in a report prepared by UT System           Subtitle D, Chapter 2166, §2166.062, which provides the Texas
upon commission by the State Auditor’s Office, "A Report             Building and Procurement Commission with the authority to pro-
for: Design and Construction Process Improvement (phase 4:           mulgate rules consistent with the code.
Present Recommendations)" issued May 1, 2000.                        This agency hereby certifies that the adoption has been reviewed
In response to the second part of their question, the prior rule     by legal counsel and found to be a valid exercise of the agency’s
required transfer of funds upon approval of the total project cost   legal authority.
by the using agency. However, the prior rule had not been fully
implemented and there were projects billed on a monthly basis        Filed with the Office of the Secretary of State on February 26,
to the using agency. The proposed rule requires a 50% transfer       2002.
of funds upon approval of the total project cost and the remaining
                                                                     TRD-200201206
half upon award of the primary construction contract or approval
                                                                     Juliet King
to begin construction on projects using alternate delivery sys-
tems. Expressed and implied authority for the rule are derived       Legal Counsel
from the provisions of Government Code Chapter 2166.                 Texas Building and Procurement Commission
                                                                     Effective date: March 18, 2002
The new rules are adopted in accordance with the require-
                                                                     Proposal publication date: November 30, 2001
ments of Senate Bill 311, Art. 9 and §14.05, 77th Legislature
                                                                     For further information, please call: (512) 463-3960
(2001), and Senate Bill 1268, 77th Legislature (2001) which
contain language relating to the lowest and best bid method for                          ♦             ♦             ♦
awarding a contract, including design-build; the construction
manager-at-risk and competitive sealed proposal methods for a        SUBCHAPTER C. CONSTRUCTION PROJECT
project; surety technical assistance services for the benefit of
small and historically underutilized businesses; determination       ADMINISTRATION
of the prevailing wage rate in counties bordering the United         1 TAC §§123.23 - 123.33
Mexican States, or a county adjacent to a county bordering the
United Mexican States; and requirements that the commission          The new rules are adopted under the authority of the Texas
establish procedures for the process to acquire property, for        Government Code, Title 10, Subtitle D, §§2152.03, 2166.062,
implementing the exclusion process from the commission’s au-         2166.202, 2166.2525 (new by Senate Bill 311, §9.02, 77th
thority, for the selection of design professionals, and procedures   Legislature (2001)), 2166.2526 (new by Senate Bill 311, §9.03,
for the management of the construction process.                      77th Legislature (2001)) and Senate Bill 1268 77th Legislature
                                                                     (2001)) which provides the Texas Building and Procurement
SUBCHAPTER A. GENERAL MATTERS                                        Commission with the authority to promulgate rules necessary
1 TAC §123.1, §123.2                                                 to implement the sections.

The new rules are adopted under the authority of the Texas
Government Code, Title 10, Subtitle D, §§2152.003, 2166.062,




27 TexReg 2006 March 15, 2002 Texas Register
This agency hereby certifies that the adoption has been reviewed    procedures for the submission and review of state agency
by legal counsel and found to be a valid exercise of the agency’s   strategic plans and biennial operating plans.
legal authority.
                                                                    No comments were received in response to the proposed repeal
                                                                    of 1 T.A.C. §201.5.
Filed with the Office of the Secretary of State on February 26,
                                                                    The repeal of §201.5 is adopted in accordance with Texas Gov-
2002.
                                                                    ernment Code §2054.052(a), which provides the department
TRD-200201207                                                       may adopt rules as necessary to implement its responsibilities.
Juliet King
                                                                    Texas Government Code §§2054.095-2054.103 and 2054.118
Legal Counsel
                                                                    are affected by the repeal.
Texas Building and Procurement Commission
Effective date: March 18, 2002                                      This agency hereby certifies that the adoption has been reviewed
Proposal publication date: November 30, 2001
                                                                    by legal counsel and found to be a valid exercise of the agency’s
                                                                    legal authority.
For further information, please call: (512) 463-3960
                    ♦             ♦             ♦                   Filed with the Office of the Secretary of State on February 26,
                                                                    2002.
SUBCHAPTER D. WAGE RATES
                                                                    TRD-200201180
1 TAC §123.43, §123.44                                              Renee Mauzy
The new rules are adopted under the authority of the Texas          General Counsel
Government Code, Title 10, Subtitle D, §§2152.03, 2166.062,         Department of Information Resources
2166.202, 2166.2525 (new by Senate Bill 311, §9.02, 77th            Effective date: March 18, 2002
Legislature (2001)), 2166.2526 (new by Senate Bill 311, §9.03,      Proposal publication date: October 26, 2001
77th Legislature (2001)) which provides the Texas Building and      For further information, please call: (512) 475-4750
Procurement Commission with the authority to promulgate rules
necessary to implement the sections.                                                    ♦             ♦             ♦
This agency hereby certifies that the adoption has been reviewed    1 TAC §201.7
by legal counsel and found to be a valid exercise of the agency’s
legal authority.                                                    The Department of Information Resources (department) adopts
                                                                    the amendment of subsections (a)(2), (b)(3) and (c)(2) of §201.7
Filed with the Office of the Secretary of State on February 26,     concerning interagency contracts for information resources
                                                                    technologies. The rule is adopted without changes to the
2002.                                                               proposed text published in the October 26, 2001, issue of
TRD-200201208                                                       the Texas Register, (26 TexReg 8432). The amendments to
Juliet King                                                         subsections (a)(2) and (b)(3)(B)-(D) are due to the enactment of
                                                                    SB 311, 77th legislature, which, among other things, abolishes
Legal Counsel
                                                                    the General Services Commission and establishes the Texas
Texas Building and Procurement Commission
                                                                    Building and Procurement Commission. The amended rule
Effective date: March 18, 2002                                      changes references to the General Services Commission in
Proposal publication date: November 30, 2001                        §201.7 to references to the Texas Building and Procurement
For further information, please call: (512) 463-3960                Commission as a result of enactment of SB 311. The adopted
                    ♦             ♦             ♦                   rule also amends §201.7(b)(3)(F) to update the statutory cite for
                                                                    the definition of health and human services agencies. Under SB
                                                                    1230, 77th legislature, effective September 1, 2001, statutory
PART 10. DEPARTMENT OF                                              authority over state agency strategic plans and biennial operat-
INFORMATION RESOURCES                                               ing plans was transferred from the department to the Legislative
                                                                    Budget Board. As a result of SB 1230, the department should
CHAPTER 201. PLANNING AND                                           no longer review the biennial operating plans of state agencies
                                                                    and amendments thereto prior to considering whether to grant
MANAGEMENT OF INFORMATION                                           a waiver for an interagency contract pursuant to Texas Govern-
RESOURCES TECHNOLOGIES                                              ment Code §2054.119 and 1 Texas Administrative Code §201.7.
                                                                    Accordingly, the adopted rule deletes the requirement that the
1 TAC §201.5                                                        department review the biennial operating plan, as amended, of
The Department of Information Resources (department) adopts         an agency requesting a waiver under §201.7 prior to acting on
the repeal of §201.5 concerning agency planning. This repeal        the agency’s waiver request.
is adopted, without changes to the proposed text as published       No comments were received in response to amended §201.7.
in the October 26, 2001, Texas Register (26 TexReg 8431), due
to enactment of SB 1230, 77th legislature, which was effective      The amendment of §201.7 is adopted in accordance with
September 1, 2001. Under SB 1230, statutory authority over          Texas Government Code §2054.052(a), which provides the
state agency strategic plans and biennial operating plans trans-    department may adopt rules as necessary to implement its
ferred from the department to the Legislative Budget Board.         responsibilities and Texas Government Code §2054.119,
Therefore, the department no longer has authority to specify        which prohibits state agencies from entering into interagency




                                                             ADOPTED RULES March 15, 2002 27 TexReg 2007
contracts to receive information resources technologies except      PART 4. TEXAS SAVINGS AND LOAN
in compliance with Texas Government Code §2054.119.
                                                                    DEPARTMENT
Texas Government Code §§2054.102, 2054.103, 2054.118 and
2054.119 are affected by the rule.                                  CHAPTER 80. MORTGAGE BROKER AND
This agency hereby certifies that the adoption has been reviewed    LOAN OFFICER LICENSING
by legal counsel and found to be a valid exercise of the agency’s
legal authority.
                                                                    SUBCHAPTER I. INSPECTIONS AND
                                                                    INVESTIGATIONS
Filed with the Office of the Secretary of State on February 26,
                                                                    7 TAC §80.20
2002.
                                                                    The Finance Commission adopts an amendment to add new
TRD-200201179                                                       §80.20(i) of the regulations (the "Regulations") that implement
Renee Mauzy                                                         the Mortgage Broker License Act, Finance Code, Chapter 156,
General Counsel                                                     (the "Act") without changes to the proposed text as published in
Department of Information Resources                                 the November 30, 2001, issue of the Texas Register (26 TexReg
Effective date: March 18, 2002                                      9703). The new subsection provides for the Savings and Loan
Proposal publication date: October 26, 2001                         Department to be reimbursed for the costs it incurs in conducting
For further information, please call: (512) 475-4750                inspections of licensees at out-of-state locations.

                    ♦             ♦             ♦                   Background and Summary of Factual Basis for the Rule
                                                                    Section 156.301 of the Act was amended, effective September
1 TAC §201.18                                                       1, 2001, to provide for inspection of licensees under the Act and
The Department of Information Resources (department) adopts         to permit the Commissioner to investigate licensees upon a find-
amended §201.18 concerning purchases of commodity software          ing of reasonable cause. The new subsection will require that
items. The rule is adopted without changes to the proposed text     when it is necessary for the Department to travel out-of-state to
as published in the October 26, 2001, Texas Register (26 TexReg     conduct inspections and review the records of licensees, each
8433).                                                              licensee will be required to reimburse the Department for the
                                                                    costs it incurs in connection with the out-of-state inspection of
No comments were received in response to the proposed               that licensee.
amendment of §201.18.
                                                                    The new subsection of the Regulations, in proposed form, was
§201.18 was amended to exempt institutions of higher educa-         reviewed with the Mortgage Broker Advisory Committee on Oc-
tion from compliance with the rule, to update the URL for the       tober 9, 2001, and with the Finance Commission on October 19,
commodity software list and to make two minor typographic cor-      2001. The Finance Commission approved the proposed amend-
rections that do not substantively affect the rule.                 ment to the Regulations for publication for public comment, and
The amended rule is adopted in accordance with Texas Gov-           they were in the November 30, 2001, issue of the Texas Regis-
ernment Code §2054.052(a), which provides the department            ter. No comments were received.
may adopt rules as necessary to implement its responsibilities      On February 6, 2002, the Mortgage Broker Advisory Committee
and Texas Government Code §2157.068(e), which provides the          reviewed the new subsection for final adoption and advised the
department may adopt rules regulating a purchase by a state         Commissioner and the Finance Commission that the new sub-
agency of a commodity software item.                                section should be adopted without changes to the form in which
The rule affects Texas Government Code §2157.068 and Texas          they were published.
Education Code §51.9335(d).                                         The new subsection is adopted under the authority of §156.102
This agency hereby certifies that the adoption has been reviewed    to adopt regulations to implement the Act and §156.301 of the
by legal counsel and found to be a valid exercise of the agency’s   Act regarding the inspection of licensees and the authority of the
legal authority.                                                    Commissioner to investigate certain matters.
                                                                    This agency hereby certifies that the adoption has been reviewed
Filed with the Office of the Secretary of State on February 26,     by legal counsel and found to be a valid exercise of the agency’s
2002.                                                               legal authority.
TRD-200201178
                                                                    Filed with the Office of the Secretary of State on February 25,
Renee Mauzy
General Counsel                                                     2002.
Department of Information Resources                                 TRD-200201167
Effective date: March 18, 2002                                      Timothy K. Irvine
Proposal publication date: October 26, 2001                         General Counsel
For further information, please call: (512) 475-4750                Texas Savings and Loan Department
                    ♦             ♦             ♦                   Effective date: March 17, 2002
                                                                    Proposal publication date: November 30, 2001
TITLE 7. BANKING AND SECURITIES                                     For further information, please call: (512) 475-1350

                                                                                        ♦             ♦             ♦


27 TexReg 2008 March 15, 2002 Texas Register
TITLE 16. ECONOMIC REGULATION                                       II. Section 26.315(c)(1) related to DCTU edits to ensure calls less
                                                                    than five minutes and more than $35 are not billed.
PART 2. PUBLIC UTILITY                                              Without taking a direct position on this issue, WCom stated that
COMMISSION OF TEXAS                                                 commenters have advised this option is expensive and will take
                                                                    time to implement. WCom concurs with SWBT that adding the
CHAPTER 26. SUBSTANTIVE RULES                                       "edits" function to DCTUs systems is expensive (up to half a mil-
                                                                    lion dollars) and therefore, not justified when weighed against the
APPLICABLE TO TELECOMMUNICATIONS                                    harm the commission seeks to address. Additionally, WCom re-
SERVICE PROVIDERS                                                   lies on SWBT’s DCTU experience to assert that implementation
                                                                    of bill edits would take months or even up to a year to complete.
SUBCHAPTER M. OPERATOR SERVICES                                     WCom further explained that if the commission revises §26.315,
16 TAC §26.315                                                      as proposed, the commission should acknowledge that DCTUs
                                                                    will gravitate to the B&C/audit method of verification, since the
The Public Utility Commission of Texas (commission) adopts          "edits" method requires capital expense and time to implement.
an amendment to §26.315, relating to Requirements for Dom-
inant Certificated Telecommunications Utilities (DCTUs), with       WCom argued that no evidence has been offered which justifies
changes to the proposed text as published in the November           concluding that the "proposed amendments are the least intru-
9, 2001 Texas Register (26 TexReg 8962). The purpose of             sive and most cost effective approach within the commission’s
this rule is to promote the commission public policy goal of        jurisdiction to implement."
protecting retail consumers from fraudulent, unfair, misleading,    While the commission appreciates concerns related to cost, the
deceptive, and anticompetitive practices of unscrupulous third      priority of customer protection weighed against cost burdens is
parties by way of the regulated billing process. This amendment     a routine task undertaken and resolved by the commission on
is adopted under Project Number 24105.                              a daily basis. A major commission consideration is whether the
The commission received comments on the proposed amend-             cost burden can actually be translated into a long-term invest-
ment from AT&T Communications of Texas, LP (AT&T ), Office          ment. This can also be said with the time factor and meanwhile,
of the Attorney General of Texas (OAG), Southwestern Bell Tele-     if necessary, interim resolutions can be considered and imple-
phone Company (SWBT), Verizon Southwest (Verizon), TelOne           mented by the DTCU. In response to WCom’s request that the
Telecommunications, Inc. (TelOne), USLD Communications,             commission acknowledge the DCTUs tendency to opt for one
Inc. (USLD) and WorldCom, Inc. (WCom).                              method over another, since this rule is an option of one method
                                                                    over another, the commission does not see the need to comment
I. General Comments                                                 on which option each carrier may take. Some carriers, for exam-
SWBT stated that the full implications of adding the termination    ple, may already have an "edits" method of verification in place
option to the proposed rule change became apparent with the         (as discussed by SWBT during the public hearing on July 24,
complaint filed on August 30, 2001 by TelOne Telecommuni-           2001). Others may pursue implementation of the "edits" method
cations, Inc. et al (TelOne) against SWBT (Docket Number            in the near future to comply with the rule, and still other carriers
24575, Complaint of TelOne Telecommunications, Inc., TelCam         may find it in the best interest of their organization to implement
Telecommunications Company of the Americas, Inc., and CQ            the "edits" method for reasons completely unrelated to this rule-
International Communications, Inc. Against Southwestern Bell        making.
Telephone Company). Given that SWBT’s actions (termination          In response to WCom’s question of whether the proposed
of the Billing and Collection Agreement "B&C Agreement")            method is the least costly and intrusive to implement, the
in Docket Number 24575 would be required by the proposed            commission notes that throughout the rulemaking process, the
changes to §26.315, SWBT believes the implications involved         commission was open and flexible in how to reach the end goal
in this project have taken on a much broader scope.                 of protecting Texas customers from unscrupulous collect calls
WCom supports the proposal to educate Texas consumers about         via the least costly and intrusive route. Least costly and intrusive
collect call scams. WCom believes, however, that the other two      includes, but is not limited to least cost to the industry and/or,
substantive additions made to §26.315 are unworkable.               ultimately the customer, the solution that can be implemented
                                                                    most quickly, and most importantly, the solution that will identify,
TelOne urged the commission to continue (as in the Preliminary      halt, and hold responsible the behavior of the actors perpetu-
Order, October 23, 2001, Docket Number 24575) carefully bal-        ating the problem. The commission further notes that WCom
ancing the need to fight abusive practices with the need to main-   failed to recommend or suggest alternatives to the proposed
tain pro-competitive policies that do not unduly advantage incum-   amendments. Given WCom’s lack of an alternative solution, the
bent providers and their affiliates.                                commission finds that inaction is not appropriate. Therefore,
While the commission agrees with SWBT that the scope of             in considering these factors, the commission maintains that
Project Number 24105 has somewhat broadened, the broad-             the proposed amendments are "the least intrusive and most
ened scope of the amendments are well within the commission’s       cost effective approach within the commission’s jurisdiction to
authority to address in this rulemaking. Moreover, the commis-      implement."
sion maintains that the core issues have remained the same.         SWBT claimed the rule change initially proposed by commission
Contrary to WCom’s general comments, as discussed below,            staff in this project would have mandated significant changes to
the commission believes that the proposed amendments are            the provision of operator and billing services. Moreover, SWBT
workable. The commission agrees with TelOne’s position re-          elaborated by saying that the original proposal would have pre-
garding competitive safeguards and has modified the proposed        vented DCTUs from billing any call of a given duration if the call’s
rule to address those concerns.                                     price exceeded the specified amount.




                                                             ADOPTED RULES March 15, 2002 27 TexReg 2009
OAG expressed concern that this subsection appears to be too               USLD submits that the complaint and call information include
easily circumvented by the targeted class of unscrupulous op-              only calls terminating in Texas. The threshold instead should be
erators. OAG opined that these operators could simply charge               calculated by comparing complaints received from Texas con-
less than the cap proposed or offer an additional minute or two            sumers against the number of calls terminating in Texas that are
of time thus effectively avoiding application of the rule.                 billed on behalf of the interexchange carrier (IXC).
AT&T commented that this subsection would have the effect of               The commission notes that it is without jurisdiction to review
prohibiting the billing of any collect call of less than five minutes      and adjudicate complaints related to calls terminating outside of
in duration. AT&T suggested that the text of the proposed rule, if         Texas. Therefore, only calls terminating in Texas should be in-
adopted, be more narrowly tailored. AT&T urged the commission              cluded in the calls used to trigger the threshold.
to reject the original proposal to include a blanket ban on the
                                                                           USLD questioned whether the commission has jurisdiction to im-
billing of all international collect calls with a duration of less than
                                                                           plement the changes proposed in §26.315(c)(1) in connection
five minutes that result in a charge of more than $35.
                                                                           with services that are not intrastate in nature. USLD stated that
AT&T also stated that the latest proposal would eliminate a broad          the proposal would place broad and undefined powers in the
section of the current collect call market and potentially subject         hands of the DCTUs to monitor and disrupt, if not terminate, the
any interexchange carrier to state-sanctioned abusive treatment            business of their competitors, the IXCs. Parallel with USLD’s ju-
by DCTUs regardless of fault. TelOne asserted that, despite the            risdiction assertion, WCom contended that if the rule addresses
commission’s intent, this proceeding appears to have been ex-              concerns regarding international collect calls, it should be nar-
panded to address the ability of a DCTU to terminate billing and           rowed to address the issue prompting the rulemaking.
collection services for all types of calls, not just collect calls as in
                                                                           The commission declines the invitation to change the $35/five
subsection (c)(2). TelOne opposed implementation of this provi-
                                                                           minute phone call provision. The parties were free to propose
sion. In addition AT&T opined that the rule would also effectively
                                                                           alternatives to the $35/five minute call profile. However, no party
impose rate regulation on international calling that is beyond the
                                                                           offered alternative call profiles to this commission. With regard
commission’s jurisdiction.
                                                                           to whether or not this commission has jurisdiction to implement
AT&T and TelOne both misunderstand the purpose and effect of               the changes proposed in subsection (c)(1), the commission, as
the proposed rule changes. The amendments do not attempt                   discussed above, is not attempting to regulate rates. The com-
to regulate the rate that a carrier may charge for a domestic or           mission is merely regulating the content of what may be placed
international collect telephone call. To the contrary, a carrier is        on and collected through the regulated billing process. Carriers
free to charge whatever rate for domestic or international collect         are free to implement alternative billing arrangements to collect
telephone calls that the marketplace will support. However, the            charges that may be prohibited by these amendments. As such,
commission has the authority to determine whether or not those             the commission is not regulating rates.
charges may be included on and collected through the regulated
                                                                           III. Section 26.315 (c)(2) Terminating B&C Agreements for IXCs
bill of a regulated entity. There is no right to collect unregu-
                                                                           generating complaints exceeding 0.5% of all records per billing
lated charges through the regulated billing process. The con-
                                                                           month and the establishment of random audits.
cern expressed by SWBT is not valid because subsection (c)(1)
addresses time and total charge, not just time as suggested by             SWBT, Verizon and OAG commented that requiring the issuance
SWBT. The OAG’s concern about carriers circumventing the pro-              of a commission order would unduly delay relief to consumers
vision of subsection (c)(1) by merely offering a few additional            who are being affected by the unscrupulous activity, and would
minutes or charging slightly less for the call ignores the method          grant these companies the opportunity to engage in more
staff used to establish the initial call profile. Specifically, the call   deception prior to being effectively thwarted. SWBT further con-
profile was established after convening a meeting of industry.             tended that carriers that wish to challenge terminations already
In that meeting, there was a general consensus that the mo-                have ample recourse via the commission complaint process.
tivation of these unscrupulous carriers is severely undermined             Thereafter, SWBT explained that in too many instances the
if they are not allowed to bill and collect through the regulated          offending carriers have completed their schemes and "left town"
billing process for calls meeting the time and charge profile es-          before their actions have been noticed in the form of complaints.
tablished in subsection (c)(1).                                            SWBT’s position is that a pre-approval requirement from the
                                                                           commission plays into the hand of unscrupulous providers.
AT&T explained that there is a number of foreign countries where
                                                                           Specifically, SWBT proposes that §26.315 not contain a re-
a collect call placed by a person located in that foreign country
                                                                           quirement that the commission approve terminations, because
to a person located in Texas and carried by AT&T can result in
                                                                           SWBT maintained this would surely decrease the effectiveness
a charge greater than $35 even if the call is only four minutes.
                                                                           of the rule with no corresponding benefit.
The effect of the proposed rule, AT&T asserts, would presume
that only longer calls from these locations and many other loca-           OAG stated that additional regulatory efforts are still necessary
tions are legitimate and prohibit a DCTU from billing what may             to fully and adequately address this problem. OAG offered pro-
be a legitimate and valuable short collect call from any of these          posed language for §26.313(b)(3) of this title (relating to Gen-
countries. Consequently, AT&T suggested that subsection (c)(1)             eral Requirements Relating to Operator Services) which called
be rejected.                                                               for the operator call services to automatically quote rate infor-
                                                                           mation to the billed party for all international collect calls. OAG
AT&T presented no evidence that the established call profile
                                                                           explained that its proposed language requires the operator, prior
would prohibit or ban certain international collect calls. While
                                                                           to completion of all international collect calls, to quote informa-
expressing its generalized concerns, assuming that AT&T is
                                                                           tion on the rates that will be charged to the person accepting the
correct, AT&T failed to present the commission with sufficient,
                                                                           call.
or for that matter any, information with which to engage in a cost
benefit analysis.                                                          In contrast, WCom supported the commission requiring the
                                                                           billing utility to seek a commission order to terminate B&C



27 TexReg 2010 March 15, 2002 Texas Register
Agreements when the proposed 0.5% complaint threshold is              SWBT’s broad and generalized comment failed to direct the
reached. Moreover, WCom emphasized the commission should              commission to a specific concern. Nevertheless, the commis-
impose the due process procedures available in any other              sion notes that §26.32 closely tracts the provisions contained in
enforcement or commission proceeding, including the good              PURA §§17.151-17.156. These provisions delineate the rights
cause waiver for application of the proposed rule.                    and responsibilities of BTUs and service providers. SWBT’s
                                                                      concern assumed that all complaints will rise to the level neces-
Similarly to WCom, TelOne believed it is incumbent upon the
                                                                      sary for termination of the B&C Agreement. That assumption
commission to ensure that a DCTU is precluded from acting in
                                                                      is clearly incorrect. In the event complaints do not reach the
a discriminatory or anti-competitive manner. However, TelOne
                                                                      termination threshold established in this rule, the provisions of
believes the proposed amendment to §26.315 grants a DCTU
                                                                      §26.32 are applicable. Likewise, if the threshold is triggered,
unfettered discretion to unilaterally and without notice terminate
                                                                      many of the make-hold provisions of §26.32 remain mandatory
B&C Agreements that are essential to a competitor’s survival. In
                                                                      and in force. Moreover, as discussed above, the commission
light of this explanation, TelOne emphasized their support for the
                                                                      believes that the current procedural rules provide scheduling
commission’s prohibition of DCTUs from blocking or terminating
                                                                      flexibility to address SWBT’s concern regarding the expeditious
B&C Agreements without a commission order. TelOne proposed
                                                                      termination of B&C Agreements of bad actors.
that the commission revise the rule to require DCTUs to obtain a
commission order prior to terminating billing services for an IXC     SWBT expressed concern with the first sentence of proposed
or, alternatively, to permit IXCs to contest DCTU terminations        §26.315(c)(2) regarding the threshold for termination. Specifi-
before the commission. In addition, TelOne suggested that, if         cally, SWBT and Verizon suggested that specific thresholds are
DCTUs are permitted to terminate billing, the billing aggregator      better left to private contract and internal policies. Verizon par-
should be given at least 45 days in which to establish alternative    allels SWBT in arguing the contract itself gives the billing utility
billing arrangements or, as may be the case for smaller competi-      termination power. In addition, SWBT urged the commission to
tors, notify its customers that it can no longer serve them.          leave thresholds for terminations to private contract and internal
                                                                      policy, so as to permit SWBT and other DCTUs to respond to a
While the commission acknowledges the concerns expressed by
                                                                      rapidly changing environment and to promptly reduce cramming
SWBT, the OAG, and Verizon regarding potential delays in ter-
                                                                      and other fraudulent actions of unscrupulous carriers.
minating the B&C Agreements for violating the complaint thresh-
old established by these amendments, those concerns must give         The commission notes that the 0.5% threshold was recom-
way to due process considerations. In that respect, the preser-       mended by SWBT and no other commenter suggested an
vation of due process and the expeditious termination of B&C          alternative level. Instead, the other commenters suggest elim-
Agreements are not mutually exclusive. In balancing these con-        ination of the established threshold and concur with SWBT’s
siderations, the commission notes that the DCTU and commis-           request to allow individual carriers the right to establish thresh-
sion staff are free to seek expeditious resolution of these matters   olds on a case-by-case basis. The commission declines this
by, for example, requesting a compressed hearing schedule and         invitation because it would lead to inconsistent protections to
other appropriate temporary relief. In fact, consistent with due      various customer groups. Moreover, this approach would place
process, the commission urges the parties to request such relief      the commission in the untenable position of not knowing what
on a case-by-case basis.                                              customer protections are in place for any given period for any
                                                                      given customer group. In the absence of specific alternatives,
SWBT also stated that requiring a DCTU to obtain commission
                                                                      the commission believes that the threshold recommended by
approval of terminations is inconsistent with the requirement of
                                                                      SWBT is reasonable. In the event the industry finds this thresh-
the Public Utility Regulatory Act (PURA) §§17.151-17.156.
                                                                      old problematic; parties are free to petition the commission to
The commission believes that SWBT’s claim is misplaced.               adjust the threshold.
Specifically, PURA §17.156(e) provides that " (i)f the commis-
                                                                      SWBT believed that the threshold employed by §26.315(c)(2)
sion finds that a service provider or billing agent has repeatedly
                                                                      must be flexible for other reasons. First, SWBT argued that
violated any provision of this subchapter, the commission
                                                                      flexibility will permit DCTUs to adapt to changes in a rapidly
may order the billing utility to terminate billing and collection
                                                                      evolving landscape including new processes, new technology,
services for that service provider or billing agent." This rule
                                                                      and what SWBT stated as most important, the new and inven-
merely establishes conditions the commission would consider
                                                                      tive ways for unscrupulous carriers to "beat the system." Next,
in exercising the authority granted by PURA §17.156(e). Thus,
                                                                      SWBT explained that flexibility is needed because it is appropri-
SWBT’s assertion is inconsistent with PURA §17.156(e).
                                                                      ate to demand thresholds that vary based on the size of the car-
With respect to the ability to unilaterally terminate B&C Agree-      rier. SWBT believed that an arbitrary standard will be ineffective
ments, WCom maintained that PURA does not allow the com-              because it will not allow DCTUs to address obvious differences
mission to delegate enforcement authority to the very entities        among carriers.
that the commission oversees.
                                                                      The commission is steadfast to the threshold for several reasons.
Since the commission has incorporated certain due process             First, as discussed above, it is not reasonable to discriminate be-
safeguards into the proposed amendments, it is not necessary          tween levels of customer protection based on the customers’ se-
to address WCom’s assertion related to the delegation of              lection of a carrier. All customers should be provided a minimum
enforcement authority.                                                level of protection. Moreover, in response to SWBT’s argument
                                                                      that flexibility is needed because of size variation between carri-
SWBT stated that requiring a commission order prior to termi-
                                                                      ers, the commission is steadfast to the threshold because it is a
nating B&C Agreements is inconsistent with §26.32 of this title
                                                                      percentage rather than a set number of complaints. Therefore,
(relating to Protection Against Unauthorized Billing Charges
                                                                      the percentage threshold is nondiscriminatory per carrier. As
("Cramming")) and that such a requirement would impair a billing
                                                                      such, the absolute numbers of complaints necessary to trigger
telecommunications utility (BTU)/DCTU’s ability to terminate
problem carriers.



                                                               ADOPTED RULES March 15, 2002 27 TexReg 2011
the threshold will vary per carrier and therefore company size is        of handling implementation of customer protection policies over
appropriately factored into the rule.                                    to the DCTUs. TelOne maintained that the rule allows DCTUs
                                                                         like SWBT to be the police, judge, and jury when their IXC com-
SWBT argued that SWBT and other DCTUs must be trusted to
                                                                         petitors are on trial.
address cramming complaints. Further, SWBT explained that
they actually have a vested interest in doing so as to avoid the         The commission notes that the proposed amendments do not
negative impacts on customer goodwill. SWBT maintained that              address the issue of cost responsibility. The issue was not ad-
carriers that bill though SWBT’s aggregators cannot argue that           dressed because it was understood that implementation cost
they are subject to whims of a DCTU.                                     would be born by the party incurring those cost. At no point in the
                                                                         process did the DTCU’s request reimbursement of auditing cost.
While the commission appreciates SWBT’s good faith efforts ex-
                                                                         Moreover, such cost should be ordinary cost of during business.
pressed in their comments, the commission must recognize that
                                                                         Since the commission is adopting certain due process protec-
the inherent reason for this rulemaking is that not every carrier
                                                                         tions, WCom’s and TelOne’s request for due process protection
acts in good faith. In addition, the commission believes that all
                                                                         has been mooted.
concerns related to the potential misconduct of the billing utility
can be addressed in the mandated commission proceeding.                  AT&T commented that the effect of subsection (c)(2) is to put an
                                                                         IXC’s competitor in a position to refuse charges, demand peri-
SWBT contended that DCTUs should not be required to assume
                                                                         odic and unannounced audits, and make arbitrary demands with-
responsibility for the fraud committed by unscrupulous carriers
                                                                         out liability, without notice, and without cause. AT&T believed
over which DCTUs have no control. Moreover, SWBT argued
                                                                         that larger IXCs would be subject to the unrestrained whim of
that the language in §26.315(c) is improper insofar as it infers
                                                                         their competitor since that carrier is statistically more likely to ex-
that a DCTU is to be held responsible for insuring the validity
                                                                         ceed any arbitrary threshold level of billing complaints. WCom
of another carrier’s charges. SWBT stated that they have ad-
                                                                         and USLD concurred with AT&T ’s due process concerns. As
dressed these concerns in previous comments.
                                                                         an alternative, AT&T proposes that issues related to the termi-
The commission believes that SWBT misstates the effect of the            nation of billing contracts for cause and without cause should be
amendments. The amendments do not hold SWBT or any other                 resolved by DCTUs and IXCs in their contract negotiations. Con-
BTU responsible for the fraud committed by unscrupulous carri-           sequently, AT&T suggested that subsection (c)(2) be rejected.
ers.
                                                                         While AT&T ’s comments are slightly more explicit than those of
SWBT supported the commission excluding language from the                other commenters, the commission holds steadfast to its conclu-
rule that would purport to make DCTUs liable for the actions             sion that the due process protections adopted in this rule ade-
of carriers over which those DCTUs have no control. WCom                 quately address and discourage a DTCU from arbitrarily invok-
echoed SWBT by asserting that, rather than impose regulatory             ing the termination provisions included in these amendments.
burdens on parties not at fault and, therein, burdening cus-             However, should a carrier present evidence that a DTCU has
tomers, an alternative solution should be exercised. Coupled             in bad faith invoked the termination provision, the existing rules
with the OAG’s authority pursuant to the Deceptive Trade Prac-           provide the commission with sufficient authority to correct such
tices Act, WCom suggested instead the commission exercise                an event to the detriment of the offending party. The commission
hefty administrative penalties and forfeiture of the ability to          believes that resolution of these issues by DCTUs and IXCs in
operate as tools to detour unscrupulous collect calls.                   their contract negotiations would result is inconsistent consumer
                                                                         protections. These amendments provide a minimum level of con-
The commission acknowledges that the amendments are not in-
                                                                         sumer protection on a statewide basis. Nothing in these amend-
tended to make DCTUs or any other utility responsible for the
                                                                         ments prevents DCTUs and IXCs from contractually imposing
unscrupulous business practices of third parties. Rather the in-
                                                                         standards more stringent than those contained herein.
tent of these amendments is restricted in both scope and ap-
plication to what may be placed on and collected through the             Verizon stated that it objects to the proposed mandatory thresh-
regulated billing process. Moreover, the commission recognizes           old of 0.5% and does not intend to implement the billing system
that it may not have jurisdiction over many of these unscrupulous        changes because Verizon believes they are unnecessary and
third party entities that are engaged in unscrupulous business           exceed the estimated cost of the contract/audit option in sub-
practices. Therefore, WCom’s suggestion that the commission              section (c)(2). Verizon estimated that the cost for each IXC audit
impose hefty administrative penalties against these unscrupu-            conducted under proposed subsection (c)(2) is $1,000 and es-
lous carriers and/or forfeit certificates of operating authority falls   timated that the cost to implement a public education campaign
short. In addition, the mere referral of these unscrupulous car-         using the customer rights’ section of the white pages is $13,000.
riers to the OAG is contrary to an expeditious resolution to the
                                                                         Without addressing the propriety of Verizon’s decision to imple-
problem. Consumers deserve an immediate response from the
                                                                         ment the audit option under the proposed amendments, the com-
commission.
                                                                         mission does acknowledge that the decision of which of the two
WCom maintained that the expense of "random" audits is not               alternatives to implement should be resolved using the cost/ben-
addressed by the rule. WCom explained that they understand               efit analysis approach. Since cost variances exist between carri-
the complexity of this issue since the audited carrier’s conduct         ers, the analysis should be performed using costs that are com-
is not directly at fault. In light of this, WCom asserted that the       pany specific. Through innovative means, other carriers may
audited carrier should not have to pay for the audit. In addition,       very well determine that it is more cost effective not to bill for
it is WCom’s position that if the commission determines the pro-         calls meeting the profile identified in subsection (c)(1). In any re-
posed revisions to §26.315 are necessary, the B&C/audit provi-           gard, those decisions are left to the individual carriers. The com-
sion requires additional changes to provide audited carriers with        mission has previously addressed Verizon’s request to leave the
the due process protections permitted by commission rules and            complaint thresholds to the individual carriers.
statutes. TelOne asserted that the proposed amendment insuf-
                                                                         IV. Response to Commission’s Specific Questions
ficiently takes into account the potential anti-competitive effects



27 TexReg 2012 March 15, 2002 Texas Register
Because the issue of the ability to terminate billing is now before      contained on billing statements. Therefore, the commission de-
the commission via this rulemaking, SWBT emphasized that a               clines SWBT’s request for an additional workshop.
fresh examination of §26.32 is not only warranted, but would aid
                                                                         USLD suggested that the commission implement the following
in clarifying the rule now being addressed in this project. In what
                                                                         procedural safeguards. Once a DCTU determines that the
first appears to be agreement with SWBT, TelOne supported the
                                                                         threshold has been triggered, the DCTU could initiate a show
expanded scope of this proceeding and urged the commission
                                                                         cause proceeding with the commission under which the IXC
to clearly define the circumstances under which a DCTU may
                                                                         would be required to demonstrate to the commission that the
terminate billing and collection service for an IXC. TelOne ex-
                                                                         IXC is not in violation of the rule. If the IXC could not carry
plained that without specific rules and the commission’s over-
                                                                         its burden, the commission could determine an appropriate
sight, the egregious conduct that led TelOne to file a complaint
                                                                         sanction. The commission’s decision about which complaints
against SWBT will continue to occur, affecting not only TelOne
                                                                         are valid and the appropriate remedy would then be reviewable
but all other IXCs that bill their customers through SWBT. TelOne
                                                                         in accordance with applicable rules.
states that they would have been driven out of business based
entirely on SWBT’s unilateral decision to terminate billing ser-         While not adopting the specific process suggested by USLD, the
vices.                                                                   commission has imposed procedural safeguards that provide for
                                                                         the review of the validity of specific complaints and whether or
The commission agrees with SWBT that the issue of the ability to
                                                                         not those complaints properly triggered the established thresh-
terminate billing is properly before the commission via this rule-
                                                                         old. Without addressing the extent of the commission’s jurisdic-
making. However, the commission does not agree with SWBT
                                                                         tion over IXCs and other third parties seeking to bill through the
that it is necessary to examine §26.32 (the Cramming Rule). The
                                                                         regulated billing process, the commission notes that this rule-
complaint threshold established by these amendments is not lim-
                                                                         making is rooted in PURA §17.156(e) which authorizes the com-
ited to cramming. Specifically, subsection (c)(2) is applicable to
                                                                         mission to order the termination of billing and collection services.
"all records billed for a billing month." Nothing in subsection (c)(2)
                                                                         The commission’s authority under PURA §17.156(e) is limited to
limits its application to cramming complaints. The commission
                                                                         the issue of contract termination. As such, the commission de-
agrees with TelOne’s request to identify the circumstances under
                                                                         clines to extend the review process to alternative remedies as
with DTCU’s may terminate billing contracts. Accordingly, the
                                                                         suggested by USLD.
commission has established the complaint threshold that must
be triggered to invoke a commission review of carrier specific           All comments, including any not specifically referenced herein,
conduct.                                                                 were fully considered by the commission. In adopting this sec-
                                                                         tion, the commission makes certain revisions to the rule consis-
USLD also submitted that the DCTU should only be entitled to
                                                                         tent with the filed comments.
stop billing and collecting for the IXC with respect to collect calls.
USLD requested that the commission clarify what a complaint is,          This amendment is adopted under the Public Utility Regulatory
as that term is used in the proposed rule amendment. TelOne              Act, Texas Utilities Code Annotated §14.002, (Vernon 1998, Sup-
concurred with USLD by stating that the proposed amendment               plement 2002) (PURA), which provides the Public Utility Com-
does not include the definitions necessary for an accurate deter-        mission with the authority to make and enforce rules reasonably
mination of the "complaint" threshold. Moreover, TelOne argued           required in the exercise of its powers and jurisdiction; and specif-
that without such clarification, a DCTU would be free to consider        ically PURA §17.001 which confers on the commission the au-
any type of customer inquiry about an IXC a compliant, no mat-           thority to adopt and enforce rules to protect retail customers from
ter how innocuous or without legitimate foundation.                      fraudulent, unfair, misleading, deceptive, or anticompetitive prac-
                                                                         tices; §17.004 which provides that all buyers of telecommunica-
In addition, TelOne believed it imperative the commission specifi-
                                                                         tions services are entitled to protection from fraudulent, unfair,
cally define not only the term "complaint", but also the term, "gen-
                                                                         misleading, deceptive, or anticompetitive practices, and which
erating." TelOne posed the question as to whether "generating"
                                                                         provides that the commission may adopt and enforce rules as
means a complaint directed to the DCTU? The commission? Or
                                                                         necessary or appropriate to carry out the provisions of §17.004;
the IXC? Moreover, TelOne stated that, if the commission deter-
                                                                         and §52.002(a) that provides the commission with exclusive orig-
mines an order to terminate services not in the public interest, at
                                                                         inal jurisdiction over the business and property of telecommuni-
minimum the rule should: 1) include a detailed definition of "com-
                                                                         cations utilities in Texas, subject to the limitations imposed by
plaint"; 2) establish a reasonable "complaint threshold"; and 3)
                                                                         PURA, to regulate rates, operations, and services so that the
provide that if the threshold is reached, the DCTU should be re-
                                                                         rates are just, fair, and reasonable and the services are ade-
quired to provide the IXC and/or the billing aggregator and com-
                                                                         quate and efficient.
mission notice that it will terminate billing and collection services
within 45 days unless the IXC obtains affirmative relief from the        Cross Reference to Statutes: Public Utility Regulatory Act
commission. Presumably, these definitions and procedural is-             §§14.002, 17.001, 17.004, 52.002, 52.057(a)(2) and (b), and
sues could be established in the workshop requested by SWBT.             56.104(d).
The commission appreciates the concerns expressed by the par-            §26.315. Requirements for Dominant Certificated Telecommunica-
ties related to definitions and other procedural matters. However,       tions Utilities (DCTUs).
the commission recognizes the near impossible task of defin-
ing certain terms in the absence of specific facts surrounding                  (a) Validation information. Each DCTU shall make validation
the issues. The commission believes that the terms "complaint"           information (e.g., DCTU calling card numbers, whether an access line
and "generating" falls within that category. In that respect, the        is equipped with billed number screening, or whether an access line
commission believes that the review process established herein           is a pay telephone) available to any interexchange carrier requesting
would work to determine whether a DTCU has properly charac-              it on the same prices, terms, and conditions that the DCTU provides
terized and categorized a customer contact related to charges            the service to any other interexchange carrier. The DCTU may comply
                                                                         with the requirements of this paragraph by providing its own database,




                                                                  ADOPTED RULES March 15, 2002 27 TexReg 2013
making arrangements with another DCTU to provide the information,              Rhonda G. Dempsey
or making arrangements with a third-party vendor.                              Rules Coordinator
       (b) Billing and collection services. Each DCTU shall offer              Public Utility Commission of Texas
billing and collection services, pursuant to subsection (c) of this sec-       Effective date: March 20, 2002
tion, to any interexchange carrier requesting it on the same prices,           Proposal publication date: November 9, 2001
terms, and conditions that the DCTU provides the services to any other         For further information, please call: (512) 936-7308
interexchange carrier.
                                                                                                   ♦             ♦             ♦
        (c) Validation requirements. If validation information is avail-
able for calls that the interexchange carrier (or a third-party billing and    TITLE 25. HEALTH SERVICES
collection agent operating on behalf of the interexchange carrier) will
bill through the DCTU, the interexchange carrier is required to vali-          PART 1. TEXAS DEPARTMENT OF
date the call and is allowed to submit the call for billing only if the call
was validated. To insure that only validated collect calls are billed, the
                                                                               HEALTH
DCTU shall:                                                                    CHAPTER 31. NUTRITION SERVICES
           (1) Establish edits in the DCTU’s current billing system to         SUBCHAPTER C. SPECIAL SUPPLEMENTAL
insure that calls less than five minutes in duration, and total charges for
that call exceed $35, are not billed; or                                       NUTRITION PROGRAM FOR WOMEN,
          (2) For charges that appear on the retail consumer’s                 INFANTS, AND CHILDREN (WIC)
monthly billing statement, establish internal processes to track retail        25 TAC §§31.21, 31.30, 31.32 - 31.37
consumer complaints for each billing month for each third party entity.
For any third party entity with complaints that exceed a threshold of          The Texas Department of Health (department) adopts amend-
0.5% of all records billed for the billing month in which the report is        ments to §§31.21, 31.30, and 31.32-31.37 concerning the Spe-
generated, the DCTU shall initiate a proceeding with the commission            cial Supplemental Nutrition Program for Women, Infants, and
to determine whether the billing and collection agreement should be            Children (WIC). Sections 31.30, 31.32, 31.33, 31.34, and 31.36
terminated by commission order. In conjunction with the internal               are adopted with changes to the proposed text as published in
tracking procedures, the DCTU will establish a random, periodic,               the October 5, 2001, issue of the Texas Register (26 TexReg
unannounced audit process whereby the DCTU will audit messages.                7750). Sections 31.21, 31.35, and 31.37 are adopted without
The audited carrier will be required to provide the DCTU the necessary         changes, and therefore the sections will not be republished.
audit data in a form consistent with DCTU capabilities. The fact               The United States Department of Agriculture (USDA) provides
an audit has or has not been conducted and/or the DCTU has not                 federal grant funds to the department to administer the WIC Pro-
previously questioned the charges at issue does not constitute approval        gram, provided the department does so in accordance with fed-
or endorsement of charges by the DCTU; and                                     eral regulations. The WIC Program is 100% funded by a com-
            (3) The DCTU shall implement a public education cam-               bination of federal grant funds and monies received from infant
paign to advise customers of the responsibilities and obligations as-          cereal and formula manufacturers in the form of rebates to the
sociated with accepting collect telephone calls. The public education          department. Rebate monies are considered dedicated general
campaign must also inform customers of the DCTU’s policies and pro-            revenue and can only be expended to offset WIC food costs.
cedures for contesting unauthorized collect call charges. A DCTU ful-          Costs to the state for implementing these rules will be paid for by
fills this requirement if it publishes such information in the customer        federal funds.
rights section of the white page directory.                                    The amendments to §§31.21, 31.30, and 31.32-31.36 are re-
      (d) Request to access another carrier. If a DCTU receives a              quired to implement new federal regulations governing the WIC
request from a caller to access another carrier, the DCTU shall, using         Program. The amendment to §31.37 will enable the program
the same prices, terms, and conditions for all carriers, either:               to respond in a more timely, efficient, and flexible manner to
                                                                               changes in packaging of WIC-issued foods by manufacturers
            (1) transfer the caller to the caller’s carrier of choice if fa-   and to changes in allowable foods requested by vendors and
cilities that allow such transfer are available and if such transfer is oth-   clients.
erwise allowed by law; or
                                                                               The department is making the following minor changes to clarify
           (2) instruct the caller how to access the caller’s carrier of       the intent and improve the accuracy of the section.
choice if that carrier has provided the DCTU with the information re-
ferred to in §26.319(2) of this title (relating to Access to the Operator      Change: Concerning §31.30(a), the conjunction "or" has been
of a Local Exchange Company (LEC)).                                            added to improve the clarity of the section.
This agency hereby certifies that the adoption has been reviewed               Change: Concerning §31.30(e), the Investigation section for-
by legal counsel and found to be a valid exercise of the agency’s              merly attached to the Office of General Counsel has been re-
legal authority.                                                               organized and redesignated the department’s Office of Criminal
                                                                               Investigations.
Filed with the Office of the Secretary of State on February 28,                Change: Concerning §31.30(f), the Investigation section
2002.                                                                          formerly attached to the Office of General Counsel has been
                                                                               reorganized and redesignated the department’s Office of
TRD-200201254
                                                                               Criminal Investigations.




27 TexReg 2014 March 15, 2002 Texas Register
Change: Concerning §31.36(a), the conjunction "and" has                     Federal or State statutes, regulations, rules, policies or procedures gov-
been moved from the beginning of §31.36(a)(3) to the end of                 erning the WIC Program. Violations include, but are not limited to, in-
§31.36(a)(2).                                                               tentionally making a false or misleading statement; intentionally mis-
                                                                            representing, concealing, or withholding facts to obtain benefits; ex-
The following public comments were received concerning the
                                                                            changing food instruments or food for cash, credit, non-food items,
proposed amendments to the rules. Following each comment
                                                                            or unauthorized foods, including foods in excess of that authorized;
is the department’s response and any resulting changes.
                                                                            threatening to harm or physically harming local agency, vendor or state
Comment: Concerning §31.32(h)(1)(D), one commenter sug-                     agency staff; and simultaneous participation in the Program in one or
gested the required advance notice for a vendor to notify the               more than one WIC clinic or participation in the Commodity Supple-
state agency of the opening of a new store should be less than 30           mental Food Program during the same period of time
days. The commenter added that a 30-day advance notice was
                                                                                   (d) If prosecution is declined by the appropriate jurisdiction,
not fair to WIC clients using the services in that area because
                                                                            the violation does not involve a violation of criminal law, or final dispo-
a vendor may not always know a new store’s opening date 30
                                                                            sition of criminal prosecution has occurred the state agency shall direct
days in advance and may change the date depending on several
                                                                            the local agency to initiate sanctions which may include disqualifica-
factors.
                                                                            tion from the Program for up to one year.
Response: The department agrees and has deleted the specific
                                                                                   (e) Upon a final determination by the department’s Office of
30-day timeframe from the advance notice requirement.
                                                                            Criminal Investigations that a program violation has occurred and that
Comment: Concerning §31.33(c)(1) and §31.33(c)(2), one com-                 final disposition of any criminal prosecution has occurred, the follow-
menter suggested that these sections are already covered in fed-            ing mandatory disqualifications shall apply.
eral WIC regulations and are therefore unnecessary.
                                                                                      (1) For an offense where a claim of $100 or more is as-
Response: The department agrees and deleted the paragraphs.                 sessed, the participant shall be disqualified for one year.
Comment: Concerning §31.34, one commenter pointed out that                            (2) For an offense where a participant illegally received
federal regulations authorize the department to issue warnings              benefits at more than one WIC office and the state agency assesses a
to vendors who fail to meet competitive pricing criteria prior to           claim for such dual participation, the participant shall be disqualified
terminating the vendor’s contract, and suggested that the de-               for one year.
partment should do so.
                                                                                      (3) When the state agency assesses a second or subsequent
Response: The department agrees and added language to al-                   claim of any amount, the participant shall be disqualified for one year.
low the department to conduct a preliminary review of a ven-
                                                                                    (f) Upon a final determination by the department’s Office of
dor’s compliance with competitive pricing criteria and to issue a
                                                                            Criminal Investigations that a program violation which does not war-
warning if the preliminary review indicates noncompliance. The
                                                                            rant a one year mandatory disqualification has occurred and final dispo-
amended section requires that if a subsequent review indicates
                                                                            sition of any criminal prosecution has occurred, the following sanctions
noncompliance, the vendor’s contract shall be terminated.
                                                                            shall apply.
The commenters were the USDA Food and Nutrition Service and
                                                                                      (1) When a participant or a parent, guardian, client-desig-
the Gulf Coast Retailers Association. The commenters were not
                                                                            nated proxy, state agency-appointed proxy, or caretaker of a participant
against the rules in their entirety, but made recommendations for
                                                                            exchanges food instruments or food for cash or credit, the participant
change as discussed in the summary of comments.
                                                                            shall be disqualified for a period of six months for a first offense and
The amendments to the rules are adopted under Health and                    12 months for a second or subsequent offense.
Safety Code, §12.001, which provides the Texas Board of Health
                                                                                      (2) When a participant or a parent, guardian, client-desig-
(board) with the authority to adopt rules for the performance of
                                                                            nated proxy, state agency-appointed proxy, or caretaker of a participant
every duty imposed by law on the board, the department, and the
                                                                            exchanges food instruments or food for firearms, explosives, ammuni-
commissioner of health; the Texas Omnibus Hunger Act of 1985,
                                                                            tion, controlled substances, alcohol, or tobacco products, the partici-
69th Legislature, Chapter 150, Title II, Human Resources Code,
                                                                            pant shall be disqualified for a period of six months for a first offense
Chapter 33; the Child Nutrition Act of 1966, 42 USC §1786; and
                                                                            and 12 months for a second or subsequent offense.
7 CFR Part 246.
                                                                                      (3) When a participant or a parent, guardian, client-desig-
§31.30. Participant Fraud and Abuse.
                                                                            nated proxy, state agency-appointed proxy, or caretaker of a partici-
       (a) Participants and parents, guardians, client-designated           pant exchanges food instruments or food for non-food items not listed
proxies, state agency- appointed proxies, or caretakers of participants     in §31.30(f)(2), the participant shall receive a warning for the first of-
identified and documented as having abused the WIC Program shall            fense and shall be disqualified for a period of 12 months for a second
be sanctioned.                                                              or subsequent offense.
       (b) In all cases where it is found by the state agency that a par-             (4) When a participant or a parent, guardian, client-desig-
ticipant or parent, guardian, client-designated proxy, state agency-ap-     nated proxy, state agency-appointed proxy, or caretaker of a participant
pointed proxy, or caretaker of a participant unlawfully received benefits   exchanges food instruments or food for unauthorized food including
due to WIC Program abuse, including but not limited to dual partici-        foods in excess of that authorized, the participant shall receive a warn-
pation, the state agency has the option to refer the matter for criminal    ing for the first offense to and shall be disqualified for a period of 12
prosecution.                                                                months for a second or subsequent offense.
       (c) Program violations means any intentional act of a partic-                  (5) When a participant or a parent, guardian, client-desig-
ipant, parent, guardian or caretaker of an infant or child participant,     nated proxy, state agency-appointed proxy, or caretaker of a participant
client-designated proxy or state agency-designated proxy that violates




                                                                     ADOPTED RULES March 15, 2002 27 TexReg 2015
threatens to harm local agency, vendor, or state agency staff, the partic-             (2) The state or local agency representative shall recom-
ipant shall be disqualified for a period of six months for a first offense   mend approval or disapproval of the vendor’s application based on the
and 12 months for a second or subsequent offense.                            observations during the store visit.
          (6) When a participant or a parent, guardian, client-desig-                    (3) The owner or manager or a store representative shall
nated proxy, state agency-appointed proxy, or caretaker of a participant     have the opportunity to review the information on the vendor evaluation
physically harms local agency, vendor, or state agency staff, the partic-    form and shall sign the form to acknowledge accuracy of shelf prices
ipant shall be disqualified for a period of 12 months for a first offense    listed at the time of the evaluation. The evaluator shall provide a copy
and 12 months for a second or subsequent offense.                            of the form, including the date, local agency number, and the name of
                                                                             the evaluator, to the vendor at the time of the in-store evaluation.
      (g)   Exceptions to disqualification:
                                                                                   (b) The state agency shall base its decision to authorize a ven-
           (1) The state agency may decide not to impose a disqual-
                                                                             dor on the following criteria:
ification if, for violations which resulted in a claim assessed by the
state agency against the participant, parent, guardian, client designated              (1) The vendor’s shelf prices for approved WIC foods in
proxy, state agency-appointed proxy, or caretaker of a participant, full     stock are competitive for the local agency area.
restitution is made within 30 days of receipt of a letter demanding re-
                                                                                       (2) The vendor has sufficient quantities of authorized milk,
payment or a repayment schedule is agreed on.
                                                                             evaporated milk, cheese, cereal, contract infant formula, contract infant
           (2) The state agency may permit a disqualified participant        cereal, eggs, peanut butter, and dried beans.
to reapply for the program before the end of a disqualification period
                                                                                          (A) pharmacy may elect to provide only the designated
if, in the case of a violation where a claim was assessed by the state
                                                                             contract milk and soy formulas and special formulas.
agency against the participant or parent, guardian, client-designated
proxy, state-agency appointed proxy, or caretaker of a participant, full                   (B) A vendor may elect not to provide infant formula.
restitution is made or a repayment schedule is agreed upon.
                                                                                           (C) For vendors who elect to provide all authorized
           (3) At the recommendation of the local agency’s competent         foods, the following amounts of each food type shall constitute
professional authority, the state agency may issue a waiver to appoint a     sufficient quantities:
person as a special proxy to transact food instruments and receive nu-
                                                                                              (i) a total of at least 108 ounces of adult cereal, in-
trition education for an infant, child, or participant under age 18 when
                                                                             cluding 36 ounces each of at least three of the following types of cereal:
the infant, child, or participant under age 18 will incur a serious health
                                                                             oat, corn, wheat, rice, and multi-grain;
risk from the suspension of benefits.
                                                                                              (ii) at least six dozen Grade A or AA large, medium,
       (h) The state agency shall attempt to recover, in cash, the value
                                                                             or small size eggs;
of the benefits received by a participant or the parent, guardian, client-
designated proxy, state agency-appointed proxy or caretaker of a par-                          (iii) a total of at least 18 containers of juice, includ-
ticipant as a result of participant abuse.                                   ing at least two varieties of juice in 46-ounce fluid cans and/or 12-ounce
                                                                             frozen cans;
          (1) The state agency shall determine the amount of the ben-
efits improperly received by a participant through an independent re-                            (iv) a total of at least six pounds of cheese;
view of local agency records and such other procedures as the state
                                                                                            (v) a total of at least nine gallons of milk, some of
agency considers necessary under the specific circumstances.
                                                                             which must be available in one-half gallon containers;
          (2) In cases involving criminal prosecutions for violations
                                                                                                 (vi) at least three one-pound bags of dry beans;
of law, repayment of the cash value of benefits improperly received
shall become a part of any restitution agreement with the prosecutor.                            (vii) at least three 18-ounce jars of peanut butter;
In such cases, the participant shall not have the right to a fair hearing
                                                                                                 (viii)    at least eight 12-ounce cans of evaporated
by the department.
                                                                             milk;
           (3) In cases involving an administrative claim but no crim-
                                                                                             (ix) at least 31 cans of milk or soy concentrate infant
inal prosecution, the state agency shall notify the participant or parent,
                                                                             formula (contract brand) and either eight cans of milk-based powder
caretaker, or guardian of a participant in writing that a financial claim
                                                                             formula or nine cans of soy powder formula (contract brand); and
has been established and shall request repayment of an amount equal
to the value of the benefits improperly received. The written notifica-                          (x)      at least two 8-ounce boxes or one 16-ounce box
tion shall include the reasons for the claim, the value of the benefits      of infant cereal.
improperly received, and the participant’s right to a fair hearing.
                                                                                       (3) The vendor provides milk in gallon and half-gallon con-
       (i) Collection of a financial claim assessed against a participant    tainers and juice in 46-ounce or 12-ounce containers.
by offset of future benefits is not authorized.
                                                                                       (4) The vendor’s shelf prices do not exceed the maximum
§31.32. Selection of Vendors for WIC Initial Authorization for Par-          prices on WIC food instruments.
ticipation.
                                                                                       (5) The recommendation by the state or local agency rep-
      (a) A representative from the state agency or the nearest local        resentative who conducted the on-site evaluation.
agency shall perform an on-site evaluation of a vendor applying for                    (6) The vendor has a retail food operations permit or food
authorization to redeem WIC food instruments.                                manufacturer’s permit from the applicable city, county, district, or state
         (1) The state or local agency representative shall complete         health authority.
a vendor evaluation form during the visit to the vendor indicating the                 (7) The vendor’s store is clean, with fresh merchandise (no
type of WIC-authorized foods in stock and their shelf prices.                expired food items).




27 TexReg 2016 March 15, 2002 Texas Register
          (8) The vendor has no apparent conflict of interest with the                     (A) The owner of the applicant store owns ten or more
local agency in the vendor’s service area or with the state agency.          stores that have been participating in the WIC Program under the cur-
                                                                             rent ownership for at least the six-month period prior to application for
            (9)    The vendor has posted prices for food items.
                                                                             authorization.
        (10) If applicable, the vendor’s history of WIC Program
                                                                                            (B) For the six month period prior to application for au-
noncompliance.
                                                                             thorization, fewer than 20% of the applicant’s participating stores’ au-
           (11) The vendor has business integrity as indicated by a          thorizations have been terminated for exceeding the competitive pricing
lack of activities during the past six years including fraud, antitrust      criteria for either the woman/child package or the infant food package
violations, embezzlement, theft, forgery, bribery, falsification or de-      for their respective local agency vendor bands.
struction of records, making false statements, receiving stolen property,
                                                                                          (C) None of the participating stores has been disqual-
making false claims, obstruction of justice, or tax evasion.
                                                                             ified from program participation for two or more months within the
          (12) The vendor is not currently disqualified from the Food        12-month period prior to application for authorization.
Stamp Program or has not been assessed a civil money penalty for hard-
                                                                                           (D) The applicant store notifies the state agency prior to
ship by the Food Stamp Program and the disqualification period that
                                                                             the official opening date.
would otherwise have been imposed by the Food Stamp Program has
not expired unless denying WIC Program authorization would result in                       (E) The applicant store’s manager or assistant manager
inadequate participant access.                                               acknowledges receipt and understanding of the vendor agreement in-
                                                                             cluding its attachments, training materials and manuals, the allowable
          (13) The vendor operates and will transact food instru-
                                                                             foods list, and vendor rules and policies.
ments at a fixed location unless a mobile store is necessary to meet
special needs as described in the state agency’s state plan and approved                   (F) The applicant store’s manager or assistant manager
by USDA.                                                                     has scored at least 70% on a written test provided by the state agency
                                                                             and returned to the state agency no later than five days prior to the
            (14)    The vendor has participated in vendor interactive
                                                                             applicant store’s opening date.
training.
                                                                                        (2) If, after evaluation, a store which has received tentative
       (c) If the state agency disapproves the application by a vendor
                                                                             authorization from the state agency does not meet all authorization cri-
for authorization, the reasons for the disapproval shall be provided to
                                                                             teria, the store shall be notified of its tentative agreement expiration
the vendor in writing.
                                                                             date and instructed to discontinue redeeming the WIC Program food
       (d) Vendors who apply for authorization who have been eval-           instruments. The state agency shall honor properly redeemed food in-
uated twice within a six-month period and denied approval both times         struments from the opening date until the tentative agreement expira-
shall not be evaluated again until at least six months from the last eval-   tion.
uation.
                                                                                   (i) On a temporary basis, the state agency may consider and
       (e) In the event a vendor purchases or acquires a store location      approve applications from new vendors for the following reasons:
or business which was in the process of being disqualified or which is
                                                                                        (1)   the vendor has been authorized to accept Food Stamps;
disqualified from the WIC Program at the time of acquisition, the ven-
dor’s application for that store location or business shall not be consid-             (2) the disqualification of an existing authorized vendor in
ered until the state agency makes a determination that the sale was a        a local agency service area would create inadequate access for WIC
bona fide arms-length transaction. The state agency will make this de-       Program participants;
termination no later than six months from the date of application. If the
                                                                                        (3)   a currently-authorized vendor outlet(s) changes owner-
state agency determines that the transfer was not an arms-length trans-
                                                                             ship; or
action, the application shall not be considered until the disqualification
period has been served.                                                                 (4) authorization of a new vendor would result in a signif-
                                                                             icant cost advantage to the WIC Program.
       (f) If the state agency has allowed the vendor agreement for a
previous owner of a store location or business to expire for noncompli-            (j) The state agency may deny an application to participate as
ance or notified the previous owner that the vendor agreement for the        a vendor if an owner, partner, principal stockholder, officer, director,
store location or business will be allowed to expire for noncompliance,      manager, or operator of the applicant was an owner, partner, principal
a new owner’s application for that store location or business shall not      stockholder, officer, director, manager, or operator of another vendor
be considered until at least six months from the expiration date of the      which has been disqualified or which has violated WIC Program vendor
previous owner’s last vendor agreement unless the state agency makes         agreement procedures, policies, rules or regulations.
an earlier determination that the sale was a bona fide arms-length trans-
                                                                                    (k) The state agency may hold an authorized vendor individu-
action.
                                                                             ally responsible for previous violations by an owner, partner, manager,
       (g) The state agency may waive the requirement for an on-site         or principal stockholder of the vendor when considering renewal of the
evaluation when a grocery chain comprising 20 or more outlets autho-         vendor’s agreement or future applications for vendor agreements.
rized to participate in the WIC Program purchases or merges with an-
                                                                                    (l) A history of noncompliance with the WIC Program’s fed-
other chain with 20 or more authorized outlets if the merger or purchase
                                                                             eral and state statutes and regulations, rules, policies, and procedures
does not materially change the stores’ staff or pricing structure
                                                                             shall be considered by the state agency when evaluating an authorized
       (h) Upon request, the state agency may provide an applicant           vendor’s application for authorization of new outlets. The state agency
vendor with tentative authorization to redeem WIC food instruments           will not authorize new outlets for a vendor where 50% of the vendor’s
starting the day the store opens.                                            outlets are in a disqualification or termination status at the time of a
                                                                             request to authorize new outlets.
          (1) To obtain tentative authorization, the vendor shall com-
ply with all of the following criteria:                                      §31.33. Selection of Vendors for Reauthorization for Participation.



                                                                      ADOPTED RULES March 15, 2002 27 TexReg 2017
       (a) Vendors with a current vendor agreement who seek reau-                      (1) The state agency data system calculates by vendor out-
thorization shall reapply and shall be evaluated for issuance of a sub-     let the average unit costs to the state agency for each food type based
sequent vendor agreement under WIC Program procedures, policies,            on the food instruments redeemed by that vendor outlet.
rules, and regulations and shall be reauthorized unless notified in writ-
                                                                                      (2) Authorized vendor outlets within a local agency service
ing by the state agency at least 15 days before expiration of the vendor
                                                                            area are grouped into volume vendor bands.
agreement.
                                                                                      (3) Utilizing food-type averages for each vendor outlet
       (b) Prior to reauthorization, the state agency shall assess and
                                                                            within a vendor band, the state agency determines the local agency av-
review the qualifications of all vendors to assure that each continues
                                                                            erage standard food package costs for an infant and/or a woman/child
to meet the WIC Program’s goals. Criteria utilized in assessment and
                                                                            participant for each vendor band.
determination of qualifications for reauthorization include, but are not
limited to.                                                                           (4) A vendor outlet’s average standard food package costs
                                                                            are determined based on the store evaluation for an applicant vendor or
           (1) Competitive prices for the local agency area. A ven-
                                                                            actual WIC redemption data for authorized vendors.
dor’s prices shall be considered competitive if the combined prices
for the items included in the standard woman/child and/or infant food                  (5) The state agency compares the vendor outlet’s standard
package do not exceed 108% of the local agency food package aver-           food package costs to the local agency’s average standard food package
ages for the vendor’s band.                                                 costs for that vendor band. Local agency averages for a prior period
                                                                            will be used. An outlet’s standard food package costs are considered
           (2) Volume of WIC sales. The vendor’s volume of WIC
                                                                            competitive if they are less than or equal to 108% of the local agency’s
sales exceeds $300 a month. If monthly sales fall below $300 a month
                                                                            average standard food package costs for that vendor band.
for three consecutive months prior to the time of the vendor agreement
reauthorization evaluation, the vendor agreement may not be renewed.                 (6) The state agency may make adjustments to the local
                                                                            agency averages due to anomalies, such as those caused by sharp
           (3) Previous compliance with WIC Program procedures,
                                                                            wholesale price increases or crop failures since the prior period in
policies, rules, and regulations. The vendor has satisfactorily complied
                                                                            which the averages were calculated.
with food instrument redemption and submission procedures, policies,
rules, and regulations.                                                               (7) The state agency may reassign a vendor to an alternative
                                                                            comparison group when the vendor, such as a high-volume, national
          (4) Continuing to meet selection criteria. The vendor con-
                                                                            discount superstore, is not characteristic of other vendors in the band;
tinues to meet the selection criteria as stated in this section and in
                                                                            when the vendor is the only store in a rural area within the local agency;
§31.32 of this title (related to Selection of Vendors for WIC Initial Au-
                                                                            or when the vendor is the sole occupant of a band.
thorization for Participation).
                                                                                   (b) The state agency may perform a preliminary review of the
           (5) Use of the WIC acronym or WIC logo. If the state
                                                                            vendor’s compliance with competitive pricing at any time during the
agency determines that the vendor failed to comply with the prohibi-
                                                                            term of the vendor agreement. The state agency shall provide a non-
tions on the use of the WIC acronym or WIC logo, after having received
                                                                            compliant vendor with written notification of noncompliance deter-
a written warning, the state agency shall allow the vendor agreement to
                                                                            mined from the preliminary review. If, on a subsequent assessment
expire without renewal.
                                                                            within the term of the vendor agreement, the noncompliant vendor fails
          (6) Failure to attend training. The vendor agreement shall        to comply with competitive pricing, the state agency shall provide a
not be renewed if a vendor or vendor representative has not attended a      vendor with written notification of noncompliance with competitive
WIC vendor interactive training within three years from the last date a     pricing and the vendor agreement shall be terminated.
representative attended a WIC vendor interactive training.
                                                                            §31.36. The Right of a Vendor or Local Agency to Appeal.
       (c) A history of noncompliance with WIC Program pro-
cedures, policies, rules, and regulations shall be considered by the               (a) A local agency or vendor has the right to appeal when an
state agency in determining if the vendor is eligible for a subsequent      application for participation is denied and/or any other adverse action
contract.                                                                   affecting participation is taken. The only exceptions to this rule are:

       (d) The state agency may allow a vendor’s agreement to expire                  (1)   expiration of the vendor agreement or local agency con-
and not be renewed if the vendor has a history of noncompliance with        tract;
provisions in the vendor agreement or the WIC Program procedures,                     (2) disqualification of a vendor as a result of disqualifica-
policies, rules, and/or regulations.                                        tion from the Food Stamp Program; and
          (1)   Expiration of the vendor agreement is not subject to ap-              (3) a determination by the state agency WIC Program con-
peal.                                                                       cerning whether disqualification of a vendor would result in inadequate
          (2) In the event the vendor’s agreement has been allowed          participant access.
to expire due to previous noncompliance, a vendor’s request for reau-               (b) The state agency shall provide a local agency or vendor
thorization shall not be considered until at least six months from the      with written notification of an adverse action, the cause(s) for the ac-
expiration date of the vendor’s last agreement.                             tion, the effective date of the action, and the right to appeal the adverse
       (e) All vendors must have a retail food operation permit or          action.
food manufacturers’ permit from the applicable city, county, district,             (c) The state agency shall provide a local agency notice of dis-
or state health authority.                                                  qualification at least 60 days prior to the effective date.
§31.34. Calculation and Use of Vendor Competitive Pricing Data.                    (d) The state agency shall provide a vendor notice of an ad-
      (a) The state agency shall use the following calculation to de-       verse action at least 15 days prior to the effective date of the action ex-
termine whether a vendor’s prices are competitive with those of similar     cept when the adverse action results from conviction for trafficking in
vendors in the local agency service area.



27 TexReg 2018 March 15, 2002 Texas Register
food instruments or selling firearms, ammunition, explosives, or con-        Filed with the Office of the Secretary of State on February 25,
trolled substances in exchange for food instruments, which is effective
                                                                             2002.
on receipt of the notice.
                                                                             TRD-200201173
      (e) A local agency or vendor shall provide the state agency
                                                                             Susan K. Steeg
with a written request for a hearing within 15 days of the receipt of
                                                                             General Counsel
the notice of denial or adverse action. The written request shall, at a
minimum, describe the action being appealed.                                 Texas Department of Health
                                                                             Effective date: April 1, 2002
        (f) When a participating local agency appeals an adverse ac-         Proposal publication date: November 5, 2001
tion, the adverse action shall be postponed until a hearing decision is
                                                                             For further information, please call: (512) 458-7236
reached.
       (g) When a vendor appeals an adverse action, the adverse ac-                              ♦             ♦             ♦
tion may be postponed until a hearing decision is reached at the discre-
tion of the state agency WIC Program.
                                                                             CHAPTER 289. RADIATION CONTROL
       (h) Appealing an adverse action does not relieve a local agency
                                                                             SUBCHAPTER D. GENERAL
or a vendor permitted to continue participating in the program while an      25 TAC §289.202
appeal is pending from the obligation of continued compliance with the
terms of the written agreement or contract with the state agency.            The Texas Department of Health (department) adopts an
                                                                             amendment to §289.202 concerning the standards for protec-
       (i) The state agency shall provide the local agency or vendor         tion against radiation from radioactive material with changes to
the following:                                                               the proposed text as published in the December 14, 2001, issue
          (1) at least ten days advance notice of the time and place         of the Texas Register (26 TexReg 10217).
for the hearing;                                                             The revision allows disposal, without regard to its radioactivity, of
          (2)   the opportunity to reschedule the hearing one time;          certain concentrations of americium-241 in emission control dust
                                                                             as a result of unintentional melting of a radioactive source in elec-
          (3) the opportunity to review all written case records prior       tric arc furnaces or foundries. When the specific handling, treat-
to the hearing;                                                              ment, transport, and radiation dose conditions of the proposed
          (4)   the opportunity to be represented by counsel if desired;     amendment are met, the contaminated material is required to
                                                                             be managed as a hazardous waste rather than a mixed waste.
          (5)   the opportunity to call witnesses;                           The amendment provides a safe additional disposal option for a
          (6) the opportunity to confront and cross-examine adverse          very limited category of material that would otherwise be con-
witnesses except that such examination shall be conducted behind a           sidered mixed waste. Language that was adopted in the July 3,
protective screen or other device when necessary to protect the identity     1998 (23 TexReg 6960) issue of the Texas Register and was in-
of WIC Program monitors;                                                     advertently omitted during the 2000 adoption submission in May
                                                                             26, 2000, (25 TexReg 4834) issue of the Texas Register is being
          (7) an impartial decision-maker who will prepare a written         reinstated in §289.202(ff)(2)(J)-(L) and (3). An additional revi-
decision based solely on whether the state agency has correctly applied      sion addresses a licensee’s responsibility to record summaries
federal and state statutes, regulations, rules, policies and procedures      of annual dosimetry information on monitored individuals. The
governing the program according to the evidence presented at the hear-       amendment changes the time frame from within 60 days of the
ing; and                                                                     end of the year to April 30 of the following year to complete the
           (8) written notification of the final decision within 90 days     records. The revised requirement will allow companies and facil-
from the date of receipt of the request for a hearing by a vendor and        ities with large numbers of monitored employees a more realistic
within 60 days from the date of receipt of a local agency’s request for      time frame to comply with the requirement. This amendment is
a hearing. These timeframes are only administrative requirements for         also part of the department’s continuing effort to update, clar-
the state agency and do not provide a basis for overturning the state        ify, and simplify its rules regarding the control of radiation based
agency’s adverse action if a decision is not made within the specified       upon technological advances, public concerns, legislative direc-
timeframes.                                                                  tives, or other factors.

       (j) The state agency is not responsible for losses incurred by        Government Code §2001.039 requires that each state agency
the local agency or vendor as a result of disqualification and/or denial     review and consider for readoption each rule adopted by that
of an application to participate.                                            agency pursuant to the Government Code, Chapter 2001 (Ad-
                                                                             ministrative Procedure Act). Section 289.202 has been reviewed
       (k) If the hearing results in a final decision adverse to the local   and the department has determined that the reasons for adopt-
agency or vendor, the appellant may seek judicial review of the deci-        ing the section continue to exist; however, revisions to the rule
sion to the extent authorized by state law. The state agency or its legal    were necessary.
counsel shall not provide legal advice to adverse parties concerning ju-
dicial review of final decisions in administrative hearings. Appellants      The department published a Notice of Intention to Review for
must seek advice from their own attorneys.                                   §289.202 as required by Government Code §2001.039 in the
                                                                             Texas Register (26 TexReg 8197) on October 12, 2001. No com-
This agency hereby certifies that the adoption has been reviewed             ments were received by the department on this section.
by legal counsel and found to be a valid exercise of the agency’s
legal authority.                                                             The department received no public comments during the com-
                                                                             ment period for these amendments. However, the department
                                                                             is making the following changes due to staff comments to clarify
                                                                             the intent and improve the accuracy of the section.



                                                                      ADOPTED RULES March 15, 2002 27 TexReg 2019
Change: Concerning proposed §289.202(ff)(2)(G) and (I), the                 organ or tissue. ALI values for intake by ingestion and by inhalation
scientific notation 3 pCi/g is stated incorrectly. The department           of selected radionuclides are given in Columns 1 and 2 of Table I of
changed the notation from 3 pCi/gm to 3 pCi/g.                              subsection (ggg)(2) of this section.
Change: Concerning proposed §289.202(ff)(3)-(5), these                                (2) Class--A classification scheme for inhaled material ac-
requirements specifically concern emission control and should               cording to its rate of clearance from the pulmonary region of the lung.
be subparagraphs under paragraph (2). The paragraphs in                     Materials are classified as D, W, or Y, which apply to a range of clear-
this subsection were renumbered. Change is reflected in                     ance half-times: for Class D, Days, of less than 10 days; for Class W,
§289.202(ff)(2)(J) through §289.202(ff)(3).                                 Weeks, from 10 to 100 days, and for Class Y, Years, of greater than 100
                                                                            days. For purposes of this section, lung class and inhalation class are
The amendment is adopted under the Health and Safety Code,
                                                                            equivalent terms.
§401.051, which provides the Texas Board of Health (board) with
the authority to adopt rules and guidelines relating to the control                    (3) Declared pregnant woman--A woman who has volun-
of radiation; and §12.001, which provides the board the author-             tarily informed the licensee, in writing, of her pregnancy and the es-
ity to adopt rules for its procedures and for the performance of            timated date of conception. The declaration remains in effect until
each duty imposed by law on the board, the department, or the               the declared pregnant woman voluntarily withdraws the declaration in
commissioner of health.                                                     writing or is no longer pregnant.
§289.202. Standards for Protection Against Radiation from Radioac-                    (4) Derived air concentration (DAC)--The concentration of
tive Materials.                                                             a given radionuclide in air that, if breathed by Reference Man for a
      (a) Purpose.                                                          working year of 2,000 hours under conditions of light work, results
                                                                            in an intake of 1 ALI. For purposes of this section, the condition of
          (1) This section establishes standards for protection against
                                                                            light work is an inhalation rate of 1.2 cubic meters of air per hour for
ionizing radiation resulting from activities conducted in accordance
                                                                            2,000 hours in a year. DAC values are given in Column 3 of Table I of
with licenses issued by the agency.
                                                                            subsection (ggg)(2) of this section.
          (2) The requirements in this section are designed to control
                                                                                       (5) Derived air concentration-hour (DAC-hour)--The prod-
the receipt, possession, use, and transfer of sources of radiation by any
                                                                            uct of the concentration of radioactive material in air, expressed as a
licensee so the total dose to an individual, including doses resulting
                                                                            fraction or multiple of the derived air concentration for each radionu-
from all sources of radiation other than background radiation, does not
                                                                            clide, and the time of exposure to that radionuclide, in hours. A licensee
exceed the standards for protection against radiation prescribed in this
                                                                            may take 2,000 DAC-hours to represent ALI, equivalent to a commit-
section. However, nothing in this section shall be construed as limiting
                                                                            ted effective dose equivalent of 5 rems (0.05 Sv).
actions that may be necessary to protect health and safety in an emer-
gency.                                                                                (6) Dosimetry processor--A registrant that processes and
                                                                            evaluates personnel monitoring devices in order to determine the ra-
      (b)   Scope.
                                                                            diation dose delivered to the monitoring devices.
           (1) Except as specifically provided in other sections of this
                                                                                      (7)   Inhalation class (see definition for Class).
chapter, this section applies to persons who receive, possess, use, or
transfer sources of radiation, unless otherwise exempted. No person                   (8)   Lung class (see definition for Class).
may use, manufacture, produce, transport, transfer, receive, acquire,
                                                                                      (9) Nonstochastic effect--A health effect, the severity of
own, possess, process, or dispose of sources of radiation unless that
                                                                            which varies with the dose and for which a threshold is believed to
person has a license or exemption from the agency. The dose limits
                                                                            exist. Radiation-induced cataract formation is an example of a non-
in this section do not apply to doses due to background radiation, to
                                                                            stochastic effect. For purposes of this section, deterministic effect is an
exposure of patients to radiation for the purpose of medical diagno-
                                                                            equivalent term.
sis or therapy, to exposure from individuals administered radioactive
material and released in accordance with this chapter, or to voluntary                 (10) Planned special exposure--An infrequent exposure to
participation in medical research programs. However, no radiation may       radiation, separate from and in addition to the annual occupational dose
be deliberately applied to human beings except by or under the super-       limits.
vision of an individual authorized by and licensed in accordance with
                                                                                       (11) Quarter--A period of time equal to one-fourth of the
Texas’ statutes to engage in the healing arts.
                                                                            year observed by the licensee, approximately 13 consecutive weeks,
           (2) Licensees who are also registered by the agency to re-       providing that the beginning of the first quarter in a year coincides with
ceive, possess, use, and transfer radiation machines must also comply       the starting date of the year and that no day is omitted or duplicated in
with the requirements of §289.231 of this title (relating to General Pro-   consecutive quarters.
visions and Standards for Protection Against Machine-Produced Radi-
                                                                                      (12) Reference man--A hypothetical aggregation of human
ation).
                                                                            physical and physiological characteristics determined by international
       (c) Definitions. The following words and terms when used in          consensus. These characteristics may be used by esearchers and public
this section shall have the following meaning, unless the context clearly   health employees to standardize results of experiments and to relatebi-
indicates otherwise.                                                        ological insult to a common base. A description of Reference Man is
                                                                            contained in the International Commission on Radiological Protection
          (1) Annual limit on intake (ALI)--The derived limit for the
                                                                            report, ICRP Publication 23, "Report of the Task Group on Reference
amount of radioactive material taken into the body of an adult worker
                                                                            Man."
by inhalation or ingestion in a year. ALI is the smaller value of intake
of a given radionuclide in a year by Reference Man that would result                   (13) Respiratory protective equipment--An apparatus, such
in a committed effective dose equivalent of 5 rems (0.05 sievert (Sv))      as a respirator, used to reduce an individual’s intake of airborne radioac-
or a committed dose equivalent of 50 rems (0.5 Sv) to any individual        tive materials.




27 TexReg 2020 March 15, 2002 Texas Register
            (14) Sanitary sewerage--A system of public sewers for car-                       (A) An annual limit shall be the more limiting of:
rying off waste water and refuse, but excluding sewage treatment facil-
                                                                                               (i) the total effective dose equivalent being equal to
ities, septic tanks, and leach fields owned or operated by the licensee
                                                                               5 rems (0.05 Sv); or
or registrant.
                                                                                                (ii) the sum of the deep dose equivalent and the com-
          (15) Stochastic effect--A health effect that occurs ran-
                                                                               mitted dose equivalent to any individual organ or tissue other than the
domly and for which the probability of the effect occurring, rather
                                                                               lens of the eye being equal to 50 rems (0.5 Sv).
than its severity, is assumed to be a linear function of dose without
threshold. Hereditary effects and cancer incidence are examples of                          (B) The annual limits to the lens of the eye, to the skin,
stochastic effects. For purposes of this section probabilistic effect is       and to the extremities shall be:
an equivalent term.
                                                                                                (i) a lens dose equivalent of 15 rems (0.15 Sv); and
          (16) Weighting factor wT for an organ or tissue (T)--The
                                                                                                (ii) a shallow dose equivalent of 50 rems (0.5 Sv) to
proportion of the risk of stochastic effects resulting from irradiation
                                                                               the skin or to any extremity.
of that organ or tissue to the total risk of stochastic effects when the
whole body is irradiated uniformly. For calculating the effective dose                    (2) Doses received in excess of the annual limits, includ-
equivalent, the values of wT are:                                              ing doses received during accidents, emergencies, and planned special
Figure: 25 TAC §289.202(c)(16) (No change.)                                    exposures, shall be subtracted from the limits for planned special expo-
                                                                               sures that the individual may receive during the current year and during
       (d)   Implementation.
                                                                               the individual’s lifetime. See subsection (k)(6)(A) and (B) of this sec-
          (1) Any existing license condition that is more restrictive          tion.
than this section remains in force until there is an amendment or re-
                                                                                         (3) The assigned deep dose equivalent and shallow dose
newal of the license that modifies or removes this condition.
                                                                               equivalent shall be for the portion of the body receiving the highest
          (2) If a license condition exempts a licensee from a provi-          exposure.
sion of this section in effect on or before January 1, 1994, it also ex-
                                                                                         (4) The deep dose equivalent, lens dose equivalent and
empts the licensee from the corresponding provision of this section.
                                                                               shallow dose equivalent may be assessed from surveys, calculations, or
           (3) If a license condition cites provisions of this section in      radiation measurements for the purpose of demonstrating compliance
effect prior to January 1, 1994, that do not correspond to any provisions      with the occupational dose limits, if the individual monitoring device
of this section, the license condition remains in force until there is an      was not in the region of highest potential exposure, or the results of
amendment or renewal of the license that modifies or removes this con-         individual monitoring are unavailable.
dition.
                                                                                          (5) Derived air concentration (DAC) and annual limit on
       (e)   Radiation protection programs.                                    intake (ALI) values are specified in Table I of subsection (ggg)(2) of
                                                                               this section and may be used to determine the individual’s dose and to
          (1) Each licensee shall develop, document, and implement
                                                                               demonstrate compliance with the occupational dose limits. See sub-
a radiation protection program sufficient to ensure compliance with
                                                                               section (rr) of this section.
the provisions of this section. See subsection (mm) of this section for
recordkeeping requirements relating to these programs. Documenta-                         (6) Notwithstanding the annual dose limits, the licensee
tion of the radiation protection program may be incorporated in the            shall limit the soluble uranium intake by an individual to 10 milligrams
licensee’s operating, safety, and emergency procedures.                        (mg) in a week in consideration of chemical toxicity. See footnote 3 of
                                                                               subsection (ggg)(2) of this section.
           (2) The licensee shall use, to the extent practicable, proce-
dures and engineering controls based upon sound radiation protection                     (7) The licensee shall reduce the dose that an individual
principles to achieve occupational doses and public doses that are as          may be allowed to receive in the current year by the amount of oc-
low as is reasonably achievable (ALARA).                                       cupational dose received while employed by any other person. See
                                                                               subsection (j)(4) of this section.
          (3) The licensee shall, at intervals not to exceed 12 months,
ensure the radiation protection program content and implementation is                (g) Compliance with requirements for summation of external
reviewed.                                                                      and internal doses.
            (4) To implement the ALARA requirement in paragraph                           (1) If the licensee is required to monitor in accordance with
(2) of this subsection and notwithstanding the requirements in subsec-         both subsection (q)(1) and (3) of this section, the licensee shall demon-
tion (n) of this section, a constraint on air emissions of radioactive mate-   strate compliance with the dose limits by summing external and inter-
rial to the environment, excluding radon-222 and its daughters, shall be       nal doses. If the licensee is required to monitor only in accordance with
established by licensees such that the individual member of the public         subsection (q)(1) of this section or only in accordance with subsection
likely to receive the highest dose will not be expected to receive a total     (q)(3) of this section, then summation is not required to demonstrate
effective dose equivalent in excess of 10 millirems (mrem) (0.1 mSv)           compliance with the dose limits. The licensee may demonstrate com-
per year from these emissions. If a licensee subject to this requirement       pliance with the requirements for summation of external and internal
exceeds this dose constraint, the licensee shall report the exceedance         doses in accordance with paragraphs (2)-(4) of this subsection. The
as required in subsection (yy) of this section and promptly take appro-        dose equivalents for the lens of the eye, the skin, and the extremities
priate corrective action.                                                      are not included in the summation, but are subject to separate limits.
       (f)   Occupational dose limits for adults.                                         (2) If the only intake of radionuclides is by inhalation, the
                                                                               total effective dose equivalent limit is not exceeded if the sum of the
          (1) The licensee shall control the occupational dose to indi-
                                                                               deep dose equivalent divided by the total effective dose equivalent limit,
viduals, except for planned special exposures in accordance with sub-
                                                                               and one of the following, does not exceed unity:
section (k) of this section, to the following dose limits.




                                                                        ADOPTED RULES March 15, 2002 27 TexReg 2021
            (A) the sum of the fractions of the inhalation ALI for                       (A) use that information to calculate the committed ef-
each radionuclide; or                                                       fective dose equivalent, and, if used, the licensee shall document that
                                                                            information in the individual’s record;
           (B) the total number of derived air concentration-hours
(DAC-hours) for all radionuclides divided by 2,000; or                                    (B) upon prior approval of the agency, adjust the DAC
                                                                            or ALI values to reflect the actual physical and chemical characteristics
              (C) the sum of the calculated committed effective dose
                                                                            of airborne radioactive material, for example, aerosol size distribution
equivalents to all significantly irradiated organs or tissues (T) calcu-
                                                                            or density; and
lated from bioassay data using appropriate biological models and ex-
pressed as a fraction of the annual limit. For purposes of this require-                 (C) separately assess the contribution of fractional in-
ment, an organ or tissue is deemed to be significantly irradiated if, for   takes of Class D, W, or Y compounds of a given radionuclide to the
that organ or tissue, the product of the weighting factors, wT, and the     committed effective dose equivalent. See subsection (ggg)(2) of this
committed dose equivalent, H T,50, per unit intake is greater than 10%      section.
of the maximum weighted value of HT,50, that is, wT HT,50, per unit
                                                                                       (4) If the licensee chooses to assess intakes of Class Y ma-
intake for any organ or tissue.
                                                                            terial using the measurements given in paragraph (1)(A) or (B) of this
          (3) If the occupationally exposed individual receives an in-      subsection, the licensee may delay the recording and reporting of the
take of radionuclides by oral ingestion greater than 10% of the appli-      assessments for periods up to seven months, unless otherwise required
cable oral ALI, the licensee shall account for this intake and include it   by subsections (xx) or (yy) of this section. This delay permits the li-
in demonstrating compliance with the limits.                                censee to make additional measurements basic to the assessments.
         (4) The licensee shall evaluate and, to the extent practical,                 (5) If the identity and concentration of each radionuclide in
account for intakes through wounds or skin absorption. The intake           a mixture are known, the fraction of the DAC applicable to the mixture
through intact skin has been included in the calculation of DAC for         for use in calculating DAC-hours shall be either:
hydrogen-3 and does not need to be evaluated or accounted for in ac-
                                                                                          (A) the sum of the ratios of the concentration to the ap-
cordance with this paragraph.
                                                                            propriate DAC value, that is, D, W, or Y, from subsection (ggg)(2) of
      (h)     Determination of external dose from airborne radioactive      this section for each radionuclide in the mixture; or
material.
                                                                                          (B) the ratio of the total concentration for all radionu-
          (1) Licensees shall, when determining the dose from air-          clides in the mixture to the most restrictive DAC value for any radionu-
borne radioactive material, include the contribution to the deep dose       clide in the mixture.
equivalent, eye dose equivalent, and shallow dose equivalent from ex-
                                                                                       (6) If the identity of each radionuclide in a mixture is
ternal exposure to the radioactive cloud. See footnotes 1 and 2 of sub-
                                                                            known, but the concentration of one or more of the radionuclides in
section (ggg)(2) of this section.
                                                                            the mixture is not known, the DAC for the mixture shall be the most
           (2) Airborne radioactivity measurements and DAC values           restrictive DAC of any radionuclide in the mixture.
shall not be used as the primary means to assess the deep dose equiva-
                                                                                     (7) When a mixture of radionuclides in air exists, a licensee
lent when the airborne radioactive material includes radionuclides other
                                                                            may disregard certain radionuclides in the mixture if:
than noble gases or if the cloud of airborne radioactive material is not
relatively uniform. The determination of the deep dose equivalent to                      (A) the licensee uses the total activity of the mixture in
an individual shall be based upon measurements using instruments or         demonstrating compliance with the dose limits in subsection (f) of this
individual monitoring devices.                                              section and in complying with the monitoring requirements in subsec-
                                                                            tion (q)(3) of this section;
      (i)   Determination of internal exposure.
                                                                                         (B) the concentration of any radionuclide disregarded is
          (1) For purposes of assessing dose used to determine com-
                                                                            less than 10% of its DAC; and
pliance with occupational dose equivalent limits, the licensee shall,
when required in accordance with subsection (q) of this section, take                     (C) the sum of these percentages for all of the radionu-
suitable and timely measurements of:                                        clides disregarded in the mixture does not exceed 30%.
               (A) concentrations of radioactive materials in air in                   (8) When determining the committed effective dose equiv-
work areas;                                                                 alent, the following information may be considered.
               (B) quantities of radionuclides in the body;                               (A) In order to calculate the committed effective dose
                                                                            equivalent, the licensee may assume that the inhalation of 1 ALI, or
               (C) quantities of radionuclides excreted from the body;
                                                                            an exposure of 2,000 DAC-hours, results in a committed effective dose
or
                                                                            equivalent of 5 rems (0.05 Sv) for radionuclides that have their ALIs
               (D) combinations of these measurements.                      or DACs based on the committed effective dose equivalent.
           (2) Unless respiratory protective equipment is used, as pro-                    (B) For an ALI and the associated DAC determined by
vided in subsection (x) of this section, or the assessment of intake is     the nonstochastic organ dose limit of 50 rems (0.5 Sv), the intake of
based on bioassays, the licensee shall assume that an individual inhales    radionuclides that would result in a committed effective dose equivalent
radioactive material at the airborne concentration in which the individ-    of 5 rems (0.05 Sv), that is, the stochastic ALI, is listed in parentheses
ual is present.                                                             in Table I of subsection (ggg)(2) of this section. The licensee may, as a
                                                                            simplifying assumption, use the stochastic ALI to determine committed
          (3) When specific information on the physical and bio-
                                                                            effective dose equivalent. However, if the licensee uses the stochastic
chemical properties of the radionuclides taken into the body or the
                                                                            ALI, the licensee shall also demonstrate that the limit in subsection
behavior of the material in an individual is known, the licensee may:
                                                                            (f)(1)(A)(ii) of this section is met.
                                                                                  (j)   Determination of occupational dose for the current year.



27 TexReg 2022 March 15, 2002 Texas Register
          (1) For each individual who is likely to receive, in a year,        (f) of this section provided that each of the following conditions is sat-
an occupational dose requiring monitoring in accordance with subsec-          isfied.
tion (q) of this section, the licensee shall determine the occupational
                                                                                        (1) The licensee authorizes a planned special exposure only
radiation dose received during the current year.
                                                                              in an exceptional situation when alternatives that might avoid the doses
          (2) In complying with the requirements of paragraph (1) of          estimated to result from the planned special exposure are unavailable
this subsection, a licensee may:                                              or impractical.
               (A) accept, as a record of the occupational dose that                     (2) The licensee and employer, if the employer is not the
the individual received during the current year, BRC Form 202-2 from          licensee, specifically authorizes the planned special exposure, in writ-
prior or other current employers, or other clear and legible record, of all   ing, before the exposure occurs.
information required on that form and indicating any periods of time
                                                                                        (3) Before a planned special exposure, the licensee ensures
for which data are not available; or
                                                                              that each individual involved is:
              (B) accept, as a record of the occupational dose that the
                                                                                            (A) informed of the purpose of the planned operation;
individual received during the current year, a written signed statement
from the individual, or from the individual’s prior or other current em-                     (B) informed of the estimated doses and associated po-
ployer(s) for work involving radiation exposure, that discloses the na-       tential risks and specific radiation levels or other conditions that might
ture and the amount of any occupational dose that the individual re-          be involved in performing the task; and
ceived during the current year; or
                                                                                        (C) instructed in the measures to be taken to keep the
              (C) obtain reports of the individual’s dose equivalent          dose ALARA considering other risks that may be present.
from prior or other current employer(s) for work involving radiation
                                                                                       (4) Prior to permitting an individual to participate in a
exposure, or the individual’s current employer, if the individual is not
                                                                              planned special exposure, the licensee shall determine:
employed by the licensee, by telephone, telegram, facsimile, or letter.
The licensee shall request a written verification of the dose data if the                 (A) the internal and external doses from all previous
authenticity of the transmitted report cannot be established.                 planned special exposures;
           (3) The licensee shall record the exposure data for the cur-                     (B) all doses in excess of the limits, including doses re-
rent year, as required by paragraph (1) of this subsection, on BRC Form       ceived during accidents and emergencies, received during the lifetime
202-3, or other clear and legible record, of all the information required     of the individual; and
on that form.
                                                                                            (C) all lifetime cumulative occupational radiation
           (4) If the licensee is unable to obtain a complete record of       doses.
an individual’s current occupational dose while employed by any other
                                                                                         (5) In complying with the requirements of paragraph (4)(C)
licensee, the licensee shall assume in establishing administrative con-
                                                                              of this subsection, a licensee may:
trols in accordance with subsection (f)(8) of this section for the current
year, that the allowable dose limit for the individual is reduced by 1.25                   (A) accept, as the record of lifetime cumulative radia-
rems (12.5 millisieverts (mSv)) for each quarter; or 416 mrem (4.16           tion dose, an up-to-date BRC Form 202-2 or equivalent, signed by the
mSv) for each month for which records were unavailable and the in-            individual and countersigned by an appropriate official of the most re-
dividual was engaged in activities that could have resulted in occupa-        cent employer for work involving radiation exposure, or the individ-
tional radiation exposure.                                                    ual’s current employer, if the individual is not employed by the li-
                                                                              censee; and
          (5) If an individual has incomplete (e.g., a lost or damaged
personnel monitoring device) current occupational dose data for the                         (B) obtain reports of the individual’s dose equivalent
current year and that individual is employed solely by the licensee dur-      from prior employer(s) for work involving radiation exposure, or the
ing the current year, the licensee shall:                                     individual’s current employer, if the individual is not employed by the
                                                                              licensee, by telephone, telegram, facsimile, or letter. The licensee shall
              (A) assume that the allowable dose limit for the individ-
                                                                              request a written verification of the dose data if the authenticity of the
ual is reduced by 1.25 rems (12.5 mSv) for each quarter;
                                                                              transmitted report cannot be established.
              (B) assume that the allowable dose limit for the individ-
                                                                                         (6) Subject to subsection (f)(2) of this section, the licensee
ual is reduced by 416 mrem (4.16 mSv) for each month; or
                                                                              shall not authorize a planned special exposure that would cause an in-
             (C) assess an occupational dose for the individual dur-          dividual to receive a dose from all planned special exposures and all
ing the period of missing data using surveys, radiation measurements,         doses in excess of the limits to exceed:
or other comparable data for the purpose of demonstrating compliance
                                                                                           (A) the numerical values of any of the dose limits in
with the occupational dose limits.
                                                                              subsection (f)(1) of this section in any year; and
           (6) Administrative controls established in accordance with
                                                                                            (B) five times the annual dose limits in subsection (f)(1)
paragraph (4) of this subsection shall be documented and maintained
                                                                              of this section during the individual’s lifetime.
for inspection by the agency. Occupational dose assessments made in
accordance with paragraph (5) of this subsection and records of data                    (7) The licensee maintains records of the conduct of a
used to make the assessment shall be maintained for inspection by the         planned special exposure in accordance with subsection (qq) of this
agency. The licensee shall retain the records in accordance with sub-         section and submits a written report to the agency in accordance with
section (rr) of this section.                                                 subsection (zz) of this section.
       (k) Planned special exposures. A licensee may authorize an                        (8) The licensee records the best estimate of the dose re-
adult worker to receive doses in addition to and accounted for sepa-          sulting from the planned special exposure in the individual’s record and
rately from the doses received under the limits specified in subsection       informs the individual, in writing, of the dose within 30 days from the




                                                                       ADOPTED RULES March 15, 2002 27 TexReg 2023
date of the planned special exposure. The dose from planned special                       (1)    Each licensee shall conduct operations so that:
exposures shall not be considered in controlling future occupational
                                                                                            (A) except as provided in subparagraph (B) of this para-
dose of the individual in accordance with subsection (f)(1) of this sec-
                                                                             graph, the total effective dose equivalent to individual members of the
tion but shall be included in evaluations required by paragraphs (4) and
                                                                             public from the licensed and/or registered operation does not exceed 0.1
(6) of this subsection.
                                                                             rem (1 mSv) in a year, exclusive of the dose contribution from back-
          (9) The licensee shall record the exposure history, as re-         ground radiation, from any medical administration the individual has
quired by paragraph (4) of this subsection, on BRC Form 202-2, or            received, from exposure to individuals administered radioactive mate-
other clear and legible record, of all the information required on that      rial and released in accordance with this chapter, from voluntary partic-
form. The form or record shall show each period in which the individ-        ipation in medical research programs, and from the licensee’s disposal
ual received occupational exposure to radiation or radioactive material      of radioactive material into sanitary sewerage in accordance with sub-
and shall be signed by the individual who received the exposure. For         section (gg) of this section; and
each period for which the licensee obtains reports, the licensee shall use
                                                                                           (B) the dose in any unrestricted area from licensed
the dose shown in the report in preparing BRC Form 202-2 or equiva-
                                                                             and/or registered external sources, exclusive of the dose contributions
lent.
                                                                             from patients administered radioactive material and released in
       (l) Occupational dose limits for minors. The annual occupa-           accordance with this chapter, does not exceed 0.002 rem (0.02 mSv)
tional dose limits for minors are 10% of the annual occupational dose        in any one hour.
limits specified for adult workers in subsection (f) of this section.
                                                                                        (2) If the licensee permits members of the public to have
      (m)     Dose equivalent to an embryo/fetus.                            access to restricted areas, the limits for members of the public continue
                                                                             to apply to those individuals.
           (1) If a woman declares her pregnancy, the licensee shall
ensure that the dose equivalent to an embryo/fetus during the entire                    (3) A licensee or an applicant for a license may apply for
pregnancy, due to occupational exposure of a declared pregnant               prior agency authorization to operate up to an annual dose limit for an
woman, does not exceed 0.5 rem (5 mSv). If a woman chooses not to            individual member of the public of 0.5 rem (5 mSv). This application
declare pregnancy, the occupational dose limits specified in subsection      shall include the following information:
(f)(1) of this section are applicable to the woman. See subsection (rr)
                                                                                           (A) demonstration of the need for and the expected du-
of this section for recordkeeping requirements.
                                                                             ration of operations in excess of the limit in paragraph (1) of this sub-
         (2) The licensee shall make efforts to avoid substantial vari-      section;
ation above a uniform monthly exposure rate to a declared pregnant
                                                                                           (B) the licensee’s program to assess and control dose
woman so as to satisfy the limit in paragraph (1) of this subsection.
                                                                             within the 0.5 rem (5 mSv) annual limit; and
The National Council on Radiation Protection and Measurements rec-
ommended in NCRP Report No. 91 "Recommendations on Limits for                                   (C) the procedures to be followed to maintain the dose
Exposure to Ionizing Radiation" (June 1, 1987) that no more than 0.05        ALARA.
rem (0.5 mSv) to the embryo/fetus be received in any one month.
                                                                                       (4) In addition to the requirements of this section, a
            (3)   The dose equivalent to an embryo/fetus shall be taken      licensee subject to the provisions of the United States Environmental
as:                                                                          Protection Agency’s (EPA) generally applicable environmental
                                                                             radiation standards in 40 Code of Federal Regulations (CFR), §190
             (A) the dose equivalent to the embryo/fetus from ra-
                                                                             shall comply with those requirements.
dionuclides in the embryo/fetus and radionuclides in the declared preg-
nant woman; and                                                                        (5) The agency may impose additional restrictions on radi-
                                                                             ation levels in unrestricted areas and on the total quantity of radionu-
             (B) the dose equivalent that is most representative of the
                                                                             clides that a licensee may release in effluents in order to restrict the
dose equivalent to the embryo/fetus from external radiation, that is, in
                                                                             collective dose.
the mother’s lower torso region.
                                                                                    (o)     Compliance with dose limits for individual members of the
                (i) If multiple measurements have not been made,
                                                                             public.
assignment of the highest deep dose equivalent for the declared preg-
nant woman shall be the dose equivalent to the embryo/fetus.                            (1) The licensee shall make or cause to be made surveys of
                                                                             radiation levels in unrestricted areas and radioactive materials in efflu-
                  (ii) If multiple measurements have been made, as-
                                                                             ents released to unrestricted areas to demonstrate compliance with the
signment of the deep dose equivalent for the declared pregnant woman
                                                                             dose limits for individual members of the public as required in subsec-
from the individual monitoring device that is most representative of the
                                                                             tion (n) of this section.
dose equivalent to the embryo/fetus shall be the dose equivalent to the
embryo/fetus. Assignment of the highest deep dose equivalent for the                    (2) A licensee shall show compliance with the annual dose
declared pregnant woman to the embryo/fetus is not required unless           limit in subsection (n) of this section by:
that dose equivalent is also the most representative deep dose equiva-
                                                                                            (A) demonstrating by measurement or calculation that
lent for the region of the embryo/fetus.
                                                                             the total effective dose equivalent to the individual likely to receive the
          (4) If by the time the woman declares pregnancy to the li-         highest dose from the licensed or registered operation does not exceed
censee, the dose equivalent to the embryo/fetus has exceeded 0.45 rem        the annual dose limit; or
(4.5 mSv), the licensee shall be deemed to be in compliance with para-
                                                                                                (B) demonstrating that:
graph (1) of this subsection, if the additional dose equivalent to the
embryo/fetus does not exceed 0.05 rem (0.5 mSv) during the remain-                            (i) the annual average concentrations of radioactive
der of the pregnancy.                                                        material released in gaseous and liquid effluents at the boundary of
                                                                             the unrestricted area do not exceed the values specified in Table II of
      (n)     Dose limits for individual members of the public.
                                                                             subsection (ggg)(2) of this section; and



27 TexReg 2024 March 15, 2002 Texas Register
                 (ii) if an individual were continuously present in an                     (1) each licensee shall monitor occupational exposure to
unrestricted area, the dose from external sources of radiation would not         radiation and shall supply and require the use of individual monitoring
exceed 0.002 rem (0.02 mSv) in an hour and 0.05 rem (0.5 mSv) in a               devices by:
year.
                                                                                                (A) adults likely to receive, in one year from sources
           (3) Upon approval from the agency, the licensee may adjust            external to the body, a dose in excess of 10% of the limits in subsection
the effluent concentration values in Table II, of subsection (ggg)(2) of         (f)(1) of this section;
this section, for members of the public, to take into account the actual
                                                                                               (B) minors likely to receive, in one year from sources of
physical and chemical characteristics of the effluents, such as, aerosol
                                                                                 radiation external to the body, a deep dose equivalent in excess of 0.1
size distribution, solubility, density, radioactive decay equilibrium, and
                                                                                 rem (1 mSv), a lens dose equivalent in excess of 0.15 rem (1.5 mSv),
chemical form.
                                                                                 or a shallow dose equivalent to the skin or to the extremities in excess
        (p)     General surveys and monitoring.                                  of 0.5 rem (5 mSv);
              (1)     Each licensee shall make, or cause to be made, surveys                   (C) declared pregnant women likely to receive during
that:                                                                            the entire pregnancy, from sources of radiation external to the body, a
                                                                                 deep dose equivalent in excess of 0.1 rem (1 mSv); and
                    (A) are necessary for the licensee to comply with this
section; and                                                                                    (D) individuals entering a high or very high radiation
                                                                                 area;
                    (B) are necessary under the circumstances to evaluate:
                                                                                           (2) notwithstanding paragraph (1)(C) of this subsection, a
                       (i) the magnitude and extent of radiation levels;
                                                                                 licensee is exempt from supplying individual monitoring devices to
                       (ii) concentrations or quantities of radioactive mate-    healthcare personnel who may enter a high radiation area while pro-
rial; and                                                                        viding patient care if:
                       (iii) the potential radiological hazards.                              (A) the personnel are not likely to receive, in one year
                                                                                 from sources external to the body, a dose in excess of 10% of the limits
          (2) The licensee shall ensure that instruments and equip-
                                                                                 in subsection (f)(1) of this section; and
ment used for quantitative radiation measurements, for example, dose
rate and effluent monitoring, are operable and calibrated:                                     (B) the licensee complies with the requirements of sub-
                                                                                 section (e)(2) of this section; and
             (A) by a person licensed or registered by the agency,
another agreement state, a licensing state, or the United States Nuclear                   (3) each licensee shall monitor, to determine compliance
Regulatory Commission (NRC) to perform such service;                             with subsection (i) of this section, the occupational intake of radioactive
                                                                                 material by and assess the committed effective dose equivalent to:
              (B) at intervals not to exceed 12 months unless a differ-
ent time interval is specified in another section of this chapter;                            (A) adults likely to receive, in one year, an intake in
                                                                                 excess of 10% of the applicable ALI in Columns 1 and 2 of Table I
                    (C) after each instrument or equipment repair;
                                                                                 of subsection (ggg)(2) of this section;
              (D) for the types of radiation used and at energies ap-
                                                                                               (B) minors likely to receive, in one year, a committed
propriate for use; and
                                                                                 effective dose equivalent in excess of 0.1 rem (1 mSv); and
                    (E) at an accuracy within 20% of the true radiation level.
                                                                                               (C) declared pregnant women likely to receive, during
           (3) All individual monitoring devices, except for direct and          the entire pregnancy, a committed effective dose equivalent in excess
indirect reading pocket dosimeters, electronic personal dosimeters, and          of 0.1 rem (1 mSv).
those individual monitoring devices used to measure the dose to any ex-
                                                                                         (r)   Location and use of individual monitoring devices.
tremity, that require processing to determine the radiation dose and that
are used by licensees to comply with subsection (f) of this section, with                    (1) Each licensee shall ensure that individuals who are re-
other applicable provisions of this chapter, or with conditions specified        quired to monitor occupational doses in accordance with subsection
in a license, shall be processed and evaluated by a dosimetry processor:         (q)(l) of this section wear and use individual monitoring devices as fol-
                                                                                 lows.
           (A) holding current personnel dosimetry accreditation
from the National Voluntary Laboratory Accreditation Program                                    (A) An individual monitoring device used for monitor-
(NVLAP) of the National Institute of Standards and Technology;                   ing the dose to the whole body shall be worn at the unshielded location
                                                                                 of the whole body likely to receive the highest exposure. When a pro-
              (B) approved in this accreditation process for the type
                                                                                 tective apron is worn, the location of the individual monitoring device
of radiation or radiations included in the NVLAP program that most
                                                                                 is typically at the neck (collar).
closely approximates the type of radiation or radiations for which the
individual wearing the dosimeter is monitored; and                                             (B) If an additional individual monitoring device is
                                                                                 used for monitoring the dose to an embryo/fetus of a declared pregnant
            (C) holding a current certificate of registration from the
                                                                                 woman, in accordance with subsection (m)(1) of this section, it shall
agency authorizing dosimetry processing.
                                                                                 be located at the waist under any protective apron being worn by the
       (q) Conditions requiring individual monitoring of external and            woman.
internal occupational dose. Each licensee shall monitor exposures from
                                                                                                (C) An individual monitoring device used for monitor-
sources of radiation at levels sufficient to demonstrate compliance with
                                                                                 ing the lens dose equivalent, to demonstrate compliance with subsec-
the occupational dose limits of this section. As a minimum:
                                                                                 tion (f)(1)(B)(i) of this section, shall be located at the neck (collar) or
                                                                                 at a location closer to the eye, outside any protective apron being worn
                                                                                 by the monitored individual.




                                                                           ADOPTED RULES March 15, 2002 27 TexReg 2025
              (D) An individual monitoring device used for monitor-                  (t) Control of access to very high radiation areas. In addition
ing the dose to the extremities, to demonstrate compliance with subsec-      to the requirements in subsection (s) of this section, the licensee shall
tion (f)(1)(B)(ii) of this section, shall be worn on the extremity likely    institute measures to ensure that an individual is not able to gain unau-
to receive the highest exposure. Each individual monitoring device, to       thorized or inadvertent access to areas in which radiation levels could
the extent practicable, shall be oriented to measure the highest dose to     be encountered at 500 rads (5 grays) or more in one hour at 1 m from
the extremity being monitored.                                               a source of radiation or any surface through which the radiation pene-
                                                                             trates at this level.
            (E) An individual monitoring device shall be assigned
to and worn by only one individual.                                                  (u)   Control of access to very high radiation areas for irradia-
                                                                             tors.
              (F) An individual monitoring device shall be worn for
the period of time authorized by the dosimetry processor’s certificate                  (1) This subsection applies to licensees with sources of ra-
of registration or for no longer than three months, whichever is more        diation in non-self-shielded irradiators. This subsection does not apply
restrictive.                                                                 to sources of radiation that are used in teletherapy, in industrial radi-
                                                                             ography, or in completely self-shielded irradiators in which the source
          (2) Each licensee shall ensure that individual monitoring
                                                                             of radiation is both stored and operated within the same shielding radi-
devices are returned to the dosimetry processor for proper processing.
                                                                             ation barrier and, in the designed configuration of the irradiator, is al-
          (3) Each licensee shall ensure that adequate precautions are       ways physically inaccessible to any individual and cannot create high
taken to prevent a deceptive exposure of an individual monitoring de-        levels of radiation in an area that is accessible to any individual.
vice.
                                                                                        (2) Each area in which there may exist radiation levels in
      (s)   Control of access to high radiation areas.                       excess of 500 rads (5 grays) in one hour at 1 m from a source of radia-
                                                                             tion that is used to irradiate materials shall meet the following require-
           (1) The licensee shall ensure that each entrance or access
                                                                             ments.
point to a high radiation area has one or more of the following features:
                                                                                          (A) Each entrance or access point shall be equipped
              (A) a control device that, upon entry into the area,
                                                                             with entry control devices that:
causes the level of radiation to be reduced below that level at which an
individual might receive a deep dose equivalent of 0.1 rem (1 mSv) in                        (i) function automatically to prevent any individual
one hour at 30 centimeters (cm) from the source of radiation from any        from inadvertently entering a very high radiation area;
surface that the radiation penetrates;
                                                                                               (ii) permit deliberate entry into the area only after a
              (B) a control device that energizes a conspicuous visible      control device is actuated that causes the radiation level within the area,
or audible alarm signal so that the individual entering the high radiation   from the source of radiation, to be reduced below that at which it would
area and the supervisor of the activity are made aware of the entry; or      be possible for an individual to receive a deep dose equivalent in excess
                                                                             of 0.1 rem (1 mSv) in one hour; and
             (C) entryways that are locked, except during periods
when access to the areas is required, with positive control over each                        (iii) prevent operation of the source of radiation if it
individual entry.                                                            would produce radiation levels in the area that could result in a deep
                                                                             dose equivalent to an individual in excess of 0.1 rem (1 mSv) in one
          (2) In place of the controls required by paragraph (1) of
                                                                             hour.
this subsection for a high radiation area, the licensee may substitute
continuous direct or electronic surveillance that is capable of prevent-                   (B) Additional control devices shall be provided so that,
ing unauthorized entry.                                                      upon failure of the entry control devices to function as required by sub-
                                                                             paragraph (A) of this paragraph:
           (3) The licensee may apply to the agency for approval of
alternative methods for controlling access to high radiation areas.                           (i) the radiation level within the area, from the
                                                                             source of radiation, is reduced below that at which it would be possible
          (4) The licensee shall establish the controls required by
                                                                             for an individual to receive a deep dose equivalent in excess of 0.1 rem
paragraphs (1) and (3) of this subsection in a way that does not prevent
                                                                             (1 mSv) in one hour; and
individuals from leaving a high radiation area.
                                                                                              (ii) conspicuous visible and audible alarm signals
          (5) The licensee is not required to control each entrance or
                                                                             are generated to make an individual attempting to enter the area aware
access point to a room or other area that is a high radiation area solely
                                                                             of the hazard and at least one other authorized individual, who is
because of the presence of radioactive materials prepared for transport
                                                                             physically present, familiar with the activity, and prepared to render or
and packaged and labeled in accordance with the regulations of the
                                                                             summon assistance, aware of the failure of the entry control devices.
United States Department of Transportation (DOT) provided that:
                                                                                          (C) The licensee shall provide control devices so that,
             (A) the packages do not remain in the area longer than
                                                                             upon failure or removal of physical radiation barriers other than the
three days; and
                                                                             sealed source’s shielded storage container:
            (B) the dose rate at 1 meter from the external surface of
                                                                                              (i) the radiation level from the source of radiation is
any package does not exceed 0.01 rem (0.1 millisievert) per hour.
                                                                             reduced below that at which it would be possible for an individual to
           (6) The licensee is not required to control entrance or ac-       receive a deep dose equivalent in excess of 0.1 rem (1 mSv) in one hour;
cess to rooms or other areas in hospitals solely because of the presence     and
of patients containing radioactive material, provided that there are per-
                                                                                               (ii) conspicuous visible and audible alarm signals
sonnel in attendance who are taking the necessary precautions to pre-
                                                                             are generated to make potentially affected individuals aware of the
vent the exposure of individuals to sources of radiation in excess of the
                                                                             hazard and the licensee or at least one other individual, who is familiar
established limits in this section and to operate within the ALARA pro-
                                                                             with the activity and prepared to render or summon assistance, aware
visions of the licensee’s radiation protection program.
                                                                             of the failure or removal of the physical barrier.



27 TexReg 2026 March 15, 2002 Texas Register
              (D) When the shield for stored sealed sources is a liquid,                   (4) The entry control devices required by paragraphs (2)
the licensee shall provide means to monitor the integrity of the shield          and (3) of this subsection shall be established in such a way that no
and to signal, automatically, loss of adequate shielding.                        individual will be prevented from leaving the area.
               (E) Physical radiation barriers that comprise permanent                   (v) Use of process or other engineering controls. The licensee
structural components, such as walls, that have no credible probability          shall use, to the extent practicable, process or other engineering con-
of failure or removal in ordinary circumstances, need not meet the re-           trols, such as containment or ventilation, to control the concentrations
quirements of subparagraphs (C) and (D) of this paragraph.                       of radioactive material in air.
              (F) Each area shall be equipped with devices that will                     (w) Use of other controls. When it is not practicable to apply
automatically generate conspicuous visible and audible alarm signals to          process or other engineering controls to control the concentrations of
alert personnel in the area before the source of radiation can be put into       radioactive material in air to values below those that define an airborne
operation and in time for any individual in the area to operate a clearly        radioactivity area, the licensee shall, consistent with maintaining the
identified control device, which must be installed in the area and which         total effective dose equivalent ALARA, increase monitoring and limit
can prevent the source of radiation from being put into operation.               intakes by one or more of the following means:
              (G) Each area shall be controlled by use of such admin-                        (1)   control of access;
istrative procedures and such devices as are necessary to ensure that the
                                                                                             (2)   limitation of exposure times;
area is cleared of personnel prior to each use of the source of radiation.
                                                                                             (3)   use of respiratory protection equipment; or
              (H) Each area shall be checked by a radiation measure-
ment to ensure that, prior to the first individual’s entry into the area after               (4)   other controls.
any use of the source of radiation, the radiation level from the source
                                                                                       (x)     Use of individual respiratory protection equipment.
of radiation in the area is below that at which it would be possible for
an individual to receive a deep dose equivalent in excess of 0.1 rem (1                     (1) If the licensee uses respiratory protection equipment to
mSv) in one hour.                                                                limit intakes in accordance with subsection (w) of this section.
              (I) The entry control devices required in subparagraph                            (A) Except as provided in subparagraph (B) of this
(A) of this paragraph shall be tested for proper functioning. See sub-           paragraph, the licensee shall use only respiratory protection equipment
section (uu) of this section for recordkeeping requirements.                     that is tested and certified or had certification extended by the National
                                                                                 Institute for Occupational Safety and Health (NIOSH) and the Mine
                 (i) Testing shall be conducted prior to initial oper-
                                                                                 Safety and Health Administration (MSHA).
ation with the source of radiation on any day, unless operations were
continued uninterrupted from the previous day.                                                  (B) If the licensee wishes to use equipment that has not
                                                                                 been tested or certified by the NIOSH and the MSHA, or has not had
                  (ii) Testing shall be conducted prior to resumption of
                                                                                 certification extended by the NIOSH and the MSHA, or for which there
operation of the source of radiation after any unintentional interruption.
                                                                                 is no schedule for testing or certification, the licensee shall submit an
                  (iii) The licensee shall submit and adhere to a sched-         application for authorized use of that equipment, including a demon-
ule for periodic tests of the entry control and warning systems.                 stration by testing, or a demonstration on the basis of test information,
                                                                                 that the material and performance characteristics of the equipment are
              (J) The licensee shall not conduct operations, other than
                                                                                 capable of providing the proposed degree of protection under antici-
those necessary to place the source of radiation in safe condition or to
                                                                                 pated conditions of use.
effect repairs on controls, unless control devices are functioning prop-
erly.                                                                                          (C) The licensee shall implement and maintain a respi-
                                                                                 ratory protection program that includes:
              (K) Entry and exit portals that are used in transporting
materials to and from the irradiation area, and that are not intended for                        (i) air sampling sufficient to identify the potential
use by individuals, shall be controlled by such devices and administra-          hazard, permit proper equipment selection, and estimate exposures;
tive procedures as are necessary to physically protect and warn against
                                                                                                  (ii) surveys and bioassays, as appropriate, to evalu-
inadvertent entry by any individual through these portals. Exit portals
                                                                                 ate actual intakes;
for irradiated materials shall be equipped to detect and signal the pres-
ence of any loose radioactive material that is carried toward such an                              (iii) testing of respirators for operability immedi-
exit and automatically to prevent loose radioactive material from being          ately prior to each use;
carried out of the area.
                                                                                                 (iv) written procedures regarding selection, fitting,
           (3) Licensees or applicants for licenses for sources of radi-         issuance, maintenance, and testing of respirators, including testing for
ation within the purview of paragraph (2) of this subsection that will           operability immediately prior to each use; supervision and training
be used in a variety of positions or in locations, such as open fields or        of personnel; monitoring, including air sampling and bioassays; and
forests, which make it impracticable to comply with certain require-             recordkeeping; and
ments of paragraph (2) of this subsection, such as those for the auto-
                                                                                                   (v) determination by a physician prior to initial fit-
matic control of radiation levels, may apply to the Agency for approval
                                                                                 ting of respirators, and either every 12 months thereafter or periodi-
of alternative safety measures. Alternative safety measures shall pro-
                                                                                 cally at a frequency determined by a physician, that the individual user
vide personnel protection at least equivalent to those specified in para-
                                                                                 is physically able to use the respiratory protection equipment.
graph (2) of this subsection. At least one of the alternative measures
shall include an entry-preventing interlock control based on a measure-                        (D) The licensee shall issue a written policy statement
ment of the radiation that ensures the absence of high radiation levels          on respirator usage covering:
before an individual can gain access to the area where such sources of
                                                                                                  (i) the use of process or other engineering controls,
radiation are used.
                                                                                 instead of respirators;




                                                                          ADOPTED RULES March 15, 2002 27 TexReg 2027
                   (ii) the routine, nonroutine, and emergency use of                  (2) The licensee shall maintain constant surveillance, using
respirators; and                                                             devices and/or administrative procedures to prevent unauthorized use
                                                                             of radioactive material that is in an unrestricted area and that is not in
                 (iii) the length of periods of respirator use and relief
                                                                             storage.
from respirator use.
                                                                                   (z)    Caution signs.
              (E) The licensee shall advise each respirator user that
the user may leave the area at any time for relief from respirator use in               (1) Unless otherwise authorized by the agency, the standard
the event of equipment malfunction, physical or psychological distress,      radiation symbol prescribed shall use the colors magenta, or purple, or
procedural or communication failure, significant deterioration of oper-      black on yellow background. The standard radiation symbol prescribed
ating conditions, or any other conditions that might require such relief.    is the three-bladed design as follows:
                                                                             Figure: 25 TAC §289.202(z)(1) (No change.)
             (F) The licensee shall use respiratory protection equip-
ment within the equipment manufacturer’s expressed limitations for                        (A) the cross-hatched area of the symbol is to be ma-
type and mode of use and shall provide proper visual, communication,         genta, or purple, or black; and
and other special capabilities, such as adequate skin protection, when
                                                                                           (B) the background of the symbol is to be yellow.
needed.
                                                                                        (2) Notwithstanding the requirements of paragraph (1) of
           (2) When estimating exposure of individuals to airborne ra-
                                                                             this subsection, licensees are authorized to label sources, source hold-
dioactive materials, the licensee may make allowance for respiratory
                                                                             ers, or device components containing sources of radiation that are sub-
protection equipment used to limit intakes in accordance with subsec-
                                                                             jected to high temperatures, with conspicuously etched or stamped ra-
tion (w) of this section, provided that the following conditions, in ad-
                                                                             diation caution symbols and without a color requirement.
dition to those in paragraph (1) of this subsection, are satisfied.
                                                                                   (aa)    Posting requirements.
               (A) The licensee selects respiratory protection equip-
ment that provides a protection factor, asspecified in subsection                     (1) The licensee shall post each radiation area with a con-
(ggg)(1) of this section, greater than the multiple by which peak            spicuous sign or signs bearing the radiation symbol and the words
concentrations of airborne radioactive materials in the working area         "CAUTION, RADIATION AREA."
are expected to exceed the values specified in Column 3 of Table
                                                                                      (2) The licensee shall post each high radiation area with a
I of subsection (ggg)(2) of this section. However, if the election
                                                                             conspicuous sign or signs bearing the radiation symbol and the words
of respiratory protection equipment with a protection factor greater
                                                                             "CAUTION, HIGH RADIATION AREA" or "DANGER, HIGH RA-
than the peak concentration is inconsistent with the goal specified
                                                                             DIATION AREA."
in subsection (w) of this section of keeping the total effective dose
equivalent ALARA, the licensee may select respiratory protection                       (3) The licensee shall post each very high radiation area
equipment with a lower protection factor provided that such a selection      with a conspicuous sign or signs bearing the radiation symbol and
would result in a total effective dose equivalent that is ALARA. The         words "GRAVE DANGER, VERY HIGH RADIATION AREA." If the
concentration of radioactive material in the air that is inhaled when        very high radiation area involves medical treatment of patients, the li-
respirators are worn may be initially estimated by dividing the average      censee may omit the word "GRAVE" from the sign or signs.
concentration in air, during each period of uninterrupted use, by the
                                                                                      (4) The licensee shall post each airborne radioactivity area
protection factor. If the exposure is later found to be greater than
                                                                             with a conspicuous sign or signs bearing the radiation symbol and
initially estimated, the corrected value shall be used; if the exposure is
                                                                             the words "CAUTION, AIRBORNE RADIOACTIVITY AREA" or
later found to be less than initially estimated, the corrected value may
                                                                             "DANGER, AIRBORNE RADIOACTIVITY AREA."
be used.
                                                                                        (5) The licensee shall post each area or room in which there
              (B) The licensee shall obtain authorization from the
                                                                             is used or stored an amount of licensed material exceeding 10 times the
agency before assigning respiratory protection factors in excess of
                                                                             quantity of such material specified in subsection (ggg)(3) of this section
those specified in subsection (ggg)(1) of this section. The agency may
                                                                             with a conspicuous sign or signs bearing the radiation symbol and the
authorize a licensee to use higher protection factors on receipt of an
                                                                             words "CAUTION, RADIOACTIVE MATERIAL(S)" or "DANGER,
application that:
                                                                             RADIOACTIVE MATERIAL(S)."
                 (i) describes the situation for which a need exists for
                                                                                   (bb)    Exceptions to posting requirements.
higher protection factors; and
                                                                                        (1) A licensee is not required to post caution signs in ar-
                (ii) demonstrates that the respiratory protection
                                                                             eas or rooms containing sources of radiation for periods of less than 8
equipment provides these higher protection factors under the proposed
                                                                             hours, if each of the following conditions is met:
conditions of use.
                                                                                           (A) the sources of radiation are constantly attended dur-
           (3) In an emergency, the licensee shall use as emergency
                                                                             ing these periods by an individual who takes the precautions necessary
equipment only respiratory protection equipment that has been specif-
                                                                             to prevent the exposure of individuals to sources of radiation in excess
ically certified or had certification extended for emergency use by the
                                                                             of the limits established in this section; and
NIOSH and the MSHA.
                                                                                           (B) the area or room is subject to the licensee’s control.
          (4) The licensee shall notify the agency in writing at least
30 days before the date that respiratory protection equipment is first                  (2) Rooms or other areas in hospitals that are occupied by
used in accordance with either paragraphs (1) or (2) of this subsection.     patients are not required to be posted with caution signs in accordance
                                                                             with subsection (aa) of this section provided that the patient could be
      (y)   Security and control of licensed sources of radiation.
                                                                             released from licensee control in accordance with this chapter.
         (1) The licensee shall secure radioactive material from
                                                                                       (3) A room or area is not required to be posted with a cau-
unauthorized removal or access.
                                                                             tion sign because of the presence of a sealed source(s) provided the



27 TexReg 2028 March 15, 2002 Texas Register
radiation level at 30 centimeters from the surface of the sealed source      of this title (relating to Packaging and Transportation of Radioactive
container(s) or housing(s) does not exceed 0.005 rem (0.05 mSv) per          Material), shall make arrangements to receive:
hour.
                                                                                             (A) the package when the carrier offers it for delivery;
         (4) Rooms in medical facilities that are used for teletherapy       or
are exempt from the requirement to post caution signs in accordance
                                                                                           (B) the notification of the arrival of the package at the
with subsection (aa) of this section provided the following conditions
                                                                             carrier’s terminal and to take possession of the package expeditiously.
are met.
                                                                                       (2)     Each licensee shall:
              (A) Access to the room is controlled in accordance with
this chapter; and                                                                            (A) monitor the external surfaces of a labeled package,
                                                                             labeled with a Radioactive White I, Yellow II, or Yellow III label as
              (B) Personnel in attendance take necessary precautions
                                                                             specified in DOT regulations 49 CFR §§172.403 and 172.436-440, for
to prevent the inadvertent exposure of workers, other patients, and
                                                                             radioactive contamination unless the package contains only radioactive
members of the public to radiation in excess of the limits established
                                                                             material in the form of gas or in special form as defined in §289.201(b)
in this section.
                                                                             of this title; and
      (cc)   Labeling containers.
                                                                                            (B) monitor the external surfaces of a labeled package,
           (1) The licensee shall ensure that each container of              labeled with a Radioactive White I, Yellow II, or Yellow III label as
licensed material bears a durable, clearly visible label bearing the         specified in DOT regulations 49 CFR §§172.403 and §§172.436-440,
radiation symbol and the words "CAUTION, RADIOACTIVE MA-                     for radiation levels unless the package contains quantities of radioactive
TERIAL" or "DANGER, RADIOACTIVE MATERIAL." The label                         material that are less than or equal to the Type A quantity, as defined
shall also provide information, such as the radionuclides present, an        in §289.201(b) of this title and specified in §289.257(s)(1) of this title;
estimate of the quantity of radioactivity, the date for which the activity   and
is estimated, radiation levels, kinds of materials, and mass enrichment,
                                                                                           (C) monitor all packages known to contain radioactive
to permit individuals handling or using the containers, or working in
                                                                             material for radioactive contamination and radiation levels if there is
the vicinity of the containers, to take precautions to avoid or minimize
                                                                             evidence of degradation of package integrity, such as packages that are
exposures.
                                                                             crushed, wet, or damaged.
          (2) Each licensee shall, prior to removal or disposal of
                                                                                        (3) The licensee shall perform the monitoring required by
empty uncontaminated containers to unrestricted areas, remove or
                                                                             paragraph (2) of this subsection as soon as practicable after receipt of
deface the radioactive material label or otherwise clearly indicate that
                                                                             the package, but not later than three hours after the package is received
the container no longer contains radioactive materials.
                                                                             at the licensee’s facility if it is received during the licensee’s normal
       (dd) Exemptions to labeling requirements. A licensee is not           working hours. If a package is received after working hours, the pack-
required to label:                                                           age shall be monitored no later than three hours from the beginning
                                                                             of the next working day. If the licensee discovers there is evidence of
          (1) containers holding licensed material in quantities less
                                                                             degradation of package integrity, such as a package that is crushed, wet,
than the quantities listed in subsection (ggg)(3) of this section;
                                                                             or damaged, the package shall be surveyed immediately.
           (2) containers holding licensed material in concentrations
                                                                                        (4) The licensee shall immediately notify the final deliv-
less than those specified in Table III of subsection (ggg)(2) of this sec-
                                                                             ery carrier and, by telephone and telegram, mailgram, or facsimile, the
tion;
                                                                             agency when removable radioactive surface contamination or external
           (3) containers attended by an individual who takes the pre-       radiation levels exceed the limits established in subparagraphs (A) and
cautions necessary to prevent the exposure of individuals in excess of       (B) of this paragraph.
the limits established by this section;
                                                                                           (A) Limits for removable radioactive surface contami-
          (4) containers when they are in transport and packaged and         nation levels.
labeled in accordance with the rules of the DOT (labeling of packages
                                                                                               (i) The level of removable radioactive contamina-
containing radioactive materials is required by the DOT if the amount
                                                                             tion on the external surfaces of each package offered for shipment shall
and type of radioactive material exceeds the limits for an excepted
                                                                             be ALARA. The level of removable radioactive contamination may be
quantity or article as defined and limited by DOT regulations 49 CFR
                                                                             determined by wiping an area of 300 square centimeters (cm2) of the
§§173.403(m) and (w) and 173.424);
                                                                             surface concerned with an absorbent material, using moderate pressure,
           (5) containers that are accessible only to individuals autho-     and measuring the activity on the wiping material. Sufficient measure-
rized to handle or use them, or to work in the vicinity of the containers,   ments must be taken in the most appropriate locations to yield a rep-
if the contents are identified to these individuals by a readily available   resentative assessment of the removable contamination levels. Except
written record. Examples of containers of this type are containers in        as provided in clause (iii) of this subparagraph, the amount of radioac-
locations such as water-filled canals, storage vaults, or hot cells. The     tivity measured on any single wiping material, when averaged over the
record shall be retained as long as the containers are in use for the pur-   surface wiped, must not exceed the limits given in clause (ii) of this
pose indicated on the record; or                                             subparagraph at any time during transport. If other methods are used,
                                                                             the detection efficiency of the method used must be taken into account
         (6) installed manufacturing or process equipment, such as
                                                                             and in no case may the removable contamination on the external sur-
piping and tanks.
                                                                             faces of the package exceed 10 times the limits listed in clause (ii) of
      (ee)   Procedures for receiving and opening packages.                  this subparagraph.
          (1) Each licensee who expects to receive a package con-                             (ii) Removable external radioactive contamination
taining quantities of radioactive material in excess of a Type A quantity,   wipe limits are as follows.
as defined in §289.201(b) of this title and specified in §289.257(s)(1)      Figure: 25 TAC §289.202(ee)(4)(A)(ii) (No change.)



                                                                      ADOPTED RULES March 15, 2002 27 TexReg 2029
                 (iii) In the case of packages transported as exclusive              (ff)   General requirements for waste management.
use shipments by rail or highway only, the removable radioactive con-
                                                                                         (1) Unless otherwise exempted, a licensee shall discharge,
tamination at any time during transport must not exceed 10 times the
                                                                              treat, or decay licensed material or transfer waste for disposal only:
levels prescribed in clause (ii) of this subparagraph. The levels at the
beginning of transport must not exceed the levels in clause (ii) of this                      (A) by transfer to an authorized recipient as provided
subparagraph.                                                                 in subsection (jj) of this section, §289.252 of this title, §289.254 of
                                                                              this title (relating to Licensing of Radioactive Waste Processing and
                (B) Limits for external radiation levels.
                                                                              Storage Facilities), §289.257 of this title, §289.259 of this title (relating
                 (i) External radiation levels around the package and         to Licensing of Naturally Occurring Radioactive Material (NORM)), or
around the vehicle, if applicable, will not exceed 200 millirems per          to the United States Department of Energy (DOE);
hour (mrem/hr) (2 millisiverts per hour (mSv/hr)) at any point on the
                                                                                            (B) by decay in storage with prior approval from the
external surface of the package at any time during transportation. The
                                                                              agency;
transport index shall not exceed 10.
                                                                                            (C) by release in effluents within the limits in subsec-
                 (ii) For a package transported in exclusive use by
                                                                              tion (n) of this section; or
rail, highway or water, radiation levels external to the package may
exceed the limits specified in clause (i) of this subparagraph but shall                    (D) as authorized in accordance with paragraph (2) of
not exceed any of the following:                                              this subsection, and subsections (gg) and (hh) of this section.
                     (I) 200 mrem/hr (2 mSv/hr) on the accessible ex-                    (2) Upon agency approval, emission control dust and other
ternal surface of the package unless the following conditions are met,        material from electric arc furnaces or foundries contaminated as a re-
in which case the limit is 1,000 mrem/hr (10 mSv/hr):                         sult of inadvertent melting of cesium-137 or americium-241 sources
                        (-a-) the shipment is made in a closed trans-         may be transferred for disposal to a hazardous waste disposal facility
port vehicle;                                                                 authorized by the Texas Natural Resource Conservation Commission
                        (-b-) provisions are made to secure the pack-         (Commission) or its successor, another state’s regulatory agency with
age so that its position within the vehicle remains fixed during trans-       jurisdiction to regulate hazardous waste as classified under Subtitle C
portation; and                                                                of the Resource Conservation and Recovery Act (RCRA), or the EPA.
                        (-c-) there are no loading or unloading oper-         The material may be transferred for disposal without regard to its ra-
ations between the beginning and end of the transportation;                   dioactivity if the following conditions are met.
                     (II) 200 mrem/hr (2 mSv/hr) at any point on the                         (A) Contaminated material described in paragraph (2)
outer surface of the vehicle, including the upper and lower surfaces,         of this subsection, whether packaged or unpackaged (i.e., bulk), must
or, in the case of a flat-bed style vehicle, with a personnel barrier, at     be treated through stabilization to comply with all waste treatment
any point on the vertical planes projected from the outer edges of the        requirements of the appropriate state or federal regulatory agency as
vehicle, on the upper surface of the load (or enclosure, if used), and on     listed in this paragraph. The treatment operations must be undertaken
the lower external surface of the vehicle (a flat-bed style vehicle with      by either of the following:
a personnel barrier shall have radiation levels determined at vertical
                                                                                              (i) the owner/operator of the electric arc furnace or
planes. If no personnel barrier, the package cannot exceed 200 mrem/hr
                                                                              foundry licensed to possess, treat or transfer cesium-137 or ameri-
(2 mSv/hr) at the surface.);
                                                                              cium-241 contaminated incident-related material; or
                      (III) 10 mrem/hr (0.1 mSv/hr) at any point 2 m
                                                                                             (ii) a service contractor licensed by the agency,
from the vertical planes represented by the outer lateral surfaces of the
                                                                              NRC, or an agreement state to possess, treat, or transfer cesium-137
vehicle, or, in the case of a flat-bed style vehicle, at any point 2 m from
                                                                              or americium-241 contaminated incident-related material.
the vertical planes projected from the outer edges of the vehicle; and
                                                                                           (B) The emission control dust and other incident-re-
                       (IV) 2 mrem/hr (0.02 mSv/hr) in any normally
                                                                              lated materials have been stored (if applicable) and transferred in
occupied positions of the vehicle, except that this provision does not
                                                                              accordance with operating and emergency procedures approved by the
apply to private motor carriers when persons occupying these positions
                                                                              agency.
are provided with special health supervision, personnel radiation expo-
sure monitoring devices, and training in accordance with §289.203(c)                        (C) The total cesium-137 or americium-241 activity
of this title (relating to Notices, Instructions, and Reports to Workers;     contained in emission control dust and other incident-related materials
Inspections).                                                                 to be transferred to a hazardous waste disposal facility has been
                                                                              specifically approved by NRC or the appropriate agreement state(s)
          (5)     Each licensee shall:
                                                                              and does not exceed the total activity associated with the inadvertent
              (A) establish, maintain, and retain written procedures          melting incident.
for safely opening packages in which radioactive material is received;
                                                                                           (D) The hazardous waste disposal facility operator has
and
                                                                              been notified in writing of the impending transfer of the incident-re-
             (B) ensure that the procedures are followed and that due         lated materials and has agreed in writing to receive and dispose of
consideration is given to special instructions for the type of package        the packaged or unpackaged materials. Copies of the notification and
being opened.                                                                 agreement shall be submitted to the agency.
          (6) Licensees transferring special form sources in vehicles                        (E) The licensee, as listed in subparagraph (A)(i) or (ii)
owned or operated by the licensee to and from a work site are exempt          of this paragraph, notifies the NRC or agreement state(s) in which the
from the contamination monitoring requirements of paragraph (2) of            transferor and transferee are located, in writing, of the impending trans-
this subsection, but are not exempt from the monitoring requirement           fer, at least 30 days before the transfer.
in paragraph (2) of this subsection for measuring radiation levels that
ensures that the source is still properly lodged in its shield.



27 TexReg 2030 March 15, 2002 Texas Register
              (F) The packaged stabilized material has been packaged                       (B) the quantity of licensed radioactive material that the
for transportation and disposal in non-bulk steel packaging as defined       licensee releases into the sewer in one month divided by the average
in DOT regulations at 49 CFR §173.213.                                       monthly volume of water released into the sewer by the licensee does
                                                                             not exceed the concentration listed in Table III of subsection (ggg)(2)
             (G) The emission control dust and other incident-re-
                                                                             of this section; and
lated materials that have been stabilized and packaged as described
in subparagraph (F) of this paragraph shall contain pretreatment                          (C) if more than one radionuclide is released, the fol-
average concentrations of cesium-137 that do not exceed 130 pCi/g of         lowing additional conditions must also be satisfied:
material, above background, or pretreatment average concentrations
                                                                                               (i) the fraction of the limit in Table III of subsection
of americium-241 that do not exceed 3 pCi/g of material, above
                                                                             (ggg)(2) of this section represented by discharges into sanitary sewer-
background.
                                                                             age determined by dividing the actual monthly average concentration
             (H) The dose rate at 3.28 feet (1 m) from the surface of        of each radionuclide released by the licensee into the sewer by the con-
any package containing stabilized waste shall not exceed 20 µrem per         centration of that radionuclide listed in Table III of subsection (ggg)(2)
hour or 0.20 µSv per hour, above background.                                 of this section; and
             (I) The unpackaged stabilized material shall contain                            (ii) the sum of the fractions for each radionuclide re-
pretreatment average concentrations of cesium-137 that do not exceed         quired by clause (i) of this subparagraph does not exceed unity; and
100 pCi/g of material, above background, or pretreatment average
                                                                                           (D) the total quantity of licensed radioactive material
concentrations of americium-241 that do not exceed 3 pCi/g of
                                                                             that the licensee releases into the sanitary sewerage in a year does not
material, above background.
                                                                             exceed 5 curies (Ci) (185 gigabecquerels (GBq)) of hydrogen-3, 1 Ci
             (J) The licensee transferring the cesium-137 or ameri-          (37 GBq) of carbon-14, and 1 Ci (37 GBq) of all other radioactive
cium -241 contaminated incident-related material must consult with           materials combined.
the agency, the Commission or its successor, another state’s regula-
                                                                                       (2) Excreta from individuals undergoing medical diagnosis
tory agency with jurisdiction to regulate hazardous waste as classified
                                                                             or therapy with radioactive material are not subject to the limitations
under RCRA, or the EPA and other authorized parties, including state
                                                                             contained in paragraph (1) of this subsection.
and local governments, and obtain all necessary approvals, in addition
to those of NRC and/or appropriate agreement states, for the transfers              (hh) Treatment by incineration. A licensee may treat licensed
described in paragraph (2) of this subsection.                               material by incineration only in the form and concentration specified
                                                                             in subsection (fff)(1) of this section or as authorized by the agency.
               (K) Nothing in this subsection shall be or is intended to
be construed as a waiver of any RCRA permit condition or term, of any               (ii) Discharge by release into septic tanks. No licensee shall
state or local statute or regulation, or of any federal RCRA regulation.     discharge radioactive material into a septic tank system except as
                                                                             specifically approved by the agency.
               (L) The total incident-related cesium-137 activity de-
scribed in paragraph (2) of this subsection received by a facility over             (jj) Transfer for disposal and manifests.
its operating life shall not exceed 1 Ci (37 GBq). The total incident-re-
                                                                                       (1) The control of transfers of LLRW intended for disposal
lated americium-241 activity described in paragraph (2) of this subsec-
                                                                             at a licensed low-level radioactive waste disposal facility, the estab-
tion received by a facility over its operating life shall not exceed 30
                                                                             lishment of a manifest tracking system, and additional requirements
mCi (1.11MBq). The agency will maintain a record of the total inci-
                                                                             concerning transfers and recordkeeping for those wastes are found in
dent-related cesium-137 or americium-241 activity shipped by a person
                                                                             §289.257(s)(5) of this title.
licensed by the agency. Upon consultation with the Commission, the
agency will determine if the total incident-related activity received by a               (2) Each person involved in the transfer of waste for dis-
hazardous waste disposal facility over its operating life has reached 1 Ci   posal including the waste generator, waste collector, and waste proces-
(37 GBq) of cesium-137 or 30 mCi (1.11MBq) of americium-241. The             sor, shall comply with the requirements specified in §289.257(s)(5) of
agency will not approve shipments of cesium-137 or americium-241             this title.
contaminated incident-related material that will cause this limit to be
                                                                                    (kk) Compliance with environmental and health protection
exceeded.
                                                                             regulations. Nothing in subsections (ff), (gg), (hh), or (jj) of this
         (3) A person shall be specifically licensed to receive waste        section relieves the licensee from complying with other applicable
containing licensed material from other persons for:                         federal, state, and local regulations governing any other toxic or haz-
                                                                             ardous properties of materials that may be disposed of in accordance
              (A) treatment prior to disposal;
                                                                             with subsections (ff), (gg), (hh), or (jj) of this section.
              (B) treatment by incineration;
                                                                                    (ll) General provisions for records.
              (C) decay in storage;
                                                                                        (1) Each licensee shall use the SI units becquerel, gray,
              (D) disposal at an authorized land disposal facility; or       sievert, and coulomb per kilogram, or the special units curie, rad, rem,
                                                                             and roentgen, including multiples and subdivisions, and shall clearly
              (E) storage until transferred to a storage or disposal fa-
                                                                             indicate the units of all quantities on records required by this section.
cility authorized to receive the waste.
                                                                             Disintegrations per minute may be indicated on records of surveys per-
      (gg)    Discharge by release into sanitary sewerage.                   formed to determine compliance with subsection (ggg)(6) of this sec-
                                                                             tion. To ensure compatibility with international transportation stan-
          (1) A licensee may discharge licensed material into sani-
                                                                             dards, all limits in this section are given in terms of dual units: The In-
tary sewerage if each of the following conditions is satisfied:
                                                                             ternational System of Units (SI) followed or preceded by United States
              (A) the material is readily soluble, or is readily             (U.S.) standard or customary units. The U.S. customary units are not
dispersible biological material, in water;                                   exact equivalents, but are rounded to a convenient value, providing a




                                                                      ADOPTED RULES March 15, 2002 27 TexReg 2031
functionally equivalent unit. For the purpose of this section, either unit    becquerel or microcurie and retained for inspection by the agency for
may be used.                                                                  five years after the records are made.
           (2) Notwithstanding the requirements of paragraph (1) of                  (pp) Records of lifetime cumulative occupational radiation
this subsection, when recording information on shipment manifests, as         dose. The licensee shall retain the records of lifetime cumulative
required in §289.257 of this title, information must be recorded in SI        occupational radiation dose as specified in subsection (k) of this
units or in SI and units as specified in paragraph (1) of this subsection.    section on BRC Form 202-2 or equivalent until the agency terminates
                                                                              each pertinent license requiring this record. The licensee shall retain
           (3) The licensee shall make a clear distinction among the
                                                                              records used in preparing BRC Form 202-2 or equivalent for three
quantities entered on the records required by this section, such as, to-
                                                                              years after the record is made.
tal effective dose equivalent, total organ dose equivalent, shallow dose
equivalent, lens dose equivalent, deep dose equivalent, or committed                (qq)   Records of planned special exposures.
effective dose equivalent.
                                                                                         (1) For each use of the provisions of subsection (k) of
             (4) Records required in accordance with §289.201(d) of           this section for planned special exposures, the licensee shall maintain
this title, and subsections (mm)-(oo), (tt), and (uu) of this section shall   records that describe:
include the date and the identification of individual(s) making the
                                                                                           (A) the exceptional circumstances requiring the use of
record, and, as applicable, a unique identification of survey instru-
                                                                              a planned special exposure;
ment(s) used, and an exact description of the location of the survey.
Records of receipt, transfer, and disposal of sources of radiation shall                    (B) the name of the management official who autho-
uniquely identify the source of radiation.                                    rized the planned special exposure and a copy of the signed authoriza-
                                                                              tion;
          (5) Copies of records required in accordance with
§289.201(d) of this title, and subsections (mm)-(uu) of this section,                      (C) what actions were necessary;
and by license condition that are relevant to operations at an additional
                                                                                           (D) why the actions were necessary;
authorized use/storage site shall be maintained at that site in addition
to the main site specified on a license.                                                  (E) what precautions were taken to assure that doses
                                                                              were maintained ALARA;
       (mm)    Records of radiation protection programs.
                                                                                            (F) what individual and collective doses were expected
          (1) Each licensee shall maintain records of the radiation
                                                                              to result; and
protection program, including:
                                                                                           (G) the doses actually received in the planned special
              (A) the provisions of the program; and
                                                                              exposure.
            (B) audits and other reviews of program content and im-
                                                                                        (2) The licensee shall retain the records until the agency
plementation.
                                                                              terminates each pertinent license requiring these records.
          (2) The licensee shall retain the records required by para-
                                                                                    (rr) Records of individual monitoring results.
graph (1)(A) of this subsection until the agency terminates each perti-
nent license requiring the record. The licensee shall retain the records                (1) Each licensee shall maintain records of doses received
required by paragraph (1)(B) of this subsection for three years after the     by all individuals for whom monitoring was required in accordance
record is made.                                                               with subsection (q) of this section, and records of doses received dur-
                                                                              ing planned special exposures, accidents, and emergency conditions.
       (nn)   Records of surveys.
                                                                              Assessments of dose equivalent and records made using units in effect
           (1) Each licensee shall maintain records showing the re-           before January 1, 1994, need not be changed. These records shall in-
sults of surveys and calibrations required by subsections (p) and (ee)(2)     clude, when applicable:
of this section. The licensee shall retain these records for three years
                                                                                            (A) the deep dose equivalent to the whole body, lens
after the record is made.
                                                                              dose equivalent, shallow dose equivalent to the skin, and shallow dose
           (2) The licensee shall retain each of the following records        equivalent to the extremities;
until the agency terminates each pertinent license requiring the record:
                                                                                            (B) the estimated intake of radionuclides, see subsec-
             (A) the results of surveys to determine the dose from            tion (g) of this section;
external sources of radiation used, in the absence of or in combination
                                                                                            (C) the committed effective dose equivalent assigned to
with individual monitoring data, in the assessment of individual dose
                                                                              the intake of radionuclides;
equivalents; and
                                                                                            (D) the specific information used to calculate the com-
             (B) results of measurements and calculations used to
                                                                              mitted effective dose equivalent in accordance with subsection (i)(1)
determine individual intakes of radioactive material and used in the as-
                                                                              and (3) of this section and when required by subsection (q)(1) of this
sessment of internal dose; and
                                                                              section;
             (C) results of air sampling, surveys, and bioassays re-
                                                                                           (E) the total effective dose equivalent when required by
quired in accordance with subsection (x)(1)(C)(i) and (ii) of this sec-
                                                                              subsection (g) of this section;
tion; and
                                                                                           (F) the total of the deep dose equivalent and the com-
              (D) results of measurements and calculations used to
                                                                              mitted dose to the organ receiving the highest total dose; and
evaluate the release of radioactive effluents to the environment.
                                                                                           (G) the data used to make occupational dose assess-
      (oo) Records of tests for leakage or contamination of sealed
                                                                              ments in accordance with subsection (j)(5) of this section.
sources. Records of tests for leakage or contamination of sealed
sources required by §289.201(g) of this title shall be kept in units of



27 TexReg 2032 March 15, 2002 Texas Register
          (2) The licensee shall make entries of the records specified      an aggregate quantity equal to or greater than 1,000 times the quan-
in paragraph (1) of this subsection at intervals not to exceed 1 year and   tity specified in subsection (ggg)(3) of this section, under such circum-
by April 30 of the following year.                                          stances that it appears to the licensee that an exposure could result to
                                                                            individuals in unrestricted areas; or
          (3) The licensee shall maintain the records specified in
paragraph (1) of this subsection on BRC Form 202-3, in accordance                         (B) within 30 days after its occurrence becomes known
with the instructions for BRC Form 202-3, or in clear and legible           to the licensee, lost, stolen, or missing licensed radioactive material in
records containing all the information required by BRC Form 202-3.          an aggregate quantity greater than 10 times the quantity specified in
                                                                            subsection (ggg)(3) of this section that is still missing.
           (4) The licensee shall maintain the records of dose to an
embryo/fetus with the records of dose to the declared pregnant woman.                 (2) Each licensee required to make a report in accordance
The declaration of pregnancy, including the estimated date of concep-       with paragraph (1) of this subsection shall, within 30 days after making
tion, shall also be kept on file, but may be maintained separately from     the telephone report, make a written report to the agency setting forth
the dose records.                                                           the following information:
           (5) The licensee shall retain each required form or record                    (A) a description of the licensed source of radiation
until the agency terminates each pertinent license requiring the record.    involved, including, for radioactive material, the kind, quantity, and
The licensee shall retain records used in preparing BRC Form 202-3 or       chemical and physical form;
equivalent for three years after the record is made.
                                                                                          (B) a description of the circumstances under which the
      (ss)    Records of dose to individual members of the public.          loss or theft occurred;
          (1) Each licensee shall maintain records sufficient to                          (C) a statement of disposition, or probable disposition,
demonstrate compliance with the dose limit for individual members of        of the licensed source of radiation involved;
the public. See subsection (n) of this section.
                                                                                          (D) exposures of individuals to radiation, circum-
          (2) The licensee shall retain the records required by para-       stances under which the exposures occurred, and the possible total
graph (1) of this subsection until the agency terminates each pertinent     effective dose equivalent to persons in unrestricted areas;
license requiring the record.
                                                                                         (E) actions that have been taken, or will be taken, to
      (tt) Records of discharge, treatment, or transfer for disposal.       recover the source of radiation; and
          (1) Each licensee shall maintain records of the discharge                      (F) procedures or measures that have been, or will be,
or treatment of licensed materials made in accordance with subsection       adopted to ensure against a recurrence of the loss or theft of licensed
(gg) and (hh) of this section and of transfers for disposal made in ac-     sources of radiation.
cordance with subsection (jj) of this section and §289.257 of this title.
                                                                                       (3) Subsequent to filing the written report, the licensee
          (2) The licensee shall retain the records required by para-       shall also report additional substantive information on the loss or theft
graph (1) of this subsection until the agency terminates each pertinent     within 30 days after the licensee learns of such information.
license requiring the record.
                                                                                      (4) The licensee shall prepare any report filed with the
       (uu) Records of testing entry control devices for very high ra-      agency in accordance with this subsection so that names of individuals
diation areas.                                                              who may have received exposure to radiation are stated in a separate
                                                                            and detachable portion of the report.
          (1) Each licensee shall maintain records of tests made in
accordance with subsection (u)(2)(I) of this section on entry control              (xx)    Notification of incidents.
devices for very high radiation areas. These records must include the
                                                                                      (1) Notwithstanding other requirements for notification,
date, time, and results of each such test of function.
                                                                            each licensee shall immediately report each event involving a source of
          (2) The licensee shall retain the records required by para-       radiation possessed by the licensee that may have caused or threatens
graph (1) of this subsection for three years after the record is made.      to cause:
       (vv) Form of records. Each record required by this chapter                          (A) an individual to receive:
shall be legible throughout the specified retention period. The record
                                                                                              (i) a total effective dose equivalent of 25 rems (0.25
shall be the original or a reproduced copy or a microform, provided that
                                                                            Sv) or more;
the copy or microform is authenticated by authorized personnel and
that the microform is capable of producing a clear copy throughout the                        (ii) a lens dose equivalent of 75 rems (0.75 Sv) or
required retention period or the record may also be stored in electronic    more; or
media with the capability for producing legible, accurate, and complete
                                                                                                (iii) a shallow dose equivalent to the skin or extrem-
records during the required retention period. Records, such as letters,
                                                                            ities or a total organ dose equivalent of 250 rads (2.5 grays) or more; or
drawings, and specifications, shall include all pertinent information,
such as stamps, initials, and signatures. The licensee shall maintain                      (B) the release of radioactive material, inside or outside
adequate safeguards against tampering with and loss of records.             of a restricted area, so that, had an individual been present for 24 hours,
                                                                            the individual could have received an intake five times the occupational
       (ww)      Reports of stolen, lost, or missing licensed sources of
                                                                            ALI. This provision does not apply to locations where personnel are
radiation.
                                                                            not normally stationed during routine operations, such as hot-cells or
           (1)   Each licensee shall report to the agency by telephone as   process enclosures.
follows:
                                                                                      (2) Each licensee shall, within 24 hours of discovery of the
              (A) immediately after its occurrence becomes known to         event, report to the agency each event involving loss of control of a
the licensee, stolen, lost, or missing licensed radioactive material in




                                                                     ADOPTED RULES March 15, 2002 27 TexReg 2033
licensed source of radiation possessed by the licensee that may have                           (iii) no redundant equipment is available and opera-
caused, or threatens to cause:                                                ble to perform the required safety function;
              (A) an individual to receive, in a period of 24 hours:                       (C) an event that requires unplanned medical treatment
                                                                              at a medical facility of an individual with spreadable radioactive con-
                 (i) a total effective dose equivalent exceeding 5 rems
                                                                              tamination on the individual’s clothing or body; or
(0.05 Sv);
                                                                                           (D) an unplanned fire or explosion damaging any ra-
                 (ii) a lens dose equivalent exceeding 15 rems (0.15
                                                                              dioactive material or any device, container, or equipment containing
Sv); or
                                                                              radioactive material when:
                   (iii) a shallow dose equivalent to the skin or extrem-
                                                                                                (i) the quantity of material involved is greater than
ities or a total organ dose equivalent exceeding 50 rems (0.5 Sv); or
                                                                              five times the lowest annual limit on intake specified in subsection
               (B) the release of radioactive material, inside or outside     (ggg)(2) of this section for the material; and
of a restricted area, so that, had an individual been present for 24 hours,
                                                                                                (ii) the damage affects the integrity of the radioac-
the individual could have received an intake in excess of one occupa-
                                                                              tive material or its container.
tional ALI. This provision does not apply to locations where personnel
are not normally stationed during routine operations, such as hot-cells                  (8) Preparation and submission of reports. Reports made
or process enclosures.                                                        by licensees in response to the requirements of paragraphs (6) and (7)
                                                                              of this subsection shall be made as follows.
          (3) Licensees shall make the initial notification reports re-
quired by paragraphs (1) and (2) of this subsection by telephone to the                     (A) Licensees shall make reports required by para-
agency and shall confirm the initial notification report within 24 hours      graphs (6) and (7) of this subsection by telephone to the agency. To
by telegram, mailgram, or facsimile to the agency.                            the extent that the information is available at the time of notification,
                                                                              the information provided in these reports shall include:
          (4) The licensee shall prepare each report filed with the
agency in accordance with this section so that names of individuals                            (i) the caller’s name and call back telephone num-
who have received exposure to sources of radiation are stated in a sep-       ber;
arate and detachable portion of the report.
                                                                                               (ii) a description of the event, including date and
           (5) The provisions of this section do not apply to doses that      time;
result from planned special exposures, provided such doses are within
                                                                                               (iii) the exact location of the event;
the limits for planned special exposures and are reported in accordance
with subsection (zz) of this section.                                                          (iv) the isotopes, quantities, and chemical and phys-
                                                                              ical form of the radioactive material involved; and
           (6) Each licensee shall notify the agency as soon as pos-
sible but not later than four hours after the discovery of an event that                       (v)   any personnel radiation exposure data available.
prevents immediate protective actions necessary to avoid exposures to
                                                                                           (B) Each licensee who makes a report required by para-
radioactive materials that could exceed regulatory limits or releases of
                                                                              graphs (6) and (7) of this subsection shall submit to the agency a written
radioactive materials that could exceed regulatory limits (events may
                                                                              follow-up report within 30 days of the initial report. Written reports
include fires, explosions, toxic gas releases, etc.).
                                                                              prepared in accordance with other requirements of this chapter may
           (7) Each licensee shall notify the agency within 24 hours          be submitted to fulfill this requirement if the reports contain all of the
after the discovery of any of the following events involving radioactive      necessary information and the appropriate distribution is made. The
material:                                                                     reports must include the following:
              (A) an unplanned contamination event that:                                      (i) a description of the event, including the probable
                                                                              cause and the manufacturer and model number (if applicable) of any
                (i) requires access to the contaminated area, by
                                                                              equipment that failed or malfunctioned;
workers or the public, to be restricted for more than 24 hours by
imposing additional radiological controls or by prohibiting entry into                         (ii) the exact location of the event;
the area;
                                                                                               (iii) the isotopes, quantities, and chemical and phys-
                  (ii) involves a quantity of material greater than five      ical form of the radioactive material involved;
times the lowest annual limit on intake specified in subsection (ggg)(2)
                                                                                               (iv) date and time of the event;
of this section for the material; and
                                                                                               (v) corrective actions taken or planned and the re-
                 (iii) has access to the area restricted for a reason
                                                                              sults of any evaluations or assessments; and
other than to allow isotopes with a half-life of less than 24 hours to
decay prior to decontamination.                                                                (vi) the extent of exposure of individuals to radioac-
                                                                              tive materials without identification of individuals by name.
             (B) an event in which equipment is disabled or fails to
function as designed when:                                                           (yy) Reports of exposures, radiation levels, and concentrations
                                                                              of radioactive material exceeding the limits.
                  (i) the equipment is required by rule or license con-
dition to prevent releases exceeding regulatory limits, to prevent expo-                 (1) In addition to the notification required by subsection
sures to radioactive materials exceeding regulatory limits, or to mitigate    (xx) of this section, each licensee shall submit a written report within
the consequences of an accident;                                              30 days after learning of any of the following occurrences:
                 (ii) the equipment is required to be available and op-                    (A) incidents for which notification is required by sub-
erable when it is disabled or fails to function; and                          section (xx) of this section;




27 TexReg 2034 March 15, 2002 Texas Register
               (B) doses in excess of any of the following:                            (1) Requirements for notification and reports to individuals
                                                                             of exposure to sources of radiation are specified in §289.203 of this title.
                   (i) the occupational dose limits for adults in subsec-
tion (f) of this section;                                                               (2) When a licensee is required in accordance with subsec-
                                                                             tion (yy) or (zz) of this section to report to the agency any exposure of
                  (ii) the occupational dose limits for a minor in sub-
                                                                             an identified occupationally exposed individual, or an identified mem-
section (l) of this section;
                                                                             ber of the public, to sources of radiation, the licensee shall also notify
              (iii) the limits for an embryo/fetus of a declared             the individual and provide a copy of the report submitted to the agency,
pregnant woman in subsection (m) of this section;                            to the individual. Such notice shall be transmitted at a time not later
                                                                             than the transmittal to the agency, and shall comply with the provisions
                 (iv) the limits for an individual member of the public
                                                                             of §289.203(d)(1) of this title.
in subsection (n) of this section;
                                                                                     (bbb) Reports of leaking or contaminated sealed sources. The
                  (v)   any applicable limit in the license; or
                                                                             licensee shall immediately notify the agency if the test for leakage or
                (vi) the ALARA constraints for air emissions as re-          contamination required in accordance with §289.201(g) of this title in-
quired by subsection (e)(4) of this section;                                 dicates a sealed source is leaking or contaminated. A written report
                                                                             of a leaking or contaminated source shall be submitted to the agency
               (C) levels of radiation or concentrations of radioactive
                                                                             within five days. The report shall include the equipment involved, the
material in:
                                                                             test results and the corrective action taken.
                  (i) a restricted area in excess of applicable limits in
                                                                                    (ccc) Vacating premises.
the license; or
                                                                                        (1) Each licensee or person possessing non-exempt sources
                  (ii) an unrestricted area in excess of 10 times the ap-
                                                                             of radiation shall, no less than 30 days before vacating and relinquish-
plicable limit set forth in this section or in the license, whether or not
                                                                             ing possession or control of premises, notify the agency, in writing, of
involving exposure of any individual in excess of the limits in subsec-
                                                                             the intent to vacate.
tion (n) of this section; or
                                                                                       (2) The licensee or person possessing non-exempt radioac-
              (D) for licensees subject to the provisions of the EPA’s
                                                                             tive material shall decommission the premises to a degree consistent
generally applicable environmental radiation standards in 40 CFR
                                                                             with subsequent use as an unrestricted area and in accordance with the
§190, levels of radiation or releases of radioactive material in excess of
                                                                             requirements of subsection (ddd) of this section or, for uranium recov-
those standards, or of license conditions related to those requirements.
                                                                             ery and byproduct material disposal facilities licensed in accordance
          (2) Each report required by paragraph (1) of this subsection       with §289.260 of this title, subsection (eee) of this section.
shall describe the extent of exposure of individuals to radiation and
                                                                                    (ddd)     Radiological requirements for license termination.
radioactive material, including, as appropriate:
                                                                                       (1)     General provisions and scope.
               (A) estimates of each individual’s dose;
                                                                                             (A) The requirements in this section apply to the de-
             (B) the levels of radiation and concentrations of
                                                                             commissioning of facilities licensed in accordance with §289.252 of
radioactive material involved;
                                                                             this title (relating to Licensing of Radioactive Material), §289.254 of
             (C) the cause of the elevated exposures, dose rates, or         this title (relating to Licensing of Radioactive Waste Processing and
concentrations; and                                                          Storage Facilities), §289.255 of this title (relating to Radiation Safety
                                                                             Requirements and Licensing and Registration Procedures for Industrial
             (D) corrective steps taken or planned to ensure against
                                                                             Radiography), and §289.258 of this title (relating to Licensing and Ra-
a recurrence, including the schedule for achieving conformance with
                                                                             diation Safety Requirements for Irradiators). The requirements do not
applicable limits, ALARA constraints, generally applicable environ-
                                                                             apply to uranium recovery and byproduct material disposal facilities
mental standards, and associated license conditions.
                                                                             already subject to the requirements of §289.260 of this title (relating
           (3) Each report filed in accordance with paragraph (1) of         to Licensing of Uranium Recovery and Byproduct Material Disposal
this subsection shall include for each individual exposed: the name,         Facilities).
identification number, and date of birth. With respect to the limit for
                                                                                             (B) The requirements in this section do not apply to the
the embryo/fetus in subsection (m) of this section, the identifiers should
                                                                             following:
be those of the declared pregnant woman. The report shall be prepared
so that this information is stated in a separate and detachable portion                        (i) sites that have been decommissioned prior to Oc-
of the report.                                                               tober 1, 2000, in accordance with requirements identified in this section
                                                                             and in §289.252 of this title; or
         (4) All licensees who make reports in accordance with
paragraph (1) of this subsection shall submit the report in writing to                       (ii) sites that have previously submitted and received
the agency.                                                                  approval on a decommissioning plan by October 1, 2000.
       (zz) Reports of planned special exposures. The licensee shall                       (C) After a site has been decommissioned and the li-
submit a written report to the agency within 30 days following any           cense terminated in accordance with the requirements in the subsec-
planned special exposure conducted in accordance with subsection (k)         tion, the agency will require additional cleanup if it determines that the
of this section, informing the agency that a planned special exposure        requirements of the subsection were not met and residual radioactivity
was conducted and indicating the date the planned special exposure oc-       remaining at the site could result in significant threat to public health
curred and the information required by subsection (qq) of this section.      and safety.
      (aaa) Notifications and reports to individuals.                                       (D) When calculating TEDE to the average member of
                                                                             the critical group, the licensee shall determine the peak annual TEDE
                                                                             dose expected within the first 1,000 years after decommissioning.



                                                                      ADOPTED RULES March 15, 2002 27 TexReg 2035
          (2) Radiological requirements for unrestricted use. A site                      (B) publish a notice in the Texas Register and a forum,
will be considered acceptable for unrestricted use if the residual ra-     such as local newspapers, letters to state of local organizations, or other
dioactivity that is distinguishable from background radiation results in   appropriate forum, that is readily accessible to individuals in the vicin-
a TEDE to an average member of the critical group that does not ex-        ity of the site, and solicit comments from affected parties.
ceed 25 mrem (0.25 mSv) per year, including that from groundwater
                                                                                      (5) Minimization of contamination.          Applicants for
sources of drinking water, and the residual radioactivity has been re-
                                                                           licenses, other than renewals, after October 1, 2000, shall describe in
duced to levels that are ALARA. Determination of the levels that are
                                                                           the application how facility design and procedures for operation will
ALARA must take into account consideration of any detriments, such
                                                                           minimize, to the extent practical, contamination of the facility and the
as deaths from transportation accidents, expected to potentially result
                                                                           environment, facilitate eventual decommissioning, and minimize, to
from decontamination and waste disposal.
                                                                           the extent practical, the generation of LLRW.
          (3)    Alternate requirements for license termination.
                                                                                 (eee) Limits for contamination of soil, surfaces of facilities and
              (A) The agency may terminate a license using alternate       equipment, and vegetation.
requirements greater than the dose requirements specified in paragraph
                                                                                      (1) No licensee shall possess, receive, use, or transfer ra-
(2) of this subsection if the licensee does the following:
                                                                           dioactive material in such a manner as to cause contamination of sur-
                (i) provides assurance that public health and safety       faces of facilities or equipment in unrestricted areas to the extent that
would continue to be protected, and that it is unlikely that the dose      the contamination exceeds the limits specified in subsection (ggg)(6)
from all man-made sources combined, other than medical, would be           of this section.
more than the 1 mSv per year (100 mrem per year) limit specified in
                                                                                      (2) No licensee shall possess, receive, use, or transfer ra-
subsection (o) of this section, by submitting an analysis of possible
                                                                           dioactive material in such a manner as to cause contamination of soil
sources of exposure;
                                                                           in unrestricted areas, to the extent that the contamination exceeds, on a
                  (ii) reduces doses to ALARA levels, taking into con-     dry weight basis, the concentration limits specified in:
sideration any detriments such as traffic accidents expected to poten-
                                                                                          (A) subsection (ggg)(8) of this section; or
tially result from decontamination and waste disposal; and
                                                                                         (B) the effluent concentrations in Table II, Column 2
                  (iii) has submitted a decommissioning plan to the
                                                                           of subsection (ggg)(2)(F) of this section, with the units changed from
agency indicating the licensee’s intent to decommission in accordance
                                                                           microcuries per milliliter to microcuries per gram, for radionuclides
with the requirements in §289.252(l)(7) of this title, and specifying
                                                                           not specified in subsection (ggg)(8) of this section or paragraph (4) of
that the licensee proposes to decommission by use of alternate require-
                                                                           this subsection.
ments. The licensee shall document in the decommissioning plan how
the advice of individuals and institutions in the community who may                  (3) Where combinations of radionuclides are involved, the
be affected by the decommissioning has been sought and addressed, as       sum of the ratios between the concentrations present and the limits
appropriate, following analysis of that advice. In seeking such advice,    specified in paragraph (2) of this subsection shall not exceed one.
the licensee shall provide for the following:
                                                                                     (4) Notwithstanding the limits specified in paragraph
                   (I) participation by representatives of a broad         (2) of this subsection, no licensee shall cause the concentration of
cross section of community interests who may be affected by the            radium-226 or radium-228 in soil in unrestricted areas, averaged over
decommissioning;                                                           any 100 square meters (m2), to exceed the background level by more
                                                                           than:
                     (II) an opportunity for a comprehensive, collec-
tive discussion on the issues by the participants represented; and                     (A) 5 picocuries per gram (pCi/g) (0.185 becquerel per
                                                                           gram (Bq/g)), averaged over the first 15 cm of soil below the surface;
                      (III) a publicly available summary of the results
                                                                           and
of all such discussions, including a description of the individual view-
points of the participants on the issues and the extent of agreement and                  (B) 15 pCi/g (0.555 Bq/g), averaged over 15 cm thick
disagreement among the participants on the issues.                         layers of soil more than 15 cm below the surface.
             (B) The use of alternate requirements to terminate a li-                 (5) No licensee shall possess, receive, use, or transfer ra-
cense requires the approval of the agency after consideration of the       dioactive material in such a manner as to cause contamination of veg-
agency’s recommendations that will address any comments provided           etation in unrestricted areas to exceed 5 pCi/g (0.185 Bq/g), based on
by the EPA and any public comments submitted in accordance with            dry weight, for radium-226 or radium-228.
paragraph (4) of this subsection.
                                                                                      (6) Notwithstanding the limits specified in paragraph (2)
           (4) Public notification and public participation. Upon re-      of this subsection, no licensee shall cause the concentration of natural
ceipt of a decommissioning plan from the licensee, or a proposal from      uranium with no daughters present, based on dry weight and averaged
the licensee for release of a site in accordance with paragraph (3) of     over any 100 m2 of area, to exceed the following limits:
this subsection, or whenever the agency deems such notice to be in the
                                                                                        (A) 30 pCi/g (1.11 Bq/g), averaged over the top 15 cm
public interest, the agency will do the following:
                                                                           of soil below the surface; and
                (A) notify and solicit comments from the following:
                                                                                         (B) 150 pCi/g (5.55 Bq/g), average concentration at
                  (i) local and state governments in the vicinity of the   depths greater than 15 centimeters below the surface so that no indi-
site and any Indian Nation or other indigenous people that have treaty     vidual member of the public will receive an effective dose equivalent
or statutory rights that could be affected by the decommissioning; and     in excess of 100 mrem (1 mSv) per year.
                   (ii) the EPA for cases where the licensee proposes to          (fff)   Exemption of specific wastes.
release a site in accordance with paragraph (3) of this subsection; and




27 TexReg 2036 March 15, 2002 Texas Register
          (1) A licensee may discard the following licensed material           Figure: 25 TAC §289.202(ggg)(1) (No change.)
without regard to its radioactivity:
                                                                                         (2) Annual limits on intake (ALI) and derived air concen-
              (A) 0.05 microcurie (µCi) (1.85 kilobecquerels (kBq)),           trations (DAC) of radionuclides for occupational exposure; effluent
or less, of hydrogen-3, carbon-14, or iodine-125 per gram of medium            concentrations; concentrations for release to sanitary sewerage.
used for liquid scintillation counting or in vitro clinical or in vitro lab-
                                                                                             (A) Introduction.
oratory testing; and
                                                                                                  (i) For each radionuclide, Table I of subparagraph
             (B) 0.05 µCi (1.85 kBq), or less, of hydrogen-3, car-
                                                                               (F) of this paragraph indicates the chemical form that is to be used for
bon-14, or iodine-125, per gram of animal tissue, averaged over the
                                                                               selecting the appropriate ALI or DAC value. The ALIs and DACs for
weight of the entire animal.
                                                                               inhalation are given for an aerosol with an activity median aerodynamic
          (2) A licensee shall not discard tissue in accordance with           diameter (AMAD) of 1 micron, and for three classes (D, W, Y) of ra-
paragraph (1)(B) of this subsection in a manner that would permit its          dioactive material, which refer to their retention (approximately days,
use either as food for humans or as animal feed.                               weeks, or years) in the pulmonary region of the lung. This classifica-
                                                                               tion applies to a range of clearance half-times for D if less than 10 days,
          (3) The licensee shall maintain records in accordance with
                                                                               for W from 10 to 100 days, and for Y greater than 100 days. Table II
subsection (tt) of this section.
                                                                               of subparagraph (F) of this paragraph provides concentration limits for
            (4) Any licensee may, upon agency approval of procedures           airborne and liquid effluents released to the general environment. Table
required in paragraph (6) of this subsection, discard licensed material        III of subparagraph (F) of this paragraph provides concentration limits
included in subsection (ggg)(7) of this section, provided that it does         for discharges to sanitary sewerage.
not exceed the concentration and total curie limits contained therein, in
                                                                                                 (ii) The values in Tables I, II, and III of subparagraph
a Type I municipal solid waste site as defined in the Municipal Solid
                                                                               (F) of this paragraph are presented in the computer "E" notation. In this
Waste Regulations of the authorized regulatory agency (31 Texas Ad-
                                                                               notation a value of 6E-02 represents a value of 6 x 10-2 or 0.06, 6E+2
ministrative Code Chapter 330), unless such licensed material also con-
                                                                               represents 6 x 102 or 600, and 6E+0 represents 6 x 100 or 6.
tains hazardous waste, as defined in §3(15) of the Solid Waste Disposal
Act, Health and Safety Code, Chapter 361. Any licensed material in-                          (B) Occupational values.
cluded in subsection (ggg)(7) of this section and which is a hazardous
                                                                                                 (i) Note that the columns in Table I of subparagraph
waste as defined in the Solid Waste Disposal Act may be discarded at
                                                                               (F) of this paragraph captioned "Oral Ingestion ALI," "Inhalation ALI,"
a facility authorized to manage hazardous waste by the authorized reg-
                                                                               and "DAC," are applicable to occupational exposure to radioactive ma-
ulatory agency.
                                                                               terial.
          (5) Each licensee who discards material described in para-
                                                                                                 (ii) The ALIs in subparagraph (F) of this paragraph
graphs (1) or (4) of this subsection shall:
                                                                               are the annual intakes of given radionuclide by "Reference Man" that
             (A) make surveys adequate to assure that the limits of            would result in either a committed effective dose equivalent of 5 rems
paragraphs (1) or (4) of this subsection are not exceeded; and                 (0.05 Sv), stochastic ALI, or a committed dose equivalent of 50 rems
                                                                               (0.5 Sv) to an organ or tissue, non-stochastic ALI. The stochastic ALIs
              (B) remove or otherwise obliterate or obscure all labels,
                                                                               were derived to result in a risk, due to irradiation of organs and tis-
tags, or other markings that would indicate that the material or its con-
                                                                               sues, comparable to the risk associated with deep dose equivalent to
tents is radioactive.
                                                                               the whole body of 5 rems (0.05 Sv). The derivation includes multiply-
           (6) Prior to authorizations in accordance with paragraph (4)        ing the committed dose equivalent to an organ or tissue by a weighting
of this subsection, a licensee shall submit procedures to the agency for:      factor, wT. This weighting factor is the proportion of the risk of sto-
                                                                               chastic effects resulting from irradiation of the organ or tissue, T, to the
                (A) the physical delivery of the material to the disposal
                                                                               total risk of stochastic effects when the whole body is irradiated uni-
site;
                                                                               formly. The values of w T are listed under the definition of "weighting
             (B) surveys to be performed for compliance with para-             factor" in subsection (c) of this section. The non-stochastic ALIs were
graph (5)(A) of this subsection;                                               derived to avoid non-stochastic effects, such as prompt damage to tis-
                                                                               sue or reduction in organ function.
               (C) maintaining secure packaging during transportation
to the site; and                                                                                 (iii) A value of wT = 0.06 is applicable to each of the
                                                                               five organs or tissues in the "remainder" category receiving the highest
             (D) maintaining records of any discards made under
                                                                               dose equivalents, and the dose equivalents of all other remaining tissues
paragraph (4) of this subsection.
                                                                               may be disregarded. The following portions of the GI tract; stomach,
          (7) Nothing in this section relieves the licensee of main-           small intestine, upper large intestine, and lower large intestine, are to
taining records showing the receipt, transfer, and discard of such ra-         be treated as four separate organs.
dioactive material as specified in §289.201(d) of this title.
                                                                                                 (iv) The dose equivalents for an extremity, skin, and
          (8) Nothing in this section relieves the licensee from com-          lens of the eye are not considered in computing the committed effective
plying with other applicable federal, state, and local regulations gov-        dose equivalent, but are subject to limits that must be met separately.
erning any other toxic or hazardous property of these materials.
                                                                                                 (v) When an ALI is defined by the stochastic dose
         (9) Licensed material discarded under this section is ex-             limit, this value alone is given. When an ALI is determined by the
empt from the requirements of §289.252(t) of this title.                       non-stochastic dose limit to an organ, the organ or tissue to which the
                                                                               limit applies is shown, and the ALI for the stochastic limit is shown
        (ggg)    Appendices.
                                                                               in parentheses. Abbreviated organ or tissue designations are used as
          (1) Protection factors for respirators. The following table          follows:
contains protection factors for respiratorsa:
                                                                                                    (I) LLI wall = lower large intestine wall;



                                                                        ADOPTED RULES March 15, 2002 27 TexReg 2037
                    (II) St. wall = stomach wall;                           of two methods. For those radionuclides for which the stochastic limit
                                                                            is governing, the occupational stochastic inhalation ALI was divided
                    (III) Blad wall = bladder wall; and
                                                                            by 2.4 x 109, relating the inhalation ALI to the DAC, as explained in
                    (IV) Bone surf = bone surface.                          subparagraph (B)(viii) of this paragraph, and then divided by a factor
                                                                            of 300. The factor of 300 includes the following components:
                 (vi) Figure: 25 TAC §289.202(ggg)(2)(B)(vi) (No
change.)                                                                                       (I) a factor of 50 to relate the 5 rems (0.05 Sv)
                                                                            annual occupational dose limit to the 0.1 rem limit for members of the
                  (vii) The dose equivalents for an extremity, skin, and
                                                                            public;
lens of the eye are not considered in computing the committed effective
dose equivalent, but are subject to limits that must be met separately.                         (II) a factor of 3 to adjust for the difference in
                                                                            exposure time and the inhalation rate for a worker and that for members
                 (viii) The DAC values are derived limits intended to
                                                                            of the public; and
control chronic occupational exposures. The relationship between the
DAC and the ALI is given by:                                                                    (III) a factor of 2 to adjust the occupational val-
Figure: 25 TAC §289.202(ggg)(2)(B)(viii) (No change.)                       ues, derived for adults, so that they are applicable to other age groups.
                 (ix) The DAC values relate to one of two modes of                            (iv) For those radionuclides for which submersion,
exposure: either external submersion or the internal committed dose         that is external dose, is limiting, the occupational DAC in Column 3
equivalents resulting from inhalation of radioactive materials. DACs        of Table I of subparagraph (F) of this paragraph was divided by 219.
based upon submersion are for immersion in a semi-infinite cloud of         The factor of 219 is composed of a factor of 50, as described in clause
uniform concentration and apply to each radionuclide separately.            (iii) of this subparagraph, and a factor of 4.38 relating occupational
                                                                            exposure for 2,000 hours per year to full-time exposure (8,760 hours
                  (x) The ALI and DAC values include contributions
                                                                            per year). Note that an additional factor of 2 for age considerations is
to exposure by the single radionuclide named and any in-growth of
                                                                            not warranted in the submersion case.
daughter radionuclides produced in the body by decay of the parent.
However, intakes that include both the parent and daughter radionu-                           (v) The water concentrations were derived by taking
clides should be treated by the general method appropriate for mixtures.    the most restrictive occupational stochastic oral ingestion ALI and di-
                                                                            viding by 7.3 x 107. The factor of 7.3 x 10 7 milliliters (ml) includes
                 (xi) The values of ALI and DAC do not apply
                                                                            the following components:
directly when the individual both ingests and inhales a radionuclide,
when the individual is exposed to a mixture of radionuclides by either                          (I) the factors of 50 and 2 described in clause (iii)
inhalation or ingestion or both, or when the individual is exposed          of this subparagraph; and
to both internal and external irradiation. See subsection (g) of this
                                                                                                (II) a factor of 7.3 x 105 (ml) which is the annual
section. When an individual is exposed to radioactive materials which
                                                                            water intake of "Reference Man."
fall under several of the translocation classifications of the same
radionuclide, such as, Class D, Class W, or Class Y, the exposure may                        (vi) Note 2 of subparagraph (F) of this paragraph
be evaluated as if it were a mixture of different radionuclides.            provides groupings of radionuclides that are applicable to unknown
                                                                            mixtures of radionuclides. These groupings, including occupational
                 (xii) It should be noted that the classification of a
                                                                            inhalation ALIs and DACs, air and water effluent concentrations, and
compound as Class D, W, or Y is based on the chemical form of the
                                                                            releases to sewer, require demonstrating that the most limiting radionu-
compound and does not take into account the radiological half-life of
                                                                            clides in successive classes are absent. The limit for the unknown mix-
different radionuclides. For this reason, values are given for Class D,
                                                                            ture is defined when the presence of one of the listed radionuclides
W, and Y compounds, even for very short-lived radionuclides.
                                                                            cannot be definitely excluded as being present either from knowledge
             (C) Effluent concentrations.                                   of the radionuclide composition of the source or from actual measure-
                                                                            ments.
                  (i) The columns in Table II of subparagraph (F) of
this paragraph captioned "Effluents," "Air," and "Water" are applicable                    (D) Releases to sewers. The monthly average concen-
to the assessment and control of dose to the public, particularly in the    trations for release to sanitary sewerage are applicable to the provisions
implementation of the provisions of subsection (o) of this section. The     in subsection (gg) of this section. The concentration values were de-
concentration values given in Columns 1 and 2 of Table II of subpara-       rived by taking the most restrictive occupational stochastic oral inges-
graph (F) of this paragraph are equivalent to the radionuclide concen-      tion ALI and dividing by 7.3 x 106 (ml). The factor of 7.3 x 10 6(ml)
trations which, if inhaled or ingested continuously over the course of a    is composed of a factor of 7.3 x 105 (ml), the annual water intake by
year, would produce a total effective dose equivalent of 0.05 rem (0.5      "Reference Man," and a factor of 10, such that the concentrations, if the
mSv).                                                                       sewage released by the licensee were the only source of water ingested
                                                                            by a "Reference Man" during a year, would result in a committed ef-
                 (ii) Consideration of non-stochastic limits has not
                                                                            fective dose equivalent of 0.5 rem.
been included in deriving the air and water effluent concentration limits
because non-stochastic effects are presumed not to occur at or below                    (E) List of elements.
the dose levels established for individual members of the public. For       Figure: 25 TAC §289.202(ggg)(2)(E) (No change.)
radionuclides, where the non-stochastic limit was governing in deriv-
                                                                                         (F) Tables--Values for annual limits. The following ta-
ing the occupational DAC, the stochastic ALI was used in deriving the
                                                                            bles contain values for annual limits on intake (ALI) and derived air
corresponding airborne effluent limit in Table II of subparagraph (F) of
                                                                            concentrations (DAC) of radionuclides for occupational exposure; ef-
this paragraph. For this reason, the DAC and airborne effluent limits
                                                                            fluent concentrations; concentrations for release to sanitary sewerage:
are not always proportional as they were in the previous radiation pro-
                                                                            Figure: 25 TAC §289.202(ggg)(2)(F) (No change.)
tection standards.
                 (iii) The air concentration values listed in Column I
of Table II of subparagraph (F) of this paragraph were derived by one



27 TexReg 2038 March 15, 2002 Texas Register
          (3) Quantities of licensed material requiring labeling. The                            (iv) Classification determined by short-lived ra-
following tables contain quantities of licensed material requiring label-      dionuclides. If the waste does not contain any of the radionuclides
ing:                                                                           listed in clause (iii)(V) of this subparagraph, classification shall be
Figure: 25 TAC §289.202(ggg)(3) (No change.)                                   determined based on the concentrations shown in subclause (VI) of
                                                                               this clause. However, as specified in clause (vi) of this subparagraph,
          (4) Classification and characteristics of low-level radioac-
                                                                               if radioactive waste does not contain any nuclides listed in either
tive waste (LLRW).
                                                                               clause (iii)(V) of this subparagraph or subclause (VI) of this clause, it
              (A) Classification of radioactive waste for land dis-            is Class A.
posal.
                                                                                                  (I) If the concentration does not exceed the value
                 (i) Considerations. Determination of the classifica-          in Column 1 of subclause (VI) of this clause, the waste is Class A.
tion of LLRW involves two considerations. First, consideration must
                                                                                                  (II) If the concentration exceeds the value in Col-
be given to the concentration of long-lived radionuclides (and their
                                                                               umn 1 of subclause (VI) of this clause but does not exceed the value in
shorter-lived precursors) whose potential hazard will persist long after
                                                                               Column 2 of subclause (VI) of this clause, the waste is Class B.
such precautions as institutional controls, improved waste form, and
deeper disposal have ceased to be effective. These precautions delay                              (III) If the concentration exceeds the value in
the time when long-lived radionuclides could cause exposures. In ad-           Column 2 of subclause (VI) of this clause but does not exceed the
dition, the magnitude of the potential dose is limited by the concentra-       value in Column 3 of subclause (VI) of this clause, the waste is Class
tion and availability of the radionuclide at the time of exposure. Sec-        C.
ond, consideration must be given to the concentration of shorter-lived
                                                                                                   (IV) If the concentration exceeds the value in
radionuclides for which requirements on institutional controls, waste
                                                                               Column 3 of subclause (VI) of this clause, the waste is not generally
form, and disposal methods are effective.
                                                                               acceptable for near-surface disposal.
                  (ii) Classes of waste.
                                                                                                     (V) For wastes containing mixtures of the
                     (I) Class A waste is waste that is usually segre-         radionuclides listed in subclause (VI) of this clause, the total concen-
gated from other waste classes at the disposal site. The physical form         tration shall be determined by the sum of fractions rule described in
and characteristics of Class A waste must meet the minimum require-            clause (vii) of this subparagraph.
ments set forth in subparagraph (B)(i) of this paragraph. If Class A
                                                                                                 (VI) Classification table for short-lived radionu-
waste also meets the stability requirements set forth in subparagraph
                                                                               clides.
(B)(ii) of this paragraph, it is not necessary to segregate the waste for
                                                                               Figure: 25 TAC §289.202(ggg)(4)(A)(iv)(VI) (No change.)
disposal.
                                                                                                (v) Classification determined by both long- and
                   (II) Class B waste is waste that must meet more
                                                                               short-lived radionuclides. If the radioactive waste contains a mixture
rigorous requirements on waste form to ensure stability after disposal.
                                                                               of radionuclides, some of which are listed in clause (iii)(V) of this
The physical form and characteristics of Class B waste must meet both
                                                                               subparagraph and some of which are listed in clause (iv)(VI) of this
the minimum and stability requirements set forth in subparagraph (B)
                                                                               subparagraph, classification shall be determined as follows:
of this paragraph.
                                                                                                      (I) If the concentration of a radionuclide listed in
                     (III) Class C waste is waste that not only must
                                                                               clause (iii)(V) of this subparagraph is less than 0.1 times the value listed
meet more rigorous requirements on waste form to ensure stability
                                                                               in clause (iii)(V) of this subparagraph, the class shall be that determined
but also requires additional measures at the disposal facility to protect
                                                                               by the concentration of radionuclides listed in clause (iv)(VI) of this
against inadvertent intrusion. The physical form and characteristics of
                                                                               subparagraph.
Class C waste must meet both the minimum and stability requirements
set forth in subparagraph (B) of this paragraph.                                                      (II) If the concentration of a radionuclide listed
                                                                               in clause (iii)(V) of this subparagraph exceeds 0.1 times the value listed
                  (iii) Classification determined by long-lived ra-
                                                                               in clause (iii)(V) of this subparagraph, but does not exceed the value
dionuclides. If the radioactive waste contains only radionuclides listed
                                                                               listed in clause (iii)(V) of this subparagraph, the waste shall be Class
in subclause (V) of this clause, classification shall be determined as
                                                                               C, provided the concentration of radionuclides listed in clause (iv)(VI)
follows.
                                                                               of this subparagraph does not exceed the value shown in Column 3 of
                    (I) If the concentration does not exceed 0.1 times         clause (iv)(VI) of this subparagraph.
the value in subclause (V) of this clause, the waste is Class A.
                                                                                                 (vi) Classification of wastes with radionuclides
                     (II) If the concentration exceeds 0.1 times the           other than those listed in clauses (iii)(V) and (iv)(VI) of this subpara-
value in Table I, but does not exceed the value in subclause (V) of this       graph. If the waste does not contain any radionuclides listed in either
clause, the waste is Class C.                                                  clauses (iii)(V) and (iv)(VI) of this subparagraph, it is Class A.
                    (III) If the concentration exceeds the value in                              (vii) The sum of the fractions rule for mixtures of
subclause (V) of this clause, the waste is not generally acceptable for        radionuclides. For determining classification for waste that contains a
land disposal.                                                                 mixture of radionuclides, it is necessary to determine the sum of frac-
                                                                               tions by dividing each radionuclide’s concentration by the appropriate
                      (IV) For wastes containing mixtures of radionu-
                                                                               limit and adding the resulting values. The appropriate limits must all
clides listed in subclause (V) of this clause, the total concentration shall
                                                                               be taken from the same column of the same table. The sum of the
be determined by the sum of fractions rule described in clause (vii) of
                                                                               fractions for the column must be less than 1.0 if the waste class is to be
this subparagraph.
                                                                               determined by that column. Example: A waste contains Sr-90 in a con-
                  (V) Classification table for long-lived radionu-             centration of 50 curies per cubic meter (Ci/m 3) (1.85 terabecquerels
clides.                                                                        per cubic meter (TBq/m 3)) and Cs-137 in a concentration of 22 Ci/m
Figure: 25 TAC §289.202(ggg)(4)(A)(iii)(V) (No change.)



                                                                        ADOPTED RULES March 15, 2002 27 TexReg 2039
3 (814 gigabecquerels per cubic meter (GBq/m 3)). Since the concen-                                 (I) Waste shall have structural stability. A
trations both exceed the values in Column 1 of clause (iv)(VI) of this          structurally stable waste form will generally maintain its physical
subparagraph, they must be compared to Column 2 values. For Sr-90               dimensions and its form, under the expected disposal conditions such
fraction, 50/150 = 0.33, for Cs-137 fraction, 22/44 = 0.5; the sum of           as weight of overburden and compaction equipment, the presence of
the fractions = 0.83. Since the sum is less than 1.0, the waste is Class        moisture, and microbial activity, and internal factors such as radiation
B.                                                                              effects and chemical changes. Structural stability can be provided by
                                                                                the waste form itself, processing the waste to a stable form, or placing
                  (viii) Determination of concentrations in wastes.
                                                                                the waste in a disposal container or structure that provides stability
The concentration of a radionuclide may be determined by indirect
                                                                                after disposal.
methods such as use of scaling factors, which relate the inferred
concentration of one radionuclide to another that is measured, or                                    (II) Notwithstanding the provisions in clause
radionuclide material accountability, if there is reasonable assurance          (i)(III) and (IV) of this subparagraph, liquid wastes, or wastes
that the indirect methods can be correlated with actual measurements.           containing liquid, shall be converted into a form that contains as little
The concentration of a radionuclide may be averaged over the volume             free-standing and non-corrosive liquid as is reasonably achievable, but
of the waste, or weight of the waste if the units are expressed as              in no case shall the liquid exceed 1.0% of the volume of the waste
nanocurie (becquerel) per gram.                                                 when the waste is in a disposal container designed to ensure stability,
                                                                                or 0.5% of the volume of the waste for waste processed to a stable
              (B) Radioactive waste characteristics.
                                                                                form.
                 (i) The following are minimum requirements for all
                                                                                                    (III) Void spaces within the waste and between
classes of waste and are intended to facilitate handling and provide
                                                                                the waste and its package shall be reduced to the extent practicable.
protection of health and safety of personnel at the disposal site.
                                                                                              (C) Labeling. Each package of waste shall be clearly
                     (I) Wastes shall be packaged in conformance
                                                                                labeled to identify whether it is Class A, Class B, or Class C waste, in
with the conditions of the license issued to the site operator to which
                                                                                accordance with subparagraph (A) of this paragraph.
the waste will be shipped. Where the conditions of the site license
are more restrictive than the provisions of this section, the site license               (5) Time requirements for record keeping.
conditions shall govern.                                                        Figure: 25 TAC §289.202(ggg)(5) (No change.)
                   (II) Wastes shall not be packaged for disposal in                     (6) Acceptable surface contamination levels.
cardboard or fiberboard boxes.                                                  Figure: 25 TAC §289.202(ggg)(6) (No change.)
                    (III) Liquid waste shall be packaged in sufficient                     (7) Concentration and activity limits of nuclides for dis-
absorbent material to absorb twice the volume of the liquid.                    posal in a Type I municipal solid waste site or a hazardous waste fa-
                                                                                cility (for use in subsection (fff) of this section). The following table
                      (IV) Solid waste containing liquid shall contain
                                                                                contains concentration and activity limits of nuclides for disposal in a
as little free-standing and non-corrosive liquid as is reasonably achiev-
                                                                                Type I municipal solid waste site or a hazardous waste facility.
able, but in no case shall the liquid exceed 1.0% of the volume.
                                                                                Figure: 25 TAC §289.202(ggg)(7) (No change.)
                     (V) Waste shall not be readily capable of detona-
                                                                                           (8) Soil contamination limits for selected radionuclides
tion or of explosive decomposition or reaction at normal pressures and
                                                                                (for use in subsection (ddd) of this section).
temperatures, or of explosive reaction with water.
                                                                                Figure: 25 TAC §289.202(ggg)(8) (No change.)
                    (VI) Waste shall not contain, or be capable of
                                                                                          (9) Cumulative occupational exposure form. The follow-
generating, quantities of toxic gases, vapors, or fumes harmful to
                                                                                ing, BRC Form 202-2, is to be used to document cumulative occupa-
persons transporting, handling, or disposing of the waste. This does
                                                                                tional exposure history: (Please find BRC Form 202-2 at the end of this
not apply to radioactive gaseous waste packaged in accordance with
                                                                                section.)
subclause (VIII) of this clause.
                                                                                Figure: 25 TAC §289.202(ggg)(9) (No change.)
                    (VII) Waste must not be pyrophoric. Pyrophoric
                                                                                           (10) Occupational exposure form. The following, BRC
materials contained in wastes shall be treated, prepared, and packaged
                                                                                Form 202-3, is to be used to document occupational exposure record
to be nonflammable.
                                                                                for a monitoring period: (Please find BRC Form 202-3 at the end of
                    (VIII) Wastes in a gaseous form shall be pack-              this section.)
aged at an absolute pressure that does not exceed 1.5 atmospheres at            Figure: 25 TAC §289.202(ggg)(10) (No change.)
20 degrees Celsius. Total activity shall not exceed 100 Ci (3.7 terabec-
                                                                                This agency hereby certifies that the adoption has been reviewed
querels (TBq)) per container.
                                                                                by legal counsel and found to be a valid exercise of the agency’s
                   (IX) Wastes containing hazardous, biological,                legal authority.
pathogenic, or infectious material shall be treated to reduce to the
maximum extent practicable the potential hazard from the non-radio-             Filed with the Office of the Secretary of State on February 26,
logical materials.
                                                                                2002.
                   (ii) The following requirements are intended to pro-         TRD-200201188
vide stability of the waste. Stability is intended to ensure that the waste
                                                                                Susan K. Steeg
does not degrade and affect overall stability of the site through slump-
ing, collapse, or other failure of the disposal unit and thereby lead to        General Counsel
water infiltration. Stability is also a factor in limiting exposure to an in-   Texas Department of Health
advertent intruder, since it provides a recognizable and nondispersible         Effective date: April 1, 2002
waste.                                                                          Proposal publication date: December 14, 2001
                                                                                For further information, please call: (512) 458-7236




27 TexReg 2040 March 15, 2002 Texas Register
                   ♦            ♦            ♦                      adopted with changes to the proposed text as published in the
                                                                    December 28, 2001, issue of the Texas Register (26 TexReg
PART 2. TEXAS DEPARTMENT OF                                         10765-10772). Sections 412.101, 412.102, 412.104, 412.107,
                                                                    and 412.110 - 412.115 are adopted without changes and will not
MENTAL HEALTH AND MENTAL                                            be republished. The repeals of §§403.41 - 403.53 of Chapter
RETARDATION                                                         403, Subchapter B, concerning charges for community-based
                                                                    services, which the new sections replace, are contemporane-
CHAPTER 403. OTHER AGENCIES AND THE                                 ously adopted in this issue of the Texas Register.
PUBLIC                                                              The new rules describe TDMHMR’s uniform fee collection policy
                                                                    for all local authorities that is equitable, provides for collections,
SUBCHAPTER B. CHARGES FOR                                           and maximizes contributions to local revenue as required by the
COMMUNITY-BASED SERVICES                                            Texas Health and Safety Code, §534.067.
25 TAC §§403.41 - 403.53                                            Although the new rules add several new requirements for local
                                                                    authorities and others, the overall policy for charging for commu-
The Texas Department of Mental Health and Mental Retardation        nity services in the new rules is not significantly different from the
(TDMHMR) adopts the repeals of §§403.41 - 403.53 of Chapter         policy contained in the repealed rules. A substantive new provi-
403, Subchapter B, concerning charges for community-based           sion is the requirement for parents of minor children seeking or
services, without changes to the proposal as published in the       receiving services, who may be eligible, to enroll their children in
December 28, 2001, issue of the Texas Register (26 TexReg           Medicaid or the Childrens Health Insurance Program (CHIP) or
10764-10765). New §§412.101 - 412.115 of Chapter 412, Sub-          provide documentation that they have been denied or that their
chapter C, concerning charges for community services, which         enrollment is pending. Another substantive new provision is the
replace the repealed sections, are contemporaneously adopted        requirement for adults seeking or receiving services, who may
in this issue of the Texas Register.                                be eligible, to apply for Supplemental Security Income (SSI) in
The repeals allow for the adoption of new sections governing the    order to become eligible for Medicaid or provide documentation
same matters.                                                       that they have been denied or that their application is pending.
No comment on the proposal was received.                            A new provision that would affect persons receiving services as
                                                                    well as local authorities is the process for referring persons to
These sections are repealed under the Texas Health and Safety       their third-party coverage when the third-party coverage will not
Code, §532.015, which provides the Texas Board of Mental            pay the local authority for services because the local authority
Health and Mental Retardation (board) with broad rulemaking         does not have an approved provider on its network. The process
authority, and §534.067, which requires TDMHMR to establish         includes notifying the person of the local authority’s intent to re-
a uniform fee collection policy for all local authorities that is   fer and providing the person with an opportunity to appeal. The
equitable, provides for collections, and maximizes contributions    person is also offered the opportunity to request a review of the
to local revenue.                                                   appeal decision. Another new provision that would affect per-
This agency hereby certifies that the adoption has been reviewed    sons receiving services and local authorities is the process that
by legal counsel and found to be a valid exercise of the agency’s   allows the local authority to involuntarily reduce or terminate a
legal authority.                                                    person’s services for non-payment by the person (or parent).
                                                                    The process provides safeguards and includes the same prior
Filed with the Office of the Secretary of State on February 28,     notification, and appeal and review opportunities as the process
                                                                    for referring persons to their third-party coverage.
2002.
                                                                    The new rules also contain extensive clarification of TDMHMR’s
TRD-200201256
                                                                    policy for charging for community services, including stating that
Andrew Hardin
                                                                    earned revenues are optimized and that TDMHMR is the payer
Chairman, Texas MHMR Board                                          of last resort; requiring local authorities to identify and access,
Texas Department of Mental Health and Mental Retardation            and assist persons (and parents) in identifying and accessing,
Effective date: September 1, 2002                                   available funding sources other than TDMHMR; describing the
Proposal publication date: December 28, 2001                        process for billing third-parties and persons (and parents); and
For further information, please call: (512) 206-5216                stating that persons (and parents) are responsible for paying all
                                                                    charges owed and that local authorities are responsible for mak-
                   ♦            ♦            ♦                      ing reasonable efforts to collect payments from all available fund-
                                                                    ing sources.
CHAPTER 412. LOCAL AUTHORITY
                                                                    Although the repealed subchapter stated that the Monthly Abil-
RESPONSIBILITIES                                                    ity-To-Pay Fee Schedule was based on 150% of the current Fed-
SUBCHAPTER C. CHARGES FOR                                           eral Poverty Guidelines (FPG), the fee schedule actually began
                                                                    charging for services at 150% of the current FPG for a family of
COMMUNITY SERVICES                                                  one person. This calculation resulted in families of two or more
25 TAC §§412.101 - 412.115                                          being charged a higher percentage of their income than families
                                                                    of one. The new rules continue to state that the Monthly Abil-
The Texas Department of Mental Health and Mental Retarda-           ity-To-Pay Fee Schedule is based on 150% of the current FPG;
tion (TDMHMR) adopts new §§412.101 - 412.115 of Chapter             however, the fee schedule calculation has been revised to begin
412, Subchapter C, concerning charges for community services.       charging for services at 150% of the current FPG for a family of
Sections 412.103, 412.105, 412.106, 412.108, and 412.109 are



                                                             ADOPTED RULES March 15, 2002 27 TexReg 2041
two persons, three persons, four persons, and so on. For exam-          Regarding §412.105(a)(2), one commenter supported the rule’s
ple, 150% of the 2001 FPG for a family of two is $17,415. A fam-        position that services cannot be denied to individuals in crisis.
ily of two whose annual income is less than $17,415 would have          The commenter stated that the same protection should be ex-
a maximum monthly fee of zero. A family of two whose annual             tended to individuals in an emergency, as stated in the previ-
income is more than $17,415 would have a maximum monthly                ous proposal. TDMHMR responds that the term "emergency"
fee of greater than zero. Also, the increments between each             was not included because, for the purposes of this subchapter,
annual/monthly gross income level on the revised fee schedule           there is no difference. TDMHMR notes that rules governing men-
have been calculated so that every third increment is precisely         tal health community services standards (25 TAC Chapter 412,
150% FPG for the next family size. The revised fee schedule that        Subchapter G) contain a definition of crisis, which means "a situ-
will be in effect on effective date of this subchapter (i.e., Septem-   ation in which a person believes that because of a mental health
ber 1, 2002), will be calculated using the 2002 FPG, which are          condition, he/she presents an immediate danger to self or oth-
expected to be published in the Federal Register in late February       ers or that his/her mental or physical health is at risk of serious
2002.                                                                   deterioration."
A definition of "significant financial change" has been added to        Regarding trusts in §412.105(b), one commenter requested that
§412.103, to mean any change in the person’s (or parent’s) fi-          language be modified "to ensure that only those trusts that have
nancial documentation (i.e., income/earnings, extraordinary ex-         been specified to provide for an individual’s healthcare and reha-
penses, number of family members, third-party coverage) that            bilitative needs will be accessed in identifying a person’s funding
affects the person’s (or parent’s) ability to pay. Language has         sources." TDMHMR responds that modifying the rule’s language
been added to §412.105(b) and §412.108(b) that lists the Qual-          is unnecessary because the proposed language clearly states
ified Medicare Beneficiary (QMB) Program as a possible avail-           as a possible available funding source trusts that provide for the
able funding source. A reference to the definition of "significant      person’s healthcare and rehabilitative needs.
financial change" has been added to §412.106(a). Language
                                                                        Regarding §412.105(c) and (g), one commenter supported the
has been added to §412.108(d)(2) to clarify that nothing in the
                                                                        requirement for parents to enroll their children in income-based
paragraph related to charging persons with Medicare is intended
                                                                        public insurance and for adults to apply for SSI in order to
to conflict with any applicable law, rule, or regulation with which
                                                                        become eligible for Medicaid. The commenter also supported
a local authority must comply. Language has been added to
                                                                        the requirement that the local authority provide necessary assis-
§412.109(b) requiring the local authority to determine whether
                                                                        tance to individuals during the enrollment/application process.
a person (or parent) who claims financial hardship has expe-
                                                                        TDMHMR responds that it appreciates the commenter’s sup-
rienced a significant financial change, and if so, to update the
                                                                        port.
person’s financial assessment. The toll-free phone number for
the Office of Consumer Services and Rights Protection - Om-             Regarding the local authority’s decision of whether or not
budsman has been added to §412.109(e)(2). Language regard-              a person’s failure to comply with the rules’ requirements is
ing discontinuing charges to persons (or parents) in §412.109(c)        related to the person’s mental illness or mental retardation in
has been modified to address all services instead of services           §412.105(f)(2) and §412.109(c), two commenters objected to
not covered by third-party coverage. Language has also been             the local authority making such a decision. The commenters
modified to require local authority to discontinue charging and         supported the language in a previous proposal in which the
stop sending statements if it makes a decision, based on a clini-       person’s interdisciplinary team (IDT) or treatment team was
cal determination, that being charged for services and receiving        responsible for making the decision. The commenters stated
statements will result in a reduction in the functioning level of the   that the decision should be made by those most knowledgeable
person or the person’s (or parent’s) refusal or rejection of the        about and closest to the person, which, the commenter stated,
needed services.                                                        is the IDT or treatment team. The commenters noted that "it is
                                                                        not clear in the current proposal as to who at the ’local authority’
Written comments on the proposal were received from Advo-
                                                                        will act as the decision maker. Is this a CEO, a financial officer,
cacy, Incorporated, Austin; The Arc of Texas, Austin; The Mental
                                                                        or perhaps the board of Directors?" TDMHMR responds that
Health Association in Texas, Austin; Texana MHMR Center,
                                                                        the separation of authority functions from provider functions
Wharton; The Texas Council of Community MHMR Centers,
                                                                        prompted the rule change. The Texas Health and Safety
Austin; Parent Association for the Retarded of Texas (PART),
                                                                        Code authorizes the TDMHMR commissioner to designate the
Austin; and the parent of a state school resident, Garland.
                                                                        local authority (§533.035(a)); authorizes TDMHMR to contract
One commenter expressed concern that no mention is made of              with the local authority for community services (§533.035(b));
the rules’ applicability to the legally authorized representatives      and authorizes the local authority to use TDMHMR funds to
(LARs) of consumers in the priority populations. The commenter          ensure community services are provided in the local service
recommended adding language to make the rules applicable to             area (§533.035(c)). Since the local authority is responsible for
LARs who have financial responsibility for consumers’ treatment.        ensuring the provision of services in the local service area, all
TDMHMR responds that an LAR, as defined in its other rules,             decision-making authority must remain at the authority level.
means a individual who represents the person by making treat-           TDMHMR notes that the rule requires the local authority’s
ment decisions or consenting to treatment on behalf of the per-         decision to be based upon a documented clinical determination
son. There are very few LARs who have financial responsibility          that includes input from the person’s IDT or treatment team. The
for consumers’ treatment. Adding language as recommended                local authority is responsible for identifying which staff are most
by the commenter creates the potential for confusion between            capable of making such decisions and clinical determinations.
the majority of LARs who don’t have financial responsibility and
                                                                        Regarding retroactively adjusting the person’s account in
the very few LARs who do. TDMHMR notes that any LAR who is
                                                                        §412.105(f)(1), one commenter suggested that the rule include
financially responsible for a person is required by a court of law
                                                                        a time frame in which the local authority must adjust the person’s
to take financial responsibility in all aspects of the person’s life.
                                                                        account. TDMHMR responds the key issue of the provision




27 TexReg 2042 March 15, 2002 Texas Register
is that the local authority will adjust the person’s account to        concerns or dissatisfaction with services/supports at the time of
retroactively reflect the person’s compliance; prescribing a time      admission into services and annually thereafter.
frame for adjustment is unnecessary.
                                                                       Regarding notification in §412.106(e), one commenter strongly
Regarding the requirement for adult persons to apply for SSI           supported the inclusion of the name and telephone number of at
to become eligible for Medicaid in §412.105(g), one commenter          least one local authority staff member who can be contacted to
suggested modifying the language to state, "Adult persons who          discuss the information in the notice. The commenter requested
meet the Social Security Administration criteria for Supplemental      that the notification include "contact information for how to ap-
Security Income (SSI) must apply for SSI or provide documenta-         peal the determination or correct any inaccurate information that
tion that they..." TDMHMR responds that it declines to change the      is included on the notification." TDMHMR responds that adding
language as suggested because only Social Security Adminis-            language as requested by the commenter is unnecessary be-
tration/Disability Determination Services can determine whether        cause the person (or parent) may contact the local authority staff
or not a person actually meets the criteria for SSI. The local au-     whose name and telephone number is on the notification in order
thority is responsible for identifying which adult persons may be      to correct any inaccurate information that is on the notification or
eligible for Medicaid, most likely through a screening process us-     that was used to determine ability to pay. TDMHMR notes that
ing the SSI criteria.                                                  the rules do not contain a process for the person (or parent) to
                                                                       appeal his/her determination of ability (or inability) to pay.
Regarding financial assessment in §412.106(a), one com-
menter suggested that the language be modified to consider             Regarding standard charges in §412.107, one commenter
financial hardship as a significant financial change.         The      objected to the language that "allows each community center
commenter stated that the modification will ensure that a              to inflate the cost of the service, at the center’s discretion,
person’s ability to pay is reassessed when the person is struck        without any stated guidelines." The commenter supported the
with financial hardship before the local authority arranges for        provision in a previous proposal requiring standard charges to
the person to pay a lesser amount each month as provided               be based on costs and calculated using a TDMHMR-approved
in §412.109(b). TDMHMR responds that it agrees with the                costing methodology. TDMHMR responds the stated guidelines
commenter’s concern, but disagrees with the commenter’s                for establishing standard charges are that the charges be
suggested modification. TDMHMR notes that the term "signifi-           "reasonable" and "cover, at a minimum, the local authority’s cost
cant financial change," as it is used in §412.106(a), is intended      of ensuring the provision of the service." TDMHMR interprets
to mean any change in the person’s (or parent’s) financial             "reasonable" to mean within the range of current market value.
documentation (i.e., income/earnings, extraordinary expenses,          TDMHMR notes that a local authority must first determine its
number of family members, third-party coverage) that affects           cost of ensuring the provision of a service before it can establish
the person’s (or parent’s) ability to pay. While a significant         a standard charge and that local authorities are required by
financial change could result in financial hardship, financial         contract to calculate its operating costs using TDMHMR’s
hardship is not always caused by a significant financial change.       approved cost accounting methodology.
Language has been added to three sections of the subchapter
                                                                       Regarding monthly account in §412.108(a), one commenter
to address the commenter’s concern: a definition of "significant
                                                                       recommended that the subsection consider individuals whose
financial change" has been added to §412.103; a reference to
                                                                       third-party payer denies covered services because the
the definition has been added to §412.106(a); and language
                                                                       third-party payer does not believe the covered service is medi-
has been added to §412.109(b) requiring the local authority to
                                                                       cally necessary. The commenter stated that if these services
determine whether a person (or parent) who claims financial
                                                                       are believed by the individual’s treatment team to be medically
hardship has experienced a significant financial change, and if
                                                                       necessary, then the services should be indicated as not covered
so, to update the person’s financial assessment.
                                                                       by third-party coverage on the monthly account. The commenter
Regarding the financial assessment in §412.106(a), one com-            also stated that in such cases, the local authority should be
menter stated that the rule should contain a requirement for           responsible for assisting the individual or parent in filing any
the local authority to educate the person (or parent) regarding        necessary appeals with the third-party payer, including requests
charges for community services and the rights and responsi-            for an external review (managed by the Texas Department of
bilities of consumers. The commenter recommended adding                Insurance) or a Medicaid fair hearing. TDMHMR responds that
language on training (persons and parents) regarding charges           the monthly account listings should reflect the current status of
for community services, including information regarding the right      the person’s services by payer source, which means the listing
to appeal, a description of any and all exemptions from charges,       may change depending upon prior and subsequent approvals
and the fact that individuals who are facing what they believe to      or denials by third-party coverage. Regarding assistance with
be "financial hardship" can contact the local authority to set up      appealing to the third-party coverage, TDMHMR responds
a payment plan. TDMHMR responds that §412.112 provides for             that the provider who identified the service as being medically
persons (and parents) to be informed of the policies for charging      necessary would be responsible for assisting the person in
for community services contained in this subchapter, including         filing any necessary appeals with the third-party coverage or
information related to claiming financial hardship. Regarding          requesting an external review.
information about the right to appeal, TDMHMR responds that
                                                                       Regarding billing persons with non-Medicare third-party cover-
these rules require the local authority to notify persons (and par-
                                                                       age in §412.108(d)(3)(A), one commenter stated that her organi-
ents) of their right to appeal a specific action taken in accordance
                                                                       zation requested an official opinion from the Texas Department of
with these rules (see §412.106(c)(2)(B) and §412.109(d)(3)(B)
                                                                       Insurance (TDI) regarding whether a local authority could waive
and §412.109(e)). Additionally, §401.464(c) of this title (relating
                                                                       co-payments or deductibles that exceed the maximum monthly
to Notification and Appeals Process) requires the local authority
                                                                       fee (MMF) of persons with third-party coverage. The commenter
to provide persons and their legally authorized representatives
                                                                       asked that TDMHMR not move forward on these rules until TDI
written notification of the local authority’s policy for addressing
                                                                       has responded. The commenter also stated, "We believe the




                                                                ADOPTED RULES March 15, 2002 27 TexReg 2043
Department does have the authority to waive co-payments as a            authorities are able to comply with this subchapter as well as
managed care provider. In that case, we recommend no greater            with all applicable Medicare requirements. Although TDMHMR
fee than the maximum monthly fee be charged to any individ-             supports the commenter’s statement that TDMHMR expects a
ual who gets services from the Department, since the sliding fee        local authority to comply with the contractual obligations of its
scale which determines the maximum monthly fee is developed             third-party payer contracts, it declines to modify the language in
in an effort to make services reasonable affordable." TDMHMR            §412.108(d)(2) and (d)(3).
responds that it declines to delay the rules’ adoption because
                                                                        Regarding billing statements in §412.108(e), one commenter
the majority of the provisions contained in the proposal are un-
                                                                        suggested adding language requiring the statement to contain
contested and provide necessary policy clarifications that will re-
                                                                        contact information for directing questions or comments about
sult in the subchapter being more uniformly implemented. Fur-
                                                                        the statement. TDMHMR responds that it is standard business
ther, in TDMHMR’s discussions with TDI, TDI’s position was not
                                                                        practice for statements to include contact information. TDMHMR
that waiving co-payments or deductibles was prohibited, rather
                                                                        declines to add language to the rule as suggested.
TDI expressed concern that the proposed policy of waiving the
portion of co-payments and deductibles that exceeded the per-           Regarding financial hardship and deferred payment in
son’s MMF could discourage private insurers from contracting            §412.109(b), one commenter stated that the provision will be
with a local authority. This would have a negative impact on            helpful to staff responsible for making reasonable efforts to
the local authority’s ability to maximize contributions to local rev-   collect payments. TDMHMR responds that it appreciates the
enue and is contrary to the state law on which this subchapter          commenter’s support.
is promulgated -- that the fee collection policy maximize contri-
                                                                        Regarding financial hardship and deferred payment in
butions to local revenue. TDMHMR notes that it is not a man-
                                                                        §412.109(b)(1), one commenter recommended modifying the
aged care provider. TDMHMR provides funds to local authorities
                                                                        paragraph "so that if a person (or parent) claims and provides
who are responsible for ensuring the provision of community ser-
                                                                        documentation of a financial hardship, then his/her ability to pay
vices to people in the priority population. The contract between
                                                                        will be immediately re-assessed then updated annually, or as
the person’s third-party coverage and the person’s provider gov-
                                                                        needed as long as the person continues to receive services as
erns whether the provider is permitted to waive co-payments,
                                                                        stated in §412.106(a)." The commenter stated that the modifi-
co-insurance, and deductibles. And in the case of Medicare,
                                                                        cation will translate into added safeguards to protect the person
federal laws and regulations as well as the Medicare Provider
                                                                        from incurring charges that he/she is unable to pay because of
Reimbursement Manual (HCFA Pub. 15-1) describe the con-
                                                                        significant financial changes. TDMHMR responds it agrees with
ditions under which the provider is permitted to waive co-pay-
                                                                        the commenter that deferred payment is not appropriate when
ments, co-insurance, and deductibles.
                                                                        financial hardship is caused by significant financial changes;
One commenter stated that, although the proposed rules reflect          significant financial changes warrant an updated financial
productive deliberations conducted by TDMHMR with key                   assessment. Language has been added to three sections of the
stakeholders, the rules put forward a new concept that remains          subchapter to address the commenter’s concern: a definition
contentious: procedures for billing persons with Medicare               of "significant financial change" has been added to §412.103;
(§412.108(d)(2)) that differ from procedures for billing persons        a reference to the definition has been added to §412.106(a);
with other types of third-party coverage (§412.108(d)(3)).              and language has been added to §412.109(b) requiring the
The commenter stated, "We remain of the opinion that it is              local authority to determine whether a person (or parent) who
beyond the scope of the statutes governing charges for commu-           claims financial hardship has experienced a significant financial
nity-based services for the Department to use its own provider          change, and if so, to update the person’s financial assessment.
experience (operating state facilities) as the basis for regulating
                                                                        Regarding financial hardship and deferred payment in
centers’ compliance with requirements of any third-party payer
                                                                        §412.109(b)(1) and in the example for addressing a past-due
alternative to the performance contract, including Medicare."
                                                                        account in §412.109(b)(1), two commenters objected to the local
The commenter requested that language in §412.108(d)(2) be
                                                                        authority having the option of arranging for deferred payments if
replaced with, "It is the Department’s expectation that local
                                                                        the person provides documentation that he/she is experiencing
authorities comply with contractual obligations of any third-party
                                                                        financial hardship. The commenters recommended that the
contracts." The commenter also requested that §412.108(d)(3)
                                                                        local authority be required to arrange for deferred payments.
be modified so as to not differentiate between Medicare and
                                                                        TDMHMR responds that the permissive language allows the
other types of third-party coverage. TDMHMR responds that
                                                                        local authority flexibility in determining the cause and/or validity
these rules are promulgated in order to comply with the state
                                                                        of the financial hardship and responding to the person’s claim
statute (Texas Health and Safety Code, §534.067), which
                                                                        of financial hardship in an appropriate manner. Mandating
requires TDMHMR to establish a uniform fee collection policy
                                                                        deferred payment each time a person provides documentation
for local authorities that is equitable, provides for collections,
                                                                        of financial hardship prevents the local authority from taking
and maximizes contributions to local revenue. The rules
                                                                        other actions that may be more appropriate or beneficial to the
describe how local authorities are to charge persons in the
                                                                        person. TDMHMR declines to modify the rule as recommended
priority population for community services. The rules do not
                                                                        by the commenter.
attempt to regulate or interpret a local authority’s contractual
compliance with its third-party payers, including Medicare.             Regarding §412.109(d), two commenters expressed vehement
Nothing in this subchapter is intended to adversely affect a local      opposition to the provision that allows for involuntary reduction
authority’s ability to comply with any other applicable law, rule,      or termination of services for non-payment. The commenters
or regulation. TDMHMR has conducted extensive research of               stated that such a provision in TDMHMR’s rules governing
Medicare regulations regarding the commenter’s concern and              charges for community services is evidence that financial, rather
has not identified any provision in these rules that conflicts with     than clinical, reasons will dictate when a person’s services
or is contrary to any Medicare requirement concerning waiver            should be reduced or terminated. The commenters recom-
of co-payments and deductibles. TDMHMR notes that local                 mended deleting the subsection to ensure local authorities will



27 TexReg 2044 March 15, 2002 Texas Register
remain the "safety net for our most disabled citizens." One of the    Regarding debt collection in §412.109(g), two commenters
commenters reminded TDMHMR "that the very reasons which               strongly opposed the provision that permitted local authorities
a local authority may use to justify the termination of services      to use a debt collection agency. The commenters stated that
are often closely associated with the symptoms of the person’s        the Texas Health and Safety Code, §534.017(d), provides for
disability." The commenter also noted that TDMHMR’s rules             the county or district attorney of the county to represent a
governing charges for services in TDMHMR facilities do not            local authority in collecting fees. The commenter noted that
contain such a provision. TDMHMR responds that the provision          the law does not authorize the use of a private debt collection
is intended to reinforce the concept that financial participation     agency by a local authority. The commenters requested that
is a clinical issue. Multiple provisions in the rules support this    the subsection be modified to "delete the language that a debt
concept and require the local authority to consider clinical as-      collection agency may be used to collect debts and add the
pects as well as financial aspects in the therapeutic relationship    provision that only the county or district attorney may represent
with each person. In a resource-poor environment, in which the        the local authority in collecting fees owed by persons receiving
need for services far exceeds the availability, prudent use of        services." TDMHMR responds that, although the Texas Health
funds is necessary to reduce the likelihood of persons abusing        and Safety Code, §534.017(d), provides for the county or
the public mental health system by not participating financially      district attorney of the county to represent a community center
when they have an ability to pay, while others wait for needed        in collecting fees, the statute does not restrict a community
services. TDMHMR notes that the rules governing charges for           center’s debt collection efforts to representation by the county
services in facilities does not contain a similar provision because   or district attorney. Additionally, TDMHMR responds that it
facilities are responsible for providing court ordered in-patient     carefully considered the issue of debt collection agencies and
or residential services to the person. TDMHMR also notes that         determined that it had three options for addressing the issue:
this subchapter prohibits involuntarily reducing or terminating a     (1) prohibiting the use of debt collection agencies in the rule; (2)
person’s services for non-payment when the local authority is         not addressing use of debt collection agencies in the rule; or (3)
identified as being responsible for providing the court ordered       permitting the use of debt collection agencies in the rule, but with
outpatient services to the person.                                    strict parameters. The first option was problematic because it is
                                                                      not clear whether or not TDMHMR has the authority to prohibit
Regarding §412.109(d)(2), one commenter stated that the def-
                                                                      a local authority’s use of debt collection agencies. The second
inition of "clinically contraindicated" to mean "at imminent risk
                                                                      option, which essentially would allow each local authority to
of serious deterioration" will be helpful in making consistent de-
                                                                      decide for itself whether or not it was authorized to use a debt
cisions to waive charges rather than discontinue services for
                                                                      collection agency, could result in a fee collection policy that was
non-payment. Another commenter stated that the proposed lan-
                                                                      not uniform. TDMHMR chose the third option because it: (a)
guage is more restrictive than the language in the previous pro-
                                                                      does not exceed its statutory authority; (b) ensures a uniform
posal which stated "clinically contraindicated." The commenter
                                                                      fee collection policy; and (c) provides safeguards for the person
recommended using the language contained in the previous pro-
                                                                      if a local authority elects to use a debt collection agency.
posal. TDMHMR responds that it appreciates the commenter’s
support and notes that the language change was made in re-            Regarding the Monthly Ability-to-Pay Fee Schedule in §412.110,
sponse to comments received on the previous proposal, which           two commenters supported the revised fee schedule that reflects
indicated the term "clinically contraindicated" was too vague and     150% of the Federal Poverty Guidelines (FPG) for all family sizes,
would likely result in the provision being inconsistently applied.    although one of the commenters stated a preference that the fee
Regarding the other commenter’s preference for "clinically con-       schedule be based on 200-250%. TDMHMR responds that it
traindicated," TDMHMR responds that the more restrictive crite-       appreciates the commenters’ support.
ria actually clarifies TDMHMR’s intent; that local authorities are
                                                                      Regarding training in §412.111, one commenter requested that
prohibited from involuntarily reducing or terminating a person’s
                                                                      the section be modified to require TDMHMR to consider input
services if it would cause the person’s mental or physical health
                                                                      from local authorities, consumers, and other stakeholders (e.g.,
to be at imminent risk of serious deterioration. The clarification
                                                                      family members and advocates) in developing the training pro-
will provide for maximum uniformity in the rule’s implementation.
                                                                      gram. TDMHMR responds that it intends to consider input from
Regarding notice of a Medicaid fair hearing §412.109(e)(1), four      local authorities, consumers, and other stakeholders (e.g., fam-
commenters opposed the deletion of language that requires             ily members and advocates) in developing the training program.
Medicaid recipients to be provided notice of the involuntary
                                                                      Regarding §412.111, one commenter strongly supported the re-
reduction or termination of Medicaid services and the oppor-
                                                                      quirement for training contained in the rule. TDMHMR responds
tunity to request a Medicaid fair hearing. TDMHMR responds
                                                                      that is appreciates the commenter’s support.
that language regarding notice of a Medicaid fair hearing was
not included in the proposal because Medicaid services are            Another commenter stated that local authorities will benefit from
not involuntarily reduced or terminated for non-payment by the        technical assistance in understanding and applying the compo-
person (or parent). TDMHMR notes that its rules governing             nents of the rules. The commenter expressed an understanding
Medicaid services, service coordination (25 TAC Chapter 412,          that TDMHMR does not intend to follow the adoption of the rules
Subchapter J) and rehabilitative services (25 TAC Chapter             with training. The commenter urged TDMHMR to designate one
419, Subchapter L), require the Medicaid provider (i.e., the          person to receive questions and formulate answers until at least
local authority) to provide Medicaid recipients with notice of        the end of the calendar year. The commenter offered to have
termination, suspension, or reduction of covered services.            her organization "designate several knowledgeable center staff
Additionally, rules governing Medicaid fair hearings (1 TAC           to serve as an ’expert panel’ to assist the Department in receiving
Chapter 357) state that the notice must contain an explanation        questions, developing answers and conveying this information to
of the Medicaid recipient’s right to request a fair hearing as well   all Local MHMR Authorities." TDMHMR responds that it will pro-
as the procedures for doing so.                                       vide training and agrees that technical assistance will support
                                                                      uniform implementation the rules. Additionally, TDMHMR will




                                                               ADOPTED RULES March 15, 2002 27 TexReg 2045
designate an agency contact person who will be responsible for             required and optional mental health and mental retardation services de-
receiving questions and relaying answers. Regarding the com-               scribed in the performance contract, including:
menter’s offer of appointing an "expert panel" to help dissemi-
                                                                                         (A) 24-hour emergency screening and rapid crisis sta-
nate information, TDMHMR responds that it appreciates the of-
                                                                           bilization services;
fer and will work closely with the commenter to identify "experts"
for technical assistance with this subchapter.                                           (B) community-based crisis residential services or in-
                                                                           patient services in a mental health facility that is not a state MH facility;
Regarding the brochure for persons (and parents) in §412.112,
one commenter appreciated the work done on the section and                              (C) community-based assessments, including the
stated that it would ensure each person is provided informa-               development of interdisciplinary treatment plans, and diagnosis and
tion about policies for charging for community services, includ-           evaluation services;
ing statutory trust exemptions. Another commenter stated that
                                                                                           (D) family support services, including respite care;
the brochure would assist local authorities in providing consis-
tent information. TDMHMR responds that it appreciate the com-                              (E) case management services (service coordination);
menters’ support.
                                                                                         (F) medication-related services, including medication
Also regarding the brochure in §412.112, a third commenter                 clinics, laboratory monitoring, medication education, mental health
stated that, because the information contained in the rules                maintenance education, and the provision of medication; and
is potentially confusing, the components that are included in
                                                                                         (G) psychosocial rehabilitation programs, including so-
the brochure should be discussed in person with individuals,
                                                                           cial support activities, independent living skills, and vocational train-
parents, and/or LARs at least once, preferably during the initial
                                                                           ing.
financial assessment. The commenter recommended that the
brochure contain information regarding how enrollees with                            (3) Extraordinary expenses--Major medical or health re-
third-party payers can assert their rights, how to request a               lated expenses, major casualty losses, and child care expenses for the
Medicaid Fair Hearing, or how to appeal a private insurer’s                previous year or projections for the next year.
denial of a covered service. TDMHMR responds that, cur-
                                                                                     (4)     Family members--
rently, the training program developed by TDMHMR requires
a face-to-face explanation of the information contained in the                            (A) For an unmarried person under the age of 18
brochure as part of the financial assessment. Additionally,                years--The person, the person’s parents, and the dependents of the
the brochure provides the name and phone number of a                       parents, if residing in the same household;
staff member whom the person can contact to discuss the
                                                                                        (B) For an unmarried person age 18 years or older--The
information in the brochure. Regarding including additional
                                                                           person and his/her dependents;
information in the brochure, TDMHMR responds that since the
information suggested by the commenter is not contained in the                          (C) For a married person of any age--The person,
rules’ policies for charging for community services, it would be           his/her spouse, and their dependents.
inappropriate for inclusion in the brochure. TDMHMR notes that
                                                                                     (5) Gross income--Revenue from all sources before taxes
the person’s third-party coverage is responsible for providing
                                                                           and other payroll deductions. The term does not include child support
information to its members on how they can assert their rights
                                                                           received.
or appeal the denial of a covered service. TDMHMR also notes
that the right to request a Medicaid fair hearing is limited to                      (6) Inability to pay--The person’s maximum monthly fee is
certain actions by a Medicaid operating agency or its designee             zero and the person:
as described in rules governing Medicaid fair hearings (1 TAC
                                                                                           (A) does not have third-party coverage;
Chapter 357); governing service coordination (25 TAC Chapter
412, Subchapter J); and governing rehabilitative services (25                           (B) has third-party coverage, but has exceeded the max-
TAC Chapter 419, Subchapter L).                                            imum benefit of the covered service(s) or the third-party coverage will
                                                                           not pay because the services needed by the person are not covered ser-
The new rules are adopted under the Texas Health and Safety
                                                                           vices; or
Code, §532.015, which provides the Texas Board of Mental
Health and Mental Retardation (board) with broad rulemaking                              (C) has not identified payment for a needed service or
authority, and §534.067, which requires TDMHMR to establish                services in an approved plan utilizing Social Security work incentive
a uniform fee collection policy for all local authorities that is          provisions (i.e., Plan to Achieve Self-Sufficiency; Impairment Related
equitable, provides for collections, and maximizes contributions           Work Expense).
to local revenue.
                                                                                     (7) Income-based public insurance--Government funded
§412.103.   Definitions.                                                   third-party coverage that bases eligibility on income (i.e., CHIP and
                                                                           Medicaid).
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.                 (8) Local authority--An entity designated by the
                                                                           TDMHMR commissioner in accordance with the Texas Health and
          (1) Ability to pay--The person has third-party coverage that     Safety Code, §533.035(a).
will pay for needed services, the person’s maximum monthly fee is
greater than zero, or the person has identified payment for a needed                 (9) Performance contract--A written agreement between
service or services in an approved plan utilizing Social Security work     TDMHMR and a local authority for the provision of one or more func-
incentive provisions (i.e., Plan to Achieve Self-Sufficiency; Impairment   tions as described in the Texas Health and Safety Code, §533.035(a).
Related Work Expense).                                                               (10) Person--A person in the priority population who is
          (2) Community services or services--Except for inpatient         seeking or receiving services through a local authority.
services in a state MH facility and non-crisis residential services, the



27 TexReg 2046 March 15, 2002 Texas Register
          (11) Priority population--Those groups of persons with                they have been denied Medicaid or CHIP benefits or that their Medic-
mental illness or mental retardation identified in TDMHMR’s current             aid or CHIP enrollment is pending. The local authority shall provide
strategic plan as being most in need of mental health and mental                assistance as needed to facilitate the enrollment process.
retardation services.
                                                                                        (d) Financial documentation. If requested by the local author-
          (12) Significant financial change--Any change in the                  ity, persons (or parents) must provide the following financial documen-
person’s (or parent’s) financial documentation, as described in                 tation:
§412.105(d) of this title (relating to Accountability), that affects
                                                                                             (1)   annual or monthly gross income/earnings, if any;
the person’s (or parent’s) ability to pay. Examples of a significant
financial change are:                                                                   (2) extraordinary expenses (as defined) paid during the past
                                                                                12 months or projected for the next 12 months;
              (A) a reduction in income due to the loss of a job or due
to a reduction in hours worked on a job;                                                     (3)   number of family members (as defined); and
              (B) an increase in income because of an inheritance or                         (4)   proof of any third-party coverage.
a salary increase;
                                                                                       (e) Authorizing third-party coverage payment to the local au-
                 (C) an increase or decrease in the number of family            thority. Persons (and parents) with third-party coverage must execute
members;                                                                        an assignment of benefits authorizing third-party coverage payment to
                                                                                the local authority.
                 (D) the gain or loss of third-party coverage; and
                                                                                       (f)    Failure to comply.
                 (E) an increase or decrease in extraordinary expenses.
                                                                                           (1) Except as provided by paragraph (2) of this subsection,
          (13) Standard charge--A fixed price for a community ser-
                                                                                if the person (or parent) fails to comply with any requirement in sub-
vice or unit of service.
                                                                                sections (c)-(e) of this section, then the local authority will charge the
          (14) State MH facility--A state hospital or a state center            person (or parent) the standard charge(s) for services. If, within 30
with an inpatient component.                                                    days after the person (or parent) initially failed to comply, the person
                                                                                (or parent) complies with the requirements, then the local authority will
          (15) Team--The interdisciplinary team, multidisciplinary
                                                                                adjust the person’s account to retroactively reflect compliance.
team, or treatment team.
                                                                                           (2) The local authority will not charge the person the stan-
         (16) Third-party coverage--A public or private payer of
                                                                                dard charge(s) for services if the local authority makes a decision, based
community services for a specific person that is not the person (e.g.,
                                                                                on a clinical determination that is documented and includes input from
Medicaid, Medicare, private insurance, CHIP, TRICARE).
                                                                                the person’s team, that the person’s failure to comply is related to the
§412.105.    Accountability.                                                    person’s mental illness or mental retardation. The clinical determina-
                                                                                tion must be reassessed at least every three months. If the local author-
      (a) Prohibition from denying services. Local authorities are              ity decides that a person’s failure to comply is related to the person’s
prohibited from denying services to a person:                                   mental illness or mental retardation, then the local authority must de-
           (1)     because of the person’s inability to pay for the services;   velop and implement a plan to reduce or eliminate the barriers related
                                                                                to the person’s failure to comply.
           (2)     in crisis because:
                                                                                        (g) Requirement for adult persons to apply for SSI to become
                 (A) a financial assessment has not been completed;             eligible for Medicaid. Adult persons who may be eligible for Medicaid
                 (B) financial responsibility has not been determined;          must apply for Supplemental Security Income (SSI) or provide docu-
                                                                                mentation that they have been denied SSI or that their SSI application is
                 (C) the person has a past-due account; or                      pending. The local authority shall provide assistance as needed to facil-
              (D) the person had his/her services involuntarily                 itate all aspects of the application process. If the adult person is unable
reduced or terminated for non-payment under §412.109(d) of this title           to act in accordance with the requirement because of the person’s men-
(relating to Payments, Collections, and Non-payment); or                        tal illness or mental retardation, then the local authority must develop
                                                                                and implement a plan to reduce or eliminate the barriers related to the
          (3) pending resolution of an issue relating solely to pay-            person’s inability to act in accordance with the requirement.
ment for services, including failure of the person (or parent) to comply
with any requirement in subsections (c), (d), (e), and (g) of this section.     §412.106.      Determination of Ability to Pay.
        (b) Identifying funding sources. Local authorities are respon-                 (a) Financial assessment. The local authority must conduct
sible for identifying and accessing available funding sources other than        and document a financial assessment for each person within the first 30
TDMHMR, and for assisting persons (and parents) in identifying and              days of services. The local authority must update each person’s finan-
accessing available funding sources other than TDMHMR, to pay for               cial assessment at least annually and whenever a significant financial
services. Available funding sources may include third-party coverage,           change (as defined) occurs as long as the person continues to receive
state and/or local governmental agency funds (e.g., crime victims fund),        services. The financial assessment is accomplished using the financial
Qualified Medicare Beneficiary (QMB) Program, indigent pharmaceu-               documentation listed in §412.105(d) of this title (relating to Account-
tical programs, or a trust that provides for the person’s healthcare and        ability), which represents the finances of the:
rehabilitative needs.
                                                                                          (1)      person who is age 18 years or older and the person’s
        (c) Requirement for parents to enroll their children in income-         spouse; or
based public insurance. Parents of children who may be eligible for
                                                                                             (2)   parents of the person who is under age 18 years.
Medicaid or the Childrens Health Insurance Program (CHIP) must en-
roll their children in Medicaid or CHIP or provide documentation that                  (b) Maximum monthly fee. A person’s maximum monthly fee
                                                                                is based on the financial assessment and calculated using the Monthly



                                                                         ADOPTED RULES March 15, 2002 27 TexReg 2047
Ability-To-Pay Fee Schedule, referenced as Exhibit A in §412.113 of                  (d) Social Security work incentive provisions. A person who
this title (relating to Exhibit). The calculation is based on the number      identified payment for specific needed services in his/her approved
of family members and annual gross income, reduced by extraordinary           plan utilizing Social Security work incentive provisions (i.e., Plan to
expenses paid during the past 12 months or projected for the next 12          Achieve Self-Sufficiency; Impairment Related Work Expense) is deter-
months. No other sliding scale is used.                                       mined as having an ability to pay for the specific services. Persons are
                                                                              not required to identify payment for any service for which they may be
          (1) A maximum monthly fee that is greater than zero is es-
                                                                              eligible as part of their approved plan for utilizing the Social Security
tablished for persons who are determined as having an ability to pay. If
                                                                              work incentive provisions.
two or more members of the same family are receiving services, then
the maximum monthly fee is for the family.                                           (e) Notification. After a financial assessment is conducted, the
                                                                              local authority must provide written notification to the person (or par-
         (2) A maximum monthly fee of zero is established for per-
                                                                              ents) that includes:
sons who are determined as having an inability to pay.
                                                                                         (1) the determination of whether the person (or parent) has
       (c)    Third-party coverage.
                                                                              an ability or an inability to pay;
           (1) Third-party coverage that will pay. A person with third-
                                                                                       (2) a copy of the financial assessment form that is signed
party coverage that will pay for needed services is determined as having
                                                                              by the person (or parent) and a copy of the Monthly Ability-to-Pay
an ability to pay for those services.
                                                                              Fee Schedule, with the applicable areas indicated (i.e., annual gross
             (2)     Third-party coverage that will not pay.                  income, number of family members);
              (A) If the person’s third-party coverage will not pay for                   (3)    the amount of the maximum monthly fee;
needed services because the local authority does not have an approved
                                                                                         (4) the name and phone number of at least one local author-
provider on its network, then the local authority will propose to refer the
                                                                              ity staff who the person (or parent) may contact during office hours to
person to his/her third-party coverage to identify a provider for which
                                                                              discuss the information contained in the written notification; and
the third-party coverage will pay unless:
                                                                                       (5) a statement that the person (or parent) may voluntarily
                 (i) the local authority is identified as being respon-
                                                                              pay more than the maximum monthly fee.
sible for providing court-ordered outpatient services to the person;
                                                                              §412.108.     Billing Procedures.
                (ii) the local authority is able to negotiate adequate
payment for services with the person’s third-party coverage; or                     (a)    Monthly account.
                (iii) the person (or parent) voluntarily agrees to pay                  (1) The local authority will maintain a monthly account for
the standard charge(s) for the needed service(s).                             each person that lists all services provided to the person during the
               (B) If the local authority proposes to refer the person        month and the standard charges for the services. Each service listed
to his/her third-party coverage as described in paragraph (2)(A) of this      will indicate whether the service is:
subsection, then the local authority will provide written notification to                       (A) covered by Medicare third-party coverage;
the person (or parent) in accordance with §412.109(e)(1) of this title
(relating to Payments, Collections, and Non-payment), which provides                            (B) covered by non-Medicare third-party coverage;
an opportunity to appeal. The local authority must also comply with                             (C) not covered by third-party coverage; or
§412.109(e)(2)-(3) as initiated by the person (or parent).
                                                                                            (D) identified for payment in the person’s approved
              (C) If the local authority refers the person to his/her         plan utilizing Social Security work incentive provisions.
third-party coverage, then the local authority will assist the person (or
parent) in identifying a provider for which the third-party coverage will               (2) If a person has exceeded the maximum third-party cov-
pay.                                                                          erage benefit of a particular covered service, then that service is indi-
                                                                              cated as not covered by third-party coverage.
              (D) If a person who has been referred to his/her third-
party coverage is unable to identify or access needed services from an               (b) Accessing funding sources. The local authority must ac-
approved provider or if access will be unduly delayed, then the local         cess all available funding sources before using TDMHMR funds to pay
authority will:                                                               for a person’s services. Funding sources may include third-party cover-
                                                                              age, state and/or local governmental agency funds (e.g., crime victims
                  (i) assist the person (or parent) in resolving the mat-     fund), Qualified Medicare Beneficiary (QMB) Program, indigent phar-
ter with the third-party coverage (e.g., contacting customer service at       maceutical programs, or a trust that provides for the person’s healthcare
the third-party coverage, filing a complaint with the third-party cover-      and rehabilitative needs.
age or the Texas Department of Insurance); and
                                                                                     (c) Billing third-party coverage. The local authority will bill
                (ii) if clinically indicated, ensure the provision of the     the person’s third-party coverage the monthly account amount for cov-
needed services to the person pending resolution.                             ered services. If the local authority has negotiated a reimbursement
                   (E) The local authority will maintain documentation of:    amount with the third-party coverage that is different from the monthly
                                                                              account amount, then the local authority may bill the third-party cov-
                      (i) all referrals as described in paragraph (2)(C) of   erage the negotiated reimbursement amount for covered services.
this subsection;
                                                                                    (d)     Billing the person (or parents).
                 (ii) all assistance as described in paragraph (2)(D)(i)
of this subsection; and                                                                (1) No third-party coverage. If the monthly account
                                                                              amount for services not covered by third-party coverage:
                 (iii) whether the person received services pending
resolution as described in paragraph (2)(D)(ii) of this subsection.




27 TexReg 2048 March 15, 2002 Texas Register
              (A) exceeds the person’s maximum monthly fee                   cost-sharing limit, for services covered by the non-Medicare third-party
(MMF), then the amount is reduced to equal the MMF and the local             coverage for the remainder of the policy-year.
authority bills person (or parent) the MMF; or
                                                                                         (4)     Social Security work incentive provisions.
               (B) is less than the person’s MMF, then the local author-
                                                                                            (A) If the person identified a payment amount for spe-
ity bills the person (or parent) the monthly account amount for services
                                                                             cific services in his/her approved plan utilizing Social Security work in-
not covered by third-party coverage.
                                                                             centive provisions (i.e., Plan to Achieve Self-Sufficiency; Impairment
           (2) Medicare third-party coverage. Nothing in this para-          Related Work Expense), then the local authority bills the person the
graph is intended to conflict with any applicable law, rule, or regulation   monthly account amount for the specific services up to the identified
with which a local authority must comply.                                    payment amount. If the monthly account amount for the specific ser-
                                                                             vices is greater than the identified payment amount, then the remaining
            (A) The following amounts are added to equal the total
                                                                             balance is applied toward the person’s MMF.
amount applied toward the person’s MMF:
                                                                                         (B) The following amounts are added to equal the total
                (i) the amount of all applicable co-payments and
                                                                             amount applied toward the person’s MMF:
co-insurance for services listed in the monthly account as covered by
Medicare third-party coverage;                                                                (i) any remaining balance as described in paragraph
                                                                             (4)(A) of this subsection; and
                 (ii) the amount Medicare third-party coverage was
billed but did not pay because the deductible hasn’t been met; and                           (ii) the monthly account amount for services not
                                                                             covered by third-party coverage.
                (iii) the monthly account amount for services not
covered by third-party coverage.                                                        (C) If the total amount applied toward the person’s
                                                                             MMF as described in paragraph (4)(B) of this subsection:
           (B) If the total amount applied toward the person’s
MMF as described in paragraph (2)(A) of this subsection:                                      (i) exceeds the person’s MMF, then the amount is re-
                                                                             duced to equal the MMF and the local authority bills person (or parent)
                 (i) exceeds the person’s MMF, then the amount is re-
                                                                             the MMF; or
duced to equal the MMF and the local authority bills person (or parent)
the MMF; or                                                                                     (ii) is less than the person’s MMF, then the local au-
                                                                             thority bills the person (or parent) the total amount applied toward the
                   (ii) is less than the person’s MMF, then the local au-
                                                                             MMF.
thority bills the person (or parent) the total amount applied toward the
MMF.                                                                               (e)     Statements.
          (3)    Non-Medicare third-party coverage.                                     (1) The local authority will send to persons (and parents)
                                                                             who have been determined as having the ability to pay monthly or quar-
              (A) Cost-sharing exceeds MMF. If the amount of all ap-
                                                                             terly statements that include:
plicable co-payments, co-insurance, and deductibles for services listed
in the monthly account as covered by non-Medicare third-party cover-                      (A) an itemized list, at least by date and by type, of all
age exceeds the person’s MMF, then the local authority bills the person      services provided during the period;
(or parent) all applicable co-payments, co-insurance, and deductibles.
                                                                                               (B) the standard charge for each service;
                (B) Cost-sharing does not exceed MMF.
                                                                                               (C) the total charge for the period;
                 (i) If the amount of all applicable co-payments,
                                                                                               (D) the amount paid (or to be paid) by each funding
co-insurance, and deductibles for services listed in the monthly
                                                                             source; and
account as covered by non-Medicare third-party coverage does not
exceed the person’s MMF, then the following amounts are added to                               (E) the amount to be paid by the person (or parent).
equal the total amount applied toward the person’s MMF:
                                                                                       (2) Unless requested otherwise, the local authority does not
                   (I) the amount of all applicable co-payments,             send statements to persons (or parents) who have an ability to pay if
co-insurance, and deductibles; and                                           they maintain a zero balance (i.e., the person (or parent) does not cur-
                                                                             rently owe any money).
                   (II) the monthly account amount for services not
covered by third-party coverage.                                                       (3) Unless requested otherwise, the local authority does not
                                                                             send statements to persons (or parents) who have an inability to pay.
              (ii) If the total amount applied toward the person’s
MMF as described in paragraph (3)(B) of this subsection:                     §412.109. Payments, Collections, and Non-payment.
                    (I) exceeds the person’s MMF, then the amount                  (a) Payment and collection.
is reduced to equal the MMF and the local authority bills person (or                   (1) Persons (and parents) are responsible for promptly pay-
parent) the MMF; or                                                          ing all charges owed to the local authority.
                     (II) is less than the person’s MMF, then the local                 (2) Local authorities are responsible for making reasonable
authority bills the person (or parent) the total amount applied toward       efforts to collect payments from all available funding sources before
the MMF.                                                                     accessing TDMHMR funds to pay for persons’ services.
             (C) Annual cost-sharing limit. If the person (or parent)              (b) Financial hardship. If a person (or parent) claims financial
has reached his/her annual cost-sharing limit (i.e., maximum out-of-         hardship as provided in this subsection, then the local authority must
pocket expense) as verified by the non-Medicare third-party cover-           determine whether a significant financial change (as defined) has oc-
age, then the local authority will not bill the person (or parent) any       curred. If a significant financial change has occurred, then the local
co-payments, co-insurance, or deductibles, as applicable to the annual       authority must immediately update the person’s (or parent’s) financial



                                                                      ADOPTED RULES March 15, 2002 27 TexReg 2049
assessment as required in 412.106(a) of the title (relating to Determi-                   (A) maintain clinical documentation that the proposed
nation of Ability to Pay).                                                    action would not cause the person’s mental or physical health to be at
                                                                              imminent risk of serious deterioration; and
           (1) If a person (or parent) claims, and provides documen-
tation, that financial hardship prevents prompt payment of all charges                     (B) provide written notification to the person (or parent)
owed, then the local authority may arrange for the person (or parent) to      in accordance with subsection (e)(1) of this section and comply with
pay a lesser amount each month.                                               subsection (e)(2)-(3) as initiated by the person (or parent).
          (2) If a person (or parent) claims that financial hardship                (e)   Notification, Appeal, and Review.
prevents prompt payment of all charges owed, then the local author-
                                                                                         (1) Notification. The local authority will notify the per-
ity must arrange for the person (or parent) to pay a lesser amount each
                                                                              son (or parent) in writing of the proposed action (i.e., to involuntar-
month only if the person has third-party coverage that is neither in-
                                                                              ily reduce or terminate the person’s services or refer the person to
come-based public insurance nor Medicare and the person’s cost-shar-
                                                                              his/her third-party coverage) and the right to appeal the proposed action
ing exceeds his/her MMF. The lesser amount:
                                                                              in accordance with §401.464 of this title (relating to Notification and
           (A) will be no more than the person’s MMF, if the per-             Appeals Process). The notification will describe the time frames and
son’s MMF is greater than zero; or                                            process for requesting an appeal and include a copy of this subchapter.
                                                                              If the person (or parent) requests an appeal within the prescribed time
              (B) will be no more than $5.00, if the person’s MMF is
                                                                              frame, then the local authority may not take the proposed action while
zero.
                                                                              the appeal is pending. The local authority may take the proposed action
          (3) Although the person (or parent) may pay a lesser                if the person (or parent) does not request a review within the prescribed
amount each month because a portion of the charges will be deferred,          time frame.
the person (or parent) is still responsible for paying all charges owed.
                                                                                         (2) Appeal and appeal decision. The appeal is conducted in
        (c) Discontinuing charges to persons (or parents) for services.       accordance with §401.464(g) of this title (relating to Notification and
If the local authority makes a decision, based on a clinical determi-         Appeals Process). The local authority will notify the person (or par-
nation that is documented and includes input from the person’s team,          ent) in writing of the appeal decision in accordance with §401.464(h)
that being charged for services and receiving statements will result in       and the right to have the appeal decision reviewed by the Office of Con-
a reduction in the functioning level of the person or the person’s (or        sumer Services and Rights Protection - Ombudsman (1-800-252-8154)
parent’s) refusal or rejection of the needed services, then the local au-     at TDMHMR Central Office if the person (or parent) is dissatisfied with
thority will discontinue charging the person (or parent) for services and     the appeal decision. The notification must describe the time frames and
stop sending statements. The clinical determination must be reassessed        process for requesting a review.
at least every three months. If the local authority decides to discontinue
                                                                                         (3) Review of appeal decision. If the person (or parent) is
charging the person (or parent) for services, then the local authority
                                                                              dissatisfied with the appeal decision, then the person (or parent) may
must develop and implement a plan to address the issues related to the
                                                                              request a review by the Office of Consumer Services and Rights Protec-
person’s functioning level or the person’s (or parent’s) refusal or rejec-
                                                                              tion - Ombudsman at TDMHMR Central Office. A request for review
tion of the needed services.
                                                                              must be submitted to the Office of Consumer Services and Rights Pro-
     (d) Involuntary reduction or termination of services for non-            tection - Ombudsman, TDMHMR, P.O. Box 12668, Austin, TX 78751,
payment by person (or parent).                                                within 10 working days of receipt of the appeal decision. If the person
                                                                              (or parent) requests a review within the prescribed time frame, then
           (1) The local authority will address the past-due account of
                                                                              the local authority may not take the proposed action while the review
a person (or parent) who is not making payments to ensure reasonable
                                                                              is pending. The local authority may take the proposed action if the
efforts to secure payments are initiated with the person (or parent). For
                                                                              person (or parent) does not request a review within the prescribed time
example, if the local authority determines that non-payment is related
                                                                              frame and the appeal decision upholds the decision to take the proposed
to financial hardship, then the local authority may assist the person (or
                                                                              action.
parent) in making arrangements to pay a lesser amount each month in
accordance with subsection (a)(2) of this section or if the local authority                (A) A person (or parent) who requests a review may
makes a decision, based on a clinical determination that is documented        choose to have the reviewer conduct the review:
and includes input from the person’s team, that non-payment is related
                                                                                               (i) by telephone conference with the person (or par-
to the person’s mental illness or mental retardation, then the person’s
                                                                              ent) and a representative from the local authority and make a decision
treatment/service plan may be modified to address the non-payment.
                                                                              based upon verbal testimony made during the telephone conference and
          (2) If the local authority makes a decision, based on a clin-       any documents provided by the person (or parent) and the local author-
ical determination that is documented and includes input from the per-        ity; or
son’s team, that non-payment is not related to the person’s mental ill-
                                                                                              (ii) by making a decision based solely upon docu-
ness or mental retardation and, despite reasonable efforts to secure pay-
                                                                              ments provided by the person (or parent) and the local authority with-
ment, the person (or parent) does not pay, then the local authority may
                                                                              out the presence of any of the parties involved.
propose to involuntarily reduce or terminate the person’s services. The
local authority may not propose to involuntarily reduce or terminate the                   (B) The review:
person’s services if the proposed action would cause the person’s men-
                                                                                              (i) will be conducted no sooner than 10 working
tal or physical health to be at imminent risk of serious deterioration
                                                                              days and no later than 30 working days of receipt of the request for
or the local authority is identified as being responsible for providing
                                                                              review unless an extension is granted by the director of the Office of
court-ordered outpatient services to the person.
                                                                              Consumer Services and Rights Protection - Ombudsman;
          (3) If the local authority proposes to involuntarily reduce
or terminate the person’s services, then the local authority must:




27 TexReg 2050 March 15, 2002 Texas Register
                (ii) will include an examination of the pertinent in-         The Comptroller of Public Accounts adopts an amendment to
formation concerning the proposed action and may include consulta-            §3.316, concerning occasional sales, without changes to the
tion with TDMHMR clinical staff and staff who are responsible for the         proposed text as published in the January 4, 2002, issue of the
policy contained in this subchapter;                                          Texas Register (27 TexReg 106).
                 (iii) will result in a final decision which will uphold,     This section is amended to implement House Bill 82, 77th Legis-
reverse, or modify the original decision to take the proposed action; and     lature, 2001. Effective October 1, 2001, this legislation amended
                                                                              Tax Code, §151.321, to exempt the first $5,000 of a qualified
                 (iv) is the final step of the appeal process for invol-
                                                                              student organization’s total receipts from sales of taxable items
untarily reducing or terminating the person’s services for non-payment
                                                                              in a calendar year if those receipts are not otherwise exempted
and for referring the person to his/her third-party coverage.
                                                                              by Tax Code, §151.321. This change is reflected in subsection
              (C) Within five working days after the review, the re-          (k)(3) of the proposed rule. Additional amendments are made
viewer will send written notification of the final decision to the person     for the purpose of clarity.
(or parent) and the local authority.
                                                                              No comments were received regarding adoption of the amend-
              (D) The local authority will take appropriate action con-       ment.
sistent with the final decision.
                                                                              This amendment is adopted under Tax Code, §111.002, which
      (f) Prohibition of financial penalties. The local authority may         provides the comptroller with the authority to prescribe, adopt,
not impose financial penalties on a person (or parent).                       and enforce rules relating to the administration and enforcement
                                                                              of the provisions of Tax Code, Title 2.
       (g) Debt collection. Local authorities must make reasonable
efforts to collect debts before an account is referred to a debt collection   The amendment implements Tax Code, §151.321.
agency. Local authorities must document their efforts at debt collec-
                                                                              This agency hereby certifies that the adoption has been reviewed
tion.
                                                                              by legal counsel and found to be a valid exercise of the agency’s
            (1) Local authorities must incorporate into a written agree-      legal authority.
ment or contract for debt collection provisions that state that both par-
ties shall:                                                                   Filed with the Office of the Secretary of State on February 28,
              (A) maintain the confidentiality of the information and         2002.
not disclose the identity of the person or any other identifying informa-     TRD-200201248
tion; and
                                                                              Martin Cherry
              (B) not harass, threaten, or intimidate persons and their       Deputy General Counsel for Taxation
families.                                                                     Comptroller of Public Accounts
          (2) Local authorities will enforce the provisions contained         Effective date: March 20, 2002
in paragraph (1) of this subsection.                                          Proposal publication date: January 4, 2002
                                                                              For further information, please call: (512) 463-3699
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency’s                                 ♦             ♦             ♦
legal authority.
                                                                              34 TAC §3.320
Filed with the Office of the Secretary of State on February 28,               The Comptroller of Public Accounts adopts a new §3.320,
2002.                                                                         concerning Texas emissions reduction plan surcharge; off-road,
                                                                              heavy-duty diesel construction equipment, with changes to the
TRD-200201255                                                                 proposed text as published in the December 28, 2001, issue of
Andrew Hardin                                                                 the Texas Register (26 TexReg 10798).
Chairman, Texas MHMR Board
                                                                              The new section implements Senate Bill 5, 77th Legislature,
Texas Department of Mental Health and Mental Retardation
                                                                              2001. Senate Bill 5 added Tax Code, §151.0515, which imposes
Effective date: September 1, 2002
                                                                              a 1.0% surcharge on taxable diesel construction equipment
Proposal publication date: December 28, 2001                                  sold, leased, or rented on or after September 1, 2001. The
For further information, please call: (512) 206-5216                          comptroller administers the collection and remittance of the
                     ♦              ♦             ♦                           surcharge under Tax Code, Chapter 151, and deposits the
                                                                              surcharges to the credit of the Texas Emissions Reduction
TITLE 34. PUBLIC FINANCE                                                      Plan Fund. The Texas Emissions Reduction Plan Fund is
                                                                              administered by the Texas Natural Resource Conservation
PART 1. COMPTROLLER OF PUBLIC                                                 Commission and is used to provide grants and other incentives
                                                                              to improve air quality in Texas.
ACCOUNTS
                                                                              Subsection (c)(2) of the proposed rule has been corrected to
CHAPTER 3. TAX ADMINISTRATION                                                 reference subsection (a)(1) instead of subsection (a)(6).
SUBCHAPTER O. STATE SALES AND USE                                             No comments were received regarding adoption of the new rule.
TAX                                                                           This new rule is adopted under Tax Code, §111.002, which pro-
                                                                              vides the comptroller with the authority to prescribe, adopt, and
34 TAC §3.316




                                                                       ADOPTED RULES March 15, 2002 27 TexReg 2051
enforce rules relating to the administration and enforcement of                       (3) Total price--The entire amount a purchaser pays a seller
the provisions of the Tax Code, Title 2.                                    for the purchase, lease, or rental of off-road, heavy-duty diesel con-
                                                                            struction equipment. The total price includes charges for accessories,
The new rule implements Tax Code, §151.0515.
                                                                            transportation, installation, services, and other expenses that are con-
§3.320. Texas Emissions Reduction Plan Surcharge; Off-Road,                 nected to the sale.
Heavy-Duty Diesel Construction Equipment.
                                                                                   (b) Collection of surcharge. A seller must collect the surcharge
       (a) Definitions. The following words and terms, when used            from the purchaser on the total price of each sale, lease, or rental in
in this section, shall have the following meanings, unless the context      Texas of off-road, heavy-duty diesel construction equipment that is not
clearly indicates otherwise.                                                exempt from sales tax. The surcharge is collected at the same time and
                                                                            in the same manner as sales tax. See §3.286 of this title (relating to
           (1) Off-road, heavy-duty diesel construction equipment--
                                                                            Seller’s and Purchaser’s Responsibilities) for information on the col-
Diesel powered equipment of 50 horsepower or greater, other than mo-
                                                                            lection and remittance of sales tax. The surcharge is collected in addi-
tor vehicles, that is used in the construction of improvements to re-
                                                                            tion to state and local sales taxes but is not collected on the amount of
alty such as roads, buildings, and other permanent structures, or in the
                                                                            the sales tax.
repair, restoration, or remodeling of real property. Off-road, heavy-
duty diesel construction equipment includes accessories and attach-                (c)   Exemptions and exclusions.
ments sold with the equipment. Off-road, heavy-duty diesel construc-
                                                                                        (1) No surcharge is due on the sale, lease, or rental of off-
tion equipment includes:
                                                                            road, heavy-duty diesel construction equipment that is exempt from
             (A) backhoes;                                                  sales tax. A seller who accepts a valid and properly completed resale
                                                                            or exemption certificate, direct payment exemption certificate, or other
             (B) bore equipment and drilling rigs;
                                                                            acceptable proof of exemption from sales tax is not required to collect
             (C) bulldozers;                                                the surcharge. For example, a seller may accept an exemption cer-
                                                                            tificate in lieu of collecting sales tax and the surcharge from a farmer
             (D) compactors (plate compactors, etc.);
                                                                            who purchases a bulldozer to be used exclusively in the construction
             (E) cranes;                                                    or maintenance of roads and water facilities on a farm that produces
                                                                            agricultural products that are sold in the regular course of business.
              (F) crushing and processing equipment (rock and gravel
crushers, etc., used by contractors to process the construction materials             (2) No surcharge is due on the sale, lease, or rental of off-
they incorporate into realty);                                              road, heavy-duty diesel equipment that is not used in construction. A
                                                                            seller may accept an exemption certificate in lieu of collecting the sur-
             (G) dumpsters and tenders;
                                                                            charge even if the sale, lease, or rental of the equipment is not exempt
             (H) excavators;                                                from sales tax. For example, a purchaser who buys equipment listed in
                                                                            subsection (a)(1) of this section for a purpose other than use in construc-
             (I)   forklifts (rough terrain forklifts, etc.);
                                                                            tion may issue an exemption certificate that states that the equipment
             (J)   graders;                                                 will not be used to construct improvements to realty. The seller may
                                                                            accept the exemption certificate in lieu of collecting the surcharge, but
             (K) light plants (generators) and signal boards;
                                                                            is required to collect sales tax if there is no exemption from sales tax.
             (L) loaders;                                                   Examples of non-construction activities include mining at quarries, and
                                                                            oil and gas exploration and production at oil and gas well sites.
             (M)    mixers (cement mixers, mortar mixers, etc.);
                                                                                       (3) No surcharge is due on the sale, lease, or rental of off-
              (N) off-highway vehicles and other moveable special-
                                                                            road, heavy-duty diesel construction equipment that is subject to use tax
ized equipment (equipment, such as a motorized crane, that does not
                                                                            under Tax Code, Chapter 151, Subchapter D. A purchaser who brings
meet the definition of a motor vehicle because it is designed to perform
                                                                            off-road, heavy-duty diesel construction equipment into Texas for stor-
a specialized function rather than designed to transport property or per-
                                                                            age, use, or consumption in this state, or in other situations in which
sons other than the driver);
                                                                            use tax rather than sales tax is due, is not required to pay or accrue the
             (O) paving equipment (asphalt pavers, concrete pavers,         surcharge.
etc.);
                                                                                   (d)   Reports and payments.
             (P) rammers and tampers;
                                                                                      (1) A seller must report and pay the surcharge in the same
             (Q) rollers;                                                   manner as sales tax, but separate reports and payments for the surcharge
                                                                            are required. A seller’s reporting period (i.e., monthly, quarterly, or
             (R) saws (concrete saws, industrial saws, etc.);
                                                                            yearly) and due date for the surcharge is determined by the amount of
             (S) scrapers;                                                  surcharge that the seller collects. See §3.286 of this title (relating to
                                                                            Seller’s and Purchaser’s Responsibilities).
             (T) surfacing equipment;
                                                                                       (2) A seller must report and pay the surcharge to the comp-
             (U) tractors;
                                                                            troller on forms prescribed by the comptroller for the surcharge. A
             (V) trenchers.                                                 seller is not relieved of the responsibility for filing a surcharge report
                                                                            and paying the surcharge by the due date because the seller fails to re-
           (2) Surcharge--A 1.0% fee is imposed on the sale, lease, or
                                                                            ceive the correct form from the comptroller.
rental in Texas of new or used off- road, heavy-duty diesel construc-
tion equipment. This surcharge is in addition to state and local sales                 (3) The penalties and interest imposed for failure to timely
taxes that are due on the equipment and is for the benefit of the Texas     file and pay the surcharge are the same as those imposed for failure to
Emissions Reduction Fund, which is administered by the Texas Natu-          timely file and pay sales tax. Likewise, the 0.5% discount for timely
ral Resources Conservation Commission.                                      filing and payment is applicable to surcharge reports and payments.



27 TexReg 2052 March 15, 2002 Texas Register
No prepayment discount will be paid a seller for prepayment of the          Martin Cherry
surcharges.                                                                 Deputy General Counsel for Taxation
        (e)   Effective date.                                               Comptroller of Public Accounts
                                                                            Effective date: March 21, 2002
          (1) The surcharge is due on the total price of off-road,          Proposal publication date: December 21, 2001
heavy-duty diesel construction equipment sold in Texas if the pur-
                                                                            For further information, please call: (512) 463-3699
chaser takes possession of or title to the construction equipment after
August 31, 2001 and before October 1, 2008.                                                     ♦             ♦             ♦
            (2) The surcharge is due on the total price, excluding sepa-
rately stated interest charges, of off- road, heavy-duty diesel construc-
                                                                            SUBCHAPTER NN. FIREWORKS TAX
tion equipment leased under a financing lease, as defined in §3.294 of      34 TAC §3.1281
this title (relating to Rental and Lease of Tangible Personal Property),
if the lessee takes possession of the construction equipment after Au-      The Comptroller of Public Accounts adopts a new §3.1281, con-
gust 31, 2001 and before October 1, 2008.                                   cerning fireworks tax, without changes to the proposed text as
                                                                            published in the January 4, 2002, issue of the Texas Register (27
          (3) The surcharge is due on the lease payments for off-road,      TexReg 108).
heavy-duty diesel construction equipment that is leased under an oper-
ating lease, as defined in §3.294, if the lessee takes possession of the    This new rule is adopted to implement House Bill 3667, 77th Leg-
construction equipment after August 31, 2001 and before October 1,          islature, 2001, which added Tax Code, Chapter 161. This new
2008.                                                                       chapter imposes a 2.0% fireworks sales tax on fireworks sold on
                                                                            or after October 1, 2001. The new rule provides important infor-
This agency hereby certifies that the adoption has been reviewed            mation to taxpayers concerning the collection and remittance of
by legal counsel and found to be a valid exercise of the agency’s           the fireworks tax.
legal authority.
                                                                            No comments were received regarding adoption of the new rule.
Filed with the Office of the Secretary of State on February 27,             This new rule is adopted under Tax Code, §111.002, which pro-
2002.                                                                       vides the comptroller with the authority to prescribe, adopt, and
                                                                            enforce rules relating to the administration and enforcement of
TRD-200201242                                                               the provisions of Tax Code, Title 2.
Martin Cherry
                                                                            The new rule implements Tax Code, §161.002, and Government
Deputy General Counsel for Taxation
                                                                            Code, §614.075.
Comptroller of Public Accounts
Effective date: March 19, 2002                                              This agency hereby certifies that the adoption has been reviewed
Proposal publication date: December 28, 2001                                by legal counsel and found to be a valid exercise of the agency’s
For further information, please call: (512) 463-3699
                                                                            legal authority.

                      ♦            ♦             ♦                          Filed with the Office of the Secretary of State on February 27,
34 TAC §3.368                                                               2002.
The Comptroller of Public Accounts adopts a new §3.368, con-                TRD-200201243
cerning the certified public accountant audit program, without              Martin Cherry
changes to the proposed text as published in the December 21,               Deputy General Counsel for Taxation
2001, issue of the Texas Register (26 TexReg 10486).                        Comptroller of Public Accounts
This section implements Senate Bill 1037, 77th Legislature,                 Effective date: March 19, 2002
2001. The section establishes administrative and procedural                 Proposal publication date: January 4, 2002
guidelines for a new audit program in which a taxpayer may                  For further information, please call: (512) 463-3699
hire a certified public accountant who is not employed by the
comptroller to perform a sales and use tax audit to determine a
                                                                                                ♦             ♦             ♦
taxpayer’s tax liability under Tax Code, Chapter 151.                       CHAPTER 9. PROPERTY TAX ADMINISTRA-
No comments were received regarding adoption of the new rule.               TION
This new rule is adopted under Tax Code, §111.002, which pro-               SUBCHAPTER C. APPRAISAL DISTRICT
vides the comptroller with the authority to prescribe, adopt, and
enforce rules relating to the administration and enforcement of             ADMINISTRATION
the provisions of Tax Code, Title 2.
                                                                            34 TAC §9.417
The new rule implements Tax Code, §151.0232.
                                                                            The Comptroller of Public Accounts adopts a new §9.417, con-
This agency hereby certifies that the adoption has been reviewed            cerning property tax exemption for organizations engaged pri-
by legal counsel and found to be a valid exercise of the agency’s           marily in charitable activities, with changes to the proposed text
legal authority.                                                            as published in the December 28, 2001, issue of the Texas Reg-
                                                                            ister (26 TexReg 10801).
Filed with the Office of the Secretary of State on March 1, 2002.
                                                                            The new section is adopted to implement House Bill 1689, 77th
TRD-200201283                                                               Legislature, 2001, effective September 1, 2001.




                                                                     ADOPTED RULES March 15, 2002 27 TexReg 2053
No comments were received regarding adoption of the new sec-                        (e) A determination by the comptroller that a statewide chari-
tion.                                                                        table organization is exempt from sales tax and, if applicable, franchise
                                                                             tax, will also constitute a determination of exempt status for any lo-
For purposes of clarity, the comptroller reformatted subsection
                                                                             cal charitable organizations that have been identified in the statewide
(g) of the proposed rule by moving a part of the text to a new
                                                                             charitable organization’s application for determination. The comptrol-
subsection (g)(1) and by adding a new subsection (g)(2) that ref-
                                                                             ler will send a determination letter to that statewide organization and
erences the chief appraiser’s current authority under Tax Code,
                                                                             to any subchapters that are included in the statewide organization’s ap-
§11.43(d), to grant filing deadline extensions for property tax ex-
                                                                             plication.
emption applications. To maintain the structural integrity of the
rule, changes were also made to the numbering of paragraphs                         (f) An organization must submit a copy of the comptroller’s
(1)-(4) in subsection (g) of the proposed rule and to related ref-           determination letter to the chief appraiser at the same time that the
erences to those subdivisions found in subsection (g)(3) of the              organization submits its application for property tax exemption. The
proposed text. The comptroller also added a line for the primary             chief appraiser shall determine if the charitable organization is using
use of the property to Schedule A: Description of real property              its property exclusively for charitable activities.
on the Application for Primarily Charitable Organization Property
                                                                                    (g) An organization must comply with the filing requirements
Tax Exemption (Form 50-299), as this line was inadvertently left
                                                                             for application for property tax exemption that are stated in Tax Code,
off the form that was submitted with the proposed rule.
                                                                             §11.43(d). A request to the comptroller for a determination letter for
This new section is adopted under Tax Code, §5.03, which re-                 purposes of compliance with subsection (d) of this section does not
quires the comptroller to adopt rules establishing the minimum               automatically extend the filing due date of April 30.
standards for the administration and operation of an appraisal
                                                                                       (1) If an organization has not received a determination let-
district, Tax Code, §5.07, which requires the comptroller to pre-
                                                                             ter from the comptroller, the organization may use the following pro-
scribe the contents and form for the administration of the prop-
                                                                             cedure to request that the chief appraiser extend the filing due date for
erty tax system, and Tax Code, §11.43(f), which requires the
                                                                             an application for exemption.
comptroller to prescribe the contents and form for each kind of
property tax exemption.                                                                   (A) The organization must submit to the chief appraiser
                                                                             a written request for an extension by no later than April 1;
The new section implements Tax Code, Chapter 11, Subchapter
B, §11.184.                                                                               (B) The request for extension should state that the or-
                                                                             ganization has submitted a request for a determination letter to the
§9.417. Property Tax Exemption for Organizations Engaged Primar-
                                                                             comptroller and should have as an attachment a copy of the request for
ily in Charitable Activities.
                                                                             determination letter that the organization submitted to the comptroller;
       (a) Definitions. The following words and terms, when used
in this section, shall have the following meanings, unless the context                     (C) The chief appraiser shall grant the organization’s re-
clearly indicates otherwise.                                                 quest for extension for a period of not longer than 60 days if the organi-
                                                                             zation has complied with subparagraphs (A) and (B) of this paragraph;
           (1) Local charitable organization--An organization that is
a chapter, subsidiary, or branch of a statewide charitable organization                    (D) The chief appraiser may verify with the comptroller
and that is engaged primarily in performing functions that are listed in     that a request for a determination letter has been submitted.
Tax Code, §11.18(d).
                                                                                       (2) Notwithstanding paragraph (1) of this subsection, the
            (2) Statewide charitable organization--An organization           chief appraiser may extend the deadline for filing an application for ex-
that is statewide and that is engaged primarily in performing functions      emption at any time under the authority provided by Tax Code, §11.43.
that are listed in Tax Code, §11.18(d).
                                                                                    (h) If the chief appraiser, upon receipt of the application for
       (b) A taxing unit may adopt a tax exemption for property that         tax exemption, disagrees with the comptroller’s determination, then the
a statewide or local charitable organization owns if the property is used    chief appraiser may request a review of the determination by submitting
exclusively by the charitable organization or by other organizations that    a written request to the comptroller.
are eligible for tax exemption under Tax Code, §11.18 or §11.184, ex-
                                                                                       (1) The written request for reconsideration must be
cept as provided in subsection (c) of this section. The exemption may
                                                                             directed to the manager of the Property Tax Division, must contain
be adopted either by the governing body of the taxing unit or by the
                                                                             specific grounds on which the chief appraiser disagrees with the
voters at an election that is called by the governing body of a taxing
                                                                             comptroller’s determination, and must be accompanied by specific
unit.
                                                                             evidence that supports each ground that the chief appraiser asserts.
       (c) Use of exempt property by persons who are not charitable
                                                                                       (2) The comptroller will respond to the written request for
organizations eligible for exemption does not result in the loss of an
                                                                             reconsideration within 30 calendar days from the date on which the
exemption authorized by this section if the use is incidental to use by
                                                                             request for reconsideration was received.
those charitable organizations and limited to activities that benefit the
charitable organization that owns or uses the property.                                (3) The comptroller’s decision to uphold the determination
                                                                             is conclusive evidence that an organization is engaged primarily in per-
       (d) An organization that seeks a tax exemption under this sec-
                                                                             forming charitable function. The decision is not subject to further ap-
tion must obtain from the comptroller and submit with its application
                                                                             peal.
a determination letter that verifies that the organization is exempt from
sales tax and, if applicable, franchise tax, as a charitable organization.           (i) An exemption under this section expires at the end of the
For information or procedures on obtaining a determination letter from       fifth tax year after the year in which the exemption is granted. The
the comptroller, see §3.322 of this title (relating to Exempt Organiza-      organization may obtain a new determination letter and reapply for the
tions) and other publications that the comptroller issues.                   exemption.




27 TexReg 2054 March 15, 2002 Texas Register
       (j) An application for exemption must be substantially in the       agreed to by the chief appraiser and the property owner. The
form of the Application for Primarily Charitable Organization Prop-        comptroller made this clarification by adding subsection (c)(6).
erty Tax Exemption (Form 50-299). The comptroller adopts this form
                                                                           Based on staff’s recommendation, the comptroller has included
by reference. Copies of the form are available for inspection at the of-
                                                                           a phrase in subsection (e)(1) that clarifies that the chief appraiser
fice of the Texas Register or may be obtained from the Comptroller of
                                                                           and the property owner may reach an agreement to modify the
Public Accounts, P.O. Box 13528, Austin, Texas 78711. Copies may
                                                                           notice and inspection terms noted in this rule. This phrase pro-
also be requested by calling our toll-free number, 1- 800-252-9121. In
                                                                           vides clarification that chief appraisers have some flexibility to
Austin, call (512) 305-9999. From a Telecommunications Device for
                                                                           modify by agreement the notice and inspection procedures in
the Deaf (TDD), call 1-800-248-4099, toll free. In Austin, the local
                                                                           the rule.
TDD number is (512) 463-4621.
                                                                           HCAD submitted a comment that the comptroller should include
This agency hereby certifies that the adoption has been reviewed
                                                                           vehicle lease date on the exemption application and rendition
by legal counsel and found to be a valid exercise of the agency’s
                                                                           form. The comptroller has made the change because it agrees
legal authority.
                                                                           with HCAD’s comment that the lease date, and not the purchase
                                                                           date, is relevant for the exemption.
Filed with the Office of the Secretary of State on March 1, 2002.
TRD-200201284                                                              Collin County Appraisal District (Collin CAD) submitted a com-
                                                                           ment that the comptroller should include the rendition filing dead-
Martin Cherry
                                                                           line information on the Lessor’s Rendition or Property Report for
Deputy General Counsel for Taxation                                        Leased Automobiles (50-288). The comptroller has made the
Comptroller of Public Accounts                                             change to be consistent with other comptroller adopted rendi-
Effective date: March 21, 2002                                             tion forms.
Proposal publication date: December 28, 2001
                                                                           No other changes were made for the reasons noted below:
For further information, please call: (512) 463-3699

                    ♦             ♦             ♦                          Collin CAD submitted comments that the comptroller should in-
                                                                           clude a filing deadline on the Lessee’s Affidavit of Primarily Non
34 TAC §9.419                                                              Income Producing Vehicle Use (50-285) and should also insert
                                                                           on that form that the term "person" relative to notification by the
The Comptroller of Public Accounts adopts a new §9.419, con-               lessee of any changes in the use of the leased vehicle includes
cerning property tax exemption for motor vehicles leased for per-          the term "company." The comptroller made no changes based
sonal use, with changes to the proposed text as published in               on these comments because there is no statutory deadline for
the December 28, 2001, issue of the Texas Register (26 TexReg              filing Lessee’s Affidavit and because the legal definition of "per-
10801).                                                                    son" already includes all business entities.
The new rule is adopted to implement Senate Bill 248, 77th Leg-            Collin CAD submitted a comment that the comptroller should in-
islature, 2001, effective January 1, 2002.                                 clude a notation on the Lessee’s Affidavit of Primarily Non In-
During the proposed period, the comptroller received several               come Producing Vehicle Use (50-285) and the Lessor’s Applica-
comments and made minor clarification changes to the proposed              tion for Personal Use Automobile Exemptions (50-286) that the
rule based on some of those comments.                                      vehicles may be taxable by the city. The comptroller made no
                                                                           changes because most cities will exempt personal leased vehi-
An Austin attorney submitted a comment that two provisions                 cles, the inclusion of a notation of possible taxation by the city
in the proposed rule could be read to conflict each other and              could mistakenly lead lessees to assume the vehicle is not to-
requested that the comptroller clarify the matter. Although the            tally exempt in most jurisdictions.
proposed rule language permits lessors to submit electronic
images of affidavits if a chief appraiser has the capability to            Collin CAD submitted a comment that the comptroller should
accept them, another provision in the proposed rule mandates               include on the Lessor’s Rendition or Property Report for Leased
the use of the model form of the Lessee’s Affidavit of Primarily           Automobiles (50-288) a list of units having taxing jurisdictions
Non Income Producing Vehicle Use (Form 50-285). To eliminate               over the listed vehicles. The comptroller made no changes
this perceived conflict, the comptroller has clarified in subsection       because such information would be inconsistent with all other
(c)(2)(A) that a form that is in substantial compliance with Model         comptroller adopted rendition forms.
Form 50-285 may be used and deleted the proposed language                  HCAD submitted a comment requesting that the comptroller in-
in subsection (c)(3) that required the mandatory use of Model              clude specific language permitting lessor to attach a "tabular" list
Form 50-285. The comptroller included specific language in                 containing required vehicle related information. The CAD’s con-
subsection (c)(3) that a signed and notarized lessee’s affidavit           cern was that a literal reading of the rule would limit a lessor’s
may be electronically imaged. The same Austin attorney                     listing of vehicles in an electronic version to only five vehicles
submitted another comment noting a misreference in the rule,               per page since the proposed hard copy rendition form provides
but the aforementioned changes eliminated that problem.                    space for information on five vehicles. The comptroller made no
Harris County Appraisal District (HCAD) submitted a comment                changes because it is unnecessary. The inclusion by lessor of
that the comptroller clarify that the rule should not be read to           information on an unlimited number of vehicles is inherent in the
limit the chief appraiser’s authority to enter into an agreement for       rule’s provisions for the electronic transfer of required vehicle in-
electronic exchange of information required by rule in a format            formation to the appraisal district.




                                                                    ADOPTED RULES March 15, 2002 27 TexReg 2055
HCAD submitted another comment that the rule should permit             standards for the administration and operation of an appraisal
the lessor to file a combined exemption application and rendi-         district, Tax Code, §5.07, which requires the comptroller to pre-
tion. The comptroller made no changes because exemption ap-            scribe the contents and form for the administration of the prop-
plications and property renditions are historically separate docu-     erty tax system, and Tax Code, §11.43(f), which requires the
ments containing different information and separate filing dead-       comptroller to prescribe the contents and form for each kind of
lines. The suggested change might have unintended conse-               property tax exemption.
quences and could result in potential open records problems for
                                                                       The new section implements Tax Code, Chapter 11, Subchapter
same tax office because information on rendition forms is confi-
                                                                       B, §11.252.
dential.
                                                                       §9.419. Procedures for Determining Property Tax Exemption for Mo-
HCAD submitted a comment that the proposed rule requires the
                                                                       tor Vehicles Leased for Personal Use.
chief appraiser to provide two notices (a notice to inspect and a
notice of reasonable date and time with identification of affidavit)          (a) Effective Date. This section is effective for motor vehicles
to lessor not required by the Tax Code and that such notices ex-       that are leased on or after January 2, 2001.
ceed the scope of the comptroller’s authority. The comptroller
                                                                              (b) Definitions. The following words and terms, when used
made no changes based on this comment. Senate Bill 248 and
                                                                       in this section, shall have the following meanings, unless the context
Tax Code, §5.03, expressly authorizes the comptroller to pro-
                                                                       clearly indicates otherwise.
mulgate rules to insure uniformity in the administration of an ex-
emption involving thousands of motor vehicles located in an un-                   (1) Lease--An agreement whereby an owner of a motor ve-
known number of jurisdictions throughout the state. The notice         hicle for consideration gives exclusive use of a motor vehicle to another
and procedure requirements in the rule are designed to provide         for a period that is longer than 180 days.
a uniform and orderly method for chief appraisers to request and
                                                                                (2) Lessee--A person who enters into a lease for a specific
obtain information from vehicle owners to properly administer the
                                                                       motor vehicle primarily for the personal use of the lessee or the lessee’s
exemption. As previously noted in this preamble, the comptroller
                                                                       family.
did insert a phrase to subsection (e)(1) to provide more flexibility
to chief appraisers.                                                             (3) Lessor--A person who owns a motor vehicle that is
                                                                       leased to another person.
HCAD submitted a comment that subsection (e)(2) of the pro-
posed rule unduly limits chief appraisers’ authority because it                   (4) Lessee’s Affidavit--A sworn statement that a lessee ex-
requires that a chief appraiser should first attempt to obtain vehi-   ecutes to attest that the lessee does not hold the leased motor vehicle for
cle related information from the lessor, and to contact lessee only    the production of income and does not primarily use the leased motor
if the lessor does not provide the requested information. HCAD         vehicle for the production of income.
stated that there would be a need to directly contact a lessee to
                                                                                 (5) Motor vehicle--A passenger car or truck with a shipping
obtain relevant information that are only available to the location
                                                                       weight of 9,000 pounds or less.
of the leased vehicle. The comptroller made no changes be-
cause subsection (e)(2) is consistent with a reliable assumption                 (6) Reasonable date and/or time--A work weekday, Mon-
that the owner of property is the appropriate party to provide to      day through Friday, and a time that is after 8:00 a.m. and before 5:00
governmental officials information concerning that property. The       p.m., unless the appraisal district and the lessor agree otherwise.
language is necessary to help ensure uniform and orderly ad-
                                                                              (c) The comptroller will make available model forms that are
ministration of the exemption in the least invasive manner.
                                                                       adopted by reference in paragraph (1) of this subsection. Copies of the
HCAD submitted a comment that the rule is unduly restrictive be-       form are available for inspection at the office of the Texas Register or
cause it states that a properly executed lessee’s affidavit is prima   may be obtained from the Comptroller of Public Accounts, P.O. Box
facie evidence that the motor vehicle is not held for the produc-      13528, Austin, Texas 78711. Copies may also be requested by calling
tion of income and is used for non-income producing activities.        our toll-free number, 1- 800-252-9121. In Austin, call (512) 305-9999.
The comptroller made no changes based on this comment. A               From a Telecommunications Device for the Deaf (TDD), call 1-800-
notarized affidavit containing a clear and prominent warning of        248-4099, toll free. In Austin, the local TDD number is (512) 463-
the consequences of providing false statements is adequate ba-         4621.
sis for a presumption of the truthfulness of the information con-
                                                                                (1) The comptroller adopts by reference the following
tained within and a presumption that lessee will notify the lessor
                                                                       model forms:
of any change in vehicle use requiring removal of the exemption.
Nothing in the rule precludes a chief appraiser from rebutting this                (A) Lessee’s Affidavit of Primarily Non Income Pro-
assumption with reliable evidence.                                     ducing Vehicle Use (Form 50-285);
HCAD submitted a comment that subsection (f)(2) should be                         (B) Lessor’s Application for Personal Use Lease Auto-
deleted because the language that the evidentiary provision in         mobile Exemptions (Form 50-286); and
subsection (f) do not apply to proceedings or decisions of the
                                                                                   (C) Lessor’s Rendition or Property Report for Leased
Appraisal Review Board (ARB) would encourage ARBs to fol-
                                                                       Automobiles (Form 50-288).
low different standards than the appraisal district staff follows
in granting the exemption. The comptroller made no changes.                      (2) A chief appraiser or lessor must use the comptroller
Subsection (f)(2) was included to merely restate that an ARB           model forms that are adopted by reference in paragraph (1) of this sub-
has broad discretion to consider any relevant evidence, and to         section, unless the non-model form:
emphasize the state’s limited authority over local ARB proceed-
                                                                                   (A) for Lessee’s Affidavit of Primarily Non Income
ings.
                                                                       Producing Vehicle Use, for Lessor’s Application for Personal Use
This new section is adopted under Tax Code, §5.03, which re-           Lease Automobile Exemptions, and Lessor’s Rendition or Property
quires the comptroller to adopt rules establishing the minimum         Report for Leased Automobiles substantially complies with Form



27 TexReg 2056 March 15, 2002 Texas Register
50-285, Form 50-286, and Form 50-288 by using the same language                            (B) If the proposed date or time is not convenient, then
in the same sequence as the model form;                                       the lessor may propose an alternate reasonable date or time by notifying
                                                                              the chief appraiser in writing.
             (B) is an electronic version of a comptroller model form
and preserves the same language in the same sequence as the comptrol-                       (C) The lessor shall provide the chief appraiser with
ler model form; or                                                            reasonable accommodations to inspect and copy any of the lessees’ af-
                                                                              fidavits, or shall permit the chief appraiser to take the affidavits off
             (C) has been approved by the comptroller in writing be-
                                                                              premises for a period of no less than 48 hours to inspect and copy.
fore the form is used.
                                                                                             (D) The lessor may provide electronic images of the
           (3) After a lessee’s affidavit is signed by a lessee and prop-
                                                                              lessees’ affidavits, unless the chief appraiser does not have equipment
erly notarized, a lessor may make an electronic image of the lessee’s
                                                                              to receive or read electronic images. If the image is not sufficiently
affidavit and may produce the electronic image of the affidavit to the
                                                                              clear to distinguish the characteristics of a lessee’s handwriting and to
chief appraiser when an inspection is requested, subject to the condi-
                                                                              see the notarized signature and any other relevant details, the chief ap-
tion of subsection (e)(1)(D) of this section.
                                                                              praiser may request to inspect an original lessee’s affidavit.
            (4) Subject to the limitations that are provided in paragraph
                                                                                            (E) If the lessor is located more than 150 miles from the
(2) of this subsection, if a chief appraiser uses a form other than the one
                                                                              appraisal district’s office, then the chief appraiser may submit a written
that the comptroller has adopted, then the chief appraiser must make the
                                                                              request that the lessor either copy and mail the identified lessees’ affi-
form available to the lessor. A chief appraiser may not mandate the use
                                                                              davits or send the original affidavits to the chief appraiser for at least
of his form in lieu of the comptroller model form and may not deny a
                                                                              14 days for inspection and copying. The chief appraiser and the lessor
lessor’s claim for exemption based solely on the lessor’s failure to use
                                                                              may determine who should bear the costs of copying and mailing.
the chief appraiser’s form.
                                                                                        (2) A chief appraiser should first attempt to obtain infor-
          (5) A Lessee’s Affidavit of Personal Use of Leased Vehi-
                                                                              mation from the lessor. If the lessor does not provide the requested
cle, which the comptroller prescribed on September 10, 2001, is the
                                                                              information within the specified time period, then the chief appraiser
acceptable exemption form until the effective date of the comptroller
                                                                              may contact the lessee directly.
model forms that are adopted by reference in paragraph (1) of this sub-
section.                                                                             (f) A properly executed Lessee’s Affidavit of Primarily Non
                                                                              Income Producing Vehicle Use (Form 50-285) is prima facie evidence
           (6) No provision in this section should be construed as lim-
                                                                              that the motor vehicle is not held for the production of income and is
iting the chief appraiser’s authority to enter into an agreement for elec-
                                                                              used primarily for non-income producing activities.
tronic exchange of information covered by this section in a format
agreed to by the chief appraiser and the lessor.                                        (1) A chief appraiser shall also consider the following evi-
                                                                              dence of primarily non-income producing use:
       (d) A lessor satisfies the requirements of Tax Code, §11.252,
for exemption of leased motor vehicles if the lessor:                                     (A) an affidavit by the lessee’s spouse or other credible
                                                                              person who has information about the use of the leased motor vehicle
           (1) properly completes and timely files with the chief ap-
                                                                              and mileage records; and
praiser the Lessor’s Rendition or Property Report for Leased Automo-
biles (Form 50-288);                                                                       (B) a statement by the lessee’s employer that the motor
                                                                              vehicle was not used or required to be used in the lessee’s employment.
          (2) properly completes and timely files with the chief ap-
praiser the Lessor’s Application for Personal Use Lease Automobile                       (2) Since the rulemaking authority that is given the comp-
Exemptions (Form 50-286);                                                     troller does not extend to the Appraisal Review Board, this subsection
                                                                              does not apply to proceedings or decisions of the Appraisal Review
          (3) receives Lessee’s Affidavit of Primarily Non Income
                                                                              Board.
Producing Vehicle Use (Form 50-285) that the lessee executed on or
before the date on which the required forms that are enumerated in                   (g) If a chief appraiser has reason to question, in whole or in
paragraphs (1) and (2) have been filed; and                                   part, the validity of the lessor’s application for exemption, then the
                                                                              chief appraiser may investigate and shall notify the lessor of the chief
         (4) maintains each Lessee’s Affidavit of Primarily Non In-
                                                                              appraiser’s intent to investigate. The notice that is required by this rule
come Producing Vehicle Use (Form 50-285) that pertains to each leased
                                                                              shall:
motor vehicle for which the lessor seeks an exemption;
                                                                                        (1) identify the motor vehicle that the chief appraiser ques-
       (e) A chief appraiser may inspect and/or obtain copies of
                                                                              tions as qualifying for the exemption;
lessees’ affidavits that the lessor maintains.
                                                                                       (2) state separately the reason for questioning the claimed
           (1) Unless agreed to otherwise, a lessor and a chief ap-
                                                                              exemption or lessee’s affidavit;
praiser shall use the following procedures when the chief appraiser pro-
poses to inspect lessees’ affidavits on leased motor vehicles for which                 (3) specify the additional information that the chief
the lessor seeks an exemption.                                                appraiser seeks; and
              (A) No less than 10 days prior to the inspection, the                    (4) state the due date upon which the requested information
chief appraiser shall provide the lessor with notice of the chief ap-         must be delivered.
praiser’s intention to inspect the lessees’ affidavits in the lessor’s pos-
                                                                                     (h) If a chief appraiser determines that some of the motor ve-
session or control. The notice must state a reasonable date and time
                                                                              hicles that the lessor claims in the application for exemption do not
when the chief appraiser proposes to inspect the lessees’ affidavits and
                                                                              qualify for exemption, then the chief appraiser may modify the exemp-
shall identify the affidavits that will be subject to inspection.
                                                                              tion by disallowing the amount of value that the non-exempt leased
                                                                              motor vehicles represent, but shall grant the exemption on the remain-
                                                                              ing value of the leased motor vehicles. Any notice of modification or



                                                                       ADOPTED RULES March 15, 2002 27 TexReg 2057
denial of the claimed exemption shall be made in accordance with the    retirement program, without changes to the proposed text as
notice requirements of Tax Code, §11.43 and §11.45.                     published in the January 18, 2002, issue of the Texas Register
                                                                        (27 TexReg 461).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency’s       This section is amended to revise the requirements that must
legal authority.                                                        be met in order for military service credit to be creditable in the
                                                                        supplemental program.
Filed with the Office of the Secretary of State on March 1, 2002.
                                                                        No comments were received concerning these amendments.
TRD-200201285
                                                                        The amendments are adopted under Texas Government Code
Martin Cherry
                                                                        §815.102, which provides that the Board of Trustees may adopt
Deputy General Counsel for Taxation                                     rules for the transaction of any business of the Board. No other
Comptroller of Public Accounts                                          statutes are affected by these adopted amendments.
Effective date: March 21, 2002
Proposal publication date: December 28, 2001
                                                                        This agency hereby certifies that the adoption has been reviewed
                                                                        by legal counsel and found to be a valid exercise of the agency’s
For further information, please call: (512) 463-3699
                                                                        legal authority.
                    ♦             ♦             ♦
                                                                        Filed with the Office of the Secretary of State on February 26,
PART 4. EMPLOYEES RETIREMENT                                            2002.
SYSTEM OF TEXAS                                                         TRD-200201175
                                                                        Sheila W. Beckett
CHAPTER 67. HEARINGS ON DISPUTED                                        Executive Director
CLAIMS                                                                  Employees Retirement System of Texas
                                                                        Effective date: March 18, 2002
34 TAC §67.57
                                                                        Proposal publication date: January 18, 2002
The Employees Retirement System of Texas (ERS) adopts                   For further information, please call: (512) 867-7282
amendments to 34 TAC §67.57, concerning reporters and
transcripts, without changes to the proposed text as published                               ♦             ♦             ♦
in the January 18, 2002, issue of the Texas Register (27 TexReg
460).                                                                   CHAPTER 75. HAZARDOUS PROFESSION
This section is amended to clarify the means by which the official      DEATH BENEFITS
record shall be made, and to provide that any motion that results       34 TAC §75.1
in additional costs associated with official reporting of the hearing
will be paid by the person or agency making the motion.                 The Employees Retirement System of Texas (ERS) adopts
                                                                        amendments to 34 TAC §75.1, concerning filing of claims, with
No comments were received concerning these amendments.                  changes to the proposed text as published in the January 18,
The amendments are adopted under Texas Government Code                  2002, issue of the Texas Register (27 TexReg 462). Section
Annotated §815.102, which provides that the Board of Trustees           75.1(c)(10)(G) was further amended in a non-substantive way to
may adopt rules for the transaction of any business of the Board.       clarify the certification that must be submitted in an application
No other statutes are affected by these adopted amendments.             for benefits under Texas Government Code, Chapter 615.
This agency hereby certifies that the adoption has been reviewed        This section is amended to reflect changes made pursuant to
by legal counsel and found to be a valid exercise of the agency’s       House Bill 877 and House Bill 2446, 77th Legislative Session,
legal authority.                                                        codified in Texas Government Code Annotated, Chapter 615.
                                                                        No comments were received concerning these amendments.
Filed with the Office of the Secretary of State on February 26,
                                                                        The amendments are adopted under Texas Government Code
2002.                                                                   §615.121, which provides that the Board of Trustees may adopt
TRD-200201174                                                           rules to administer this section of the Texas Government Code,
Sheila W. Beckett                                                       and under Texas Government Code Annotated §815.102, which
Executive Director                                                      provides that the Board of Trustees may adopt rules for the trans-
Employees Retirement System of Texas                                    action of any business of the Board. No other statutes are af-
Effective date: March 18, 2002                                          fected by these adopted amendments.
Proposal publication date: January 18, 2002                             §75.1.   Filing of Claims.
For further information, please call: (512) 867-7282                           (a) Claims for benefits under Texas Government Code, Chap-
                    ♦             ♦             ♦                       ter 615, may be initiated by the deceased employee’s department, any
                                                                        applicant for benefits, if an adult, or by the representative of any minor
CHAPTER 73. BENEFITS                                                    children for whom benefits are being claimed.
                                                                                (b) No claim for benefits on behalf of a child born after the
34 TAC §73.11
                                                                        death of the law enforcement officer or fire fighter will be paid, unless
The Employees Retirement System of Texas (ERS) adopts                   it is accompanied by a certificate of the attending physician that the
amendments to 34 TAC §73.11, concerning the supplemental                child was conceived during the decedent’s lifetime.



27 TexReg 2058 March 15, 2002 Texas Register
      (c) The following documents or copies of the documents shall                          (E) if the decedent was a paid parole officer, as defined
be submitted in an application for benefits under Texas Government            in Texas Government Code, §615.003(3), a certification from the ex-
Code, Chapter 615, unless the executive director waives their submis-         ecutive director of the Board of Pardons and Paroles that the decedent
sion:                                                                         was an officer of the division of parole supervision and had the quali-
                                                                              fications and duties set out in the Texas Code of Criminal Procedure,
            (1) a sworn statement from the person making the claim
                                                                              Article 42.12, §§26-29, 1965, as amended;
giving the date of death, the name and address of the surviving spouse,
if there is one, and the names, addresses, and birth dates of all surviving                 (F) if the applicant alleges that the decedent was within
children of the decedent. If the decedent left no surviving spouse or         the protected class defined as supervisory personnel in a county jail
children, the names and addresses of surviving parents of the decedent        in Texas Government Code, §615.003(7), a certification by the sheriff
shall be provided. The names and addresses of any persons caring for          that the decedent was appointed as jailer or guard of a county jail and
minors who may be eligible for benefits shall be given;                       performed a security, custody, or supervisory function over the admit-
                                                                              tance, confinement, or discharge of prisoners, and a certification from
            (2)    a certified copy of the death certificate;
                                                                              the Texas Commission on Law Enforcement Officer Standards and Ed-
            (3)    a certified copy of the autopsy report, if any;            ucation that the decedent was certified by that commission;
         (4) a copy of the marriage certificate showing marriage be-                       (G) if the applicant alleges that the decedent was
tween the surviving spouse and the deceased;                                  within the protected class defined as performing emergency medical
                                                                              services or operation of an ambulance in Texas Government Code,
           (5) a certified copy of the birth certificate of each surviving
                                                                              §615.003(13), a certification by the Texas Department of Health that
child of the deceased;
                                                                              the decedent was certified as at least an "emergency care attendant;"
            (6)    affidavits from any witnesses detailing the facts of the
                                                                                        (11)   a newspaper account, if any, of the fatality; and
fatality;
                                                                                        (12) a copy of the income tax return filed by the decedent
            (7)    certified copies of any investigative reports;
                                                                              in the year prior to death, if benefits are being claimed for surviving
          (8) a sworn statement from the employer or authorized rep-          children.
resentative of the department that, at the time of the fatal injury, the
                                                                                     (d) The executive director may require any additional informa-
deceased held a position covered by the terms of Texas Government
                                                                              tion or affidavits as are necessary to establish the validity of the claim.
Code, Chapter 615, and that the death was the result of risk or hazard
inherent to that position;                                                           (e) Payment on behalf of a minor child will be made only to a
                                                                              surviving natural parent with custody of the child, to a surviving adop-
          (9) a copy of the decedent’s birth certificate, if benefits are
                                                                              tive parent with custody of the child, or to a court-appointed guardian
being claimed for parents;
                                                                              of the child’s estate.
            (10)    a certification from the appropriate authority as fol-
                                                                              This agency hereby certifies that the adoption has been reviewed
lows:
                                                                              by legal counsel and found to be a valid exercise of the agency’s
               (A) if the decedent was a paid law enforcement offi-           legal authority.
cer, as defined in Texas Government Code, §615.003(1), a certification
from the Texas Commission on Law Enforcement Officer Standards                Filed with the Office of the Secretary of State on February 26,
and Education that the decedent was a commissioned peace officer cer-
                                                                              2002.
tified by that commission;
                                                                              TRD-200201176
               (B) if the decedent was a paid fireman, as defined in
                                                                              Sheila W. Beckett
Texas Government Code, §615.003(10) or §615.003(11), a certifica-
                                                                              Executive Director
tion from the Commission on Fire Protection Personnel Standards and
Education that the decedent was certified by that commission, or a cer-       Employees Retirement System of Texas
tification from the head of the state agency or political or legal subdivi-   Effective date: March 18, 2002
sion of the state for whom the decedent worked that aircraft crash and        Proposal publication date: January 18, 2002
rescue fire fighting were the decedent’s principal duties at the time of      For further information, please call: (512) 867-7282
his or her death;
                                                                                                   ♦              ♦             ♦
              (C) if the decedent was a member of an organized
volunteer fire department, as defined in Texas Government Code,               34 TAC §75.2
§615.003(12), a certification from the head of the organized volunteer        The Employees Retirement System of Texas (ERS) adopts
fire department that the organized volunteer fire department of which         amendments to 34 TAC §75.2, concerning additional benefit
the decedent was a member consists of not less than 20 active mem-            claims, without changes to the proposed text as published in the
bers; conducts a minimum of two drills each month, with each drill            January 18, 2002, issue of the Texas Register (27 TexReg 463).
being at least two hours long and attended by a majority of all active
members; and renders fire fighting services without remuneration;             This section is amended to reflect changes made pursuant to
                                                                              House Bill 877, 77th Legislative Session, codified in Texas Gov-
               (D) if the decedent was a paid probation officer, as de-       ernment Code Annotated, Chapter 615.
fined in Texas Government Code, §615.003(2), a certification from the
district judge or district judges who appointed the decedent or for whom      No comments were received concerning these amendments.
the decedent worked that the decedent had the qualifications and du-          The amendments are adopted under Texas Government Code
ties set out in the Texas Code of Criminal Procedure, Article 42.12,          §615.121, which provides that the Board of Trustees may adopt
§10, 1965, as amended;                                                        rules to administer this section of the Texas Government Code,
                                                                              and under Texas Government Code Annotated §815.102, which



                                                                       ADOPTED RULES March 15, 2002 27 TexReg 2059
provides that the Board of Trustees may adopt rules for the trans-   Morris E. Sandefer
action of any business of the Board. No other statutes are af-       Commissioner
fected by these adopted amendments.                                  Office of the Fire Fighters’ Pension Commissioner
This agency hereby certifies that the adoption has been reviewed     Effective date: March 24, 2002
by legal counsel and found to be a valid exercise of the agency’s    Proposal publication date: January 18, 2002
legal authority.                                                     For further information, please call: (512) 936-3372

Filed with the Office of the Secretary of State on February 26,                          ♦             ♦             ♦
2002.                                                                TITLE 40. SOCIAL SERVICES AND ASSIS-
TRD-200201177                                                        TANCE
Sheila W. Beckett
Executive Director
                                                                     PART 1. TEXAS DEPARTMENT OF
Employees Retirement System of Texas                                 HUMAN SERVICES
Effective date: March 18, 2002
Proposal publication date: January 18, 2002                          CHAPTER 3. TEXAS WORKS
For further information, please call: (512) 867-7282                 SUBCHAPTER L. WORK REGISTRATION
                    ♦             ♦             ♦                    40 TAC §3.1203
PART 11. OFFICE OF THE FIRE                                          The Texas Department of Human Services (DHS) adopts an
                                                                     amendment to §3.1203, concerning work requirement, without
FIGHTERS’ PENSION COMMISSIONER                                       changes to the proposed text published in the January 18, 2002,
                                                                     issue of the Texas Register (27 TexReg 474). The amendment
CHAPTER 301. RULES OF THE TEXAS                                      will not be republished.
STATEWIDE EMERGENCY SERVICES                                         Justification for the amendment is to comply with the require-
RETIREMENT FUND                                                      ments of the Food Stamp Employment and Training (FSE&T)
                                                                     program. The proposed rule change will ensure that Able Bod-
34 TAC §301.2                                                        ied Adults Without Dependents (ABAWDs) are exempt from the
                                                                     federal time limit if employment and training services are not of-
The State Board of Trustees for the Texas Statewide Emer-
                                                                     fered as required by the recently approved E&T state plan.
gency Services Personnel Retirement Fund (Fund), Office of
the Fire Fighters’ Pension Commissioner (FFPC), adopts the           The department received no comments regarding adoption of
amendment to §301.2, relating to scope, without changes to           the amendment.
the proposed text as published in the January 18, 2002 issue of
                                                                     The amendment is adopted under the Human Resources Code,
Texas Register (27 TexReg 464).
                                                                     Title 2, Chapters 22 and 33, which authorizes the department to
Rule 301.2 is amended in order to simplify, expedite, and clar-      administer public and nutritional assistance programs.
ify the process used by the local boards to verify each mem-
                                                                     The amendment implements the Human Resources Code,
ber’s service as required for merger into the TSESRA (Senate
                                                                     §§22.001-22.030 and §§33.001-33.027.
Bill 411) pension plan. Previously, verification of service had to
signed by the chief or head of the department as well as all of      This agency hereby certifies that the adoption has been reviewed
the local board members. Amending the rule to require signa-         by legal counsel and found to be a valid exercise of the agency’s
tures by only the chairman, the current chief or head of the de-     legal authority.
partment, and the secretary of the local board simplifies and ex-
pedites the process. In addition, the amendment outlines the         Filed with the Office of the Secretary of State on March 1, 2002.
process in greater detail, thereby making the process easier for     TRD-200201282
the local board to understand and follow.
                                                                     Paul Leche
There were no comments received regarding the proposed               General Counsel, Legal Services
amendment.                                                           Texas Department of Human Services
The amendment is adopted under Texas Revised Civil Statutes,         Effective date: March 21, 2002
Article 6243e.3, §21 that provides the Board of Trustees with the    Proposal publication date: January 18, 2002
authority to establish rules necessary for the administration of     For further information, please call: (512) 438-3734
the Fund.
                                                                                         ♦             ♦             ♦
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency’s    CHAPTER 19. NURSING FACILITY
legal authority.
                                                                     REQUIREMENTS FOR LICENSURE AND
Filed with the Office of the Secretary of State on March 4, 2002.    MEDICAID CERTIFICATION
TRD-200201309                                                        The Texas Department of Human Services (DHS) adopts
                                                                     amendments to §19.210 and §19.2308 in its Nursing Facility
                                                                     Requirements for Licensure and Medicaid Certification chapter.




27 TexReg 2060 March 15, 2002 Texas Register
The amendment to §19.210 is adopted without changes to the                 owner meets the final reporting requirements as specified in Title
proposed text published in the November 30, 2001, issue of the             1, Texas Administrative Code §355.306 (relating to Cost Finding
Texas Register (26 TexReg 9764), and will not be republished.              Methodology)?"
The amendment to §19.2308 is adopted with changes to the
                                                                           Response: DHS made the recommended technical change.
proposed text published in the November 30, 2001, issue of the
Texas Register (26 TexReg 9764).                                           SUBCHAPTER C. NURSING FACILITY
Justification for the amendments is to incorporate changes made            LICENSURE APPLICATION PROCESS
by the 77th Legislature that provide for a temporary change of
ownership license in Senate Bill 37, and an expedited change of            40 TAC §19.210
ownership license for nursing facilities in Senate Bill 772.               The amendment is adopted under the Health and Safety Code,
DHS received written comments from the Texas Health Care As-               Chapter 242, which authorizes the department to license and
sociation and the Texas Health and Human Services Commis-                  regulate nursing facilities.
sion (HHSC). All comments were given serious consideration.                The amendment implements the Health and Safety Code,
DHS made one change to correct a reference and one change                  §§242.001-242.268.
to correct grammar in the adopted rules. A summary of the com-
ments and DHS’s responses follow.                                          This agency hereby certifies that the adoption has been reviewed
                                                                           by legal counsel and found to be a valid exercise of the agency’s
Comment: The proposed rule (§19.210(a)) does not address                   legal authority.
how DHS intends to handle situations where an applicant that
has been approved for temporary licensure but fails to obtain              Filed with the Office of the Secretary of State on February 28,
approval for the permanent license where the applicant does not
pass on the §19.201 review or on inspection. Does the facility’s           2002.
license for the prior operator go back into effect? Or, does the           TRD-200201251
facility become an unlicensed facility and close? Guidance is              Paul Leche
needed for providers, their ownership, and residents about how             General Counsel, Legal Services
the department intends to handle such situations.                          Texas Department of Human Services
Response: A change will not be made to the rule language. If               Effective date: April 1, 2002
a facility fails to obtain a permanent license, the license for the        Proposal publication date: November 30, 2001
prior operator will not go back into effect. If a facility fails to pass   For further information, please call: (512) 438-3734
the required inspections and fails to obtain a permanent license,
the facility will no longer be licensed. The operator may apply                                 ♦              ♦             ♦
for an initial license. DHS will develop a provider letter to ad-
dress the procedures an applicant will follow when a permanent             SUBCHAPTER X. REQUIREMENTS FOR
license cannot be issued. The provider letter will outline addi-           MEDICAID-CERTIFIED FACILITIES
tional information for applicants, such as temporary license ex-
piration dates, scheduling of follow-up visits, and detailed proce-        40 TAC §19.2308
dures DHS will follow in processing temporary change of owner-             The amendment is adopted under the Human Resources Code,
ship licenses. These procedural aspects of the process will be             Title 2, Chapters 22 and 32, which authorizes the department to
addressed in a detailed provider letter.                                   administer public and medical assistance programs and under
Comment: The proposed rule (§19.210(b)) references the cri-                Texas Government Code §531.021, which provides the Health
teria for "excellent performing nursing facility license holder" as        and Human Services Commission with the authority to adminis-
§19.2322(d) relating to allocation, reallocation, and decertifica-         ter federal medical assistance funds.
tion requirements. The §19.2322(d) criteria will surely result in          The amendment implements the Human Resources Code,
a very small percentage of nursing facility operators who would            §§22.001-22.030 and §§32.001-32.042.
qualify in the state. The general point of the legislation was to di-
rect the department to identify a realistically qualified group who        §19.2308.    Change of Ownership.
would be able to take over homes in an expedited fashion. Be-              An ownership change is defined in §19.210(c) of this title (relating
cause of the nature of the 19.2322(d) criteria, multi-facility oper-       to Temporary Change of Ownership). For purposes of this section,
ators will have a difficult time satisfying the criteria. Finally, the     prior owner is defined as the legal entity licensed to operate the facility
exceptions to satisfying the criteria in §19.2322(d) do not work           before the change of ownership. The new owner is the legal entity
in the context of licensure, as opposed to application for certified       licensed to operate the facility after the change. The Texas Department
beds. Exceptions applicable to the licensure should be created.            of Human Services (DHS) will recognize the ownership change subject
Response: The criteria listed in §19.2322(d) were developed as             to the following conditions:
a quality screen by a work group of providers and DHS staff                           (1) DHS will recognize an ownership change effective as
when the current version of §19.2322 was developed. DHS feels              the date of transfer of ownership agreed to between the prior owner
the use of this criteria will allow the department to establish and        and the new owner (agreed change date) if DHS receives written notice
maintain a listing of excellent performing nursing facility license        of the change at least 30 days before the effective date of the tempo-
holders. A high standard must be used to distinguish a facility op-        rary change of ownership date. If written notice of the change is not
erator as an "excellent performing nursing facility license holder."       received 30 days before the agreed change date, DHS is not responsible
No changes will be made to the rule language.                              for payments made to the prior owner or new owner that do not reflect
Comment: In §19.2308(2)(C), instead of saying "the prior owner             the established change date. DHS will not make a duplicate payment.
meets DHS final reporting requirements," can you say "the prior



                                                                    ADOPTED RULES March 15, 2002 27 TexReg 2061
It is the responsibility of the prior and new owner to make arrangements                    (F) any sanctions as specified in this chapter relating to
between themselves for such contingencies.                                    remedies for violations of Title XIX nursing facility provider agree-
                                                                              ments, including deficiencies, vendor holds, compliance periods, ac-
          (2) When DHS receives information about a proposed or
                                                                              countability periods, monetary penalties, notification for correction of
actual change of ownership, DHS may place vendor payments to the
                                                                              contract violations, probationary contracts, and history of deficiencies.
prior owner on hold until all of the following conditions are met:
                                                                                        (6) Neither medical assistance nor amounts payable to ven-
             (A) completion of a billing and claims reconciliation,
                                                                              dors out of public assistance funds are transferable or assignable at law
or up to 12 months after submittal of the final bill, whichever is sooner.
                                                                              or in equity. DHS will not allow non-split agreements in the case of
Money owed to DHS will be recouped from the funds placed on hold;
                                                                              ownership changes. Non-split arrangements are arrangements where
            (B) DHS receives information sufficient to verify the             DHS does not interrupt payments to old and new owners but continues
ownership change, if DHS requests such information;                           reimbursements as though no ownership change has occurred. A split
                                                                              in pay agreement ensures that payments to the prior owner stop on a
             (C) the prior owner meets the final reporting require-
                                                                              certain date and payments for services thereafter go to the new owner.
ments as specified in Title 1, Texas Administrative Code (TAC),
§355.306 (relating to Cost Finding Methodology); and                                    (7) The new owner and the prior owner of a nursing facility
                                                                              may reach any agreement they wish, but DHS will not participate in a
                (D) the prior owner provides, at DHS’s option, one of
                                                                              non-split procedure which would allow the new owner to receive the
the following documents in a format acceptable to DHS to cover pos-
                                                                              prior owner’s accrued vendor payments.
sible liabilities of the prior owner:
                                                                                        (8) The prior owner of the facility may remove the financial
                (i) a surety bond or an irrevocable letter of credit as
                                                                              records pertaining to his period of ownership from the facility, but must
described in §19.2312 of this title (relating to Surety Bonds or Letters
                                                                              maintain them for the time period prescribed by law or until such time
of Credit);
                                                                              as all audit exceptions are reconciled, whichever period is the longer.
                (ii) the new owner’s nontransferable written agree-           The original copies of the trust fund records, including ledger cards,
ment that the new owner has agreed to pay DHS for any liabilities that        may be removed by the prior owner if an exact duplicate of the trust
exist or may be found to exist during the period of the prior owner’s         fund records, including ledger cards, remains with the new owner.
contract with DHS; or
                                                                              This agency hereby certifies that the adoption has been reviewed
                 (iii) written authority by the prior owner to withhold       by legal counsel and found to be a valid exercise of the agency’s
and retain funds normally due the prior owner from other Medicaid             legal authority.
contracts the prior owner may have with DHS.
                                                                              Filed with the Office of the Secretary of State on February 28,
          (3) During the period between the issuance of the tempo-
rary change of ownership license and the inspection or survey of the          2002.
nursing facility, DHS may not place a hold on vendor payments to the          TRD-200201252
temporary license holder.
                                                                              Paul Leche
           (4) If the nursing facility fails to pass the inspection or sur-   General Counsel, Legal Services
vey or fails to meet the requirements in §19.201 of this title (relating to   Texas Department of Human Services
Criteria for Licensing), DHS may place a hold on vendor payments to           Effective date: April 1, 2002
the temporary license holder.                                                 Proposal publication date: November 30, 2001
           (5) When a change in ownership occurs, DHS assigns the             For further information, please call: (512) 438-3734
agreement to the new owner by issuing a new contract to the new owner
effective on the later of: the agreed change date; the date DHS received                          ♦              ♦             ♦
written notice of the change; or the date necessary to avoid double           TITLE 43. TRANSPORTATION
payments. By signing the contract, the new owner is representing to
DHS that the new owner meets the requirements of the contract and
the requirements for participation in the Medicaid program. The new
                                                                              PART 1. TEXAS DEPARTMENT OF
owner’s contract is subject to the prior owner’s contract terms and con-      TRANSPORTATION
ditions that were in effect at the time of transfer of ownership, includ-
ing, but not limited to, the following:                                       CHAPTER 2. ENVIRONMENTAL POLICY
              (A) any plan of correction;                                     SUBCHAPTER B. MEMORANDA OF
              (B) compliance with health and safety standards;                UNDERSTANDING WITH NATURAL
              (C) compliance with the ownership and financial                 RESOURCE AGENCIES
interest disclosure requirements of 42 Code of Federal Regulations,           The Texas Department of Transportation adopts the repeal of
§§455.104, 455.105, and 1002.3;                                               §2.23, Memorandum of Understanding with the Texas Water
            (D) compliance with civil rights requirements in 45               Commission, the repeal of §2.25, Memorandum of Understand-
Code of Federal Regulations, Parts 80, 84, and 90;                            ing with the Texas Natural Resource Conservation Commission,
                                                                              and simultaneously adopts new §2.23, Memorandum of Un-
              (E) compliance with additional requirements imposed             derstanding with the Texas Natural Resource Conservation
by DHS; and                                                                   Commission. The repeals and new sections are adopted without
                                                                              changes to the proposed text as published in the November 9,
                                                                              2001, issue of the Texas Register (26 TexReg 9065), and will
                                                                              not be republished.



27 TexReg 2062 March 15, 2002 Texas Register
EXPLANATION OF ADOPTED REPEALS AND NEW SECTION                       The subsection also provides TxDOT with the authority to deter-
                                                                     mine final disposition of transportation projects; provides for con-
Transportation Code §201.607, requires the Texas Department
                                                                     tinuing coordination between TxDOT and TNRCC through the
of Transportation (TxDOT) to adopt a Memorandum of Under-
                                                                     construction period of a transportation project if needed; and pro-
standing (MOU) with each state agency that has responsibilities
                                                                     vides recommendations for the protection of natural resources
for the protection of the natural environment, the preservation
                                                                     under the jurisdiction of TNRCC.
of the natural environment, or for the preservation of historic or
archeological resources. Section 201.607 also requires TxDOT         Subsection (f) contains provisions concerning additional provi-
to adopt the memoranda and all revisions by rule and to peri-        sions regarding the exchange of information on air quality be-
odically evaluate and revise the memoranda. In order to meet         tween TxDOT and TNRCC.
the legislative intent and to ensure that natural environmental
                                                                     Subsection (g) contains provisions concerning additional provi-
resources are given full consideration in accomplishing TxDOT’s
                                                                     sions regarding the exchange of information on water quality be-
activities, TxDOT has evaluated the memoranda of understand-
                                                                     tween TxDOT and TNRCC.
ing adopted in 1992 and 1994. After this evaluation, TxDOT finds
it necessary to repeal §2.23 (MOU with the Texas Water Com-          Subsection (h) includes a mechanism for the resolution of dis-
mission) and §2.25 (MOU with the Texas Natural Resource Con-         putes between TxDOT and TNRCC.
servation Commission), and to simultaneously adopt new §2.23
                                                                     Subsection (i) provides for the review and revision of the MOU,
in a revised form. New §2.23 describes procedures providing for
                                                                     no later than January 1, 2007, and provides that TxDOT and
Texas Natural Resource Conservation Commission (TNRCC) re-
                                                                     TNRCC by rule will adopt the MOU and all revisions to the MOU.
view of TxDOT projects that have the potential to affect natural
resources within the jurisdiction of TNRCC.                          COMMENTS
New §2.23 describes the purpose of the section, including im-        No comments were received on the proposed repeals and new
plementing provisions of Texas Transportation Code, §201.607,        section.
and the rules for coordination of state-assisted transporta-
                                                                     COASTAL MANAGEMENT PROGRAM CONSISTENCY RE-
tion projects, codified under Title 43, Texas Administrative
                                                                     VIEW
Code, §§2.40-2.51 (and any subsequent amendments), which
underline the need for and importance of comprehensive envi-         This rulemaking action has been determined to be subject to
ronmental coordination for all transportation projects. Section      the Coastal Management Program (CMP) in accordance with the
2.23 also provides definitions for words and terms used in the       Coastal Coordination Act of 1991, as amended (Texas Natural
MOU.                                                                 Resources Code, §§33.201 et. seq.) and the rules of the Coastal
                                                                     Coordination Council (31 TAC Chapters 501-506). As required
Subsection (a) explains the purpose of