Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part IV. Office of the Secretary of State Chapter 78. Athlete Agents Contracts 1 TAC sec.78.51 The Office of the Secretary of State adopts new sec.78.51, concerning athlete agent contracts, without changes to the proposed text as published in the October 20, 1992, issue of the Texas Register (17 TexReg 7303). Adoption of the new rule will provide individuals and companies with a clarification of the minimum amount of information that an athlete agent contract or financial services contract must contain. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6252-13a, sec.4(a)(1) and the Athletic Agents Act, Texas Civil Statutes, Article 8871, which provide the secretary of state with the authority to prescribe and adopt rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 25, 1992. TRD-9216141 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: December 24, 1992 Proposal publication date: October 20, 1992 For further information, please call: (512) 463-5558 Chapter 81. Elections Voter Registration 1 TAC sec.81.11 The Office of the Secretary of State adopts an amendment to sec.81.11, concerning disbursement of funds under the Texas Election Code, Chapter 19, without changes to the proposed text as published in the November 3, 1992, issue of the Texas Register (17 TexReg 7732). The amendment will allow Chapter 19 purchasing guidelines to better reflect county purchasing guidelines. The amendment also disallows the use of a voter registrar's name in Chapter 19 funded materials. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Election Code, sec.31.003 and sec.19. 002(b), which provides the Office of the Secretary of State with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws, and in performing such duties, to prepare detailed and comprehensive written directives and instructions based on such laws, and to adopt rules consistent with the Election Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 7, 1992. TRD-9216278 Audrey Selden Assistant Secretary of State Office of the Secretary of State Effective date: December 28, 1992 Proposal publication date: November 3, 1992 For further information, please call: (512) 463-5650 TITLE 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 7. Local Records Microfilming Standards for Local Governments 13 TAC sec.sec.7.21. 7.22, 7.23, 7.24, 7.26, 7.28, 7.30, 7.31, 7.34, 7.35 The Texas State Library and Archives Commission adopts amendments to sec.sec.7.21, 7.22, 7.23, 7.24, 7.26, 7.28, 7.30, 7.31, 7.34, and 7.35, concerning rules for the microfilming of local government records, without changes to the proposed text as published in the October 2, 1992, issue of the Texas Register (17 TexReg 6731). The amendments are adopted in order to provide local governments with a consistent foundation upon which to base microfilming programs that ensure the physical protection and informational integrity of public records and to enable local governments to comply with statutes regarding retention and microfilming of local government records. The amendments modify certain standards and procedures concerning the production, processing, testing, certification, and storage of microfilmed local government records for local government offices and records custodians to follow if they microfilm public records. No comments were received regarding adoption of the amendments. The amendments are adopted under the Local Government Code, sec.204.004, which requires the Texas State Library and Archives Commission to adopt rules establishing standards and procedures for the microfilming of local government records. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216076 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: December 23, 1992 Proposal publication date: October 2, 1992 For further information, please call: (512) 463-5440 TITLE 22. EXAMINING BOARDS Part V. Texas State Board of Dental Examiners Chapter 101. Dental Licensure General Qualifications 22 TAC sec.101.1 The Texas State Board of Dental Examiners adopts an amendment to sec.101.1, concerning general qualifications, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 6994). The Board adopts the amendment to this sec.101.1 to ensure that applicants for dental licensure receive the highest standards and to assure that the people of the State of Texas receive the highest quality of dental care. The section states the general qualifications for any person desiring to practice dentistry in the State of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4545, which provide the Texas State Board of Dental Examiners with the authority to adopt and enforce such rules and regulations not inconsistent with the laws of the state as may be necessary for the performance of its duties and/or to ensure compliance with the state laws relating to the practice of dentistry to protect the public health and safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 30, 1992. TRD-9216107 C. Thomas Camp Executive Director Texas State Board of Dental Examiners Effective date: December 24, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-6400 22 TAC sec.101.5 The Texas State Board of Dental Examiners adopts an amendment to sec.101.5, concerning examinations, with changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 6995). Paragraph (3)(G) was changed to correct the word Prosthetics to "Prosthodontics." The Board adopts the amendment to ensure that applicants for dental licensure receive the highest standards and to assure that the people of the State of Texas receive the highest quality of dental care. This section states that examinations shall be administered annually by the Texas State Board of Dental Examiners. They will include written examination, dental clinical examination, and specialty examination. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4544, Article 4547a, which provide the Texas State Board of Dental Examiners with the authority to adopt and enforce such rules and regulations not inconsistent with the laws of the state as may be necessary for the performance of its duties and/or to ensure compliance with the state laws relating to the practice of dentistry to protect the public health and safety. sec.101.5. Examinations. The following examinations shall be administered annually by the Texas State Board of Dental Examiners: (1)-(2) (No change.) (3) specialty examination: (A) endodontics; (B) oral pathology; (C) oral and maxillofacial surgery; (D) orthodontics; (E) pediatric dentistry; (F) periodontics; (G) prosthodontics; (H) public health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 30, 1992. TRD-9216114 C. Thomas Camp Executive Director Texas State Board of Dental Examiners Effective date: December 24, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-6400 Chapter 103. Dental Hygiene Licensure 22 TAC sec.103.1 The Texas State Board of Dental Examiners adopts an amendment to sec.103.1, concerning general qualifications, without changes to the proposed text as published in the October 9, 1992, issue of the Texas Register (17 TexReg 6995). The Board adopts the amendment to ensure that applicants for dental hygiene licensure receive the highest standards and to assure that the people of the State of Texas receive the highest quality of dental care. This section outlines the qualifications for any person desiring to practice dental hygiene in the State of Texas. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4545, which provides the Texas State Board of Dental Examiners with the authority to adopt and enforce such rules and regulations not inconsistent with the laws of the state as may be necessary for the performance of its duties and/or to ensure compliance with the state laws relating to the practice of dentistry to protect the public health and safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 30, 1992. TRD-9216115 C. Thomas Camp Executive Director Texas State Board of Dental Examiners Effective date: December 24, 1992 Proposal publication date: October 9, 1992 For further information, please call: (512) 463-6400 Part XXI. Texas State Board of Examiners of Psychologists Chapter 461. General Rulings 22 TAC sec.461.2 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.461.2, concerning unofficial statements, with changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7571). The Board determined that clarification was needed concerning the types of issues which must be decided by the Board, en banc, rather than by individual Board members or persons employed by the Board. Decisions must be made by the Board in public meetings. Individuals cannot act alone or make a decision inconsistent with board rulings. The public is assured that the Board collectively has decided on a matter. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.461.2. Unofficial Statements and/or Decisions. Unofficial statements made by a Board member or staff are not binding on the Board. No member of the Board, or representative of the Board, may make statements or decisions which are binding upon the Board in its deliberations upon ultimate issues presented for Board decision. Among those issues which ordinarily require Board decision are settlements of contested matters regarding applications, applicant qualifications, certificating and/or licensing of applicants, complaint resolution and/or legal matters involving modification, or Board rehearing of any prior decision rendered by the Board in performance of those statutory duties imposed by the provisions of the Psychologists' Certification and Licensing Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216119 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.461.12 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.461.12, concerning approval of institutions of higher education, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7571). The Board determined that the rule is unnecessary as the Psychologists' Certification and Licensing Act specifically exempts regionally accredited institutions of higher education from the requirements of the Act. The repeal reduces a duplication of material to read. The requirement is already in the law and not needed in Board rules. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216120 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 Chapter 463. Applications 22 TAC sec.463.1 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.1, concerning qualifications of subdoctoral candidates, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7572). The Board determined that the rule needed to be updated to reflect current statutory and Board requirements for subdoctoral applicants. The amendment will notify persons of the specific sections of the Psychologists' Certification and Licensing Act that must be satisfied to meet the subdoctoral requirements. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216121 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.463.4 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.463.4, concerning applicant interviews, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7572). The Board determined that the rule is unnecessary in that the requirements for applicants by reciprocity are found in the Psychologists' Certification and Licensing Act and other Board rules. The information distributed by the Board will more accurately reflect current requirements. All applicants will be treated the same, i.e., none must come to the Board's office for interviews. The Board has not enforced this rule for many years. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216122 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.463.10 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.10, concerning written examinations required, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7573). The Board determined that there was a need to specify the examinations required of doctoral and subdoctoral applicants for certification before the Board and to specify that said examinations must be taken prior to the granting of a certificate. The amendment provides information about the requirement of the Board for applicants to sit for the Examination for the Professional Practice of Psychology and the Board's Jurisprudence Examination prior to being certified. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216123 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 Chapter 465. Rules of Practice 22 TAC sec.465.1 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.465.1, concerning consultants, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7574). The Board determined there was a need to replace its rule concerning consultants with a rule that reflects the current requirements of the Board regarding how non-licensed personnel may be listed. Psychologists will no longer have to adhere to this rule. The requirements of this rule have been combined into another Board rule concerning advertisements and listings. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216124 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 The Texas State Board of Examiners of Psychologists adopts new sec.465.1, concerning listings, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7574). The Board determined there was a need for clarification concerning how non- licensed personnel may be listed on professional publications/advertisements. Psychologists will be required to adhere to specific guidelines concerning how non-licensed personnel may be listed, so that the consuming public is informed of the professional and/or supervised status of the person providing psychological services. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216125 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.465.2 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.465.2, concerning release of patient or client information, with changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7574). The Board determined that clarification was needed concerning the release of patient or client information. Raw data and protocols belong to the psychologist, not the patient. Amendment clarifies that raw data and protocols belong to the psychologists, not the patient. Also, helps to protect the patient from possible misuse of raw data and protocols by untrained persons. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. sec.465.2. Release of Patient or Client Information. A psychologist may not intentionally reveal information about a patient or client without written authorization by the patient, client, or guardian, or without a proper court order, or unless a state or federal statute requires it. A psychologist is bound by the provisions of all state and federal laws which require the psychologist to reveal information. Raw data and protocols belong to the psychologist and are not a matter of public record. Raw data and protocols may be made available only to another qualified and licensed psychologist as long as proper authorization is received from the patient/client. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216126 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.465.3 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.465.3, concerning psychological associates listings and reports, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7575). The board determined that this rule was unnecessary as Board requirements concerning this matter are found in another Board rule. Psychologists and psychological associates will no longer have to adhere to this rule. The Board's requirements concerning this matter are more clearly identified in another Board rule. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216127 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.465.12 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.465.12, concerning accountability of licensee for services, without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7641). The Board is replacing its rule concerning the qualifications of a supervisor with a rule that addresses the accountability of the licensee for services rendered under his/her supervision. Psychologists will no longer have to adhere to this rule. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216128 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 30, 1992 For further information, please call: (512) 835-2036 22 TAC sec.465.32 The Texas State Board of Examiners of Psychologists adopts new sec.465.32, concerning rules of practice, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7575). The Board determined there was a need to clarify the procedures concerning rules of evidence in contested cases. The new rule describes the process the Board uses to gather information in the investigation of complaints. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216129 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.465.34 The Texas State Board of Examiners of Psychologists adopts new sec.465.34, concerning rules of practice, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7575). The Board determined that it is in the public's interest to require licensees/certificants of the Board to report legal actions regarding their practice of psychology to the Board. The new rule will help assure the ethical and legal practice of psychology by requiring licensees/certificands to report any legal actions involving the practice of psychology to the Board. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216130 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 Chapter 471. Renewals 22 TAC sec.471.1 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.471.1, concerning renewals, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7576). The Board is combining two rules so that information concerning renewal due dates and notification of renewal is found in one place. Two rules concerning renewal due dates and the notification of renewal are being combined so that the information is found in one place and is therefore easier to find and understand. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216134 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 22 TAC sec.471.6 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.471.6, concerning renewals, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7576). The Board determined to incorporate the relevant portion of this rule into another rule. By repealing outdated information and incorporating the information concerning due dates for renewals into another Board Rule, renewal information will be found in one place and be easier to find and understand. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules not inconsistent with the Constitution and laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 1, 1992. TRD-9216135 Patricia S. Tweedy Executive Director Texas State Board of Examiners of Psychologists Effective date: December 24, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 835-2036 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 164. Extra-Hazardous Employer Program 28 TAC sec.164.14 The Texas Workers' Compensation Commission adopts new sec.164.14, concerning the extra-hazardous employer program, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7577). This section assigns values to variables used in the calculation of Extra- Hazardous employer status and allows employers to calculate the likelihood of being identified. This section is the final step necessary to implement the Extra-Hazardous employer program. Comments on the proposal were received from: Jones Brothers Dirt and Paving Contractors, Inc.; AGC of Texas, Highway, Heavy, Utilities and Industrial Branch; Cox Paving Company; Jeanneret and Associates, Inc.; Manpower Temporary Services; Granite Construction Company; Texas Building Branch-AGC; Texas Association of Business; Business Insurance Consumers Association of Texas; and Delta Air Lines, Inc., who all opposed the rule as drafted. Proposed values of "Y" will result in employers being identified as Extra- Hazardous with one fatality even if their rate of injuries is below expected. This should be changed. The commission disagrees. The proposed values of "Y" were selected by the Commissioners to recognize the serious consequences of a fatal workplace injury. This is consistent with the Federal Occupational Safety and Health Administration requirement that an investigation by Federal employees be done for every work-related fatality. While using those values in the identification process can result in identification of an employer that appears to have a workers' compensation injury rate at or below the expected BLS or NSC rate for that industry, it should be noted that the BLS or NSC rate includes all lost time injuries and injuries with days of restricted work activities. The workers' compensation commission injury rate, as used at this time, includes only occupational diseases and lost time injuries of eight or more days. Thus, the employer is given a break in this formula and appears to have a rate lower than the BLS or NSC rate even though they might not if all comparable injuries were included in the workers' compensation rate. It is a commonly accepted insurance premise that the more frequently minor injuries occur, the more likely it is that a severe injury will occur, with fatalities being the most severe. Based on the limitations on reporting less severe injuries, the occurrence of more serious injuries are indicators of injury potential in that workplace, with fatalities being the most serious and thus the best indicators. Other comments addressed concerns with other aspects of the program, specifically sec.164.1, which was adopted and filed with the Texas Register on October 22, 1992. If implementation of this Extra-Hazardous employer program does not resolve those concerns, the commentators may consider petitioning the commission, as described in sec.104.1 (relating to Contents of Rule-Making Petitions). The new section is adopted under Texas Civil Statutes, Article 8308-2.09(a) which authorizes the commission to adopt rules necessary to administer the Act and Article 8308-7.04 which requires the commission to develop an extra- hazardous employer program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1992. TRD-9216177 Susan Cory General Counsel Workers'Compensation Commission Effective date: December 25, 1992 Proposal publication date: October 27, 1992 For further information, please call: (512) 440-3592 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 290. Water Hygiene Rules and Regulations for Public Water Systems 31 TAC sec.290.51 The Texas Water Commission (TWC) adopts new sec.290.51, concerning fees for services to drinking water systems, without changes to the proposed text as published in the October 30, 1992, issue of the Texas Register (17 TexReg 7650). New sec.290.51 is adopted as a result of Senate Bill 2, First Called Session, 72nd Legislature, which transferred all the powers, duties, rights and obligations of the Texas Department of Health (TDH) pertaining to the setting of sanitary standards for drinking water and the protection of public water supplies to the TWC effective March 1, 1992, and in response to new federal regulations under the Safe Drinking Water Act that require a significant increase in regulatory involvement with public drinking water supplies. The new section establishes fees to be charged by the TWC for services to drinking water systems similar to those fees previously charged by the TDH under 25 TAC sec.337.18, now repealed. However, due to the increased regulatory involvement mandated by the Safe Drinking Water Act, including the additional inspection and testing of public water supplies, the fee structure that existed under former sec.337.18 was insufficient to meet the needs of the program. As a result, the fee structure in new sec.290.51 is designed to provide the TWC with the necessary additional revenue by shifting the cost of chemical analyses from the TWC to the public water supplier and by establishing a formula for determining fees that will more accurately reflect agency resource demands based on the size and type of facility. Comments on proposed sec.290.51 were submitted by a variety of individuals, associations and governmental subdivisions. In addition, the TWC on its own motion held a public hearing on November 20, 1992, in order to accept both oral and written input from the public concerning the rule. All of the comments received and the TWC's responses to them are summarized below. A good many of the comments received urged the commission to adopt an amendment to sec.291.21(i) that would allow the utilities to pass through the proposed fees to the ratepayers. An amendment to Chapter 291 of the commission's rules is outside the scope of this proposed rulemaking. However, commission staff has been instructed to look into the possibility of pass-through provisions for the 1994 fees. Several commenters were strongly opposed to any changes or increases in fees. Many others noted that additional regulatory costs pose a financial hardship and are a serious threat to the continued viability of many water purveyors. The commission is sympathetic to the added cost, but feels that the fee schedule as proposed provides a more equitable means of generating the necessary revenue to fund the additional federal mandates than did the previous TDH fee schedule. Among the commenters were the City of Port Lavaca, the City of Gavado, the City of Megargel, the City of Glen Rose, the City of Kirby, Dallas County WCID, the City of Jacksonville, the City of Early, San Elizario Grant MUD, the City of Ropesville, Bexar County WCID Number 10, Lakeshore Sites, the City of Lubbock, Benbrook Water and Sewer Authority, the Texas Water Utilities Association, Community Resource Group, Inc. and the Independent Water and Sewer Companies of Texas, Inc. Several commenters suggested that since the fee revision is primarily the result of new federal regulations, the federal government should fund the increased tasks. Another felt that the State Legislature should provide funding and not force reliance on "hidden taxes" to fund State programs. While these are valid arguments, today's political climate at both the state and the federal level dictates that programs place increased reliance upon fees at the service provider level. Another commenter suggested that the proposed fee be combined with the current Regulatory Assessment Fee. The commenter suggested that it would be more reasonable to increase this fee and keep both fees under the same name, paperwork and staff. This would also allow pass-through of the fee as previously discussed. Although it may be possible to in some way combine these two fees in the future, the commission believes that such a combination is not appropriate at this time because the Regulatory Assessment Fee currently applies only to a portion of the public water supplies in this State. One commenter complained of a perceived inequity in the fee schedule in that districts, water supply corporations, and investor owned utilities are paying two fees and municipalities are not required to do the same. Although this comment concerns the commission, it applies primarily to a fee program funding services not currently being considered for revision. Two commenters expressed disappointment over the fact that the consolidation of the TDH's jurisdiction over water matters with the TWC has not resulted in cost savings as they had been led to believe, but has instead resulted in increased costs to utilities and ultimately to the taxpayers. The commission is of the opinion that a fee increase would have been necessary to implement federal mandates regardless of the agency affiliation of the Public Water System Supervisory Program. Another commenter asked that consideration be given to reducing the cost of the surface plant portion of the equation for "small systems." The commission feels that $300 is an equitable and representative fee per surface water treatment plant. One commenter felt that no fee increase should be adopted without its council review. This commenter also requested a postponement of adoption of this fee increase until it has had time to understand and review the "complete package". The commission must emphasize that this is not a proposed city ordinance open to local option. It is a statewide fee that will be applied to all public water systems in the State of Texas. It was also suggested that a single chemical analyses from the same water source, the Edward's Aquifer as an example, should serve for all systems taking water from that source. This would provide significant savings, which could presumably reduce the fee increase as proposed. It can be readily shown that water quality varies greatly within an underground aquifer. Federal, and consequently, state monitoring requirements specify increased, more intensive monitoring of all individual water supply sources. The general public expects accurate and up-to-date information on the water they are provided, and timely notification of any detrimental constituents in their water. Therefore, it is imperative that each source be monitored at a sufficient frequency to detect localized contamination. One commenter requested a payment plan. Another stated that an increase is not currently budgeted for the present fiscal year (January 1 through September 30). Although the commission is sympathetic to the fact that some systems may experience a hardship, the fee proposed is a revision of an existing fee that has been in effect since 1986, and commission staff has been actively preparing the regulated community for an eventual fee increase for over a year. Therefore, no deferred or incremental payment plan is contemplated. Another commenter suggested that it should have the ability to perform chemical analyses in its city laboratory or have access to a commercial laboratory that can perform the analysis. At this time, the TDH Bureau of Laboratories in Austin has the only laboratory in the State of Texas that is certified by the United States Environmental Protection Agency for chemical analyses of public drinking water. Currently there is no state certification program for other laboratories to do this type of analyses. Should the TDH Bureau of Laboratories set up such a certification program and subsequently certify additional laboratories in the State of Texas, the commission will also recognize them. One industrial commenter felt that it should pay only 7.0% of its calculated fee because only 7.0% of its water is used for drinking water purposes, with the remainder being used for processed water. The commission disagrees with this suggestion. This industrial commenter operates multiple interconnected wells at its facility. The commission feels that because each well must be inspected and monitored no reduction in the fee is appropriate. The new section is adopted under Senate Bill 2, First Called Session, 72nd Legislature, which transferred all the powers, duties, rights and obligations of the TDH pertaining to the setting of sanitary standards for drinking water and the protection of public water supplies to the TWC, and under the Texas Water Code, sec.5.103, which authorizes the TWC to adopt any rules necessary to carry out is powers, duties and policies. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1992. TRD-9216171 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: December 24, 1992 Proposal publication date: October 30, 1992 For further information, please call: (512) 463-8069 Chapter 305. Consolidated Permits Subchapter N. Memorandum of Understanding 31 TAC sec.305.521 The Texas Water Commission (TWC) adopts an amendment to sec.305.521 to incorporate the amended Memorandum of Understanding (MOU) between the TWC and the Texas Department of Transportation (TxDOT), is adopted without changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 4734). On August 21, 1992, at 9 a.m., the Texas Department of Transportation (the department) and the Texas Water Commission (TWC) conducted a joint public hearing to seek comments concerning the proposed adoption of a rule concerning a memorandum of understanding (MOU) between the department and the TWC. One commentor requested that his organization be represented on the interagency committee to be established in accordance with Section IV.I. Another commentor suggested that the Texas Parks and Wildlife Department and the United States Fish and Wildlife Service be represented on the interagency committee. Upon final adoption of the MOU, the department and TWC will form the interagency committee and will jointly determine appropriate membership. The request and suggestions will be considered at that time. One commentor objected to the wording of Section IV.B. which states that the "level of documentation prepared and provided to TWC will be in compliance with NEPA, TxDOT environmental rules, and other state laws, rules, and regulations." The commentor stated "that given the fact that there's a new urgency in protecting the Edwards Aquifer we ought to go beyond just what the laws that exist now are. I think that we need to get tougher laws that are consistent with protecting the quality of water in the aquifer . . ." Texas Civil Statutes, Article 6673g, requires the department to adopt an MOU with each state agency that has responsibilities for the protection of the natural environment. TWC is such an agency. The purpose of the MOUs is to provide a mechanism for or formalize coordination between the department and the resources agencies with regards to department highway construction projects. Establishing or proposing new legislation, as suggested by the commentor, is beyond the scope of the MOU and legislative intent. However, it is the policy of the department to preserve and, where practicable, to enhance the environment and the department intends to administer this policy pro-actively. Further, the department recognizes the sensitivity of the Edwards Aquifer and is striving to fulfill the mission of the agency is a manner consistent with promotion of water quality. One commentor stated that the MOU "should be not only a legally-based document but a scientifically-based document." He stated that the MOU should include "some indication of the scientific methodology as a basis for this agreement." Article 6673g provides that the MOU must describe agency responsibilities regarding review of highway projects, specify the types of information the department will provide to the reviewing agency, and specify the length of time in which the reviewing agency must review the project. The MOU, therefore, is a policy-setting document which provides for TWC review of highway projects. Under the provisions of the MOU, TWC staff will review environmental documentation prepared by TxDOT and will provide comments to TxDOT regarding water quality impacts. All comments received from TWC will be considered fully by the department. Specific scientific methodology to be used in reviewing projects is beyond the scope of the MOU. One commentor questioned a recent action by the Austin Transportation Study Policy Advisory Committee, the metropolitan planning organization for the Austin area, concerning the approval of water quality mitigation devices for a highway in southwest Travis County. The commentor also expressed concern about the department's maintenance practices for existing water quality mitigation devices. Neither of the comments pertain to the content of the MOU. Questions concerning actions of the Austin Transportation Study Policy Advisory Committee should be addressed to the committee members. Concerns about maintenance of existing water quality mitigation devices should be expressed to the responsible department district office. One commentor indicated that "as far as practicable" should be deleted from Section III.A.1.a. The TWC concurs with the comment and the document has been revised accordingly. Two commentors suggested that the phrase "to the extent practicable" should be deleted form Section IV.D.1. One of the commentors indicated that deleting the phrase would strengthen the document and emphasize the importance of minimizing environmental impacts. The TWC agrees with the comment and has deleted the phrase from the section. One commentor objected to "the cost of mitigation" being listed as a factor to be considered by TWC when establishing conditions of approval for projects over the Edwards Aquifer recharge zone. "The cost of mitigation" has been deleted from Section IV.D.2. of the document. The first sentence of Section IV. D.2. now reads, "The TWC shall weigh all factors in the review process including the significance of the impact to water quality and public interest. " One commentor expressed objection to the use of the term "human environment. " He indicated that the definition of environment should be broader. The department interprets "human environment" comprehensively to include the natural and physical environment and the relationship of people with that environment. This definition is consistent with regulations adopted by the Council on Environmental Quality (40 Code of Federal Regulations sec.1508.14). One commentor expressed concern about the sequencing of some construction projects. He specifically cited an example where the permanent water quality controls were to be built after completion of the actual roadway. He stated that if the permanent controls were constructed prior to roadway construction the benefits of the controls would be realized during the construction phase. The TWC shares the commentors concerns and is striving to plan, construct, and maintain the state highway system in a manner consistent with the promotion of water quality. However, it should be noted that it is not generally feasible to construct the permanent controls prior to the commencement of actual roadway construction; therefore, temporary erosion controls are used to minimize the amount of sediment escaping from the project site. It should also be noted that the concern is beyond the scope of the MOU. Two commentors expressed concern that Section IV.D. of the MOU either conflicts with or weakens the Edwards Aquifer rules (31 TAC Chapter 313) adopted by the TWC in March of 1990. In response to these concerns several changes have been made to Section IV.D. Specifically, as previously stated, "to the extent practicable" has been deleted from Item 1 and "the cost of mitigation" has been deleted from Item 2. In addition, Item 3 has been deleted entirely and Item 4 has been moved to a more appropriate section of the MOU. The TWC recognizes the sensitivity of the Edwards Aquifer and will continue to fully comply with 31 TAC Chapter 313. It should be noted that as state agencies, both the department and TWC have a responsibility to consider public interest when making decisions concerning activities under their jurisdiction. The amendment is adopted under the Texas Water Code, sec.5.102 and sec.5.105, which provide the Texas Water Commission with the authority to adopt any rules necessary to carry out its powers and duties under the Code and other laws of the State of Texas, to establish and approve all general policy of the commission, and to protect water quality in the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1992. TRD-9216172 Mary Ruth Holder Director of Legal Division Texas Water Commission Effective date: December 24, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 463-8069 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 11. Food Distribution and Processing Food Distribution Program 40 TAC sec.11.107 The Texas Department of Human Services (DHS) adopts an amendment to sec.11. 107, concerning warehousing and distribution of donated foods, without changes to the proposed text as published in the October 27, 1992, issue of the Texas Register (17 TexReg 7580). The justification for the amendment is to change the system DHS uses for the warehousing and distribution of commodities donated by the United States Department of Agriculture (USDA). This change involves implementation by DHS of a commercial warehousing and distribution system. All recipient agencies must operate under the commercial system, except for those that currently receive direct shipments. Agencies that currently receive direct shipments have the option of continuing direct shipments or permanently switching to commercial delivery. The amendment will function by improving distribution and warehousing of donated foods which will reduce operating costs to recipient agencies. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 3, 1992. TRD-9216179 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: January 1, 1993 Proposal publication date: October 27, 1992 For further information, please call: (512) 450-3765 Chapter 71. Public Information Public Interest Information 40 TAC sec.71.40 The Texas Department of Human Services (DHS) adopts an amendment to sec.71. 40, concerning public interest and complaints, in its Public Information chapter, with changes to the proposed text as published in the November 3, 1992, issue of the Texas Register (17 TexReg 7763). The justification for the amendment is to update the office addresses and telephone numbers of the information and referral unit, regional administrators, and civil rights division. The amendment will function by providing public access to correct information. No comments were received regarding adoption of the amendment. DHS, however, has initiated minor changes to subsections (e) and (f) to update the civil rights statement, add the telephone number for the Civil Rights Division, and delete the child and elder abuse toll-free hotline number. The amendment is adopted under the Human Resources Code, Title 2, Chapter 21.015, which requires the department to prepare information of public interest describing the functions of the board and department and describing the procedures by which complaints are filed with and resolved by the board or department. sec.71.40. Public Interest; Complaints. (a)-(b) (No change.) (c) The department's centralized source for receipt of statewide complaints and information and referral services for the general public, clients, and elected officials is the Texas Department of Human Services, Information and Referral Unit, Mail Code W-635, P.O. Box 149030, Austin, Texas 78714, (512) 450- 3284. (d) Complaints about the provision of services may also be addressed to the regional administrator in each of the department's 10 regions. Those addresses are as follows. (1) (No change.) (2) Region 03/12. Texas Department of Human Services, 1200 Golden Key, El Paso, Texas 79925, (915) 599-3742. (3) Region 04. Texas Department of Human Services, 4380 Spindletop, Abilene, Texas 79602, (915) 695-5750. (4) Region 05. Texas Department of Human Services, 631 106th Street, Arlington, Texas 76011, (817) 640-5090. (5) Region 06. Texas Department of Human Services, 7901 Cameron Road, Building 2, Austin, Texas 78753, (512) 834-3458. (6) Region 07. Texas Department of Human Services, 502 East Rieck Road, Tyler, Texas 75703, (903) 561-5359. (7) (No change.) (8) Region 09. Texas Department of Human Services, 3635 S.E. Military Drive, San Antonio, Texas 78223, (210) 337-3271. (9) Region 10, Texas Department of Human Services, 285 Liberty Street, 11th Floor, Beaumont, Texas 77701, (409) 835-3751. (10) Region 11, Texas Department of Human Services, 1300 East 40th Street, Houston, Texas 77022, (713) 696-7100. (e) Complaints alleging rude or unfair treatment, or discrimination on the basis of race, color, religion, national origin, sex, age, political beliefs, or disability may be addressed to one of the following: (1) the Texas Department of Human Services, Civil Rights Division, P. O. Box 149030, Mail Code E-609, Austin, Texas 78714, (512) 450-3630; or (2) (No change.) (f) The department also maintains toll-free hotlines to respond to complaints. Those hotlines are as follows. (1)-(2) (No change.) (g)-(i) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 7, 1992. TRD-9216260 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: December 31, 1992 Proposal publication date: November 3, 1992 For further information, please call: (512) 450-3765 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 1. Administration Substance Abuse Program 43 TAC sec.sec.1.100-1.107, 1.109 The Texas Department of Transportation adopts amendments to sec.sec.1.100-1. 107, and 1.109, concerning the Substance Abuse Program. Section 1.103 and sec.1. 106 are adopted with changes to the proposed text as published in the June 12, 1992, issue of the Texas Register (17 TexReg 4239). Sections 1.100-1. 102, 1.104, 1.105, 1.107, and 1.109 are adopted without changes and will not be republished. These amendments are adopted to comply with recent revisions in Title 28, Texas Administrative Code, sec.sec.169.1-169.2, promulgated by the Texas Worker's Compensation Commission which require a state agency to include in its substance abuse policy statement a prohibition against the use of inhalants; to comply with revised regulations issued by the United States Coast Guard under Title 46, Code of Federal Regulations, Part 16, concerning Programs for Chemical Drug and Alcohol Testing of Commercial Vessel Personnel, which clarify covered crewmembers and activities, provide for testing a vessel's entire crew, and reporting a positive test result; and to conform with a technical notice requirement of the Drug Free Workplace Act of 1988, Title 41, United States Code, sec.sec.701-707 which includes the consequences for employees who violate criminal drug statutes in the workplace. Section 1.100 is amended by changing the name "State Highway and Public Transportation Commission" to "Texas Transportation Commission." Section 1.101 is amended to include new and expanded definitions of terms. The term "aftercare" is amended to include the term "inhalant." The term "counseling" is amended to include the term "inhalants" and a provision allowing employee assistance program staff to prescribe the frequency and duration of counseling sessions in consultation with counseling program staff, as appropriate. The term "crewmember" is amended to expand the definition to include individuals who occupy a position, or perform the duties and functions of a position, required by the vessel's Certificate of Inspection; who perform the duties and functions of patrolmen or watchmen; or is specifically assigned the duties of warning, mustering, or controlling the movement of passengers during emergencies. The term "department" is amended to reflect the statutorily revised designation of this agency's name. The term "Employee Assistance Program (EAP)" is amended to include the term inhalant. The term "inappropriate use of an inhalant" is added since many inhalants are legal and are commonly found in a business setting. The term "inhalant" is added to specify those substances whose inappropriate use is prohibited. The term "operation of a vessel" is added to clarify the definition of a "crewmember." The definition of "program" is amended to include the inappropriate use of inhalants. The definition of "rehabilitation treatment" is amended to include the term "inhalant." Section 1.102 is amended to prohibit the inappropriate use of inhalants; to prohibit employees from performing official duties while under the influence of inhalants; to encourage employees to voluntarily use employee assistance, counseling, or rehabilitation treatment programs to deal with inhalant abuse, and to inform them that the department will conduct education sessions to inform employees of the dangers of inhalant abuse in the workplace. Section 1.103 is amended by deleting specific calendar dates for implementation of testing for all employees in safety sensitive positions and substituting therefor dates commensurate with identifying positions as safety sensitive. This change will assure sufficient time in which to properly and accurately identify those employees who are actually engaged in safety sensitive positions. Section 1.104 is amended by including a provision for selecting a ship at random and testing its entire crew to facilitate the random testing of crewmembers. Section 1.105 and sec.1.106 are amended to add the stipulation that in the case of a crewmember, the department shall report a positive drug test result in writing to the nearest Coast Guard Officer in Charge, Marine Inspection (OCMI). Section 1.106 is also amended by outlining the personnel actions which will be taken against employees who: experience work related problems as a result of the inappropriate use of inhalants; voluntarily admit having a problem with inhalants; or are observed inappropriately using inhalants in the workplace. This section is also amended to specify that when an employee has been convicted of a criminal drug statute violation which involves the sale, distribution, transportation, or manufacture of dangerous drugs in the workplace, the employee shall be notified within 30 days that he or she is subject to consistently applied discipline, up to and including termination. The revised wording further provides, however, that if an employee is convicted of a criminal drug statute violation occurring in the workplace which involves the possession with intent to use a dangerous drug, the employee shall be notified within 30 days that he or she is required to successfully complete counseling or rehabilitation treatment or be terminated. A third amendment to sec.1.106 includes adding language which clarifies the penalties for employees who do not successfully complete counseling or rehabilitation treatment after being mandatorily referred. Section 1.107 is amended by outlining the treatment options available to employees who have an inhalant abuse problem and adding a provision which allows employee assistance program staff to prescribe the content, frequency, and duration of counseling sessions in consultation with counseling program staff, as appropriate. Section 1.109 is amended by replacing the phrase "deputy director" with "associate executive director." On July 2, 1992, and July 23, 1992, public hearings were held to receive comments, views, and/or testimony concerning the proposed amendments. Comments were received from three employees at the hearings. The total number of employees who submitted written comments cannot be determined since some of the comments were summarized into one response which was sent in by one employee. One commenter stated that they were not given sufficient notice of the date for the first hearing. Notice was published in the June 12, 1992, issue of the Texas Register and circulated to all employees within the department. To assure proper time was given, a second hearing regarding the proposed amendments to the Substance Abuse Program rules was held on July 23, 1992, and the deadline to receive written comments was extended until August 3, 1992. Notice of these actions was published in the July 10, 1992, issue of the Texas Register and was circulated to all employees within the department. Regarding sec.1.101, Definitions, one commenter made a general statement with regard to "inappropriate use of an inhalant." The commenter stated that "we should include the phrase 'in such a manner as might cause intoxication or impairment' in the workplace after the phrase 'or inappropriately using an inhalant' wherever this phrase appears in the text of the rules." We do not see a need for this change since we want to prohibit the inappropriate use of an inhalant. By prohibiting the inappropriate use of an inhalant, we are prohibiting the behavior which leads to intoxication or impairment. Regarding sec.1.103(a)(1), Applicability, one commenter did not understand why maintenance employees will be subject to testing prior to other employees even though both groups engage in safety sensitive activities. Another commenter felt that the department was "picking" on maintenance personnel. The commenter stated that, "If we have safety sensitive activities, then there should be no differentiation between maintenance personnel and all other employees performing safety sensitive activities as far as the dates to begin testing." In response to these comments, it is true that maintenance positions have received a greater amount of attention in the initial process of identifying safety sensitive positions. Implementing testing requires a great amount of time. If implementation for all employees occurred at one time, the implementation dates would be greatly delayed. Therefore, the department is implementing testing in phases by separating all safety sensitive positions into two groups and implementing testing first for the group which has the greatest number of employees and which has the greatest exposure to activities that could have an immediate, direct impact on the safety of the traveling public and other employees. The amount of time it takes to properly identify safety sensitive positions is a major reason why drug and alcohol testing has not been implemented for covered employees in maintenance and other areas. Also in sec.1.103(a)(2) and (3), Applicability, several commenters questioned whether or not pre-employment and post-accident testing would actually start on October 1, 1992. The answer is no. This is due to the time involved in accurately identifying employees in safety sensitive positions. Subsequently, the other categories of testing will also be delayed. Therefore, we are changing the language in sec.1.103(a)(2) and (3). The department will determine if an employee is actively engaged in work which constitutes a safety sensitive position by reviewing that employee's individual job description. Upon completion of this review, the employee will be notified in writing whether or not he or she is subject to testing. Another commenter stated that, "I am disturbed that policy as proposed and written in this program still calls for random testing of state employees in non-safety related activities." We agree with this position. Section 1.103(A) (2) and (3) clearly states that only those employees in safety sensitive positions will be subject to testing. A safety sensitive position is further defined in sec.1.101. Regarding sec.1.106(d), Personnel Actions, one commenter suggested that the statement in sec.1.102(a)(2), Policy, regarding the department being informed of a conviction by the convicted employee, be repeated in this section to avoid confusion and inconsistency. This commenter also recommended adding a definition of conviction for further clarification. Another comment regarding this section recommended that we mention what adverse action will be taken if the employee does not report a conviction within the specified time period. This commenter further recommended adding the adverse action to sec.1.102, Policy. The rationale for this was that it would protect the department and show a good faith effort to comply with the Drug Free Workplace Act of 1988. First, the conviction could be for a misdemeanor or a felony, so a definition is not needed. Second, we agree with this commenter and will be adding the provision that if an employee does not inform us of a conviction within five days, he or she will be subject to consistently applied discipline, up to and including termination as outlined in sec.1.106(d). We will also delete the phrase "either by notification from the convicted employee or other appropriate means" from sec.1.106(d). With regard to the comment suggesting that we add the adverse action to sec.1.102(a)(2), Policy, this is not possible since this section was not proposed for amendment. In sec.1.106(d)(1), Personnel Actions, one commenter posed the question "Why don't we just require that such a conviction subjects them to termination upon written notification from the department or some other adverse action?" This is a good idea. Therefore, we are removing the phrase "the procedures outlined in subsection (f) of this section." and replacing it with "consistently applied discipline, up to and including termination." Regarding sec.1.106(d)(2), Personnel Actions, one commenter questioned why the term "possession" was used in this section. This commenter felt that it made this section more confusing due to the various legal definitions of possession and the fact that this term is not used anyplace else in the text of the rules. The reason we used the term "possession" is that we have equated "possession" with "use" and we have different personnel actions for "using" versus "selling" etc. However, we agree that the use of "possession" is confusing and inconsistent and in an effort to clarify this section, we are adding the phrase "with intent to use" after the term "possession." We received many comments which addressed sections or section subdivisions which were not being proposed for amendment. While we appreciate all of the comments received, we are not able to consider these comments at this time. We will review and evaluate each of these comments for possible future action. The amendments are adopted under Texas Civil Statutes, Article 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation. sec.1.103. Applicability. (a) A crewmember, an employee in a safety sensitive position, and a final applicant for a crewmember or safety sensitive position, will be subject to alcohol and drug tests as provided in this section. (1) (No change.) (2) For a position other than a crewmember position: (A) a final applicant is subject to preemployment testing if the actual work to be performed in that position has been determined by the department to be safety sensitive; and (B) an employee who is actually engaged in such safety sensitive work is subject to post accident, reasonable cause, and random testing. (3) The executive director, or his or her designee, may establish the effective dates for initiating preemployment, post accident, reasonable cause, and random testing in order to insure the orderly implementation of this section. (b)-(c) (No change.) sec.1.106. Personnel Actions. (a) Consequences of failing an alcohol or drug test. (1) (No change.) (2) Covered employee. (A) A covered employee who fails an alcohol or drug test will be terminated unless he or she meets each of the following criteria: (i) is referred to the Employee Assistance Program (EAP) and successfully completes counseling or an alcohol or drug rehabilitation treatment program, which may include aftercare for a length of time to be specified by the rehabilitation treatment program's staff physician. The rehabilitation treatment program must be approved by the Texas Department of Mental Health and Mental Retardation or by the Texas Commission on Alcohol and Drug Abuse (successful completion of counseling or rehabilitation treatment program must be certified to the substance control officer in writing by the EAP staff or the rehabilitation treatment center's staff physician); (ii) passes an alcohol or drug test after successfully completing counseling or rehabilitation treatment; and (iii) consents, in writing on a form to be prescribed by the director, Human Resources Division, to increased unannounced testing for a period of up to 24 months. (B) If a crewmember fails an alcohol or drug test: (i) the department shall report the positive test result in writing to the nearest Coast Guard Officer in Charge, Marine Inspection (OCMI) and shall remove the individual from duties which directly affect the safe operation of the vessel as soon as practicable; and (ii) the crewmember will be terminated unless he or she meets the requirements of subparagraph (A) of this paragraph and is found by the medical review officer to be drug-free and to pose a sufficiently low risk for subsequent illegal drug use to justify his or her return to work. (The medical review officer shall determine the length of time, up to 60 months, during which the crewmember will be subject to increased, unannounced testing.) (3) Subsequent actions. Except as provided in subsection (i) of this section, when a covered employee has experienced work related problems as a result of alcohol or drug use or the inappropriate use of inhalants and has been reinstated under paragraph (2) of this subsection, subsequent disciplinary action will not be taken for the previous work related problems provided the problems cease after reinstatement. (b) (No change.) (c) Voluntary admission of an alcohol, inhalant, or drug problem. (1) An employee who voluntarily admits having a problem with alcohol, inhalant, or drug abuse will be referred to the EAP for counseling or rehabilitation treatment. (2) Disciplinary action will not be taken against an employee who voluntarily admits having a problem with alcohol, inhalant, or drug abuse; provided, however, that in the case of a covered employee, the admission occurs prior to a determination that the covered employee should be tested pursuant to sec.1.104 of this title (relating to Test Categories and Requirements). The referred employee must successfully complete counseling or a rehabilitation treatment program, and provide a letter from the EAP staff or the treatment program's staff physician certifying the success to the substance control officer. (d) Conviction of criminal drug statute violations in the workplace. As soon as the department becomes aware of a criminal drug statute violation in the workplace, the following procedure shall be followed within 30 days. If an employee fails to report a criminal drug statute violation occurring in the workplace, he or she will be subject to consistently applied discipline, up to and including termination. (1) Employees who are convicted of criminal drug statute violations in the workplace which pertain to the sale, distribution, transportation, or manufacture of dangerous drugs shall be subject to consistently applied discipline, up to and including termination. (2) Employees who are convicted of criminal drug statute violations in the workplace which involve the possession with the intent to use a dangerous drug shall be required to successfully complete counseling or a rehabilitation treatment program. Failure to successfully complete counseling or a rehabilitation treatment program shall result in immediate termination. (e) Impaired performance due to lawful use of drugs. When due to the use of lawfully prescribed or over-the-counter substances, the employee is unable to perform his or her assigned duties or perform any duty in a safe manner, the employee will be subject to temporary reassignment of duties or be required to take leave. (f) Sale, distribution, transportation, or manufacture of dangerous drugs inside and/or outside the workplace. If an employee is reasonably suspected of selling, distributing, transporting, or manufacturing dangerous drugs inside and/or outside the workplace, due to direct observation of such acts in the workplace or by reason of the indictment, arrest, or charge of selling, distributing, transporting, or manufacturing dangerous drugs inside or outside the workplace the following procedure shall be followed. (1) The employee will be placed on immediate suspension with pay, which would be administrative leave, pending appropriate investigation and confirmation, and if such acts are confirmed, shall be subject to immediate termination. (2) The employee shall immediately be provided with a letter which: (A) summarizes the facts upon which such action is taken; (B) notifies the employee that selling, distributing, transporting, or manufacturing dangerous drugs inside and/or outside the workplace subjects the employee to termination; (C) advises the employee that he or she will have a specified period of time in which to provide a reasonable explanation; and (D) advises the employee that if his or her response is insufficient or not acceptable or if an investigation by law enforcement, the department, or other authorities confirms the suspicion, the employee will be terminated. (3) When suspicious behavior is observed in the workplace, the matter should be turned over to law enforcement authorities at the earliest possible time and a request made of such authorities to investigate. (4) The employee shall be terminated if: (A) the employee fails to respond within the specified period or to provide an acceptable explanation; and/or (B) investigation by law enforcement or other authorities confirms the suspicion that the employee was selling, distributing, transporting, or manufacturing dangerous drugs. (5) If the investigation reveals that the employee was using dangerous drugs inside the workplace and not selling, distributing, transporting, or manufacturing dangerous drugs inside and/or outside the workplace, the employee will be required to successfully complete counseling or a rehabilitation treatment program. (6) If the investigation reveals that the employee was using dangerous drugs outside the workplace and not selling, distributing, transporting, or manufacturing dangerous drugs inside and/or outside the workplace, the employee will be given the opportunity to successfully complete counseling or a rehabilitation treatment program. (g) Suspicious substance found. If a substance which appears to be a dangerous drug is found within an area under the effective control of an employee, actions contained in subsection (f) of this section shall be followed. (h) Alcohol consumption, drug use, or the inappropriate use of inhalants in the workplace. If an employee is directly observed consuming an alcoholic beverage, taking a dangerous drug, whether orally or by inhalation or injection, or inappropriately using an inhalant in the workplace, the following procedure shall be followed. (1) The employee will be placed on immediate suspension with pay (administrative leave) , pending the employee's response, and if such response is unacceptable, shall be subject to immediate termination. (2) The employee will be immediately provided with a letter which: (A) summarizes the observed circumstances and behavior; (B) notifies the employee that the consumption of alcohol, use of dangerous drugs, or the inappropriate use of an inhalant in the workplace subjects the employee to termination; (C) advises the employee that he or she will have a specified period of time in which to provide a reasonable explanation; and (D) advises the employee that if his or her response is insufficient or not acceptable, or if he or she refuses to successfully complete counseling or rehabilitation treatment, the employee will be terminated. (3) The employee shall be terminated if he or she fails to respond within the specified period or to provide an acceptable explanation, or refuses to successfully complete counseling or rehabilitation treatment. (i) Recurrence of Substance Abuse. Upon a third occurrence of the necessity to refer an employee to the EAP, counseling or rehabilitation treatment under the department's substance abuse program, the employee will not be referred but will be terminated. (j) Failure to successfully complete counseling. Employees who are required to successfully complete counseling or a rehabilitation treatment program in accordance with sec.1.106 of this title (relating to Personnel Actions), shall be subject to termination if they fail to successfully complete counseling or a rehabilitation treatment program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 4, 1992. TRD-9216184 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: December 25, 1992 Proposal publication date: June 12, 1992 For further information, please call: (512) 463-8630 Chapter 2. Environmental Affairs Subchapter B. Memoranda of Understanding with Natural Resource Agencies 43 TAC sec.2.24 The Texas Department of Transportation (TxDOT) adopts new sec.2.24, concerning memorandum of understanding with the Texas Historical Commission and the Texas Antiquities Committee, with changes to the proposed text as published in the August 7, 1992, issue of the Texas Register (17 TexReg 5530). Texas Civil Statutes, Article 6673g, enacted by Senate Bill 352, 72nd Legislature 1991, require the department to adopt a memorandum of understanding with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historical or archeological resources. Article 6673g also requires the department and each of the resource agencies to adopt the memoranda and all revisions by rule. In order to meet this legislative intent and to ensure that natural resources are given full consideration in accomplishing the department's activities, this new section is adopted on a permanent basis. Section 2.24 adopts as Exhibit A a memorandum of understanding among the department, the Texas Historical Commission (THC), and the Texas Antiquities Committee (Committee) which provides for the review of department projects that have the potential to affect historic properties and cultural resources within the jurisdiction of THC and the Committee, and concerns the development of a system by which information developed by TxDOT, THC, and the Committee may be exchanged to their mutual benefit. On September 14, 1992, at 9 a.m., the department, THC, and the Committee conducted a joint public hearing to seek comments concerning the proposed adoption of sec.2.24. A representative of the Lone Star Chapter of the Sierra Club attended the hearing, presented oral testimony concerning the MOU, and submitted written comments following the public hearing. No other comments were received. The narrative that follows addresses the Sierra Club's comments. The Sierra Club stated that it supports "the concept of MOUs between the Transportation Department and other natural resource agencies, and we support this MOU because we believe it is an improvement over the previous MOU." A concern was expressed that the MOU does not include an "enforcement factor" to ensure that the MOU is properly administered. It was stated that "the Sierra Club strongly supports the Historical Commission and Antiquities Committee's authority to stop highway projects to avoid destruction of significant archaeological resources." It is the intent of the department to fully comply with the provisions of the MOU and to proceed with projects only after receiving appropriate clearance from THC and the Committee. Although the MOU does not include an enforcement provision, a provision for "Resolution of Objections" has been added. In addition, the MOU includes a "Dispute Resolution" provision. These provisions in the MOU are believed to be adequate for addressing disagreements among the agencies. It was stated, "This MOU requires that the Department of Transportation receive Antiquities Committee clearance prior to right-of-way designation. This requirement has been ignored in the past and we would like to be assured that this provision will be strictly followed by the Transportation Department and enforced by the Antiquities Committee." The department recognizes it's responsibilities related to the protection and preservation of cultural resources and intends to fully comply with the provisions of the MOU. It was indicated "that the primary impetus that necessitates the need for MOUs between TxDOT and other natural resource agencies is to ensure that scientific surveys and analysis are completed very early in the project development phase of each proposed highway project." It was also suggested that the definition of "project development" in Section II be revised to reflect that "project development generally includes all studies of a project prior to actual right- of-way designation or acquisition and construction." It is the intention of the department to complete all studies and surveys necessary to properly evaluate the impact of a project on natural and cultural resources early in the planning process. The department, however, believes that the definition of "project development" included in the MOU is appropriate since under certain circumstances studies cannot be completed or performed prior to acquisition of right-of-way. Such circumstances may involve hardship acquisition of right-of- way as authorized by federal law and denial of access by the property owner. When a property owner denies access to his or her property, the department's ability to perform early studies can be significantly hampered. A suggestion was made that when previously unknown archeological remains are encountered after award of contract, the department and the review agency should consider rerouting or terminating the project (Section IV.A.5.). The Department disagrees with this comment. Should an archeological site be found during the course of construction, all feasible measures to minimize harm will be considered. However, once construction has commenced the feasibility of selecting an alternative route or cancelling the project is greatly reduced. It was suggested that a "Failure to Report" section be included in the MOU and that the new section read as follows: "If the review agency determines that any TxDOT survey, testing methods, curation methods, or reporting is inadequate, the review agency shall give TxDOT notice and the highway project shall cease until the inadequacies are corrected." In an attempt to address these concerns Section IV.D., Resolution of Objections, has been included in the MOU. The Sierra Club indicated that they are pleased with the language in Section IV.C., Artifact Recovery and Curation." It was stated that "this is a very important part of the MOU, and TxDOT must include artifact recovery and curation as a significant part of the project development phase. TxDOT must ensure that artifacts recovered are properly cleaned, labeled and processed according to state and federal guidelines." Artifacts recovered by the department are treated and processed in accordance with applicable state and federal guidelines. It was stated that the department must improve it's testing and reporting methods. The department works closely with THC and Committee staff to continually improve and refine cultural resources testing and reporting methods. It was also stated that "THC and TAC must enforce the intent of the Texas Antiquities Code by only giving clearance for right-of-way acquisitions when adequate archaeological surveys have been completed." The department is confident that THC and the Committee fully and appropriately evaluate the cultural resource impacts resulting from department projects and that decisions made by THC and the Committee during the project coordination process are a reflection of careful evaluation. Again it should be noted that, for various reasons, under certain circumstances it may not be possible for the department to complete all studies and surveys prior to acquisition of right-of-way. It was stated that the "MOU is useless if its provisions are not followed in a timely fashion or if TAC/THC gives rubber stamp approval to highway projects without proper evaluation of the impacts to archaeological resources. " The department intends to comply with the provisions of the MOU in a timely manner. Further, the department is confident that THC and the Committee fully and appropriately evaluate the cultural resource impacts resulting from department projects and that these evaluations are reflected in the decisions made by THC and the Committee during the project coordination process. It was stated that "the Sierra Club continues to strongly urge TxDOT to give the resource agencies time to do their job so that highway projects can be constructed carefully following procedures that will avoid, reduce, or mitigate damage to the state's valuable natural resources." The MOU provides 30 days for project review by THC or the Committee. The department believes that 30 days for review is both reasonable and appropriate. The new sections are adopted under Texas Civil Statutes, Articles 6666 and 6673g, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and specifically for the adoption by rule of memoranda of understanding with natural resource agencies. sec.2.24. Memorandum of Understanding with the Texas Historical Commission and the Texas Antiquities Committee. (a) The Texas Department of Transportation (TxDOT) adopts as Exhibit A-24 a memorandum of understanding among TxDOT, the Texas Historical Commission (THC), and the Texas Antiquities Committee (Committee) concerning: (1) the review of department projects which have the potential to affect historic properties and cultural resources within the jurisdiction of THC and the Committee, in order to assist TxDOT in making environmentally sound decisions; and (2) the development of a system by which information held by TxDOT, THC, and the Committee may be exchanged to their mutual benefit. (b) The memorandum of understanding follows as Exhibit A-24. [graphic] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 7, 1992. TRD-9216266 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: December 28, 1992 Proposal publication date: July 14, 1992 For further information, please call: (512) 463-8630