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 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Telephone 16 TAC sec.23.93 The Public Utility Commission of Texas adopts new sec.23.93, concerning distance learning and interactive multimedia communications, with changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6073). The new section is adopted in order to reflect changes in state law, enacted by House Bills 653 and 1029 as passed by the 73rd Texas Legislature. The new section provides reduced rates for telecommunications services directly related to distance learning activities conducted by state educational institutions. The section establishes criteria for determining which services are used predominantly for distance learning activities and the process by which an educational institution qualifies for the reduced rates for such services. The section specifies the appropriate rate treatment for interactive multimedia communications and for distance learning services provided pursuant to customer specific contracts. The section also provides for changes to the rates once the Commission establishes cost determination rules for application to telecommunications services generally. Finally, the section requires local exchange companies to provide annual reports to the Commission for the purpose of gathering information on the demand for distance learning services throughout the state. All local exchange carriers will be required to comply with this new section. The following entities submitted comments in response to the September 10, 1993, issue of the Texas Register publication: GTE Southwest Incorporated and Contel of Texas, Inc.; The Office of the Attorney General, State of Texas; Region XIX Education Service Center; Region 10 Education Service Center; St. Stephen's Episcopal School; Southwestern Bell Telephone Company; Spring Branch Independent School District; The Texas State Library; Texas Statewide Telephone Cooperative, Inc.; Texas Telephone Association; and the University of Texas at El Paso. The comments generally supported the new section but suggested various changes. There were no comments opposing the new section. The Office of Attorney General and Region 10 submitted comments calculating the fiscal implications of the proposed rule on their clients. However, both of them concluded that the monetary amount of the impact on all public and private educational institutions can not be calculated at this time. The Commission agrees. Although the preamble published in the Texas Register incorrectly indicates that there will be "no fiscal implications" for state or local government as a result of this section, the remainder of the paragraph reflects Commission recognition that there will be some cost savings to state and local educational institutions but that it was not possible to quantify the total amount at this time. The Texas State Library requests the Commission include public libraries within the definition of "educational institution" proposed in the section. The Texas State Library points out that public libraries are often the only educational institutions serving learners beyond high school level, that the public libraries currently provide distance learning facilities and that the Texas State Library is presently developing a statewide electronic network for access to remote computer systems and electronic materials. Unfortunately, House Bill 653 provides a statutory definition of the term "educational institution" (referring to the Education Code, sec.61.003 and sec.sec.11.32-11.33) which does not include public libraries. The Commission acknowledges the value of public libraries as institutions for educating the public, but cannot exceed its statutory authority in this matter. Additionally the definition of "educational institution" and "distance learning" used in the section is sufficiently broad enough to include connections to public libraries so long as the connection is made by request of the educational institution and is used for distance learning. The Commission declines to make the requested change. Several commenters suggested changes to subsection (a), "Definitions." However, House Bill 653 provided statutory definitions which have been used in this subsection. The Commission believes these definitions, in their current forms, adequately address the expressed concerns with two exceptions. The Office of the Attorney General correctly advises the Commission that subsection (a)(3) contains not only the language of the definition for "Interactive multimedia communications" as contained in House Bill 1029 but also the "purpose" clause (Education Code, sec.14.051(b)(2)). The Office of the Attorney General asserts that this clause relates only to the creation of the interactive multimedia communications fund and that other interactive multimedia communications projects will exist without Central Education Agency funding. Therefore, The Office of the Attorney General recommends that the language as published for subsection (a)(3) be amended by striking the balance of the passage after the word "locations." The Commission agrees that this amendment is reasonable and has adopted the change. The Commission had proposed the original definition to clarify that the section was only intended to apply to interactive multimedia communications services for educational institutions. However, the Office of Attorney General has proposed other language in subsection (d) which addresses and clarifies this intent. Accordingly, the Commission has amended the definition of "interactive multimedia communications" as suggested. Region XIX suggested that the definitions should be clarified to indicate that they include distance learning programs between buildings of the same campus or floors within the same building. The Commission views the definition of "distance learning" to be broad enough to encompass this interpretation. However, the statutory definition of "interactive multimedia communications" is not clear concerning the need for all stations of a network to be "geographically dispersed." The Commission determines that it is reasonable to interpret "interactive multimedia communications" to include communications within and between buildings on the same campus. The Commission therefore has revised the definition of "interactive multimedia communications" to clarify this interpretation. Several parties recommended changes to subsection (b)(2) regarding the determination of when a service is used "predominantly" in conjunction with distance learning facilities and services. The Commission has determined that a service is predominantly used for distance learning purposes when "over 50%" of the traffic carried is used for distance learning. GTE Southwest Incorporated and Contel of Texas, Inc. (GTE/Contel) argued in comments that the threshold percentage for traffic should be amended to "90%", because traffic is difficult to measure on a multiple use line and a 90% threshold will insure that the line is "predominantly" used for distance learning. The Commission rejects this argument. The definition of "predominantly" is most accurately contained in the expression "over 50%," meaning "for the most part" according to 30 set=9.03p>Webster's Ninth Collegiate Dictionary. Region 10 expressed concern regarding circumstances such as those cited by GTE/Contel, wherein the exact percentage of traffic usage for distance learning cannot be ascertained with certainty. Region 10 therefore suggested the Commission establish a procedure for effectively arbitrating such cases if the local exchange company and the educational institution cannot reach agreement. The Commission disagrees and declines to make such change. The Commission views its existing complaint procedures as the appropriate avenue for such conflicts, should they ensue, and sees no advantage in establishing a procedure for a circumstance which arguably may not occur. Finally, The Office of the Attorney General raises the concern that the language used in subsection (b)(2) as published implies that the "over 50%" measurement applies to "a distance learning program." The Office of the Attorney General asserts that educational institutions should be allowed to "aggregate" distance learning activities over single facilities or services to obtain the threshold measurement. Therefore, The Office of the Attorney General recommends amending subsection (b)(2) by deleting "as part of a distance learning program" and replacing this text with "for distance learning. " The Commission did not intend that the original language be read as narrowly as the Office of Attorney General suggests. The Commission agrees that the ability to aggregate activities is consistent with the spirit of the legislation and the originally proposed rule. Accordingly, the Commission amends the passage as recommended in order to more clearly reflect the intent of the section. Subsection (c), "Process by which an educational institution qualifies for reduced rates other than through a customer-specific contract," prompted a number of recommendations for improving the procedure by which an educational institution qualifies for the 25% discount. Region 10 suggested an affidavit should only be required for "each service" as opposed to "each time" a service is ordered. St. Stephen's suggested a "master affidavit" be kept on file for each institution, avoiding the necessity of issuing a new affidavit with each order for service. The Commission disagrees. Because the reduced rates are targeted to distance learning activities, it is important to require the applicant for service to affirm that they will be used for that purpose. GTE/Contel and Southwestern Bell Telephone Company (SWB) suggested "re- certification" of the services receiving the 25% discount be done at regular intervals. GTE/Contel recommended this be done once every three years and SWB recommended it be done once each year. The Commission disagrees. Although there is the possibility that a service or facility's use may change and go unreported, the Commission finds that this is true for any service provided by local exchange carriers. The Commission is not aware of tariff provisions that routinely require other customers to submit affidavits that the conditions under which they were originally granted service remain unchanged. The Commission sees no need to impose this condition on educational institutions. Region 10 also suggested that the Commission amend the language in subsection (c)(1)(B) by inserting "administrative" between "the" and "head." The Commission agrees that this clarifies the passage and will amend the subsection as recommended. GTE/Contel, Texas Statewide Telephone Cooperative, Inc. (TSTCI) and, by concurrence in TSTCI's comments, Texas Telephone Association (TTA) expressed concerns about subsection (c)(2), "Tariff filing." All three parties appear to have misinterpreted the intent of the Commission regarding the filing of tariffs for this new rule. The Commission disagrees with these comments. The distance learning tariff required of each local exchange carrier need not be as burdensome as interpreted by GTE/Contel, TSTCI, or TTA in their comments. The Commission envisions a simple one page addition for each tariff of each company (ie; one for the general exchange tariff, one for the access tariff, etc...) stating simply that a 25% discount will apply to all services contained within the tariff if the service is used for distance learning purposes by an educational institution complying with the requirements of the new substantive rule sec.23.93. TSTCI and TTA also recommend that small local exchange companies not be required to file tariffs for this section until a first request is received. In view of the simplicity of the tariff provisions required by this section, and in light of the intention of this section to promote distance learning services through the availability of an established discount for educational institutions initiating and maintaining such services, the Commission believes it is in the public interest to require all local exchange companies, regardless of size, to file tariffs as required by the section. The Commission declines to make the requested change. The Office of the Attorney General recommended a change to subsection (d) of the published rule as an adjunct to its recommendation regarding the interactive multimedia communications definition. The Office of the Attorney General recommends striking the word "the" before "services," inserting the word "such" in its place and adding "to educational institutions" at the end of this sentence. The Commission agrees that this amendment, when read with the change in the definition of "interactive multimedia communications," further clarifies the subsection and is consistent with the original intent of the section. TSTCI and TTA, by concurrence with TSTCI's comments, raise concerns regarding subsection (e), "Customer-specific contracts," of the published section. Specifically, the parties question the value of requiring the educational institution to provide evidence that competitive bids were received for the services in question before determining the local exchange company was the best source. The parties argue that there may be no other competitive services of substitutable value, that the institution may not want to consider other vendors, and that generally the filing requirements contained in sec.23.27 of this title (relating to Rate-Setting Flexibility for Services Subject to Significant Competitive Challenge) are burdensome. Therefore, the parties recommend an amendment to sec.23.93 which would allow distance learning customers to waive these requirements. The Commission does not believe this section should be used to circumvent the requirements of another section. Therefore, no change is made. TSTCI and TTA recommend that the term "requested" occurring in subsection (g), "Filing requirements," be replaced with the term "provided." The Commission agrees that the information obtained is more pertinent and lessens the burden of the reporting requirement and therefore agrees to substitute the term "requested" with the term "provided." SWB asserts that the requirement of subsection (g)(1), regarding the name(s) of the institution(s) requesting the service(s), is inconsistent with the policies of the Commission and SWB regarding the protection of customer privacy. The Commission has considered SWB's arguments and reconsidered the purpose of its filing requirements in this section. The Commission will amend the subsection by deleting the "name" of the institution and replacing it with the "type" of educational institution (i.e. primary school, secondary school, regional education service center, etc.). The information obtained will be helpful in ascertaining the rate of development of telecommunications technologies by the categories of educational institutions employing distance learning programs. Finally, The Office of the Attorney General recommended adding a requirement to subsection (g) to report the dollar differences between the discounted services and regularly priced services, thus providing a record of the savings achieved by the institutions. Similarly, the University of Texas at El Paso recommended that the local exchange companies report all services for which educational institutions receive the discount and the total dollar expenditures for those services. Both parties recommended these changes be incorporated as subsection (g)(4). Although the Commission appreciates the reasoning employed by the parties, it feels these requirements are unnecessarily burdensome. The Commission will be able to obtain dollar amounts, if desired, by using the submitted figures and the tariffed rates. All comments, including those not specifically addressed herein, were fully considered by the Commission. The new section is adopted under Texas Civil Statutes, Article 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, and sec.96B, which authorizes the Public Utility Commission of Texas to establish rules concerning rates for distance learning activities conducted by educational institutions. Cross Index to Statutes: Texas Civil Statutes, Article 1446c; Education Code, sec.14.0451. sec.23.93. Distance Learning and Interactive Multimedia Communications. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Distance learning-Instruction, learning, and training that is transmitted from one site to one or more sites by telecommunications services that are used by an educational institution predominantly for such instruction, learning, or training, including video, data, voice, and electronic information. (2) Educational institution-Accredited primary or secondary schools owned or operated by state and local government entities or by private entities; institutions of higher education as defined by the Education Code, sec.61.003(13); the Central Education Agency, its successors and assigns; regional education service centers established and operated pursuant to the Education Code, sec.11.32 and sec.11.33; and the Texas Higher Education Coordinating Board; its successors and assigns. (3) Interactive multimedia communications-Real-time, two way, interactive voice, video, and data communications conducted over networks that link geographically dispersed locations. This definition includes interactive communications within or between buildings on the same campus. (b) Telecommunications services eligible for reduced rates. (1) Any tariffed service, if used predominantly for distance learning purposes, is eligible for reduced rates, as set forth in this section. (2) A service is used predominantly for distance learning purposes when over 50% of the traffic carried, whether in video, data, voice, and/or electronic information, is used for distance learning. (c) Process by which an educational institution qualifies for reduced rates other than through a customer-specific contract. (1) Affidavit. To qualify for a discounted rate, an educational institution, as defined in subsection (a) of this section, must provide a sworn affidavit to the local exchange company account representative or, if no account representative is assigned, to the business office of the local exchange company. (A) The affidavit shall: (i) specify the requested service(s) to be discounted; (ii) quantify, if applicable, the requested service(s) to be discounted; (iii) state that the discounted service(s) will be used predominantly for distance learning purposes; and (iv) specify the intended use(s) of the discounted service(s). (B) The affidavit shall be signed by the administrative head of the institution (e.g., principal, president, chancellor), or a designee given the task and authority to execute the affidavit on behalf of the educational institution requesting the discounted rates. (C) No other special form needs to be provided as part of the application process. (D) The educational institution shall provide an affidavit each time it orders services that will be used predominantly for distance learning purposes. (2) Tariff filing. Within 30 days after the effective date of this section, each local exchange carrier shall file a distance learning tariff, providing for a 25% discount on any service used predominantly for distance learning purposes, other than a service offered pursuant to a customer-specific contract. The tariff filing shall concern only the implementation of this section and may not affect any of the carrier's other rates or services not utilized for distance learning. Once the tariff goes into effect, any educational institution subsequently filing an affidavit, as described in paragraph (1) of this subsection, shall be eligible to receive the requested service at the discounted rate. (d) Interactive multimedia communications services. Any local exchange company that provides interactive multimedia communications services may file a tariff to establish rates at levels necessary, using sound rate-making principles, to recover costs associated with providing such services to educational institutions. Those interactive multimedia communications services used predominantly for distance learning purposes, however, shall qualify for a 25% discount pursuant to subsection (c) of this section. (e) Customer-specific contracts. When a service is provided to an educational institution pursuant to sec.23. 27(c) of this title (relating to Rate-Setting Flexibility for Services Subject to Significant Competitive Challenges), the LEC shall price those components of the service used predominantly for distance learning no less than 105%, and no greater than 110%, of the customer-specific long-run incremental cost. (f) Cost determination. Not withstanding subsections (c) and (d) of this section, once the commission develops cost determination rules for telecommunications services generally, a reduced rate approved under this section shall recover the service-specific long-run incremental costs. In the case of interactive multimedia communications services, however, if determined to be in the public interest, the commission may allow a rate to be set lower than the long-run incremental cost of a specific service. (g) Filing requirements. Each LEC shall file an annual report with the commission on September 1 of each year indicating the demand for distance learning services provided under the distance learning tariff. The report shall include the following: (1) the type of institution(s) provided service(s); (2) type(s) of service(s) provided to each institution; and (3) quantity of the service(s) provided. 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 5, 1993. TRD-9331663 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 26, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part VI. Texas State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Registration 22 TAC sec.131.138 The Texas State Board of Registration for Professional Engineers adopts an amendment to sec.131.138, concerning engineers' seals, without changes to the proposed text as published in the August 24, 1993, issue of the Texas Register (18 TexReg 5651). The section specifies that the original hard copy of computer-aided design/drafting (CADD) engineering documents shall not be issued by the originator bearing a CADDSEAL unless the document also bears the registrant's original signature and date. The section further clarifies that any additional copies made after the original or CADD-generated engineering document that is not reproduced or transmitted electronically may be issued without an original signature, provided the proper notation is displayed prominently near the CADDSEAL. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. 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 4, 1993. TRD-9331565 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Effective date: November 25, 1993 Proposal publication date: August 24, 1993 For further information, please call: (512) 440-7723 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 29. Purchased Health Services On behalf of the State Medicaid Director, the Texas Department of Health adopts amendments to sec.sec.29.606, 29.607 and 29.1112, concerning reimbursement and provider participation requirements, and exclusions and limitations on services. These sections are adopted without changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5062) and will not be republished. The amendments allow Medicaid clients, billed for services provided by military emergency-only hospitals, to have their bills considered for payment by the Medicaid Program. These amendments waive provider participation requirements to enable military hospitals to participate in the Medicaid Program as providers of inpatient emergency hospital services for admissions and set the method for reimbursement, effective on or after October 1, 1993. One comment was received from the Greater El Paso Chamber of Commerce in support of the amendments. Subchapter G. Hospital Services 25 TAC sec.29.606, sec.29. 607 The amendments are adopted under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 8, 1993. TRD-9331717 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 29, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 458-6509 Subchapter L. General Administration 25 TAC sec.29. 1112 The amendments are adopted under the Human Resources Code, sec.32. 021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 8, 1993. TRD-9331715 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 29, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 458-6509 Subchapter AA. School Health and Related Services 25 TAC sec.29.2601, sec.29.2603 On behalf of the State Medicaid Director, the Texas Department of Health adopts amendments to sec.29. 2601 and sec.29.2603, concerning school health and related services. The sections are adopted without changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5063) and will not be republished. The availability of federal funds, previously inaccessible, allows for the addition of special transportation services, as a covered service for reimbursement under Medicaid, for recipients of Medicaid's School Health And Related Services (SHARS). These amendments will add special transportation services as a covered service under SHARS and set the method for reimbursement. Implementation of coverage of special transportation services is contingent upon approval of the Title XIX State Plan Amendment by the federal Health Care Financing Administration (HCFA). No comments regarding adoption of the amendments were received during the comment period or at the public hearing held on August 23, 1993. The sections are adopted under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purhased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). 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 8, 1993. TRD-9331716 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 29, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 458-6469 Chapter 33. Early and Periodic Screening, Diagnosis, and Treatment On behalf of the State Medicaid Director, the Texas Department of Health (department) adopts amendments to sec.33.122 and sec.33.131, concerning Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) periodicity and medical screening services. The sections are adopted with changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5063). The amendments aid in health guidance to promote the health and well-being of adolescents and parents, and screen for biomedical, behavioral, and emotional conditions relatively common to adolescents. The amendments enable adolescents to receive preventive health service visits and screens to include counseling and screening for specific health risk behaviors during alternate years (11, 13, 15, 17, and 19) as recommended by the American Medical Association. No comments were received concerning the proposed amendments. However, the department administratively changed the agency name to reflect the Texas Department of Health. Subchapter D. Periodicity 25 TAC sec.33.122 The amendments are adopted under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.33.122. Periodicity. (a) The Texas Department of Health provides Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services requested by recipients according to the recipient's periodic eligibility for service. (b) Comprehensive medical screening services are available once at each of the following time periods: (1) -(21) (No change.) (c) Adolescent preventive service visits are available once at each of the following time periods: (1)-(5) (No change.) (d) Periodic routine dental services are available to eligible recipients one year of age and older once every six months based on the last date of dental services. 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 8, 1993. TRD-9331711 Susan K. Steeg Gneral Counsel Texas Department of Health Effective date: November 29, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 458-6465 Subchapter E. Medical Phase 25 TAC sec.33.131 The amendments are adopted under the Human Resources Code, sec.32.021, and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted by the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the purchased health services program and as authorized under Chapter 15, sec.1.07, Acts of the 72nd Legislature, First Called Session (1991). sec.33.131. Medical Screening Services. Medical screening services are provided under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program to ensure that Medicaid recipients under 21 years of age have continuous preventive health care. The objectives of screening are the early detection of suspected health problems and the referral for definitive diagnosis and treatment if indicated by the screening. (1) The components of comprehensive medical screening services are: (A) comprehensive health and developmental history (including physical and mental); (B) comprehensive unclothed physical examination; (C) developmental assessment; (D) immunizations appropriate for age and health history; (E) assessment of nutritional status; (F) vision testing; (G) hearing testing; (H) laboratory tests appropriate to age and risk; (I) health education (includes anticipatory guidance); and (J) referral to a dentist for periodic, routine diagnostic and treatment services for recipients one year of age and older. (2) The components of adolescent preventive service visits are health guidance to promote the health and well-being of adolescents/parents and screening for biomedical, behavioral, and emotional conditions relatively common to adolescents. 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 8, 1993. TRD-9331712 Susan K. Steeg General Counsel Texas Department of Health Effective date: November 29, 1993 Proposal publication date: August 3. 1993 For further information, please call: (512) 458-6465 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 334. Underground and Aboveground Storage Tanks Subchapter H. Interim Reimbursement Program 30 TAC sec.334.301 The Texas Natural Resource Conservation Commission ("commission") adopts amendments to sec.334.301, concerning interim reimbursement provisions of the commission's petroleum storage tank program. This section is adopted with changes to the proposed text as published in the September 24, 1993, issue of the Texas Register (18 TexReg 6538). This amendment is adopted in order to implement recent legislative changes to the petroleum storage tank remediation ("PSTR") fund which is administered by the commission pursuant to the Texas Water Code ("Code"), sec.26.3573. The 73rd Legislature of the State of Texas enacted Senate Bill 1243 ("S.B. 1243"), which authorizes the temporary transfer of funds from the general revenue fund to the PSTR fund during the 1994-1995 biennium for the purpose of paying reimbursement claims against the fund. The bill also authorizes the commission to establish a priority system for payments and provisions for suspension of payments from the fund. In order to carry out the mandate of Senate Bill 1243, the adopted rule implements a priority system that provides reimbursement first to owners and operators with fewer tanks. The adopted rule also provides a fund payment suspension provision which authorizes the executive director to suspend payments in whole or in part from the fund in the event it is necessary to protect the viability of the fund. Public comment was received in writing during the 30-day comment period, and during a public meeting held on October 18, 1993, from the following groups: Fuel Tank Contractors and Environmental, Inc., Browning-Ferris Industries, Central Freight Lines, Landmark Environmental, Inc., Compliance Services Group, Inc., Star Enterprise, Eugene Tutle Drilling Company, Texas Hospital Association, Texas Mid-Continent Oil and Gas Association, Southwestern Bell Telephone, Industry Council on the Environment, Mobil Oil Corporation, The Bourdeau Group, Limited, Exxon Company USA, Fina Oil and Chemical Company, Grissom and Thompson, Daughters of Charity Health Services of Austin (Seton Hospital), Texas Association of Storage Tank Professionals, Texas Utilities Services Inc., Texas Utilities Electric Company, Texas Utilities Mining Company, Texas Utilities Fuel Company, Valley Baptist Medical Center, West Texas Gas, Hayes Leasing Company, The Southland Corporation, Texas Oil Marketers Association, and Federal Deposit Insurance Corporation. Several commenters stated their belief that there is not necessarily a relationship between the number of tanks owned/operated and the ability to finance the costs of corrective action taken, or that small businesses should not be given priority. The commission responds that the distinction drawn by the regulation has two bases: in the enabling statute at the Texas Water Code, sec.26.3512(e)(1)-(4) the legislature in these sections tied applicants' payment of deductibles to the number of tanks owned; and the purpose of the proposed reimbursement system is to, as a first priority, pay the smallest tank owner/operator. The commenters' contention focuses on the fact that some businesses with 13 or more tanks may be financially less able to fund the cost of corrective action, and that owners of less than 13 tanks may be more able to finance such corrective action. The purpose of the rule is not to finance corrective action, it is to reimburse the owner/operator for the costs of corrective action already incurred. The smallest owner/operators will always be those with fewer than 13 tanks. It is these owners and operators that are least able to wait longer for reimbursement of corrective action costs. If the commenters' concern is that some owner/operators which are not small businesses will be reimbursed as part of the first priority, sec.334.301(i)(4) of this title (relating to Applicability of this Subchapter) designed to deal with that contingency. Some commenters stated that the use of $1 million in gross revenue and the number of employees is not related to one's ability to pay the cost of corrective action. One commenter expressed a concern that some businesses would reorganize to avoid application of the section of the draft rule relating to number of employees. Several commenters have stated the belief that the "and" in sec.334.301(i)(3)(A)(i) should read "or". One commenter requested that the commission clarify the definition of "employee" as used in the proposed rule. The section of the proposed rule upon which these comments were based is deleted from the final rule. One commenter proposed a test of self-insurance or a net worth in excess of $10 million as an alternative method of moving to the lowest priority of reimbursement those owner/operators that are not small businesses. The commenter also stated that this information was readily available in the commission's own financial assurance records. Another commenter disagreed with paying large companies early within the priority proposed scheme. The commission responds that the purpose of the proposed reimbursement scheme is to, as a first priority, pay the smallest tank owner/operator. The commenters' concerns are addressed by reliance on the financial test for self-insurance in sec.334.301(i)(4)(i) of this title (relating to Applicability of this Subchapter). Commission records would not indicate which company can meet the financial test if they have indicated that they are utilizing another mechanism for financial assurance. Several commenters have proposed paying reimbursements to applicants on a pure pro rata or variation of a pro rata scheme, where applicants would be paid a percentage of their claim based upon total pending claims and available funds. The commission maintains that the existing statute and the rules that were subsequently promulgated anticipate payment of reasonable and necessary corrective action costs, not a payment of a percentage of such costs. Under the final rule all valid claims for reimbursement will be paid as funds are made available. In response to these comments the final rule adds new language at sec.334.301(i)(3) of this title (relating to Applicability of this Subchapter) which allows the executive director to make partial reimbursement payments to claimants within the Priority category in which amounts claimed exceed amounts available for reimbursements within the PSTR Fund. Several commenters expressed a concern about the application of the proposed prioritization rule to pending reimbursement claims, or requested that sec.334.301(i)(2) be changed to apply only to applications received some time after the effective date of the final rule. The commission responds that the Texas Legislature, through its passage of Senate Bill 1243, suggested prioritization of payments from the fund. The loan of $120 million from the general fund to the PSTR Fund was made effective September 1, 1993 and was subject to changes made and anticipated by the legislature in Senate Bill 1243. Further, sec.334.302(h) of this title (relating to General Conditions and Limitations Regarding Reimbursement -Interim Period) states that no claimant has a vested right to reimbursement from the Fund. Several commenters stated a concern that the amount set aside to maintain reserves sufficient to support emergency response and other priority activities is excessive. The commission responds that the tentative figure of $40 million for emergency response is an amount necessary to meet current obligations and any foreseeable emergencies. If any money remains at the end of a fiscal year (of the $20 million set aside for that fiscal year) the commission will consider distributing any remaining balance for PST reimbursements. Several commenters stated that compliance with the PST rules state wide should be a prerequisite for reimbursement and that applicants should be required to certify such compliance. The commission responds that current reimbursement rules require that all registration fees be paid and current, and that all regulated tanks be registered prior to reimbursement, pursuant to sec.334.310(a)(2) and (3) of this title (relating to Requirements for Eligibility-Interim Period). Further, reimbursement under the rules does not preclude enforcement actions or assessment and collection of administrative penalties for violations of the PST rules under sec.334.310(a)(4). One commenter stated that the rule should require that entities requesting reimbursement must be owned and operated by the person making the request to be included in reimbursement Priorities 1 and 2. The commission responds that sec.334.310 allows payments to persons other than owners/operators. Several commenters stated their belief that municipalities and local government entities should not be excluded from sec.334.301(i)(3)(A)(i) and (ii) of this title (relating to Applicability of this Subchapter). The commission responds that the first part of the commenters' concern has been addressed by the deletion of sec.334.301(i)(3)(A)(i) of this title (relating to Applicability of this Subchapter). The treatment given to municipalities and local government entities in the final rule only excludes them from automatic Priority 4 reimbursement status based on financial resources. Larger municipalities and government entities will be in lower Priorities based on the number of tanks owned/operated. Several commenters took the position that nonprofit entities should be given the same consideration as municipalities and local government entities. The commission responds that the purpose of the proposed reimbursement system is to, as a first priority, pay the smallest tank owner/operator. If a nonprofit organization is moved to Priority 4 by the application of the financial test for self-insurance the commission maintains that these entities are financially able to withstand a wait for reimbursement. Several commenters have suggested that the fairest system of reimbursement is to pay the oldest claims first. The commission responds that the purpose of the adopted reimbursement rule is to, as a first priority, pay the smallest tank owner/operator, since it is these owners and operators that are least able to wait longer for reimbursement of corrective action costs. In addition, Senate Bill 1243 anticipated the imposition of a prioritization system for reimbursements from the fund. Several commenters have recommended that the commission focus reimbursement priority on sites posing the greatest environmental risk, rather than setting priority on business size or number of tanks owned/operated. Some commenters suggested that the commission should utilize the system (ASTM/API risk system) under development in the PST program. The commission agrees with the commenters that assessment of risk at PST sites is important, and the commission is presently developing a system to analyze risk posed by releases at PST sites. However, to await the development of this system would further delay reimbursements already backlogged. Additionally, this proposal would require more staff resources than presently available within that program. One commenter expressed a concern related to providing the commission potentially confidential financial information which may be subject to disclosure under the Open Records Act. The commission responds that, pursuant to the Texas Open Records Act, information submitted under confidential cover is treated as such until an opinion is rendered by the Texas Attorney General on the validity of the claim of confidentiality. Further, the information to be requested under sec.334.301(i)(4)(B) of this title (relating to Applicability of this Subchapter) is information that is already required to be provided to the commission upon request pursuant to sec.sec.334.91-334.109 of this title (relating to Financial Responsibility). Several commenters inquired how the agency defines "emergency." The definition of emergency is found at sec.334.322 of this title (relating to Subchapter H Definitions). One commenter stated that because of the uniqueness of the Federal Deposit Insurance Corporation (FDIC) as a liquidator, the proposed rule should be amended to prioritize the FDIC as a Priority 1 applicant regardless of the number of tanks the receivership might own or operate. The commission responds that it does not agree that the status of the FDIC as a receiver merits automatic inclusion in Priority 1 of the proposed reimbursement rules. However, previous determinations by the commission regarding treatment of individual FDIC receivership assets will remain unchanged. One commenter states that if the PSTR is the functional equivalent of an insurance policy, then its administrative practices and procedures should be the same or similar as its private-sector counterparts and other states which process and pay on an "as received" basis, not a determination of need. The commission responds that the commenter's contention that the PSTR fund is a functional equivalent of an insurance policy is not entirely correct. Senate Bill 1243 anticipated rule-making by the commission to prioritize reimbursement from the fund. Several commenters do not support relating eligibility for reimbursement or priority for payment to an owner/operator's election of a particular form of financial assurance, but instead advocate relating reimbursement priority to claimants' previous payment into the fund. The commission responds that payments to the State of Texas made pursuant to the statute and rules governing the PST program are required independently of reimbursements made by the fund. Although these payments support the fund, they create no entitlement to reimbursement priority, since sec.334.302(h) of this title (relating to General conditions and limitations Regarding Reimbursement-Interim Period) states that no claimant has a vested right to reimbursement from the Fund. One commenter recommends that a payment scheme can be based upon historical payment percentages by category. The commission could not determine what alternative was being proposed by this comment. One commenter inquired concerning the use of the Executive Director's authority to suspend payments, and whether the commission intends to pay claims in the Priority 4 status if money is available. The commission states that it will reimburse those applicants in the Priority 4 category if funds are available for reimbursements. As stated previously, the new language in sec.334.301(i)(3) of this title (relating to Applicability of this Subchapter) allows the executive director to make partial reimbursement payments to claimants within the Priority category in which amounts claimed exceed amounts available for reimbursements within the PSTR Fund. One commenter suggested that those applicants in Priority 4 status be reimbursed based on a prioritization where applicants with less than $10 million in net worth should be reimbursed prior to those with 1,000 tanks or more or those with a net worth greater than $10 million. The commission responds that, under the final rule, the only applicants in Priority 4 category are entities who own or operate 1,000 tanks or more, can or have met the financial test of self-insurance in sec.334.95 of this title (relating to Financial Test of Self- Insurance), state and federal entities, or applicants who fail to provide information to the executive director pursuant to sec.334. 301(i)(4)(B) of this title (relating to Applicability of this Subchapter). One commenter encourages the commission to consider the following measures: capitalization of the Fund through a bond issue; establish a comprehensive low- interest loan program to help small businesses upgrade their UST systems to meet technical standards; create a clear procedure for ensuring that funds are replenished; and consider an appropriate retention level that provides an incentive for tank owner/operators to consider obtaining insurance coverage, and encourage the private insurance market to complement the state program. To implement these comments is not within the authority of the commission without authorization by the legislature. One commenter recommended that payments under a pro rata prioritization schedule should be based on the total claimed amounts, not just those amounts finally resolved upon the effective date of the rule. The commission responds that pursuant to sec.334.301(i)(3) the executive director may reimburse a Priority category on a pro rata basis, and if so, funds may be encumbered under the proposed pro rata system according to requested amount. One commenter suggested that if any claims are reimbursed on a pro rata basis, that those applicants be reimbursed the remainder of their claim as a top priority as future funds become available. The commission responds that these claims will be reimbursed when funds become available. One commenter recommended that those applicants who have represented self- insurance status to the TNRCC on or before September 1, 1993, should be reimbursed on the same priority as owners and operators with a $10,000 deductible. The commission believes that sec.334.301(i)(4)(A)(i) of this title (relating to Applicability of this Subchapter) gives effect to the commenters suggestion. One commenter recommends that the commission change the rule to include hospitals within Priority 1 status. The commission responds that the test contained in the final rule sec.334.301(i)(4)(A)(i) of this title is appropriate for determining ability of an entity to await reimbursement. One commenter has suggested a two-priority payment scheme, with one priority category of self-insured applicants, and a second priority category containing all other applicants. The commenter suggests those applicants not self-insured should receive full reimbursement, and that self-insured applicants should receive reimbursement on a pro rata basis utilizing any remaining available funds. The adopted rule chooses a different prioritization option than suggested by the commenter, and is supported by the language of Senate Bill 1243. One commenter proposed that the commission should further prioritize the Priority 4 applicants by the actual number of tanks owned or operated, and then by the date received. As stated in response to an earlier comment, the commission believes it is appropriate to make partial (pro rata) reimbursement payments if funds are available. New language at sec.334.301(i)(3) of this title (relating to Applicability of this Subchapter) allows the executive director to make partial reimbursement payments to claimants within a Priority category in which amounts claimed exceed amounts available for reimbursements within the PSTR Fund. One commenter inquired concerning the resolution and reimbursement of protests on disallowed costs, and whether the commission intends to reserve money for appeals. The commission responds that some funds may be encumbered upon properly filed protests of Fund Payment Reports (FPRs). The amended section is adopted under the authority of Senate Bill 1243 (73rd Legislature, 1993), and the Texas Water Code, Chapter 26, which provides the Texas Natural Resource Conservation Commission with the authority to establish a program to regulate underground and aboveground storage tanks and to administer the petroleum storage tank remediation fund, and under the Texas Water Code, sec.5.103 and sec.5.105, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the Texas Water Code and other laws of the State of Texas, and to establish and approve any general policy of the commission. It is also adopted under the Texas Water Code, sec.26.003, which provides that it is the policy of the state and purpose of the subchapter to maintain the quality of water in the state consistent with public health and enjoyment, the operation of existing industries, and the economic development of the state. The amendment is also adopted under the Texas Water Code, sec.26.3573(g), which mandates that the commission make the most efficient use possible of money in the fund and provide the most effective protection to the environment and public health and safety. sec.334.301. Applicability of this Subchapter. (a)-(h) (No change.) (i) Priorities for reimbursement applications to be processed during the 1994- 1995 biennium pursuant to Senate Bill 1243. The following provisions apply to the priority payment process for reimbursement applications which is set forth in sec.334.301(i)(5) of this title (relating to Applicability of the Subchapter): (1) Applications within the priority system will be processed in accordance with the number of tanks owned or operated by the applicant, and further prioritized, as necessary, based upon the date the application is received by the executive director. (2) Only those applications received prior to September 1, 1993, shall be eligible for payment under sec.334.301(i) of this title. (3) The executive director may reimburse applicants within a Priority category within the Priority System under sec.334.301(i)(5) of this title (relating to Applicability of this Subchapter), if there are insufficient funds to complete the Priority category, on a pro rata basis. (4) Applications to be processed with Priority 4 applications. (A) Regardless of the number of tanks owned or operated, applications from the following shall be processed with Priority 4 applications: (i) entities (other than municipalities and local government entities) which have satisfied or can satisfy the criteria set forth in sec.334.95 of this title (relating to the Financial Test of Self-Insurance) for owners and operators of underground storage tanks; and (ii) state and federal entities. (B) Information on satisfaction of self-insurance requirements shall be provided by authorized representatives of applicants by the deadline set forth in the executive director's letter requesting certification of same. The executive director may request additional information, as necessary, to support the certification. Failure to submit the certification form or any additional requested information by the stated deadline may result in an application being processed as a Priority 4 application. (5) Priority system: Subject to the conditions set forth in sec.334.301(i)(1)- (4) of this title (relating to Applicability of this Subchapter), all applications received will be processed in accordance with the following: (A) Priority 1-applications received from applicants who own or operate less than 13 tanks; (B) Priority 2-applications submitted by applicants who own or operate between 13 and 99 tanks; (C) Priority 3-applications submitted by applicants who own or operate between 100 and 999 tanks; and (D) Priority 4-applications submitted by applicants who own or operate 1,000 tanks or more. (j) Suspending payments from the PSTR fund. The executive director may suspend payments from the fund, in whole or in part, as necessary to preserve the viability of the fund. 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 4, 1993. TRD-9331580 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: November 25, 1993 Proposal publication date: September 24, 1993 For further information, please call: (512) 463-8069 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.333 The Comptroller of Public Accounts adopts an amendment to sec.3.333, concerning security services, with changes to the proposed text as published in the August 3, 1993, issue of the Texas Register (18 TexReg 5059). For purposes of clarification, grammatical changes have been made to subsections (n) and (o)(4). The amendment deletes the distinction between guarding, surveillance, and security services and courier services since all these services require a license under Texas Civil Statutes, Article 4413(29bb), Private Investigators and Private Security Agencies Act, sec.13. The amendment also adds a subsection on the provision of temporary security services and a discussion of multistate benefit of services. No comments were received regarding adoption of the amendment. This amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. The amendment implements the Texas Tax Code, sec.sec.151.0075, 151.0101, and 151.047. 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 5, 1993. TRD-9331609 Martin E. Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: November 26, 1993 Proposal publication date: August 3, 1993 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 425. Fire Protection Instructors Subchapter B. Instructor Training Courses 37 TAC sec.425.201 The Texas Commission on Fire Protection adopts an amendment to sec.425.201, concerning instructor training courses, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6081). The justification for this section is to identify a specific 40 hour Texas Department of Health course deemed equivalent to commission requirements for Intermediate Instructor certification. The commission staff had encountered a Department of Health instructor training course with fewer hours that was not as comprehensive as commission approved courses. This section will allow for the clarification and elimination of confusion regarding equivalency of courses. The amendment specifies that the commission will recognize the Texas Department of Health's 40 hour state instructor certification certificate as meeting the training requirements for the Commission's Intermediate Instructor certification. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.028(b)(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. sec.425.201. Instructor Training Courses. (a)-(f) (No change.) (g) The commission has entered into an agreement of reciprocity with the Texas Department of Health for the purpose of instructor certification. The commission will recognize the Texas Department of Health's 40 hour state instructor certification certificate as meeting the training requirements for the Texas Commission on Fire Protection's Intermediate Instructor certification. 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 8, 1993. TRD-9331676 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 29, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700 Chapter 437. FEES 37 TAC sec.437.13, sec.437.15 The Texas Commission on Fire Protection adopts an amendment to sec.437.13, and new sec.437.15, concerning certification performance skills fees and proficiency examination fees, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6082). The justification for this section is for the commission to come into compliance with the appropriations act provisions requiring the commission to recover the cost of testing. These sections will implement testing of performance skills to ensure the competency of fire protection personnel with an equitable allocation to each user of state service. The amendment to sec.437.13 will establish a $15 fee for the basic certification performance skills examination. New sec.437.15 will establish a $15 for the proficiency written examination and a $50 fee for the proficiency performance skills examination for individuals whose certificate has been expired for a year or more. No comments were received regarding adoption of the amendments and new section. The amendment and new section are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.026, which authorizes the commission to establish fees relating to certification and basic certification tests. 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 5, 1993. TRD-9331677 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 29, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700 Chapter 439. Examinations For Certification 37 TAC sec.sec.439.5, 439.7, 439.17 The Texas Commission on Fire Protection adopts amendments to sec.439.5, 439.7, and 439.17, concerning definitions relating to examinations for certification, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6082). The justification for these amendments is that it will enable the agency to meet statutory requirements for testing at the same time the cost to the public is minimized by allowing training facilities to provide field proctors to assist in administration of testing. The orientation will provide for consistent administration of testing. Finally, the change to sec.439.17 provides for an alternative to testing for demonstrating proficiency in skills by individuals who wish to maintain eligibility for certification beyond one year. The amendments will maintain consistent administration of the testing and provide flexibility to departments operating training schools in addressing the costs of testing. Section 439.7 deletes the current definition of field proctor and a new definition is proposed that provides the minimum qualifications for a field proctor, including an orientation conducted by the commission, in order to be approved by the commission. Section 439.7 adds the requirement of the performance skills as part of the certification examination and requires that the training facilities supply field proctors. Section 439.17 provides an exemption from the performance skills portion of the proficiency examination required to maintain eligibility for certification if the individual complies with continuing education requirements. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.032(b), which authorizes the commission to establish qualifications relating to basic certification tests. 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 5, 1993. TRD-9331680 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 29, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700 Chapter 443. Adoption by Reference 37 TAC sec.443.9 The Texas Commission on Fire Protection adopts an amendment to sec.443.9, concerning adoption by reference of the Basic Fire and Arson Investigator, with changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6083). The change to the text adds revisions through October 13, 1993, to Chapter 5, Basic Fire and Arson Investigator. The adopted change is justified by improved standards in the training of fire and arson investigation personnel that addresses current developments in the field. The amendment adopts by reference a revised Chapter 5, Basic Fire and Arson Investigator. The revised curriculum deletes a reference to Lansky by H. Messinik, which is no longer available and includes a new reference, Arson Prosecutors Manual for the State of Texas , Second Edition, Texas District and County Attorneys Association, 1993. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022(a)(5), which provides the commission with authorization to establish qualifications for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. sec.443.9. Basic Fire and Arson Investigation Personnel Curriculum. (a) The effective date of this section shall be January 1, 1994. (b) The Texas Commission on Fire Protection adopts by reference Chapter 5, Basic Fire and Arson Investigation Personnel Curriculum, of the Commission's document titled "Commission Certification Curriculum Manual" as amended October 13, 1993. (c) The document adopted by reference in this section is on file in the offices of the Texas Commission on Fire Protection, 3006 B Longhorn Boulevard, Austin, Texas 78759, and is available for public inspection during regular working hours. A copy of the document may be obtained upon request and payment of the fee as specified in Chapter 437 of this title (relating to fees). 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 5, 1993. TRD-9331683 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1994 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700 Chapter 471. Standards for Volunteer Certification 37 TAC sec.471.7 The Texas Commission on Fire Protection adopts an amendment to sec.471.7, concerning minimum standards for volunteer fire fighter certification, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6084). The rule change is justified by the request of individuals for the commission to recognize volunteer fire fighter training received prior to December 31, 1992, from sources in addition to the State Firemen's and Fire Marshals' Association of Texas and to provide additional time to apply for such recognition. The rule change will allow the commission to consider training received prior to implementation of commission volunteer program and avoids duplication of training. Section 471.7 adds language to clarify that training received before December 31, 1992, from sources in addition to the State Firemen's and Fire Marshals' Association of Texas can be counted toward the Commission's Basic Volunteer Fire Fighter Curriculum if the hours of training received are deemed equivalent by commission staff. The section as amended also removes the deadline for recognition of previous training. No comments were received regarding adoption of the amendment. The amendment is proposed under the Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification 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 November 5, 1993. TRD-9331681 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 29, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700 Chapter 475. Volunteer Fire Fighter Instructor and Instructor Training 37 TAC sec.475.5 The Texas Commission on Fire Protection adopts new sec.475.5, concerning minimum standards for advanced volunteer fire fighter instructor certification, with changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6084). A typographical change was made to correct the abbreviation NAPA to read NFPA in sec.475.5(b), which stands for National Fire Protection Association. The justification for this new section is to provide the incentive of higher levels of volunteer fire fighter instructor certification to individuals who obtain additional experience and instructor training courses. The result of enforcing the section will be an increase in instructor competency and improvement in quality of training for volunteer fire fighters. The new section establishes training and experience requirements for higher levels of volunteer fire fighter instructor certification. No comments were received regarding adoption of the new section. The new section is adopted under the Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. sec.475.5. Minimum Standards For Advanced Volunteer Fire Fighter Instructor Certification. (a) In order to be certified as an Advanced Volunteer Fire Fighter Instructor, the individual must: (1) hold as a prerequisite an Intermediate Volunteer Fire Fighter Instructor certificate; (2) be a member of a paid or volunteer fire department, and have a minimum of five years experience related to fire protection in one or more of any combination of the following: (A) a paid fire department; or (B) a volunteer fire department; or (C) a department of a state agency, education institution or political subdivision-providing fire protection training; and (3) successfully complete the following commission approved instructor training courses: (A) a commission approved "Instructional Aids" course of at least 40 hours or three college semester hours (the National Fire Academy course, "Instructional Methodology" can be substituted for "Methods of Teaching" and "Instructional Aids"); and (B) a commission approved course in "Analysis and Course Making" consisting of at least 40 class hours or three college semester hours; and (C) A commission approved course in "Organization and Use of Instructional Materials" consisting of at least 40 hours or three semester hours. (Note: The National Fire Academy course "Course Development" can be substituted for "Analysis and Course Making" and "Organization and Use of Instructional Material", subparagraphs (B) and (C) of this paragraph. (b) The Advanced Volunteer Fire Fighter Instructor Certification meets requirements of NFPA 1041, Standard for Fire Service Instructor Professional Qualifications, for Fire Instructor Level III. Instructors wanting to meet NFPA 1041 for Fire Service Instructor Level III must meet the requirements for Fire Service Instructor II. 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 5, 1993. TRD-9331682 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 29, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700 Chapter 531. Fire Alarm Rules 37 TAC sec.531.7, sec.531.10 The Texas Commission on Fire Protection adopts amendments to sec.531.7 and sec.531.10, concerning regulation of the business of inspecting, planning, certifying, leasing, selling, servicing, testing, installing, monitoring, and maintaining fire alarm or fire detection devices and systems, without changes to the proposed text as published in the September 10, 1993, issue of the Texas Register (18 TexReg 6089). The justification for these sections is that there will be the deletion of unnecessary language and impractical deadlines for registered companies desiring to become listed or certified as a central or remote station by a testing laboratory approved by the Texas Commission on Fire Protection, resulting in more effective regulation of these businesses, and improvement in the quality of protection afforded property and lives by fire alarm equipment. NFPA 170 1991, the Standard for Firesafety Symbols, Chapter 4, will be deleted from sec.531.7. New sec.531.10(3) will amend the requirements for a registered firm currently engaged in monitoring to allow a registered firm more time to provide evidence of listing or certification as a central or remote station by a testing laboratory approved by the Texas Commission on Fire Protection. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 5.43-2, sec.sec.4, 4A, and 6, which provide the Texas Commission on Fire Protection with the authority to adopt rules necessary to its administration through the state fire marshal for the protection and preservation of life and property. 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 5, 1993. TRD-9331678 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: November 29, 1993 Proposal publication date: September 10, 1993 For further information, please call: (512) 873-1700