ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 7. Pesticides 4 TAC sec.sec.7.1, 7.4, 7.8, 7.10, 7.25, 7.26, 7.35 The Texas Department of Agriculture (the department) adopts amendments to sec.sec.7.1, 7.4, 7.8, 7.10, 7.25, and 7.26 and new 7.35, concerning the regulation of the use, registration and sale of pesticides. Section 7.26 is adopted with changes to the proposed text as published in the April 8, 1994, issue of the Texas Register (19 TexReg 2455). Sections 7.1, 7.4, 7.8, 7. 10, and 7.35 are adopted without changes and will not be republished. The amendments and new section are adopted to clarify the sections, to add definitions, to clarify requirements for the registration of pesticides, to make the sections consistent with the requirements of the Federal Worker Protection Standard, 40 Code of Federal Regulations 170 (WPS), which was adopted by the United States Environmental Protection Agency (EPA) in October of 1992, and to clarify coverage under these regulations and the WPS in regards to training. Section 7.26 is adopted with changes. The time by which a flag or sign must be removed has been changed from the application time to the expiration of the reentry interval. The change in terms was made in order to be consistent with sec.7.27(d)(2). The amendment to sec.7.1 adds definitions for Service, WPS, and Trained trainers. The amendment to sec.7.4 clarifies what materials applicants for registration of pesticides are required to submit with their application. The amendment to sec.7.8 clarifies where distribution records are to be kept. The amendment to sec.7.10 clarifies that the department's pesticide inspectors and pesticide program staff may conduct up to two hours of training for recertification courses without prior approval from the department's certification and training staff. The proposed amendment to sec.7.25 clarifies coverage under the WPS and these regulations and subsection (d)(9) changes the type of flag or sign that may be used to indicate a danger due to pesticide application. This change makes it consistent with the sign used under the WPS. The amendment to sec.7.26 makes that section consistent with the WPS and adds an additional method of giving notification of a scheduled pesticide application. New sec.7.35 requires a trainer to issue EPA approved verification training cards. Further, new sec.7.35 requires all trainers to maintain records of all training performed by them for a five year period. General comments in support of the regulations as proposed were submitted by the Texas Corn Producers Board, Plains Cotton Growers, Jones Produce, Texas Citrus Mutual, Cotton and Grain Producers of the Lower Rio Grande Valley and the Texas Vegetable Association. The Texas Farm Bureau also submitted comments generally in support of the proposed regulations. In addition, the Texas Farm Bureau submitted specific comments regarding training. In regard to sec.7.35, the Texas Farm Bureau commented that requiring trainers to maintain records for five years and issue training cards would be burdensome on the trainers. The department believes that requiring trainers to issue cards and keep a record of that training for five years will allow farm workers more freedom to work for different agricultural employers. If trainees have documentation that they have been trained, the trainee will not be subjected to multiple trainings, and he or she will be able to work with different agricultural employers. The five year recordkeeping requirement is consistent with the WPS for the issuance of an EPA WPS training verification card. The amendments and new section are adopted under the Texas Agriculture Code, sec.76.004, which provides the Texas Department of Agriculture with the authority to adopt rules for carrying out the provisions of this chapter. sec.7.26. Notification Requirements. (a)-(g) (No change.) (h) Notification. The following methods may be used for giving notification of a scheduled pesticide application. (1) Adjoining neighbor. If the request for notification is made pursuant to subsection (c)(1) of this section, the notification may be made by: (A) raising a flag/sign. (i) The EPA WPS posted warning flag/sign shall be raised to a height of at least approximately five feet, with the bottom of such flag/sign always at least two feet above the top of the crop, in or about the field to which pesticides are scheduled to be applied so that the flag/sign is located no farther than 650 yards from the nearest property line of any adjoining neighbor requesting notification. (ii) In the event of unusually tall crops, such as citrus, corn, or sugar cane, or limited access fields, the farm operator may raise a flag/sign at a distance greater than 650 yards from an adjoining neighbor, if such neighbor is given written notice of the location of such flag/sign and the flag/sign is raised on a permanent pole to a height visible to the adjoining neighbor. (iii) The telephone number of the farm operator shall be on or near the flag/sign, and the flag/sign shall be raised on the border of the field at a location to which the public has access for the purpose of reading the telephone number. The farm operator shall provide the name of the pesticide and the intended date and approximate time of the scheduled application when requested by the requesting party. (B) giving notification in writing, in person, or by telephone in English or, when appropriate, Spanish; or (C) other means mutually agreed upon by both parties. This agreement must be in writing and a copy filed with the department. (2) (No change.) (3) Licensed day-care centers, primary and secondary schools, hospitals, inpatient clinics, nursing homes. If the request for notification is made pursuant to subsection (c)(2) of this section, notification may be given in person or by telephone in English or, when appropriate, Spanish. Alternatively, if mutually agreed by the farm operator and the person in charge of any such facility, notification may be given to such facilities by posting a flag/sign at a designated location. (4)-(5) (No change.) (i) (No change.) (j) Time and receipt of notice. Notice shall be given not later than on the day previous to a scheduled pesticide application. (1) Notice shall be deemed given pursuant to subsection (h)(l) and (3) of this section: (A) at the time of delivery (in person, in writing, or by telephone) to the requesting person or at the time of delivery to the address provided in the request for prior notification; (B) when the required flag/sign is raised; or (C) as mutually agreed upon pursuant to an agreement authorized by subsection (h)(l)(c). (2)-(3) (No change.) (k) (No change.) (l) Removal of flags/signs. Flags/signs raised under this section should be removed or lowered within 24 hours after the reentry interval expires. However, in no event shall such flags/signs be left posted for more than 72 hours after the reentry interval has expired. In the event that a pesticide application is not made when scheduled, the flag/sign may be left posted until after the reentry interval has expired. (m)-(n) (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 June 14, 1994. TRD-9442366 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: July 5, 1994 Proposal publication date: April 8, 1994 For further information, please call: (512) 463-7583 Chapter 8. Agricultural Hazard Communication Regulations 4 TAC sec.sec.8.1-8.5, 8.7, 8.11 The Texas Department of Agriculture (the department) adopts amendments to sec.sec.8.1-8.5, 8.7, and 8.11, concerning agricultural hazard communication regulations, without changes to the proposed text as published in the April 8, 1994, issue of the Texas Register (19 TexReg 2457). The amendments to the aforementioned sections make the regulations consistent with the United States Environmental Protection Agency (EPA) Worker Protection Standard, 40 Code of Federal Regulations (CFR), Part 170 (WPS), and clarify coverage of employers under the WPS, the Agricultural Hazard Communication Act, Texas Agriculture Code, Chapter 125 (the Act) and other parts of this chapter. Additionally, changes made to Chapter 8 make it consistent with the Act and are adopted for purposes of clarification. New subsection (c) in sec.8.1 lists the additional requirements a covered employer will have to meet in order to comply with WPS and these regulations and addresses the more stringent aspects of the Act and these regulations. A definition of "trained trainer" has been added to the definitions of "agricultural or horticultural commodity in its unmanufactured state," "covered pesticide chemical," "employer," and "threshold amount" in sec.8.2 are also being adopted for purposes of clarification. The amendment to the definition of "member of the community" makes it consistent with the Act, the WPS and the Texas pesticide law and regulations. The definition of "handle, handling" has been deleted due to conflicting meanings under the WPS. The amendments to sec.sec.8.3-8.5 are made for purposes of clarification. In addition, the amendment to sec.8.5 updates the cite to the Administrative Procedure Act. The amendment to sec.8.7 makes grammatical changes to subsections (a) and (c), substitutes the term "regional" for "district" offices in subsection (b)(8), and makes subsection (c)(5) consistent with the Act by adding "treating medical personnel" to the list of persons entitled to notify the department of an employer's refusal to provide a workplace chemical list. New subsection (e) of sec.8.11 regarding training provides that employers can train agricultural laborers and allows agricultural laborers trained in other states to be considered trained for purposes of the Act. This new subsection will allow agricultural laborers to work for different employers without having to be retrained, and defines the categories of workers and approved training programs. New subsection (f)(1) of sec.8.11 requires a trainer to issue EPA approved WPS training verification cards. Further, new sec.8.11(f)(2) requires all trainers to maintain records of all training performed by them for a five-year period. New sec.8.11(g)(1) allows agricultural laborers to be trained by employers, their managers, or their labor contractors as long as the trainer is utilizing an approved EPA WPS training program. This new subsection is also being adopted to define the categories of training programs. General comments of support for the regulations, as proposed, were submitted by the Cotton and Grain Producers of the Lower Rio Grande Valley, Texas Citrus Mutual, Texas Vegetable Association, Texas Farm Bureau, Plains Cotton Growers, Jones Produce and Texas Corn Producers. Texas Rural Legal Aid (TRLA) also submitted comments generally in support of the proposed regulations. TRLA submitted comments regarding some specific provisions. In regard to sec.8.2, TRLA commented that reducing the distance in the definition of "member of the community" would exclude significant portions of the population to prior notification. The concern about the amended definition is misplaced because the only area in which the change will make a difference is in sec.8.7(c), Workplace Chemical List. This amended definition has no bearing on prior notification, which is found at sec.7.26 of the department's Pesticide Regulations. TRLA also commented on sec.8.11 raising a concern about workers being trained in other states, and those workers not being adequately trained before coming to Texas to work. TRLA believes it is necessary to provide out of state workers with supplemental training. TRLA also commented on sec.8.11(f) pertaining to abuse of issuance of EPA training verification cards. The department believes that the training regulation is sufficient to protect workers coming from other states to work in Texas, and that the abuse of issuance of EPA training verification cards will be curtailed through the enforcement provisions of a cooperative agreement by and between the department and the EPA. The amendments are adopted under the Texas Agriculture Code, sec.125.014, which provides the department with the authority to adopt rules and administrative procedures reasonably necessary to carry out the purpose of Chapter 125. 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 June 14, 1994. TRD-9442365 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: July 5, 1994 Proposal publication date: April 8, 1994 For further information, please call: (512) 463-7583 TITLE 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 2. General Policies and Procedures 13 TAC sec.sec.2.11, 2.51, 2.52 The Texas State Library and Archives Commission adopts new sec.sec.2.11, 2. 51, and 2.52. Section sec.2.52 is adopted with changes in the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2811). Sections sec.2.11 and sec.2.51 are adopted without change and will not be republished. These new sections concern fees for providing copies of public records and other services, registration requirements for customers, and the provisions under which services are provided. The fee schedule adopted is consistent with guidelines for fees to provide public records proposed by the General Services Commission to implement the provisions of House Bill 1009, Acts 73 Legislature except the charge for over-size paper copies is less. The new sections set related fees for services other than the provision of public records. The sections also describe who is eligible for specific services and under what conditions service would be denied. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, sec.441.006 and sec.603.004(b), which provides the Texas State Library and Archives Commission with the authority to govern the State Library and to establish copy fees. sec.2.52. Customer Service Policies. (a) Registration. (1) Texas state employees and persons affiliated with state or local governments in Texas, staff of public, academic, special, or school libraries, and faculty or students of graduate schools of library and information science in Texas must register each year in person, by telecommunications or mail. Registration includes providing the following information: (A) place of employment or study, address and telephone number; (B) home address and telephone number; and (C) driver's license or date of birth. (2) Others must register each year in person, presenting current photo identification with an address, sign a registration agreement, and provide the information detailed in paragraph (1) of this subsection. The signed registration is kept on file. (3) No corporations, libraries, or groups may register; only individuals who are 16 years or older may register. However, persons under age 16 are welcome to use the services if supervised by a registered customer. Persons age 12 or younger are not admitted in the State Archives reference room; however, they may use other services and facilities of the Library under supervision of an adult. (4) Customers without acceptable photo identification or other information may be registered temporarily for supervised use of materials at the Library; however, customers without a work or home address in Texas may not check out circulating materials. (b) Loan Periods. (1) Loans of circulating items are four weeks with the following exceptions. (A) Current issues of journals and newspapers are loaned for two hours during periods of low demand, and library science journals are loaned for four weeks; otherwise journals do not circulate. (B) Video materials are loaned for three weeks. (C) Materials are loaned to other libraries for five weeks. (D) Collection development materials are loaned for eight weeks. (2) Renewal of Loans. (A) Loans may be renewed twice for two weeks each time if there are no reserves on the item. (B) Customers may renew loans in person, by telecommunications or mail. (C) Libraries may renew interlibrary loans once if there are no reserves on the item. (D) Overdue materials may be renewed. (3) Number of Items Per Customer. (A) The number of circulating items that may be borrowed at one time is not limited, except that a customer may only borrow 6 reels of microfilm at one time. (B) Additional restrictions apply to the State Archives. Only one box, one pension application, case file, bill file, or map may be used at a table at a time. No more than five volumes may be on a table at a time. Only one folder may be removed from a box at a time. Added materials may be requested and kept on a book truck or at a research assistants' desks. (c) Overdue and Lost Items. (1) Each customer is responsible for items checked out in their name until they are returned to the circulation desk of the collection from which they were borrowed. Items may be returned by either of the following: (A) United States mail services to Texas State Library, Box 12927, Austin, Texas 78711-2927; (B) interagency mail or commercial delivery services to Texas State Library, Lorenzo de Zavala State Archives and Library Building, 1201 Brazos, Austin, Texas 78701-1938. (2) There is no fine for overdue items. (3) The costs of replacement are assessed for lost items. (4) An invoice for the value of an item is sent when it is six weeks overdue. (5) For government publications the replacement cost is the current price or $0.10 per page. (d) Exhibition of State Archives. No archival material, historical items, artifacts, or museum pieces will be loaned for public exhibition except that items may be loaned to the State Preservation Board for display in the Capitol Complex Visitors Center under conditions specified in writing by the Director and Librarian. (e) Services Requiring Registration. Customers must be registered to check out materials, request interlibrary loans of materials, use password services, or receive services for fees. (f) Password Services. Some information services provided by telecommunications are limited to state employees or to staff of participating libraries and require a valid password for access. (g) Suspension of Service. (1) Borrowing privileges may be suspended permanently for failures to return materials on time more than four times a year. (2) Services at the Library may be suspended for six months for smoking in a facility of the Commission or eating or drinking in a reading or reference room. (3) Services at the Library may be suspended for behavior that is threatening, harassing, or obscene toward staff or other customers. If the service can be provided though an alternate method that eliminates the problem behavior, for example mail instead of telephone or telephone rather than at the Library, the service will be provided. (4) Theft or destruction of state resources or property will result in suspension of all services immediately. (5) Prior to a permanent suspension of service, a customer will be notified in writing of the problem and provided an opportunity to respond by a certain date if the customer has a known mailing address. (h) Confidential Records. Records that identify a person who requested, obtained, or used an library item or service Article 6252-17A). 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 June 13, 1994. TRD-9442286 Raymond Hitt Assistant State Librarian Texas State Library Effective date: July 4, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 463-5460 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XI. Texas Commission on Human Rights Chapter 321. General Provisions 40 TAC sec.sec.321.1, 321.2, 321.6 The Texas Commission on Human Rights adopts amendments to sec.sec.321.1, 321. 2, and 321.6, concerning general provisions. Section 321.1 is adopted with changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899), and as corrected in the May 10, 1994, issue of the Texas Register (19 TexReg 3597). Section 321.2 and sec.321. 6 are adopted without changes and will not be republished. Section 321.1 defines terms used by the Commission. The amendment merely updates definitions to conform with the new statutory language set forth in House Bill 860. Section 321.2 corrects typographical errors found in the original text of the rule and it replaces references to the APTRA with its new government code cite. Section 321.6 replaces references to the APTRA with its new government code cite. The rules function merely to update definitions and citations which had been superceded by changes in federal and state statutes. No comments were received regarding adoption of the amendments. The amendments are adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate rules. sec.321.1. Definitions. The following words and terms, when used in these chapters, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Texas Commission on Human Rights Act, Texas Civil Statutes, Article 5221k, as amended by House Bill 860, Acts 1993, 73rd Legislature, Chapter 276, effective September 1, 1993. The 1993 codification of the Act in the Texas Government and Labor Codes did not incorporate the 1993 legislative amendments to Article 5221k. Therefore, these rules refer to provisions of the amended Act rather than the unamended Government and Labor Codes. The use of references to the Act is preferred when conducting commission business. Age-"Because of" or "on the basis of age" refers only to discrimination because of age or on the basis of age against an individual 40 years of age or older. Nothing in this Act prohibits the compulsory retirement of any employee who has attained 65 years of age, and who, for the two-year period immediately before retirement, is employed in a bona fide executive or high policy-making position, if the employee is entitled to an immediate, nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of plans, of the employer of the employee, that equals, in the aggregate, at least $27,000. For purposes of the Act, sec.5.04(b), "because of age" refers only to discrimination because of age against an individual who is at least 40 years of age but younger than 56 years of age. Alternative dispute resolution-Mediation in which an impartial person facilitates communications between parties to promote voluntary settlement of the dispute. Bona fide occupational qualification-A qualification: (A) that is reasonably related to the satisfactory performance of the duties of a job; and (B) for which there is a factual basis for believing that no persons of the excluded group would be able to perform satisfactorily the duties of the job with safety and efficiency. Chairman-That member of the commission designated by the governor, pursuant to the Act, Article 3, sec.3.01(a). Commission-The Texas Commission on Human Rights. Commissioner-Any members of the commission, including the chairman, pursuant to the Act, Article 3, sec.3. 01(a). Complainant-A person claiming to be aggrieved by an unlawful employment practice, or that person's agent who brings an action or proceeding under the Act. Complaint-A written statement made under oath or affirmation stating that an unlawful employment practice has been committed, setting forth the facts on which the complaint is based, including the dates, places, and circumstances of the alleged unlawful employment practice, and setting forth facts sufficient to enable the commission to identify the person charged. Court-The district court in a county in which the alleged unlawful employment practice that is subject of the complaint occurred or in a county in which the respondent resides. Deferral or referral-The same meaning pursuant to the Act, Article 4, sec.4.04. Demonstrates-To meet the burdens of production and persuasion. Designee-An employee of the commission authorized to execute such duties, powers, and authority as may be conferred by the executive director subject to the provisions of the Act or these sections. Disability-With respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such a mental or physical impairment, or being regarded as having such an impairment. (A) The term does not include a person with a current condition of addiction to the use of alcohol or any drug or illegal or federally controlled substance. (B) The term does not include a person with a currently communicable disease or infection, including, but not limited to, acquired immune deficiency syndrome or infection with the human immunodeficiency virus, that constitutes a direct threat to the health or safety of other persons or that makes the affected person unable to perform the duties of the person's employment. (C) "Because of disability" or "on the basis of disability" refers to discrimination because of or on the basis of a physical or mental condition that does not impair an individual's ability to reasonably perform a job. (D) Disabled is a person having a disability. Employee-An individual employed by an employer, including an individual subject to the civil service laws of the state or a political subdivision of the state; except that the term employee does not include an individual elected to public office in the state or a political subdivision of the state. Employer-A person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year and any agent of that person. The term includes an individual elected to public office in this state or a political subdivision of this state, or a political subdivision and any state agency or instrumentality, including public institutions of higher education, regardless of the number of individuals employed. Employment agency -A person regularly undertaking, with or without compensation, to procure employees for an employer or to procure for employees opportunities to work for an employer, including an agent of that person. Executive director -The chief executive officer employed by the commission to execute such duties, powers, and authority as may be conferred by the commission subject to the provisions of the Act or these rules. Federal government -The United States Equal Employment Opportunity Commission or any agency of the federal government enforcing the Rehabilitation Act of 1973. Federal law-The Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 and the Civil Rights Act of 1991, the Age Discrimination in Employment Act, as amended, the Rehabilitation Act of 1973, as amended, and the Americans with Disabilities Act. Government Code -The Texas Government Code, Title 10, Subtitle A, Chapter 2001, sec.sec.2001.001-2001.902, as enacted by Senate Bill 248, Acts 1993, 73rd Legislature, Chapter 268, effective August 30, 1993, relating to the codification and adoption of nonsubstantive revisions of the Texas Commission on Human Rights Act, Texas Civil Statutes, Article 5221k (1992). Labor Code-The Texas Labor Code, Title 2, Subtitle A, Chapter 21, sec.sec.21.001-21.306, as enacted by House Bill 752, Acts 1993, 73rd Legislature, Chapter 269, effective August 30, 1993, relating to the codification and adoption of nonsubstantive revisions of the Texas Commission on Human Rights Act, Texas Civil Statutes, Article 5221k (1992). Labor organization -A labor organization engaged in an industry affecting commerce and includes: (A) any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment; (B) any conference, general committee, joint or system board, or joint council so engaged that is subordinate to a national or international labor organization; and (C) an agent of a labor organization. Local commission -Created by a political subdivision or two or more political subdivisions acting jointly pursuant to the Act, Article 4, and recognized as a deferral agency by the United States Equal Employment Opportunity Commission pursuant to the United States Civil Rights Act, Title VII, sec.706(c), as amended by the Equal Employment Opportunity Act of 1972, the Civil Rights Act of 1991, and the Americans with Disabilities Act. Local ordinance -An ordinance adopted and enforced by a local political subdivision that prohibits practices designated as unlawful under the Act or otherwise declared unlawful under federal or state law. National origin -The national origin of an ancestor. Person-One or more individuals or an association, corporation, joint stock company, labor union, legal representative, mutual company, partnership, receiver, trust, trustee, trustee in bankruptcy, unincorporated organization, the state, or a political subdivision or agency of the state. Political subdivision -A county or municipality. Religion-All aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable reasonably to accommodate the religious observance or practice of an employee or applicant without undue hardship on the conduct of the employer's business. Respondent-An employer, employment agency, labor organization, or joint labor-management committee that controls an apprenticeship or other training or retraining program, including on-the-job training programs, or other person who is alleged to have committed an unlawful employment practice in a complaint filed with the commission or deferred by the federal government or the federal government has deferral jurisdiction over the subject matter of the complaint. Sex-"Because of" or "on the basis of sex" includes, but is not limited to, discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits under fringe benefit programs, as other individuals not so affected but similar in their ability or inability to work. An employer is not required by this Act to pay for health insurance benefits for abortion, except if the life of the mother would be endangered were the fetus carried to term. This Act does not preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. 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 June 10, 1994. TRD-9442352 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Chapter 323. Commission 40 TAC sec.sec.323.1-323.4 The Texas Commission on Human Rights adopts amendments to sec.sec.323.1-323.4, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899), and as corrected in the May 10, 1994, issue of the Texas Register (19 TexReg 3597). The rules amendments are justified due to the codification of the Texas Open Meetings Act. Additionally, the amendments were necessary to correct typographical errors in the original text of the rule. There will be no change in how the amended rules will function or be applied as compared to the original rules. No comments were received regarding adoption of the amendments. The amendments are adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate 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 June 10, 1994. TRD-9442353 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Chapter 325. Local Commissions 40 TAC sec.sec.325.2, 325.3, 325.5 The Texas Commission on Human Rights adopts amendments to sec.sec.325.2, 325. 3, and 325.5. Section 325.2 is adopted with changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899), and as corrected in the May 10, 1994, issue of the Texas Register (19 TexReg 3597). Section 325.3 and sec.325.5 are adopted without changes and will not be republished. The amendments are justified due to errors contained in the text of the rule as originally adopted. The amended rules will function the same as the original rules. No comments were received regarding adoption of the amendments. The amendments are adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate rules. sec.325.2. Deferral Procedures. (a) For a complaint filed with the commission over which the federal government has deferred jurisdiction, timeliness of the complaint shall be measured by the date on which the complaint is received by the commission for the purpose of satisfying the filing requirements of the Act, Article 6, sec.6. 01(a). (b) For a complaint deferred to the commission by the federal government, timeliness of the complaint shall be measured by the date on which the complaint is received by the federal government for the purpose of satisfying the filing requirements of the Act, Article 6, sec.6.01(a). (c) For a complaint deferred to the commission by a local commission, timeliness of the complaint shall be measured by the date on which the complaint is received by the local commission for the purpose of satisfying the filing requirements of the Act, Article 6, sec.6.01(a). (d) To encourage the maximum degree of effectiveness by local commissions, the commission shall endeavor to maintain close communication with respect to all matters forwarded to them and shall provide such assistance to local commissions as permitted by law and as is practicable. (e) The Act grants a local commission the exclusive right to take appropriate action within the scope of its powers and jurisdiction to process a complaint deferred by the commission pursuant to the requirements of the Act, Article 4, sec.4.04, and this chapter. (f) A local commission may waive its right to the period of exclusive processing of a complaint provided by the Act with respect to any complaint or category of complaints by deferring a matter under its jurisdiction to the commission pursuant to the Act, Article 4, sec.4.04(c). (g) All complaints received by the commission subject to deferral to a local commission shall be dated and time stamped upon receipt. (h) The original complaint shall be retained in a suspense file by the commission until the local commission has submitted a copy of its final determination to the commission; the commission has reassumed responsibility for the complaint after affording the local commission a reasonable time, but not less than 60 days, to remedy the practice alleged to be discriminatory in the deferred complaint; or the local commission has deferred the matter under its jurisdiction to the commission. (i) A copy of a complaint received by the commission subject to deferral to a local commission shall be transmitted by registered mail, return receipt requested, to the appropriate local commission. Proceedings by the local commission are deemed to have commenced on the date such complaint is mailed. (j) A copy of a complaint deferred to a local commission by federal government over which the commission has deferral jurisdiction shall be transmitted by registered mail, return receipt requested, to the commission by the local commission. (k) The complainant and respondent shall be notified in writing that the complaint received by the commission has been forwarded to the local commission. (l) For purposes of satisfying the requirements of the Act, Article 4, sec.4.04, the commission shall not assume jurisdiction over a complaint deferred to a local commission, except as follows: (1) where the local commission may defer a complaint under its jurisdiction to the commission; (2) where the complaint is received by the commission within 180 days of the alleged violation but beyond the period of limitation of the appropriate local commission; (3) where the local commission has not acted on the complaint pursuant to the requirements of the Act, Article 4, sec.4.04(b), and this chapter. 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 June 10, 1994. TRD-9442354 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Chapter 327. Administrative Review Subchapter A. Administrative Investigation and Review 40 TAC sec.327.1 The Texas Commission on Human Rights adopts an amendment to sec.327.1, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899), and as corrected in the May 10, 1994, issue of the Texas Register (19 TexReg 3597). House Bill 860 required an amendment to subsection (i) regarding notice to respondents of perfected complaints. The rule clarifies that a respondent should receive notice of a perfected complaint within ten days of its receipt by the Commission. The Texas Association of Business suggested subsection (f) be amended to require notice to all parties before a complaint is withdrawn because respondents should receive an administrative determination once an investigation begins. The agency disagreed and voted to leave subsection (f) as it is since no amendment was proposed on April 19, 1994 because it was not required by House Bill 860 or for clarification. The change would also result in delay because it would require republication of the rule before final adoption. The amendment is adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate 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 June 10, 1994. TRD-9442356 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 40 TAC sec.sec.327.2-327.14 The Texas Commission on Human Rights adopts the repeal of sec.sec.327.2-327. 14, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899). These sections are repealed for the reason that they are being submitted as adopted sections which are renumbered and, in part, amended. No comments were received regarding adoption of the repeals. The repeals are adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate 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 June 10, 1994. TRD-9442355 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 40 TAC sec.sec.327.2-327.13 The Texas Commission on Human Rights adopts new sec.sec.327.2-327.13. Sections 327.2, 327.3, 327.5, 327.6, and 327.9 are adopted with changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899). Sections 327.4, 327.7, 327.8, and 327.10-327.13 are adopted without changes and will not be republished. Sections 327.2-327.13 are justified since these rules were not substantively amended but were only renumbered to accommodate new rules dealing with alternative dispute resolution procedures required by House Bill 860. Also, the rules as adopted incorporate government code references that supercede APTRA references. Sections 327.2-327.13 will function the same as the originally adopted rules since the amended rules only clarify and renumber the prior rules. Section 327.2-The Texas Employment Law Council objected to the amendments to subsection (h) which broaden the forms of discovery available to the Commission during its investigation because it could increase the costs of investigations to all parties and detracts from efforts to resolve the complaint through alternative dispute resolution. Section 327.3-No comments were received. Section 327.4-The Texas Association of Business suggested that the rule be amended to require greater detail in the documents dismissing a complaint because the Commission's dismissal may become evidence in a trial and greater detail is important for the fact finder. Sections 327.5-327.8-No comments were received. Section 327.9-The Texas Association of Business requested an amendment to require that a federal action must have already been filed before case records can be released to a party because the time limits may operate as a bar to access in some cases. Sections 327.10-327.13-No comments were received. Section 327.2-The agency believes that the expanded discovery tools will be helpful when dealing with recalcitrant complainants and respondents; these tools are only available for use by the Commission and not the parties; while discovery costs may increase, resolution rates of the cases will be enhanced. Section 327.4-The agency disagreed and adopted the rule as it is since no substantive change was proposed on April 19, 1994. It is not required by House Bill 860 or for clarification. Republication would be required. Further, the level of detail in a dismissal is a matter of administrative discretion and not proper for regulation. Section 327.9-The agency disagreed and adopted the rule as it is since no substantive amendment was proposed April 19, 1994. House Bill 860 does not require this change and it is not needed for clarification. Substantively, the amendment would not change current practice since the Commission must provide the file to a party after any suit is filed. The new rules are adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate rules. sec.327.2. Investigation of a Complaint. (a) After attempting alternative dispute resolution pursuant to sec.sec.327.21-327.31 of this title (relating to Alternative Dispute Resolution), the executive director or his or her designee shall promptly investigate a complaint filed with the commission. (b) The executive director or his or her designee shall promptly investigate the allegations set forth in a complaint if the federal government has referred the complaint to the commission or has deferred jurisdiction over the subject matter of the complaint to the commission. (c) During the course of such investigation, the commission may utilize the services of local commissions or the federal government and may utilize the information gathered by such authorities or agencies. (d) As part of each investigation, the commission may accept any statement of position or evidence with respect to the allegations of the complaint which the complainant or the respondent wishes to submit. (e) As part of each investigation, the commission may require a fact-finding conference with the complainant and the respondent prior to a determination on a complaint. (f) A fact-finding conference is primarily an investigative forum intended to define the issues, to determine which elements are undisputed, and to solicit information and evidence with respect to the allegations in the complaint. (g) The executive director or his or her designee shall conduct the fact- finding conference and determine who shall present information and evidence for the respondent and the complainant during the conference. (h) In connection with the investigation of a complaint, the executive director or his or her designee may request from any person evidence relevant to the investigation of alleged violations of this Act. Requests for evidence may be made in the following manner: (1) oral and video interviews and depositions; (2) written interrogatories; (3) production of documents and records; (4) requests for admissions; (5) on-site inspection of respondent's facilities; (6) written statements on affidavits; or (7) other forms of discovery authorized by Texas Government Code, sec.sec.2001. 081-2001.103 or the Texas Rules of Civil Procedure. (i) In connection with a request for evidence relevant to an investigation of alleged violations of this Act, the commission may establish time requirements for any person responding to such request for evidence. For good cause shown, the executive director or his or her designee may extend such time requirements for a reasonable time. (j) The executive director or his or her designee shall determine the scope and nature of the investigation within the context of the allegations set forth in the complaint or amended complaint. (k) In connection with the investigation of a complaint, the executive director or his or her designee shall at all reasonable times have access to necessary witnesses for examination under oath or affirmation, and the production of records, documents, and other evidence relevant to the investigation of alleged violations of this Act, for inspection and copying. (l) In connection with an investigation of a complaint, any written statement of position submitted by the respondent to the commission setting forth the facts and circumstances relevant to an investigation of alleged violations of this Act shall be under oath or affirmation. sec.327.3. Subpoena. (a) To effect the purposes of this Act pursuant to the Act, Article 3, sec.3.02(a)(7), any commissioner, the Executive Director, or his or her designee, shall have the authority to sign and issue a subpoena to compel attendance of necessary witnesses for examination or testimony under oath or affirmation, and the production of records, documents, and other evidence relevant to the investigation of alleged violations of this Act, for inspection and copying. The issuance of subpoenas shall be governed by Texas Government Code, Chapter 268, Subchapter D, sec.2001.089 and sec.2001. 103. The commission authorizes the executive director, or his or her designee, or a commissioner to exercise this power on behalf of the commission. (b) Notwithstanding the requirements pursuant to any other state law, the subpoena shall state the name and address of its issuer, identify the person or evidence subpoenaed, the person to whom and the place, date, and the time at which it is returnable, or the nature of the evidence to be examined or copied and the date and time when access is requested. A subpoena shall be returnable to the executive director. Neither the complainant nor the respondent shall have the right to demand that a subpoena be issued. (c) Notwithstanding the requirements of any other state law, any person served with a subpoena issued by the commission who intends not to comply therewith shall petition in writing the commission to revoke or modify the subpoena within five working days after receipt of the subpoena. Such petition shall separately identify each portion of the subpoena with which the petitioner does not intend to comply, and shall state, with respect to each such portion, the grounds upon which the petitioner relies. A copy of the subpoena shall be attached. The commission or its designee shall review the petition and make a final determination on revoking or modifying the subpoena. The commission or its designee shall serve a copy of the final determination of the petition upon the petitioner by registered mail, return receipt requested. (d) On a failure to comply with a subpoena, the commission shall apply to the district court of the county in which the person is found, resides, or transacts business, for an order directing compliance pursuant to the Act, sec.8.02(b). sec.327.5. Reasonable Cause Determination. (a) Upon completion of the investigation, if a complaint has not been dismissed or voluntarily resolved through mediation, the commission employee conducting the investigation shall prepare a record of the evidence, including an investigative report with recommendations in the form of a complaint file for review by the executive director. (b) If, after review, the executive director determines that there is reasonable cause to believe that the respondent has engaged in an unlawful employment practice as alleged in the complaint, the executive director shall review the complaint file with a panel of three commissioners. (c) If, after review, at least two of the three commissioners determine that there is reasonable cause to believe that the respondent has engaged in an unlawful employment practice, the executive director shall issue a written determination in the form of a letter of determination. This letter of determination shall incorporate the executive director's finding that the evidence supports the complaint and include an invitation to participate in conciliation. (d) The executive director shall serve a copy of the letter of determination to the complainant and respondent and other agencies as required by law by registered mail, return receipt requested. sec.327.6. Conciliation. (a) Where the commission determines that there is reasonable cause to believe that an unlawful employment practice has occurred or is occurring, it shall endeavor to eliminate such unlawful employment practice by informal methods of conference, conciliation, and persuasion. This authority shall be delegated to the executive director or his or her designee by the commission. (b) Where a determination of reasonable cause has been made, the commission shall attempt to achieve a just resolution of all violations found and to obtain agreement that the respondent will eliminate the unlawful employment practice and provide appropriate relief to the complainant. (c) The executive director or his or her designee shall prepare a written draft of a conciliation agreement that incorporates provisions eliminating the unlawful employment practices and providing appropriate relief for the complainant. The commission shall provide a copy of the draft conciliation agreement to the complainant and respondent. (d) Where practical, the executive director or his or her designee shall conduct the conciliation conference in person with the respondent, but this does not preclude conducting such conciliation conferences by telephone with the respondent or complainant. (e) Where such conciliation attempts are successful, the terms of the conciliation agreement shall be reduced to writing and signed by the respondent, complainant, and the executive director on behalf of the commission. (f) The executive director shall report to the commission the results of successful and unsuccessful conciliation attempts. (g) Where the commission has not successfully negotiated a conciliation agreement between the respondent and complainant, the commission shall so notify in writing the complainant and respondent by registered mail, return receipt requested. Such notification shall inform the complainant of his or her right to file a civil action against the respondent named in the complaint pursuant to the Act, Article 7, sec.7.01(a). The executive director is authorized to issue this notification on behalf of the commission. (h) Proof of compliance with the terms of the conciliation agreement by the respondent shall be obtained by the executive director before the case is closed. sec.327.9. Access to Commission Records. Pursuant to the limitations established by the Texas Commission on Human Rights Act, sec.8.02(a) , the executive director shall, on written request of a party to a complaint filed under the Act, sec.6.01(a), allow the party access to the commission records, unless the complaint has been resolved through a voluntary settlement or conciliation agreement, if: (1) following the final action of the commission, a party to the complaint or the party's attorney certifies in writing that a civil action is to be filed under the Act within 60 days from the date of receipt of the commission's notice of right to file a civil action or a civil action under the Act is pending in state court; or (2) a party to the complaint or the party's attorney certifies in writing that a civil action relating to the complaint is pending in federal court alleging a violation of federal law. 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 June 10, 1994. TRD-9442357 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Subchapter B. Alternate Dispute Resolution 40 TAC sec.sec.327.21-327.31 The Texas Commission on Human Rights adopts new sec.sec.327.21-327.31. Sections 327.21, 327.23, 327.25-327.27, and 327.29 are adopted with changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899), as amended in the May 10, 1994, issue of the Texas Register (19 TexReg 3597). Sections 327.22, 327.24, 327.28, 327. 30, and 327.31 are adopted without changes and will not be republished. Sections 327.21-327.31 are justified because the statutory amendments contained in House Bill 860 required the Commission to promulgate rules governing the use of alternative dispute resolution procedures for complaints filed with the Commission. Sections 327.21-327.31 will function to provide for mediation of certain complaints filed with the Commission. Within ten days of a perfected complaint being filed with the Commission, the Executive Director may refer a case to the Office of Alternative Dispute Resolution for mediation. Any party to a complaint may file objections within five days of receiving notice of the referral to mediation. If the parties are unable to mediate the case within 30 days from the date the matter is referred for mediation, the case will be transferred to a Commission investigator. Commission mediators will be trained in accordance with the Texas Civil Practice and Remedies Code, Chapter 154 and shall not be assigned any duties other than mediation. Information gathered during the course of mediation shall not be disclosed to any person who is not a party to the complaint and shall not be made available to any other Commission personnel should ADR be unsuccessful. In cases where the mediator has a conflict of interest, the Executive Director shall appoint another mediator to handle the case. The rules further provide that the mediator is not a proper party or witness in any subsequent administrative or civil action, including discovery requests, arising from the mediator's participation in mediation. Settlements resulting from mediation may be incorporated in any dispositive documents and may be enforced in the same manner as any other written contract. Section 327. 21-The Texas Association of Business wanted the Commission ADR procedures to be available for complaints being processed by EEOC and local commissions based on public policy considerations. The Texas Natural Resource Conservation Commission noted a conflict between sec.327.21 and sec.327.24 regarding voluntariness of ADR because there is no statutory authority to require use of ADR. Section 327.22-No comments were received. Section 327.23-The Texas Natural Resource Conservation Commission noted conflicting language in the rules regarding voluntariness because of the agency's statutory authority. Further, the time limits were not clear. The Center for Public Policy Dispute Resolution would like the Commission to expand the ADR available beyond mere mediation because House Bill 860 authorizes a broad range of ADR, not just mediation. The Center for Public Policy Dispute Resolution would amend the rules to allow use of ADR at any time because of the statutory language and public policy considerations. Section 327.24-The Texas Natural Resource Conservation Commission and the Center for Public Policy Dispute Resolution noted that the statute requires only voluntary ADR participation. Section 327.25-The Texas Employment Law Council and the Center for Public Policy Dispute Resolution noted that the statute requires only voluntary ADR participation. The Texas Association of Business would amend the rule to allow use of ADR at any time because of the statutory language and policy considerations. Section 327.26-The Center for Public Policy Dispute Resolution suggested that the rule provide that mediators not also be assigned to investigate complaints in order to ensure strict neutrality of the mediators. The Texas Natural Resource Conservation Commission would amend the rule to provide for outside mediators or swapping mediators with other agencies when a party objects to a TCHR mediator in order to ensure neutrality and to give parties an alternative to using TCHR mediators. The Center for Public Policy Dispute Resolution would amend the rule to provide for outside mediators or swapping mediators with other agencies when a party objects to a TCHR mediator; also, the Center suggested that mediators have the qualifications set forth in the Texas Civil Practice and Remedies Code, Chapter 154. Section 327.27-The Center for Public Policy Dispute Resolution and the Texas Association of Business believe the rule should be changed to eliminate the possibility of disclosure to the Executive Director or his or her designee, of information relative to mediations in order to conform rules with the ADR statute and public policy, and to encourage frank discussions among the parties. The Texas Association of Business requested that the rule substitute "alternative dispute resolution" for "settlement" in subsection (c), line 4, for consistency. The Texas Natural Resource Conservation Commission suggested that subsection (c) be amended to permit mediators to have access to evidence so the mediator can be prepared prior to the mediation. Section 327.28-The Texas Natural Resource Conservation Commission suggested dividing sec.327.28 and sec.327.29 and renaming the proposed sections for clarification. The Texas Natural Resource Conservation Commission suggested that subsection (f) be amended to remove the need for the mediator's approval of third parties being present to ensure mediator's appearance of neutrality. The Texas Natural Resource Conservation Commission suggested adding, "The parties agree that mediators shall not be subjected to requests for discovery, deposition or live testimony, in any subsequent administrative or legal proceeding arising from the subject matter of the mediation," to ensure mediators will not be vulnerable to litigation because of their participation in TCHR mediation proceedings. Section 327.30-The Texas Natural Resource Conservation Commission suggested that agreements resulting from mediation remain confidential based on policy grounds. The Center for Public Policy Dispute Resolution requested that subsections (a) and (b) be amended to mandate that the settlement terms be incorporated into the final disposition papers of the Commission if the parties agree based on policy grounds. Section 327.31-The Texas Natural Resource Conservation Commission suggested amendments to ensure confidentiality of the ADR process. Section 327.21-The Commission cannot enact the Texas Association of Business proposal because the Commission has no statutory authority over EEOC or local commissions. The agency agreed to amend sec.327.21 and sec.327.24 to reflect voluntary participation. Section 327.23-The Commission amended all rules to reflect that participation is voluntary and clarified the time limits as recommended by the Texas Natural Resource Conservation Commission. While all forms of ADR are encouraged by House Bill 860, nothing in the Act mandates that the Commission use all forms. The Commission has discretion to implement the amendments and mediation is the form selected. Nothing in the Act, however, prevents the parties from using other forms of ADR outside the Commission processes. Therefore, the Commission declined to adopt the proposal of the Center for Public Policy Dispute Resolution. The agency believes that use of mediation should be available at the beginning of the complaint process before any investigation begins. By putting this procedure at the front end of the process, it will not be confused with the subsequent investigation on the merits of the complaint. The parties remain free under the statute to settle voluntarily a case after opportunity for mediation but before a finding of cause or no cause. After a cause finding, the statute requires attempts at conciliation. Moreover, nothing would prohibit the use of ADR procedures outside the commission process. The process contemplated is within the reasoned discretion of the Commission and takes into account the Commission's limited resources and need to complete investigations if the parties fail to negotiate a resolution in the early stages after a complaint is filed. Thus, the proposal of the Texas Association of Business and the Center for Public Policy Dispute Resolution was rejected. Section 327.24-The agency agreed and the proposed amendment accomplishes what the Texas Natural Resource Conservation Commission and the Center for Public Policy Dispute Resolution proposed in terms of voluntary participation. Section 327.25-The agency agrees that participation in ADR is voluntary and the proposed amendment accomplishes what the Texas Employment Law Council and the Center of Public Policy Dispute Resolution propose. The agency disagreed with the Texas Association of Business and believes that use of mediation should be available at the beginning of the complaint process before any investigation begins. By putting this procedure at the front end of the process, it will not be confused with the subsequent investigation on the merits of the complaint. The parties remain free under the statute to settle voluntarily a case after opportunity for mediation but before a finding of cause or no cause. After a cause finding, the statute requires attempts at conciliation. Moreover, nothing would prohibit the use of ADR procedures outside the commission process. The process contemplated is within the reasoned discretion of the Commission and takes into account the Commission's limited resources and need to complete investigations if the parties fail to negotiate a resolution in the early stages after a complaint is filed. Section 327.26-The agency agreed with the Center for Public Policy Dispute Resolution's suggestion and the language is so amended to provide that TCHR mediators will perform no other duties. The agency does not agree with the Center for Public Policy Dispute Resolution and the Texas Natural Resource Conservation Commission concerning the use of outside mediators at this time. Outside mediators will not be as accountable to the Commission and will increase the costs to the agency and the parties. The statute does not prohibit the parties to a complaint from using other ADR programs at their own expense. The amendments clarify that the TCHR mediators will be trained to state standards as requested by the Center for Public Policy Dispute Resolution. Section 327.27-The agency agreed with the Center for Public Policy Dispute Resolution and the Texas Association of Business and the amendments prohibit disclosure of information to any other commission personnel. The agency accepted the Texas Association of Business' recommendation regarding subsection (c). The agency rejected the Texas Natural Resource Conservation Commission's recommendation about mediator's access to evidence because the Commission believes that mediators are not fact finders and should not sit in judgment on the evidence. Rather, mediators should seek resolution without assigning blame in the process. Obviously, basic information about the parties will be available. Section 327.28-The Texas Natural Resource Conservation Commission recommendation to revise this section is not substantive and is unnecessary. Section 327.29-The Texas Natural Resource Conservation Commission recommendation to revise this section is not substantive and is unnecessary. The agency disagreed with the Texas Natural Resource Conservation Commission suggestion that mediator's not be able to approve third party access to mediation because the mediator must be able to maintain some control of the mediation process. The agency agreed with the Texas Natural Resource Conservation Commission's proposed amendment that mediators not be subject to discovery requests. Section 327.30-No change is necessary as suggested by the Texas Natural Resource Conservation Commission because the statute already makes this information confidential. The agency agreed with the Center for Public Policy Dispute Resolution's proposal regarding the incorporation of settlement terms in final documents and the final rule reflects this change. Section 327.31-The Texas Natural Resource Conservation Commission's suggestion is not necessary because the TCHRA already provides for confidentiality of case files and settlement attempts. The new rules are adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate rules. sec.327.21. Policy. It is the policy of this State to encourage the peaceable resolution of alleged unlawful employment practices, including alternative dispute resolution of issues and the early settlement of complaints through voluntary settlement procedures. sec.327.23. Voluntary Settlement Through Alternative Dispute Resolution. (a) Within ten days of the commission's receiving a perfected complaint and prior to the completion of an investigation, the executive director or his or her designee may invite both the complainant and the respondent to attempt voluntarily to resolve their dispute through alternative dispute resolution. If alternative dispute resolution efforts are not successful within 30 days of the complaint being referred to the office of alternative dispute resolution, the case will be forwarded to appropriate commission personnel for completion of an investigation. (b) The executive director or his or her designee shall have the authority to sign on behalf of the commission any voluntary agreement to resolve the dispute which is agreeable to both the complainant and the respondent. (c) Any voluntary agreement to resolve the dispute to which the commission is a party shall contain a provision that the commission has made no judgment on the merits of the complaint and that such agreement shall not affect the processing of any other complaint, including, but not limited to, allegations which are like or related to the individual allegations resolved. (d) The commission shall limit its undertaking in such voluntary agreement to an agreement not to process that complaint further. sec.327.25. Notification and Objection. (a) If the commission or its designee determines that a pending complaint is appropriate for mediation under sec.327.24 of this title (relating to Referral of Pending Complaints for Alternative Dispute Resolution), the commission or its designee shall mail notice to the parties of its determination within ten days of receiving a perfected complaint. (b) Any party may, within five days after receiving the notice under subsection (a) of this section, file a written objection to the referral. (c) If the commission or its designee finds that there is a reasonable basis for an objection filed under subsection (b) of this section, the commission or its designee shall withdraw the dispute from mediation. Mediators. The commission or its designee shall assign such impartial commission personnel to the office of alternative dispute resolution as are necessary to mediate the complaints referred to that unit. Commission personnel assigned to serve as mediators shall not otherwise be involved with investigating complaints filed with the Commission. Commission personnel assigned as mediators shall have the qualifications prescribed in Texas Civil Practice and Remedies Code, Chapter 154. sec.327.27. Standards and Duties of Mediators. (a) A person appointed to facilitate an alternative dispute resolution procedure under this subchapter shall encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement. Mediators shall: (1) utilize the mediation process voluntarily to resolve complaints of employment discrimination filed with the commission; (2) conduct on-site mediation of complaints pursuant to appropriate procedures, including phone and mail contact with the respondent and complainant regarding the dispute resolution process within 30 days from the date of referral to the office of alternative dispute resolution; and (3) issue and maintain all appropriate documents during the 30-day period in accordance with all statutory and procedural requirements. (b) Unless expressly authorized by the disclosing party, the mediator may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. (c) Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the alternative dispute resolution process, are confidential and may never be disclosed to anyone. Any evidence received by the commission from the complainant or respondent shall not be provided to the mediators assigned to the office of alternative dispute resolution. sec.327.29. Conduct and Decorum. (a) Whenever the parties have agreed to mediation they shall be deemed to have made these rules, as amended and in effect as of the date of the submission of the dispute, a part of their agreement to mediate. (b) The mediator shall not serve as a mediator in any dispute in which he has any financial or personal interest in the result of the mediation. Prior to accepting an appointment, the mediator shall disclose to the Executive Director and the parties any circumstance likely to create a presumption of bias or prevent a prompt meeting with the parties. In such an event, the Executive Director shall immediately appoint another mediator to the case. (c) The mediator does not have the authority to decide any issue for the parties, but will attempt to facilitate the voluntary resolution of the dispute by the parties. (d) Party representatives must have authority to settle and all persons necessary to the decision to settle shall be present. The names and addresses of such persons shall be communicated in writing to all parties and the mediator. (e) The mediator shall fix the time of each mediation session. The mediation shall be held at the office of the commission, or at any other convenient location agreeable to the mediator and the parties, as the mediator shall determine. (f) Mediation sessions are private. The parties and their representatives may attend mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the mediator. (g) There shall be no stenographic record of the mediation process and no person shall tape record any portion of the mediation session. (h) No subpoenas, summons, complaints, citations, writs or other process may be served upon any person at or near the site of any mediation session upon any person entering, attending or leaving the session. (i) The mediation shall be terminated: (1) by the execution of a settlement agreement by the parties; (2) by declaration of the mediator to effect that further efforts at mediation are no longer worthwhile; or (3) after the completion of one full mediation session, by a written declaration of a party or parties to the effect that the mediation proceedings are terminated. (j) The mediator is not a necessary or proper party in judicial proceedings relating to the mediation. Neither the mediator nor the commission or its designees shall be liable to any party for any act or omission in connection with any mediation conducted under these rules. (k) Commission mediators shall not be subjected to requests for discovery, deposition or live testimony, in any subsequent administrative or legal proceeding arising from the subject matter of the mediation. (l) The mediator shall interpret and apply these 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 June 10, 1994. TRD-9442358 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Chapter 329. Judicial Action 40 TAC sec.329.1 The Texas Commission on Human Rights adopts an amendment to sec.329.1, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899). The change is justified to correct grammatical errors in the rule as originally adopted. There will be no change in how the rule will function as compared to the original rule. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate 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 June 10, 1994. TRD-9442359 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Chapter 331. Reports and Recordkeeping 40 TAC sec.331.1 The Texas Commission on Human Rights adopts an amendment to sec.331.1, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899). The change is justified to correct grammatical errors in the rule as originally adopted. There will be no change in how the rule will function as compared to the original rule. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate 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 June 10, 1994. TRD-9442360 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534 Chapter 333. Conformity 40 TAC sec.333.1 The Texas Commission on Human Rights adopts an amendment to sec.333.1, without changes to the proposed text as published in the April 19, 1994, issue of the Texas Register (19 TexReg 2899). The change is justified to correct grammatical errors in the rule as originally adopted. There will be no change in how the rule will function as compared to the original rule. No comments were received regarding adoption of the amendment. The amendment is adopted under Article 5221k, sec.3.02(10), which provides the commission with the authority to promulgate 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 June 10, 1994. TRD-9442361 William M. Hale Executive Director Texas Commission on Human Rights Effective date: July 5, 1994 Proposal publication date: April 19, 1994 For further information, please call: (512) 837-8534