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 3. Boll Weevil Eradication Program Subchapter E. Boll Weevil Quarantine 4 TAC sec.sec.3.100-3.107 The Department of Agriculture (the department) adopts new sec.sec.3.100-3.107, concerning quarantine rules governing movement of infested cotton or other regulated articles into, within or through established eradication zones, without changes to the proposed text as published in the August 19, 1994, issue of the Texas Register (19 TexReg 6501). The new sections are adopted in order to ensure the success of the Texas Boll Weevil Eradication effort is not jeoporized by reinfestation due to movement of regulated articles. Section 3.100 identifies the quarantined pest. Section 3.101 adds definitions concerning cotton products. Section 3.102 and sec.3.103 designate what areas of the state and what articles are regulated. Sections 3.104-3.106 specify instances in which regulated articles can be moved under permit after the department's inspection. Section 3.107 establishes penalties for violations of quarantine regulations. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Agriculture Code, sec.74.122, which provides the Texas Department of Agriculture with the authority to adopt rules relating to quarantining areas of the state that are infested with the boll weevil. 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 October 4, 1994. TRD-9449059 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 25, 1994 Proposal publication date: August 19, 1994 For further information, please call: (512) 463-7583 Chapter 15. Consumer Services Division Ranch Scales 4 TAC sec.sec.15.171-15.183 The Texas Department of Agriculture (the department) adopts new sec.sec.15. 171-15.183, concerning the licensing of private individuals to inspect and test ranch scales, without changes to the proposed text as published in the July 15, 1994, issue of the Texas Register (19 TexReg 5434). The new sections are adopted in order to implement the new ranch scale testing and inspection program authorized in the Texas Agriculture Code, sec.sec.13.351- 13.358. The department is adopting the sections in order to allow private individuals to inspect and test scales located on private ranches. The new sections provide definitions for use in sec.sec.15.171-15.183, provide general requirements for licensees, provide for establishment of late fees, provide requirements for licensee's representatives and minimum equipment and standards, provide insurance requirements and authority and responsibilities of licensees, provide for certification of standards and test equipment, establish the department's authority to inspect a licensee's procedures, facilities and equipment and it's denial, suspension and revocation authority, and provide for administrative, civil or criminal penalties for violations of the sections. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Agriculture Code, sec.13.355, which provides the Texas Department of Agriculture with the authority to adopt rules for the inspection and testing of ranch scales; and sec.13.354, which provides the department with the authority to establish by rule a non-refundable annual fee not to exceed $200 for licensing persons who inspect and test ranch scales. 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 October 7, 1994. TRD-9449234 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: October 28, 1994 Proposal publication date: July 15, 1994 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT Part I. Texas Department of Housing and Community Affairs Chapter 9. Texas Community Development Program Subchapter A. Allocation of Program Funds 10 TAC sec.sec.9.1-9.4, 9.6, 9.7, 9.9 The Texas Department of Housing and Community Affairs (TDHCA) adopts amendments to sec.sec.9.1, 9.2, 9.4, 9.6, 9.7, and 9.9; and adopts new sec.9.3, concerning the allocation of Community Development Block Grant (CDBG) non- entitlement area funds under the Texas Community Development Program, without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6966). The amendments establish the standards and procedures by which TDHCA will allocate fiscal year 1994 economic development, disaster relief, and urgent need funds and fiscal years 1994 and 1995 community development, colonia, and planning/capacity building funds. The new section establishes the standards and procedures by which TDHCA will allocate fiscal years 1994 and 1995 Young v. Cisneros funds. The amendments make changes to the application procedures and selection criteria for the existing program fund categories. The new section establishes Young v. Cisneros fund application requirements, selection procedures and scoring criteria. No comments were received regarding adoption of the amendments and the new section. The amendments and new section are adopted under Texas Government Code, Chapter 2306, sec.2306.098, which provides TDHCA with the authority to allocate Community Development Block Grant non-entitlement area funds to eligible counties and municipalities according to department 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 October 7, 1994. TRD-9449249 Henry Flores Executive Director Texas Department of Housing and Community Affairs Effective date: October 31, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 475-3948 TITLE 13. CULTURAL RESOURCES Part I. Texas State Library and Archives Commission Chapter 6. State Records Records Retention Schedules 13 TAC sec.sec.6.1-6.10 The Texas State Library and Archives Commission adopts new sec.sec.6.1-6.10, concerning requirements for the submission of records retention schedules by state agencies to the director of the records management division of the Texas State Library. New sec.6.8 and sec.6.10 are adopted with changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5921). New sec. sec.6.1-6.7 and 6.9 are adopted without changes. Adoption of the sections is justified to enable state agencies to fulfill their obligations to develop and submit records retention schedules to the director of the records management division of the Texas State Library under the Government Code, sec.441.037(3). The sections formally promulgate standards and procedures, previously issued by the director and used by state agencies for the past several years in the records scheduling process, as administrative rules. Certain records listed on schedules submitted by state agencies must be retained for minimum periods of time prescribed in the Texas State Records Retention Schedule in Figure 1 of sec.6.10. After approval, the schedules may be used for specified periods by the agencies as the basis for the destruction or archival preservation of state records without additional authorization from the Texas State Library. Agencies without approved schedules must seek authorization for the destruction of any state record. Changes were made to sec.6.8 as the result of staff recommendation. The commission is adopting sec.6.8 with changes to the citation for the national standard referred to in subsection (b)(1) of the section. The wording is amended to reflect the most current revision of the standard and to prevent the automatic adoption of future revisions to the standard prior to their review by the commission. Changes were made to the Texas State Records Retention Schedule (Figure 1 of sec.6.10) as the result of commission action and public comment. Prior to approving adoption of sec.6.10, the commission made the following changes to the schedule. A description is added to item number 1.1.024 (Planning Records) to distinguish these general administrative planning records from other types of planning records listed elsewhere in the schedule. The description for item number 5.2.002 (Building Construction Project Files) is amended to remove reference to contracts, surety bonds, and inspections reports. These records are now included in new item number 5.2.028 (Building Construction Contract and Inspection Records) with a retention period of life of asset plus ten years. Appropriate cross-reference notes are added to item numbers 1.1.042 (Surety Bonds), 5.1.001 (Contracts and Leases), 5.2.002 (Building Construction Project Files), 5.2.003 (Building Plans and Specifications), and 5.2.028 (Building Contract and Inspection Records) to denote the interrelationship among these records series. Certain item numbers in the proposed schedule included an asterisk that indicated that all audit requirements would be met prior to the disposal of the record. The Office of the State Auditor suggested that the asterisk retention code be clarified to make it clear that if a litigation, claim, negotiation, audit, or other action had not been initiated before the expiration of the retention period for a record denoted with an asterisk, the record could be destroyed at the expiration of the retention period. The presence of the asterisk in prior versions of the schedule, issued by the director of the records management division as procedural standards, had led to many questions from state agencies to the State Auditor concerning the audit status of records. The Office of the State Auditor believed a clarification of the asterisk code would relieve that office and other state agencies of an unnecessary burden. After study, commission staff recommended that all asterisks be dropped from the schedule and a caution statement added concerning circumstances in which a record could not be destroyed although its retention period on the Texas State Records Retention Schedule or on an agency's approved records retention schedule had expired. The Office of the State Auditor, which by law is one of the parties that must approve a state agency's records retention schedule before it can be used as authority to destroy records, concurred with the suggestion of commission staff, and wording for the caution statement was devised and agreed to by both agencies. Consequently, a caution statement is included on a new page ii of the Texas State Records Retention Schedule and reference is made to that statement at the bottom of each page of the schedule proper. The asterisk is removed from all item numbers in the schedule and explanations of its meaning are removed from each page of the schedule proper and from the introduction to the schedule. Language is also added to the introduction to indicate that the mere deletion of an asterisk is not enough to merit that an item number have a bullet, a symbol used to indicate records series new to this version of the schedule or ones whose descriptions or retention periods have changed. Comments were received from the Office of the State Auditor concerning adoption of the sections. The new sections are adopted under the Government Code, sec.441.037 and sec.441.054, which provides the Texas State Library and Archives Commission with the authority to issue rules, standards, and procedures for the efficient and economical management of state records and for the preservation of those that are essential. sec.6.8. Implementation of Certified Records Retention Schedules. (a) An agency must establish policies and procedures to ensure state records are maintained until the expiration of the retention periods on its records retention schedule. (b) Final disposition of state records must ensure that: (1) records having archival value and scheduled to be preserved at the State Archives are transferred to the archives on paper or microform that meets the specifications in American National Standard for Imaging Media (Film)-Silver- Gelatin Type -Specifications for Stability (ANSI IT9. 1-1992) or in another medium with prior approval of the state archivist; (2) records scheduled for destruction are disposed of in a manner that ensures protection for any sensitive or confidential information; and (3) the final disposition of records is documented. sec.6.10. Texas State Records Retention Schedule. The retention periods for and disposition of certain state records must be in accordance with the following Texas State Records Retention Schedule. Figure 1: 13 TAC sec.6.10. 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 October 3, 1994. TRD-9449005 Raymond Hitt Assistant State Librarian Texas State Library and Archives Commission Effective date: October 24, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 463-5460 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 20. Administration Subchapter B. Access to and Charges for Records 16 TAC sec.sec.20.101, 20.105, 20.110, 20.115, 20.120 The Railroad Commission of Texas adopts new sec.sec.20.101, 20.105, 20.110, 20.115, and 20.120, concerning the provision of and payment for copies of public records on file with the commission, and new Subchapter B, relating to access to and copies of public records, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6883). The new rules specify the charges for providing copies of public records and defines words and terms used in the section. Unless actual costs to the commission differ from those calculated by the general services commission, the proposed rules generally follow general services recommendations with two exceptions: the commission's copy charges for all readily available information is the same, without regard to the number of pages requested. Likewise, there is no access charge for readily available information, regardless of the number of pages involved. The public will be charged the actual cost to the commission of materials, such as video or audio cassettes and diskettes as well as certain services. The commission is restricted by Texas Civil Statutes, Article 6447j to charging $5.00 per each half hour for research time spent by commission employees on open records requests. Accordingly, the proposed personnel time of $17.40 per hour for processing information requests does not include time spent for research. Research time will continue to be charged at the $5.00 per each half hour rate. The new rules allow for a more detailed list of charges for copies of public information with charges for standard-sized copies consistent with those recommended by the general services commission. The charges continue to reflect the commission's practice of charging actual costs associated with providing public information under the Open Records Act. No comments were received regarding adoption of the new sections. The new sections are adopted under Government Code, Chapter 552, Subchapter F and Acts 1993, 73rd Legislature, Chapter 428, sec.5, which requires state agencies to promulgate rules setting out charges for copies of public records. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1994. TRD-9449118 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Effective date: October 26, 1994 Proposal publication date: September 2, 1994 For further information, please call: (512) 463-7008 Part VIII. Texas Racing Commission Chapter 303. General Provisions Subchapter A. Organization of the Commission 16 TAC sec.303.9 The Texas Racing Commission adopts an amendment to sec.303.9, concerning records, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5684). The amendment is adopted to ensure the commission's charges for copies of open records will be consistent with applicable state law. The amendment adopts the suggested charges promulgated by the General Services Commission for providing copies of public information. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; Texas Government Code, sec.552.261 et seq, which requires the commission to adopt rules relating to charges for copies of records; and Chapter 428, Acts of the 73rd Legislature, Regular Session, (1993), sec.5, which requires the commission to adopt rules relating to charges for copies of records. sec.303.9. Records. (a)-(c) (No change.) (d) A person requesting to inspect a commission record must pay all costs involved in preparing or copying the record. The commission adopts the suggested charges promulgated by the General Services Commission for providing copies of public information. (e)-(f) (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 September 28, 1994. TRD-9449060 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Chapter 305. Licenses for Pari-mutuel Racing Subchapter C. Racetrack Licenses General Provisions 16 TAC sec.305.62 The Texas Racing Commission adopts an amendment to sec.305.62, concerning criteria and burden of proof, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5685). The amendment is adopted to ensure that pari-mutuel racing with all its attendant economic benefits will continue at Class 1 racetracks in the event of a foreclosure. The amendment includes persons who hold a leasehold interest in a racetrack facility in the list of those who can seek relief from the commission after a foreclosure. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.03, which authorizes the commission to adopt rules for applications for racetrack licenses. 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 September 28, 1994. TRD-9449061 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Subchapter F. Other Licenses 16 TAC sec.305.301 The Texas Racing Commission adopts an amendment to sec.305.301, concerning interim licenses to conduct race meetings, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5685). The amendment is adopted to ensure that pari-mutuel racing with all its attendant economic benefits will continue at Class 1 racetracks in the event of a foreclosure. The amendment broadens the eligibility requirements for obtaining an interim license to conduct a race meeting. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.7.02, which authorizes the commission to set the eligibility requirements for other licenses issued by the commission. 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 September 28, 1994. TRD-9449062 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter B. Horse Racetracks Operations 16 TAC sec.309.200 The Texas Racing Commission adopts an amendment to sec.309.200, concerning stakes and other prepayment races, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5686). The amendment is adopted to ensure that funds invested by horse owners in stakes races will be guaranteed. The amendment makes an association responsible for the payment of all purse money for stakes races conducted at their facility or which the association has agreed to conduct. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1994. TRD-9449063 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Chapter 313. Officials and Rules of Horse Racing Subchapter B. Entries, Declarations, and Allowances Entries 16 TAC sec.313.103 The Texas Racing Commission adopts an amendment to sec.313.103, concerning the eligibility requirements for a horse to enter a race, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5686). The amendment is adopted to ensure that the commission's eligibility requirements will be easier to understand and the commission's rules will be internally consistent. The amendment deletes the requirement of a negative test for equine infectious anemia as a condition of eligibility to enter. The commission's rules still require proof of a negative test for equine infectious anemia before a horse may enter an association's grounds. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1994. TRD-9449064 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Subchapter C. Claiming Races 16 TAC sec.313.308 The Texas Racing Commission adopts an amendment to sec.313.308, concerning restrictions on subsequent use of a horse claimed in a claiming race, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5687). The amendment is adopted to reduce the number of fraudulent claims filed for horses. The amendment restricts the eligibility of a claimed horse to enter certain starter races for 30 days after the horse was claimed. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1994. TRD-9449065 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Subchapter D. Running of the Race Jockeys 16 TAC sec.313.409 The Texas Racing Commission adopts an amendment to sec.313.409, concerning jockey mount fees, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5687). The amendment is adopted to ensure that jockeys are paid fairly for their services. The amendment raises the minimum payment for jock mounts to $33. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1994. TRD-9449066 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Chapter 319. Veterinary Practices and Drug Testing Subchapter B. Treatment of Horses 16 TAC sec.319.111 The Texas Racing Commission adopts an amendment to sec.319.111, concerning the bleeders and furosemide (Lasix) program, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5687). The amendment is adopted to ensure the procedures relating to the bleeder's program are less cumbersome, thereby increasing the number of horses available to race. The amendment modifies the requirements for admitting a horse to the bleeder's program. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety; and sec.14.03, which authorizes the commission to adopt rules relating to medicating racehorses. 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 September 28, 1994. TRD-9449067 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 16 TAC sec.319.112 The Texas Racing Commission adopts an amendment to sec.319.112, concerning unlicensed veterinary practices, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5688). The amendment is adopted to ensure the commission's rules are consistent with other agencies with overlapping jurisdiction. The amendment makes the commission's rule regarding unlicensed veterinary practices consistent with the rules of the State Board of Veterinary Medical Examiners. Oral comments were received from a representative of the Texas Horsemen's Benevolent and Protective Association. The representative stated his concern that because of the broad language in the applicable rules of the State Board of Veterinary Medical Examiners, the commission's amendment would unduly hamper a trainer's ability to perform effective treatment for the racehorses under the trainer's care. The commission received an oral response to the THBPA comments from a representative of the State Board of Veterinary Medical Examiners. The response pointed out that the restrictions in the State Board's rules do not apply to the horse's owner or a designated representative of the horse's owner. Based on the response from the State Board, the commission disagreed with the THBPA comment as originally stated and adopted the amendment as proposed. The amendment is adopted under the Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety; and sec.14.03, which authorizes the commission to adopt rules relating to medicating racehorses. 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 September 28, 1994. TRD-9449068 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter B. Distribution of Pari-mutuel Pools 16 TAC sec.321.118 The Texas Racing Commission adopts the repeal of sec.321.118, concerning the national pick seven wager, without changes to the proposed text as published in the July 29, 1994, issue of the Texas Register (19 TexReg 5821). The repeal is adopted to ensure the commission's rules are accurate and internally consistent. The repeal eliminates the procedures for paying out a wager that was adopted solely for a specific set of races conducted in 1991 and which is no longer necessary. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the planning, construction, and operation of a racetrack to preserve and protect the public health, welfare, and safety; sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering; and sec.11.011, which authorizes the commission to adopt rules to regulate pari-mutuel wagering on simulcast races. 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 September 28, 1994. TRD-9449069 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: November 1, 1994 Proposal publication date: July 29, 1994 For further information, please call: (512) 794-8461 TITLE 22. EXAMINING BOARDS Part XVI. Texas State Board of Physical Therapy Examiners Chapter 323. Powers and Duties of the Board 22 TAC sec.323.4 The Texas State Board of Physical Therapy Examiners adopts new sec.323.4, concerning Applications Review Committee, with changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3539). This rule is being adopted to expand and clarify the rules. The rule is necessary to allow for an orderly and consistent review of educational credentials of applicants. In the past, the board has received conflicting reports from various creditialing agencies, as well as reports from creditialing agencies that, on their face, did not comply with the guidelines of the board. It is important to the board that the reports of crediating agencies comply with the board's guidelines, since the ultimate authority to issue licenses resides in the board, not the crediating agencies. A subcommittee of the board is necessary to assist the agency staff in making decisions regarding the review of the crediating agencies. The subcommittee, in compliance with the open meetings act, will meet to assist the agency staff. Additionally, the subcommittee will ensure consistent review by the board. If decisions are made by the subcommittee that an applicant's crediatials are not equivalent to the required U.S. program, that applicant has the right to request a hearing at the State Office of Administrative Hearings. Because a contested case procedure is then involved, it is best that a subcommittee of the full board, instead of the full board, be involved in those initial decisions prior to commencing the procedures at the State Office of Administrative Hearings. Finally, the rule establishes a reasonable time interval for the agency to review potential credentialing evaluators and to provide for the opportunity for more evaluators to be approved as board crediating agencies. This rule will establish a committee to review the educational credentials of applicants and potential credentialing evaluators. Comments received: 1) This section provides for delegation of authority by the board to a subcommittee to review credentials for the licensure application processes. The Physical Therapy Practice Act does not provide for such delegation and the rule, therefore, exceeds the statutory authority of the Board. 2) The section does not adequately define "good cause." 3) The time allowed before the Applications Review Committee would review potential credentialing evaluators is too long. Comments against the rule were made by the Texas Chiropractic Association and the Texas Hospital Association. This agency responds: 1) Neither the board's enabling act nor the Open Meetings Act prohibits the formation of a subcommittee by the board to perform some of the board's functions. This agency does not agree that the Physical Therapy Practice Act prohibits any such delegation of authority by the board to a subcommittee to review credentialing agencies for the licensure application process. Indeed, since a denial of an application entitles the applicant to seek a contested case hearing at the State Office of Administrative Hearings, it is preferable for a subcommittee of the board, and not the full board, to be involved in the initial decisions regarding an applicant's credentials. 2) The board agrees with the commenter that the phrase "good cause" is not defined and, moreover, the board believes it is not necessary and will delete it. 3) Since the board met on September 29, 1994 to review this proposed rule for final adoption, it was not possible to make the rule (and the deadlines) go into effect in September 1994. Additionally, the rule provides for regular intervals for the board to review potential evaluators and to add them to the list of approved credentialing agencies. In past years, the board has received evaluations from credentialing agencies that did not comply with the board's guidelines. It is imperative that a credentialing agency follow the board's guidelines. The new section is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, sec.4(a), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.323.4. Applications Review Committee. (a) The Applications Review Committee is established to review the educational credentials of an applicant. If it is determined that a board-approved credentialing evaluator failed to adhere to the guidelines established by sec.329.5(g) (relating to Licensing Procedures for Foreign-Trained Applicants), the Applications Review Committee may overrule the credentialing evaluation of an applicant. (b) The Applications Review Committee by September 1, 1995 will have reviewed potential credentialing evaluators and have made a recommendation to the board as to which evaluator(s) should be board-approved. The board must then adopt an evaluator(s) by rule. (c) The Applications Review Committee by September 1, 1996 will have reviewed potential credentialing evaluators and have made a recommendation to the board as to which evaluator(s) should be board-approved. The board must then adopt an evaluator(s) by rule. (d) The Applications Review Committee by September 1, 1998 will have reviewed potential credentialing evaluators and have made a recommendation to the board as to which evaluator(s) should be board-approved. The board must then adopt an evaluator(s) by rule. Thereafter, the Applications Review Committee on a biennial basis will review potential credentialing evaluators and make a recommendation to the board as to which evaluator(s) should be board-approved, and on a biennial basis the board will adopt an evaluator(s) by rule. (e) The Applications Review Committee may conduct the reviews of credentialing evaluators more or less frequently. 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 October 5, 1994. TRD-9449111 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: October 26, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 443-8202 Chapter 329. Licensing Procedure 22 TAC sec.329.3, sec.329.5 The Texas State Board of Physical Therapy Examiners adopts amendments to sec.329.3, concerning second temporary licenses, without changes and sec.329.5, concerning licensing procedures for foreign-trained applicants, with changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3540). This rule will expand and clarify the rules. Section 329.3 is being amended to eliminate the issuance of second temporary license. Section 329.5 is being amended to clearly identify the board-approved credentialing entity which will evaluate the education of foreign-trained applicants. Comments were received only on sec.329.5. This rule does not define the term "degree" as it relates to physical therapy, and, therefore, is deceptive when associated with the language concerning 60 academic semester credits. The board does not have the jurisdiction to acknowledge 60 hours of college credit as a Physical Therapy degree and this rule is confusing and, perhaps, misleading. The above comment was made by the Texas Chiropractic Association. The agency responds that the phrase "U.S. degree in physical therapy" has been deleted. The credentialing agency needs to report the grades as either A, B, C, D, F, credit, no credit, pass or fail. It is important, if the credentialing agency is reporting a course grade in letter form, that the letter does not include a minus or plus notation. The board believes that accredited U.S. programs do not allow credit for courses in which the student has obtained a grade of D or below. Therefore, the rule makes clear that the credentialing agency may not consider any courses in which the applicant has not obtained a grade of C or above in determining whether the applicant completed the required 72 hour minimum of professional education in physical therapy. It is important for the credentialing agency to clarify for the board what credit was given for each course and to identify the grades given for each course. The board needs the information so it can properly discharge its duties in reviewing the recommendation of a credentialing agency as to whether the applicant has completed a program that is equivalent to an accredited program. The amendments are adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, sec.4(a), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.329.5. Licensing Procedures for Foreign-Trained Applicants. (a) The provisions of sec.329.1 of this title (relating to General Licensing Procedure) apply to foreign-trained applicants with the exception of sec.329.1(1)(a)-(c). (b) The foreign-trained applicant's transcripts will be evaluated by a board- approved credentialing entity. The board-approved credentialing entity is International Credentialing Associates (ICA). This entity will determine if the education is equivalent to a U.S. degree in physical therapy and if the applicant has a minimum of 60 academic semester credits or the equivalent from an accredited institution of higher learning. In the event that the board- approved entity in an evaluation does not adhere to the guidelines of sec.329.5(g), the Applications Committee can override the evaluation. An evaluation by a board-approved education credentialing agency is valid for the purpose of licensing in this state for not more than two years after the date of issuance of the evaluation. (c)-(f) (No change.) (g) Guidelines for board-approved education credentialing agencies. (1)-(5) (No change.) (6) The credentialing agency must list and assign a grade for each course taken by the applicant, by assigning the grade of A, B, C, D, F, Pass, Fail, Credit or No Credit. Those grades assigned by the credentialing agency must be the grades that are converted to the U.S. equivalent, in accordance with the most current version of the National Association for Foreign Student Affairs Handbook on the Placement of Foreign Graduate Students. Only those courses which receive a grade of C or above or pass or credit may be counted toward the requirement that the applicant complete a minimum of 72 semester hours in professional physical therapy education. (7)-(9) (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 October 5, 1994. TRD-9449110 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: October 26, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 443-8202 Chapter 342. Open Records 22 TAC sec.342.1 The Texas State Board of Physical Therapy Examiners adopts an amendment to sec.342.1, concerning open records, with changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3540). The change corrects the Open Records Act citation. This rule is being adopted to expand and clarify the rules. This rule sets charges for copies of public records according to those established by the General Services Commission, with exceptions based on the executive director's perception of public benefit. No comments were received regarding adoption of the amendment. The amendment is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, sec.4(a), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. sec.342.1. Open Records. (a) Open record requests. Inspection of Public Records under the Texas Open Records Act, Texas Civil Statutes, Title 5, Government Code, Chapter 552, provides that all of the records of the board are public records and are available for public inspection during normal business hours except that investigative files and records of the board are confidential. In addition, the exceptions to disclosure in Government Code, Chapter 552 may protect certain information. This rule is promulgated pursuant to Government Code, Chapter 552 to establish a records review process that is efficient, safe, and timely to the public and to the agency. (1) Requests must be in writing and reasonably identify the records requested. (2) Records access will be by appointment only. (3) Records access is available only during the regular business hours of the agency. (4) Unless confidential information is involved, review may be by physical access or by duplication at the requestor's option. Any person, however, whose request would be unduly disruptive to the ongoing business of the office may be denied physical access and will be provided the option of receiving copies. Costs of duplication shall be the responsibility of the requesting party in accordance with the established board fee policy, payable at the time of receipt of records, if a person; or in advance, if by mail. The board may, in its discretion, waive fees if it is in the public interest to do so. (5) When the safety of any public record is at issue, physical access may be denied and the records will be provided by duplication as previously described. (6) Confidential files will not be made available for inspection or for duplication except under certain circumstances, e.g., court order. (7) All open records request appointments will be referred to the executive director or designee before complying with a request. (8) The open records coordinator for the agency is the executive director and the alternate is the director's designee. (b) Charges for Copies of Public Records. The charge to any person requesting reproductions of any readily available record of the Texas State Board of Physical Therapy Examiners will be the charges established by the General Services Commission. (c) The board may waive these charges if there is a public benefit. The executive director of the Executive Council of Physical Therapy and Occupational Therapy Examiners is authorized to determine whether a public benefit exists on a case by case basis. 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 October 5, 1994. TRD-9449112 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: October 26, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 443-8202 Chapter 343. Contested Case Procedure 22 TAC sec.343.23, sec.343.24 The Texas State Board of Physical Therapy Examiners adopts an amendment to sec.343.23, concerning hearings, and new sec.343.24, concerning appeals, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3541). This rule is being amended to expand and clarify the rules. This rule identifies the State Office of Administrative Hearings as the entity which holds contested hearings, and clarifies the procedure for appealing a disciplinary order of the Board. No comments were received regarding the adoption of the amendment and new section. The amendment and new section is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, sec.4(a), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1994. TRD-9449109 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: October 26, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 443-8202 22 TAC sec.343.24 The Texas State Board of Physical Therapy Examiners adopts the repeal of sec.343.24, concerning appeals, without changes to the proposed text as published in the May 10, 1994, issue of the Texas Register (19 TexReg 3541). This rule is being repealed for the purpose of expanding and clarifying the rules. This repeal will delete vague language and install a specific procedure for appealing an order of the board, and allocate costs for such an appeal. No comments were received regarding adoption of the repeal. The repeal is adopted under the Physical Therapy Practice Act, Texas Civil Statutes, Article 4512e, sec.4(a), which provide the Texas State Board of Physical Therapy Examiners with the authority to adopt rules consistent with this Act to carry out its duties in administering this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 5, 1994. TRD-9449113 Sherry L. Lee Executive Director Texas State Board of Physical Therapy Examiners Effective date: October 26, 1994 Proposal publication date: May 10, 1994 For further information, please call: (512) 443-8202 Part XXIII. Texas Real Estate Commission Chapter 534. Provisions of the Real Estate License Act General Administration 22 TAC sec.534.1 The Texas Real Estate Commission adopts new sec.534.1, concerning charges for copies of public records, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5691). The new section requires the Texas Real Estate Commission to impose the charges suggested by the General Services Commission for copies of public records or the actual charges for making the copies, whichever is greater, unless the Texas Real Estate Commission determines that reduction or waiver of the charge is in the public interest. Adoption of the new section is necessary for the Texas Real Estate Commission to comply with the provisions of House Bill 1009, 73rd Legislature, Regular Session. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which provide the Texas Real Estate Commission 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 October 3, 1994. TRD-9449036 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: December 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 465-3900 22 TAC sec.534.2 The Texas Real Estate Commission adopts new sec.534.2, concerning fees charged by the commission for processing dishonored checks, with changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5691). The new section imposes a $25 processing fee on the drawer or endorser of a dishonored check as authorized by Texas Civil Statutes, Article 9022. Adoption of the new section is necessary for the Texas Real Estate Commission to recover the expenses it incurs in the handling of returned checks. The final version of the section was rewritten with nonsubstantive changes to make the section more closely track the provisions of the statute authorizing holders of dishonored checks to impose a processing fee; the term "charge" was replaced with the term "fee" throughout the section. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and enforce all rules and regulations necessary for the performance of its duties. sec.534.2. Processing Fees for Dishonored Checks. (a) If a check drawn to the commission is dishonored by a payor, the commission shall charge a fee of $25 to the drawer or endorser for processing the dishonored check. The commission shall notify the drawer or endorser of the fee by sending a request for payment of the dishonored check and the processing fee by certified mail to the last known business address of the person as shown in the records of the commission. If the commission has sent a request for payment in accordance with the provisions of this section, the failure of the drawer or endorser to pay the processing fee within 15 days after the commission has mailed the request is a violation of this section. (b) Collection of the fee imposed under this section does not preclude the commission from proceeding under Texas Civil Statutes, Article 6573a, sec.15(a) (4), against a licensee who has within a reasonable time failed to make good a check issued to the commission. 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 October 3, 1994. TRD-9449037 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: December 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 465-3900 Chapter 535. Provisions of the Real Estate License Act Requirements for Licensure 22 TAC sec.535.51 The Texas Real Estate Commission adopts an amendment to sec.535.51, concerning general requirements for licensure, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5692). The amendment adopts by reference an application form which would be used by a limited liability company to obtain a new real estate broker license after a previous license has expired. Adoption of the amendment is necessary to provide an orderly process for limited liability companies to regain licensure. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission 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 October 3, 1994. TRD-9449038 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: December 1, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 38. Chronically Ill and Disabled Children's Services Program 25 TAC sec.38.17, sec.38.18 The Texas Department of Health (department) adopts an amendment to sec.38. 17, and new sec.38.18, concerning Chronically Ill and Disabled Children's Services Programs. Section 38.18 is adopted with changes to the proposed text as published in the July 8, 1994, issue of the Texas Register (19 TexReg 5328). Section 38.17 is adopted without changes and will not be republished. In accordance with Texas Civil Statutes, Article 6252-33, the department must evaluate each of its advisory committees to determine whether each committee should be continued, modified, consolidated with other committees, or abolished. The department reviewed the structure, composition, and purpose of the Health Service Systems Advisory Committee and the Community Advisory Committee which advise the Chronically Ill and Disabled Children's Services (CIDC) Program. Those committees have been consolidated to better balance gender, minority representation, regional representation, and consumer and professional membership, and the committee's size has been reduced. The amended section covers the department's authority to use task forces to obtain ad hoc advice and counsel in the CIDC Program. The new section establishes the Children with Special Health Care Needs Advisory Committee to advise the Bureau of Women and Children and the board. Specifically, the new section covers applicable law, purpose, tasks, abolishment, terms of office, officers, meetings, attendance, staff, procedures, subcommittees, statements by members, reports to the board, reimbursement of members' expenses, and the rule's effective date. The amendment and new section ensures the department's continued compliance with Texas Civil Statutes, Article 6252-33 concerning state agency advisory committees, and the department's continued access to an effective forum in which providers and consumers can offer advice to the Bureau of Women and Children and to the board. The change to sec.38.18 is covered in the following comments and responses. The following comments were received regarding the proposed sections. COMMENT: A commenter supported the proposed rules and commented that the committee will have more focus. The commenter stated that under the rules the committee will receive its tasks and will have the opportunity to report to the department. RESPONSE: The department agrees with the comments and appreciates the support. COMMENT: Section 38.18(d)(2)(B)(i) of the proposed rules stated that the committee's tasks would include participation in long range planning activities, including development of recommendations for proposed legislation, appropriations, rules, needs assessment and grant project activities, as needed. Review of proposed legislation and appropriations is outside the scope of this advisory committee, and will continue to be performed by department staff. RESPONSE: Section 38.18(d)(2)(B)(i) has been amended to delete those tasks. The amendment and new section are adopted under Texas Civil Statutes, Article 6252-33, which set standards for the evaluation of advisory committees by the agencies for which they function, and under Health and Safety Code; sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law upon the board, the department, and the commissioner of health. sec.38.18. Children with Special Health Care Needs Advisory Committee. (a) The committee. The Children with Special Health Care Needs Advisory Committee (committee) shall be appointed under and governed by this section. (b) Applicable law. The committee is subject to Texas Civil Statutes, Article 6252-33, relating to state agency advisory committees. (c) Purpose. The purpose of the committee is to provide advice to the Texas Board of Health (board) in the area of developing comprehensive systems of health care for children with special health care needs and their families. (d) Tasks. (1) The committee shall advise the board concerning rules relating to the Chronically Ill and Disabled Children's Services (CIDC) Program and any other programs administered by the department that provide services to children with special health care needs. (2) The committee shall promote the development of systems of care for all children with special health care needs consistent with Social Security Act, Title V, by participating in long range planning activities including: (A) discussion of contemporary health care issues affecting children with special health care needs, their families, and service providers; and (B) as needed: (i) development of recommendations for rules, policies, needs assessments, and grant project activities; (ii) review of alternatives for and assistance in the development of program policies including service criteria for program coverage; (iii) review of and comment on proposed service and quality assurance standards and guidelines for services and providers, as needed; (iv) review of and comment on program quality assurance and utilization review reports; and (v) review of and comment on program fiscal status reports and cost containment methodologies and advising the program about funding alternatives. (3) The committee shall carry out any other tasks given to the committee by the board. (e) Committee abolished. The committee shall be automatically abolished on January 1, 1999. (f) Composition. The committee shall be composed of 18 members. (1) The composition of the committee shall include nine consumer representatives and nine nonconsumer representatives. (A) Consumer members include parents of children with special health care needs receiving CIDC, Medicaid or other publicly-funded services for children with special health care needs, adults with disabilities who have received services as children with special health care needs, and representatives of consumer advocacy organizations that represent children with special health care needs. (B) Nonconsumer members include service providers for children with special health care needs who are enrolled as CIDC or Medicaid providers, representatives of professional associations whose members provide services to children with special health care needs and their families, representatives from institutions of higher education with expertise in public health and children with special health care needs, and other service providers who deliver services to children with special health care needs. (2) The members of the committee shall be appointed by the board. (g) Terms of office. The term of office of each member shall be six years. (1) Members shall be appointed for staggered terms so that the terms of six members will expire on December 31st of each even-numbered year beginning in 1996. (2) If a vacancy occurs, a person shall be appointed to serve the unexpired portion of that term. (h) Officers. The committee shall elect a presiding officer and an assistant presiding officer at its first meeting after August 31st of each year. (1) Each officer shall serve until the next regular election of officers. (2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as necessary, and cause proper reports to be made to the board. The presiding officer may serve as an ex-officio member of any subcommittee of the committee. (3) The assistant presiding officer shall perform the duties of the presiding officer in case of the absence or disability of the presiding officer. In case the office of presiding officer becomes vacant, the assistant presiding officer will serve until a successor is elected to complete the unexpired portion of the term of the office of presiding officer. (4) A vacancy which occurs in the offices of presiding officer or assistant presiding officer may be filled at the next committee meeting. (5) A member shall serve no more than two consecutive terms as presiding officer and/or assistant presiding officer. (6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson. (i) Meetings. The committee shall meet only as necessary to conduct committee business. (1) A meeting may be called by agreement of department staff and either the presiding officer or at least three members of the committee. (2) Meeting arrangements shall be made by department staff. Department staff shall contact committee members to determine availability for a meeting date and place. (3) Each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. (4) Each member of the committee shall be informed of a committee meeting at least five working days before the meeting. (5) A simple majority of the members of the committee shall constitute a quorum for the purpose of transacting official business. (6) The committee is authorized to transact official business only when in a legally constituted meeting with a quorum present. (7) The agenda for each committee meeting shall include an opportunity for any person to address the committee on matters relating to committee business. The presiding officer may establish procedures for such public comment, including a time limit on each comment. (j) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the members are assigned. (1) A member shall notify the presiding officer or appropriate department staff if he or she is unable to attend a scheduled meeting. (2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term for which the member is appointed because of illness or disability, absence from more than half of the committee and subcommittee meetings during a calendar year; or absence from at least three consecutive committee meetings. (3) The validity of an action of the committee is not affected by the fact that it is taken when a ground for removal of a member exists. (4) The attendance records of the members shall be reported to the board. The report shall include attendance at committee and subcommittee meetings. (k) Staff. Staff support for the committee shall be provided by the department. (l) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule. (1) Any action taken by the committee must be approved by a majority vote of the members present once a quorum is established. (2) Each member shall have one vote. (3) A member may not authorize another individual to represent the member by proxy. (4) The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, sex, religion, national origin, age, physical condition, or economic status. (5) Minutes of each committee meeting shall be taken by department staff. (A) A draft of the minutes approved by the presiding officer shall be provided to the board and each member of the committee within 30 days of each meeting. (B) After approval by the committee, the minutes shall be signed by the presiding officer. (m) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties. (1) The presiding officer shall appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. The presiding officer may also appoint nonmembers of the committee to serve on subcommittees. (2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee. (3) A subcommittee chairperson shall make regular reports to the advisory committee at each committee meeting or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting. (n) Statement by members. The board, the department, and the committee shall not be bound in any way by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the board, department, or committee. (o) Reports to board. The committee shall file an annual written report with the board. (1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the board, the status of any rules which were recommended by the committee to the board, anticipated activities of the committee for the next year, and any amendments to this section requested by the committee. (2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities. (3) The report shall cover the meetings and activities in the immediate proceeding 12 months and shall be filed with the board each January. It shall be signed by the presiding officer and appropriate department staff. (p) Reimbursement for expenses. In accordance with the requirements set forth in Texas Civil Statutes, Article 6252-33, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business. (1) No compensatory per diem shall be paid to committee members unless required by law. (2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department. (3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department. (4) Each member who is to be reimbursed for expenses shall submit to staff the member's receipts for expenses and any required official forms no later than 14 days after each committee meeting. (5) Requests for reimbursement of expenses shall be made on official state travel vouchers prepared by department staff. (q) Effective date. This section shall become effective on January 1, 1995. 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 authority. Issued in Austin, Texas, on October 7, 1994. TRD-9449238 Susan K. Steeg General Counsel Texas Department of Health Effective date: January 1, 1995 Proposal publication date: July 8, 1994 For further information, please call: (512) 458-7700 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 114. Control of Air Pollution From Motor Vehicles 30 TAC sec.sec.114.3, 114.5, 114.6 The Texas Natural Resource Conservation Commission (TNRCC or Commission) adopts amendments to sec.114.3, concerning Inspection Requirements; sec.114.5, concerning Exclusions and Exceptions; and new sec.114.6, concerning Hardship Waiver Eligibility Criteria. Section 114.3 and sec.114.6 are adopted with changes to the proposed text as published in the April 29, 1994, issue of the Texas Register (19 TexReg 3232). Section 114.5 is adopted without changes and will not be republished. In addition, revisions are adopted to the State Implementation Plan (SIP) regarding the vehicle emission Inspection and Maintenance (I/M) program. The control strategy specifies the technical, administrative, and enforcement provisions of the I/M program. The amended sections, new section, and control strategy were proposed as a revision to the SIP for the control of ozone in the Houston/Galveston, Beaumont/Port Arthur, Dallas/Fort Worth, and El Paso nonattainment areas. These revisions were necessary under the 1990 Federal Clean Air Act (FCAA) Amendments and the subsequent November 5, 1992 I/M program rulemaking by the United States Environmental Protection Agency (EPA) which require the establishment of I/M programs in moderate, serious, and severe ozone nonattainment areas and in carbon monoxide nonattainment areas. Section 114.3 was amended to provide a definition for uncommon part; remove the 25% emissions reduction requirement for minimum expenditure waivers; exempt vehicles with antique license plates from the I/M program requirements; provide conditions for voluntary testing at fleet facilities and dealerships for a fee two times the standard test fee in the program area; establish the requirements for voluntary certification of automotive repair technicians and repair facilities; establish a $25 annual test fee for certified repair technicians of Texas (CERTTs); require a motorist whose vehicle has failed an emissions test to submit a completed vehicle emissions repair report (VERR) before receiving a retest; establish that covered fleet vehicles not registered by the Texas Department of Transportation (TxDOT) must be in compliance by December 31 of the year the vehicle was scheduled for testing; establish a grace period until January 1, 1995 for repairs for waivers to be performed by CERTTs; and establish reciprocal compliance and alternative scheduling. Amendments to sec.114.5 change the word "waiver" to the word "exclusion." These revisions are needed to reflect the title to the section which allows exclusions to sec.114.1 and to eliminate conflict with the waiver provisions in sec.114.3. The new sec.114.6 establishes hardship waiver eligibility criteria and requirements. The SIP revisions clarify that all waivers last for one test cycle. While the minimum expenditure waiver and time extension waiver can be repeated each test cycle if the terms of the waiver are met each test cycle, one-time hardship waivers are limited to once in the life of the vehicle and are not renewable by that owner or a subsequent owner. Also, the SIP revisions clarify that the referee facilities will be open 48 hours a week; establish that 60 days is the length of time that a motorist whose vehicle fails an out-of-cycle or remote sensing test has to repair the vehicle; change the method that TNRCC will use to comply with EPA's final sec.51.369 to training assessment instead of curriculum development; and provide a definition for a military tactical vehicle. Public hearings were held May 23-26, 1994 in Houston, Beaumont, El Paso, and Irving to discuss the SIP proposal and the proposed rule revisions. Testimony was received from 23 individuals during the comment period which ended June 3, 1994. Browning-Ferris Industries (BFI), Rick's Hi-Tech Auto Care (RHTAC), the Greater Houston Partnership (GHP), a member of the State of Texas House of Representatives, and several individuals were generally supportive of the proposed rule amendments and SIP revisions. The following companies or agencies made specific comments: the Galveston Houston Association for Smog Prevention (GHASP); the Texas Midas Dealers Association (TMDA); BFI; Midas International Corporation (MIC), Southwest Region; the Automotive Parts & Accessories Association (APAA); the Red River Triumph Enthusiasts Association (RRTEA); EPA, Region 6; the Houston-Galveston Area Council (H-GAC); Chappell Industries, Inc. (CCI); RHTAC; the Automotive Service Association (ASA), Fort Worth/Tarrant County Affiliate; the El Paso City-County Health District (EPC-CHD); the Greater Houston Partnership (GHP); Muff 'n Stuff Emission Control Specialist (MNSECS); the Texas Vehicle Club Council (TVCC), Houston; and the TVCC, Irving. The GHASP stated that the temporary paper plates that dealers give out with new cars have not been addressed. It pointed out that illegal use of these plates could create a loophole to avoid registration and an emissions test. The TNRCC agrees that counterfeiting the paper plate could be a problem and will work with TxDOT and law enforcement officials to close this possible loophole and potential violation of sec.114.3. The GHASP was opposed to the exemption of diesels and motorcycles. BFI was strongly supportive of the continuation of the exemption for diesel powered vehicles. The TVVC, Irving, and a large portion of the audience in attendance at the Irving public hearing, were strongly supportive of the exemption of vehicles that are registered with the TxDOT for antique vehicle plates. The TNRCC has received many requests from the public to begin emissions testing of diesel vehicles. Health experts have long documented and commented to the TNRCC on the damaging effects of diesel exhaust. The TNRCC committed to begin emissions testing of diesel vehicles in January of 1997. The delay in testing diesel vehicles from January 1995, when the new vehicle emissions testing program begins, to January of 1997, was to provide the I/M staff sufficient time to review EPA's diesel emissions testing guidance which is currently being developed. When available, the I/M staff will review the EPA's diesel guidance and make its recommendations to the Commission. Motorcycles are excluded from the revised I/M program since they are not specifically regulated by the Federal Motor Vehicle Control Program. Furthermore, their number in the total population of vehicles, the miles driven, and the fuel consumed do not reflect a significant emissions source nor a cost- effective control strategy. The TVCC, Houston, asked for clarification of the final status of the antique vehicle exemptions. The TVCC wanted to know which TNRCC statements take priority: the exempt status as proposed in the SIP, or letters signed by Chairman Hall that state (the TVCC quotes) "we're still examining this, and we hope to develop a suitable solution to it"? The TVCC, Houston, also asked about several TNRCC letters addressed to the TxDOT regarding possible legislative changes for vehicles with antique license plates. The TNRCC supports the SIP proposal to exempt bona fide antique vehicles. However, the TNRCC is concerned about the possibility that the exemption for vehicles with antique license plates could become a loophole for cars that are 25 years old, and could supply an avenue for these vehicles to avoid the I/M program. For example, there is currently no verification for low mileage of vehicles that have antique license plates. The EPA performance standards call for 1968 or newer vehicles that are used on a regular basis to comply with the I/M program. The TNRCC is working with the TxDOT to examine ways to assure that the antique license plate exemption is not abused. Changes in the statutes may be needed to close this possible loophole and ensure that vehicles subject to the I/M program are in compliance. The GHASP made several requests for definitions and revisions of wording. The GHASP objected to the use of the words "reasonable," "practical," and "substantial." Definitions were requested for: "reasonable attempt," "reasonable measures," "extent practical," and "substantial." The GHASP was not satisfied with the clarification and definition for "uncommon part." The TNRCC staff believes that these words are clear in their application, and that further definition would inappropriately limit the Commission's discretionary authority under the SIP. The GHASP cited 11 instances where the SIP language contained the word "may. " The GHASP objected to the use of the word "may" and adamantly suggested that the TNRCC use the word "will" as a strictly enforceable commitment. In most instances, the word "may" was used to purposely allow minor changes and some flexibility in the implementation of the I/M program. At the same time, this allowed the TNRCC to indicate to EPA which activities the TNRCC would engage in at the beginning of the program. Since this is a new program, it is necessary to provide for possible adjustments without necessitating a revision to the SIP or Chapter 114. The SIP/rule revision process takes approximately six months, and may not allow for time sensitive adjustments which are often necessary to successfully implement a new program. In other cases, the word "may" is used because it is inappropriate for the TNRCC staff to limit the authority the Commissioners have under the Texas Clean Air Act. The GHASP recommended revisions to sec.114.3(u) which would remove the word "personnel" in paragraph (2) "so that the ultimately responsible party will be known." The TNRCC believes that the word "personnel" is informative and is accurate, since the Managing Contractor is responsible for his employees and the work performed by the Operating Contractor. The GHASP also recommended adding "calibrated" to sec.114.3(u)(2) and to the corresponding language in the SIP Section (6)(d)(5)(iii) regarding testing at a fleet facility or dealership owned and operated by the Managing Contractor. The GHASP stated that "you do not want the fox to guard the chicken coop." The TNRCC staff agrees and has made the necessary changes to the SIP and rule. The GHASP requested sec.114.3 be changed to ensure that mobile equipment is equivalent to non-mobile equipment. The specifications for equipment are contained in EPA's policy and are included in the SIP in Appendix G, "High-Tech I/M Test Procedures, Emission Standards, Quality Control Requirements, and Equipment Specifications." While this comment has merit and may be the subject of future rulemaking, mobile test equipment has not been specified and was not included in this rulemaking. The GHASP recommended revision of the SIP by removing Section (6)(c)(2) which allows proof of vehicle registration as a method for federal facilities to establish proof of compliance. The GHASP stated that the proof needed is a valid Vehicle Emissions Certificate (VEC). The GHASP was concerned about illegal vehicle registrations. The TNRCC believes that there are situations where Section (6)(c)(2) would be required. If a vehicle has already been registered in the nonattainment area, the VEC will have been surrendered with the registration application. Since a VEC is required for vehicle registration in a nonattainment area, proof of registration would provide proof of compliance with the I/M program. Four individuals affiliated with MIC or the TMDA expressed concern about the requirement which states that only repairs performed by a CERTT at a Certified Emissions Repair Facility of Texas (CERFT) will count toward a waiver. A similar concern was expressed by another member of the exhaust specialty industry. Those opposed to this requirement felt that certification of the facilities and technicians limited competition and would eventually lead to costlier repairs and less clean air per dollar spent. All Midas representatives stressed that replacing an EPA-approved aftermarket catalytic converter (as opposed to original equipment replacement) can save hundreds of dollars for the consumer. The TMDA, representing Midas shops in the nonattainment areas, felt that certification requirements are not necessary for the replacement of catalytic converters because this component is not complex and does not require extensive training or special equipment for installation. The commenter stated the catalytic converter's malfunction is easily diagnosed, and that "one look inside a converter usually confirms its failure. However, in almost every case, the more complex component that precipitated the converter failure cannot be repaired, replaced, tuned up, and sometimes even diagnosed until the defective converter is replaced with one that does not restrict the exhaust flow." Midas also believed that it could replace these parts for a cost much less than a dealership, and that the certification requirement limits the consumer's choices as to where a catalytic converter may be replaced. The TMDA recommended that the TNRCC allow any repairs made to the exhaust system and the catalytic converter of any rejected vehicle to be included in computing minimum expenditure waivers, regardless of where that service was performed. The commenter also suggested that the TNRCC inform the owners of vehicles failing the test where catalytic converter repairs may be made. An individual who operated a muffler shop in Dallas reiterated what the TMDA spokesman said and requested that the TNRCC rethink the issue of equipment. An ASA representative, representing over 110 independent repair shops in the Fort Worth/Tarrant County area, strongly disagreed with the speaker in Irving representing the TMDA. He disagreed with the speaker from the specialized exhaust repair industry who stated that there was no need for National Institute for Automotive Excellence (ASE) certification or special equipment for the testing of catalytic converters. The ASA also pointed out that in response to the training needs of the repair industry, ASE has developed the L1 test for emissions repair and that the industry has responded by taking the test. The ASA representative reported on a study done by EPA regarding the incremental effectiveness of replacement parts on vehicle emissions. The APA representative stated that the study indicated that the replacement of the catalytic converter was the least effective of changed items for effective repair. The ASA representative supported the certification process and the minimum equipment requirement. The individual recommended that anyone either in the emissions repair industry or responsible for emissions repairs must have the minimum equipment listed in the I/M SIP. The TMDA's statement that the repair facility's "only choice is to become certified" is inaccurate. A motorist whose vehicle fails an emissions test will have the freedom to choose any repair facility to perform any necessary repairs. Motorists will even have the option of performing emissions repairs themselves. Provided that the vehicles pass an emissions retest after repairs are made, the motorists will have fulfilled their responsibilities until the next testing cycle. The waiver system was designed to protect motorists from incurring excessive costs when bringing their vehicles into compliance with emissions standards. However, motorists will not even know if a waiver is applicable until after the vehicle has failed at least one retest. At the same time that it protects motorists, the waiver system must also not be a loophole for some motorists to escape compliance with vehicle emissions standards. Consequently, the TNRCC certification program was designed to meet EPA requirements by insuring that only repairs performed by qualified technicians at qualified facilities would count towards a waiver. In conjunction with emissions repair industry representatives in Texas, the TNRCC developed fair and effective requirements for both technician and facility certification. The TNRCC cannot comply with EPA rules and meet the request that "any repairs made to the exhaust system and the catalytic converter of any rejected vehicle be included in computing waivers, regardless of where that service was performed." The EPA's I/M program final rule requires that only repairs "appropriate to the cause of the test failure" can count toward a waiver. The replacement of exhaust components such as pipes, hangers, clamps, and mufflers will, in most cases, have little or no effect on a vehicle's emissions performance. Furthermore, repairs which are necessary because of either warranties or tampering cannot count toward a waiver. Oftentimes, catalytic converters are either removed or hollowed out. Either of these actions constitutes tampering, and thus, catalytic converter replacement for these reasons cannot count toward a waiver. The TNRCC agrees that the replacement of a catalytic converter requires neither specialized equipment nor the skills of a highly trained technician. However, the proper diagnosis to determine if catalytic converter replacement is necessary does require highly trained technicians with specialized equipment. The TMDA commentary supported this view by stating that a catalytic converter "most often fails because of the failure of one of the more complex engine systems, many of which are complex and require extensive training and special equipment for diagnosis and servicing." Unless one or more of these complex engine systems has been properly diagnosed and repaired, the replacement of a catalytic converter will merely mask the true cause of the emissions problem for the sole purpose of allowing the vehicle to pass an emissions retest. In such a situation, the vehicle may pass the retest, but may require another catalytic converter (in addition to a proper diagnosis and repair) either before or during the subsequent test cycle because only the symptom (rather than the actual cause of the problem) has been addressed by just replacing the catalytic converter. By using certified facilities, motorists will be minimizing their chances of incurring such unnecessary expenditures in both current and future testing cycles. The TMDA'S statement that a catalytic converter "either works or it doesn't" is inaccurate. As opposed to the instant ceasing of proper operation, the operational efficiency of a catalytic converter to "convert" hydrocarbon (HC), carbon monoxide (CO), and nitrogen oxide (NO [sub]x) to water (H [sub]20), carbon dioxide (CO [sub]2), nitrogen (N [sub]2), and oxygen (O [sub]2) gradually reduces over time. Only when this operational efficiency is effectively reduced to zero can the claim be made that the catalytic converter is nonoperational. The TNRCC does not agree with the TDMA statement in the commentary that catalytic converter replacement is often necessary before a proper vehicle problem diagnosis can be made. The TNRCC has confirmed the EPA study reported by the ASA representative and agrees with EPA's findings. Based on unpublished EPA research to date, it is recommended that catalytic converter replacement be the last repair option, only to be performed after all other possible problems have been addressed. In short, this is because the catalytic converter is a relatively simple component that "just sits there and does its job," as stated in the TMDA commentary. The TNRCC does not agree that a catalytic converter failure can be accurately diagnosed by visual means. A catalytic converter can often require replacement when the inside has not melted, clogged up, or broken apart. There are a few nonvisual methods that can be used to determine if a catalytic converter needs replacement. However, the most accurate method is to ensure that the vehicle operating temperature and exhaust flow rate are at satisfactory levels while taking HC, CO, CO [sub]2, O [sub]2, and NO [sub]x readings both upstream and downstream of the catalytic converter. By comparing the difference in these readings, one can obtain a value for the operational efficiency of a catalytic converter and, thus, determine if replacement is a necessary and cost-effective repair. Consequently, an exhaust gas analyzer is required for certification because it is a necessary device for the proper diagnosis of not only catalytic converters, but several other emissions control components and systems. Once it is determined that catalytic converter replacement is necessary, a repair facility, whether certified or not, will be free to subcontract this work to any party. In either case, the repair facility maintains the responsibility to the motorist for the performance of satisfactory work. One of the Midas dealers agreed with the TMDA spokesman concerning the "new procedures for repairs to vehicles in the area of catalytic converters." The individual requested that the TNRCC reconsider the certification program. No new procedures for repairs to vehicles in the area of catalytic converters were proposed in either the SIP or the rules. The TNRCC has considered this individual's concerns regarding the certification program and believes that the certification program is appropriate. Another Midas representative, MIC, Southwest Region, suggested the TNRCC set up levels of certification which would allow it to replace catalytic converters without certification in engine repair. The commenter also stated that EPA already regulates the aftermarket industry, and it (Midas) is held accountable for its actions. Chappell Industries requested that the TNRCC allow catalytic converter replacement by noncertified shops to count toward the consumer's waiver total. An individual, and member of the Irving audience, asked on behalf of consumers where the requirement for certified repair facilities came from. The suggestion to provide different levels of emissions repair certification is impractical. It is necessary for a technician to have a thorough understanding of engine/emissions performance issues in order to perform a proper vehicle problem diagnosis before any repairs are made. Passing ASE tests A1, A6, A8, and L1 is necessary to satisfactorily demonstrate emissions repair knowledge. For the reasons presented in the response to TMDA, this is especially relevant to the replacement of catalytic converters, which are relatively expensive emissions control components. The TNRCC acknowledges that EPA does have standards for catalytic converters provided by the aftermarket, which require performance within the certification limits required of the original equipment manufacturers. The EPA also has regulations concerning the replacement and/or illegal removal of catalytic converters. However, EPA neither certifies, nor licenses, facilities performing catalytic converter work. Hence, the implication that a facility can perform "EPA approved service" is misleading. The TNRCC does not limit the repairs to a CERFT or limit the consumers' choices as to where they may have their converter replaced. In fact, no repair has to be done in a certified repair facility. If the vehicle can pass a retest following repairs, it is irrelevant that the repairs were performed in an uncertified facility. However, the failure of the catalytic converter is most often the result of malfunction of another component. If, for example, the oxygen sensor is not functioning, it will continue to foul the new catalytic converter and the vehicle will continue to pollute. The TNRCC believes that to protect consumers, emissions related diagnostics should be performed using appropriate equipment to determine the cause of the polluting emissions. Congress mandated the limitation for minimum expenditure waivers in the FCAA Amendments of 1990. The EPA rules and subsequent guidance require that waiver repairs be performed by qualified technicians only. Therefore, the continued application of these restrictions to waivers is necessary for the continued EPA approval of the Texas I/M SIP. The APAA expressed support for the TNRCC's actions to ensure that certified repair shops and technicians be allowed to perform waiver related repairs. However, it is concerned that the TNRCC regulations may unnecessarily increase repair prices for consumers and reduce the environmental benefits. The APAA representative believed that the testing program might increase costs for car owners by requiring the repair industry to invest in more sophisticated diagnostic equipment and by requiring extensive training. The APAA also believed that the end result would be reduced competition within the repair industry. The APAA requested the certification system be modified to allow vehicle owners, after the car has been tested and failed, to count repairs performed by noncertified shops toward a waiver. The APAA believed this action would pose little additional burden on the TNRCC and would provide the most cost-effective repairs. As it is currently designed, the TNRCC certification program for technicians and facilities sufficiently allows for the competition necessary to achieve the clean air goals of the I/M program in the most cost-effective manner. With approximately 7,300 repair facilities listed in the Yellow Pages throughout the Texas nonattainment areas, it is very likely that competition for business among repair facilities will be high rather than low. As the commentary indicates, it may be necessary for some of these repair facilities to invest in "more sophisticated diagnostic equipment and extensive technician training." This is necessary for the simple reason that vehicles have and will continue to become more complex over time. As with all businesses, repair facilities invest in equipment and training as a way to become more, rather than less, competitive. In an industry that is already so competitive and demands much expertise, there is no alternative for a repair facility that wishes to be successful. The TNRCC's requirements for technician and facility certification will have virtually no impact on the final repair cost incurred by the motorist. In developing the certification program, the TNRCC was very sensitive to cost considerations for the sake of both motorists and the small repair businesses which serve them. Each piece of equipment that will be required for facility certification had to meet certain requirements before being included on the list: it had to already be used by most facilities that perform emissions repairs; it had to be necessary for the diagnosis and repair of most emissions problems; and its requirement could not place an unreasonable financial burden on a facility performing emissions repairs. In order to further minimize adverse cost implications, the following conditions were applied: only the functionality of each item will be necessary; single pieces of equipment with multiple functions will be acceptable; and brand names, model types, model years, etc., will not be specified. In terms of technician certification, four tests administered by the ASE were chosen as the standard because ASE is the largest and most widely recognized automotive technician standard in both Texas and the United States. As of the fall of 1993, 6,354 repair technicians in Texas were certified in ASE tests A1, A6, and A8, three of the four required for TNRCC certification. For a technician already certified in these three tests, it costs only $60 to register for the fourth test (L1) which was offered for the first time in May of 1994. As a way to address emissions repair certification, ASE worked closely with EPA and national repair industry representatives in the development of the L1 test. At the present time, L1 certification from ASE is scheduled to last for a five-year period before renewal is required. In addition, the annual TNRCC technician certification fee will only be $25. It must be noted that these are minimum requirements which, by themselves, do not guarantee an optimally effective emissions repair. Repair facilities will be free to go far beyond these requirements with additional equipment and any training that they and their employees deem necessary. The single most important consumer protection aspect of the Texas I/M program is that it gives motorists the freedom to choose how and where their vehicles will be repaired after an emissions test failure. Consequently, motorists can shop around for the best possible price. In addition, it will be acceptable for repairs subcontracted by a certified repair facility to count towards a waiver. Contrary to the statement made in the APAA commentary, it will be very difficult for a certified repair facility to make a "simple diagnosis of a vehicle emissions problem" which would "devour a large chunk of the waiver amount before initiating correction of the actual problem." All waivers will be processed through the Referee Facility, where highly qualified technicians will verify all emissions repairs claimed by the certified facility before a waiver is granted. In addition, the TNRCC will be monitoring the granting of waivers very closely. Decertification may result for any certified repair facility which consistently services vehicles that receive waivers without accompanying emissions reductions. Any such situations will be reviewed on a case-by-case basis. It is not possible to implement the APAA's suggestion that certain types of repairs performed by noncertified facilities count toward a waiver after a "full diagnosis of the I/M failure at the I/M station or a certified shop." Emissions testing stations will only identify the vehicles in need of repairs. Highly qualified technicians at fully equipped repair facilities will then be necessary to perform proper vehicle problem diagnoses. Due to EPA's performance monitoring requirements for repair facilities, it would be unfair to allow non- subcontracted work performed by noncertified repair facilities to count toward a waiver. If a vehicle failed an emissions retest after receiving work from both a certified and a noncertified repair facility, it would be impossible to determine which of the two facilities should be penalized for performance monitoring purposes. A member of the Irving audience who sells wholesale auto parts and ignition tuneup parts asked if the requirement for certified repairs applies to all vehicles 1968 and newer. The CERTT and CERTF requirement applies to all vehicles seeking minimum expenditure waivers and includes all vehicles subject to the I/M program from new to 1968. The GHASP expressed approval that the TNRCC is retaining the discretion to refuse certification to those with a history of noncompliance. The GHASP was referring to existing language and did not call for any change. RHTAC and the representative of the ASA, both independent repair facility owners, were strongly supportive of the technician and facility requirements for emissions repair certification. RHTAC and the ASA discussed the active involvement that they, and several other repair community representatives, have had in the development of both the certification program and the TNRCC repair effectiveness program as a whole. The RHTAC and the ASA requested that it become a matter of future TNRCC policy to include emissions repair industry representatives in any discussions about proposed I/M program changes which could affect the repair industry as a whole. The TNRCC I/M Section staff appreciate the support for the certification program expressed by ASA members, the ASA representative, and RHTAC. The TNRCC I/M Section feels that the active repair industry involvement which has occurred in the development of the repair effectiveness program will be crucial to its future success. The TNRCC I/M Section is committed to receiving feedback from emissions repair industry representatives before implementation of proposed program changes which could directly affect the repair industry. RHTAC stated that the certification program was voluntary and commented on the reference to possible required refresher courses as a condition of maintaining certification. This individual supported the need for continuing education, but felt that any form of compulsory training would meet with disfavor from the repair industry. RHTAC suggested that multiple training options and test-out features be included in any approach taken to repair technician training. The TNRCC concurs with RHTAC in supporting the need for continuing education. The TNRCC also agrees that any approach taken to address the need for training should include multiple options for the repair technician, including the provision of test-out features for any required courses. Staff included the statement regarding refresher courses, not as a requirement, but as an indication of what contingency measures may be necessary should the ASE certification time span be too great to adequately address I/M program and automotive emissions control technology changes. In any case, the I/M staff is committed to working with the repair industry on future program modifications in the manner it has to date. The GHASP suggested that the TNRCC make the certification of mechanics mandatory to ensure that repair technicians have the necessary knowledge to ensure good pollution control. House Bill 1969 that was passed by the 73rd legislature defines the repair technician certification as voluntary. The H-GAC, GHP, and RHTAC requested a clarification on the length of effectiveness of a waiver, and how often a waiver is allowed. While the H-GAC understands that a waiver is to be given once per vehicle, others have interpreted the language to mean the waivers last for the life time of the vehicle. RHTAC stated that the minimum expenditure waiver needs to be clearly defined as available for each biennial cycle. RHTAC pointed out that the wording in the proposed sec.114.3 regarding one-time hardship waivers might wrongfully suggest to the consumer that they might use up their one-time waiver. The language does not clearly state that the minimum expenditure is available for each test cycle. If a car uses the minimum expenditure for repairs for a waiver in 1995, it might be eligible again in 1997 in the next test cycle after failing a retest and after the owner spends an additional minimum expenditure. RHTAC also noted that the sec.114.3 language regarding hardship waivers is misleading, because vehicle owners may think they receive a "lifetime" waiver if they are eligible for a hardship waiver. It pointed out that in actuality, the hardship waiver is extended only until the next test cycle, but some owners might conclude their hardship waiver is for the life of their cars. The GHP stated that it is unclear whether the "lifetime of the vehicle" is carried with the vehicle if it is sold, or whether it goes with the individual applying for the waiver. The TNRCC staff agrees with the H-GAC, GHP, and the repair facility owner that the waiver language in the SIP and the rule needs to be revised and clarified. The TNRCC has changed the rule and the SIP accordingly. The effective period for all waivers is one test cycle (two years). Minimum expenditure, time extension, and Executive Director waivers can be repeated each cycle, if the owner meets all criteria during the current test cycle. The minimum expenditure would need to be spent on repairs each cycle before a new minimum expenditure waiver could be granted. In addition, time extension waivers can be granted only once per test cycle. Also, a hardship waiver lasts for only one test cycle, not for the lifetime of the owner of the vehicle; furthermore, it is not repeatable. The hardship waiver is allowed only once during the life of the vehicle. Once a hardship waiver is issued, that vehicle cannot receive another hardship waiver (even if ownership changes). The GHP asked for clarification on whether a person who was eligible for a hardship waiver could constantly sell a nonpassing car and apply for a hardship waiver each time. The GHP also asked if the "once in a life of the vehicle" waiver is marked for non-resale or ineligibility for another waiver. It is possible for an owner of a vehicle to sell a vehicle that received a hardship waiver. However, sec.114.3 requires that the seller of the vehicle provide notice in writing to a potential buyer that the vehicle has been given a hardship waiver. Also, the vehicle data file is marked in the Managing Contractor's records that the vehicle has already been granted its one-time hardship waiver. A prospective buyer can call the Managing Contractor in each of the nonattainment areas to verify the existence of a previous hardship waiver. If a vehicle has been granted a hardship waiver, that vehicle can be registered and operated in a county outside of the nonattainment areas. However, if the vehicle that received a hardship waiver is to be operated in a nonattainment area, it must be repaired and pass the emissions retest or qualify for the minimum expenditure before the vehicle can be registered. An individual at the Irving hearing asked the intent of the hardship waiver. This individual believed that since the waiver goes with the lifetime of the vehicle and cannot be used for a potential subsequent owner meeting the hardship eligibility criteria of sec.114.6, the waiver indicates that the TNRCC is not concerned with the economic condition of people. The individual suggested that the waiver should be on the lifetime of the owner, because the owner would then be expected to rectify his economic position, but if he sells the vehicle the waiver would not apply to the next owner. The commenter is accurate in his conclusion that the previous hardship waiver limits a potential buyer who is also eligible for a hardship waiver. It is for this reason that sec.114.3 requires written notification of a hardship wavier and the marking of the vehicle test record. The TNRCC may need to limit the number of hardship waivers that any one individual is allowed. Section 114. 3 does not limit the number of vehicles that an individual eligible for a hardship waiver is allowed to obtain. The EPC-CHD strongly opposed the hardship waiver for any period of time. It stated that 21 to 35% of the population in the El Paso area could be below the Poverty Guideline. It insisted that increased pollution should not be allowed to continue, because air pollution does not discriminate in its effects based on a person's economic status. Also, it maintained that vehicles are the number one source of pollution in the El Paso area. The GHP expressed concern that the breadth of the hardship waiver might undermine the positive emission reduction benefits and credits in the SIP because of the number of people on food stamps. Not all vehicles owned by motorists with below poverty incomes will fail the emissions test. Such vehicles must first fail an emissions test before a hardship waiver application will be considered. The expected failure rate of the vehicle population as a whole is 20%. It is unclear at this time if the failure rate will be higher for vehicles owned by lower income motorists than for the population as a whole. The TNRCC agrees that the hardship waiver does not maximize the air pollution reduction benefits. However, since the hardship waiver only lasts one test cycle and is only allowed once per vehicle, greater air pollution reduction can be expected to being to start the next cycle. In any test cycle following a hardship waiver the vehicle must comply with I/M program requirements as a condition of registration in a nonattainment area. The reduction in air pollution benefits is brief and temporary. The TNRCC proposed a hardship waiver to assist vehicle owners that have low incomes by allowing them more time to repair their vehicle or obtain a minimum expenditure waiver. The initial hardship wavier eligibility was based on the Department of Human Service's (DHS's) client eligibility. The TNRCC's proposal to link the hardship waiver eligibility criteria entirely to verification by the DHS was too time consuming and inconvenient. In addition, the requirement that the vehicle owner be a recipient of DHS assistance excluded those families for whom the repair requirement could be the greatest hardship. This economic hardship could be overcome by many of these individuals if they had enough time to save the money required for emission related vehicle repairs. For these reasons, the TNRCC has revised the criteria in sec.114.6 to a chart based on the DHS criteria for maximum income for food stamp assistance. This chart considers household size and adjusted gross income. The Managing Contractor can objectively and quickly verify the owner's economic hardship with a federal income tax return or other documentation authorized by the TNRCC Executive Director. During the next several months the TNRCC will be investigating various approaches to assisting low-income motorists in financing emissions repairs. However, any approach used will first require legislative authority. The clean air goals of the I/M program will more likely be achieved by helping the economically disadvantaged motorists comply, rather than encouraging circumvention of the program. The H-GAC stated that the hardship waiver should be crafted to ensure that the TNRCC I/M program meets EPA's performance criteria. The H-GAC requested specifically that the TNRCC look at the number of vehicles owned by individuals eligible for hardship waivers. The H-GAC also suggested that the TNRCC develop a contingency plan which balances compassion (for people with financial hardship) with compliance, just in case the current hardship eligibility criteria should, in the future, endanger the state's achievement of the EPA performance standards. The TNRCC is aware that the hardship eligibility criteria may need to change following additional input. The TNRCC is recommending legislative action for a loan program for motorists with financial hardship. It should be noted that not all eligible motorists will fail the test. Some motorists, even if qualifying for a hardship waiver, may be willing to make small expenditures that make substantial emissions reductions, such as purchasing a gas cap. The RRTEA representative made a number of specific comments on documents provided by the TNRCC. The following is a listing of references/citations mentioned in the RRTEA's written comments. In Chapter 114: existing sec.114.5(f); proposed preamble regarding economic costs; sec.114.3(a)(12), new sec.114.3(l), sec.114.3(l)(3)(A) and (B); and sec.114.5(e) and (f); the existing I/M SIP adopted November 10, 1993, Section (5)(a), Section (6)(a), Section (10)(d), (g), and (h), and Section (11); and the new I/M SIP proposed April 15, 1994, Section (1)(a), Section (6)(a), Section (6)(b)(2)(i) and (ii), Section (10)(g) and (h), and Section (11). The RRTEA'S extensive lists of citation of the proposed SIP revisions and rule amendments supported its view that special consideration is necessary for the vehicles owned by RRTEA members. In summary, the RRTEA's comments exhibited support for the clean air program. While it was not requesting exemption from the I/M program requirements, the RRTEA did not wish to be inadvertently penalized because of the program. The RRTEA was concerned about a small number of imported vehicles (mostly British imports with model years up to 1981) that no longer have a dealer network or parent company to service or support them. Often, parts for these vehicles are not commonly available and some cannot be ordered. Also, vehicles of this type (often referred to as "hobby" vehicles) frequently require a "total rebuild that takes several years to complete." The RRTEA does ask that imported vehicles of this type not be penalized when the unusual parts or repairs for these cars cause the owner to exceed the time limits set for emissions testing (every two years), or the time limit set for the ordering and installation of an "uncommon part" (90 days). Also, it believed that the owners of these vehicles should not be penalized when a qualified CERTT repair person refuses to work on these highly specialized and unconventional engines due to the technician's inexperience or possible excessive labor costs. When well maintained, and in proper running order, most vehicles, including imports such as those referred to by the RRTEA, will pass the I/M emissions test. For that very small number of vehicles which might not pass, and where special repair considerations would be necessary, the TNRCC has retained an Executive Director's waiver. This waiver, although limited in number, is specifically designed to be granted on a case-by-case basis when unusual circumstances exist, and when sufficient cause and evidence is available to illustrate the need for its usage. The Executive Director's waiver does adequately address the concerns of the RRTEA and provides owners with ample protection when applicable. It should be noted that there was a typographical error in the proposed SIP regarding this waiver. The estimated number of vehicles qualifying for, and needing, the executive waiver is no more than 500 (not 100). The EPA stated that any compliance via diagnostic exemption policy and procedures must be approved by EPA. The TNRCC has added a corresponding statement to the SIP narrative. The EPA noted that the VERR should include technician recommended repairs that were not performed. This language has been added to the SIP narrative. The EPA stated that the SIP narrative should include the commitment agreed to in the TNRCC chairman's letter of May 4, 1994 to the EPA administrator, stating that a list of uncertified repair facilities will be made available to the public upon request. The TNRCC will provide two lists to the public regarding the performance statistics of repair facilities. One list showing the performance statistics of CERFTs will be provided at the completion of the test to motorists whose vehicles fail. This list will contain an informative statement regarding the availability of a second list showing the performance statistics of uncertified repair facilities. This second list will be available on request. The EPA stated that the SIP narrative should include more details about the planned technician hot line and referral services, including the role of the research/outreach lane in assisting repair technicians with repairing vehicles. The EPA also requested information regarding the differences (if any) in the handling of certified versus uncertified technicians. The idea of the Research/Outreach Program was originally conceived by both the TNRCC and representatives of the Texas repair community. The intended purpose of this program will be the study and implementation of improvements in the overall I/M process in Texas. Reference to the Research/Outreach Program has not been made in the SIP because it is an approach that far exceeds EPA's final rule requirements. The TNRCC concurs with EPA that additional clarification is needed on how the public information hot line will be implemented to handle requests for technical assistance from motorists and repair technicians. However, the SIP section regarding the hot line, Section (18)(e), was not open for public comment and cannot be revised without a public hearing. During the next proposed SIP revision, the TNRCC plans to modify the sections where the hot line is referenced as follows: "The Managing Contractor shall install, equip, and staff a toll-free public information telephone number (hot line) in each nonattainment area to answer questions concerning all aspects of the emissions inspection program. The hot line will utilize an automated system to respond to the most common types of questions received. Callers who do not wish to use the automated system will have the option of speaking directly to an operator during normal business hours. In addition to providing general program information, major hot line functions will include, but are not limited to, providing the caller with inspection station operating hours, locations, and wait times; describing responsibilities and options for motorists with failed vehicles; handling requests for detailed program information; receiving comments about the program; and providing technical assistance to both motorists and repair technicians. The manner in which the hot line will provide technical assistance is further detailed in Section (20)(b). The Managing Contractor will continually work with the TNRCC to improve both the efficiency of the hot line and its responsiveness to common questions from the public." In response to EPA's request that the TNRCC further describe the technical assistance to both certified and uncertified repair technicians, revisions were made to the SIP accordingly. In Section (18), Public Information, (h), Technician/Motorist Assistance, the SIP was revised such that comments were limited to Motorist's Assistance. In Section (20), Improving Repair Effectiveness, (b), Technical Assistance Plan, the entire narrative was replaced. The EPA requested that the TNRCC provide a more definitive commitment regarding its performance monitoring program than the nebulous "is considering" statement currently contained in the SIP. Also, EPA stated that the performance monitoring data regarding repair facility success in repairing failed vehicles should be distributed for all repair facilities, not only for those who are certified. The language in the narrative has been changed from "is considering" to "will develop and provide." In addition, the narrative includes the statement that "uncertified repair facilities which have provided a statistically significant number of the repairs will be reported to the motorist. These performance reports will be updated monthly." Regarding the automotive technician training area, an individual asked for clarification of the meaning of "community-based" automotive training program. The TNRCC is referring to training providers based within or around the nonattainment areas. The TNRCC is not aware of existing community based training in IM240 emissions technology, because IM240 equipment has not yet been utilized on a significant scale in any of the nonattainment areas in Texas. The GHASP asked that nonsexist language be used instead of the commonly accepted "his" contained in sec.114.3(q)(2) and (r)(2)(B). The TNRCC staff has deleted the word "his" in these subsections of the rule. The GHASP prefers a 1.0% waiver rate instead of the approved 3.0% waiver rate. The TNRCC does not believe the waiver rate needs to be more restrictive than EPA guidelines. The GHASP expressed approval of the 60-day limit for repairs for out of cycle vehicle emissions test failure. The GHASP was referring to an existing statement and did not call for a change. RHTAC suggested that the "AEPS" reference for the ASE Advanced Engine Performance Specialist test be changed to "L1", as it is called by ASE. The TNRCC agrees that this change is appropriate and has revised the SIP accordingly. RHTAC asked if leaving out Harris County in the deletion of the plumbtesmo test was an oversight. This deletion was not an oversight. Other than a visual inspection, the plumbtesmo test is the only vehicle emissions test performed in Harris County and will be performed until January 1, 1995, when the new I/M emissions testing program begins. The TNRCC staff found that the proposal to delete the plumbtesmo test prior to the new testing program created confusion and made public information difficult. Therefore, a correction to the SIP was made to clarify that the plumbtesmo test will be deleted when the new testing procedures begin for the public on January 1, 1995. The SIP no longer mentions the plumbtesmo test. RHTAC pointed to a problem of testing dual fueled vehicles. The representative stated that people who perform natural gas conversions have found major problems when cars are switched back to run on gasoline. "The lighter hydrocarbons are lost over time, and the remaining fuel causes poor engine performance." The TNRCC is sympathetic to the concern that emissions and drive ability problems may ensue when alternatively fueled vehicles are operated on gasoline after long durations of operation on the alternative fuel. However, the fact that a motorist may switch between fuels (i.e., gasoline and the alternative), necessitates the TNRCC's requirement that the vehicle receive an emissions test for the gasoline fuel type. The I/M staff will pass along this concern to the Technology and Fuels Section of the Mobile Source Division for consideration in any future alternative fuels and fuel conversion policy and regulation development. RHTAC recommended the development of some means of exempting cars which rarely or never use gasoline, even though the gasoline system is still connected. Vehicles converted to run exclusively on natural gases or other alternative fuels are not required to be tested under the present I/M emissions testing program. However, the TNRCC will take this matter under advisement for possible future action. The GHASP was opposed to biennial testing and wanted annual testing. The GHASP had concerns regarding TNRCC staff evaluation of military tactical vehicles and requested NO [sub]x control of vehicle emissions. The RRTEA also provided a list of specific comments regarding the adopted sec.114.3 and sec.114.5 and an extensive list of comments about the specific language in the adopted SIP. These comments support the view that the RRTEA's vehicles need special consideration. While these comments may have merit and could be the subject of future rulemaking, they are beyond the scope of this rulemaking. The APAA had comments regarding the amount of the minimum expenditure. While these comments may have merit, these minimum expenditures are required by EPA and the FCAA Amendments of 1990. Also, these issues were the subject of a previous rulemaking and are beyond the scope of this rulemaking. The GHASP requested that the TNRCC work to ensure, with all its resources, that the Legislature does allow the TxDOT to revoke motor vehicle registration. The SIP narrative was revised to state that the TNRCC could request that the TxDOT seek authority from the legislature to revoke vehicle registration. The TNRCC staff made corrections to the rule in two places where the marking of the VEC as "Registration Authorized" or "Registration Denied" should have been as follows: in sec.114.3(c)(2)(C)(iii), "Pass or Waiver," and in sec.114.3(l)(4), "Wavier," respectively. In addition, the staff revised the SIP Section (18), Public Information, (f) , Vehicle Emission Certificate, by deleting language that was duplicated in (g) , Vehicle Emissions Repair Report, or was provided on the hot line to be provided by the Managing Contractor. The amendments and new section are adopted under the Texas Clean Air Act (TCAA) and the Texas Health and Safety Code, sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.114.3. Inspection Requirements. (a) Unless specifically defined in the Texas Clean Air Act (TCAA) or in the rules of the Texas Natural Resource Conservation Commission (TNRCC), the terms used by the TNRCC have the meanings commonly ascribed to them in the field of air pollution control. In addition to the terms which are defined by the TCAA, the following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(11) (No change.) (12) Uncommon part-An uncommon part is defined as one that takes more than 30 days for expected delivery and installation, and a motorist can prove that a reasonable attempt made to locate necessary emission control parts by retail or wholesale part suppliers will exceed the remaining time prior to expiration of the vehicle registration. (b) No person may operate any motor vehicle which does not comply with: (1) (No change.) (2) the vehicle emissions inspection and maintenance requirements contained in the revised Texas I/M SIP; and (A) has obtained a valid vehicle emissions certificate (VEC) from an inspection facility that is marked "Registration Authorized"; or (B) has completed the requirements for reciprocal compliance; or (C) has completed the requirements for an alternative schedule and has obtained a valid VEC through the Managing Contractor at a referee facility. (c) No person may issue or allow the issuance of: (1) (No change.) (2) a VEC, as authorized by the TNRCC, unless: (A) (No change.) (B) reciprocal compliance is established in accordance with all vehicle emissions I/M requirements and procedures contained in the revised Texas I/M SIP. A motorist shall submit an original vehicle emissions inspection document to a referee inspection facility. If the inspector determines that the document fulfills the requirements of the program area in which the motorist intends to register a motor vehicle, the motorist shall receive a VEC upon remittance of any applicable fees; or (C) an alternative schedule is established in accordance with the procedures contained in the revised Texas I/M SIP. To obtain the alternative schedule, the motorist or registered vehicle owner shall: (i) submit documentation to the Managing Contractor's area headquarter office establishing that the vehicle is continuously operated entirely outside of an I/M program area and that it is not feasible to return the vehicle for emissions testing prior to the expiration of registration; (ii) provide a date within the next 12 months that would establish a feasible time to return the vehicle for testing; (iii) agree to obtain a valid VEC marked "Pass or Wavier" by the feasibility/alternative date that was established in the application. If the inspector determines that the documentation fulfills the requirements for alternative scheduling, upon remittance of any applicable fees, the motorist shall receive a VEC and an alternative scheduled date by which time the motorists must submit the vehicle for emissions testing. (d) No person may allow or participate in the preparation, duplication, sale, distribution, or use of false, counterfeit, or stolen VECs, vehicle emissions repair reports (VERRs), vehicle emissions repair documentation, or other documents which may be used to circumvent the vehicle emissions I/M requirements and procedures contained in the revised Texas I/M SIP. (e) No person may own, operate, or allow the operation of a fleet vehicle primarily operated in a program area, unless the fleet vehicle has complied with all vehicle emissions I/M requirements contained in the revised Texas I/M SIP. An owner or operator of a fleet vehicle exempted from the payment of a registration fee and issued a specially designated license plate or otherwise not required to be registered in a program area by the TxDOT shall comply with the following requirements specific to such fleets: (1) (No change.) (2) register with the TNRCC by March 1, 1994, and shall provide by that date information on each vehicle including, but not limited to, all data required for the registration of the fleet vehicle by the TxDOT and other information specified on forms provided by the TNRCC; (3) (No change.) (4) update the vehicle registration database reflecting any additions, deletions, or other changes to the covered vehicles by December 31 of each year; and (5) submit vehicles for testing and repair, if necessary, to obtain a valid VEC stating "Registration Authorized" by December 31 of the year the vehicle was scheduled for testing. (f)-(j) (No change.) (k) A motorist whose vehicle has failed an emissions test must have emission- related repairs performed and must submit a properly completed VERR in order to receive a retest, a minimum expenditure waiver, or a time extension waiver. (l) A motorist may apply to the Managing Contractor at a referee inspection facility for waivers which defer the need for full compliance with vehicle emissions standards for a specified period of time after failing a vehicle emissions inspection. For the minimum expenditure and time extension waiver, the motorist may apply only once for each type of waiver for each testing cycle and shall pay any applicable processing fee. Each test cycle the applicant must meet the criteria for the waiver. For the one-time hardship extension waiver (which lasts only one test cycle), the motorist may apply once during the lifetime of the vehicle and shall pay any applicable processing fee. The time extension wavier does not exempt the vehicle from the requirements to comply with the I/M program. By the time extended, the vehicle must be repaired, retested, and receive a VEC marked "Pass" or comply with paragraph (3)(D) of this subsection. (1) A Minimum Expenditure Waiver may be granted in accordance with the following conditions. (A) The motor vehicle must have a valid VEC, a valid VERR, and have failed a retest after repairs, provided the following conditions have been met: (i) in enhanced program areas, repairs shall require a minimum expenditure of at least $450, adjusted annually; or (ii) in basic program areas, repairs shall require a minimum expenditure of at least $75 for pre-1981 model year vehicles and at least $200 for 1981 and later model year vehicles; and (iii) after January 1, 1995, repairs shall be performed by a TNRCC voluntarily certified repair technician of Texas (CERTT) at a voluntarily certified repair facility of Texas (CERFT); and (iv) repairs shall be directly applicable to the cause for the test failure. (B) A Minimum Expenditure Waiver shall be valid for the remaining portion of the testing cycle. (2) A one-time hardship extension waiver may be granted once in the life of the vehicle in accordance with the following conditions. (A) A motorist must have a valid VEC indicating that the subject vehicle failed the initial emissions inspection test. (B) A motorist shall provide proof in writing to the Managing Contractor at a referee inspection facility that the registered vehicle owner(s) meets the hardship eligibility criteria established by the TNRCC in sec.114.6 of this title (relating to Hardship Eligibility Criteria). (3) A Time Extension Waiver may be granted in accordance with the following conditions. (A) The motorist can document that emissions-related repairs cannot be completed before the expiration of current registration or before the 30-day period following an out-of-cycle inspection because the repairs require an uncommon part. (B) The motorist shall provide to the Managing Contractor at a referee inspection facility an original VEC indicating that the vehicle failed the emissions test and an original itemized documentation, by a CERTT at a CERFT (after January 1, 1995), indicating parts ordered, source of parts, including address and phone number, expected delivery, and installation dates of uncommon parts before a Time Extension Waiver can be issued. (C) The motorist shall return the motor vehicle to the referee inspection facility for a retest and verification of repairs upon completion of the repairs. (D) The motorist shall provide to the Managing Contractor at the referee facility, prior to expiration of a Time Extension Waiver, adequate documentation that one of the following conditions exists: (i) the motor vehicle passed a retest; (ii) the motorist qualifies for a Minimum Expenditure Waiver or Hardship Waiver; or (iii) the motor vehicle shall no longer be operated in the program area. (E) The length of a Time Extension Waiver shall depend upon expected delivery and installation dates of uncommon parts as determined by the Managing Contractor, but shall not exceed 90 days. (4) If a motorist or other entity leases or offers for lease, sells or offers for sale, trades or offers for trade, or otherwise transfers the title of a motor vehicle during the time any waiver is in effect, the motorist or entity shall notify the prospective owner or operator in writing of the waiver and that the VEC is marked "Waiver." (5) A motorist shall use any available warranty coverage to obtain needed repairs before expenditures shall be used in calculating the minimum repair expenditures to qualify for a Minimum Expenditure Waiver, unless the warranty remedy has been denied in writing from the manufacturer or authorized dealer. (6) A motorist may not use or attempt to use expenditures for tampering- related repairs in calculating the minimum repair expenditures to qualify for a Minimum Expenditure Waiver. Tampering includes, but is not limited to, engine modifications, emission system modifications, or fuel-type modifications not approved by the TNRCC or EPA. (7) A motorist shall provide to the Managing Contractor at the referee inspection facility an original retest VEC, a properly completed VERR provided by a CERTT at a CERFT, and an original itemized receipt indicating the emissions-related repairs performed for the issuance of a Minimum Expenditure Waiver. A motorist shall provide to the Managing Contractor at the referee inspection facility an original retest VEC and an original itemized receipt indicating the purchase or payment, and expected delivery and installation dates of uncommon parts for the issuance of a Time Extension Waiver. (m) If the vehicle has failed an I/M test and the VEC is marked "Registration Denied," a motorist may petition the Executive Director of the TNRCC for the exemption of a motor vehicle from the requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP, upon demonstration that the motorist has taken reasonable measures to comply with such requirements and that such exemption shall have minimal impact on air quality. If the Executive Director approves the petition, the motorist may receive an exemption upon remittance of any applicable fees. (n) If a motorist has obtained vehicle registration using a VEC issued through alternative scheduling, one of the following conditions must be met: (1) the vehicle must be returned to the program area, submitted for emissions testing, and receive a VEC marked "Pass or Waiver" prior to the alternative scheduled date; or (2) if the vehicle is returned to the program area prior to the alternative scheduled date, the vehicle must be submitted for testing within 30 days of returning to the program area. (o) The requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP shall be applied to all 1968 and newer model year gasoline-powered motor vehicles, excluding motorcycles and antique vehicles (as defined by the Texas Department of Transportation registration, specifically as defined in Texas Civil Statutes, Article 6675a, concerning registration of antique passenger cars and trucks; license plates; renewal; penalty.) Alternatively fueled or dual-fueled vehicles will be tested in the gasoline mode, if the vehicle can be operated on gasoline. (p) The requirements of the vehicle emissions I/M program contained in the revised Texas I/M SIP shall be applied in the program areas in accordance with the following schedule: (1) the basic program in Collin, Dallas, Denton, Jefferson, Orange, and Tarrant Counties beginning on July 1, 1994; (2) the enhanced program in Brazoria, El Paso, Fort Bend, Galveston, Harris, and Montgomery Counties beginning on January 1, 1995; and (3) the enhanced program in Chambers, Liberty, and Waller Counties beginning on January 1, 1997. (q) No person may act as or offer to perform services as a CERTT, as defined in this chapter, without first obtaining an annual certification from the TNRCC. (1) The following requirements must be met for CERTT certification to be issued and renewed: (A) demonstration to the National Institute of Automotive Service Excellence (ASE) of a minimum of three years of full-time automotive repair service experience; (B) certification in the following four tests offered by the ASE: Engine Repair (Test A1), Electrical Systems (Test A6), Engine Performance (Test A8), and Advanced Engine Performance Specialist (Test L1) (or the L1 Test successor); (C) receipt by TNRCC of a completed CERTT application; and (D) receipt by TNRCC of payment of the $25 annual registration fee. (2) A CERTT shall perform the following duties: (A) oversee all emissions related repairs that are performed at the facility; (B) certify the emissions related repairs on the VERR form to be submitted to the TNRCC; (C) complete and certify the VERR form for customers; (D) comply with the following notification provisions: (i) notify TNRCC within 14 days of changes in employment from a CERFT; and (ii) notify the TNRCC of changes in the ASE testing status; and (E) when issued a TNRCC CERTT emblem patch, wear this patch on a visible part of clothing. (r) No owner or operator of a repair facility may represent a facility to be, or use a facility as a CERFT, as defined in this chapter, without first obtaining or renewing an annual certification from the TNRCC. (1) All the following conditions must be met for CERFT certification to be issued: (A) employment of a minimum of one full-time CERTT; (B) possession of all the following functional equipment: (i) ammeter; (ii) alternator/regulator/starting circuit tester (all functions); (iii) battery load tester; (iv) compression tester; (v) cooling system tester; (vi) dwellmeter; (vii) engine analyzer; (viii) exhaust gas analyzer (with at least hydrocarbon (HC), carbon monoxide (CO), and carbon dioxide (CO point=4.52p [sub]2) measurement capability); (ix) fuel pressure/pressure drop tester (both functions); (x) fuel quality tester; (xi) ohmmeter; (xii) propane gas bottle (for carburetor lean drop check); (xiii) repair reference information; (xiv) scanner; (xv) tachometer; (xvi) timing light; (xvii) vacuum/pressure gauge (both functions); (xviii) vacuum pump; and (xiv) voltmeter; and (C) receipt by TNRCC of a completed CERFT application. (2) The owner or operator of a CERFT shall comply with the following requirements: (A) maintain the equipment referenced in paragraph (1)(B) of this subsection in proper operable condition; (B) employ a minimum of one CERTT, performing duties in compliance with these regulations, at all times that the facility is performing emissions-related repairs; (C) prominently display the TNRCC CERFT sign. The owner or operator of a CERFT must remove this sign any time that the requirements of this subparagraph are not being met; and (D) comply with the following notification provisions: (i) notify the TNRCC of changes in employment of a CERTT; (ii) notify the TNRCC anytime the CERFT does not meet the requirements of this paragraph; and (iii) notify the TNRCC of a change of business address. (s) A CERTT or CERFT issued under this chapter may be suspended or revoked for good cause at any time by order of the Commission after notice and opportunity for public hearing is provided pursuant to the Texas Government Code, sec.2001. 054. Good cause includes, but is not limited to, failure to comply with the certification and operating conditions and requirements contained in subsections (q) or (r) of this section. (t) The TNRCC may refuse to issue a certification under subsections (q) and (r) of this section if the applicant has a history of noncompliance with the provisions of subsections (q) or (r) of this section or for other good cause shown. (u) For a per-vehicle fee remitted by a fleet operator to the Managing Contractor that equals twice the test fee established for the I/M program area, the Managing Contractor may agree to perform testing at a fleet facility or dealership under one of the following conditions: (1) using mobile test equipment; (2) using test equipment owned by the fleet or dealership but calibrated and operated by the Managing Contractor's personnel; or (3) using test equipment owned, calibrated, and operated by the managing contractor and installed at the fleet or dealership facility. (v) The Commission will determine an appropriate portion of the fee collected from fleet operators, dealers, or motorists for testing performed under subsection (u) of this section that may be remitted by the Managing Contractor to each fleet facility or dealership. sec.114.6. Hardship Eligibility Criteria. No person shall be eligible for a hardship waiver extension from sec.114.3 of this title (relating to Inspection Requirements) for the vehicle emission Inspection/Maintenance (I/M) requirements and receive a vehicle emissions certificate valid for one test cycle and marked "Registration Authorized" unless the following conditions are met: (1) the hardship waiver applicant is the owner of the vehicle that has failed an I/M test; (2) the vehicle has not been granted a previous hardship waiver; (3) the applicant's adjusted gross income is within the following maximum income limits (for families of more than 10 members, add $267 for each additional person): Figure 1: 30 TAC sec.114.6(3) (4) the applicant shows proof of conformity with paragraph (3) of this section by providing to the Managing Contractor one of the following: (A) a federal income tax return; or (B) other documentation authorized by the Executive Director; and (5) the applicant certifies that the documents submitted pursuant to paragraph (4) of this section are true and correct. 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 October 7, 1994. TRD-9449251 Mary Ruth Holder Director, Legal Division Texas Natural Resource Conservation Commission Effective date: October 31, 1994 Proposal publication date: April 29, 1994 For further information, please call: (512) 239-1966 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.23 The Texas Youth Commission (TYC) adopts an amendment to sec.85.23, concerning classification, without changes to the proposed text as published in the August 12, 1994, issue of the Texas Register (19 TexReg 6341). The justification for amending the section is to simplify the TYC classification system by remaining consistent with changes made in the penal code. The amendment will add and delete offenses used to classify youth committed to TYC in order to be consistent with changes in the Texas Penal Code which are effective September 1, 1994. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, sec.61.075, which provides the Texas Youth Commission with the authority to order confinement under conditions it believes best designed for the youth's welfare and the interests of the public. The proposed rule implements the Human Resource Code, sec.61.034. 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 October 6, 1994. TRD-9449143 Steve Robinson Executive Director Texas Youth Commission Effective date: November 1, 1994 Proposal publication date: August 12, 1994 For further information, please call: (512) 483-5244 Chapter 87. Treatment Program Planning 37 TAC sec.87.25 The Texas Youth Commission (TYC) adopts the repeal of sec.87.25, concerning Title IV-E foster care youth, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6888). The repeal will allow TYC adopt a new rule in order for TYC to participate in the Title IV-E program to generate federal funds. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rule implements the Human Resource Code, sec.61.034. 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 authority. Issued in Austin, Texas, on October 3, 1994. TRD-9448980 Steve Robinson Executive Director Texas Youth Commission Effective date: October 24, 1994 Proposal publication date: September 2, 1994 For further information, please call: (512) 483-5244 The Texas Youth Commission (TYC) adopts new sec.87.25, concerning Title IV-E foster care youth, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6888). The justification for the new section is to allow TYC greater use of available federal funding. The new section will allow TYC to participate in the Title IV-E program to generate federal funds. No comments were received regarding adoption of the new section. The new section is adopted under the Human Resources Code, sec.61.0761, which provides the Texas Youth Commission with the authority to develop programs that encourage family involvement in the rehabilitation of the child. The proposed rule implements the Human Resource Code, sec.61.034. 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 authority. Issued in Austin, Texas, on October 3, 1994. TRD-9448981 Steve Robinson Executive Director Texas Youth Commission Effective date: October 24, 1994 Proposal publication date: September 2, 1994 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 10. Family Self-Support Services The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.10. 1001, 10.1003, 10.1005, 10.1006, 10.1009-10.1013, 10.3401, 10.3409, 10.3411, 10.3412, 10.3431, 10.3434, 10.3438-10.3440, 10,3442, 10.3449, 10.3450, and 10. 3460; adopts amendments to sec.sec.10.3405, 10.3407, 10.3451, 10.3458, and 10.3461; and adopts new sec.sec.10.3409, 10.3411, 10.3412, 10.3431, 10.3434, 10.3438, 10. 3439, 10.3442, 10.3449, 10.3450, 10.3460, 10.3467, 10.3468, and 10.3470-10. 3478, concerning eligibility determination and child care management services, in its Self-support Services rule chapter. The new sec.sec.10.3431, 10.3434, 10. 3439, 10.3442, 10.3460, 10.3467, 10.3471, 10.3474, 10.3475, 10.3477, and 10. 3478 are adopted with changes to the proposed text as published in the May 6, 1994, issue of the Texas Register (19 TexReg 3438). The amendments to sec.sec.10.3405, 10.3407, 10.3451, 10.3458, and 10.3461; and new sec.sec.10.3409, 10. 3411, 10.3412, 10.3438, 10.3449, 10.3450, 10.3468, 10.3470, 10.3472, 10.3473, and 10.3476 are adopted without changes to the proposed text and will not be republished. The proposal to amend sec.sec.10.3413 and new sec.10.3469, which also appeared in the May 6, 1994, issue to the Texas Register (19 TexReg 3438) was withdrawn effective August 23, 1994, in the August 30, 1994, issue of the Texas Register (19 TexReg 6835). The justification for the repeals, amendments, and new sections is to delete obsolete language and allow the inclusion of new concepts for child care services. The repeals, amendments, and new sections will function by ensuring that public funds will be appropriately spent for child care services by holding clients, vendors, and contractors accountable for the use or misuse of public funds. During the public comment period DHS received comments from West Texas Opportunities, Inc.; Hill Country Community Action Association, Inc.; Day Care Association of Fort Worth and Tarrant County; Neighborhood Centers, Inc.; YWCA of El Paso; and Better Influence Association. A summary of the comments and DHS's responses follow: Comment: A commenter questioned why DHS differentiates between children verses parents receiving AFDC or SSI in sec.10.3412. Response: The language as proposed was developed to conform with federal regulations, (i.e., Child Care and Development Block Grant) which state that eligibility is based on a family whose income does not exceed 75% of the State Median Income. If the parent is the recipient of AFDC or SSI, the family income will meet this criteria. If the child is the only recipient, the family income could be higher than the federal limit necessitating an income eligibility test for these families. Comment: Several commenters noted that the timelimits in sec.10.3434 and sec.10.3442 conflicted with each other. Response: DHS is adopting sec.10.3434(b) and sec.10.3442(b) and (c) with changes to clearly state the specific billing timelines for both CCMS vendors and CCMS contractors. Also subsection (d), in sec.10.3434, has been deleted and the wording in that subsection has been combined with that in subsection (b) for clarification. Comment: In sec.10.3473, several commenters expressed concern that the CCMS contractor would be responsible for determining fraud or conducting the investigation. Response: DHS is adopting this rule without change as the rule only defines fraud and does not specify who determines fraud. Comment: One commenter expressed favor for the requirement in sec.10.3474 for vendors whose vendor agreement has been terminated to be required to wait up to six months before applying for a new vendor agreement. Response: DHS agrees and is adopting sec.10.3474 as proposed. Comment: Several comments centered around the following concepts in sec.10. 3475: sampling, extrapolation, exit conferences and recoupment. DHS was requested to require a "random" and "statistically valid" sample. The comment regarding recoupment based on monitoring results stated that this process was duplicative of the single audit requirement. A concern was expressed about how DHS would share monitoring results with CCMS contractors and that exit conferences be required. Response: In sec.10.3475, DHS always intended to use a random and statistically valid sample. To reassure contractors that the sample would be random and statistically valid, DHS has added the words "random" and "statistically valid" to this section. The sample will be computed by DHS's State Office Management Information System (MIS) using a formula developed by DHS State Office statisticians. DHS never intended to use extrapolation as a routine methodology. The rule has been reorganized to reflect when this method would be utilized. Specifically, this method would be used when DHS is found liable for monitoring findings by other regulatory agencies or the scope and severity of the contractor's failure to perform warrants greater liability. In response to the comment regarding exit conferences, DHS already requires exit conferences. Recoupment based on monitoring results is not a duplication of a single audit. A single audit does not address the elements that the monitoring system reviews, specifically in-depth eligibility and vendor issues. Also, DHS is precluded from covering the same areas in a monitoring system that are covered by the single audit. DHS may only expand upon what a single audit addresses and focus on other areas. Comment: One comment was received regarding the CCMS contractor's role in recoupment in sec.10.3477. Response: A CCMS contractor is a limited purpose agent of DHS and therefore may be required under contract to perform such activities as recoupment of funds. As for clients or child care providers who no longer have a relationship with the CCMS contractor, the recoupment is based on the former relationship and the CCMS contractor has the right and the responsibility to attempt recovery of overpayments. In sec.10.3477(d), DHS gives the CCMS contractor specific policies and procedures to follow in the CCMS Contractor Manual. These procedures will follow normal collection procedures. However, the language of subsection (c) has been rewritten to clarify when DHS expects the CCMS contractor to recoup funds. DHS has made a change to sec.10.3477(c) to include the word "all" before the word overpayments in the first sentence. For clarification, DHS has included the words "further attempts for recovery of overpayments will occur" at the beginning of the second sentence. Section 10.3477(b) further states that before recoupment is attempted, the CCMS contractor must obtain concurrence from DHS. Comments: Several comments focused concern in sec.10.3478 that the CCMS contractor would be responsible for determining fraud or conducting the investigation. Response: DHS is adopting sec.10.3478(1) with changes. It was never the intent of this rule that the CCMS contractor determine fraud. DHS has changed the word "alleging" fraud to "suspecting" fraud to clarify the role of the CCMS contractor. DHS will investigate suspected fraud with clients and/or vendors. DHS has discovered that exceptions to the rights of people applying for and receiving child care services through the child care management services system specified in sec.10.3467(a)(3) had not been included. The rule states that clients must be informed at least 12 calendar days before the denial, delay, reduction, or termination of child care services occurs. The purpose is to allow clients an opportunity to appeal the decision. However, not all client groups have the option to appeal; therefore, changes to this section have been made to add the exceptions. Minor editorial changes have been made by DHS to the following sections: In sec.10.3431(d)(4), a change was made to correct the section title referenced to "Responsibility of the Texas Department of Human Services (DHS) for Establishing Procedures for Quality Assurance Monitoring of Child Care Management Services (CCMS) Contractors and Recoupment Based on Quality Assurance Monitoring Findings". In sec.10.3439 (d)(3), the policy of whether a new or amended vendor agreement must be done when a vendor's rates change does not need to be addressed in the rule. It is procedural, and guidelines are fully discussed in the CCMS Contractor Manual. Therefore, the word "new" was deleted before CCMS Vendor Agreement. In sec.10.3460(c), references to other sections and their titles have been corrected. Section 10.1007, Definition of a Family, was changed to sec.10.3479, Determination of Family Members in the Child Care Program, and sec.10.1008, Income Inclusions, was changed to sec.10.3484, Income Inclusions for child Care Eligibility Determination. In sec.10.3471(a)(2), the word "tile" was changed to "title" to correct the misspelled word. In sec.10.3474(a)(2), the intent of this rule was to require all vendors to wait some period of time before reapplying for a Vendor Agreement if the previous agreement was terminated as part of an adverse action. DHS determined that the use of the word "may" actually implied that a waiting period might only be required for some. The word "may" was changed to "will" in order to clarify that all vendors in this situation will wait up to six months. Eligibility Determination 40 TAC sec.sec.10.1001, 10.1003, 10.1005, 10.1006, 10.1009-10. 1013 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and day care programs. The repeals implement the Human Resources Code sec.22.002(c) and 44.002(a). 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 authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449264 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 450-3765 Child Care Management Services Statewide Implementation 40 TAC sec.sec.10.3401, 10.3409, 10.3411, 10.3412, 10.3431, 10. 3434, 10.3438- 10.3440, 10.3442, 10.3449, 10.3450, 10.3460 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and day care programs. The repeals implement the Human Resources Code sec.22.002(c) and 44.002(a). 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 authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449263 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 450-3765 Child Care Services 40 TAC sec.sec.10.3405, 10.3407, 10.3409, 10.3411, 10.3412, 10. 3431, 10.3434, 10.3438, 10.3439, 10.3442, 10.3449, 10.3450, 10.3451, 10.3458, 10.3460, 10.3461, 10.3467, 10.3468, 10.3470-10.3478 The amendments and new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and day care programs. The amendments and new sections implement the Human Resources Code sec.22. 002(c) and 44.002(a). sec.10.3431. Contract Violations and Service Improvement Agreements. (a) The Child Care Management Services (CCMS) contractor must comply with all terms of the contract, Department of Human Services (DHS) rules, and the policies and procedures in the CCMS Contractor Manual. (b) DHS pursues resolution of contract violations in accordance with the terms of the contract and the CCMS Contractor Manual. (c) DHS may consider a non-compliance as a breach of the contract. Sanctions DHS may take as a response to a contract breach include, but are not limited to: (1) requiring the CCMS contractor to enter into a service improvement agreement (SIA) as set forth in subsection (e) of this section; (2) suspension, nonrenewal, or termination of the CCMS contract; (3) temporarily withholding payments to the CCMS contractor; (4) nonpayment of costs incurred; and/or (5) recoupment of funds from the CCMS contractor. (d) The determination of which sanction or sanctions is appropriate is based upon: (1) the scope of the violation; (2) the severity of the violation; (3) the contractor's history of compliance; or (4) the contractor's failure to meet performance standards referenced in sec.10.3475 of this title (relating to Responsibility of the Texas Department of Human Services (DHS) for Establishing Procedures for Quality Assurance Monitoring of Child Care Management Services (CCMS) Contractors and Recoupment Based on Quality Assurance Monitoring Findings). (e) When contract violations are documented, a written SIA may be negotiated. The SIA establishes at a minimum: (1) the basis for the agreement; (2) the steps required to reach compliance including technical assistance to be provided by DHS; (3) the time limits for implementing the improvements; and (4) the consequences of not complying with the agreement. (f) A failure to fully comply with the terms of the SIA may result in the application of one or more of the sanctions set forth in subsection (c) of this section. sec.10.3434. Billing by a Child Care Management Services (CCMS) Contractor. (a) The CCMS contractor bills the Texas Department of Human Services (DHS) after child care services are provided and the contractor has received the required documentation from the vendors. (b) The CCMS contractor must process and submit bills to DHS in a timely and efficient manner but no later than 30 days after receiving the required documentation from the vendor. To exceed 30 days, the CCMS contractor must have extenuating circumstances and written approval from DHS. DHS is not liable and will not pay for bills submitted later than 90 days after the required documentation has been received from CCMS vendors. Non-payment by DHS for late submittal does not relieve the CCMS contractor's liability to reimburse the CCMS vendor. (c) The CCMS contractors must also submit statistical reports as required by federal or state regulations or by DHS. sec.10.3439. Establishment of Individual Child Care Management Services (CCMS) Vendor Reimbursement Rates. (a) The CCMS contractor pays vendors, providing child care to CCMS-referred children, a reimbursement rate based on the vendor's published rates and vendor fees approved by the Texas Department of Human Services (DHS). (b) The vendor's CCMS reimbursement rate is a daily rate. The rate is the lesser of the following: (1) the DHS statewide limit; or (2) the 75th percentile of the local market rate. (c) The vendors' published rates are subject to verification by the CCMS contractor or DHS that these rates are not greater than: (1) actual rates paid by parents who do not receive a child care subsidy; or (2) the vendor's budgeted cost divided by the expected enrollment days. (d) When the vendor publishes a new rate, a new CCMS reimbursement rate becomes effective the first full month after all the following steps have been completed by the vendor and the CCMS contractor: (1) the vendor has informed the CCMS contractor of the new published rate; (2) the CCMS contractor has determined the new CCMS reimbursement rate; and (3) the CCMS contractor and vendor have signed a CCMS Vendor Agreement to reflect the new CCMS reimbursement rate. (e) The CCMS contractor must not reimburse a vendor retroactively for new rates. sec.10.3442. Vendor Billing Requirements. (a) Vendors must submit bills after the child care services are provided. (b) Vendors must submit bills and required documentation to the Child Care Management Services (CCMS) contractor in a timely and efficient manner. (c) The CCMS contractor is not liable for and will not pay for vendor bills submitted later than 90 days after child care services have been delivered. sec.10.3460. Verification and Determination of Client Eligibility for Purchased Child Care Services. (a) The Texas Department of Human Services (DHS) determines client eligibility for clients who meet the requirements stated in sec.10.3413(a) and sec.10.3457 of this title (relating to Eligibility for Title IV-A Funded Child Care Services and Eligibility for Food Stamp Employment and Training-Related Child Care). (b) The Texas Department of Protective and Regulatory Services (TDPRS) determines client eligibility for clients who meet the requirements stated in sec.10.3416 and sec.10.3464(5) of this title (relating to Child Care for Abused and Neglected Children and Eligibility for Child Care and Development Block Grant Funded Child Care (CCDBG)), and sec.49.903 of this title (relating to Protective Day Care). (c) The Child Care Management Services (CCMS) contractor determines and documents client eligibility for clients who meet the requirements stated in sec.sec.10.3413(b); 10.3464(1)-(4); 10.3469; 10.3479; and 10.3484 of this title (relating to Eligibility for Title IV-A Funded Child Care Services, Eligibility for Child Care and Development Block Grant (CCDBG) Funded Child Care, Eligibility for Child Care Services Based on Income, Determination of Family Members in the Child Care Program, and Income Inclusions for Child Care Eligibility Determination). (d) The CCMS contractor must verify and document the client's eligibility status before authorizing services for clients whose eligibility was determined by DHS and TDPRS as specified in subsections (a) and (b) of this section. (e) The CCMS contractor must determine, verify, and document client eligibility as specified in subsections (c) and (d) of this section using the forms and procedures required by DHS in the CCMS Contractor Manual. sec.10.3467. Rights of People Applying for and Receiving Child Care Services Through the Child Care Management Services (CCMS) System. Parents or caretakers have the right to: (1) have persons represent them when applying for child care services; (2) receive notification of their eligibility to receive child care services within 20 calendar days from the day the CCMS contractor receives all necessary documentation required to determine eligibility for child care services; (3) be notified in writing by the CCMS contractor at least 12 calendar days before the denial, delay, reduction, or termination of services, except in cases where the child care has been authorized to end immediately because the client is no longer participating in Job Opportunities and Basic Skills (JOBS) education or training services and in cases where the child care has been authorized to end immediately for Texas Department of Protective and Regulatory Services (TDPRS) child protective services (CPS) clients. JOBS and CPS clients are notified of denial, delay, reduction, or termination of services and the effective date of such actions by their respective Texas Department of Human Services (DHS) and TDPRS CPS case workers. (4) request a fair hearing within 90 days of the receipt of the notice of denied, delayed, reduced, or terminated child care services. The exception is a parent who has a child in a TDPRS CPS in-home case and has not requested the child care services. The CCMS contractor must inform parents how to request a fair hearing. The parent or caretaker may have someone represent them during this process; (5) receive child care services regardless of race, color, national origin, age, sex, disability, political beliefs, or religion; (6) have the CCMS contractor treat information that is used to determine eligibility for child care services as confidential; (7) reject an offer of child care services or voluntarily withdraw their child from child care services unless the child is in a CPS in-home protective case; (8) be informed by the CCMS contractor of the possible consequences of rejecting or ending child care that is offered; (9) be informed of all child care options available to them and choose the arrangement they desire from these options; (10) visit available child care facilities before making their choice of a child care option and visit the facility during the time their child is enrolled; and (11) receive assistance in choosing initial or additional child care referrals, including information about DHS's policies regarding transferring children from one facility to another. sec.10.3471. Provision of Child Care Services During an Appeal. (a) Child care services continue during the appeal process until a decision is reached if the parent requests a fair hearing within the 12-day notification period, as noted in sec.10.3467(3) of this title (relating to Rights of People Applying for Child Care Services Through the Child Care Management Services (CCMS) System). Child care services will not continue during the appeal process if the child's enrollment is denied, delayed, reduced, or terminated because of: (1) excessive absences; (2) voluntary withdrawal from child care services as stated in sec.10. 3429 of this title (relating to Termination of Enrollment Due to Excessive Absences); (3) change in federal or state laws or regulations; (4) lack of funding; (5) Job Opportunities and Basic Skills (JOBS) clients being recommended for sanctioning; or (6) voluntary withdrawal of a JOBS client from the JOBS program. (b) The cost of providing services during the appeal process is subject to recovery from the parent by the CCMS contractor, if the appeal decision is against the client. sec.10.3474. Reapplication for Vendor Status After Termination or Nonrenewal of the Vendor Agreement. (a) If a Vendor Agreement has not been renewed or has been terminated for violations with the Vendor Agreement, the Child Care Management Services (CCMS) Vendor Manual or minimum licensing standards, the child care provider will have to wait for up to six months after the termination date of the Vendor Agreement before reapplying. (b) The reapplication period depends upon the reason for the termination or nonrenewal of the CCMS Vendor Agreement. (c) The CCMS contractor must determine the reapplication period in accordance with Texas Department of Human Services' policies and procedures in the CCMS Contractor Manual. (d) The child care provider must be informed at the time of the termination or nonrenewal of the Vendor Agreement when they may reapply for vendor status. sec.10.3475. Responsibility of the Texas Department of Human Services (DHS) for Establishing Procedures for Quality Assurance (QA) Monitoring of Child Care Management Services (CCMS) Contractors and Recoupment Based on Quality Assurance Monitoring Findings. (a) QA Monitoring. DHS establishes procedures to monitor CCMS contractors. DHS: (1) establishes QA monitoring procedures using statistically valid sampling and extrapolation methodologies; (2) selects a statistically valid random sample of the cases or claims for which the CCMS contractor received payment for the time under review and examines records for those cases or claims; (3) establishes indicators of contractor performance; and (4) establishes reasonable standards for performance indicators. (b) Recoupment based on QA monitoring findings. DHS establishes procedures to recoup administrative costs of CCMS contractors who fail to meet standards for selected performance indicators. (1) DHS establishes procedures to recoup administrative costs of CCMS contractors based on statistically valid sampling and extrapolation methodologies. (2) The scope of the recoupment is limited to errors in the sample and the determination of amounts to be recouped are based on the CCMS contractors' administrative costs associated with the staff functions related to the QA monitoring findings as determined by statistically valid time studies. However, DHS's recoupment of administrative costs related to QA monitoring findings is not the limit of CCMS contractor's liability. The errors in the sample may be extrapolated to the entire population in order to recover child care costs and/or additional costs of administration when: (A) DHS is found liable for QA monitoring findings by other regulatory agencies; or (B) the scope and severity of the contractor's failure to perform warrants greater liability. sec.10.3477. Responsibilities of the Child Care Management Services (CCMS) Contractor for Recovery of Overpayment for Child Care Services. (a) The CCMS contractor must attempt recovery of overpayment in cases involving parents, caretakers, vendors, or providers who have received or requested child care reimbursements. (b) With Texas Department of Human Services (DHS) concurrence, the CCMS contractor will also attempt recovery of overpayment in cases involving fraud. (c) Recovery of overpayment will be attempted for all overpayments. Further attempts for recovery of overpayments will occur when the overpayment amount equals or exceeds the costs of recovery. (d) Recovery of overpayment must be managed in accordance with the DHS policies and procedures in the CCMS Contractor Manual. sec.10.3478. Responsibilities of the Child Care Management Services (CCMS) Contractor for Handling Suspected Fraud. When a fraud case is suspected, the CCMS contractor must: (1) document in writing the reason for suspecting fraud; (2) refer the information to the Texas Department of Human Services (DHS); and (3) with DHS concurrence, put a hold on further payments to the vendor, provider, parent, or caretaker. 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 authority. Issued in Austin, Texas, on October 10, 1994. TRD-9449262 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 450-3765 The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.10. 1004, 10.1007, 10.1008, 10.3403, 10.3408, 10.3414-10.3419, 10.3422-10.3424, 10. 3432, 10.3433, 10.3441, 10.3443, 10.3444, 10.3447, and 10.3454; adopts amendments to sec.sec.10.3406, 10.3420, 10.3426, 10.3435, 10.3437, 10.3445, 10. 3453, and 10.3465; and adopts new sec.sec.10.3403, 10.3408, 10.3414-10.3419, 10. 3422-10.3424, 10.3432, 10.3433, 10.3441, 10.3443, 10.3444, 10.3447, and 10. 3479-10.3484, concerning eligibility determination and child care services in its Self-support Services rule chapter. The new sec.sec.10.3403, 10.3432, and 10. 3433 are adopted with changes to the proposed text as published in the June 17, 1994, issue of the Texas Register (19 TexReg 4729). The amendments to sec. sec.10.3406, 10.3420, 10.3426, 10.3435, 10.3437, 10.3445, 10.3453, and 10.3465; and new sec. sec.10.3408, 10.3414-10.3419, 10.3422-10.3424, 10.3441, 10.3443, 10. 3444, 10.3447, and 10.3479-10.3484 are adopted without changes to the proposed text, and will not be republished. The proposal to amend sec.10.3463 and sec.10.3464, which also appeared in the June 17, 1994, issue of the Texas Register (19 TexReg 4729) was withdrawn effective August 23, 1994, in the August 30, 1994, issue of the Texas Register (19 TexReg 6835). The justification for the amendments and new sections is to clarify current concepts, and include new concepts for child care services. The amendments and new sections will function by ensuring that public funds will be appropriately spent for child care services by holding clients, vendors, and contractors accountable for the use or misuse of public funds. During the public comment period DHS received comments from YWCA of El Paso, Board of the Day Care Association of Fort Worth and Tarrant County, and Better Influence Association. A summary of the comments and DHS's responses follow: Comment: Each of the comments received indicated that DHS should not oversee the CCMS Advisory Council or approve membership on the CCMS Advisory Council. Response: In sec.10.3403(e), DHS removed the concept of oversight by changing the phrase "oversees operation of the advisory council, and approves" to the phrase "will verify." Editorial changes have been made by DHS to sec.10.3432 and sec.10.3433. In sec.10.3432, the words "or review" were added to the second sentence in subsection (a) to correct the inadvertent omission of this phrase. In sec.10. 3433(h), the word "the" before DHS was deleted as it was not needed. Eligibility Determination 40 TAC sec.sec.10.1004, 10.1007, 10.1008 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and federally established day care programs. The repeals implement the Human Resources Code sec.22.002 and sec.44.002. 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 authority. Issued in Austin, Texas, on October 7, 1994. TRD-9449202 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 450-3765 Child Care Management Services Statewide Implementation 40 TAC sec.sec.10.3403, 10.3408, 10.3414-10.3419, 10.3422-10.3424, 10.3432, 10.3433, 10.3441, 10.3443, 10.3444, 10.3447, 10.3454 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and federally established day care programs. The repeals implement the Human Resources Code sec.22.002 and sec.44.002. 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 authority. Issued in Austin, Texas, on October 7, 1994. TRD-9449203 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 450-3765 Child Care Services 40 TAC sec.sec.10.3403, 10.3406, 10.3408, 10.3414-10.3420, 10. 3422-10.3424, 10.3426, 10.3432, 10.3433, 10.3435, 10.3437, 10.3441, 10.3443-10. 3445, 10.3447, 10.3453, 10.3465, 10.3479-10.3484 The amendments and new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and federally established day care programs. The amendments and new sections implement the Human Resources Code sec.22. 002 and sec.44.002. sec.10.3403. Child Care Management Services (CCMS) Child Care Advisory Council. (a) The CCMS contractor must organize and maintain a child care advisory council. (b) The CCMS child care advisory council provides recommendations to the CCMS contractor on services provided by the CCMS contractor. (c) The advisory council must represent the area served by the CCMS contractor and must be balanced geographically, ethnically, economically, and by provider type. (d) The advisory council must include parents and child care providers. The advisory council must also include representatives of the following groups, if the group exists in a particular CCMS service delivery area: (1) resource and referral agencies; (2) early childhood intervention (ECI) programs; (3) public school education programs; (4) Head Start programs; (5) employment and training programs; (6) child care associations; (7) child care staff training providers; and (8) other agencies that provide services or funding for child care. (e) The Texas Department of Human Services (DHS) will verify the composition of the membership. (f) A DHS regional staff person must attend meetings of the advisory council as an ex-officio member. (g) The CCMS child care advisory council must meet at least three times per year; and as deemed necessary by the advisory council chair in order to address advisory council business. (h) Notice of all advisory council meetings must be posted in a public place at least 72 hours in advance of the scheduled meeting. (i) The CCMS child care advisory council may be reimbursed for travel and related expenses. sec.10.3432. Audits of Child Care Management Services (CCMS) Contractors. (a) All CCMS contractors are subject to audit or review by the Texas Department of Human Services (DHS). DHS may audit or review all relevant records or statistically sample records and project findings, including overpayments, based on that sample. DHS may also audit cost or rate study data submitted by the CCMS contractor. (b) CCMS contractors subject to the Single Audit Act must have an independent audit performed in compliance with either the Office of Management and Budget Circular A-128 or A-133. The audit must be approved by the cognizant agency for the CCMS contractor, with a copy provided by the CCMS contractor to DHS for review by DHS. The CCMS contractor may be reimbursed by DHS for the CCMS share of audit expenses if funding is available, the audit is found to be acceptable upon review by DHS, and the audit and reimbursement request follow DHS policies and procedures specified in the CCMS Contractor Manual. (c) Operations expense is subject to additional review as part of the CCMS contractor's organization-wide single audit or audit by DHS or other authorized agencies, as determined and approved by DHS. sec.10.3433. Basis of Payment for Child Care Management Services (CCMS) Contractor Operations Expense. (a) The Texas Department of Human Services (DHS) uses a cost-based methodology as the basis of payment for the operating expenses of CCMS contractors. Under this method, there is a different budget and treatment for each major category of expense. The major expense categories for operations are direct staffing, direct staff fringe benefits, and other operating expense. (b) The CCMS contractor and DHS negotiate budgets for each of the major cost categories to form the basis of payment for the operating expenses of the CCMS contractor. (c) The maximum reimbursed for a contract period is the lesser of the total budgeted operations cost or actual, reasonable, allowable, properly allocated cost. Shifts between budget categories and line items are allowed subject to the terms of the contract and the Contractor Manual. At the end of each contract period, the CCMS contractor must reconcile payments from DHS to actual, reasonable, allowable, properly allocated cost, subject to the overall limitation of the total amount budgeted for CCMS operations. (d) Costs are determined to be reasonable, allowable, and properly allocated in accordance with Office of Management and Budget Circular A-21, A-87, and A- 122, and other applicable federal and state statutes and regulations. There is no provision for profit in budgeting, payment, or reimbursement of CCMS operations expense. (e) For direct staffing, DHS pays the CCMS contractor on a budget-based cost reimbursement basis. Each month, the CCMS contractor bills DHS for the actual, reasonable, allowable, properly allocated expense for direct staff performing CCMS operations functions. The cumulative amount paid for the contract period must not exceed the direct staffing budgeted amount. (f) For direct staff fringe benefits, DHS pays the CCMS contractor on a budget-based rate basis. Each month, the CCMS contractor bills DHS a set rate(s) based on the actual CCMS salary and wage expense and/or the number of CCMS full- time equivalent positions. At the end of the contract period, the CCMS contractor reconciles actual, reasonable, allowable, properly allocated fringe benefit expense to billed fringe benefit expense. If the amount paid by DHS was less than the actual, reasonable, allowable, properly allocated fringe benefits expense, the CCMS contractor is entitled to payment for the difference, up to the budget limit. If the actual, reasonable, allowable, properly allocated fringe benefits expense is less than the amount paid by DHS, the CCMS contractor must refund the difference. (g) For other CCMS operations expenses, such as occupancy, telephone, equipment, indirect, and miscellaneous, DHS pays the CCMS contractor on a budget-based fixed-fee basis. The budget for these expenses is divided by the number of months in the contract period to determine a monthly fee to be billed by the CCMS contractor to DHS each month during the contract period. At the end of the contract period, the CCMS contractor reconciles billed amounts to the actual, reasonable, allowable, properly allocated cost for the contract period. If the amount paid by DHS is less than the actual, reasonable, allowable, properly allocated other CCMS operations expense, the CCMS contractor is entitled to payment for the difference, up to the budget limit. If the actual, reasonable, allowable, properly allocated other expense is less than the amount paid by DHS, the CCMS contractor must refund the difference. (h) All categories of CCMS operating expense are subject to billing on a cost reimbursement basis when DHS determines that the CCMS contractor has overbilled or failed to document expenses. (i) DHS may use cost reimbursement or a modified cost-based fixed fee basis of payment for the expense associated with special projects. 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 authority. Issued in Austin, Texas, on October 7, 1994. TRD-9449204 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: June 17, 1994 For further information, please call: (512) 450-3765 Child Care Services 40 TAC sec.sec.10.3413, 10.3463, 10.3464, 10.3469 The Texas Department of Human Services (DHS) adopts amendments to sec.sec.10. 3413, 10.3463, and 10.3464; and adopts new sec.10.3469, concerning eligibility requirements for child care services, in its Self-support Services rule chapter, without changes to the proposed text as published in the August 30, 1994, issue of the Texas Register (19 TexReg 6828). The justification for the amendments and new section is to comply with federal regulations regarding income eligibility. The amendments and new section will function by giving priority to those families with the lowest incomes that are composed of seven or more members. No comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and day care programs. The amendments and new section implement the Human Resources Code, sec.22. 002(c) and sec.44.002(a). 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 October 4, 1994. TRD-9449077 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: August 30, 1994 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled Minimum Standards for Adult Foster Care 40 TAC sec.48.8907 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 8907, without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6995). The justification for the amendment is to require the adult foster care provider to notify DHS when the provider or a family member is the subject of an adult protective services' investigation. The amendment will function by ensuring that the adult foster care caseworker has information about any adult protective services' investigation in an adult foster care home, thus ensuring the safety of all clients. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which provides the department with the authority to administer public assistance programs. The amendment implements sec.22.001 of the Human Resources Code. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on October 7, 1994. TRD-9449215 Nancy Murphy Section Manager, Media and Policy Support Texas Department of Human Services Effective date: November 1, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 450-3765 Part X. Texas Employment Commission Chapter 302. Employment Service 40 TAC sec.302.1 The Texas Employment Commission adopts the repeal of sec.302.1, concerning documents required for registration for work, currently requiring the documents necessary to complete an I-9, without changes to the proposed text as published in the August 9, 1994, issue of the Texas Register (19 TexReg 6213). The repeal will result in an estimated yearly reduction in cost of $61,000 for state government. These costs include special paper, envelopes, and postage. Once the repeal is final, the Commission would no longer complete I-9s on all applicants registering with the Commission. Employers will be notified of the rule change through a postal mailing to all employers covered by the Texas Unemployment Compensation Act. Those employers doing business with the Texas Employment Commission will be notified of the repeal upon first contact after the effective date of the rule change. Texas Citrus and Vegetable Association submitted comment against the repeal of the section. The Association indicated that TEC's preparation of I-9s for its members was a valuable service that should be continued. The Texas Employment Commission will work with the Texas Citrus and Vegetable Association to arrive at a solution on the completion of I-9s for the benefit of their membership. The repeal will end the universal preparation of I-9s for job applicants registering with TEC. It will not prevent the preparation of I-9s for groups of employers who strongly desire this service. The repeal of the rule is adopted under Texas Labor Code, Title 4, Subtitle A (formerly Texas Civil Statutes, Article 5221b), which provides the Texas Employment Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of this Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on October 6, 1994. TRD-9449160 J. Ferris Duhon Legal Counsel Texas Employment Commission Effective date: December 1, 1994 Proposal publication date: August 9, 1994 For further information, please call: (512) 463-2291 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 23. Travel Information Subchapter A. General Provisions 43 TAC sec.23.2 The Texas Department of Transportation adopts an amendment to sec.23.2, concerning Definitions, without changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5699). This section is amended by adding the terms of card, magazine, and program. The amendment is necessary because of the contemporaneous proposed adoption of new sec.23.26, concerning Magazine Discount Card Program. On August 8, 1994, the department conducted a public hearing on the proposed amendment and no comments were received. The amendment is adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Texas Civil Statutes, Article 6144e, which designates responsibility to the department for encouraging travel to and within Texas. 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 authority. Issued in Austin, Texas, on October 3, 1994. TRD-9448977 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 24, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-8630 Subchapter B. Travel Information 43 TAC sec.23.10 The Texas Department of Transportation adopts an amendment to sec.23.10, concerning travel literature, with changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5700). In order to further encourage travel to and within the state of Texas and to meet the demand of an increasing number of potential travelers requesting travel publications by allowing for more efficient and extensive distribution, subsection (c) is amended to: provide that distribution of multiple quantities of travel literature is subject to inventory and budgetary constraints; authorize the department to deny the distribution of multiple quantities if it determines that the copies will not assist the traveling public and stimulate travel to or within the state; and authorize multiple quantities to elected state and federal officials for use in their official duties. Furthermore, in order to offset some of the costs of publishing travel literature with revenues from advertising, new subsection (d) is added to: authorize the department to accept paid advertising in travel literature; list acceptable and unacceptable subjects for advertising; require the department to publish information about available advertising and maintain a mailing list of all interested persons; provide for a 30-day notice of advertising opportunities; require the acceptance of advertising on a first-come, first- served basis; and authorize random solicitation by the department if no orders are received. On August 8, 1994, the department conducted a public hearing to seek comments concerning proposed amendments to sec.23.10, concerning the distribution of travel literature and inclusion of paid advertising in various travel literature publications. One commenter gave oral testimony at this hearing, and one written comment was received by mail. One commenter recommended that alcohol products be included as an acceptable advertising product. The commenter said that alcohol beverage companies "have set up alcohol-awareness education programs, including knowing your limit, not drinking and driving, and assigning a driver within the group, etc." The department believes that it would be inappropriate to carry paid advertising for alcohol companies, even if the message in the advertisement were towards such education against mixing alcohol with the operation of a vehicle used for transportation. Such educational messages sponsored by an entity with no economic interest in the marketing of alcohol would be a more appropriate source of messages that warn against alcohol use and vehicle operation. Therefore, the department will continue to include alcohol beverages on its list of products that cannot be advertised in travel publications. One commenter requested the specific inclusion on the mailing list of "advertising agencies," in addition to different entities and individuals. Advertising agencies are entities and already are included. Therefore, subparagraph (A) will remain as proposed. The same commenter suggested that a second mailing be done as a reminder during the 30 to 45-day period after the initial mailing of the rate card to the entire mailing list. The department agrees that a second mailing as a reminder is a good idea and that it would further serve as a confirmation that an earlier mailing had taken place in the event that it did not reach its intended destination. Therefore, subparagraph (D) is revised to provide for a second mailing to the entire mailing list. The commenter recommended that a sample of the publication be included in the initial mailing, along with the rate card information. The department agrees that this should be done, if possible. If the publication will undergo radical changes or if the publication is new and has never before been published, a description of the publication will be substituted for the sample. The subparagraph is revised to reflect this. The commenter also suggested that advertisers in the current edition of a publication be given a first right of refusal for the following years. It was pointed out by the commenter that this was a standard practice in the advertising industry. The commenter proposed that the advertiser in the current edition be granted a first right of refusal for the same size and position in the next edition. If that advertiser declines, another advertiser in the current edition with the same size advertisement may improve position in the next edition The amendments to this section implement a new program for the department, and as yet, the demand or market for advertising in department travel literature is undetermined. As a government program, accessibility and opportunity for all potential advertisers should be as open as possible. In these initial procedures, this policy is best served by the section as proposed. The department will continue to review and evaluate the procedures, and may revisit this issue at a later time, after the department has developed more experience in advertisement solicitation for department travel literature. Another commenter expressed agreement about including advertising in travel literature publications, but did not agree with what was termed "the lottery system of sales." The commenter's understanding was that potential advertising customers would have to submit their names in advance of their ability to buy advertising space and would then be selected by random sort in the computer. The section requires the department to set up and maintain a mailing list of entities and individuals likely to be interested in advertising in the publications. The department will add anyone to this list who expresses a desire to be included. All entities and individuals on this list are sent notification about advertising in a particular travel literature publication at the same time. After a 30-day period, the department will accept advertising insertion orders on a first-come, first-served basis. A random computer sort is done by the department only if space remains unsold at the end of 45 days from the first mailing. This sort does not affect those who have submitted insertion orders for the publication. It only requires the department, when soliciting sales, to do so in a random, unbiased fashion, thereby ensuring equitable treatment. This requirement is consistent with the department's policy of assuring equal access to department advertising opportunities. The department will make no changes to the section as a result of this comment. The amendment is adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Texas Civil Statutes, Article 6144e, which authorizes the department to compile and publish pamphlets, bulletins, and documents necessary for information and publicity purposes concerning the highways of the state and to provide road information, travel guidance, and various descriptive materials designed to furnish aid and assistance to the traveling public and stimulate travel to and within Texas. sec.23.10. Travel Literature. (a) Purpose. The Texas Department of Transportation, pursuant to Texas Civil Statutes, Articles 4413(33) and 6144e, publishes travel literature for free distribution to the traveling public. This section sets forth department policies and procedures relating to the production, development, printing, advertising content, and distribution of that literature. (b) Subject matter. (1) The director, or the director's designee, may select subject matter concerning geographic locations, events and other items or points of interest to the general traveling public for inclusion in department travel literature provided that: (A) the subject matter is regularly accessible (open) to the general public; and (B) the subject matter is not a routine commercial service, including, but not limited to: (i) car rentals; (ii) hospitals or medical facilities; (iii) retail stores or shopping centers; or (iv) commercial facilities such as theaters, bowling alleys, and gyms. (2) The department may consider for inclusion in travel literature, subject matter submitted by a person or organization, with complete information to the division prior to the publishing deadline announced for each specific travel literature publication. (c) Distribution. (1) Policy. This subsection prescribes the policies and procedures of the department relating to the distribution and dissemination of travel literature to: (A) provide for equitable free distribution, within budgetary constraints, of available travel literature; and (B) maximize the resources of the department available to advertise the highways of the state and to promote travel to and within the state. (2) Single copies. A single copy of a publication may be distributed free of charge to each individual requesting a publication. (3) Multiple copies or bulk quantities. (A) Except as provided in paragraph (4) of this subsection, and subject to inventory and budgetary constraints, the department may distribute multiple copies or bulk quantities of a publication to an individual or organization free of charge, provided that the recipient, in a written form prescribed by the department: (i) certifies that all copies of publications will be redistributed to the public or end user free of charge; and (ii) describes how the copies will assist the traveling public and stimulate travel to or within the state. (B) The director may deny the distribution of multiple copies or bulk quantities under this paragraph if he or she determines that the copies will not assist the traveling public and stimulate travel to or within the state. The director will provide to an individual or organization written notice of a decision to deny copies. Such notice will contain the reasons for the director's denial. (4) Exceptions. Subject to inventory and budgetary constraints, the department may provide multiple quantities of travel literature: (A) free of charge, to each elected state and federal official, for use in their official duties; (B) to the tourism division of the Texas Department of Commerce, the Texas Education Agency, local governmental entities involved in tourism, and other state and federal agencies, on such written terms and conditions as may be mutually agreed upon; and (C) to other individuals and entities if the recipient: (i) reimburses the department for its costs to print the additional quantities; and (ii) satisfies the requirement of paragraph (3)(A)(i) of this subsection. (d) Commercial cooperation. The department may, consistent with Texas Civil Statutes, Articles 601b and 601g, and Texas Constitution, Article XVI, Section 21, enter into cooperative contracts with commercial entities for production, marketing, and distribution of department travel literature to achieve: (1) greater volume; (2) reduced cost to the department; (3) higher quality; (4) wider circulation; and (5) other considerations that will achieve more effective or more economical production and distribution of travel literature than could be attained by departmental efforts alone. (e) Advertising. (1) General policy. Texas Civil Statutes, Article 6144e, empowers the department to publish literature for the purpose of advertising the highways of this state and attracting traffic thereto. In furtherance of that purpose of assisting and encouraging travel in Texas, the department may include certain paid advertising in travel literature, provided that the quality and quantity of the primary informational content is not impaired. (2) Acceptable subjects. Subjects acceptable for advertising in department travel literature include: (A) Texas vacation, travel or tourism-related features, sites, facilities, destinations, accommodations, restaurants, and services; (B) Texas shopping opportunities; (C) pleasure-driving features, equipment, facilities, destinations, and services; (D) recreational features, sites, equipment, facilities, and services; (E) camping, hiking, fishing, boating, and outdoor features, sites, equipment, facilities, and services; (F) public transportation modes, products, facilities, and services; and (G) other features, sites, products, equipment, facilities, and services relating to travel and tourism. (3) Unacceptable subjects. Advertising subjects not acceptable in department travel literature include: (A) out-of-state travel-tourism features, locations, destinations, facilities, and services unless augmenting Texas travel or tourism; (B) alcoholic beverages; (C) tobacco products; (D) sexually-oriented products and services; and (E) other subjects not related to travel and tourism. (4) Advertising sales and solicitations. (A) Mailing list. Any entity or individual interested in advertising in department travel literature will be included in the department's mailing list upon request. The department will annually publish in the Texas Register an invitation to be added to the mailing list. (B) Publication of rate cards. The department will calculate and prepare advertising rate cards for each travel literature publication deemed by the department as appropriate for advertising. The department will publish the rate cards at least semi-annually in the Standard Rate and Date Service (SRDS) publication, Consumer Magazine and Agri-Media Rates and Data, and other SRDS publications. The department will also annually publish rate card information in the Texas Register. (C) Content of rate cards. Rate cards will include information about: (i) available advertising space and positions; (ii) costs; (iii) publication issue and closing dates; (iv) circulations; (v) publisher's editorial profile; and (vi) other related information. (D) Procedure for selling advertising. (i) The department will mail rate card information and a sample or description of the publication to every entity or individual on the mailing list on the same date, approximately 12 months prior to the publication closing date. During that 12-month period, the department will also mail the information upon request to any other entity or individual not on the list. After the fifteenth day following the date of the original mailing, the department will mail a reminder to every entity or individual on the mailing list. The reminder will allow recipients to request the rate card and sample or description if they did not receive the first mailing. (ii) On and after the 31st day following the initial date of mailing, the department will accept all insertion orders (orders for paid advertising) received prior to the publication deadline on a first-come, first-serve basis or until all advertising space for a particular publication is filled. Insertion orders postmarked or received prior to the end of the 30-day period will not be accepted. If more than one insertion order is received on the same day for the same space in a publication, the department will select an insertion order for acceptance by use of random computer selection. (iii) On and after the 46th day following the initial date of mailing, if advertising space remains unfilled, the mailing list will be randomly sorted by computer. Each entity or individual will be contacted in that order or sequence to solicit any remaining advertising space. (5) Restrictions. (A) The department will not accept advertising it considers to be misleading or a misrepresentation of facts. (B) The department will not accept advertising from a entity that discriminates against customers on the basis of race, color, creed, religion, sex, or national origin. 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 authority. Issued in Austin, Texas, on October 3, 1994. TRD-9448979 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 24, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-8630 Subchapter C. Texas Highways Magazine 43 TAC sec.23.26 The Texas Department of Transportation adopts new sec.23.26, concerning Magazine Discount Card Program, with changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5702). In order to further encourage travel to and within the state of Texas and to increase the number of subscribers to Texas Highways by furnishing a discount card to each paid subscriber, the department is adopting new sec.23.26 to: enable magazine subscribers to obtain travel-related goods and services at discounted prices; authorize the department to issue a discount card at no cost to paid subscribers to Texas Highways upon new or renewed subscriptions; list acceptable and unacceptable products and services for businesses eligibility; describe how businesses may apply and the conditions for participation in the program; authorize the maintenance and publishing in Texas Highways of the list of participating businesses; and authorize the department to remove a business from the program for noncompliance with its stated discount. On August 8, 1994, the department conducted a public hearing to seek comments concerning the proposed adoption of new sec.23.26, pertaining to the Magazine Discount Card Program, and an amendment to sec.23.2, pertaining to definitions. One commenter gave oral testimony at this hearing, and no written comments were received. The Texas Travel Industry Association (TTIA) commented in favor of the proposal, except for one suggestion. The TTIA expressed support of the Texas Highways Travel Passport and stated that the "rules that are set forth are very workable." However, this speaker questioned one element of sec.23.26(c)(2), concerning replacement of lost cards. The proposed paragraph requires renewal or extension of the paid subscription to Texas Highways in order to get a replacement card. The TTIA asked that consideration be given to replace lost cards without requiring a renewal or extension of the subscription. The department agrees with this suggestion. Section 23.26(c)(2) is revised to provide for the replacement of lost cards upon payment of a fee of $1.00 for U. S. destinations or $2.50 for foreign destinations. The fee is intended to offset the cost to the department for the replacement card. The new section is adopted under Texas Civil Statutes, Articles 6666, which provide the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation, and Texas Civil Statutes, Article 6144e, which designates responsibility to the department for encouraging travel to and within Texas. sec.23.26. Magazine Discount Card Program. (a) Purpose. In furtherance of the department's legislative responsibility to encourage travel to and within Texas as prescribed by Texas Civil Statutes, Article 6144e, and to promote paid circulation of Texas Highways magazine, this section establishes a Texas Highways Magazine Discount Card Program to enable magazine subscribers to obtain travel-related goods and services at discounted prices. (b) Program. The department will issue a Texas Highways Travel Passport at no cost to paid subscribers of Texas Highways Magazine to enable subscribers to obtain discounts on goods and services offered by participating businesses. (c) Issuance of cards. (1) Card issuance. The department will issue a card to paid subscribers upon new or renewed subscription to the magazine. (2) Replacement. During the subscription term, the department will replace a lost card for a fee of $1.00 for U.S. destinations or $2.50 for foreign destinations. The fee will be used to offset the cost of the replacement card. (3) Expiration. Each card will expire at the end of the subscription term and is valid until the last day of the month shown on the card. (d) Business eligibility. (1) The department will accept as a participant in the program a business that sells products or services relating to: (A) Texas vacation, travel, or tourism related features, sites, facilities, destinations, accommodations, restaurants, and services; (B) Texas shopping opportunities; (C) pleasure driving features, equipment, facilities, destinations, and services; (D) recreational features, sites, equipment, facilities, and services; (E) camping, hiking, fishing, boating, and outdoor features, sites, equipment, facilities, and services; (F) public transportation modes, products, facilities, and services; or (G) other features, sites, products, equipment, facilities, and services of interest to traveling and vacationing individuals and families. (2) The department will not accept as a participant in the program a business that sells products or services relating to: (A) out-of-state travel-tourism features, sites, destinations, facilities, and services; (B) alcoholic beverages, except that a restaurant that serves alcoholic beverages with meals will not be excluded if the discount does not apply to such beverages; (C) tobacco products; (D) sexually oriented products and services; and (E) other products and services not related to travel and tourism. (3) The department will not accept as a participant in the program a business that discriminates against customers on the basis of race, color, creed, religion, sex, or national origin. (e) Business participation. (1) Except as provided in paragraph (2) of this subsection, to participate in the program, an eligible business must: (A) file an application in the form and manner prescribed by the department with the publisher of the magazine; (B) upon approval of the application, sign an agreement with the department whereby the business agrees to abide by terms and conditions prescribed by the department; and (C) offer a discount on travel-related goods or services to magazine subscribers. (2) An association or trade group may, on behalf of eligible business members, contract with the department to provide for their participation in the program. (f) Publication. The department will maintain a list of participating businesses, and will publish the list in the magazine periodically. (g) Removal of business. The director may remove a business from the department's list of participating businesses based on noncompliance with the business' stated amount or nature of its discount, the provisions of this section, or an agreement with the department. A business will be provided written notice of noncompliance, and if not resolved within 30 days, the director will remove the business from the list. A business may appeal removal by filing a petition for an administrative hearing under sec.sec.1.21-1.63 of this title (relating to Contested Case Procedure). (h) Cancellation of program. The department may cancel the program upon a 60- day written notice to participating businesses. The department will notify cardholders at least 90 days prior to cancellation. 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 authority. Issued in Austin, Texas, on October 3, 1994. TRD-9448978 Diane L. Northam Legal Executive Assistant Texas Department of Transportation Effective date: October 24, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-8630 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Articles 5.96 and 5.97, the Texas Register publishes notices of actions taken by the Department of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the Department of Insurance, 333 Guadalupe Street, Austin.) The Commissioner of Insurance at a public hearing held on October 3, 1994, at 9:00 a.m., under Docket Number 2111, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, Texas, adopted two new endorsements, Endorsement Number FRO-421 to be attached to the Texas Farm and Ranch Owners Policy and Endorsement Number TFR-080 to be attached to the Texas Farm and Ranch Policy, to provide windstorm, hurricane, and hail coverage for greenhouses located on a farm and ranch residence premises and used for farming purposes. The Commissioner also adopted new Texas Personal Lines Manual (Manual) rules to govern the use of these endorsements and provide appropriate rates (Rules IV.Q. and IV.R. in the Farm and Ranch Section and Rules IV.A.13 and IV.A.21 and Premium Chart 25 in the Farm and Ranch Owner's Section). The endorsements and rules were proposed by staff to restore windstorm, hurricane, and hail coverage for greenhouses eligible for such coverage under a Texas Farm and Ranch Owner's Policy and a Texas Farm and Ranch Policy. This coverage was inadvertently omitted when these two policy forms were revised into simplified easy-to-read language. Notice of this proposal (Reference Number P-0894-17-I) was published in the August 19, 1994, issue of the Texas Register (19 TexReg 6602). The staff's proposal was adopted without changes to the proposal as published. The Commissioner has determined that the two new endorsements are necessary to restore the option to Farm and Ranch policyholders and Farm and Ranch Owner's policyholders to purchase for an additional premium windstorm, hurricane, and hail coverage for greenhouses located on a farm and ranch residence premises and used for farming purposes. The Commissioner has further determined that new Manual Rules IV.Q. and IV.R. in the Farm and Ranch Section and Rules IV.A.13 and IV.A.21 and Premium Chart 25 in the Farm and Ranch Owner's Section are necessary to govern the use of these endorsements and provide appropriate rates. The Commissioner has determined that the new endorsements and Manual rules will become effective for all affected policies issued on and after November 1, 1994. The Commissioner has jurisdiction of this matter pursuant to the Insurance Code, Articles 5.35, 5.101, 5.96, and 5.98. The newly adopted endorsements and Manual rules are on file in the Chief Clerk's Office of the Texas Department of Insurance under Reference Number P- 0894-17-I and are incorporated by reference by Commissioner Order Number 94- 1069. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts action taken under Article 5.96 from the requirements of the Administrative Procedures and Texas Register Act (Administrative Procedure Act, 73rd Legislature, Regular Session, Chapter 268, sec.1, 1993 Texas General Laws 737 (codified at Government Code, Title 10, Subtitle A, Chapter 2001)). Consistent with the Insurance Code, Article 5.96(h), prior to November 1, 1994, the effective date of this action, the Texas Department of Insurance will notify all insurers affected by this action. This agency hereby certifies that the adopted amendments have been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. IT IS THEREFORE THE ORDER of the Commissioner of Insurance of the Texas Department of Insurance that Endorsement Number FRO-421 to be attached to the Texas Farm and Ranch Owners Policy and Endorsement Number TFR-080 to be attached to the Texas Farm and Ranch Policy and as specified herein be adopted. IT IS FURTHER ORDERED that Texas Personal Lines Manual Rules IV.Q. and IV.R. in the Farm and Ranch Section and Rules IV.A.13 and IV.A.21 and Premium Chart 25 in the Farm and Ranch Owner's Section be adopted to govern the use of these endorsements and provide appropriate rates. IT IS FURTHER ORDERED that these endorsements and rules shall be effective for all affected policies issued on and after November 1, 1994. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on October 7, 1994. TRD-9449243 D. J. Powers General Counsel and Chief Clerk Texas Department of Insurance Effective date: November 1, 1994 For further information, please call: (512) 463-6327