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 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Telephone 16 TAC sec.23.92 The Public Utility Commission of Texas adopts an amendment to sec.23.92, with changes to the proposed text as published in the May 6, 1994, issue of the Texas Register (19 TexReg 3410). All local exchange companies (LECs) that have interstate expanded interconnection tariffs in effect will be required to comply with the rule as amended. The amendments provide definitions for terms used in the section and clarify the requirements for expanded interconnection for intrastate special access and private line services. The amendments also require each affected local exchange company to file tariffs offering expanded interconnection for intrastate switched transport service at the same locations, in the same manner, and except for price, under the same terms and conditions as it offers expanded interconnection for interstate switched transport. The amendments establish deadlines and the procedure for filing of tariff changes required by the rule. Finally, the amendments provide for waivers, voluntary agreements, bona fide requests for service at locations not covered by the interstate tariffs and utilization of collocation space and facilities. The public benefit anticipated as a result of enforcing the rule is enhanced competition in the local transport market which in turn should increase incentives for efficiency, foster rapid deployment of advanced technologies that facilitate new and innovative services, and bring prices of the affected services closer to costs. It should also provide additional service choices to customers that value redundancy and route diversity, as well as increase access providers' responsiveness to customers in the provision of existing services. On September 17, 1992, the Federal Communications Commission (FCC) adopted its initial Report and Order in CC Docket Number 91-141, Expanded Interconnection with Local Telephone Company Facilities, FCC 92-440, 7 FCC Rcd. 7369. The order required that all Tier 1 LECs file interstate tariffs offering expanded interconnection for interstate special access services. The order also specified that the appropriate method (network architecture) that should be used to accomplish expanded interconnection was "physical collocation"-requiring the LECs to allow interconnectors to physically locate their equipment in LEC central offices. Believing that the new FCC policies would have a beneficial effect upon competition and on the provision of services by LECs in Texas, the Commission adopted Substantive Rule sec.23.92 on February 1, 1994. The rule required that all Texas LECs having interstate expanded interconnection tariffs in effect, file intrastate expanded interconnection tariffs for intrastate special access and private line services. The LECs were to file intrastate tariffs that offered expanded interconnection " at the same locations, in the same manner, and, except for price, under the same terms and conditions as it offers expanded interconnection for interstate special access service, unless ordered otherwise by the Commission." By requiring the LECs to mirror their interstate tariffs, the Commission indicated its agreement with comments that the interconnection architecture for intrastate services should be the same as for similar interstate services. Although the rule did not specifically require the use of physical collocation, by requiring the intrastate tariffs to "mirror" the interstate tariffs, the Commission was implicitly requiring the use of the FCC-approved physical collocation architecture in lieu of the alternative "virtual collocation" architecture. On August 3, 1993, the FCC issued its Second Report and Order and Third Notice of Proposed Rulemaking in CC Docket Number 91-141, Expanded Interconnection with Local Telephone Company Facilities, 8 FCC Rcd. 7374. The FCC order expanded the scope of the initial order by requiring that all Tier 1 LECs submit tariffs to offer expanded interconnection for the local transport portion of interstate switched access service. As with special access services, the FCC required that expanded interconnection be accomplished through physical collocation. On May 6, 1994, the Commission proposed the current amendments seeking to require that Texas LECs subject to the FCC order also offer interconnection for intrastate switched access transport on the same basis as they offer interconnection for the interstate service. On June 10, 1994, the U.S. Court of Appeals for the District of Columbia Circuit issued its opinion in Bell Atlantic Telephone Company et al v. Federal Communications Commission, et al, 24 F. 3rd. 1441 (D.C. Cir. 1994). The Court vacated the FCC's order requiring physical collocation as being beyond the FCC's statutory authority and remanded the case to the FCC for further proceedings to consider virtual collocation. On July 25, 1994, the FCC issued a new Memorandum Opinion and Order (Remand Order) in Docket Number 91-141, Expanded Interconnection with Local Telephone Company Facilities, in response to the Court decision. In the Remand Order, the FCC ruled that all Tier-1 LECs must file new interstate tariffs offering expanded interconnection on a virtual collocation basis. The tariffs were to be filed by September 1, 1994 and to become effective by December 15, 1994. As a result of the Remand Order, the required architecture for expanded interconnection at the interstate level has changed from physical collocation to virtual collocation. Both the current version of sec.23.92 and the proposed amendments require the LECs to file intrastate tariffs that mirror the terms and conditions, except for price, of their interstate expanded interconnection tariffs. Because the FCC's required architecture for interstate service has changed from physical to virtual collocation, LECs are required under the rule to revise their intrastate tariffs to reflect virtual collocation architecture unless they voluntarily choose to offer physical collocation. This change in architecture, while contemplated in the current substantive rule, has also caused the Commission to re-evaluate its current policy of requiring mirroring of the interstate tariffs. Based upon the comments received during this project and a review of the policies involved, the Commission reaffirms, at this time, that it is appropriate that expanded interconnection for intrastate services should be available at the same locations, in the same manner and, except for price, under the same terms and conditions as interstate expanded interconnection. Additionally, expanded interconnection should also be available at locations where it is not available on an interstate basis if the LEC receives a bona fide request for such service. As stated by many commenters, the interstate and intrastate access services are very similar. If an access service is to be provided on an interstate basis, the Commission believes that it is appropriate to also offer the same, or similar, service on an intrastate basis for intrastate access customers. Having different interconnection arrangements depending upon whether the service is interstate or intrastate in nature creates differences in the service which reduces the economic efficiency to the LEC and to the access customer. In order to assure that the competitive benefits of expanded interconnection are available at the intrastate level and to avoid unnecessary differences or conflicts in the provision of the service, it is appropriate to require that intrastate tariff provisions "mirror" the interstate tariff provisions. As further discussed in the remainder of this order, the Commission finds that the policy of requiring intrastate expanded interconnection services to mirror interstate expanded interconnection services, as currently reflected in sec.23.92, should be affirmed and expanded as reflected in the amendments adopted in this order. The following parties filed initial comments in response to the proposed rule published in the May 6, 1994, issue of the Texas Register publication (19 TexReg 3410): AT&T Communications of the Southwest, Inc. (AT&T) ; The U.S. Department of Defense and all other Federal Executive Agencies (FEAs); GTE Southwest Incorporated and Contel of Texas, Inc. (GTE); MCI Telecommunications Corporation (MCI); MFS Communications Company, Inc (MFS); Office of Public Utility Counsel (OPC); Southwestern Bell Telephone Company (SWBT); Teleport Communications Group, Inc. (Teleport); Texas Statewide Telephone Cooperative, Inc. (TSTCI); Time Warner Communications of Austin L.P. and Time Warner Communications of Houston, L.P. (Time Warner); United Telephone Company of Texas, Inc., Central Telephone Company of Texas and Sprint Communications Company L.P. (Sprint). Reply comments were filed by AT&T, GTE, MFS, SWBT, Teleport, Time Warner, and Sprint. Following the publication of the proposed amendments, the Commission conducted a workshop at which the commenting parties discussed the effect of the decision of the D.C. Court of Appeals in Bell Atlantic Telephone Companies, et al v. Federal Communications Commission, et al, 24 F. 3d. 1441 (D.C. Cir. 1994) and the subsequent July 25, 1994 FCC Remand Order on the future of the proposed amendments. The Commission Staff filed an initial recommendation on September 2, 1994. Comments were filed by SWBT in response to the initial recommendation. Generally, the non-LEC commenters are in favor of the adoption of the proposed amendments. GTE supported the Commission approach of following FCC decisions, but requested that the Commission also include other matters addressed by the FCC, including pricing flexibility for LECs. TSTCI offered conditional support for the rule while SWBT strongly opposed the adoption of the amendments. AT&T, MCI, Sprint, FEAs, Teleport, Time Warner and MFS strongly supported the adoption of the proposed amendments. AT&T perceived the proposed amendments as representing the logical extension of the Commission's previous efforts regarding expanded interconnection for special access service. Sprint and Time Warner concurred with the public benefits and positive impacts of the proposed amendments as stated in the preamble to the proposed amendments. Time Warner commented that the proposed amendments will give it the ability to interconnect with the LEC's network and serve all customers that desire its services. AT&T, MFS, MCI, and Time Warner commented that expanded interconnection is essential to the development of local exchange competition. Teleport and MFS commented that the proposed amendments are limited to the competitive provision of dedicated facilities between interexchange premises and LEC central offices. According to Teleport, these dedicated transport facilities constitute a small component of switched access services, with revenues of only 14% of the LEC's total recurring revenues while the other two rate elements, namely local switching at the LEC end office and the carrier common line charges, represent 86% of the intrastate recurring revenues and are completely unaffected by switched transport interconnection. MCI contended that the pro-competitive effects resulting from the adoption of the proposed rule are quite limited. MFS urged further Commission action that will permit competitive access to switching, signalling, and other functions of the LEC network. Teleport pointed out that expanded interconnection for switched access will permit a competitor to provide the special access type links between the interexchange carrier and the LEC's end office or tandem. Teleport stated that the only difference between expanded interconnection for special access and switched access is that in the case of special access/private line interconnection, the interconnector's channel is cross-connected to the LEC's special access/private line circuit while for switched access interconnection, the same interconnector channel is cross-connected to the LEC's switch that provides switched access service to the interexchange carriers. MFS commented that the proposed amendments on switched transport interconnection should impose extremely little, if any, incremental burden on the LECs since switched transport services essentially use the same type of facilities as special access services and the technical interconnection standards are virtually identical for the two services. Teleport commented that expanded interconnection gives interexchange carriers the ability to choose the services of competitive access providers, for operational or strategic security reasons. FEAs commented that, like all firms who conduct competitive procurements, they like to receive bids from as many suppliers as possible. According to the FEAs, in a competitive market, "a large number of suppliers would offer elements of the telecommunications system using interconnections that are transparent to the user." FEAs stated that the proposed rule appropriately does not require interconnection arrangements and procedures to vary based on the jurisdictional nature of the traffic or circuit use. FEAs asserted that such unnecessary distinctions reduce the economic efficiency of the interconnection procedures. GTE concurred with the Commission's policy of patterning its interconnection rules after the FCC's rules. However, GTE opined that in order to provide a competitive environment which is fair to all providers, the affected LECs should be permitted to restructure their local transport rates before the implementation of switched transport expanded interconnection and these LECs should also be granted the same pricing flexibility afforded by the FCC upon implementation of expanded interconnection. TSTCI supported the Commission's proposed amendments to the extent the proposed amendments are only applicable to those companies which have approved interstate expanded interconnection tariffs filed with the Federal Communications Commission (FCC). SWBT strongly opposed the adoption of the proposed amendments because they suffer from the same legal deficiencies as their special access/private line predecessors. SWBT argued that to the extent the Commission's decisions on this issue were based on the FCC's action, the legal concerns expressed by the federal court regarding the original FCC's rules on expanded interconnection were relevant. SWBT urged the Commission to defer further action on expanded interconnection until the results of pending litigation in state and federal courts were known. SWBT also stated that since interconnection is a "pricing issue", the Commission should consider less drastic alternatives. The Commission believes that expanded interconnection, by fostering competition in the intrastate special access, private line and switched transport markets, will increase customer choices, lower rates, increase incentives for efficiency, speed the development of new technologies and thereby stimulate economic growth. The Commission agrees with AT&T that the proposed amendments represent an extension and revision of the previously adopted rule on expanded interconnection for special access and private line. Expanded interconnection increases network reliability by providing additional options to customers that value redundancy and route diversity, for operational or strategic reasons. Expanded interconnection for switched transport services should provide competitive alternatives to an even larger customer base than does the existing rule which only addresses special access and private line services. The Commission agrees with MFS that since the facilities and technical interconnection standards for special access and switched transport are virtually identical, if not the same, the implementation of expanded interconnection for switched transport should not be burdensome for the LECs. With respect to SWBT's arguments that the proposed amendments should not be adopted because they suffer from the same legal deficiencies as the expanded interconnection rules adopted for special access/private line, the Commission rejects SWBT's legal arguments because those arguments concerned the use of physical collocation rather than the virtual collocation architecture currently required by the Commission's policy of mirroring interstate services and tariffs. The Commission declines to adopt SWBT's recommendation to defer further action on expanded interconnection until the resolution of pending litigation in state and federal courts. The Commission does not believe that litigation, or the threat thereof, should dictate the adoption of rules that it believes are in the public interest and that advance its public policy goals. The Commission also disagrees with SWBT's representation of interconnection as a "pricing issue". The Commission believes that this proceeding deals with issues of policy regarding expanded interconnection service and its impacts on the promotion of competition in the intrastate access markets. The rule does not establish the appropriate price for expanded interconnection; rather the LECs are directed to file tariffs which will be processed in accordance with sec.23.26 of this title in a manner similar to other LEC tariff offerings of new services. The ultimate prices for these services will be determined in the tariff filing proceedings. The issues raised by GTE on the need for implementing local transport restructure before switched transport expanded interconnection and the need for providing pricing flexibility to LECs if expanded interconnection is adopted are addressed later in this order. To the extent the proposed amendments are applicable only to LECs that are required to file interstate expanded interconnection filings, the Commission believes that TSTCI's comments have been adopted. On June 10, 1994, the Court of Appeals of the D.C. Circuit in Bell Atlantic Telephone Companies v. Federal Communications Commission, 24 F. 3d. 1441 (D.C. Cir. 1994) determined that the FCC lacked authority to require physical collocation. Since the FCC required virtual collocation only as an exception to a general rule requiring physical collocation, the Court remanded the issue of virtual collocation to the FCC for further investigation. The issue of fresh look was also remanded to the FCC. In their reply comments, parties discussed the impact of the federal court's decision on the future of this rulemaking proceeding. Southwestern Bell and GTE commented in their reply comments that the Bell Atlantic decision has serious implications on the future of any rulemaking proceeding on expanded interconnection in Texas. They commented that to the extent the proposed amendments require affected LECs to mirror the terms and conditions of their interstate tariffs, the proposed amendments should be re- evaluated. According to SWBT, "[g]iven that the mirror has now been shattered, the Commission should withdraw this rulemaking." GTE urged the Commission to defer any action on switched expanded interconnection until such time as the FCC reconsiders its position and issues future orders. However, if the Commission chooses to go forward with intrastate expanded interconnection, then GTE urged the Commission to "begin anew on this issue and reconsider its existing policy about colocation, fresh look and pricing flexibility." SWBT argued that although the federal court decision was limited to the FCC's rule and statutory powers, another court would engage in identical analysis and arrive at the same result if called upon to review the Texas Commission's rules on the same subject and its statutory authority. Sprint recommended that in light of the Bell Atlantic decision, the current rulemaking on expanded interconnection should be suspended and a new rulemaking for expanded interconnection and local transport restructure should be initiated once the issue of expanded interconnection is resolved at the federal level. AT&T, Time Warner, Teleport and MFS, on the other hand, contended that the Bell Atlantic decision should not be cause for delay or reconsideration of the adoption of the proposed amendments. Time Warner urged the Commission to reject any suggestions by LECs to withdraw or postpone adoption of the proposed amendments. Time Warner and MFS pointed out that since under sec.23.92 LECs are required to file intrastate interconnection tariffs that essentially mirror their interstate filings in all respects but price, any change in the interstate tariffs in compliance with the court decision will require a corresponding change in the intrastate tariffs under the rule. Time Warner and MFS therefore concluded that the court decision will not require substantial revisions to sec.23.92 or the proposed amendments. AT&T pointed out that the Bell Atlantic decision rested on statutory grounds, not constitutional grounds and the ability to require physical collocation was found to be beyond the FCC's statutory authority. Teleport stated that the Bell Atlantic decision did not undermine the authority of a state to order physical collocation if allowed by its statute. According to Teleport and AT&T, the court decision did not preclude LECs from voluntarily offering physical arrangements to interconnectors. If the Commission determines that it lacks authority to order physical collocation, then Teleport commented that LECs should be required to offer virtual collocation arrangements that are operationally, economically and technically comparable to actual collocation. AT&T in endorsing Teleport's suggestion stated that virtual collocation is an imperfect substitute for physical collocation since the interconnector cannot control a key part of its service, namely the interconnection electronics, and it places this control in the hands of the interconnector's competitor. AT&T also suggested discount pricing for virtual collocation arrangements as a means to offset the superior connections available to LECs. MFS also endorsed Teleport's suggestion and proposed language whereby the Commission may, by final order, require a LEC to offer expanded interconnection on terms and conditions different from those in its interstate tariffs if the Commission finds the provisions of the interstate expanded interconnection not to be the operational, technical, and economic equivalent of physical collocation. Time Warner stated that if the Commission chooses to withdraw or postpone adoption of the proposed rule as a result of the federal court's decision, the Commission should not abandon its interconnection efforts. Instead, Time Warner suggested that this Commission should follow the New York Commission's lead and direct industry representatives to provide details regarding implementation of interconnection, and maintain oversight over the process and approval of the implementation plan. In comments filed in response to Staff's initial recommendation, SWBT stated that it filed its interstate virtual collocation tariff pursuant to the FCC Remand Order under protest and also filed an appeal of the Remand Order on August 10, 1994. Some of the issues raised in the appeal include the lawfulness of the FCC Remand Order to the extent it reimposes aspects of physical collocation in violation of the Bell Atlantic decision; the legal basis of mandatory virtual collocation; appropriateness of applying common carrier regulation to either physical or virtual collocation; violation of the Administrative Procedure Act requirements and parties' right to due process and "[w]hether the physical and virtual collocation requirements are arbitrary and capricious or otherwise contrary to law." SWBT also commented that because of the changing circumstances at the federal level, the parties involved in the Texas State Court Appeal have agreed to a new briefing schedule for motions and responses and the new hearing date is currently set for December 12, 1994. SWBT noted that in Docket Number 12879, a ruling was issued on August 9, 1994 recognizing that under subsection (e)(4) of the existing sec.23. 92, SWBT would be required to file tariffs within 15 days after its new interstate virtual collocation tariffs become effective and upon approval of the revised tariffs, the physical collocation offerings in the initial tariffs would be moot. SWBT stated that the Commission decided to abate the enforcement of the portion of sec.23.92 which requires physical collocation pending resolution of the issues by the FCC. Consequently, the proceedings in Docket Number 12879 were abated until December 30, 1994 to discuss further action in the proceeding. SWBT recommended that this rulemaking proceeding should be dismissed until after resolution of the federal and state expanded interconnection issues currently on appeal. SWBT urged the Commission to develop a record to justify new interconnection requirements since the current record assumes that a physical collocation requirement is permissible. SWBT also opined that because the FCC in its Remand Order changed the definition/requirements of virtual collocation, intrastate virtual collocation, depending upon its components, may or may not be similar to the FCC's requirements. SWBT cautioned against continued ad hoc tracking of the FCC's collocation requirements without independent justification. In light of the FCC Remand Order released July 25, 1994, in which the FCC required mandatory virtual collocation arrangements unless the LEC voluntarily offered expanded interconnection through physical collocation arrangements, the Commission believes that GTE's and Sprint's recommendation to defer any action on expanded interconnection pending FCC action on the issue is now moot. With respect to SWBT's arguments that a new record needs to be developed given the change in the FCC's definitions/requirements of virtual collocation, the Commission notes that sec.23.92 is marked by the absence of the use of the term "virtual collocation" or any interconnection arrangement for that matter. By refraining from defining or requiring any particular interconnection arrangement for purposes of intrastate expanded interconnection, the Commission has attempted to avoid unnecessary distinctions between intrastate and interstate traffic or circuit use that would reduce efficiencies of interconnection arrangements and procedures. Thus virtual collocation on the intrastate level should be identical to virtual collocation on the interstate level once the amendments are implemented. The Commission has considered the comments submitted by SWBT and by all other parties in developing a record in this project on the appropriate policy for expanded interconnection in Texas. Based upon that record, the Commission has concluded that it is appropriate to continue to require parity in the intrastate and interstate expanded interconnection services as previously discussed. The Commission, therefore, declines to withdraw the rule. The Commission disagrees with the suggestions made by Teleport, MCI, AT&T and MFS that virtual collocation arrangements must be the operational, technical, and economic equivalent of physical collocation. The Commission agrees with the FCC's conclusion on this issue in its Remand Order. The FCC determined that the higher standard imposed burdens on the LECs that are unnecessary to protect the interconnector's interests. Furthermore, any accompanying installation, maintenance or repair standards that are more stringent than the LEC's own standards may be difficult, if not impossible to enforce. The Commission, therefore, declines to adopt the proposed language submitted by MFS and supported by others. Various parties recommended modifying or deleting certain definitions, in the interest of clarifying the application of the amendments. OPC suggested the word "location" be included in the definition of central office so that the central office represents the location of the LEC's central switching unit rather than the central switching unit itself. The proposed definition of special access includes all exchange access not utilizing the LEC's end office switches. OPC recommended that the phrase "not utilizing the LEC's end office switches " be replaced by "not requiring switching performed by the LEC's end office switches " in recognition of the possibility that special access channels could be routed through end office switches and could therefore utilize the switch but not carry switched traffic. The Commission believes that OPC's proposed modifications to the definitions of central office and special access do help clarify the terms and are, therefore, adopted. According to OPC, the word "customer" in the definition of "interconnection" "confuses interconnection with the demarcation point between a customer's premises and the LEC's network. " OPC therefore proposes that the word "customer" be replaced by "an end-user's or other carrier's transmission facilities" in the definition of "interconnection" and by "end user or other carrier" in the definitions of "interconnector" and "special access". It was not the Commission's intent to change the end user's demarcation point. The definitions of "interconnection" and "interconnector" clearly indicate that any interconnection offered pursuant to this rule is strictly limited and governed by the provisions of this rule. The Commission believes that OPC's concerns will be addressed if the word "customer" is replaced by "customer's transmission facilities" in the definition of "interconnection". However, the Commission does not believe any modification is necessary in the definitions of "interconnector" or "special access" since the term "customer" represents an end user or other carrier. Several parties expressed concern about the definition of contribution charge in subsection (b)(2) of the proposed rule. AT&T, MCI, OPC, SWBT, and Time Warner commented that the phrase "other than joint and common costs," included in the definition of contribution charge is ambiguous and could lead to various interpretations. Generally, the non-LEC commenters advocated that the rule be clarified to specifically prohibit any type of contribution charge, even one to joint and common costs. Teleport and Sprint supported the policy to prohibit a separate contribution charge. Time Warner suggested that if the Commission insists on allowing a contribution charge, it should be limited to a certain percentage above the long run incremental cost of expanded interconnection service. AT&T, FEA, and Time Warner stated that any type of contribution charge will have the effect of stifling competition. AT&T opined that it is inappropriate to ensure that LECs continue to recover their existing level of revenues, and allowing a contribution charge would provide such an assurance. Time Warner stated that the FCC, in the local transport rate restructure, required a usage-based interconnection charge to be paid by all switched access users. Time Warner expects a similar intrastate charge to be approved and believes that charge should suffice as the contribution charge. Time Warner also pointed out that any contribution in future special access interconnection interstate filings would be intended to recover "specifically identified" regulatory support mechanisms. SWBT advocated that the rule be clarified to ensure that interconnection rates could include a contribution charge. To do otherwise would place upward pressure on other LEC rates, according to SWBT. SWBT opined that permitting a separate contribution charge for LEC interconnection services would effectively require interconnectors to contribute towards the maintenance of social policy goals. Time Warner stated in its reply comments that in determining social policy goals, the increase in carrier efficiencies, lower costs and increased customer choice resulting from the development of competition must also be recognized. Sprint commented that any potential adverse impact caused by expanded interconnection on below-cost local rates levels can be addressed by "a combination of geographic rate deaveraging, local rate increases, targeted subsidies and LEC cost control." SWBT in its comments on Staff's initial recommendation recommended that the Commission should wait until the resolution of the interconnection charge in Docket Number 12784, addressing intrastate local transport restructure for SWBT and GTE, before developing a position on the issue of a contribution charge. The Commission agrees that the definition of "contribution charge" is ambiguous and confusing. Therefore, the Commission deletes the definition of contribution charge. However, in order to clarify and implement the Commission's intent, other modifications to the section are necessary. The Commission intends that the LECs be allowed to propose expanded interconnection rates that include a contribution towards joint and common costs. During the compliance tariff review process, parties will have the opportunity to argue the merits of the contribution amount, if any, proposed by a LEC. What the Commission was attempting to prohibit in the proposed section was the establishment of a separate contribution rate element with no tie to a specific service or function being performed by the LEC. To implement this prohibition in a clearer manner, the Commission modifies subsection (c)(3) (B) and subsection (d)(2)(C) to include a statement that prohibits LECs from including in their intrastate expanded interconnection tariffs a separate charge or rate element that is not included in their interstate expanded interconnection tariffs. This will accomplish the Commission's goal because the FCC currently prohibits the LECs from establishing a separate contribution rate element. The Commission does not believe that it is appropriate at this time to strictly prohibit the LECs from including any contribution in their rates for expanded interconnection services. Such a prohibition may be appropriate in the future, but the Commission has not fully explored whether there are necessary changes to the universal service support mechanisms that should accompany such a policy. Under subsection (c)(4)(C) of the proposed rule relating to initial filings for special access and private line interconnection, the provisions of sec.23. 26(c)(6) do not apply with respect to interconnection rates, if the local exchange carrier proposes charges that mirror the interstate charges. OPC suggested that the term "charge" in subsection (c)(4)(C) be replaced by the term "rate". OPC stated that the term "rate" is defined very broadly in sec.23. 3 while the term "charge" is undefined in Commission rules. OPC argued that under the current rule, the LEC can claim exemption from sec.23.26(c)(6) by proposing the same charges for rate elements found in the interstate expanded interconnection tariffs without proposing the same number of rate elements. OPC cited SWBT's proposal for the Universal Service Element in its intrastate special access interconnection filings (Docket Number 12879) as an illustration of a rate element that did not appear in the interstate tariffs but for which SWBT claimed exemption from the requirements of cost justification under sec.23.26(c)(6). OPC opined that replacing "charge" with "rate" will remedy the problem because interstate and intrastate tariffs will have to be identical in every respect, not just with respect to charges, before LECs are exempt from the requirements of sec.23.26(c)(6). Since the term "rate" unlike the term "charge" is defined in Commission rules, the Commission agrees with OPC that the use of the term "rate" instead of the term "charge" in subsection (c)(4)(C) is preferable for the latitude it gives the Commission in requiring LECs to conform to their interstate filings in order to qualify for exemptions from the requirements of sec.23.26(c)(6). The Commission has incorporated the requested change. In so far as OPC's proposal attempts to prevent LECs from proposing separate unjustified rate elements not included in its interstate interconnection filings, the Commission believes that OPC's concern is adequately addressed by the modifications to subsections (c)(3)(B) and (d)(2)(C), discussed earlier, whereby LECs are prohibited from imposing a separate intrastate charge or rate element that is not included in their interstate expanded interconnection tariffs. Time Warner commented that in order to implement the contribution charge prohibition for special access interconnection services, LECs should be required to refile their tariffs without the contribution charge. Accordingly, Time Warner recommended language that would revise subsection (c)(4)(D) to require LECs to make additional filings within 15 days of the effective date of this subsection. The Commission declines to adopt the change suggested by Time Warner because the filings which are required within 15 days of the revised FCC tariffs effective December 15, 1994, pursuant to the FCC Remand Order, will have to be in compliance with the revised sec.23.92 which prohibits a separate contribution charge. Therefore, additional filings as requested by Time Warner will be unnecessary. Sprint concurred with the provision in subsection (d)(2)(B) that permits additional connection charge subelements if additional costs are clearly defined and cost-justified. MCI suggested language to clarify the provision in subsection (d)(2)(B) so that LECs that assess additional connection charge subelements may do so only for the use of additional facilities. OPC recommended that in subsection (d)(2)(B), the LEC should be allowed to assess additional connection charge subelements only if they are cost-based. The Commission adopts MCI's and OPC's proposed modifications to subsection (d)(2)(B) because they clarify the Commission's intent to permit additional connection charge subelements only if they are cost based and are assessed for the use of additional facilities. Sprint concurred with the provision in subsection (d)(2)(D) which requires cost justification for any differences between the nonrecurring reconfiguration charges applicable when a customer shifts to an interconnector's service and those applicable when a customer reconfigures its services with the LEC. MCI questioned the clarity of the phrase "unless justified by specific identifiable cost differences" in subsection (d)(2)(D). In order to clear any ambiguity in the provision, MCI suggested that the phrase "unless the local exchange carrier can justify, by clear and convincing evidence, cost differences" be used instead. The Commission finds that MCI's proposed modification is unnecessary because the phrase "unless justified by specific identifiable cost differences" as originally proposed places an adequate burden on the LECs to produce evidence of cost differences to justify any differences in nonrecurring reconfiguration charges as contemplated under subsection (d)(2)(D) . Teleport strongly opposed the imposition of any nonrecurring reconfiguration charges when a customer changes access providers. Teleport stated that the "extremely high" nonrecurring charges applied to shift circuits from the LEC to a competitor pose a "substantive competitive hurdle for competitors and interexchange carriers" by raising the transaction costs of changing access providers, causing IXCs to be reluctant to take the services of a CAP. Even if the CAP agrees to absorb the cost of nonrecurring charges, it merely shifts the risk from the interexchange carrier to the CAP and "does not change the fundamental economics", according to Teleport. Furthermore, Teleport opined that the existing nonrecurring charges are applied on the assumption that the connection is being established all the way to the interexchange carrier's office when in fact, the interconnection arrangement only represents a cross- connect between the circuit within the LEC central office and the collocator's facilities. Teleport, therefore, recommended that LECs be required to waive the nonrecurring charges for customers wishing to shift services to a CAP especially since the LECs themselves have waived nonrecurring charges to solidify their own competitive position. Teleport suggested that MCI's proposed language on fresh look be modified to include a waiver of nonrecurring charges. Time Warner, in its reply comments, supported Teleport's proposed modifications on this issue. The Commission disagrees with Teleport's suggestion concerning a waiver of all nonrecurring reconfiguration charges applied to shifting circuits from the LEC to a competitor. While the Commission recognizes the need to remove barriers to competitive entry, it does not believe that the issue of cost causation should be ignored. To do so may require a subsidy of competitive entrants by other LEC customers. The Commission notes that the FCC, in considering this issue, stressed the need for maintaining neutrality when applying nonrecurring reconfiguration charges to customers that shift to interconnectors or reconfigure their service with the LEC, unless there are legitimate cost differences which have been specifically identified. In addition, any differences in charges are required to be cost-based. The Commission believes that subsection (d)(2)(D) concerning nonrecurring reconfiguration charges appropriately balances the goals of cost recovery and promotion of competition. Any concerns regarding unreasonable nonrecurring reconfiguration charges can be adequately dealt with through the existing compliance tariff review process. Proposed subsection (d)(2)(E) required the affected LECs to file initial tariffs to implement expanded interconnection for switched transport services not later than 60 days after the effective date of the subsection, with tariffs becoming effective not later than 120 days after the effective date of the subsection, unless suspended. SWBT argued that the initial 60 day filing requirement is unreasonable given the existing filing requirements for special access and private line services. Instead, SWBT proposed that, at a minimum, the filing requirement for switched transport interconnection filings should be after the filing of the private line and remaining special access tariffs required under subsection (c)(4)(B) or within 60 days after the rule, whichever is later. AT&T and Time Warner supported the establishment of a presumptive effective date in the rule, citing the experience in Docket Number 12879 where SWBT has proposed that its tariff filing for special access/private line not be effective before resolution of its state and federal court appeals on this matter. AT&T and Time Warner opined that the proposed provisions regarding the effective date are necessary to ensure that expanded interconnection tariffs become effective within a reasonable period of time. AT&T further recommended the inclusion of a similar provision in subsection (c)(4)(B) relating to expanded interconnection for private line services. Time Warner, likewise, advocated the adoption of similar provisions for special access/private line service tariffs and proposed additions to the language in subsection (c)(4)(A) which would require that "any initial compliance tariffs filed but not in effect on the date this subsection becomes effective shall become effective not later than 60 days after the effective date of the subsection." MCI also suggested language in subsection (d)(2) regarding tariff provisions and implementation, whereby local exchange carriers subject to the proposed amendments would be required to file tariffs to establish and implement interconnection charges pursuant to the proposed rule. SWBT argued that it should have the right to propose an effective date of its election under sec.23.26. According to SWBT, in light of the serious repercussions of the proposed rule and significant policy questions, a predetermined, expedited or truncated review of so-called "compliance tariffs" would not be in the public interest, noting that the proposed effective date is an issue in Docket Number 12879. In its reply comments, AT&T refuted SWBT's contention regarding the inappropriateness of establishing an effective date by pointing out that SWBT's special access interconnection tariff filings are still not effective due to the absence of a proposed effective date. AT&T stated that "it is incumbent upon the Commission to enforce compliance with its rules..." In order to address the parties' concerns regarding lack of specificity, SWBT recommended, in its reply comments, that the Commission should at most establish an effective date for switched transport expanded interconnection of 30 days after resolution of the court cases, assuming the relevant rules are found valid. SWBT also questioned the Commission's legal authority to establish a retroactive effective date for the special access/private line interconnection filings, as recommended by Time Warner, and noted that such an action would unlawfully interfere with the pending contested case (Docket Number 12879) where the effective date is a contested issue. Under Staff's initial recommendation, special access tariff filings were required to be filed within 15 days of the effective date of interstate tariffs (December 15, 1994) to become effective not later than 60 days after the filing date. Commenting on Staff's initial recommendation, SWBT stated that to the extent the proposed filing dates and effective dates for additional filings was tied to the effective date of the interstate provisions, the Commission should, at a minimum, defer this rulemaking and await the resolutions of appeal of the FCC Remand order in the federal courts as well as the state court appeal. The Commission's intent in adopting sec.23.92 authorizing expanded interconnection for special access and private line was to implement expanded interconnection within a reasonable period of time so that the public benefits of increased competition become a reality in Texas as soon as possible. However, in light of SWBT's attempts to thwart the goal of expanded interconnection by failing to establish an effective date for its special access interconnection tariff filings, the Commission believes it is appropriate to establish a presumptive effective date to ensure compliance with its rules. As discussed elsewhere in this order, establishment of a presumptive effective date does not impair or destroy any vested rights of any party. To the extent the requirements of sec.23.92 concerning effective date may be read to conflict with the provisions in sec.23.26, the Commission finds that the requirements in sec.23.92 take precedence over those of sec.23.26 for purposes of expanded interconnection. The Commission disagrees with SWBT's assessment that a predetermined, expedited or truncated review of the filings would cause an adverse impact on the public interest, given the significant policy implications of the proposed rule. On the contrary, the Commission believes that the significant public benefits expected to result from implementing expanded interconnection alone warrants the establishment of a definite effective date. SWBT's alternative proposal that the effective date for switched transport interconnection be set at 30 days after the resolution of the court cases suffers from the same drawback as its previous proposals because it does not constitute a date certain for the implementation of tariff filings. To the extent that MCI's suggestion seeks to ensure implementation of interconnection tariffs, the Commission believes that it is adequately accomplished by the establishment of a presumptive effective date and therefore, declines to adopt MCI's proposed modification. With respect to the appropriate filing and effective dates for switched transport interconnection, the Commission has determined that the rule should include specific dates for filing and effective dates rather than tieing the filings to the effective date of this rule. The Commission finds that the filing date of February 1, 1995 and effective date of April 1, 1995 will ensure the implementation of switched transport within a reasonable period of time and therefore declines to adopt SWBT's suggestion in this regard. The Commission agrees with AT&T that it would be appropriate to include a similar provision for private line services and therefore, includes language to that effect in subsection (c)(4)(B). The Commission finds Time Warner's suggestion concerning the establishment of a retroactive effective date for special access filings to be unnecessary because under subsection (c)(4)(D) of the revised sec.23.92, LECs would be required to file special access tariffs within 15 days of the effective date of the revised interstate tariffs (December 15, 1994) and these intrastate tariffs are to be effective by March 1, 1995. These new filings will be subject to the amended rule, so there is no need to establish a retroactive effective date for existing filings. The Commission also rejects SWBT's suggestion that this rulemaking be deferred pending the resolution of appeals at the federal and state courts for reasons stated elsewhere in this order. OPC objected to the provision in subsection (d)(2)(F) where exemption from the requirements of sec.23.26(f)(1), which requires that a new service be offered at the same price throughout the LEC system, is afforded to initial tariff filings for switched transport interconnection. OPC stated that such a blanket exemption would permit LECs to charge unreasonably discriminatory rates for access to the monopoly bottleneck. OPC commented that LECs can request a waiver of the systemwide rates requirement under the provisions of sec.23.26(d) and that such a waiver request must be ruled on by the presiding examiner within 15 days. Given the simple and expeditious nature of the waiver process, OPC argued that there is no justification for granting a blanket exemption to the LECs. Moreover, OPC contended that since expanded interconnection for switched transport and special access use the same facilities and require the same function, the implementation of expanded interconnection for switched transport and special access should be identical, in conformance with the FCC rulings on the same issue. FEAs commented that interconnection charges should be based on the costs of the facilities and other resources actually required and should not be derived on the basis of average conditions which reflect more facilities than required for interconnection. The Commission was attempting to recognize that cost differences among central offices may justify different charges for central office space, power, environmental conditioning, and installation charges. However, the Commission agrees with OPC, that to the extent the LECs can obtain a waiver of the systemwide rates requirement under the provisions of sec.23.26(d) fairly expeditiously, a blanket exemption is not warranted. Moreover, in the interest of maintaining consistency between the implementation requirements for switched transport and special access expanded interconnection, the language in subsection (d)(2)(F) relating to initial filings for switched transport interconnection has been modified to replicate the language in subsection (c) (4)(C) relating to initial filings for special access and private line interconnection. Teleport expressed concerns that the proposed rule would permit LECs to implement different rates for intrastate expanded interconnection versus interstate, without any cost-justification. Teleport, therefore, recommended that LECs be required to provide justification if they wish to propose rates in variance from the FCC rates in their initial and subsequent filings. The Commission believes that Teleport's concerns are addressed by modifications to the language in subsections (c)(4)(C)-(D) and (d)(2)(F)-(G). Subsections (c)(4)(C) and (d)(2)(F) permit LECs to propose rates that mirror their interstate interconnection rates in their initial tariff filings and require cost justification if the LECs propose rates that are not at parity with their interstate rates. Subsections (c)(4)(D) and (d)(2)(G) require LECs to file additional tariffs within 15 days of any revisions in the interstate tariff filings. AT&T's understanding of the intent of subsection (g) relating to bona fide requests was that LECs were required to respond to a bona fide request for intrastate interconnection at locations not covered by their interstate tariffs, in the same manner that the LECs would be required to respond to a bona fide request for interstate interconnection at the same location. AT&T opined that there was some ambiguity in the interpretation of the language as proposed, and therefore suggested modifications to the language in subsection (g) relating to bona fide requests. SWBT asserted in its reply comments that AT&T's suggestion regarding bona fide requests is moot since the interstate tariffs were found to be invalid by the federal court. The Commission accepts AT&T's suggestion because the proposed modifications do help clarify the intent of the subsection (g) relating to bonafide requests. In light of the July 25, 1994 FCC Remand Order authorizing interstate expanded interconnection by virtual collocation, the Commission finds SWBT's objection to be moot. Teleport stated that the Commission should permit the same expanded interconnection facility or space to be used for both interstate and intrastate expanded interconnection services, when physical collocation is offered. Moreover, in the interest of avoiding confusing rates and constant pricing adjustments, Teleport recommended that so long as at least 10% of the cross connections placed from the collocation space are connected to the interstate LEC services, the rates of common connection elements -floor space, electricity, conduit from the street to the collocation space-should be determined by the interstate collocation tariff. Because physical collocation is permissible at the LEC's option but not required under the FCC Remand Order released July 25, 1994, the Commission agrees with Teleport that in those instances where the LECs voluntarily offer expanded interconnection through physical collocation, the LEC should not be allowed to insist on separate expanded interconnection facilities or spaces to provide both interstate and intrastate services, in the interest of conserving central office space as well as interconnector costs. Teleport's concern is addressed in subsection (h) which requires the LEC to permit an interconnector to use the same collocation space for both interstate and intrastate interconnection services. Because subsections (c)(1) and (2) and (d)(1) require the LECs to mirror the terms and conditions of their interstate interconnection tariffs, the Commission believes that Teleport's concern regarding the need for parity between intrastate and interstate interconnection tariffs is adequately addressed. As Teleport's comments relate to the need for parity between rates for interstate and intrastate expanded interconnection, the Commission notes that LECs can either propose rates that mirror their interstate rates or propose Texas-specific rates under subsections (c)(4)(C) and (d)(2)(F). The Commission will determine whether the proposed rates are just and reasonable as a part of its review of the tariff filings required by subsections (c)(4)(C) and (d)(2)(F). Teleport also expressed concerns about "warehousing" restrictions which require an interconnector to activate the interconnection space within a limited amount of time or have the space confiscated, with the LEC retaining the nonrecurring construction charges. Teleport objected that such restrictions "could unreasonably harm collocators, and discourage the use of collocation". Teleport argued that supplier and construction problems or delays in market development could prevent it from activating the space within the required time. Teleport proposed language that would prevent the LEC from ordering an interconnector to vacate the interconnection arrangement for failure to utilize the arrangement unless the LEC lacks space to serve additional interconnectors in the same central office, in which case the LEC will be required to refund any nonrecurring construction charges. Time Warner concurred with Teleport's proposed modifications on warehousing policies. SWBT commented on the inclusion of a provision in Staff's initial recommendation that addressed Teleport's concerns regarding warehousing restrictions. Specifically, the initial recommendation included proposed subsection (i) which would have prohibited a LEC from ordering an interconnector to vacate an interconnection arrangement for failure to utilize the space unless the LEC elected to serve additional bonafide requests for interconnection. In such an event, the LEC would have been required to refund any nonrecurring construction charges paid by the first interconnector. SWBT pointed out in its comments on the initial recommendation that the warehousing of space would be a factor only under a physical collocation scenario due to limited central office space. It should not be an issue under a virtual collocation environment. SWBT opined that any warehousing restrictions applied on virtual interconnection would amount to reserving space for an interconnector that never uses the space while preventing SWBT from using its central office for its own use. SWBT argued that this would constitute "an unreasonable restriction and limitation on use of Southwestern Bell's property rights." SWBT proposed a maximum 90-day obligation on the interconnector to either activate service or else vacate an interconnection arrangement for failure to utilize the interconnection space. The Commission agrees with SWBT that the warehousing restrictions would not apply under a virtual collocation environment because virtual collocation arrangements do not involve the reservation of central office space for an interconnector's use. Staff's initial recommendation was attempting to address Teleport's concerns regarding warehousing restrictions when physical collocation is voluntarily offered by the LEC pursuant to the FCC Remand Order. However, the Commission is persuaded by SWBT's argument that the provision on warehousing could prevent the LEC from using the central office space to serve its own customers as well as to meet additional requests for interconnection. Rather than adopt SWBT's suggestion and obligate the interconnector to use the space or vacate it within a limited period of time which, in the Commission's opinion, may not be appropriate under all circumstances and for all affected LECs, the Commission believes that any concerns regarding warehousing restrictions can be more efficiently resolved through negotiations between the parties concerned or through the existing tariff review and complaint procedures. Therefore, the language on warehousing under subsection (i) has been deleted. Time Warner's understanding of the Commission's intent in adopting sec.23.92 (and subsequent amendments thereto) was that the LECs would file tariffs that mirrored their interstate tariffs and that any request to implement terms and conditions not contained in a LEC's interstate filing would be filed separately and approved separately by the Commission. The phrase "unless ordered otherwise by the Commission" would apply if such a request is approved, according to Time Warner. Time Warner and MFS sought clarification of the Commission's intent on this issue. MFS also stated that the LECs must not be permitted to avoid complying with the rule during the pendency of a proceeding in which they are seeking modifications of the rule's requirements. The Commission agrees with the interpretation provided by Time Warner. The intent of the rule is that LECs file intrastate tariffs that mirror their interstate tariffs (with the possible exception of the rates to be charged). Therefore, the level of rates should be the only potentially contested issue involved in the tariff filings. If the LECs wish to seek exceptions to the rule, by requesting additional or different terms and conditions or by deleting some terms and conditions that apply at the interstate level, they should file separate applications seeking a good cause waiver of this rule pursuant to sec.23.2 of this title (relating to Severability Clause). The filing of such waiver requests should in no way delay the implementation of the compliance tariff filings required by subsections (c)(4) and (d)(2). SWBT stated that the proposed amendments to the special access sections of the rule violate SWBT's rights to a contested case for a tariff filing and raises ex parte issues, given the simultaneous occurrence of a rulemaking proceeding and contested case on the special access expanded interconnection. SWBT recommended that, at a minimum, those aspects of the proposed amendments which are potentially implicated in the pending contested cases should be withdrawn. SWBT opined that given the affect of the proposed rule on SWBT's rate structure, property and constitutional rights, a contested hearing or at a minimum, a hybrid rulemaking/contested case proceeding should be conducted in this matter. Both SWBT and GTE contended that the adoption of the proposed amendments would constitute unlawful ratemaking by rulemaking. As support for their arguments, they pointed to the acknowledgment by Time Warner that rates are being established in the rulemaking, with the tariff filing being a mere compliance filing, and to Time Warner's proposal to limit contribution to 2% over LRIC. In its comments on Staff's initial recommendation, SWBT maintained that the proposed rule mandated "ratemaking" in a "rulemaking" by requiring rates for connection services to be "unbundled" which would then be accomplished in a subsequent tariff proceeding that will "necessarily be governed and controlled by the rulemaking". SWBT therefore, recommended that the revised rule should be developed in a contested case proceeding. GTE stated that if the Commission is indeed not establishing rates through rulemaking, then it cannot arbitrably establish an effective date thereby denying LECs their due process rights. The Commission disagrees with SWBT's and GTE's comments. The courts have held that the determination of whether to establish agency policy by notice and comment rulemaking or by ad hoc adjudication is a matter that is generally reserved to the informed discretion of the agency State Board of Insurance v. Deffebach, 631 S.W. 2d 794 (Tex. App.-Austin 1982, writ ref'd n.r.e). Although the definition of "rate" contained in PURA sec.3 is broad, it does not serve to limit the Commission's policy setting authority solely to contested case proceedings as opposed to rulemaking proceedings. Courts have held that there are numerous factors that may affect rates and that not all regulatory decisions that will have subsequent effects on rates are necessarily "ratemaking" proceedings under PURA sec.43. The issuance of a certificate of convenience and necessity (CCN) may affect the level of invested capital used in setting rates, but the granting of a CCN by the Commission does not constitute a ratemaking proceeding. Texas-New Mexico Power Co. v. Texas Industrial Energy Consumers, 806 S.W.2d 230, 233 (Tex. 1991). An order requiring reimbursement of a municipality's rate case expenses may affect rates set in a subsequent proceeding, but it is not a ratemaking proceeding. City of El Paso v. Public Utility Commission of Texas, 609 S.W. 2d 574, 579 (Tex. App.-Austin 1980, writ ref'd. n.r.e.). A Commission decision allowing a utility to engage in deferred accounting treatment for certain costs may affect future rates, but the decision need not be part of a ratemaking proceeding under PURA sec.43. State of Texas v. Public Utility Commission, Number D-3154, 37 Tex. Sup. Ct. J. 1102, 1107 (Tex 1994). The proposed section does not purport to set the rates for any service. The proposed section establishes the Commission's policy for expanded interconnection services and directs the LECs to file tariff amendments to implement that policy. These tariff amendments are to be submitted pursuant to sec.23.26 of this title (relating to New and Experimental Services) which provides for the opportunity for a contested case-type proceeding to set rates. It is in these subsequent tariff filings that new rates will be proposed and rates will be set in conformance with the new policy. As in the court cases previously discussed, only upon the issuance of a subsequent Commission order setting rates will the "practices" prescribed by the proposed section "affect" the utilities "compensation." Since the Commission is not setting rates, but is announcing a statement of general applicability that implements, interprets or prescribes policy and describes the procedure for implementing that policy, it is appropriate to utilize the rulemaking procedures of the Administrative Procedure Act (APA). The Commission determines that the notice and comment rulemaking procedure established by the APA is a more efficient and effective procedure for obtaining broad public participation and input in setting its policies for expanded interconnection. In contrast, the cost and burden of participation in a contested case proceeding often limits both the number of persons participating and the range of interests represented in the project. As discussed elsewhere, the Commission's rulemaking authority under PURA is broad and includes the authority to establish rules and procedures for establishing new services and rates as the Commission is doing in this proceeding. The Commission also disagrees with SWBT's comments about its pending tariff filing and ex parte concerns. SWBT's tariff filing in Docket Number 12879 concerned the implementation of an intrastate special access tariff based upon physical collocation requirements. Given the FCC's change to virtual collocation architecture, SWBT's filing has been suspended and, within 15 days after the effective date of the new interstate tariffs (December 15, 1994), SWBT will be required to file new intrastate tariffs, rendering the previous filing moot. The new intrastate tariff filing will be required to comply with the amendments adopted in this order. If necessary, a contested case hearing can be held to determine whether or not the new tariff filing complies with the rule. Even if the current amendments are applied to the existing filing, it is clear that the Commission may amend its rules and make such amendments applicable to future steps in a pending case. Texas Department of Health v. Long, 659 S.W.2d 158, 160 (Tex. App-Austin 1983, no writ). Under PURA sec.16 the Commission has authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules governing practice and procedure before the Commission. Pursuant to that authority, the Commission has adopted procedural rules, including sec.22.33 of this title (relating to Tariff Filings) which establishes the effective date for filings at the Commission. Section 22.33(c) specifies that the effective date is presumed to be 35 days after filing but provides an explicit exception for "tariffs required to be filed pursuant to a commission rule specifying the effective date of such tariffs." Similarly, sec.23.24 (relating to Form and Filing of Tariffs) specifies that the effective date will be assumed to be 35 days after filing unless the utility requests a different date. Under PURA sec.18(f) the Commission is authorized to promulgate rules and establish procedures for the expedited introduction and establishment of new or experimental services or promotional rates. Pursuant to that authority, the Commission has adopted sec.23.26 (relating to New and Experimental Services) and sec.23.28 (relating to Promotional Rates for LEC services). Both of these sections contain provisions specifying limitations on the allowable effective date (e.g., " no earlier than 30 days after the filing date of the application" or "no less than 30 days after the filing of the sufficient application with substantially complete information" etc.). It is clear that the Commission has the authority to establish presumptive effective dates for tariff filings, and it has done so, as a means of providing for the orderly conduct and disposition of proceedings. SWBT and GTE have no vested right or due process right in the continued application of these rules and the Commission may amend these rules or adopt other rules, such as this one, which apply different presumptive effective dates for different types of proceedings. SWBT and GTE have no vested right or due process right to insist upon any particular effective date of their choosing. Under the Public Utility Regulatory Act (PURA), Texas Civil Statutes art. 1446c, no person has a vested right in any particular system of rates other than the last legal or official rate promulgated by the Commission. Southwestern Bell Telephone Co. v. Public Utility Commission of Texas, 615 S.W. 2d 947, 957 (Tex. Civ. App. -Austin 1981, writ ref'd n.r.e 622 S.W. 2d 82 (Tex. 1981)). Since the rates proposed in Docket Number 12879 have never been approved by the Commission, SWBT has not established any vested right in the proposed rates and structure. Amending the current rule therefore neither impairs or destroys any vested rights SWBT has under the current version of sec.23.92. The prohibitions against ex parte communications contained in Texas Government Code sec.2001.061 apply only to contested case proceedings, not to rulemaking proceedings. Because some issues in the pending tariff filing may also be raised in this rulemaking proceeding, there is some concern about potential ex parte communications. However, all of the parties in the tariff filing are also participating in this rulemaking project. The Commission has provided notice and an opportunity to participate to all interested persons at each stage of this proceeding. If any party has concerns about ex parte communications, they may be addressed in Docket Number 12879. Parties also commented on the need for correlation between the timing of the implementation of expanded interconnection and that of local transport restructure (LTR). Both GTE and SWBT contended that local transport restructure should occur prior to implementation of switched transport expanded interconnection. SWBT commented that the goals of promoting efficiency and increased competition from expanded interconnection will not be fully realized without local transport restructure. As SWBT explained, this is because the current switched transport tariff, which is based on MOU and distance, does not provide for a means to reduce the local exchange company rate for that portion of transport provided by the competitive access provider (CAP). As a result, the IXC is left with little economic incentive to seek alternative services from a collocated CAP. These arguments were repeated in SWBT's comments in response to Staff's initial recommendation. GTE contended that if expanded interconnection is adopted before local transport restructure becomes effective, GTE's competitors would have an advantage over GTE by collocating in high volume central offices and providing customers with flat-rate transport services while the LECs are required to offer the same services on a minute of use basis. In addition, competitors will have an advantage by charging rates that reflect specific route costs as opposed to the higher statewide average rates that LECs are required to charge. SWBT and GTE pointed out that the FCC recognized the correlation of the timing of switched transport expanded interconnection and restructure and decided to proceed with expanded interconnection once an interim transport restructure was already in place. SWBT stated that consistent with the FCC's approach, local transport restructure should occur before implementation of switched transport expanded interconnection in Texas. GTE proposed language which would ensure that under no event expanded interconnection for intrastate switched transport services would become effective until the affected LEC's intrastate local transport restructure becomes effective. Sprint advocated the concurrent implementation of switched transport expanded interconnection and local transport restructure for LECs subject to expanded interconnection rules. MFS commented that since local transport restructure is being addressed in other proceedings, the Commission should proceed immediately with the adoption of expanded interconnection for switched transport services. Time Warner, in its reply comments, strongly opposed any efforts to formally link the implementation of interconnection to the completion of LTR. Time Warner contended that by choosing to initiate LTR through contested cases instead of a rulemaking proceeding as originally proposed by General Counsel, the LECs left themselves open to the possibility of having LTR in effect after expanded interconnection. Time Warner concluded that by adopting and implementing interconnection for switched transport service as soon as practicable, the Commission can prevent the LECs from dragging their feet on LTR in hopes of delaying the availability of expanded interconnection for local transport service. In its reply comments, MFS argued that adopting expanded interconnection before local transport restructure would not harm the LECs given the lack of incentive to use competing services in the absence of LTR. On the other hand, delaying the implementation of expanded interconnection until after local transport restructure would give the LECs a competitive advantage by inducing customers to reconfigure their access networks before competitive alternatives are available, according to MFS. MFS therefore recommended the immediate adoption of the proposed amendments to ensure that customers have realistic choices between LEC and competitive transport services when local transport restructure is completed. The Commission disagrees with SWBT and GTE's suggestion that the effective date for expanded interconnection should be tied to the effective date for LTR. LTR filings proposed by SWBT and GTE companies are the subject of a contested proceeding (Docket Number 12784) where the jurisdictional deadline for LTR is set at December 1, 1994. The proposed effective date for intrastate tariffs offering switched transport expanded interconnection is April 1, 1995. If LTR is approved for SWBT and GTE in Docket Number 12784, then expanded interconnection would become effective after local transport is implemented, as they have requested. In the event local transport restructure is not approved for GTE and SWBT, the adoption and implementation of expanded interconnection pursuant to sec.23.92 should not be delayed because of their failure to provide sufficient support for LTR. If LTR is proposed in a form that SWBT does not like, it has threatened to withdraw its application prior to the issuance of the Commission's Final Order in Docket Number 12784. Tying the effective date of expanded interconnection to the effective date for LTR would give the LECs the power, and incentive, to effectively repeal the Commission's rule by delaying the effective date for LTR. Adoption of expanded interconnection would not place the LECs at a competitive disadvantage because, as pointed out by SWBT, expanded interconnection, without LTR, provides only limited incentives for access customers to subscribe to services provided by CAPs. Because of this limited incentive, LECs are not placed at a competitive disadvantage as argued by GTE. The Commission agrees with MFS that it is appropriate to adopt and implement expanded interconnection at this time, so that customers have realistic competitive options when LTR is implemented. In its comments, MFS raised additional concerns about the relationship between LTR and expanded interconnection. MFS seemed to be concerned that the LECs might require interconnectors to route interstate and intrastate switched access traffic over separate facilities pending the restructure of intrastate local transport rates. Teleport, in its reply comments supported MFS's suggestion. MFS, therefore, seemed to suggest that language be incorporated in sec.23.92 prohibiting LECs from requiring such separate facilities. In their reply comments, GTE and SWBT rejected MFS's proposal. GTE understood MFS's proposal to apply prior to the authorization of intrastate expanded interconnection. GTE argued that "if an IXC has interstate expanded interconnection service in the state and designates the colocated GTE end office as POP for intrastate traffic, separate facilities for the intrastate traffic and interstate expanded interconnection traffic will be required". SWBT stated that MFS's suggestion was a jurisdictional "mixmaster" of a suggestion which it termed as inappropriate, unclear in purpose, and confusing. SWBT also argued against adopting the suggestion since the interstate collocation had been rendered null by the federal court decision. The Commission agrees with SWBT that MFS's comments are unclear and confusing. However, the comments and replies have raised an important issue that needs to be addressed. The Commission believes that interconnectors should be allowed to route interstate and intrastate switched access traffic over the same facilities. The intrastate and interstate usage of switched access traffic carried over these facilities should be charged the relevant intrastate and interstate rates approved by the respective regulatory authorities. The Commission adds subsection (i) which permits an interconnector to utilize the same facilities for intrastate and interstate switched access traffic. GTE seemed to think that MFS was requesting authority to carry intrastate switched access traffic over its interstate expanded interconnection facilities prior to the authorization of intrastate expanded interconnection. If so, the Commission agrees with GTE that such a proposal is inappropriate. SWBT stated that while the expanded interconnection rule for special access and private line services placed a significant amount of intrastate revenues at risk, the proposed switched transport interconnection would place even greater revenues at risk-over $100 million in 1993. SWBT argued that the potential revenue loss is especially critical given its growing dependence on local service revenues which has "the potential to detrimentally and incrementally impact residential and small business customers." In their reply comments, MFS, Teleport, AT&T, and Time Warner strongly refuted SWBT's claim that 100% of $100 million switched transport revenues would be at risk as a result of expanded interconnection. According to MFS, under the local transport restructure adopted at the FCC, access customers that use interconnected transport facilities have to pay the residual interconnection charge which at the interstate level accounts for 60-80% of the total local transport revenues. MFS argued that if the same pattern holds true for Texas, only $20-40 million of local transport revenues will be at risk while AT&T estimated the revenues at risk to be closer to $20 million, at worse. Contending it is highly improbable that SWBT will lose all or most of its customers to competitors, MFS estimated the potential revenue loss to be even less. Teleport stated that at the interstate level, after accounting for the revenues from carrier common line, local switching and the residual interconnection charges, the dedicated portion of the local transport segment accounts for 3.8% of the switched access market. Teleport expects the impact of intrastate LTR to be smaller. AT&T also noted that the Commission in adopting the special access/private line interconnection concluded that LECs claims of revenue loss were exaggerated and that expanded interconnection allows for competition but does not ensure that competition will occur, which was demonstrated by the FCC litigation. In its reply comments, Time Warner agreed with Teleport that expanded interconnection under sec.23.92 applies only to the dedicated transport and is therefore only a small but important step towards the development of local exchange competition. The Commission rejects SWBT's assertion that all its revenues from switched transport services are at risk if expanded interconnection is adopted. As noted earlier and acknowledged by SWBT, expanded interconnection, in the absence of LTR would not result in significant competition given the lack of incentive for customers to use competing alternatives. The Commission believes that in order to determine the potential revenue loss as a result of expanded interconnection, it is important to consider the segments of the transport network that will be subject to competition if local transport restructure is adopted. As noted by several parties, because the residual interconnection charge would not be subject to competition, the revenue loss to the LECs would be significantly reduced if local transport restructure is adopted. The Commission agrees with MFS, AT&T, and Teleport that the revenue impact claimed by SWBT is exaggerated under either scenario and, based on the experience at the interstate level, the potential revenue loss can be expected to be insufficient to cause any detrimental impact on residential and small business customers. SWBT, GTE and Sprint advocated the need for granting pricing flexibility in the form of density zone pricing to LECs to enable them to compete with present and future competitors. According to the LECs, the absence of pricing flexibility will prevent the LECs from responding to competition by offering a competitive pricing structure in the LEC's more lucrative markets. SWBT and GTE want to be relieved of the current requirement to charge statewide rates and instead be allowed to price transport services based on the cost characteristics of the area served. GTE stated that the need for granting pricing flexibility becomes even more critical if a fresh look policy is adopted by the Commission. SWBT stated that "the Commission's denial of additional pricing flexibility would be contrary to PURA's sec.18(a) requirement of an "equal opportunity to compete." SWBT further stated that the potential beneficiaries of the proposed amendments, namely the CAPS, are "a well-heeled group of businesses" that are doing well in the market without the need for expanded interconnection. SWBT and GTE pointed out that the FCC granted zone density pricing in conjunction with its expanded interconnection rules and according to GTE, the FCC did not foreclose other competitive options upon individual showings of necessity by the LEC. SWBT commented that while the Commission has followed the FCC's lead in authorizing collocation, the same is not true with respect to pricing flexibility. Teleport commented that if the FCC's physical collocation is found to be unlawful, the Commission "should remove any pricing flexibility or other considerations extended to the LEC in connection with the implementation of expanded interconnection." SWBT responded that Teleport's suggestion regarding pricing flexibility is moot since the LECs have not been granted any pricing flexibility by the Commission and as such, there are no pricing flexibility or other considerations to be removed. MFS's responded to the LECs request for pricing flexibility by stating that the LECs can seek pricing flexibility under procedures that already exist in Substantive Rule sec.23.27. AT&T stated in its reply comments that if the Commission permits pricing flexibility for the LECs then "the flexibility should be limited to reflect the inferiority of virtual collocation." AT&T maintained that there is no basis for pricing flexibility until interconnection tariffs take effect and a meaningful degree of interconnection occurs. In its reply comments, Teleport stated that if the Commission does not order physical collocation, then SWBT's arguments for pricing flexibility as a quid pro quo for offering physical collocation is not valid and therefore LECs should not receive the benefits of additional pricing flexibility. In its comments on Staff's initial recommendation, noting the absence of language allowing pricing flexibility, SWBT continued to stress the need for the Commission to balance the competitive equation by providing additional pricing flexibility to affected LECs if the Commission elects to proceed with expanded interconnection. The Commission rejects the recommendation by SWBT, GTE and Sprint regarding the need for granting pricing flexibility as a part of this rulemaking project. The Commission believes that the proposed amendments are intended to permit competition but do not ensure that competition will take place. In this regard, the Commission notes that adoption of sec.23.92 authorizing expanded interconnection for special access and private lines in February, 1994 has not guaranteed the provision of the service and consequently competitive entry in SWBT's exchanges has been delayed, if not foreclosed. The Commission agrees with MFS that the LECs can request pricing flexibility to respond to significant competitive challenges under procedures in sec.23.27 and, if approved, thereby obtain flexibility to price transport services based on the cost characteristics of the areas served. While these amendments do not provide pricing flexibility to the LECs, they also do not prohibit such flexibility if the LECs can establish a need for pricing flexibility under sec.23.27 of this Chapter. The Commission rejects SWBT's contention that denial of additional pricing flexibility by the Commission as a part of this rule violates PURA sec.18(a) requirement of an "equal opportunity to compete". The Commission notes that sec.18(e) of the PURA grants it the discretion to determine the appropriate regulatory mechanism to use in order to carry out the public policy outlined in sec.18(a). PURA sec.18(g) requires the Commission to balance the competitive market mechanism with traditional regulatory concerns for universal service, preventing cross-subsidization and prohibiting anti-competitive behavior. The Commission has exercised its discretion by adopting sec.23.27 which specifically allows the Commission to grant requests for pricing flexibility for services which are subject to significant competitive challenge. In accordance with PURA sec.18(a), pricing flexibility is only allowed in a competitive marketplace and the Commission has determined, in sec.23.27, the requirements for showing that competition exists in a marketplace. If the LECs believe that sec.23.27 is not sufficient for that purpose, they should petition the Commission to amend that rule to address their specific concerns. The Commission believes that the proposed amendments and sec.23.27 allow for the "equal opportunity ..... in a competitive marketplace" contemplated by PURA sec.18(a). The Commission disagrees with SWBT and GTE's suggestion that the Commission should follow the FCC's lead on the issue of pricing flexibility as it has done with respect to expanded interconnection. As stated earlier, the LECs are not precluded from requesting pricing flexibility under sec.23.27. Furthermore, the Commission has mirrored the FCC's requirements in the proposed rule where appropriate and deviated from the FCC's rules when deemed necessary in the public interest, as on the issue of pricing of connection elements. The Commission believes that AT&T's comment regarding the appropriate degree of pricing flexibility that should be granted to reflect the nature of interconnection arrangement is more appropriately addressed during the review of applications filed pursuant to sec.23.27, if any. The Commission requested comments from parties on whether the Commission should adopt a "fresh look" policy for the intrastate special access, private line and/or mixed use facilities similar to the policy adopted by the FCC. In addition, parties were encouraged to propose language and comment on whether adding "fresh look" provisions to the proposed rule would require republication before a final rule is adopted. Sprint, MCI, Teleport, MFS and Time Warner supported the adoption of a fresh look policy by the Commission. Teleport, Time Warner and MFS contended that fresh look represents the FCC's efforts to provide customers with meaningful choice that was not available at the time they entered into these long term agreements, thereby permitting customers to obtain the benefits of greater access competition. SWBT, GTE and TSTCI, on the other hand, strongly opposed the adoption of a "fresh look" policy by the Commission. SWBT and GTE contended that long term contracts are mutually beneficial to the customer and the provider because the customers receive lower and/or stabilized rates and LECs benefit from decreased revenue risks associated with stabilized revenue flows. SWBT further stated that customers that wish to exit long term contracts can do so now by paying "reasonable" termination fees. GTE pointed out that requiring a fresh look "creates an unjust advantage in favor of the CAPs" since it would not entail examination of agreements between CAPs and their customers. In their reply comments, SWBT and GTE urged the Commission to defer any action on fresh look until the issue has been addressed by the FCC on remand. Sprint suggested the adoption of a fresh look policy for Texas similar to the policy adopted by the FCC. Teleport suggested that the LECs investigate and report to the Commission on whether a significant number of circuits are subject to long term contractual agreements. If a meaningful number of services are eligible for fresh look, then Teleport recommended that the fresh look policy should apply to all contracts entered into prior to the effective date of this rule. MCI recommended language for the fresh look provision which would permit a customer that uses a local exchange company's (LEC) access service to terminate any extended-term serving arrangement with the LEC for such services without incurring termination liabilities. MCI defined an extended-term serving arrangement as any arrangement, whether by contract or tariff, whose term is in excess of eleven months. Under MCI's proposal, the fresh look policy would become operational for a period of 180 days following the later of the effective date of this section or the installation of the first cross-connect to an interconnector's collocation facility within an end office from which service is provided. Time Warner and Teleport concurred with MCI's proposed language. While MFS supported the adoption of a "fresh look" policy, it pointed out that as a practical matter there may not be a need for Commission action on this issue since intrastate switched transport may be provided over "shared use" facilities which also carry special access circuits that are purchased under long term contracts. MFS stated that these services would almost always be purchased out of interstate access tariffs. Time Warner in its reply comments disagreed with MFS's statements by pointing out that comments were solicited as to whether a fresh look policy should be adopted for intrastate special access, private line, and/or mixed use facilities. SWBT stated that in the event the Commission did include a fresh look provision in its rule, it should adopt the tariff language used in its recently approved High Capacity Term Payment Plan tariffs or SWBT's interstate tariffs where the applicability of fresh look was limited to contracts entered into prior to adoption of the respective special access expanded interconnection rule. However, SWBT opined that the "fresh look" issue should be determined on a case- by-case basis. GTE commented that if a fresh look provision is approved by the Commission, then it should be no broader in scope than the FCC policy on fresh look and should be limited to long term agreements entered on or before September 17, 1992 since agreements entered into after that date were done with the full knowledge of changes caused by expanded interconnection. In its reply comments, Time Warner objected to the suggestion by the LECs that the fresh look policy be limited to contracts entered into before September 17, 1992. Time Warner pointed out that expanded interconnection for special access services became effective only recently in GTE territories and is still not a reality in SWBT's territories. Time Warner recommended that the fresh look policy, if adopted, should be applicable to all long term LEC contracts as of the effective date of the LEC's interconnection tariff filings. Parties also commented on the legal basis for adopting a fresh look policy in Texas. Time Warner believed that a fresh look policy would meet the criteria required by the decision in High Plains Natural Gas Co. v. Railroad Commission of Texas which permits an agency to modify or abrogate an existing contract if there is a finding that the contract is not in the public interest. SWBT and GTE contended that despite the adoption of a "fresh look" policy by the FCC, it would unlawful in Texas for the Commission to order the same as a general rule. In this regard, SWBT noted the Commission's decision in February 1994, in the previous expanded interconnection rule, wherein the Commission declined to adopt a fresh look provision as requested by CAPs. SWBT believes that nothing has changed in the Texas law since February 1994 to cause the Commission to reverse its decision. MCI and Sprint believed that republication would not be necessary if the Commission includes a "fresh look" provision in its rule. In support of its position regarding republication, MCI cities the decision in State Board of Insurance v. Deffebach, 631 S.W.2d 794, 800-801 (Tex. Appraising 1982, writ ref. n.r.e.) wherein the court stated that "after proper notice and hearing, should the agency incorporate public comments into the proposed rule and should such rule affect no other subject or person than those previously given notice, it would seem to this Court no further purpose would be served by requiring republication of the proposed rules." MCI believes that the standard articulated in Deffebach would be met in this rulemaking proceeding. Time Warner, in its reply comments, agreed with MCI in this regard. SWBT commented on Staff's initial recommendation where General Counsel recommended the adoption of the "fresh look" provision on a case-by-case basis through the complaint process rather than including specific language in the proposed rule. While SWBT agreed with General Counsel's stated conclusion, it opined that the basis for the conclusion ignored the unlawfulness of the "fresh look" concept in Texas. Furthermore, SWBT commented that requiring a general rule on fresh look policy rather than addressing the issue on a case by case basis through the complaint process would be tantamount to Commission tampering with private contracts without establishing overriding public interest in each specific case. After reviewing the comments, the Commission has determined that it is preferable to address this issue on a case-by-case basis through the complaint process. None of the persons submitting comments have indicated that they are subject to long term contracts with the LECs and wish to terminate them. Except for mixed use facilities, switched transport service is provided pursuant to tariff rather than under customer specific contracts and so would not be subject to "fresh look". Less than 10% of the LECs' existing revenues for special access and private line services are generated from services provided pursuant to contracts as opposed to services provided pursuant to tariff. The majority of the LEC contracts involve parties who presumably were, or should have been, aware of the on-going activity related to expanded interconnection at the time the contracts were executed. There is no indication that the existence of these contracts is interfering with the implementation of expanded interconnection or the development of competition for these services. For these reasons, the Commission does not believe there is a need for a rule establishing fresh look in Texas. Existing contracts can still be examined through the complaint process to determine whether they adversely affect the public interest. All comments, including any not specifically referenced herein, were fully considered by the Commission. The amendment is adopted under Texas Civil Statutes, Article 1446c, sec.16, which provide the Public Utility Commission of Texas with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction; and sec.18, which authorizes the Commission to adopt rules, policies and procedures to protect the public interest and to provide equal opportunity to all telecommunications utilities in a competitive marketplace. Cross Index to Statutes: Texas Civil Statutes, Article 1446c. sec.23.92. Expanded Interconnection. (a) Applicability. This section applies to each local exchange carrier, as defined in sec.23.61 of this title (relating to Telephone Utilities), that has interstate tariffs in effect that provide for expanded interconnection with local telephone company facilities for special access and/or switched transport services. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Central Office-The location of the central switching unit of a local exchange carrier where customer lines and trunks terminate and are interconnected with the rest of the network. (2) Interconnection-The point in a network where a customer's transmission facilities interface with the local exchange carrier's network under the provisions of this section. (3) Interconnector-A customer that interfaces with the local exchange carrier's network under the provisions of this section. (4) Special Access-A transmission path connecting customer designated premises to each other either directly or through a hub or hubs where bridging, multiplexing or network reconfiguration service functions are performed and includes all exchange access not requiring switching performed by the local exchange carrier's end office switches. (5) Switched Transport-Transmission between a local exchange carrier's central office (including tandem-switching offices) and an interexchange carrier's point of presence. (c) Expanded Interconnection for Special Access and Private Line Services. (1) Expanded interconnection for DS1 and DS3 Special Access Services, and Special Access Services for which interstate expanded interconnection has been granted. Each local exchange carrier that is subject to this section shall offer expanded interconnection as specified in this subsection for the services listed in subparagraphs (A) -(C) of this paragraph. The LEC shall offer expanded interconnection for these services at the same locations, in the same manner, and, except for price, under the same terms and conditions as it offers expanded interconnection for interstate special access services, unless ordered otherwise by the commission. This paragraph applies to the following intrastate special access services: (A) special access DS1; (B) special access DS3; and (C) special access services for which interstate expanded interconnection has been granted. (2) Expanded interconnection for all Special Access and Private Line Services. Each local exchange carrier that is subject to this section shall offer expanded interconnection as specified in this subsection for the services listed in subparagraphs (A)-(B) of this paragraph. The LEC shall offer expanded interconnection for these services at the same locations, in the same manner, and, except for price, under the same terms and conditions as it offers expanded interconnection for interstate special access services, unless ordered otherwise by the commission. This paragraph applies to the following intrastate services: (A) all private line services, as that term is defined in sec.23.61 of this title (relating to Telephone Utilities); and (B) all special access services. (3) Tariff Provisions. (A) Each local exchange carrier that is subject to this section shall file tariff revisions to unbundle each service for which expanded interconnection shall be offered and to remove any resale or sharing restrictions for each such service. As used in this subparagraph, to unbundle means to make available, on an unrestricted basis, the individual rate elements necessary to provide a special access service or a private line service. (B) Each local exchange carrier that is subject to this section shall file tariffs to establish connection charges for the use of equipment and facilities that are associated with offerings of expanded interconnection under this subsection. Unless ordered otherwise by the commission, the definitions of such connection charges and the regulations governing their application shall be the same as those contained in the carrier's interstate expanded interconnection tariffs. The local exchange carrier shall not impose a separate charge or rate element that is not included in its interstate tariffs for interconnection for special access services. The local exchange carrier shall not impose a separate charge or rate element for interconnection for private line services that is not included in its tariffs for interconnection for special access services. (4) Implementation. All local exchange carriers subject to this section shall file tariff amendments in compliance with paragraph (3) of this subsection. (A) Initial filing to implement paragraph (1) of this subsection. The LEC shall file initial tariff amendments to implement the provisions of paragraph (1) of this subsection not later than 30 days after February 22, 1994. (B) Initial filing to implement paragraph (2) of this subsection. The LEC shall file initial tariff amendments to implement the provisions of paragraph (2) of this subsection not later than March 1, 1995 to be effective not later than May 1, 1995, unless suspended. (C) Initial filings in compliance with this subsection shall be filed pursuant to sec.23.26 of this title (relating to New and Experimental Services). Initial tariff amendments filed in compliance with this subsection shall be filed pursuant to sec.23.26; provided, however, the provisions of sec.23.26(c)(6) shall not apply with respect to rates proposed in compliance with paragraph (3)(A) or (3)(B) of this subsection if the local exchange carrier proposes rates that are the same as the rates in effect for the carrier's interstate provision of the same, equivalent or substitutable service. Tariff revisions filed pursuant to this subsection shall not be combined in a single application with any other tariff revision. (D) Additional filings. A local exchange carrier shall make, within 15 days of the effective date of an interstate tariff providing for expanded interconnection, such additional tariff filings as are required to remain in compliance with this subsection. The proposed effective date of such additional tariff filings shall be not later than 60 days after the filing date, unless suspended. (5) Customer Specific Contracts. This subsection does not require the unbundling or removal of resale prohibitions in customer specific contracts in effect on or before February 22, 1994. (d) Expanded Interconnection for Switched Transport Services. (1) Expanded Interconnection for all Switched Transport Services. Each local exchange carrier that is subject to this section shall offer expanded interconnection as specified in this subsection for all switched transport services at the same locations, in the same manner, and except for price, under the same terms and conditions as it offers expanded interconnection for interstate switched transport services, unless ordered otherwise by the commission. (2) Tariff Provisions and Implementation. Each local exchange carrier that is subject to this section shall file tariffs to establish connection charges for the use of equipment and facilities that are associated with offerings of expanded interconnection under this subsection. (A) Unless ordered otherwise by the commission, the definitions of such connection charges and the regulations governing their application shall be the same as those contained in the carrier's interstate expanded interconnection tariffs. (B) Absent additional costs, the local exchange carrier shall impose a single charge when the same facilities are used to provide expanded interconnection for both special access and switched transport services. If additional facilities are used, the local exchange carrier may assess additional cost-based connection charge subelements for the use of such additional facilities. (C) The local exchange carrier shall not impose a separate charge or rate element that is not included in its interstate tariffs for interconnection for switched transport services. (D) A local exchange carrier shall apply nonrecurring reconfiguration charges in a neutral manner to customers of either the interconnector or local exchange carrier unless justified by specific identifiable cost differences. In addition, any differences between the charges applicable when a customer shifts to an interconnector's service and those applicable when a customer reconfigures its service with the local exchange carrier must be cost-based. (E) The LEC shall file initial tariffs to implement the provisions of this subsection not later than February 1, 1995, with tariffs becoming effective not later than April 1, 1995, unless suspended. (F) Initial tariff filings in compliance with this subsection shall be filed pursuant to the provisions of sec.23.26; provided, however the provisions of sec.23.26(c)(6) shall not apply with respect to rates proposed in compliance with subparagraph (A)-(E) of this paragraph if the local exchange carrier proposes rates that are the same as the rates in effect for the carrier's interstate provision of the same, equivalent or substitutable service. Tariff revisions filed pursuant to this subsection shall not be combined in a single application with any other tariff revision. (G) A local exchange carrier shall make, within 15 days of the effective date of an interstate tariff providing for expanded interconnection, such additional tariff filings as are required to remain in compliance with this subsection. The proposed effective date for such additional tariff filings shall be not later than 60 days after the filing date, unless suspended. (e) Waivers. A LEC may seek a waiver from the requirements of subsections (c) and (d) of this section at a location where the opportunity for the application of an FCC waiver does not exist. The request shall be granted if the presiding officer of the commission finds that the local exchange carrier has demonstrated that it is not feasible to provide interconnection at a specific location due to lack of space. (f) Voluntary Agreements. A local exchange carrier and one or more interconnectors may agree to alternative interconnection arrangements at a specific location that are different from those required by subsections (c) and/or (d) of this section, provided such arrangements are tariffed and made generally available for that location. Any such agreement shall not modify the local exchange carrier's obligations under subsections (c) and (d) with respect to any other interconnector that does not elect to subscribe to the voluntary arrangement. (g) Bona Fide Requests. If a local exchange carrier would be required to provide expanded interconnection for interstate special access or switched transport services at a particular location upon receipt of a bona fide request for such interstate interconnection, the LEC shall provide interconnection for intrastate services as required by subsections (c) and (d) of this section upon receipt of a bona fide request for such intrastate interconnection at any location not covered by its interstate tariffs, subject only to the same conditions and exceptions that would be applicable to a bona fide request for interconnection for interstate services. (h) Utilization of Collocation Space. A local exchange carrier shall permit an interconnector to use the same collocation space for both interstate and intrastate interconnection services. (i) Utilization of Facilities. A local exchange carrier shall permit an interconnector to use the same facilities for both interstate and intrastate switched access traffic. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 7, 1994. TRD-9450574 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: November 28, 1994 Proposal publication date: May 6, 1994 For further information, please call: (512) 458-0100 TITLE 19. EDUCATION Part II. Texas Education Agency Chapter 61. School Districts Subchapter BB. Commissioner's Rules on Reporting Requirements 19 TAC sec.61.1021 The Texas Education Agency (TEA) adopts new sec.61.1021, concerning school report cards (SRC's), with changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7973). The rule is necessary to increase awareness and knowledge of the resources and performance of public schools. Distribution of the SRC should enhance parental involvement in campus improvement activities. The change to subsection (b), made in response to public comment, clarifies the intent of the SRC. The rule specifies how school districts shall disseminate yearly SRC's to the parents or guardians of each student at each campus. The SRC provides each family with student, staff, financial, and performance information as required by statute. Mansfield ISD suggested that the primary intent of the SRC is to inform parents about the school. A secondary intent is to show school performance in relation to the district, state, and comparable schools. The rule text was modified to reflect this comment. The new rule is adopted under the Texas Education Code, sec.35.043, which authorizes the commissioner of education to adopt rules requiring dissemination of campus report cards annually to the parent of or person standing in parental relation to each student at the campus. sec.61.1021. School Report Cards. (a) The campus report card disseminated by the Texas Education Agency (TEA) under the Texas Education Code, sec.35.043, shall be termed the "school" report card (SRC). (b) The intent of the SRC is to inform each student's parents or guardians about the school's performance and characteristics. Where possible, the SRC will present the school information in relation to the district, the state, and a comparable group of schools. The SRC will present the student, staff, financial, and performance information required by statute, as well as any explanations and additional information deemed appropriate to the intent of the report. (c) The SRC must be disseminated within six weeks after it is received from TEA. (d) The campus administration may provide the SRC in the same manner it would normally transmit official communications to parents and guardians, such as: including the SRC in a weekly folder sent home with each student, mailing it to the student's residence, providing it at a teacher-parent conference, or enclosing it with the student report card. (e) The school may not alter the report provided by TEA; however, it may concurrently provide additional information to the parents or guardians that supplements or explains information in the SRC. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 7, 1994. TRD-9450563 Criss Cloudt Executive Associate Commissioner, Policy Planning and Information Management Texas Education Agency Effective date: November 28, 1994 Proposal publication date: October 7, 1994 For further information, please call: (512) 463-9701 19 TAC sec.61.1022 The Texas Education Agency (TEA) adopts new sec.61.1022, concerning the Academic Excellence Indicator System (AEIS) report, without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7974). The rule is necessary to increase awareness and knowledge of the resources and performance of public schools. Distribution of the SRC should enhance parental involvement in campus improvement activities. The rule specifies how each board of trustees shall publish the yearly AEIS report and disseminate it to the public and how they shall hold a hearing for public discussion of the report. No comments were received regarding adoption of the new rule. The new rule is adopted under the Texas Education Code, sec.35.042, which authorizes the commissioner of education to adopt rules concerning dissemination of the AEIS report. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 7, 1994. TRD-9450564 Criss Cloudt Executive Associate Commissioner, Policy Planning and Information Management Texas Education Agency Effective date: November 28, 1994 Proposal publication date: October 7, 1994 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS Part XXIII. Texas Real Estate Commission Chapter 535. Provision of the Real Estate License Act Suspension or Revocation of Licensure 22 TAC sec.535.164 The Texas Real Estate Commission adopts an amendment to sec.535.164, concerning disclosure of agency, with changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6887). The amendment provides additional exceptions to the required use of an agency disclosure form; the form provides general information about the types of representation available to consumers and serves as a vehicle for the real estate licensee to make written disclosure of any existing agency relationship between the licensee and any principal. The amendment also clarifies the meaning of an exception for residential lease transactions in which no sale is being considered and permits real estate licensees to use a foreign language version of the disclosure form once the commission has approved the foreign language version. Adoption of the amendment is necessary to provide guidelines to real estate licensees concerning disclosure of agency and use of the disclosure form. The Texas Association of Realtors (TAR) and the Texas Real Estate Buyer Agents Association (TREBBA) commented both in support and in opposition to the proposed amendment. TAR supported use of authorized foreign language versions of the disclosure form and generally supported the proposed amendments. TAR also suggested that the format of the form be modified and that the portion relating to disclosure of any existing agency relationship be deleted. The commission did not concur with the suggested change, since the deletion would have affected one of the intended purposes of the form, disclosure of an existing agency, and no change in the form itself had been proposed in the rulemaking process. TAR also suggested that the section should not require a licensee to provide the form to a principal represented by another licensee whether or not the other licensee is present. The commission determined that the section should be amended as proposed to require the other licensee to be present for the exception to be applicable. TREBBA suggested that language be added to the section to require an English language version of the disclosure form to be provided to a prospective buyer, seller, landlord or tenant if an approved foreign language version of the form is being used. The commission concurred and made the suggested change. TREBBA opposed the proposed exception for meetings at which licensees representing different principals are both present and recommended the additional deletion of the present exception for meetings at open houses. TREBBA also suggested that the section include electronic communications relating to real estate and require a specific disclosure that the licensee furnishing the information electronically represents the property owner. The commission determined that these changes should not be made in the section. A number of individuals opposed the portion of the amendment permitting licensees to use foreign language versions of the form, contending generally that the English language alone should be used. The commission determined that the information contained in the form should be available to consumers who do not read the English language and did not concur with the comments. The amendment is adopted under Texas Civil Statutes, Article 6573a, sec.5(h), which authorize the Texas Real Estate Commission to make and adopt all rules and regulations necessary for the performance of its duties. sec.535.164. Disclosure of Agency. (a)-(d) (No change.) (e) A real estate licensee is not required to provide a copy of the form to a prospective buyer, seller, landlord or tenant in the following instances: (1) (No change.) (2) the proposed transaction is for a residential lease for one year or less and no sale is being considered; (3)-(4) (No change.) (5) the face-to-face meeting with a licensee occurs at a property which is being held open for prospective purchasers or is being shown to prospective tenants, and there is no substantive discussion regarding a transaction; (6) the face-to-face meeting with the licensee or the written communication from the licensee occurs after the parties to the transaction have signed a contract to buy, sell, rent, or lease the real property concerned; or (7) the licensee is meeting with a principal who is represented by another licensee who is also present. (f)-(g) (No change.) (h) Licensees may use a revised disclosure form adopted under this section prior to the effective date of a revision. Licensees may use a foreign language version of the form approved by the commission; provided, however, that any foreign language version form furnished to a prospective buyer, seller, landlord or tenant shall also include the English version form. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on November 2, 1994. TRD-9450450 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: November 25, 1994 Proposal publication date: September 2, 1994 For further information, please call: (512) 465-3900 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 98. HIV and STD Control Subchapter A. Texas HIV Services Grant Program General Provisions 25 TAC sec.98.7 The Texas Department of Health (department) adopts the repeal of sec.98.7 of existing HIV Services Program rules, without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6983). Section 98.7 defines the committee's purposes, composition, meeting procedures, and reporting responsibilities. In accordance with Texas Civil Statutes, Article 6252-33, the department must evaluate each of its advisory committees to determine whether the committee should be continued, modified, consolidated with other committees, or abolished. The HIV Services Advisory Committee was established in 1989. However, no quorum was present at three of the committee's last four meetings. Upon review, the department has determined that the committee no longer serves a useful purpose, that its functions can be more efficiently accomplished by allowing local consortia to provide input to the department through statewide and regional meetings. The committee will be abolished. COMMENT: One comment was received from an individual indicating opposition to abolishing the HIV Services Advisory Committee. RESPONSE: The department will find alternative mechanisms to accomplish the mission of the committee. The repeal is adopted under Texas Civil Statutes, Article 6252-33, which sets 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 Texas Board of Health (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. 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 November 8, 1994. TRD-9450625 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: November 29, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 458-7456 Subchapter B. HIV Education Grant Program General Provisions 25 TAC sec.98.67 The Texas Department of Health (department) adopts the repeal of sec.98.67, of existing HIV Prevention Program rules, without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6984). Section 98.67 defines the committee's purposes, composition, meeting procedures, and reporting responsibilities. In accordance with Texas Civil Statutes, Article 6252-33, the department must evaluate each of its advisory committees to determine whither the committee should be continued, modified, consolidated with other committees, or abolished. The HIV Education, Prevention and Risk Reduction Advisory Committee was established in 1989. With the committee meeting only twice a year, and new members being appointed, a large portion of the meetings was spent orienting members on current program issues. Upon review, the department has determined that the committee no longer serves a useful purpose, that its functions can be more efficiently accomplished through the statewide community planning process, and that it will be abolished. No comments were received. The repeal of sec.98.67 is adopted under Texas Civil Statutes, Article 6252-33, which sets standards for the evaluation of advisory committees by the agencies for which they function; and the 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. 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 November 8, 1994. TRD-9450624 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: November 29, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 458-7456 Chapter 157. Emergency Medical Care Emergency Medical Services Trauma Systems 25 TAC sec.157.121, sec.157.125 The Texas Department of Health (department) adopts amendments to sec.157. 121 and sec.157.125, concerning emergency medical services trauma systems, without changes to the proposed text as published in the June 10, 1994 issue of the Texas Register (19 TexReg 4479). Specifically the sections cover purpose (designation process basic (level IV) trauma facilities), and requirements for trauma facility designation. The amendments update and clarify existing essential criteria for basic (level IV) trauma facility designation and requirements for site surveys of hospitals applying for designation. The department is amending the existing sections as a result of recommendations of the Trauma Technical Advisory Committee regarding level IV designation. New subsection (d) under sec.157.121 includes essential criteria for the designation process (level IV trauma facilities). In February 1992 the department adopted by reference ten publications covering criteria and designation process. To comply with more rigid Texas Register restrictions with regard to adoption by reference material, the actual text of the proposed "Texas Trauma Facility Criteria, Basic" is published as new subsection (d) instead of adoption by reference under existing subsection (b) where other existing criteria is adopted by reference. No comments were received on the proposed amendments. The amendments are adopted under the Health and Safety Code, sec.773.115, which provides the Texas Board of Health with the authority to adopt rules for the designation of trauma facilities; and sec.12.001 which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the Commissioner of Health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on November 8, 1994. TRD-9450623 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: November 29, 1994 Proposal publication date: June 10, 1994 For further information, please call: (512) 458-7692 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part I. General Land Office Chapter 15. Coastal Area Planning Subchapter A. Management of the Beach/Dune System 31 TAC sec.15.11 The General Land Office adopts new sec.15.11, concerning certification and conditional certification of local government beach access and dune protection plans (plans). The rule is being adopted with one editorial change to sec.15. 11(f) to provide a proper citation. No other subsection has been changed. The local plans are the product of a state and local government partnership which recognizes the economic and environmental benefits in protecting the beach/dune system and preserving and enhancing the public's right to use and have access to and from Texas' public beaches. The local plans are designed to assist Texans in protecting private property, structures, and public beaches from the ravages of erosion, flooding, and a dwindling sand budget. It is economically smart to protect the Texas coast. Texas' public beaches attract tourists from around the world, enhancing local economies. It is a tribute to the coast that its beauty attracts many new residents; construction of new homes and infrastructure is on the rise. The coast of the Gulf of Mexico provides critical estuarine habitat for wildlife and marine life, attracting sportsfishermen, birders, naturalists, and scientists. The beach/dune system is an invaluable and irreplaceable part of the fragile, dynamic ecology of the Texas coast. Sand dunes are buffers against windblown salt and spray, and are vitally important in protecting the property that lies behind them against storms and floods. Sand dunes store sand which is critical to replenishing Texas' eroding beaches and the sediment budget. The local plans certified in sec.15.11 are a critical component of the effort to preserve the dynamic and fragile Texas coast. The Texas Legislature directed the General Land Office to provide a state-wide, baseline level of protection for the economic and ecological values of the Texas coast and its natural features; however, each local government with jurisdiction over the areas adjacent to the Gulf of Mexico is responsible for implementing the protective standards, and may take into account the unique conditions of the local area. Together, the state and local governments will endeavor to enhance the economic and ecological values of the coast for this and future generations of Texans. Pursuant to the Open Beaches Act and the Dune Protection Act (Texas Natural Resources Code, Chapters 61 and 63) and the Beach/Dune Rules (31 TAC sec.sec.15. 1-15.10), all local governments with jurisdiction over gulf beaches must submit plans to the General Land Office. As directed by the Texas Legislature, and after considering more than 1,000 comments during the public comment period, the General Land Office adopted the Beach/Dune Rules in February, 1993 (18 TexReg 661), providing the minimum standards for protecting gulf beaches and dune systems through the content and implementation of local plans. The General Land Office has reviewed the plans identified in subsections (a) and (b) and hereby certifies that all 13 plans comply with state law. In subsection (a), the General Land Office unconditionally certifies eight local governments' plans. In subsection (b), the General Land Office certifies five local governments' plans with the condition that the local governments modify their plans to be consistent with the General Land Office comments referenced in subsection (b). Such modification of plans identified in subsection (b) must be formally adopted by the local governments on or before the expiration of 180 days from the effective date of this section, unless the provisions of subsection (d)(2) apply. Subsection (c) requires local governments to implement conditionally certified plans consistent with the Open Beaches Act, the Dune Protection Act, and the Beach/Dune Rules. Subsection (d)(1) provides for the removal of conditions imposed on local government plans. Subsection (d)(2) describes the mechanism for a local government which opts not to modify its plan to support its choice by providing scientific or legal justification why the modifications proposed by the General Land Office are not feasible. Subsection (e) provides for the General Land Office to withdraw conditional certification by amending this section if a local government fails or refuses to comply with subsections (b) and (d). As explained in subsection (f), the Nueces County and Cameron County interim certifications adopted on October 9, 1992 (17 TexReg 6975), are not affected by the adoption of this rule. Section 15.11(a). Regarding sec.15.11(a)(2), one commenter supported the certification of the Chambers County plan, but requested that Chambers County revise its plan to contain a "more nearly accurate description of existing public beach access." The commenter noted that access to the public beach adjacent to Highway 87 is impaired by the closure of the highway, and that while vehicular use of the highway is prohibited, neither the Texas Department of Transportation nor the county have prohibited vehicular use of the beach. Clarification of this point will facilitate a better understanding of beach access in Chambers County, and the county is encouraged to revise the plan accordingly. The General Land Office considers the commenter's request for such plan revisions as a request for further clarification of an otherwise legally sufficient plan; therefore, no change was made based on this comment. Regarding sec.15.11(a)(3), a commenter questioned whether the adoption of the Port Aransas plan resolution rather than ordinance was enforceable. Section 15.11 certifies local government plans which meet the requirements of the Open Beaches Act, the Dune Protection Act, and the Beach/Dune Rules. Local governments are required to enforce their plans; however, it is entirely up to the local governments to determine the means by which such plans are adopted. Because sec.15.11 does not mandate a method by which local governments must adopt plans, no change was made based on this comment. Groups and associations opposed to portions of this proposed section because they requested changes in, or otherwise expressed dissatisfaction with, the section were: The Office of the Texas Attorney General. The new section is adopted pursuant to the Texas Natural Resources Code, sec.61.011(d)(5) and sec.63.121, in which the Texas Legislature authorized the General Land Office to promulgate rules for the certification of local government beach access and use plans and for the identification and protection of critical dune areas. sec.15.11. Certification of Local Government Dune Protection and Beach Access Plans. (a) Certification of local government plans. The following local governments have submitted plans to the General Land Office which are certified as consistent with state law: (1) Brazoria County (2) Chambers County; (3) City of Port Aransas; (4) City of Port Arthur; (5) Jefferson County; (6) Matagorda County; (7) Town of Quintana; and (8) Village of Jamaica Beach. (b) Conditional certification of local government plans. The following local governments have submitted plans to the General Land Office which are conditionally certified as consistent with state law. (1) City of Corpus Christi. This certification is valid for 180 days, during which time the City of Corpus Christi will modify its plan consistent with the General Land Office comments submitted to the City of Corpus Christi (October 14, 1993). (2) City of Galveston. This certification is valid for 180 days, during which time the City of Galveston will modify its plan consistent with the General Land Office comments submitted to the City of Galveston (October 14, 1993). (3) Galveston County. This certification is valid for 180 days, during which time Galveston County will modify its plan consistent with the General Land Office comments submitted to Galveston County (October 18, 1993). (4) Kleberg County. This certification is valid for 180 days, during which time Kleberg County will modify its plan consistent with the General Land Office comments submitted to Kleberg County (October 14, 1993). (5) Village of Surfside Beach. This certification is valid for 180 days, during which time the Village of Surfside Beach will modify its plan consistent with the General Land Office comments submitted to the Village of Surfside Beach (December 3, 1993). (c) Implementation of conditionally certified plans. Local governments are required to implement conditionally certified plans consistent with the Natural Resources Code, Chapters 61 and 63, and the General Land Office rules for management of the beach/dune system, sec.sec.15.1-15.10 of this section. (d) Removal of conditions of certification. (1) Local governments shall submit their modified plans on or before the expiration of the 180-day time period. The General Land Office shall provide to the pertinent local government a determination as to the sufficiency of the modification(s) within 60 days of receipt of the plan. The General Land Office will remove all conditions of the plan's certification by amending this subsection. Such amendments will list the name of the pertinent local government in subsection (a) of this section, and delete the same from subsection (b) of this section. If the General Land Office determines that modifications of plans are insufficient, the General Land Office shall provide specific exceptions to the modifications. If those portions of the plan to which the General Land Office has noted exceptions can be addressed through further comment, plan revision and review, conditional certification will be reissued pursuant to a General Land Office amendment to this subsection, subject to further plan modification. (2) In the event that a local government chooses not to modify its plan as requested in the General Land Office comments, the local government shall provide in writing the scientific or legal justification as to why such modifications are not feasible. The justification shall be submitted to the General Land Office on or before the due date of the revised plan. The justification will be reviewed by the General Land Office, and a determination as to the sufficiency of the justification will be provided to the local government within 60 days of receipt by the General Land Office. Local government plans shall continue in effect under conditional certification until the sufficiency of the justification is resolved or this section is amended. (e) Withdrawal of conditional certification. Conditional certification of a local government plan shall be withdrawn by the General Land Office after the 180-day time period if the pertinent local government does not submit to the General Land Office either a formally adopted plan which has been modified consistent with General Land Office comments or the written scientific or legal justification as to why such modification is not feasible. In any event, withdrawal of conditional certification shall only occur after the General Land Office adopts an amendment to this subsection withdrawing conditional certification, with accompanying specific reasons, and the General Land Office has given the pertinent local government written notice of the withdrawal of the conditional certification. (f) This section does not affect the General Land Office interim certification issued to Nueces County and Cameron County on October 9, 1992, as defined in sec.15.72 of this chapter (relating to Administration) which continues in effect. 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 31, 1994. TRD-9450581 Garry Mauro Commissioner General Land Office Effective date: November 28, 1994 Proposal publication date: May 13, 1994 For further information, please call: (512) 305-9129 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part XIX. Texas Department of Protective and Regulatory Services Chapter 715. Day Care Licensing Subchapter E. Standards for Day Care Centers 40 TAC sec.sec.715.401-715.432 The Texas Department of Protective and Regulatory Services (TDPRS) adopts the repeal of sec.sec.715.401-715.432, and adopts new sec.sec.715.401-715.429, concerning the minimum standards for day care centers, in its Day Care Licensing rule chapter. The new sec.sec.715.401-715.406, 715.408-715.411, 715. 413- 715.415, 715.417, 715.419-715.427 are adopted with changes to the proposed text as published in the May 6, 1994, issue of the Texas Register (19 Tex Reg 3444). The new sec.sec.715.407, 715.412, 715.416, 715.418, 715.428, and 715.429 are adopted without changes to the proposed text, and will not be republished. The justification for the repeals is to delete obsolete language. The justification for the new sections is to ensure that regulations as specified in Chapter 42 of the Human Resources Code regarding child care facilities are implemented to promote the health, safety, and welfare of children attending a facility; promote safe, comfortable, and healthy physical facilities for children; ensure adequate supervision of children by capable, qualified, and healthy personnel; ensure adequate and healthy food service where food service is offered; and prohibit racial discrimination by child care facilities. The new sections will function by ensuring that a minimum level of health, safety, and well being for children in care is provided. During 1991-1994, an ad hoc committee was appointed by TDPRS with membership including teachers, parents, directors, and experts in the field of child care. All sizes of facilities, parts of the state, and sources of funding (profit and non-profit) were represented. This committee, in conjunction with TDPRS's Licensing Division, developed the recommendations acted on by the Protective and Regulatory Services Board at their meeting on March 11, 1994. At various stages of the department's work with the ad hoc committee, meetings were held at 53 locations throughout the state. At these meetings, 4,740 people participated and another 5,573 commented on various versions of the recommendations by mail to TDPRS. The Advisory Committee on Child Care Administrators and Facilities also made recommendations. During the public comment period, 13,000 copies of the proposed standards were mailed to all day care centers and stakeholders. Included with each copy was a form inviting comments to the proposals. A toll-free number was also available for the receipt of comments. TDPRS received 2,014 written and verbal comments from 1,271 individuals. TDPRS conducted public hearings in Dallas, Houston, Lubbock, San Angelo, and McAllen. Of the 417 people who attended the five public hearings, 142 testified. The following organizations favorably commented on the proposed sections: West Texas Association for the Education of Young Children, Association for Retarded Citizens of Wichita County, The Family Connection of Dallas County, Mental Health Association of Texas, Austin Association for the Education of Young Children, Houston Association for the Education of Young Children, Junior League of Corpus Christi, Connection Resource Center-Austin, San Antonio Association for the Education of Young Children, Dallas Association for the Education of Young Children, Fort Worth Association for the Education of Young Children, Collin County Association for the Education of Young Children, YMCA Metropolitan Dallas, Southmost Association for the Education of Young Children, Panhandle Association for the Education of Young Children, South Plains Association for the Education of Young Children, Texas Association for the Education of Young Children, Texas Nurse Practitioners, Foundation for Texas Children, Community Advisory Committee for Austin Community College, League of Women Voters of Texas, City of Austin Child Care Council, Texas Baptist General Convention, Texas Environmental Health Association, Texas Pediatric Society's committee on Early childhood, Adoption and Dependent Care, Work/Family Directions, and League of Women Voters of Galveston. The following organizations expressed opposition to the proposed sections: Texas Licensed Child Care Association and its affiliates, Citizens For Children and Families of Texas, Black Coalition For Child Care, Child Care Owners, Owner/Directors, and Independents of Texas. Of the 1,271 respondents, 254 (20%) concurred with all the proposed revisions and 127 (10%) disagreed with all proposals. The remaining 70% made individual comments on particular sections, an average of 1.5 comments per responder. A summary of the comments and TDPRS's responses follows. In sec.715.401, TDPRS made the following changes to definitions. In subparagraph (D) under the definition for abuse, the word "incest" was deleted as it is not relevant to day care centers. Minor editorial changes were made to the definition of certified life guard for clarification. Also in subparagraph (D), under the definition of certified life guard, the words "who might be", reflecting the people in the pool, were deleted as they were unnecessary. The definition of child was changed to indicate the age of 14 instead of 18 for licensing purposes. A minor editorial change was made in the definition of child development associate credential. The words "which is highly desirable for" were replaced by "given to". The definition for continuing education unit was rewritten for clarification. In the definition of day care centers the words "day care" was replaced with "less than 24 hours" for clarification. A minor editorial change was made to the definition of day care center to indicate that children are "cared for" rather than "received" at the centers. The definition for drop-in child care center was deleted because the standards regarding drop- in care are not in these standards. In the term field trips, the word "center" was replaced with the word "facility." The definitions for group child care, group day care home, kindergarten nursery school, and kindergarten and above were deleted from the definitions as these groups are addressed in a separate standard. Under the definition of day care, the words "under 14 years of age" were added to describe the age limitation of unaccompanied children. The words "as compared" were replaced with the words "in contrast" in the definition of direct child care to clarify the differences in care. TDPRS changed the age of the definition of an infant. Under the definition of neglect the words "as reflected in" were added prior to the Texas Family Code cite, and in subparagraph (A), the words "and demonstrating an intent not to return by a child's parent, guardian, or managing or possessory conservator" were deleted as this phrase does not relate to child care licensing. Also in the definition of neglect, in clause (iii) of subparagraph (B) the last sentence was deleted as it does not relate to child care licensing. The definition of orientation was reworded for clarification. The definition of parent has been clarified by deleting the words "other person standing in parental relationship to a child" and substituting "a person designated by the parent to act in the parent's role". In the definition of pre-service training the words "who have no previous experiences in professional child care or no relevant training" were added to explain which new employees required training. In the definition of school-age care, the words "generally, age five and above" were deleted and the phrase "at least 5 years of age but who are under" before the words "14 years of age" to clarify the age limitations in this definition. The definition for special accommodations was eliminated because licensing does not enforce these provisions. The definition of supervision was changed to supervision of children for clarification. Also in that definition, the term "physical presence" is changed to "physical proximity" for clarity. The definition for staff was reworded to indicate that staff are any persons employed by the facility. The definition for training was simplified by deleting certain types of schooling. The definition for transportation was changed for clarity. Definitions for corporal punishment, critical illness, field trips, and propped bottle were added to clarify these terms used in this subchapter. In sec.715.402, TDPRS has added an additional subsection (b) to include language regarding the prohibition of discrimination of children. Also this section was reformatted to accommodate the new subsection. In paragraph (3) of subsection (a) the words "as defined in sec.715.401 of this title (relating to Definitions)" were added to define parents. Also the words "or other persons in a parental relationship with the child" were replaced by the words "and the Texas Department of Protective and Regulatory Services Licensing Division" to clarify and further specify those required to be notified if liability insurance is unavailable for financial reasons. In sec.715.403, TDPRS added subsection (b) to identify the changes that require approved amendment of the license. TDPRS clarified the situation where notification of the death of a child must be made by replacing the words "an enrolled child" with the words "of a child while in care" in sec.715.403(a)(3) (C). TDPRS added an example to sec.715.403(a)(3)(F) for clarification. TDPRS rearranged the wording of sec.715.404(a)(2) and sec.715.404(a)(3)(B) for clarification. TDPRS deleted references to drop-in care centers in sec.715.405(c) and (d) because these rules do not apply to drop-in care centers. Also several editorial changes by TDPRS were made in this section. In sec.715.405(c)(2)(A) the word "states" in the first sentence changed to "stating." In sec.715.405(d) (2) the word "vaccine" was added before the word "type". In sec.715.405(e)(1) the word "cycle" has been replaced with the word "series". For clarification TDPRS combined the first two sentences in subsection (f) by replacing the word "a" with the words"or a". Subsection (g) was deleted as TDPRS determined it is not an enforceable area. In subsection (h) the words "in direct care" were added to clarify the description of staff. The word "staff" was added to sec.715.406(b) to indicate who is responsible for the communication requirement. In sec.715.406(c)(3) examples of "at risk" were added. Section 715.408, regarding the qualifications of center directors, received 97 comments, 5.0% of all comments. The largest group of comments (26%) expressed opposition to the increased qualifications but did not seem to have understood the options given for meeting the qualifications, making their comments largely irrelevant. Another 23% (22 comments) wanted current directors to be exempted from meeting any additional qualifications. There are two reasons for the department's adopting this section as proposed. The first involves the importance of the director to the child-care center. Because the director is both the business manager and the source of leadership and knowledge on children's health, safety and well-being, it was reasoned that all directors should have a balance of knowledge in business and child-related areas. Second, the implementation of this section allows current directors three years in which to meet the increased qualifications and gives six different ways they can be met. For these reasons, the department adopted this section as proposed, with one change in the implementation section, directors will be given four rather than the proposed three years in which to meet the new qualification. The Board felt that the additional time would allow current directors to more easily reach the increased requirements. Due to comments and as a result of the TDPRS Board decision, sec.715.408(a) was changed to indicate that the director of a center has four years rather than three years to comply with the qualifications specified in this section. As a result of this change, the date of June 1, 1998, was replaced with June 1, 1999. TDPRS changed the number of required college credit hours in child development from nine to six to correct an error in the proposed rules. TDPRS clarified the language in subsection (a)(4) by referencing published criteria rather than cites from the subsection; in sec.715.408(a)(5) the reference to CEU was added; in sec.715.408(b)(1) by deleting the words "are aware of and know" with the words "know and understand"; and in sec.715.408(b)(5) by making minor editorial changes. TDPRS made clarifications in sec.715.409(b) to change the age of persons in charge of a group from age 18 years old to age 17 years old and include the word "with" to indicate these persons are not to be left alone with children. In sec.715.409(c)(1)(B), a change was made to comply with the Texas Family Code to require staff to report suspected abuse and neglect to TDPRS or law enforcement, but not to both. TDPRS deleted sec.715.409(c)(3) as it is not an enforceable area. This deletion caused reformatting of the remaining paragraphs. In sec.715.410(4) the words "with negative results, no earlier than 12 months before beginning the position, if" were replaced with the word "as" to indicate that the requirements are to comply as provided by local or state Department of Health guidelines. Also the last sentence was deleted to comply with these guidelines. TDPRS received 198 comments regarding sec.715.411 which equaled 10% of all individual comments. Two aspects were most often commented on: The change in training hours to exclude CPR and First Aid from the 15-hour yearly training requirement, and the new requirement for eight hours of training before staff can be made responsible for a group of children ("preservice training"). Of the comments made regarding this section, 65 (33%) were opposed to excluding CPR and First Aid from the training hours, feeling that it devalued that form of training. In fact, there was an increase in the number of people needing to have First Aid training. The other area commented on (57 comments) was the preservice requirement (sec.715.411 (b)). Although child care directors supported the concept of preservice training, their concerns as expressed in the comments, addressed concerns about implementation resulting from a misunderstanding of the rule and the implementation procedures. The need for preservice training will ONLY be for caregivers new to the field and without experience in a regulated child care facility or relevant training, and will only need to be taken once in a staff member's career. It is also important to note that the department is committed to making this training available throughout the state, in many different forms, and at many different times so that people interested in working in child care could easily acquire the needed preservice training even before applying for a job. This section seeks to change a situation in the profession whereby anyone with a GED or high school diploma can walk into a child care center and be given responsibility for a group of children. In almost no other field is this possible or acceptable, and for one as critical as child care, both staff and children are put at risk. Because most respondents who were opposed to the section were opposed mainly because of the perceived difficulty in hiring staff and not because of the need for pretraining itself, the department is adopting the section as proposed. In sec.715.411(d)(12)(C), care of preschool children is added and the subparagraphs are formatted to reflect this addition. Minor editorial changes were made to sec.715.411(b) and (c). TDPRS changed the description of the furnishings in sec.715.413 (5) and (7) from plural to a singular form. TDPRS rewrote sec.715.414(a)(1) and (2) into sec.715.414(a) for simplification. For clarification in sec.715.415, TDPRS replaced the word "nor" with the word "or" in subsection (c)(2) and in (3) the word "or" was added before the word "rejected" and the words "or isolated" were deleted. Also in this section, paragraph (7) was added to include the situations where supervised separation of children is acceptable. Comments were received regarding sec.715.417. The proposed changes in the child/staff ratio received 18% (357) of all the individual comments made. Of those, 153 (43%) of the commenters were opposed to changes in the child/staff ratio because of the expected impact on the price of child care. Another 24% (86) opposed the changes for other reasons, most often because they felt the current sections were acceptable. Another 14% (50) wanted more stringent sections, either in the form of even lower child/staff ratios or in implementation of the proposals sooner than the two-year implementation delay proposed. The mandate of TDPRS by Chapter 42 is to ensure the health, safety, and well- being of the children in day care. It was in this interest that the changes in child/staff ratio were proposed. Research into early development and care conducted over the past 15 years consistently points to the importance of low child/staff ratios and small group sizes as crucial to a good start for children's later cognitive, social, and emotional development. Impact studies carried out by TDPRS have found significant differences in terms of injuries, adequate supervision, and inappropriate discipline in centers that currently meet child/staff ratios. Compared to centers that meet the proposed child/staff ratios, centers that comply with current minimum child/staff ratios have significantly higher rates of serious incidents and injuries, and are three times more likely to be cited for the inability to show competency, good judgement, and self control; not relating to children with courtesy, respect, acceptance and patience; not washing hands in a manner that prevents the spread of disease and illness; and poor discipline practices, including the use of cruel, harsh or unusual punishment or treatment, humiliating children or subjecting them to abuse or profane language. These facilities also required more visits from TDPRS to regulate. With 5,342 recorded incidents or injury/serious risk to children in centers across Texas last year, improving the child/staff ratio along with the addition of preservice training, limited hours in direct care and improved director qualifications are expected to result in a lowering of that number. Although ensuring that the consumer gets a fair price for services and products purchased is not within the purview of the mandate of Chapter 42, TDPRS has been sensitive to the cost issue both in the process of revising the sections and in ensuring the cost impact is manageable. The best estimate of the industry-wide cost impact is 7.0% ($4.34 per week) and is the result of the last of four impact studies conducted by the department. Austin Data Management Group, an independent organization hired to review the methodology and data behind the department's and industry's models, found the department's model to be the most accurate predictor of the cost impact. The discredited industry model has regularly been used to predict increases of 20%, resulting in wide-spread fear in the industry of the impact of the proposed child/staff ratios. TDPRS is adopting sec.715.417 as proposed, including a two-year delay in implementation of this section, effective June 1, 1997. This implementation delay has been added as subsection (a), causing the other subsection to be changed to subsection (b). Also the chart has been further adjusted to improve readability. The headers of the chart in this section have also been clarified by adding the words "number of children" to each column. TDPRS rewrote sec.715.419(b) and (c), by combining them to clarify the intent of these subsections to promote sensory-motor development. As a result of this change, the section has been reformatted. Also the reference to the definition of propped bottles has been added to subsection (d). TDPRS included in sec.715.420 the references to the definitions for field trips in subsection (a) and to first aid supplies in subsection (f). TDPRS reworded subsection (b) for clarification. A change was also made to subsection (d) to change the reference to children to be singular, and subsections (e),(f), and (g) were rewritten to indicate staff performed these functions. Additionally, TDPRS deleted subsection (g) regarding child identification as it was unnecessary. Comments were received regarding sec.715.421. A decrease in the number of children who could be supervised by one adult on trips away from the facility drew 106 (5.0%) comments. Of those, 22 were forms with identical comments, written by one person and signed by different people. Thirty-one of the commenters wanted a less stringent section while 27 wanted no change from the current standard. An additional 25 comments were classified as "other" and dealt with ideas for making field trips safer, gave the section number but made no comment, or made comments that did not specifically support or oppose the section. Field trips and water activities are high-risk activities. The lowered child/staff ratios for field trips apply only in instances when groups of children from one facility are mixed with large numbers of other children or adults in settings such as shopping centers, circuses or other situations involving crowds. It is in these situations where a group of children must be closely supervised to avoid loss or harm, thus ensuring continued safety of children when they are away from the facility. Water activities in public pools, involving water over two feet deep, or which include children under age four are also difficult to safely supervise. The recommended ratios lessen the risk to children participating in these activities. TDPRS is adopting this section as proposed. Minor editorial changes were made to subsection (b), paragraph (1) by changing the wording to "at least two adults must be present. " TDPRS rewrote subsection (j) for clarification and for appropriate enforcement. In sec.715.422, TDPRS deleted the second sentence in paragraph (2) of subsection (a) as it was not necessary. In subsection (b) minor editorial changes were made to delete the word "school" for clarification. Also in subsection (d), paragraph (4) TDPRS replaced the words "Type 6-BC portable" with "operational" and replacing "which is operational" with "approved by the local or State Fire Marshal." TDPRS made minor editorial changes to sec.715.423(d) and has rewrote subsection (g)(1) and (2) to clarify that adults and children must be observable, and in paragraph (3) the words "while children are present" were deleted as they were unnecessary. TDPRS has made a minor editorial change to sec.715.424(b)(2) to indicate that smoking is not allowed at the facility rather than in the facility. A minor editorial change to sec.715.424(b)(4) was made to indicate that linens must be washed as often as necessary. TDPRS has rewritten subsection (f) to simplify garbage maintenance. In sec.715.424(g) language has been included to provide that only professional exterminators can exterminate insects and rodents. In subsection (j) the words "such as bodily tissue discharges" was deleted as it was not necessary. Additionally, a subsection was added to provide that the staff must promptly change soiled or wet diapers. In subsection (m) the language was simplified regarding diaper containers and in subsection (o) the reference to the definition of sanitized has been added. In sec.715.424(t) a minor editorial change was made to include that staff with open wounds and injuries that inhibit hand washing must not change diapers. The added subsection caused the remaining subsections to be reformatted. Minor editorial changes were made to sec.715.425(c)(5) to clarify that alternate lighting in each classroom must be available; and in subsection (d) (2) that fire "drills" must be made and documented rather than being practiced. Paragraph (3) in subsection (d) has been changed to clarify that severe weather is the emergency condition referenced. In sec.715.425(e) the word "contact" was changed to "call" for clarification. In sec.715.426(b), TDPRS made editorial changes to clarify supervision of ill children. TDPRS corrected the body temperatures referenced in subsection (d). In subsection (e) the definition of critical illness is referenced and the sentence divided into paragraphs for clarity. In sec.715.426(e), the sentence was reformatted, adding paragraphs (1) and (2) for clarity. TDPRS added the words "or as amended by the physician" to sec.715.427(a)(2) to allow for physician's variation from the label directions and restructured the sentence in sec.715.427(c)(1) for clarification. Of the remaining proposals, none received over 67 comments. Comments on these proposals, therefore, will not be further analyzed. These comments were considered, however, for their use in clarifying editorial, implementation, training, and enforcement issues. Overall, given an estimated 60,000 day care staff across Texas, comments received represented less than a 1.0% return rate. Subchapter E. Standards for Day Care Centers 40 TAC sec.sec.715.401-715.432 The repeals are adopted under Human Resources Code, Title 2, Chapter 42, which authorizes the department to administer general child care licensing programs and under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services programs from the Texas Department of Human Services to TDPRS. The repeals implement the Human Resources Code, sec.sec.42.001-42.077. 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 November 4, 1994. TRD-9450495 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: June 1, 1995 Proposal publication date: May 6, 1994 For further information, please call: (512) 450-3765 Subchapter E. Minimum Standards for Day Care Centers 40 TAC sec.sec.715.401-715.429 The new sections are adopted under Human Resources Code, Title 2, Chapter 42, which authorizes the department to administer general child care licensing programs and under Texas Civil Statutes, Article 4413 (503), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to the child protective services programs from the Texas Department of Human Services to TDPRS. The new sections implement the Human Resources Code, sec. sec.42.001-42.077. sec.715.401. Definitions. The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise. Abuse (the Texas Family Code, sec.34.012)-The following acts or omissions by a person responsible for a child's care, custody, or welfare: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator, that does not expose the child to a substantial risk of harm; (D) sexual contact, sexual intercourse, or sexual conduct, as defined by the Texas Penal Code, sec.43.01; sexual penetration with a foreign object; sexual assault; or sodomy inflected on, shown to, or intentionally practiced in the child's presence if the child is present only to arouse or gratify the sexual desires of any person; (E) failure to make a reasonable effort to prevent sexual contact, sexual intercourse, or sexual conduct, as defined by the Texas Penal Code, sec.43.01; sexual penetration with a foreign object; incest; sexual assault; or sodomy being inflicted on or shown to a child by another person, or intentionally practiced in the child's presence by another person if the child is present only to arouse or gratify the sexual desire of any person; (F) compelling or encouraging the child to engage in sexual conduct as defined in the Texas Penal Code, sec.43.01; and (G) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene (as defined by the Texas Penal Code) or pornographic. See "Neglect" and "Sexual Abuse." Activity space -Area or rooms used for children's activity including those separate from a group's classroom. See "Single Use Area." Administrative and Clerical Functions-Functions which involve the management of a facility, such as bookkeeping, enrolling children, answering the telephone, and collecting fees. Admission-The process of entering a child in a facility. The date of admission is the first day on which the child is actually present in the facility. Adult-A person 18 years old or older. Attendance-Children actually present in the facility at any given time. This term is not to be confused with the term "enrollment." See "Enrollment" Certified life guard-A person who has been trained in life saving and water safety. The certificate is not required to use the term "lifeguard training" or "certified lifeguard" but the facility must be able to document that the certificate represents the type of training described. This training should: (A) be provided through a recognized organization; (B) be provided by a qualified instructor; (C) be training for which a currently valid certificate was awarded upon successful completion; and (D) qualify the trainee to practice these skills at the setting and under the circumstances which the trainee will work, such as the size of the pool, the number of people in the pool, and any other special circumstances. Child-For licensing purposes, a person who has not reached the 14th birthday. Child Development Associate credential-A credential given to staff working directly with children; based on assessed competency in several areas of child care and child development. Child development training is available in the public community and junior college systems as well as four-year colleges, either in regular child development, vocational programs, or through adult continuing education courses. Continuing Education Unit (CEU)-For the purpose of recognition by licensing, one CEU is granted for ten clock hours of training. Five CEU's may be substituted for three credit hours of college course work. Corporal Punishment -To inflict physical pain on a child as a means of controlling behavior. This includes, but is not limited to, hitting, slapping, thumping, and rapping the child. Critical Illness -An illness requiring the immediate attention of a physician. Day care-The care, supervision, and guidance of a child or children under 14 years of age unaccompanied by a parent, guardian, or custodian on a regular basis, for a period of less than 24 hours per day and in a place other than the child's own home. Day care area -The area specifically licensed for use by the day care program. This may include a specific portion or portions of the building and grounds of a larger facility or one or more buildings at the same location. Day care center -Any facility, whether or not known or incorporated under descriptive titles or names such as "Nursery School," "Kindergarten," "Play School," "Child Development Center," or "Early Childhood Center," which cares for 13 or more children for less than 24 hours. This term applies to program, building, grounds, furnishings, and equipment. Day care location -The street address of the facility and the lot or lots on which the building or buildings are located. Day care program -The services and activities provided by a facility, the daily schedule. Designee of governing body-The individual officially designated as representative of a governing body that is not a sole proprietorship or partnership and is officially authorized by the governing body to speak for and act on its behalf. Direct child care-The supervision, guidance, and care of children in contrast to food service, janitorial functions, or administrative functions. Director-That person who has daily on-site responsibility for the operation of a facility, including maintaining compliance with Texas Department of Protective and Regulatory Services' (TDPRS's) minimum standards described in this subchapter. In multiple day care facilities under a chief administrative officer, the director is the person physically present at each facility. Disinfect-The elimination of virtually all germs from surfaces through the use of chemicals, such as products registered with the United States Environmental Protection Agency identified as "disinfectants" and physical agents such as heat. Enrollment-The list of names of children registered with the facility. This term is not to be confused with the term "attendance." See "Attendance." Entrapping equipment -A component or group of components on play equipment that forms angles or openings that could trap a child's head by being: (A) too small to allow a child to withdraw his head easily; and (B) placed so that a child would be unable to support his weight by means other than his head or neck. Equipment and materials-Items that include, but are not limited to books, art materials, music materials, manipulative materials, blocks and block accessories, dramatic play materials, homemaking materials, dolls, science materials, and climbing equipment. Facility-People, administration, governing body, activities on or off the premises, operations, buildings, grounds, equipment, furnishings, and materials. Fall zone-An area extending four feet from climbing structures, five feet from the bottom of a slide (other parts of the slide are identified as climbing structures), seven feet plus the length of the chain from a and seven feet from merry-go-rounds and other revolving devices. Field Trips-Activities conducted away from the facility. First aid supplies -Required supplies that include multi-size adhesive bandages; adhesive tape; waterproof, disposable gloves; gauze pads; tweezers; scissors; cotton balls; antiseptic such as hydrogen peroxide; syrup of ipecac; and a thermometer. Food service-The preparation or serving of meals or snacks. Garbage-Waste food or items which, when deteriorating, cause offensive odors and attract rodents, insects, or other pests. Governing body -The entity with ultimate authority and responsibility for the overall operation of the facility, whether single-owner, partnership, or corporate body such as corporations for and not-for-profit; associations; designated committees; or religious organizations. Group-The number of children assigned to a specific caregiver or a group of caregivers, occupying an individual classroom or a well-defined physical space within a larger room. Hand washing-Rubbing hands together with soap under running water. Health personnel -A licensed physician, a licensed registered nurse, or a person providing preventive, diagnostic, or therapeutic medical care to individuals in a community. Health service -Includes, but is not limited to, any entity that performed a Head Start physical examination on the child, well-child conferences or clinics, maternity and infant programs, and children and youth programs, or school nurses working in a recognized program. Infant-A child younger than 12 months of age. Janitorial functions -Those services which involve cleaning and maintenance above that which is required for the continuation of the day care program. These services may include cleaning carpets, washing cots, and total sweeping, vacuuming, or mopping of the classroom. Sweeping after an activity or mopping up spills that may be necessary for continued use of the classroom are not considered janitorial functions. License-A document issued to the governing body of a facility authorizing the licensee to operate a specified location according to the provisions of the license, the law, and the rules and regulations of the Texas Department of Protective and Regulatory Services. Neglect (as reflected in the Texas Family Code, sec.34.012) - (A) leaving a child in a situation where the child would be exposed to a substantial risk of harm, without arranging for necessary care for the child; or (B) the following acts or omissions by a person responsible for a child's care, custody, or welfare: (i) placing the child in or failing to remove the child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (ii) failing to seek, obtain, or follow through with medical care for the child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or an observable and material impairment to the child's growth, development, or functioning; or (iii) failing to provide the child with food, clothing, or shelter necessary to sustain the child's life or health. Night care-Care given to children who are starting or continuing their night sleep or to children who spend the night at the facility. Orientation-Acquainting new employees and volunteers with the facility's day-to-day operations including: child care policies, including discipline, guidance, and the release of children; procedures to follow in an emergency; use and location of fire extinguishers; and TDPRS's minimum standards provided in this subchapter. Parent-The biological parent, legal guardian, or managing conservator or a person designated by the parent to act in the parent's role. Pre-service training -Training of new employees who have no previous experience in professional child care or no relevant training in specified topics before they are given responsibility for a group of children. Propped Bottle -A bottle supported by something other than the child's or parent's hands when child is too young to hold it, such as, a bottle leaned against a pillow. Sanitary sleeping furnishings-Linens which have been laundered before a different person sleeps on them and after being soiled. Sanitize-To remove filth or soil and small amounts of certain bacteria. For an inanimate surface to be considered sanitary, the surface must be clean and the number of germs must be reduced to such a level that disease transmission by that surface is unlikely. This procedure is less rigorous than disinfection and is applicable to a wide variety of routine housekeeping procedures to clean bedding, bathrooms, kitchen countertops, floors, and walls. Soap, detergent, or abrasive cleaners may be used to sanitize. School-age care only facility-Child care facilities who care only for children enrolled in or who will attend school on a before and after school, holidays, and summertime basis. See "School-Age Care." School-age care -Care offered to children who will attend school in August or September of that year and who are at least five years of age but who are under 14 years of age. Sexual abuse-From the Texas Penal Code, Chapter 43, referred to in the Texas Family Code. (A) Sexual contact-Any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. (B) Sexual conduct-Deviate sexual intercourse, sexual contact, and sexual intercourse. (C) Deviate sexual intercourse-Any contact between the genitals of one person and the mouth or anus of another person. (D) Sexual intercourse-Any penetration of the female sex organ by the male sex organ. Single-use area -Includes, but is not limited to, bathrooms, hallways, storage rooms, cooking areas of kitchens, and indoor swimming pools. Staff-Any person employed by the facility. Supervision of children-Care for a group of children. Awareness of and responsibility for the ongoing activity of each child. Physical proximity, knowledge of activity requirements, and children's needs, and accountability for their care is required. This includes staff intervention when needed. Training-Time spent in workshops; self-instructional material; or planned learning opportunities provided by a director, other staff, or consultants. In order for the training to be counted toward compliance with the TDPRS's minimum standards provided in this subchapter, it must be in areas listed in these minimum standards. Transportation-Transporting children to and from the child's home or school, to and from the facility, field trips, and other outings provided by or for the facility. Trash/litter-Items such as paper products, plastic, or cloth. Universal Precautions -An approach to infection control wherein practitioners subscribe to the concept that all human blood and certain human bodily fluids are treated as if known to be infectious for human immunodeficiency virus (HIV), hepatitis B virus (HBV), and other blood borne pathogens. Water activities -The use of splashing pools, wading pools, swimming pools, or other bodies of water. sec.715.402. Governing Body Responsibilities. (a) The governing body is responsible for: (1) the facility's compliance with the child care licensing law, Chapter 42, Human Resources Code and the applicable minimum standards; (2) the facility's policies; and (3) maintaining liability insurance in the amount of at least $300,000 for each occurrence of negligence covering injury to a child while the child is in the care of the license holder; or providing parents, as defined in sec.715.401 of this title (relating to Definitions), and the Texas Department of Protective and Regulatory Services Licensing Division, written notification if liability insurance is unavailable because of financial reasons, the facility is not able to find an underwriter willing to issue a policy, or the limits of the current policy are expended. (b) Ensure that the facility does not discriminate against any child based on the child's race, color, national origin, sex, or religion. sec.715.403. Notifications. (a) The facility must notify the Texas Department of Protective and Regulatory Services (TDPRS): (1) before changes are made regarding: (A) indoor or outdoor space additions or reductions; (B) swimming or fixed wading pool additions; (C) age range of children to be cared for; or (D) hours of operation; (2) before or as soon as possible after a change is made regarding: (A) the governing body; (B) the governing body designee as defined in sec.715.401 of this title (relating to Definitions); (C) the board chair for a corporate facility or other chief executive officer of the governing body; or (D) the address of the governing body; (3) as soon as possible but no later than two work days after: (A) any occurrence renders all or part of the facility unsafe; (B) injury of a child at the facility occurs which requires treatment by health personnel as defined in sec.715.401 of this title (relating to Definitions); (C) the death of a child while in care; (D) outbreak of illness of staff or a child occurs which is required to be reported to the Texas Department of Health as described in the appendix titled "Communicable Disease Chart for School and Child Care Centers" in TDPRS's Minimum Standards for Day Care Centers; (E) an indictment or acceptance of an official complaint by a county or district attorney against a staff member alleging commission of any crime listed in the appendix titled "Criminal Offenses from the Texas Penal Code" in TDPRS's Minimum Standards for Day Care Centers or a felony violation of the Texas Controlled Substances Act occurs; and (F) any other situation occurs which places a child at risk, such as, forgetting a child in a van or not preventing a child from wandering out of a center into a street. (b) The changes listed in subsection (a)(1)(A), (C), and (D); and in subsection (a)(2)(A) of this section can not be implemented without an approved amendment of the license. sec.715.404. Posting Requirements. (a) The following items must be displayed in a prominent place where staff, parents, and others may view them: (1) the license; (2) the letter or compliance evaluation form from the most recent licensing visit or investigation that the Texas Department of Protective and Regulatory Services (TDPRS) licensing representative provided, if the notification includes a requirement for posting; (3) a notice of availability for review of: (A) the current menu, including snack menus if only snacks are served; (B) the letter or compliance evaluation form from the most recent licensing visit or investigation that the TDPRS licensing representative provided; (C) the most recent fire inspection report; (D) the most recent sanitation inspection report; (E) the most recent gas leak test report, where gas is used; (F) TDPRS's minimum standards; and (G) the fire, sanitation, and gas leak test reports described in subparagraphs (C), (D), and (E) of this paragraph are not required for School-Age Care Only facilities if these reports are available for review by the TDPRS licensing representative elsewhere at the site; (4) notice of requirement to report suspected child abuse; (5) emergency evacuation and relocation plans described in sec.715.425 of this title (relating to Fire, Fire Safety, and Emergency Precautions); and (6) a notice regarding any planned field trip described in sec.715.420(c) of this title (relating to Field Trips). (b) The following telephone numbers must be posted next to each telephone in every part of the facility: (1) emergency medical services; (2) law enforcement; (3) fire department; (4) poison control; (5) child abuse hotline; (6) nearest child care licensing office; and (7) the facility. The facility's address must also be included. sec.715.405. Enrollment Information and Other Records. (a) All records required by the minimum standards specified in this subchapter must be maintained and made available for inspection during the facility's hours of operation. (b) There must be on file at the facility, for as long as the child is in care and for 12 months after the child's last day in care, an enrollment agreement, signed by the parents prior to the child's admission into care, containing at least the following information: (1) the child's name, birth date, home address, and the home telephone number; (2) for a child attending school, the telephone number of the school. This is not required for a child in an after-school care facility at the school the child attends; (3) date of admission; (4) name and address of parents and telephone numbers at which parents can be reached while the child is in care; (5) names and telephone numbers of other persons designated by the parent when the parent cannot be reached; (6) names and telephone numbers of persons to whom the child may be released; (7) names, addresses, and telephone numbers of the child's physicians; (8) a statement of the child's special problems or needs. This must include known allergies, existing illnesses, previous serious illnesses and injuries, disabilities, hospitalizations during the past 12 months, and any medication prescribed for long-term, continuous use; (9) permission for transportation, if provided; (10) permission for water activities, if provided; (11) permission for field trips, if provided; and (12) emergency medical treatment authorization; (c) There must be on file within one week of admission documentation of one or more of the following evidence that each child under five years old is able to take part in the program: (1) a written statement from a licensed health professional who has examined the child within the past year; and (2) a signed statement from the parent: (A) giving the address of a licensed health professional who has examined the child within the past year and stating that the child is able to participate in the program. This must be followed within 12 months by a document as described in paragraph (1) of this subsection; or (B) giving the name and address of the licensed health professional with whom an appointment for examination has been made. Following the examination, the parent must submit a document as described in paragraph (1) of this subsection; or (C) stating medical diagnosis and treatment conflict with the tenets and practices of a recognized religious organization of which the parent is an adherent or a member. (d) Current immunization records for each child must be obtained and maintained according to the appendix titled "Immunization Schedule" in the Texas Department of Protective and Regulatory Services' (TDPRS's) Minimum Standards for Day Care Centers, caring for any child who has been to the center three or more times. Each immunization record must include: (1) the child's birth date; (2) the number of doses and vaccine type; (3) the dates (month, day, and year) the child received each immunization; and (4) the rubber stamp or signature of the physician or health personnel on the record or a machine or handwritten copy of the record. (e) Current immunization records for each child are not required if the center has one of the following: (1) a signed and dated statement from a licensed physician or other authorized personnel that immunization has begun against at least one of the diseases listed in the "Immunization Schedule" described in subsection (d) of this section. The immunization series must be completed as soon as medically feasible; (2) a certificate signed by a licensed physician, renewed annually, and stating that the required immunization would be injurious to the health and well-being of the child or a member of the child's family or household; (3) an affidavit in the form of a notarized statement signed by the child's parent or guardian stating that the immunization conflicts with the tenets and practices of a recognized religious organization of which the parent is an adherent or a member; and (4) a dated statement signed by the parent that the child's immunization record is current and is on file at a school the child attends. The parent must include the name, address, and telephone number of the school in the statement. (f) Each child must have a record of a tuberculosis examination with negative results if such a test is recommended by local health authorities or the regional office of the Texas Department of Health or a dated statement signed by the parent that the child's tuberculosis test record is current and is on file at a school the child attends. The parent must include the name, address, and telephone number of the school in the statement. (g) The attendance of children and staff, and the hours worked by each staff in direct care, for the previous six months, must be recorded. sec.715.406. Parental Communication. (a) At the time of the child's enrollment, facility staff must give the parents a copy of the Texas Department of Protective and Regulatory Services' publication Parent's Guide to Day Care, review the guide with the parents, and obtain a signed receipt for the guide. The receipt must be kept on file as long as the child is in care. (b) Staff must not prevent parents from visiting the facility anytime during its hours of operation. (c) The facility must immediately notify the parent or other person authorized by the parent when the child: (1) is injured; or (2) has a sign or symptom requiring exclusion from the facility as listed in sec.715.426(d) of this title (relating to Illness and Injury); or (3) has been involved in any situation which placed the child at risk, such as, forgetting a child in a van or not preventing a child from wandering out of a center into a street. (d) The facility must notify all parents of children in the facility when there is an outbreak of a communicable disease in the facility required to be reported to the Texas Department of Health. The facility must notify the parents of children in a group, as defined in sec.715.401 of this title (relating to Definitions), when there is an outbreak of lice or other infestation. sec.715.408. Director Qualifications and Responsibilities. (a) The director must be at least 21 years of age and have a high school diploma or its equivalent and one of the following (a person who is a director of a center on June 1, 1995, has four years from that date to comply if that person remains in the same position): (1) an associate in applied sciences degree in child development or a related degree with six college credit hours in child development, six college credit hours in business management, and two years experience in a licensed child care facility; or (2) a Child Development Associate credential with six college credit hours in business management, and two years experience in a licensed child care facility; or (3) 60 college credit hours with at least nine credit hours in child development or early childhood education or the equivalent, six credit hours in business management, and two years experience in a licensed child care facility; or (4) a day care administrator's credential issued by professional organizations or educational institutions that are recognized by the Texas Department of Protective and Regulatory Services' (TDPRS) Licensing Division based on published criteria, and two years of experience in a licensed child care facility; or (5) three years experience in a licensed child care facility and nine credit hours in child care, child development, or early childhood education and nine credit hours in business management from an accredited college or university. Five continuing education units, as defined in sec.715.401 of this title (relating to Definitions), may be substituted for each three credit hours; or (6) a bachelor's degree from an accredited college or university with 12 credit hours of child development or early childhood education, six credit hours of business management, and one year of experience in a licensed child care facility. (b) The director is responsible for knowing and understanding the minimum standards specified in this subchapter and ensuring that: (1) all staff know and understand the minimum standards; and (2) the facility's daily operation is administered in compliance with the minimum standards to ensure that children are: (A) provided a healthy and safe environment; (B) given the opportunity to develop stable and caring relationships; and (C) provided an environment that fosters cognitive, social, and emotional growth; (3) staff are provided assignments and are supervised; (4) the required TDPRS form that provides information on the employee for processing the criminal history check is submitted to TDPRS within two weeks after hiring staff; (5) no staff is regularly scheduled for more than ten hours daily in direct child care. Exceptions must be documented; and (6) staff designated to be in charge when the director is absent from the facility is given the authority and is competent to administer the facility in compliance with the minimum standards. sec.715.409. Staff Qualifications and Responsibilities. (a) Staff in day care centers must be at least 18 years of age and have a high school diploma or its equivalent. (b) Persons 16 through 17 years old must not be left alone with and in charge of a group of children but may be counted in the child/staff ratio provided that person works in the same room with and is supervised by a qualified staff member and: (1) has a high school diploma or its equivalent; or (2) is enrolled in or has completed a career program related to child care approved by the Texas Education Agency or another state or federally-approved child care career related program. (c) The following are staff responsibilities. (1) Staff counted in the child/staff ratio must: (A) be knowledgeable of the object and purpose of the minimum standards specified in this subchapter; (B) report suspected abuse and neglect to the Texas Department of Protective and Regulatory Services or to law enforcement; (C) provide child supervision as defined in sec.715.401 of this title (relating to Definitions) at all times; (D) demonstrate physical, emotional, and intellectual competencies, self- control, and good judgment when performing assigned responsibilities; (E) recognize and respect the uniqueness and potential of all children, their families, and their cultures; (F) interact frequently with children, showing affection, interest, and respect; (G) foster developmentally appropriate independence in children; and (H) be free from other duties except those directly involving the care and supervision of children which includes keeping the group's area clean. Administrative and clerical functions, as defined in sec.715.401 of this title (relating to Definitions), that take staff's attention away from the children, meal preparation, or janitorial duties must not be included in the responsibilities of staff while the staff is counted in the child/staff ratio. (2) If one staff member leaves and another staff member is given responsibility for the children, as in a shift change, the staff member leaving must provide the incoming staff with: (A) any significant information about a child; and (B) a list of children present in the group. (3) All facility staff, including directors and persons not counted in the child/staff ratio, must not abuse, neglect, or sexually abuse children as defined in sec.715.401 of this title (relating to Definitions). (4) One staff member per group of children must have current training in first aid with rescue breathing and choking. (5) One staff member per facility, or group of children away from the facility, must have current training in cardiopulmonary resuscitation (CPR) for infants and children. sec.715.410. Staff Records. Records must be kept on facility staff and must include: (1) the date of employment; (2) documentation showing how staff meet the minimum age and education qualifications; (3) a statement from the staff member, including volunteers who are counted in the child/staff ratio, providing information about any convictions and pending charges alleging violation of any of the offenses listed in the appendix titled "Criminal Offenses from the Texas Penal Code" in Texas Department of Protective and Regulatory Services' Minimum Standards for Day Care Centers, or the Texas Controlled Substance Act; (4) a record of a tuberculosis examination as recommended by the local or Texas Department of Health; (5) a record of staff training hours, the instructors, dates of the training, and the subject areas of training as provided in sec.715.411(d) of this section (relating to Director and Staff Training); (6) documentation that staff have been given orientation as described in sec.715.411(c) of this title (relating to Director and Staff Training); and (7) documentation that staff have met the pre-service training requirement as provided in sec.715.411(b) of this title (relating to Director and Staff Training). sec.715.411. Director and Staff Training. (a) The director must participate yearly in at least 20 hours of training. (1) At least six clock hours must be in management and staff supervision and at least six clock hours must be in child development or early childhood education. (2) The director of a school-age care only facility may substitute six clock hours in recreational leadership or a related area for the six clock hours in child development or early childhood education. (b) Before new staff without experience in a regulated child care facility or relevant training are given responsibility for a group of children they must complete eight clock hours of pre-service training which covers the following areas. (1) developmental stages of children; (2) age-appropriate activities for children; (3) positive guidance and discipline of children; (4) fostering children's self-esteem; (5) health and safety practices in the care of children; (6) positive interaction with children; (7) supervision of children; and (8) detection and reporting of suspected child abuse and neglect. (c) All new staff, including volunteers who are counted in the facility child/staff ratio, must be oriented in the following when they begin work: (1) the requirements in the minimum standards for day care centers in this subchapter; (2) the facility's child care policies, including discipline, guidance, and the release of children; (3) the procedures to follow in handling emergencies; and (4) the use and location of fire extinguishers. (d) All staff must obtain at least 15 clock hours of training annually, exclusive of cardiopulmonary resuscitation (CPR) and First Aid, selected from the following areas: (1) child development; (2) care of children requiring special accommodations as defined in sec.715.401 of this title (relating to Definitions); (3) adult and child health; (4) nutrition; (5) safety; (6) curriculum-planning; (7) risk management; (8) identification and care of ill children; (9) recognition and the responsibility of reporting child abuse, neglect, and sexual abuse; (10) cultural diversity; (11) professional development, such as communication, time management, and stress management; or (12) for staff assigned to particular groups of children, topics from the following areas are included in the required annual training hours: (A) care of infants; (B) care of toddlers; (C) care of preschool children; and (D) care of school-age children. sec.715.413. Furnishings. The following furnishings must be available: (1) one working telephone with a listed number; (2) storage for children's personal belongings; (3) comfortable seating for children; (4) comfortable arrangements for rest when school-age children are in care for more than seven hours; (5) an individual cot, bed, or mat that is comfortable and waterproof or washable for each child age 18 months through four years; (6) an individual crib with a mattress and a waterproof cover and a clean crib sheet for each non-walking child under 18 months of age; and (7) a low cot or mat for each mobile child under 18 months, if the child is not provided with an individual crib. sec.715.414. Equipment. (a) The facility must have a number and variety of appropriate indoor and outdoor equipment and materials as defined in sec.715.401 of this title (relating to Definitions), to facilitate children's play. (b) Restrooms must be inside and located and equipped so that children can use them independently and staff can supervise as needed. (1) There must be one flush toilet and one sink for every 17 children aged 18 months and over. (2) There must be at least one sink in each diaper-changing area. (3) Urinals may be counted in the ratio of children to toilets but may not exceed 50% of the total number of toilets. Restrooms containing urinals must also have flush toilets. (4) Potty chairs may be used, but must not be counted in the ratio of toilets to children. (c) Doors on restrooms used by children under six years of age must not have inside locks within the children's reach. sec.715.415. Discipline and Guidance. (a) Discipline and guidance of children must be consistent and based on an understanding of individual needs and development. (b) Positive methods which encourage self-esteem, self-control, and self- direction must be used. (c) There must be no harsh, cruel, or unusual treatment. (1) Corporal punishment or threats of corporal punishment are prohibited. (2) Children must not be shaken, bitten, hit, or have anything put in or on their mouth as punishment. (3) Children must not be humiliated, yelled at, or rejected. (4) Children must not be subjected to abusive or profane language. (5) Punishment must not be associated with food, naps, or toilet training. (6) Bed wetters must not be shamed or punished. (7) Staff may use brief, supervised separation from the group if necessary, but staff must not place children in a locked room or in a dark room with a door closed. sec.715.417. Child/Staff Ratios and Groupings. (a) Child/staff ratios will be effective June 1, 1997. (b) In a day care center, or in centers using mixed-age groupings, the child/staff ratio is based on the age of the youngest child in the mixed-age group. The number of children per staff member and the group size must not exceed the following: Figure 1 40 TAC 715.417(b) (1) Maximum group size may be exceeded, provided child/staff ratio is maintained for each group, under the following conditions: (A) for children 18 months through four years of age for a maximum of 30 minutes; (B) for children five years old and older for a maximum of 1 1/2 hours. (C) for field trips, outdoor play, and naptimes for the length of that activity. (2) During naptime, children 18 months and older may be under the supervision of 50% of the child/staff ratio if an additional 25% of the child/staff ratio is maintained in the building and not counted in the child/staff ratio for another group. (3) Forty-five minutes after opening and 45 minutes before closing, the children may be regrouped at a ratio of one staff member per group of 16 children 18 months of age and older. (4) When a child in the group is under 18 months old, the oldest child in the group must not be more than 18 months older than the youngest child unless there are fewer than 12 children at the center. (5) If 12 or fewer children are in care at the center, the following child/staff ratios may be used. One adult may care for any combination of children shown in the following table: Figure 2 40 TAC 715.417(b)(5) (A) Children under 18 months of age do not have to be cared for in separate areas. (B) The caregiver can be involved in meal preparation but must be able to supervise the children. (C) Supervision cannot be reduced during naptime. sec.715.419. Additional Requirements for Children under 18 Months Old. (a) Staff must talk to, hold, and play with the children. (b) To promote sensory-motor development, children must not be confined in cribs, playpens, highchairs, or swings but must be encouraged to explore their environments. (c) A child not yet ready for table food must be fed a formula or diet approved in writing, signed and dated by the child's physician or parent, and updated as changes are made. (1) Bottles must be clearly marked with the child's name. (2) Bottles must never be propped, as defined in sec.715.401 of this title (relating to Definitions); the child or an adult must hold the bottle. (3) Children up to six months of age must be held while being bottle-fed. (d) Children no longer being held for feeding must be fed in a manner that ensures their safety and comfort. (e) A staff member must always be in the room with the children. sec.715.420. Field Trips. (a) The following child/staff ratio must be met when children are on a field trip, as defined in sec.715.401 of this title (relating to Definitions) and are mixing with non-facility children and adults, such as trips to the circus, shopping centers, or amusement parks. The number of regular staff may be supplemented by parents or volunteers trained in the facility's policies and procedures for supervision on field trips. Figure 3 40 TAC 715.420(a) (b) When children are on a field trip in an enclosed, controlled area, the center must maintain the child/staff ratio as outlined in sec.715.417 of this title (relating to Child/Staff Ratios and Groupings). An example would be an event planned for a group including, but not limited to, dancing or gymnastics classes, library storytime, or tours to the fire department. (c) Notice of field trips must: (1) be posted at least 48 hours before a field trip and remain posted until the groups have returned; (2) be posted in a prominent place where parents may view it; and (3) contain the following: (A) the groups of children who will be on the field trip; (B) where the groups will go; and (C) when the groups will leave the facility and when the groups will return. (d) Emergency medical consent forms and emergency contact information for each child in the group must be carried by staff supervising the field trip. (e) Staff must have a written list of the children in the group. (f) Staff must have first aid supplies, as defined in sec.715.401 of this title (relating to Definitions) readily available. (g) A staff member with current training in First Aid with rescue breathing and choking and a staff member with current training in cardiopulmonary resuscitation (CPR) for infants and children must be present on field trips. sec.715.421. Water Activities. (a) Water activities are prohibited for drop-in centers. (b) The child/staff ratio for water activities, where permitted, must be met as follows. (1) For wading/splashing activities (less than two feet of water) the child/staff ratio is as required for regular classroom activities as specified in sec.715.417 of this title (relating to Child/Staff Ratios and Groupings), except when the wading/splashing activity includes children under four years of age, at least two adults must be present. (2) For swimming (more than two feet of water) the child/staff ratio is as required in sec.715.420(a) of this title (relating to Field Trips) except when four or more children are swimming, two adults must be present. The number of regular staff may be supplemented by parents or volunteers trained in the facility's procedures for supervising swimming. (c) Adults included in the child/staff ratio for swimming must be able to swim. (d) Children in wading/splashing and swimming pools must be constantly supervised. (e) When children are swimming, a certified lifeguard as defined in sec.715.401 of this title (relating to Definitions) must be on duty at all times. (f) The certified lifeguard may not be counted in the child/staff ratio if non-facility children and adults are also using the pool. (g) Wading/splashing pools must be: (1) kept out of reach of children when not in use; and (2) drained at least daily, if designed to be drained, sanitized, and stored. (h) Swimming pools, at or away from the facility, must: (1) have at least one lifesaving device for each 2,000 square feet of water surface with a minimum of two lifesaving devices for each swimming pool; (2) have drain grates that are in place, in good repair, and that cannot be removed without using tools; (3) not have pool chemicals that are accessible to children; (4) not have unlocked machinery rooms when the facility children are present; and (5) be built and maintained according to the standards of the Texas Natural Resources Conservation Commission and any other applicable state or local regulations. (i) Staff must be able to clearly see all parts of the swimming area, including the bottom. (j) The pool must be built and maintained such that unsupervised access to the pool will be prevented. (k) When children are in a pool that has a pump and filtering system, an adult who is able to turn off the system immediately must be present. sec.715.422. Transporting Children. (a) The child/staff ratio for transporting children. (1) Under two years of age is that one adult in addition to the driver must be present for each group of four children. (2) Two years old and older is the same as the child/staff ratio established by following the options in the regular classroom child/staff ratio as specified in sec.715.417 of this title (relating to Child/Staff Ratios and Groupings). (b) Each child being transported must ride in an infant carrier, child seat or a seat belt, as appropriate to the child's age, size, and condition. This requirement applies to any vehicle used by or for the facility to provide transportation, with the exception of a bus with a gross vehicular weight rating (GVWR) of 10,000 pounds or more. This requirement applies to all transportation, including, but not limited to, to and from the facility, to and from the child's school, and on field trips. (1) All restraint devices must have been manufactured and dynamically crash- tested according to federal standards and installed according to instructions provided by the manufacturer. (2) Appropriateness of infant seat, child restraint, or seat belt is determined as follows. (A) An infant who cannot sit up must be restrained in an infant carrier designed as a child passenger device. (B) A child under two years of age who can sit alone must be seated in a child seat. (C) A child age two or older must ride in either a child seat or in a seat belt. (3) Only one child may use each seat belt at a time. (4) A child may ride in a shoulder harness and seat belt if the shoulder harness goes across the child's chest and not across the child's face or neck. (5) The driver and all adult passengers in a vehicle transporting the children must be properly restrained by seat belts when the vehicle is in motion. (c) Children must be loaded and unloaded at the curbside of the vehicle or in a protected parking area or driveway. Children must not be allowed to cross a street unsupervised after leaving a vehicle. (d) The following must be in the vehicle when children are being transported: (1) a list of the children being transported; (2) first aid supplies; (3) emergency medical treatment forms for each child being transported; and (4) a minimum of one operational fire extinguisher approved by the local or state fire marshal, safely secured in the passenger compartment, and accessible to the adult occupants. sec.715.423. Safety. (a) The building, grounds, and equipment must be repaired and maintained to protect the safety of the children. (1) There must be child-proof covers or safety outlets for electrical outlets accessible to children younger than five years. (2) If 220-volt electric connections are within the children's reach, they must be covered with a screen or guard. (3) Air conditioners, electric fans, and heaters must be mounted out of the children's reach or have safeguards that keep children from being injured. (4) Glass in sliding glass doors must be clearly marked with decals or other materials placed at children's eye level. (5) Stairs, porches, and platforms more than two feet above the ground or floor must have railings the children can reach. (6) Firearms are prohibited on the premises of a non-residential facility. If firearms are kept on the premises of a residential facility, it is necessary that: (A) firearms are in locked cabinets; (B) firearms are inaccessible to children; and (C) ammunition is kept in separate locked cabinets and also made inaccessible to children. (b) All areas accessible to children must be free from hazards. (c) Indoor and outdoor play equipment and supplies used both at and away from the facility must be safe for the children. (1) Equipment must not have openings or angles that can entrap as defined by the term "Entrapping equipment" in sec.715.401 of this title (relating to Definitions). (2) All heavy equipment must be installed in a manner to prevent tipping over or collapsing. (3) Equipment must not have on or underneath it pinch, crush, or shear points such as exposed or open gears on rotating devices. (4) Swings or climbing equipment must not have concrete, asphalt, or other hazards in the fall zone as defined in sec.715.401 of this title (relating to Definitions). (5) All swing seats must be constructed of durable, lightweight, relatively pliable material. (6) Trampolines are prohibited. This prohibition does not include small trampolines that are no higher than 12 inches. (7) There must be no toys at the facility while children are in care that explode, such as caps, or that shoot things, such as BBs or darts. (8) Toys for children under two years old must be large enough to prevent swallowing or choking. (d) There must be first aid supplies as defined in sec.715.401 of this title (relating to Definitions) at the facility and during transportation which are readily available to staff in a designated location and out of reach of the children. (e) A guide to first aid and emergency care must be immediately accessible to staff. (f) The temperature of hot water available to children must be controlled by a thermostat so that the water temperature is no higher than 120 degrees Fahrenheit. (g) The facility must ensure the safety of children from other persons as follows. (1) Adults must at all times be able to observe children. (2) Adults who are with children must at all times be able to be observed by another adult. (3) People must not consume alcohol or illegal controlled substances in the facility, during transportation, and on field trips. (4) Any person to whom a child is released must be either a parent or a person designated by the parent. (5) A plan must be followed to verify the identity of a person authorized to pick up a child but who is not known to the staff. This plan must include a reasonable means to record the identity of the individual. This information must be retained for at least 24 hours. (6) The presence of persons whose behavior and/or health status appears to endanger the health and safety of the children are not allowed when children are in care. sec.715.424. Sanitation. (a) There must be an annual sanitation inspection with a written report by a local or state sanitation official. The facility must be in compliance with any corrections, restrictions, or conditions stated in the report. (b) The buildings, grounds, and equipment must be cleaned, repaired, and maintained to protect the health of the children. (1) There must be adequate light, ventilation, and heat. (2) People must not smoke at the facility, during transportation, or on field trips. (3) All sleeping equipment must be clean. (4) Linens must be washed as often as necessary, before a different child uses them, and when soiled. (c) There must be a supply of drinking water, supplied in a safe and sanitary manner and meeting the standards of the Texas Natural Resources Conservation Commission. (d) Drinking water must always be available to the children. (e) There must be a sewage system that is sanitary and meets the standards of the Texas Natural Resources Conservation Commission. When possible, the system must be connected to a public system. (f) All garbage as defined in sec.715.401 of this title (relating to Definitions) must be kept and managed as necessary in order to maintain sanitary conditions inside and outside the facility. (g) Measures must be taken to keep the facility free of insects and rodents. Extermination must be only provided by professional exterminators as provided in the appendix titled "Vernon's Annotated Civil Statutes Article 135 B-6" in the Texas Department of Protective and Regulatory Services' Minimum Standards. (h) Children must: (1) wash their hands with soap and running water after toileting and before eating; and (2) have clean drying material such as paper towels or their own towels. (i) Staff must wash their hands with soap and running water: (1) after changing a diaper; (2) after assisting a child with toileting; (3) before feeding a child; (4) before and after serving and handling food; (5) after caring for a child with symptoms of a communicable disease; and (6) after personal toileting. (j) Staff must use disposable waterproof gloves when handling blood or other bodily fluids which might contain blood. (k) When diapering a child, staff must place the child on a clean, washable surface disinfected after each use or a surface with clean, disposable covering that is changed after each use. (l) The staff must promptly change soiled or wet diapers. (m) Each child must be thoroughly cleansed with individual washcloths or disposable towelettes and dried with individual towels at each diaper change. (n) Containers for used diapers must be kept in a sanitary manner. (o) Potty chairs must be sanitized as defined in sec.715.401 of this title (relating to Definitions) after each child's use. (p) Each crib must be sanitized before a different child uses it and when soiled. (q) Toys used by children under two years of age must be sanitized daily. (r) All food and drink served must be of safe quality and stored, prepared, distributed, and served under sanitary and safe conditions. (s) Food service equipment must be washed and sanitized. (t) Staff with open wounds and injuries that inhibit hand washing, such as casts, bandages, or braces, must not be allowed to prepare food or change diapers. (u) Single-service napkins, bibs, dishes, and utensils must be discarded after use. Washable, reusable napkins, bibs, and tablecloths must be washed after each use. (v) Cleaning supplies must be clearly marked, kept separate from food, and kept inaccessible to children. sec.715.425. Fire, Fire Safety, and Emergency Precautions. (a) The facility must have an annual fire inspection with a written report by a local or state fire marshal. The facility must be in compliance with any corrections, conditions, or restrictions specified in the report. (b) In an emergency, the facility's first responsibility is to move the children to a designated safe area where they must be supervised. (c) In an emergency, all staff and children must be able to safely exit the building within three minutes. (1) The building must have at least two exits to the outside, located in distant parts of the building. An exit through a kitchen or other hazardous area cannot be one of the required exits unless specifically approved in writing by the fire marshal. (2) If any doors open into a fenced yard, the children must be able to open the doors easily from inside. (3) No doors that are blocked or locked may be counted as an exit. (4) Children must not be cared for on any level above or below the exit level unless the facility obtains written approval from the fire marshal. (5) A flashlight or other battery-powered lighting must be available in each classroom to use in case of electrical failure. (d) An emergency evacuation and relocation plan must be posted in each room the children use. (1) The plan must show two exit paths from each room unless the room opens directly to the outdoors at ground level. (2) Staff and children must have a fire drill every month. This drill must be documented. (3) Staff and children must have a severe weather drill at least once each six months. Each practice must documented. (e) The facility must call the fire department in case of fire or danger of fire, explosion, toxic fumes, or other chemical release. (f) The facility must have a fire extinguishing system approved by the fire marshal. This system may be a sprinkler system and/or fire extinguishers. (1) If fire extinguishers are used, they must be mounted on the wall by a hanger or bracket and made readily available for immediate use by the staff. (2) Fire extinguishers must be inspected monthly and the date of the inspection recorded. Fire extinguishers must be serviced when required. (g) The building must be equipped with working smoke detectors installed and maintained according to the manufacturer's instructions and in compliance with requirements of state and local codes. (1) There must be a working smoke detector in each room used by the children, including rooms where the children rest and sleep. (2) All smoke detectors must be tested monthly and the date must be recorded. (h) Heating devices and areas near heat sources must not present fire hazards and must not present hazards to the children. (1) Gas appliances must have metal tubing and connections. (2) Open flame heaters are prohibited. (3) Space heaters must be enclosed and have the seal of approval of a test laboratory approved by the fire marshal. (4) Floor and wall furnace grates must be safeguarded so that children do not have access to them. (5) Liquid or gas fuel heaters, fireplaces, and wood-burning stoves must be properly vented to the outside. (6) Where fireplaces or wood-burning stoves are used, a rigid screen or guard must be installed to prevent children from falling into the fire or against the stove. (i) Where gas is used, there must be a gas-pipe inspection annually. This inspection must be documented. sec.715.426. Illness and Injury. (a) Parents must be notified in cases of illness and injury as specified in sec.715.406(c) of this title (relating to Parental Communication). (b) A child whose illness requires that the child be sent home, must be given appropriate attention and supervision, until the child's parent, as defined in sec.715.401 of this title (relating to Definitions) arrives to remove the child. (c) A child with uncontrolled diarrhea or vomiting must be provided care apart from the other children. Extra attention must be given to hygiene and sanitation, until the parent or person authorized by the parent arrives to pick up the child. (d) An ill child must not be admitted for care if one or more of the following exists: (1) the illness prevents the child from participating comfortably in facility activities; (2) the illness results in a greater need for care than the staff can provide without compromising the health, safety, and supervision of the other children; (3) the child has any of the following: (A) oral temperature 100.4 degrees or greater; rectal temperature 101.4 degrees or greater; armpit temperature 99.4 degrees or greater; and accompanied by behavior changes or other signs or symptoms of illness, until medical evaluation indicates that the child can be included in the facility's activities; or (B) symptoms and signs of possible severe illness, such as lethargy, uncontrolled breathing, uncontrolled diarrhea, vomiting illness of two or more episodes in 24 hours, rash with fever, mouth sores with drooling, wheezing, behavior change, or other unusual signs, until medical evaluation indicates that the child can be included in the facility's activities; (4) the child has been diagnosed with a communicable disease, until medical evaluation determines that the child is no longer communicable and is able to participate in the facility's activities. (e) In case of the onset of a critical illness, as defined in sec.715. 401 of this title (relating to Definitions) or injury: (1) the physician named by the parent must be called; and (2) the child must be taken to the nearest emergency room or clinic, or an emergency vehicle must be called. (f) Children must be given first aid treatment or cardiopulmonary resuscitation when needed. sec.715.427. Medications. (a) If the facility policy includes administering medication to children: (1) a record must be made of the following and kept for at least three months: (A) name of the child to whom the medicine was given; (B) name of the medication; (C) date, time, and amount of medication given; and (D) name (not initials) of staff administering the medication. (2) the medication must be administered to the child with written parental permission and as stated on the label directions or as amended by the physician. (b) Any medications brought by the parent for the child must (1) be in the original container; (2) be labeled with the child's name; (3) be labeled with the date if it is a prescription medicine; (4) include directions to administer the medication; and (5) if prescribed, include the name of the physician prescribing the medication. (c) Medications must: (1) be refrigerated, if refrigeration is required, and kept separate from food; (2) be kept out of reach of children or in locked storage; (3) be disposed of or returned to the parent when the child withdraws from the facility or when the medication is out of date; and (4) not be administered after its expiration date. 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 November 4, 1994. TRD-9450494 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: June 1, 1995 Proposal publication date: May 6, 1994 For further information, please call: (512) 450-3765