ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 1. General Procedures Subchapter A. General Rules of Practice 4 TAC sec.1.49, sec.1.50 The Texas Department of Agriculture (the department) adopts new sec.1.49 and sec.1.50, concerning suspension of rules and effect of invalidity of a rule, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (18 TexReg 8333). New sec.1.49 and sec.1.50 were previously found at sec.1.29 and sec.1.30, which the department repealed in a separate submission, and are now being renumbered to allow for the addition of new sec.sec.1.40-1.45. The renumbering continues the department's preference for placing the two rules in their logical place at the end of Chapter 1, Subchapter A, which contains the department's general rules of practice. New sec.1.49 provides for suspension of rules in the event of a public emergency or if public necessity requires. New sec.1.50 provides that the invalidity of a rule found in Chapter 1 does not affect other provisions or applications of the rule which can be given effect without the invalid provision or application. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Government Code, sec.2001.004, which provides the Texas Department of Agriculture with the authority to adopt general rules of practice. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1994. TRD-9452234 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: December 30, 1994 Proposal publication date: October 21, 1994 For further information, please call: (512) 463-7583 Chapter 15. Consumer Services Division Liquified Petroleum Gas (LPG) Meters 4 TAC sec.sec.15.151-15.163 The Texas Department of Agriculture (the department) adopts new sec.sec.15. 151-15.163, concerning the licensing of private individuals to inspect and test liquefied petroleum gas (LPG) meters. Section 15.152 and sec.15.156 are adopted with changes to the proposed text as published in the July 26, 1994, issue of the Texas Register (19 TexReg 5677). Sections 15.151, 15. 153-15.155, and 15.157-15.163 are adopted without changes and will not be republished. The new sections are adopted in order to implement the new LPG meter testing and inspection program authorized in the Texas Agriculture Code, sec.sec.13.301- 13.308. The department is adopting the sections in order to allow private individuals to inspect and test LPG meters. The new sections provide definitions for use in sec.sec.15.151-15.163, provide general requirements for licensees, provide for establishment of late fees, provide requirements for licensee's representatives and minimum equipment and standards, provide insurance requirements and authority and responsibilities of licensees, provide for certification of standards and test equipment, establish the department's authority to inspect a licensee's procedures, facilities and equipment and its denial, suspension and revocation authority, and provide for administrative, civil or criminal penalties for violations of the sections. Comments regarding adoption of the new sections were received from one individual. Comments concerning sec.15.152(b) indicating that the annual fee of $100 is excessive were reviewed by the department. The $100 fee is justified in order to cover the cost of testing, licensing and tracking each licensee and their representatives. The fee will also cover the cost of follow-up LPG meter testing in the field by department inspectors. It was recommended that under sec.15.152(b)(1) a fee should be assessed for persons taking a written test and that a waiting period of not less than 24 hours must occur before retesting can take place. The Texas Agriculture Code, sec.sec.13.301-13.308 does not provide for a test fee. The department has added a new sentence to sec.15. 152(b)(1) stating that any person failing the written test is prohibited from retaking the test during the same working day. It was also recommended that the requirement in sec.15.156 to submit a certified copy of the insurance policy be changed. The department will make a change so that a certified copy of the liability insurance policy along with all endorsements and amendments, or a copy of the Railroad Commission of Texas LPG Form 998A/CNG Form 1998A, shall accompany the application. The new sections are adopted under the Texas Agriculture Code, sec.13.305, which provides the Texas Department of Agriculture with the authority to adopt rules for the inspection and testing of LPG meters; and sec.13.304, which provides the department with the authority to establish by rule a non-refundable annual fee not to exceed $200 for licensing persons who inspect and test LPG meters. sec.15.152. Licensed Device Testers. (a) General requirement. A person may not inspect or test LPG meters unless the person holds a license issued in accordance with these rules. (1) A license under this section may be an individual or a business entity. If an applicant is a business entity, the applicant shall register an individual as a representative with the department in accordance with sec.15. 154 of this title (relating to Licensee Representatives). If the applicant is a sole proprietorship, the business entity and the representative may be the same individual. (2) An out-of-state licensee shall designate an agent who resides in Texas on the form provided for this purpose by the department. Any person designated as a resident agent shall meet the following requirements: (A) be a citizen of this state; and (B) maintain a permanent address within this state where documents dealing with the administration and enforcement of this law may be served. (3) An out-of-state licensee shall notify the department in writing within ten days of any change of his resident agent. Failure to give such notice shall be grounds for suspending the licensee's license. (b) Application. Any person desiring to be licensed to inspect LPG meters shall submit to the department an application form prescribed by the department, accompanied by a nonrefundable annual license fee of $100. The application, signed by an individual with authority to bind the applicant, shall demonstrate the applicant's compliance with the following: (1) passage of a written test administered by the department. The test shall be designed to verify the applicant's knowledge of Texas Weights and Measures Laws (Texas Agriculture Code, sec.sec.13.001 et seq and this Chapter (relating to Consumer Services Division)), and the most recently published edition of NIST Handbook 44, "Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices," and NIST Publication 12, "Examination Procedures Outlines for Weighing and Measuring Devices." Any person failing the written test is prohibited from retaking the test during the same working day; (2) possession of a valid Liquefied Petroleum Gas Category A, B, D, E, or O license from the Railroad Commission of Texas; (3) ownership of test equipment which meets the requirements of sec.15. 155 of this title (relating to Equipment and Standards); (4) insurance requirements prescribed in sec.15.156 of this title (relating to Insurance Requirements); and (5) registration requirements prescribed in sec.15.154 of this title (relating to Licensee Representatives). (c) Expiration and renewal of licensees. Applicants who meet all requirements will be issued a license for a term of no more than one year. A license issued under this section may be renewed by filing with the department a renewal application form prescribed by the department, accompanied by a nonrefundable annual license renewal fee of $100, and the recertification of test equipment. Proof of passage of a written test administered by the department shall be submitted with the renewal application every five years from the date of the initial issuance of the license. sec.15.156. Insurance Requirements. (a) Proof of financial responsibility. All applicants must have on file with the Texas Railroad Commission proof of insurance as required by the Texas Natural Resources Code (Vernon 1993), Chapter 113, Subchapter D, sec.sec.113. 097-113.099, as amended. The insurance policy must be issued by an insurance company authorized to do business in Texas or by a surplus lines insurer that meets the requirements of the Texas Insurance Code, Article 1.14-2. A certified copy of the liability insurance policy along with all endorsements and amendments, or a copy of the Railroad Commission of Texas LPG Form 998A/CNG Form 1998A, shall accompany the application. No application for license will be deemed complete until the applicant has provided to the department the appropriate proof of financial responsibility. (b) Amount of coverage. Licensee insurance requirements shall be the same as those required by the Railroad Commission of Texas for Liquefied Petroleum Gas licensees, as follows: (1) Categories A, B, E, O-General liability, including: premises and operations coverage and products and completed operations liability coverage: $300,000 bodily injury; $100,000 property damage; $300,000 aggregate; or $300, 000 combined single limits; or (2) Category D-General liability including: premises and operations coverage: $25,000 bodily injury; $10,000 property damage; $25,000 aggregate; or $25,000 combined single limits. (c) Extent of coverage. The insurance policy must adequately protect persons who may suffer damages or injuries as a result of the operations of the licensee or persons working for the licensee. The coverage must include personal injuries and damages to real or personal property and structures on land being worked on by the licensee. The licensee and each representative must be covered by a form of financial responsibility that complies with this section. (d) Cancellation or reduction in coverage. The liability insurance policy must include the endorsement approved by the State Board of Insurance for third party notification of cancellation or coverage change or other similar language that the surety or insurance carrier, noted as company on the certificate of insurance, will give the department 30 days written notice before the cancellation of or any material change in the policy. 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 December 7, 1994. TRD-9452051 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: December 28, 1994 Proposal publication date: July 26, 1994 For further information, please call: (512) 463-7583 TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 461. General Rulings 22 TAC sec.461.11 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.461.11, concerning Continuing Education, without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7974). This rule is being amended to include medical education units for formal courses approved by the American Medical Association, to clarify the type and number of continuing education hours accepted by attendance at workshops, seminars or academic courses and to state that documentation of continuing education credits are to accompany renewal notices and fees. This amended rule clarifies the confusing terminology regarding the type and number of continuing education hours accepted for workshops, seminars or academic courses, to broaden the area for continuing education to include relative courses approved by the American Medical Association and to ensure that certificands/licensees are complying with the rule. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452251 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: January 2, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 835-2036 Chapter 463. Applications 22 TAC sec.463.6 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.463.6, concerning experience requirements for internship and supervision, without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7975). This rule is being amended in order to clarify that no experience obtained from a psychologist who is related within the second degree of affinity/by consanguinity to the person may be considered for licensure as a psychologists/psychological associate, that the requirements for internship on those applications received after August 31, 1995 are for applicants for licensure as a psychologist, that one year of experience must be in an internship and that consortia may be created to meet the criteria for school psychologists. This rule as amended clarifies for applicants and for the general public that licensees are qualified through formal internship training and that these internship requirements are for applicants for licensure as a psychologist. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452252 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: January 2, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 835-2036 Chapter 465. Rules of Practice 22 TAC sec.465.16 The Texas State Board of Examiners of Psychologists adopts the repeal of sec.465.16, concerning the use of statements regarding services, without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7976). This rule is being repealed as it is a duplicate of another rule. The repeal of this rule will streamline the rules and make them easier to understand and follow for certificands, licensees and the general public. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452253 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: January 2, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 835-2036 Chapter 471. Renewals 22 TAC sec.471.5 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.471.5, concerning updated information requirements, without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7979). This rule is being amended to make all certificands/licensees responsible for ensuring that they have complied with the requirements for continuing education. This amended rule ensures that the general public receives services from psychologists/psychological associates who are knowledgeable and current with services in their profession. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452254 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: January 2, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 835-2036 Chapter 473. Fees 22 TAC sec.473.5 The Texas State Board of Examiners of Psychologists adopts an amendment to sec.473.5, concerning Miscellaneous Fees, without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7979). This rule is being amended to set fees for verifications and application packets sent by the Board and to set the fees for open records requests in order to conform to State law. This rule will enable the Board to generate adequate funds to function efficiently, will help to ensure that the Board has an adequate cash balance to carry out the mandates of the Psychologists' Certification and Licensing Act and will keep the public apprised of costs involved in open records requests. Comments were received stating that the rule, as amended, does not reflect the same charges for open records as adopted by the General Services Commission. The comments alleged that the charges for more than 50 copies are excessive and defeat the purpose of bringing uniformity for calculating the cost of providing copies of public information. The comments proposed that a formula should be used for charges for copies which is similar to that used by the General Services Commission. Comments were received by Common Cause Texas. The computations of the Board show that it is more advantageous to the public, which is whom the Board serves, to provide copies of open records at the costs reflected in this amended rule. The amendment is adopted under Texas Civil Statutes, 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452255 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: January 2, 1995 Proposal publication date: October 7, 1994 For further information, please call: (512) 835-2036 22 TAC sec.473.7 The Texas State Board of Examiners of Psychologists adopts a new rule sec.473.7, concerning Penalties, without changes to the proposed text as published in the October 14, 1994, issue of the Texas Register (19 TexReg 8094). This rule is being adopted to set fees for penalties for non-compliance with the rules of the Board, beginning with continuing education non-compliance. This rule will ensure that all certificands/licensees comply with the requirements of the rules of the Board. No comments were received regarding adoption of the amendment. The new rule is adopted under Texas Civil Statutes, 4512c, which provides the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452256 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: January 2, 1995 Proposal publication date: October 14, 1994 For further information, please call: (512) 835-2036 Part XXIII. Texas Real Estate Commission Chapter 537. Professional Agreements and Standard Contracts 22 TAC sec.sec.537.11, 537.40-537.42 The Texas Real Estate Commission adopts an amendment to sec.537.11 and new sec.sec.537.40-537.42, concerning standard contract forms, without changes to the proposed text as published in the October 21, 1994, issue of the Texas Register (19 TexReg 8345). The amendment and new sections adopt by reference three standard addendum forms developed by the Texas Real Estate Broker-Lawyer Committee and promulgated by the Texas Real Estate Commission. Form TREC Number 33-0, Addendum for Coastal Area Property, is a notice required by the Natural Resources Code, sec.33.135. Form TREC Number 34-0, Addendum for Property Located Seaward of the Gulf Intracoastal Waterway, is a statement required by the Natural Resources Code, sec.61.025. Form TREC Number 35-0, Agreement for Mediation, is an addendum that may be added to other forms promulgated by the Texas Real Estate Commission. Adoption of these forms is necessary to ensure the availability of standardized contract forms for mandatory use by licensees. No comments were received regarding adoption of the amendment and new sections. The commission determined that its mailing address should be added to each form in order to assist the public in contacting the agency; the forms were otherwise adopted as proposed. The amendment and new sections are adopted under Texas Civil Statutes, Article 6573a, sec.16(e), which authorize the Texas Real Estate Commission to adopt rules requiring real estate brokers and salesmen to use contract forms which have been prepared by the Texas Real Estate Broker-Lawyer Committee and promulgated by the Texas Real Estate Commission. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452213 Mark A. Moseley General Counsel Texas Real Estate Commission Effective date: March 1, 1995 Proposal publication date: October 21, 1994 For further information, please call: (512) 465-3900 Part XXV. Structural Pest Control Board Chapter 595. Compliance and Enforcement 22 TAC sec.595.11 The Structural Pest Control Board adopts an amendment to sec.595.11, concerning compliance and enforcement, with changes to the proposed text as published in the August 12, 1994, issue of the Texas Register (19 TexReg 6330). The rule implements the integrated pest management program for schools provision of the Structural Pest Control Act by providing for the use of least toxic methods and the best available pest management practices in the Texas School Systems. The amendment creates the position of Integrated Pest Management Coordinator and establishes the list of products approved to be used in the schools. The Texas Pest Control Association commented that they would like for the school to be able to contract out the function of IPM Coordinator to a certified commercial applicator. The Professional Lawn Care Association of America commented that the term least toxic was not defined. Clean Water Action commented that they were generally in support of the amendment. The Chemical Connection commented that the Green List needed clarification and that more personnel should be specifically included to coordinate IPM. The Chemical Connection also felt that Yellow and Red list approvals were too easy and that all CAUTION signal words should not automatically place a product on the yellow list. The Chemical Connection also suggested a five year recordkeeping requirement for schools, rather than two. The American Lung Association of Texas commented generally in favor of the amendment. The Texas Parent-Teacher Association wanted site-based management teams for decisions on the list, additional training for technicians and a requirement for baseline testing in all schools for organochlorines. Protect All Children's Environment suggested that Red List products be excluded entirely from use in the schools. Protect All Children's Environment, Cleanwater Action, TPCA, Texas PTA, American Lung Association of Texas, and Chemical Connection, commented in favor of this amendment. The Professional Lawn Care Association of America commented against this amendment. The Structural Pest Control Board disagrees with the comments of the Texas Pest Control Association that the IPM Coordinator should be an outside contracted service. The amendment as adopted provide the Coordinator with sufficient guidance as to the intent of this language. The agency agrees with the Chemical Connection that the green list needed clarification and the amendment as adopted reflects that clarification. The agency disagrees that more personnel need to be specifically included as this is a management decision best left to individual school districts. The agency also adopted the green, yellow and red lists of chemicals with the idea that products which did not require approvals would automatically be used and the yellow and red lists would come into play only when green list control measures used failed. The Agency also feels that a two year recordkeeping requirement is sufficient and consistent with existing requirements for all licensed applicators. The agency felt that the comments of the Texas Parent- Teacher Association were best left to the management needs of individual school districts and that school districts are already given the authority to further restrict use of products if they so desire. The amendment is adopted under Article 135b-6 which provides the Texas Structural Pest Control Board with the authority to license and regulate persons who provide structural pest control services. sec.595.11. Schools. (a) Pesticide applications shall not be made to an area within or outside a school building if students are expected to be present in the area treated within the next 12-hour period immediately following treatment. Emergency treatments will be permitted in the localized area of infestation when there is an imminent threat to health or property or an infestation is imminent. Records of the reasons for emergency treatments shall be kept in the pest control use records of the business or certified noncommercial applicator performing the treatment. (b) Each school district shall develop a written pest management policy for all structural pest control activities conducted on school property based on the most current Structural Pest Control Board IPM document. The pest management policy must be adopted by the school board and kept on file by the district superintendent and IPM Coordinator. The policy shall be based on generally accepted tenets of integrated pest management, as defined by the Environmental Protection Agency. Such tenets include, but are not limited to: (1) strategies that rely on the best combination of pest management tactics that are Structural Pest Control Board compatible with human health and environmental protection; (2) proper identification of pest problems; (3) monitoring programs to determine when pests are present or when pest problems are severe enough to justify corrective action; (4) use of non-chemical management strategies whenever practical; and (5) preferential use of least-toxic chemical controls when pesticides are needed. (c) Each school district shall designate IPM Coordinator(s) on or before September 1, 1995. The person(s) so designated shall attend a Structural Pest Control Board approved IPM Coordinator training course within 12 months of designation as IPM Coordinator. The IPM Coordinator(s) shall oversee and be responsible for: (1) assisting in the coordination of pest management personnel, ensuring that all school employees who perform pest control have the necessary training, are equipped with the appropriate personal protective equipment, and have the necessary licenses for their pest management responsibilities; (2) maintaining a prioritized list of needed structural and landscape improvements; (3) for school districts that opt to conduct Structural Pest Control Board some or all pest management work through independent contractors, working with district administrators to ensure that pest control contract bid specifications are compatible with IPM principles, and that pest control contractors work under the guidelines of the district's IPM policy; (4) ensuring that all pesticides used on school district property are in compliance with the school districts policies; (5) authorizing least hazardous, effective emergency treatments with the approval of the certified applicator as provided for under sec.sec.595.6(d), 595.7(d), 595.8(d) and this section of the SPCB regulations; (6) handling requests and inquiries relating to pest problems, and maintain records of any pesticide-related complaints; (7) maintaining files of pesticide application records, pesticide labels, and Material Safety Data Sheets (MSDS); (8) informing school district administrators and other personnel about IPM requirements (e.g., training Structural Pest Control Board requirements, pre- notification and posting requirements, sanitation, and pesticide storage). (d) Each school district shall employ or contract with a certified applicator, who may, if an employee, also be the IPM Coordinator. The certified applicator shall: (1) oversee day-to-day pest management needs of the district; (2) provide written approval/justification for use of products on the Yellow List; (3) handle and forward records of any complaints relating to pest problems, IPM activities, or pesticides to the IPM Coordinator; (4) ensure that proper pesticide application records are maintained; (5) participate in IPM training courses approved for school IPM personnel by the SPCB; (6) consult with the IPM Coordinator concerning use of products not on the green or yellow list; (7) authorize emergency treatments as provided for subsection (c)(5) of this section. (e) Licensed technicians must obtain written approval from the certified applicator to apply yellow or red list products. (f) Pesticides approved for use on school property are classified as follows: (1) Green List. All products must be EPA category III and IV Pesticides and any of the following: Inorganic pesticides (i.e., boric acid, silica gels, diatomaceous earth, disodium octoborate tetrahydrate); Insect growth regulators; Insect and rodent baits in tamper-resistent containers or for crack and crevice- placement only; Microbe or fungus-based insecticides; Botanical insecticides, other than synthetic pyrethroids, containing not more than 5.0% synergists; Biological (living) control agents. Green List products may be used at the discretion of the licensee. (2) Yellow List. All EPA Category III and IV pesticides (i.e., products carrying a CAUTION signal word) not included in the Green List. Use of Yellow List Products require written approval from the certified applicator. A copy of the approval must be sent to the IPM Coordinator. Yellow list approvals shall have a duration no longer than three months or three applications per site, whichever occurs first. (3) Red List. Category I and II pesticides (i.e., products carrying a WARNING or DANGER signal word) or restricted-use pesticides or state-limited use pesticides as defined under the Federal Insecticide, Fungicide, and Rodenticide Act and/or the Texas Agriculture Code. Use of Red List products require written approval from the certified applicator and IPM Coordinator. A copy of the approval must be sent to the Texas Structural Pest Control Board no later than 14 days after the application. Red list approvals shall have a duration no longer than three months or three applications per site, whichever is first. (g) Written approvals for use of yellow and red list products shall be made on a form developed by the Structural Pest Control Board. The approvals shall include a description of the problem and justification for use of the yellow or red list product. Approvals shall be kept by the IPM Coordinator of the district for a minimum of two years. (h) All contracts for pest control services executed on or after the effective date of this regulation must be consistent with the school district's written pest management policy. (i) Any person found not in compliance with the Act or this Section is subject to administrative penalties under sec.10B. Such persons may include the school district or certified commercial applicator. 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 December 8, 1994. TRD-9452127 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 12, 1994 For further information, please call: (512) 835-4066 22 TAC sec.595.13 The Structural Pest Control Board adopts new sec.595.13, concerning compliance and enforcement, with changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5926). The new rule is adopted to clarify guidelines for appropriate advertisement of structural pest control services under existing federal and state law. The rule defines specific types of structural pest control advertising which are prohibited. The Texas Pest Control Association opposed the adoption of the rule due to the short period of time for consideration. The Professional Lawn Care Association of America opposed the adoption due to the possible prohibition of advertising fertilizers as an organic material. The Texas Structural Pest Control Board adopted these rules to clarify existing statutes which prohibit false, misleading or deceptive advertising. Adherence to these regulations will provide the additional benefit of a defense to prosecution by another governmental entity and will curtail the exercise of authority by those entities which do not routinely deal with structural pest control matters. The Structural Pest Control Board disagrees that its regulations would apply to fertilizer applications as it has no statutory authority to regulate such applications. The new rule is adopted under Article 135b-6 which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. sec.595.13. Advertising. (a) a licensee shall not use false, misleading or deceptive advertising. Examples of statements or representations which constitute false, misleading or deceptive advertising include the following: (1) a false or misleading statement concerning the composition of products used; (2) a false or misleading statement concerning the effectiveness of a product as a pesticide or device; (3) a false or misleading statement about the value of the product for purposes other than as a pesticide or device; (4) a false or misleading comparison with other pesticides; (5) a statement directly or indirectly implying that a pesticide or device is recommended or endorsed by any agency of the state or federal government, such as "EPA Registered" or "EPA Approved"; (6) a true statement used in such a way as to give a false or misleading impression to the consumer; (7) disclaimers or claims which negate or detract Structural Pest Control Board from labeling statements on the product label; (8) claims as to the safety of a pesticide or its ingredients, including statements such as "free from risk or harm," "safe," "non-injurious, " "harmless" or non-toxic to humans and pets," with or without such a qualifying phrase as "when used as directed"; (9) claims that the pesticides and other substances the licensee applies, the application of such pesticides, or any other use of them are comparatively safe or free from risk or harm; (10) claims that the pesticides and other substances the licensee applies, the applications of such pesticides, or any other use of them, are "environmentally friendly," "environmentally sound," "environmentally aware," "environmentally responsible," "pollution approved," "contain all natural ingredients," "organic" or are "among the least toxic chemicals known;" and (11) claims regarding its goods and services for which the licensee does not have substantiation at the time such claim is made; Structural Pest Control Board. 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 December 8, 1994. TRD-9452131 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 22 TAC sec.595.15 The Structural Pest Control Board adopts new sec.595.15, concerning compliance and enforcement, with changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5928). The new rule implements the incidental use exemption provision of the Structural Pest Control Act and provides the necessary training for use of the exemption. The rule requires city, state and county government to provide a fact sheet to any employee who may need to make an incidental use pesticide application. The Texas Pest Control Association and TML commented in favor of the rule. The Structural Pest Control Board agrees with the comments that the term "Low Impact" was confusing and replaced it with least toxic. The new rule is adopted under Article 135b-6 which provides the Texas Structual Pest Control Board with the authority to license and regulate structural pest control services. sec.595.15. Incidental Use Situation Fact Sheet. (a) The Structural Pest Control Board Incidental Use Situation Fact Sheet must contain the following text: "This fact sheet must be distributed to all city, county, and state employees who apply general use pesticides and are not licensed by the Texas Department of Agriculture and do not have a Structural Pest Control Board Non-Commercial Applicator's or Technician License. School District employees are not subject to this provision and are required to be licensed for any pesticide application. The fact sheet and instruction shall be provided upon initial employment and thereafter shall be available as needed. These general use pesticides include insecticides, herbicides, fungicides and rodenticides and involve applications made both inside and outside of structures. Incidental Use is not intended for long terms or extensive pest control measures. Where long term pest control is required, a trained, licensed person is to make the applications. Incidental Use is defined as "A pesticide application on an occasional, isolated, site-specific basis that is incidental to the primary duties of an employee and involves the use of general use pesticides after instruction as provided by rules adopted by the Structural Pest Control Board." Examples of Incidental Use Situations are treating fire ants in a transformer box, or the treating of ants by a janitor or clerical employee in a break area. Incidental is defined as site-specific and incidental to the employee's primary duties. If it is a part of the employee's primary duty to make applications of pesticides, that employee is required, by law, to obtain either a Structural Pest Control Board License or Texas Department of Agriculture License, depending on the location and/or type of application. In all cases of incidental use, the employee should use the least hazardous, effective method of controlling pests. If chemicals are to be utilized, they must be applied in strict accordance with manufacturer labels of "General Use" products being used. Applications made inconsistent with the Structural Pest Control Board Law and Regulations, or applications made inconsistent with the label requirements of the general use product may result in penalties being assessed against the individual and/or the Certified Non-Commercial Applicator or Technician responsible. "Incidental Use Situation" applications of pesticides are regulated by the Structural Pest Control Board. If you have any questions or comments, contact the Board at (512) 835-4066; written inquiries may be addressed to the Structural Pest Control Board, 9101 FM 1325, Suite 201, Austin, Texas 78758." Copies are available from the Structural Pest Control Board. (b) The incidental use fact sheet shall be provided during pesticide instruction to each employee of the state or a political subdivision of the State other than a school district whose primary duty is not pest control, and whose work may include tasks subject to the incidental use exception. (c) Each governmental unit is responsible for distributing the fact sheet to the designated employees. (d) Primary duty is defined as a job duty that is part of a written job description or is a regularly assigned task of the employee. 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 December 8, 1994. TRD-9452132 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 Chapter 597. Unlawful Acts and Grounds for Revocation 22 TAC sec.597.1 The Structural Pest Control Board adopts an amendment to sec.597.1, without changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5929). The amendment incorporates the deceptive advertising regulations adopted into the grounds for enforcement action. The amendment clarifies the existing rule regarding fraudulent or misleading advertising. The Texas Pest Control Association opposed this amendment and requested additional time before it was considered for adoption. The Structural Pest Control Board disagreed with extending the time before adopting this amendment as it provides additional guidance to licensees as to how to avoid advertising practices already prohibited by law. The amendment is adopted under Article 135b-6 which provides the Texas Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452133 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 Chapter 599. Treatment Standards 22 TAC sec.599.2 The Structural Pest Control Board adopts an amendment to sec.599.2, concerning termite standards, with changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5929). The amendment changes the name of the consumer disclosure statement and establishes the final date of treatment as the date necessary on the termite treatment sticker. The amendment also changes the location of the treatment sticker from the electric meter to the electric breaker box. The Texas Pest Control Association comments were in support of the amendment. The Texas Pest Control Association commented in favor of this amendment. The Structural Pest Control Board agrees with the comments. The amendment is adopted under Article 135b-6 which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. sec.599.2. Subterranean Termite Post Construction Treatments. (a) All pesticide applications must be made in accordance with the directions and precautions specified on the labeling of the pesticide used. Except, the applications of less than the labeled concentration may be applied if the volume of spray mix is increased to achieve the intended rate of active ingredient per foot in the treatment zone. (b) A treatment of less than the entire structure will be permitted to accommodate the customer's desires and to allow the treating company to perform the job in a manner prescribed by their professional evaluation. (c) All treatments must strictly adhere to the procedures outlined in the disclosure statement required in sec.599.4 of this title (relating to Termite Treatment Disclosure Documents). Except, that deviation will be permitted when unexpected circumstances occur necessitating a change in the treatment and the certified applicator responsible issues a written addendum to the contract or disclosure documents prior to final billing for the jobs. (d) Upon completion of a termite treatment, the company responsible for providing the treatment shall leave a durable sign adjacent to the hot water heater or electric breaker box or beneath the kitchen sink giving the name and address of the licensee, the final date of the treatment, and a statement that the notice should not be removed. 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 December 8, 1994. TRD-9452134 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 22 TAC sec.599.4 The Texas Structural Pest Control Board adopts an amendment to sec.599.4, conerning termite treatment standards, with changes to the proposed text as published in the July 25, 1994, issue of the Texas Register (19 TexReg 6414). The amendments create a better understanding for the consumer, prior to treatment, as to what will be treated and how various types of treatments differ. The amendments change the name of the consumer disclosure statement to termite treatment disclosure and definitions and a disclosure of actual percentage to be used. The Texas Pest Control Association commented that some of the information was not necessary at the time of estimate and that licensed technicians should be allowed to sign off on the disclosures as they have a very high level of training. The Texas Pest Control Association-for The Structural Pest Control Board agreed with the comments and the amendments as adopted reflect those concerns. The amendment is adopted under Article 135b-6 which provides the Texas Structural Pest Control Board with the authority to license and regulate persons who provide structural pest control services. sec.599.4. Termite Treatment Disclosure Documents. (a) As a part of each estimate submitted and before conducting any termite treatment, the pest control company proposing the treatment shall present the prospective customer or designee with the disclosure documents statement. (b) Each termite treatment disclosure document shall include, but is not limited to: (1) a graph and description of the structure or structures to be treated including the following: (A) the address or location; (B) approximate measurements as accurately as possible; (C) areas of present W.D.I. activity; (D) areas to be treated. (2) a label for any pesticide recommended or used; (3) the complete details of the warranty provided if any; including: (A) if the warranty does not include the entire structure treated, the areas included must be listed; (B) the time period of the warranty; (C) the renewal options and cost; (D) the obligations of the pest control operator to retreat for termite infestations or repair damage caused by termite infestations within the warranty period; and (E) conditions that could develop as a result of the owners action or inaction that would void the warranty; (4) the signature of approval on the graph by a certified applicator or licensed technician in the termite category employed by the company making the proposal. (5) the rate of termiticide application to be used on the treatment (6) The following statements and definitions in at least 8-point type: A termite treatment may be a full treatment, partial treatment or spot treatment, these types of treatments are defined as follows: Full Treatment Pier and Beam Generally defined as the treatment of the outer perimeter including porches, patios and treatment of the attached garage. In the crawl space, treatment would include any soil to structure contacts as well as removal of any wood debris on the ground. Slab Construction Generally defined as treatment of the perimeter and all known slab penetrations as well as any known expansion joints or stress cracks. Partial Treatment Any treatment which is less than what is typically considered to be a full treatment. This technique allows a wide variety of treatment stratagies but is more involved than a spot treatment (see definition below). Ex: treatment of the perimeter and bath traps. Spot Treatments Any treatment which concerns a limited, defined area that is intended to protect a specific location or "spot". Often there are adjacent areas susceptible to termite infestation which are not treated. For all treatments there will be a graph showing exactly what will be treated. Treatment specifications and warranties for those treatments may vary widely. Review the pesticide label provided to you for minimum treatment specification. If you have any questions, contact the service provider or the Texas Structural Pest Control Board, 9101 FM 1325, Suite 201, Austin, Texas 78758. Telephone number (512) 835-4066. (7) For pre-construction treatments, the following statement must be provided in at least 8-point type: Federal law requires that the final treatment barrier be placed after all soil disturbance (such as landscaping, etc.) is complete. This information should be made available to the ultimate purchaser of the structure. (c) Before conducting any termite treatment, the pest control company proposing the treatment shall present the prospective customer or designee with a graph and description of the structure(s) to be treated including the following: (1) construction details needed for clarity of the report; (2) areas of previous WDI (3) areas of WDI damage; and (4) areas of conditions conducive to infestation by WDI; (5) the type of construction; (A) foundation (i) slab; (ii) pier and beam and type of pier; (iii) basement; or (iv) other (specify) (B) siding: (i) wood (ii) brick or stone; or (iii) other (specify) (C) roof: (i) composition; (ii) wood shingle; (iii) metal; or (iv) other; (D) primary use: (i) residence; (ii) public building; (iii) commercial; (iv) industrial; or (v) other (specify); (E) inaccessible or obstructed areas. 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 December 8, 1994. TRD-9452135 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: July 25, 1994 For further information, please call: (512) 835-4066 22 TAC sec.599.5 The Structural Pest Control Board adopts an amendment to sec.599.5, concerning termite treatment standards, with changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5930). The proposed amendment will create more public confidence in the recommendations of inspectors with respect to real estate transactions. The amendment changes the conditions under which corrective treatment may be recommended. The Texas Pest Control Association commented that the regulation should include evidence of any previous infestation only as a reason to recommend treatment. The Texas Pest Control Association commented against this amendment. The Structural Pest Control Board adopted language specifying that the language in this section only applies to corrective treatments. This addresses the concern that there may in some cases be a need for a preventative treatment. The amendment is adopted under Article 135b-6 which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. sec.599.5. Inspection Procedures. (a) Inspections for the purpose of issuing a wood destroying insect report or for post-construction termite treatment shall be conducted in a manner consistent with the procedures described in this section. The purpose of the inspection is to provide a report regarding the absence or presence of Wood Destroying Insects (W.D.I.). The inspection should provide the basis for recommendations of preventive or remedial actions to minimize economic losses. For purposes of a Real Estate Transaction Inspection (Section 599.6) only, there must be visible evidence of active infestation in the structure or visible evidence of a previous infestation in the structure with no evidence of prior treatment to recommend a corrective treatment. The inspection must be conducted so as to ensure examination of visible accessible areas in accordance with accepted procedures. While such an examination may reveal W.D. I., there are instances when concealed infestations and/or damage may not be discovered. Examinations of inaccessible or obstructed areas are not required. (b)-(c) (No change.) (d) The inspector shall describe structure(s) inspected and include the following: (1) the address or location; (2) a graph (does not have to be to scale) showing: (A) approximate measurements as accurately as possible; (B) construction details needed for clarity of the report; (C) areas of present W.D.I. activity; (D) areas of previous W.D.I. activity; (E) areas of W.D.I. damage; and (F) areas of conditions conducive to infestation by W.D.I. (3) the type of construction: (A) foundation: (i) slab; (ii) pier and beam and type of pier; (iii) basement; or (iv) other (specify); (B) siding: (i) wood; (ii) brick or stone; or (iii) other (specify); (C) roof: (i) composition; (ii) wood shingle; (iii) metal; or (iv) other; (D) primary use: (i) residence; (ii) public building; (iii) commercial; (iv) industrial; or (v) other (specify); (4) inaccessible or obstructed areas. (e) The inspection shall include, but is not limited to, the following areas if accessible and unobstructed: (1) plumbing: (A) bathroom; (B) kitchen; (C) laundry; or (D) other (specify, i.e. - hot tub, etc.); (2) window and door frames and sills; (3) baseboards, flooring, walls, and ceilings; (4) entrance steps and porches; (5) exterior of slab or foundation wall; (6) crawl space; (A) support piers (include stiff legs); (B) floor joist; (C) sub floors; (D) sill plates; and (E) foundation wall; (7) fireplace; and (8) weep holes. (f) Visible evidence of the following conditions must be reported: (1) termite life forms or signs of current active infestation; (2) termite tubes or frass; (3) exit holes or frass from other W.D.I.; (4) damage caused by W.D.I.; (5) evidence of previous treatment or infestation; (6) conditions conducive to termite infestation such as: (A) wood to ground contact; (B) formboards left in place; (C) excessive moisture; (D) debris under or around structure; (E) footing too low or soil line too high; (F) insufficient clearance in crawl space; (G) expansion joints or cracks in slab; or (H) decks; (7) infestation of other wood destroying insects. 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 December 8, 1994. TRD-9452136 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 22 TAC sec.599.6 The Structural Pest Control Board adopts an amendment to sec.599.6, concerning termite treatment standards, without changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5930). The New Real Estate Transaction Report will create increased understanding of the purpose of the report and increased disclosure to the public of conditions in a structure related to possible termite infestation. The amendment establishes a New Real Estate Transaction Report form. The Texas Pest Control Association commented in favor of this amendment. The Structural Pest Control Board agrees with the comments for adoption. The amendment is adopted under Article 135b-6 which provides the Structural Pest Control Board with the authority to license and regulate structural pest control services. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452137 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: September 1, 1995 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 22 TAC sec.599.7 The Structural Pest Control Board adopts an amendment to sec.599.7, concerning termite treatment standards, with changes to the proposed text as published in the August 2, 1994, issue of the Texas Register (19 TexReg 5931). The amendment clarifies how and when to post termite inspection stickers. The amendment specifies that the sticker can be placed on the electric breaker box, after any wood destroying insect inspection, not just real estate transfers. The Texas Pest Control Association commented in favor of this amendment. The Structural Pest Control Board agrees with the comments in support of adopting the rule. The amendment is adopted under Article 135b-6 which provides the Structural Pest Control Board with the authority to license and regulate persons who provide structural pest control services. sec.599.7. Posting Notice of Inspection. (a) Upon completion of a wood destroying insect inspection, the inspector shall post a durable sign adjacent to the hot water heater or electric breaker box or beneath the kitchen sink giving the name and address of the licensee, the date of the inspection, and a statement that the notice should not be removed. (b) It is a violation of this section for any licensee of the Board to remove or deface a posted inspection notice. 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 December 8, 1994. TRD-9452163 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: December 29, 1994 Proposal publication date: August 2, 1994 For further information, please call: (512) 835-4066 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 33. Early and Periodic Screening, Diagnosis, and Treatment Subchapter E. Medical Phase 25 TAC sec.33.140 On behalf of the State Medicaid Director, the Texas Department of Health (department) submits an adopted amendment to sec.33.140, concerning the Early and Periodic Screening, Diagnosis, and Treatment-Comprehensive Care Program (EPSDT-CCP), without changes to the proposed text as published in the September 9, 1994, issue of the Texas Register (19 TexReg 7060). Previously, Purchased Health Services (Medicaid) covered vaccines for influenza and pneumococcal disease, and EPSDT covered vaccines for childhood immunizations. The amendment will allow payment for vaccines not covered elsewhere in Medicaid and allows EPSDT-CCP to provide additional special immunizations in certain instances when medically necessary. No comments were received during the public comment period, or at the public hearing on the proposed amendment. The amendment is adopted under the Human Resources Code, sec.32.021(c); and Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to adopt rules to administer the state's medical assistance program and are submitted to the Texas Department of Health under its agreement with the Health and Human Services Commission to operate the EPSDT program; and under Chapter 15, sec.1.07, 72nd Legislature, 1991, First Called Session. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1994. TRD-9452178 Susan K. Steeg General Counsel Texas Department of Health Effective date: December 30, 1994 Proposal publication date: September 6, 1994 For further information, please call: (512) 458-7236 Part VIII. Interagency Council on Early Childhood Intervention Services Chapter 621. Early Childhood Intervention The Interagency Council on Early Childhood Intervention Services adopts amendments to sec.sec.621.2, 621.21-621.30, 621.32, 621.33, 621.41, 621.46, and 621.48; the repeal of sec.sec.621.42-621.44; and new sec.621.42 and sec.621.43, concerning Council meetings, service delivery, procedural safeguards, and the advisory committee. Section 621.24 is adopted with a change to the proposed text. The remaining sections are adopted without changes to the proposed text as published in the October 7, 1994, issue of the Texas Register (19 TexReg 7980) and will not be republished. Justification for the amendments, repeals, and new sections is to comply with required language based on federal regulations and to clarify policy. The Council is also changing references in the rule sections and the heading for Title 25, Part VIII, to read "Interagency Council on Early Childhood Intervention Services" to reflect the correct name of the agency. The sections will function by providing clear policy concerning agency services and compliance with the Individuals with Disabilities Education Act. The council received no public comments concerning the adoption of the rules. One change was necessary in sec.621.24(b)(2) to correct a typographical error. Conduct of Council Meetings 25 TAC sec.621.2 The amendment is adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The amendment implements the Human Resources Code, sec. sec.73.001-73.021. 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 December 8, 1994. TRD-9452119 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 29, 1994 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Early Childhood Intervention Service Delivery 25 TAC sec.sec.621.21-621.30, 621.32, 621.33 The amendments are adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The amendments implement the Human Resources Code, sec. sec.73.001-73.021. sec.621.24. Program Administration for Comprehensive Services. (a) Program eligibility for comprehensive services. (1) Funds for comprehensive services are available to public or private service organizations that may be current or potential providers of services for children with developmental delays. (2) Eligibility for continued funding shall be contingent upon the program's accomplishments, progress toward stated goals, compliance with state standards, implementation of program review findings, and availability of funds. The program provider shall submit an annual application for continuation funding. (b) Program requirements. (1) Child find. Each program must develop and implement a child find plan which includes: (A) ongoing contact and coordination with primary referral sources and other service providers, including, but not limited to: (i) child find programs located within the education service centers; (ii) local and regional health departments with Maternal and Child Health Programs under Title V of the Social Security Act; (iii) Medicaid's Early Periodic Screening, Diagnosis, and Treatment Program (EPSDT); (iv) head start programs; (v) hospitals; (vi) day care programs; (vii) school districts; (viii) social service agencies; (ix) primary health care providers; (x) Early Childhood Intervention (ECI) programs; (xi) ECI Milestones programs; (xii) child care management services (CCMS); (xiii) any program funded under Development Disabilities Assistance and Bill of Rights Act; and (xiv) programs under Supplemental Security Income under Title XVI of the Social Security Act. (B) information regarding availability of other local services including other ECI programs; (C) accepting referrals for intervention services and evaluating each child for eligibility within 45 days of the referral. In areas served by more than one provider, a system to ensure that evaluation and assessment services are not duplicated for one child must be established. (2) Required services. Each comprehensive program must provide an evaluation and assessment, service coordination, and Individualized Family Service Plan (IFSP) and comprehensive services. Each program funded by the Interagency Council on Early Childhood Intervention Services must have the capacity to provide or arrange for all services described in sec.621.23(5)(C) (relating to Service Delivery Requirements for Comprehensive Services). All services which the child or family receives, regardless of the funding sources, must be considered toward meeting the service needs of the child as defined in the child's IFSP. No ECI funding can be used to arrange, provide, or duplicate a service for which other funding sources, public or private, are available and could be used. (3) Public awareness. Each program must develop and implement a public awareness plan which includes: (A) information on child find, early identification, referral, and access to services of the Texas Early Childhood Intervention Program, locally and across the state; (B) a variety of continuous methods for reaching the general public; and (C) involvement and communication with public and private agencies; parent, professional, and advocacy groups; and other organizations or associations. (4) Interagency coordination. Each program must develop and implement an interagency coordination plan which includes as a minimum procedures: (A) preventing duplication of assessments and services; (B) coordinating referrals to and from ECI programs; (C) participating in local and regional planning and coordination groups affecting services to young children; and (D) coordinating activities to make the most effective use of staff development and comprehensive service provision. (5) Staff composition and qualifications. (A) Programs must employ staff who meet the appropriate professional requirements and hold current professional credentials for their profession. Appropriate professional requirements are the entry level professional standards which: (i) are based on the state's highest requirements applicable to the profession or discipline in which a person is providing early intervention services; and (ii) establish suitable qualifications for personnel providing early intervention services to eligible children and their families, who are served by state, local, and private agencies. (B) ECI professional staff must abide by the licensure or certification requirements and the established rules of supervision and conduct for their professions. (C) For the occupational categories for which state authority has not established professional standards (such as service coordinator and early intervention specialist), programs must employ staff who are qualified in terms of education and experience for their assigned scopes of responsibilities and provide the required degree of supervision. (D) The director of the local ECI program must provide and document the amounts of supervision appropriate for all ECI contract staff and program staff to ensure the philosophy and intent of these regulations are met as adopted by the Interagency Council on Early Childhood Intervention Services. (E) Local programs must establish a procedure to ensure that employees have not been convicted of any felony or a misdemeanor related to child abuse or sexual abuse or any other offense against a person or family. (6) Inservice education. Each program shall annually assess the training needs of each early childhood intervention staff member. Documentation of the development and implementation of each individualized professional development plan (IPDP) shall be maintained by the program. (7) ECI child service standards. (A) Determination of staff-child ratios must take into account the degree of each child's developmental level of functioning, the setting in which the child will be served, and the nature of the comprehensive services to be provided. (B) Programs which provide child care as defined by the Texas Department of Human Services (TDHS) must meet licensing standards of TDHS. (8) Child health standards. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in each of the following areas. (A) Medication policies. If staff is involved in the administration of medication, written policies must be maintained regarding such administration. (B) Infectious disease prevention and management. (i) All programs must adhere to the procedures of the universal precautions for the Texas Early Childhood Intervention Program, as issued by the council. (ii) All programs must comply with the Texas Communicable Disease Prevention and Control Act, Texas Civil Statutes, Article 4419b-1. (iii) In the event of an outbreak of a contagious disease, infants attending center-based programs must be excluded if they have not been immunized due to medical or religious contraindications. (C) Policies regarding serving children who are HIV positive. The following requirements must be enforced in serving children who are HIV positive. (i) Children with HIV infection must not be discriminated against on the basis of HIV infection. Reasonable accommodations will be made to serve them on the basis of individual need. (ii) Any information a parent may provide on the HIV status of a child or family member will be deemed confidential and released only to individuals designated by the parent. (iii) For identified children with HIV infection, with parental consent, the staff must communicate with the physician responsible for medical care and must involve the physician in programmatic decisions about treatment. Communication with the physician must occur prior to assessment and on an ongoing basis as needed. (iv) Programs cannot require HIV testing of children. (9) Safety regulations regarding emergencies for all buildings where ECI programs are housed. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (10) Accessibility and safety. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) All ECI services must be available in buildings that are physically accessible to persons with disabilities. (B) Buildings where the ECI program is housed (including offices) must be inspected annually by a local or state fire authority. A safety and sanitation inspection must be completed annually by an entity outside of the ECI program using an approved ECI checklist. If the fire or safety and sanitation inspection indicates that hazards exist, these hazards must be corrected. (C) Buildings must be clean, free of hazards, free of insect and rodent infestation, in good repair, with adequate light, ventilation, and temperature control. (D) An external emergency release mechanism must be provided for opening interior doors that can be locked from the inside. Locks may not be used to restrain a child within a room. (E) Buildings must be able to be safely evacuated in the event of an emergency. (11) Transportation safety. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) The transportation system operated by the ECI program must meet local and state licensing, inspection, insurance, and capacity requirements. (B) Children must be transported in an appropriately installed, federally approved child passenger restraint seat, appropriate to the child's age and size. (C) Drivers of vehicles must have valid and appropriate drivers' licenses. Drivers must have current defensive driving certification. (D) Drivers and drivers' aides must have training in first aid, emergency care of seizures, and be certified in cardiopulmonary resuscitation for children and infants. (12) Reporting child abuse. The program must report suspected child abuse or neglect as required by the Texas Family Code, Chapter 34. (13) Staff health regulations. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (14) Staff development for health and safety issues. Programs that receive ECI funds must have written policies and procedures which are implemented and evaluated in the following areas. (A) All staff who work directly with children must receive training in first aid and emergency care of seizures and be certified in cardiopulmonary resuscitation for children and infants. (B) All staff who work directly with children must receive training in the implementation of universal precautions for Texas ECI programs and in the recognition of common childhood illnesses. 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 December 8, 1994. TRD-9452128 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 29, 1994 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 Procedural Safeguards and Due Process Procedures 25 TAC sec.sec.621.41-621.43, 621.46, 621.48 The amendments and new sections are adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The amendments and new sections implement the Human Resources Code, sec.sec.73. 001-73.021. 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 December 8, 1994. TRD-9452129 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 29, 1994 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 25 TAC sec.sec.621.42-621.44 The repeals are adopted under the Human Resources Code, sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The repeals implement the Human Resources Code, sec.sec.73.001-73.021. 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 December 8, 1994. TRD-9452130 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: December 29, 1994 Proposal publication date: October 7, 1994 For further information, please call: (512) 450-3765 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 117. Control of Air Pollution from Nitrogen Compounds Subchapter D. Administrative Provisions 30 TAC sec.117.510 The Texas Natural Resource Conservation Commission (TNRCC) adopts an amendment to sec.117.510(2)(A) in Chapter 117, concerning the Control of Air Pollution from Nitrogen Compounds. Section 117.510 is adopted with changes to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8283). Chapter 117 was originally adopted in response to a requirement by the United States Environmental Protection Agency (EPA) and the 1990 Federal Clean Air Act Amendments for states to apply reasonably available control technology (RACT) requirements to major sources of nitrogen oxides (NO [sub]x) in the following ozone nonattainment counties: Brazoria, Chambers, Fort Bend, Galveston, Hardin, Harris, Jefferson, Liberty, Montgomery, Orange, and Waller. The amendment extends the January 1, 1995 compliance date under sec.117. 510(2)(A), concerning certification of continuous emissions monitoring systems (CEMS) for Phase II oil-fired and Phase II gas-fired units at electric utility sources, to July 1, 1995. This action is being taken to make the state rule compliance date consistent with that of the federal Title IV acid rain rules at 40 Code of Federal Regulations (CFR) 75. The EPA recently extended the federal compliance date to July 1, 1995 for Phase II gas-fired and Phase II oil-fired units in ozone nonattainment areas (59 FedReg 42509, August 18, 1994) . A public hearing on this proposal was held November 14, 1994 at the TNRCC Austin offices. No oral comments were received at the public hearing, and written comments were received from two commenters. The Galveston-Houston Association for Smog Prevention (GHASP) objected to the use of predictive emissions monitoring systems (PEMS), stating that such systems are unproven and do not actually measure emissions. Amendments to Chapter 117 adopted on May 25, 1994 extended the use of PEMS as an alternative to CEMS. The use of PEMS is not the subject of the current rulemaking. GHASP objected to delaying the Chapter 117 compliance date to May 31, 1997. The extension of the Chapter 117 compliance date to May 31, 1997 was adopted by the TNRCC on August 31, 1994, and is not the subject of the current rulemaking. The present revision of sec.117.510 does not delay or otherwise affect the May 31, 1997 NO [sub]x RACT compliance date. Houston Lighting and Power (HL&P) recommended that the TNRCC incorporate EPA requirements and deadlines in 40 Code of Federal Regulations 75 by reference, stating that this would eliminate the need for additional TNRCC rulemaking should the federal rule deadlines be changed again. Incorporation by reference of a rule date which is subject to change is not included in the criteria given in the Administrative Procedure Act (Texas Government Code sec.2001.36) for establishing the effective date of a rule. Unless a compliance date is specified in the rule, the compliance date becomes the effective date of the rule (20 days after the rule is filed with the Texas Register). This is not appropriate for the current rulemaking. The Texas Register Rules, 1 Texas Administrative Code Chapter 91, sec.91.41(c), require the following for documents adopted by reference: "Agencies shall include the date of the document to be adopted by reference. Agencies shall give notice of revisions to the referenced document by amending the section in which it is referenced." Therefore, incorporating federal deadlines by reference as suggested by the commenter would not relieve the requirement for further TNRCC rulemaking if those federal deadlines changed. For this reason the adopted rule specifies applicable federal compliance dates. HL&P commented that the rule language as proposed would create a conflicting CEMS/PEMS certification deadline, since some units affected by sec.117.510(2)(A) are not classified as Phase II oil- or gas-fired units. The federal rulemaking at 40 Code of Federal Regulations 75 extends the certification deadline only for Phase II oil- and gas-fired units. The staff agrees with the commenter. The EPA did not extend the CEMS/PEMS certification deadline for Phase II coal-fired units, of which type HL&P operates four units. That compliance date remains January 1, 1995. In order to clarify rule applicability, sec.117.510(2)(A) has been revised to specify a January 1, 1995 compliance date for certification of units firing coal, and a July 1, 1995 compliance date for certification of units firing natural gas or oil. Since all of the affected units are Phase II units, as defined in 40 Code of Federal Regulations 75, the rule language does not make reference to Phase II designation. The amendments are adopted under the Texas Health and Safety Code (Vernon 1992), the Texas Clean Air Act (TCAA), sec.382.017, which provides the TNRCC with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.117.510. Compliance Schedule For Utility Electric Generation. All persons affected by the provisions of the undesignated head (relating to Utility Electric Generation) in Subchapter B of this chapter shall be in compliance as soon as practicable, but no later than May 31, 1997 (final compliance date). Additionally, all affected persons shall meet the following compliance schedules and submit written notification to the Executive Director: (1) (No change.) (2) conduct applicable continuous emissions monitoring system (CEMS) or predictive emissions monitoring systems (PEMS) evaluations and quality assurance procedures as specified in sec.117.113 of this title (relating to Continuous Demonstration of Compliance) according to the following schedules: (A) For equipment and software required pursuant to 40 Code of Federal Regulations (CFR) 75, no later than January 1, 1995 for units firing coal, and no later than July 1, 1995 for units firing natural gas or oil; and (B) (No change.) (3)-(8) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 7, 1994. TRD-9452264 Mary Ruth Holder Director, Legal Services Division Texas Natural Resource Conservation Commission Effective date: January 2, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 239-1970 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 59. Parks Administration of the Texas State Park System 31 TAC sec.sec.59.61-59.64 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing, November 3, 1994, adopted new 31 TAC sec. sec.59.61-59.64 concerning a classification system for Texas Parks and Wildlife Department lands, with changes to proposed text as published in the September 30, 1994, issue of the Texas Register (19 TexReg 7753). Section 59.61 and sec.59.63 were adopted without changes and will not be republished. Proposed sec.59.62(3) was amended by addition of new language which states the Commission's intent regarding optimization of opportunities for public hunting and other public uses on all Department lands. Subparagraph 59.64(a)(2)(C) was amended by substitution of the more permissive term "should" for "will only" in development of appropriate recreational facilities on Game Management Areas. Subparagraphs 59.64(a)(5)(A), 59(a)(5)(C), 59.64(b)(2)(B), 59.64(b)(4)(A), 59.64(b)(5)(C), 59.64(c)(2)(A), 59.64(c)(5)(A)- (C), 59.64(d)(2)(A)-(B), 59.64(d)(3)(B), 59.64(d)(4)(A) and 59. 64(d)(5)(C) were each amended by substituting the term "should" for "shall" in reference to selection, development, operation, use and management of Department lands. Subparagraphs 59.64(a)(4)(b)(A)-(B), 59.64(b)(4)(B), 59.64(c) (4)(B), and 58.64(d)(4)(B) were amended by substituting the term "may" for "shall" in reference to public hunting and use of Department lands. Senate Bill 179, enacted in the 73rd session of the Texas Legislature directed the Parks and Wildlife Commission to establish a classification system for state parks and wildlife management areas which categorizes wildlife management areas, parks, or a portion of parks as game management areas, recreational areas, natural areas or historical areas. Senate Bill 179 further provides that, upon establishment of this classification system, the Commission (1) may prescribe an open season for hunting on wildlife management areas as sound biological management permits and (2) may prescribe an open season for recreational hunting, as sound biological practices warrant, in state parks, forts or sites where size, location, physical conditions, safety and other uses permit hunting. Senate Bill 179 provides the Commission with exclusive authority to determine sound biological management practices for all lands under its control. These rules establish a classification system in accordance with Senate Bill 179 which will result in the classification of all Department controlled lands. The rules as adopted (1) establish a classification system for all lands under the control of the Parks and Wildlife Commission and (2) establish guidelines for selection, development, operation, use and management of each category. Through classification of lands and implementation of site specific management plans, protection, management and public use of TPWD lands can be maximized. The Department received 53 individual comments in the form of letters, phone calls and comments at public hearing from the general public. In addition, four citizens groups and seven Members of the Texas Legislature provided public comment. Primary comments included the following: (1) Three respondents asked the Commission for postponement of adoption of proposed rules and to allow further public input; (2) One respondent commented that the lands under control of the Department should not be fragmented; (3) A total of 40 respondents, including seven Members of the Texas Legislature and six citizens' groups, recommended replacing the term "shall" with "may" in reference to public hunting on lands classified under the new proposed rules. In general, comments from Legislators stated that the use of mandatory "shall" instead of permissive "may" was not in keeping with the legislative intent of SB 179; (4) Ten respondents, including the Frontera Audubon Society opposed public hunting on any state park, while eleven respondents were in favor of a classification system which allowed hunting on TPWD controlled lands; (5) Three respondents suggested that classifications of units of land should reflect the purpose of the lands and that high impact uses (such as golf courses) should be subordinate to protection of natural values; (6) The Parks Advisory Board recommended that specific criteria be developed to determine when recreational hunting on TPWD lands would be appropriate, however, one member expressed support for the proposed classification system; (7) One Legislator recommended that the Department limit the number of days in which TPWD lands would be closed for use as a result of recreational hunting and to provide adequate notice of park closures. Those making comments in favor of the proposed rules include: Texas Wildlife Association. Those making comments opposing the proposed rules included: Frontera Audubon Society, Lone Star Chapter of the Sierra Club, Parks Advisory Board, National Audubon Society, Southwest Region, Texas, The Park People Incorporated. Agency response to comment will follow the same numbering system as in 4 above: (1) The agency disagreed with this comment. The proposed rules were published twice in the Texas Register and the Commission held a working group meeting to solicit public input. In addition, the Parks Advisory Board and other citizens groups had actively been solicited for comment on the proposed classifications system; (2) Although the statutory language of Senate Bill 179 provides for multiple classifications within individual sites, Department implementation strategy will seek to avoid fragmentation of site management; (3) The agency agreed with these comments and the rules as adopted reflect these changes in language from mandatory "shall" in reference to activities on TPWD lands, to more permissive language; (4) The agency disagreed with these comments, considering hunting on TPWD lands as a valid management strategy for population control and provision of hunting opportunity; (5, 6) The agency generally agreed with these comments and these concerns will be addressed under management plans for each individual parcel of land under TPWD control; (7) The agency agreed that public notification of park closures related to public hunting activities should be intensified. The amendments are adopted under the authority of the Texas Parks and Wildlife Code, Chapter 13, which directs the Commission to establish a classification system for state parks and wildlife management areas and to adopt rules governing these lands. sec.59.62. Parks and Wildlife Land Classification-Policy. It is the policy of the Parks and Wildlife Commission that: (1) The executive director is authorized to implement the following classification and guidelines for existing and future lands owned or leased by Texas Parks and Wildlife Department, except coastal preserves, scientific areas, fish hatcheries, boat ramps and administrative properties. Initial classification and subsequent classification changes shall be subject to Texas Parks and Wildlife Commission review and approval. (2) Classification of departmental lands under this system will not affect existing site names, naming policy, on-site signage or literature unless a new category so changes uses that it is misleading. Multiple classifications may occur within individual sites and the use of a specific name may be for convenience or to indicate a primary classification without precluding uses set forth under other classification categories. (3) The use and management of individual units of Department lands will be addressed on a site specific basis, in accordance with the classification system, as management plans are developed and refined with opportunity for appropriate public input. Management plans shall optimize opportunities for public hunting and other public uses when appropriate on all Department lands. (4) Prior to classification or formal approval of individual site management plans for specific public lands, provision for public use shall be made in accordance with sound biological management, taking into consideration past patterns of use, and existing rules and regulations. (5) In interpreting this title, the serial designation of topics under a heading is not intended to denote a priority order or a preference. Furthermore, the term "may" is intended to be permissive and authorize discretion, the term "should" is intended to be directory and identify a preference when no other constraining conditions are applicable, and the term "shall" is intended to be mandatory and require the prescribed action or decision. In all such cases, all applicable antecedent conditions are prerequisites to a final action or decision. sec.59.64. Classification and Guidelines. (a) Classification. Game Management Areas. Game Management Areas are areas dedicated to wildlife management, research, demonstration, and appropriate public use. (1) Selection. (A) Game Management Areas should be areas possessing significant or potentially significant habitat values for the management and protection of wildlife and natural resources. (B) Game Management Areas should be of sufficient size to provide opportunity for research and management of the wildlife and natural resources. (C) Game Management Areas should be located to be representative of an ecoregion, or to meet priority wildlife habitat needs, or to provide education, hunting and other appropriate outdoor recreational opportunities for the public. (2) Development. (A) Facilities and supporting developments on Game Management Areas should be located and designed to minimize disturbance to natural and cultural resources. (B) Long-term major facility development should be limited to selected Game Management Areas identified for their research, education, demonstration and public use values. (C) Development of appropriate recreational facilities on Game Management Areas should be provided when there is a demonstrated demand. (D) Capital improvements on Game Management Areas should provide the opportunity to enhance habitats and conditions for wildlife populations, demonstrate integrated agricultural practices beneficial to wildlife and their habitats, and provide access for appropriate public use. (3) Operation. (A) Game Management Areas should be operated to provide opportunities for the research, education and/or demonstration of effective wildlife habitat management practices. (B) Game Management Areas may be operated to provide opportunities for outdoor classroom and other interpretive effort. (4) Use. (A) Game Management Areas may provide public hunting opportunity, when such use is not detrimental to the primary goals and management of the area and sound biological management, location, physical conditions, safety and other uses permit. (B) Game Management Areas may provide other appropriate resource oriented recreation primarily through low impact public use, when such use is not detrimental to the long term stewardship and conservation of the natural and cultural resources as identified in the site management plan and as other uses permit. (5) Management. (A) Game Management Areas should be managed to maintain or enhance wildlife habitat and populations as such management is consistent with the site management plan. (B) Game Management Areas should be managed for the research, education and demonstration of effective wildlife habitat management practices. (C) Game Management Areas should be managed, consistent with the site management plan, to address habitat needs of indigenous flora and fauna including species and communities listed as threatened or endangered or species of special concern as identified by staff. (b) Classification: Recreational Areas. Recreational Areas are areas of natural or scenic character, often containing historical, archeological, ecological, or geological values selectively developed to provide resource- oriented recreational opportunities. (1) Selection. (A) Recreational Areas should be areas possessing natural or scenic values, that are adaptable to both active and passive recreational development and use; (B) Recreational Areas should be located to help meet the priority recreational needs of Texans, or where outstanding natural values of statewide significance create a substantial recreation demand; and (C) Recreational Areas should provide recreational opportunities capable of attracting significant visitation on a regional or statewide basis. (D) New acquisitions should normally include a minimum of 500 acres of land, but may include less in the case of an extraordinary recreational resource of statewide significance. (2) Development. (A) Recreational Areas should be developed to optimize recreational opportunities afforded by the site and to provide for a variety of facilities and activities while retaining the character of the natural setting. (B) Intensity of development of a Recreational Area should provide for the sustainability of the resource and should generally not exceed a ratio of one developed acre to four undeveloped acres. (C) Recreation facilities and supporting developments should be located and designed to minimize disturbance to natural and cultural resources. (3) Operation. (A) Visitor information and interpretive programs should be emphasized to provide the visitor with a more complete and meaningful recreational experience. (B) Recreational Areas should be operated in an economically efficient manner, striving toward self-sufficiency, while not compromising the natural or cultural resources or the enjoyment thereof. (4) Use. (A) Recreational Areas should provide for a variety of resource oriented recreation and public uses not detrimental to the long term stewardship and conservation of the natural and cultural resources as identified in the site management plan. (B) Recreational Areas may provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area, and sound biological management, location, physical conditions, safety and other uses permit. (5) Management. (A) Resources within Recreational Areas should be managed to provide the opportunity for a quality recreational experience while maintaining the natural, cultural and scenic features of the park. (B) Habitat management should emphasize maintenance and restoration of natural communities, and natural biodiversity. (C) Recreational Areas should be managed, consistent with the site management plan, to address habitat needs of indigenous flora and fauna including species and communities listed as threatened or endangered or species of special concern as identified by staff. (c) Classification: Natural Areas. Natural Areas are areas established for the protection and stewardship of outstanding natural attributes of statewide significance, which may be used in a sustainable manner for scientific research, education, aesthetic enjoyment, and appropriate public use not detrimental to the primary purposes. (1) Selection. (A) Natural areas should encompass examples of natural scenic beauty, natural communities, biological features, sensitive areas, or geological formations of statewide significance, or possess exceptional educational or scientific values. (B) Natural areas should be large enough to protect the integrity of the features being protected, with adequate buffers to provide for public access and resource protection, and where feasible, include sufficient area to provide for a wilderness-type experience. (C) New acquisitions should be selected on a priority basis determined by statewide significance, natural condition, and the degree to which the resource is threatened. (D) Natural areas which duplicate the primary significance of a site presently preserved in public ownership will receive a lower priority for acquisition than those types of areas currently unrepresented in the public domain. (2) Development. (A) Development in Natural Areas should be low-density in nature and limited to that appropriate for adequate control and sustainability of the resource, and for visitor access. (B) Recreational development should be provided only where it facilitates additional appreciation of the unique resource and should not be detrimental to the natural environment nor encroach upon, damage or impair the scenic or natural features concerned. (3) Operation. (A) Natural Areas should be operated in an economically efficient manner, emphasizing resource protection over public use and revenue generation. (B) Visitor information and interpretation should be emphasized in Natural Areas to increase the visitor's understanding and appreciation of the resource being preserved. (4) Use. (A) Natural Areas should accommodate low impact, resource oriented recreation, not detrimental to the continued preservation and stewardship of the natural and cultural features as outlined in the site management plan. (B) Natural Areas may provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area and as sound biological management, location, physical conditions, safety and other uses permit. (5) Management. (A) Natural Areas should be managed, consistent with the site management plan, to insure the protection and perpetuation of the scenic or outstanding natural features. (B) Habitat management should emphasize maintenance or restoration of natural communities and natural biodiversity, consistent with the primary goals of the area. (C) Natural areas should be managed, consistent with the site management plan, to address habitat needs of indigenous flora and fauna including species and communities listed as threatened or endangered or species of special concern as identified by staff. (d) Classification: Historical Areas. Historical areas are areas established for the preservation, interpretation and public use of pre-historic and historic resources of statewide or national significance. (1) Selection. (A) Historical Areas should have a significant association with the broad history of the State as defined in the Texas Historic Sites and Structures Act, Texas Civil Statutes, Article 6081s. (B) The detailed selection criteria set out in the Historic Sites and Restoration Program Policy Statement, Section III, Acquisition Guidelines, as adopted by the Parks and Wildlife Commission, will serve as the guiding policy for selection of Historical Areas. (2) Development. (A) Development of recreational features should only be provided when there is a demonstrated demand for these facilities and/or when they facilitate additional appreciation of the historic resource, and where such facilities and activities are not detrimental to the overall historical program of the area, and the natural environment. (B) The intensity of recreational development should be within the carrying capacity of the resource, and facility design and construction materials should be tasteful and when feasible consistent with the character of the historical feature. (3) Operation. (A) All preservation, interpretation, representation, restoration, and/or reconstruction activities should be in accord with documented historical, archeological and architectural information. (B) The historical integrity of an Historical Area should be preserved, and encroachments from conflicting uses or facilities should be avoided. Original material and design intent should not be obscured or destroyed to facilitate interpretation, or promote visitor convenience. (C) Interpretation of Historical Areas should reflect the overall statewide historical significance of the area. (4) Use. (A) Historical Areas should provide for resource oriented recreation or public uses that are not detrimental to the long term stewardship of the cultural and natural resources. (B) Historical Areas may provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area and as sound biological management, location, physical conditions, safety and other public uses permit. (5) Management. (A) Historical Areas should be managed to insure the continued conservation of significant cultural features. (B) When natural resources are a significant component of an Historical Area, habitat management should emphasize maintenance and restoration of natural communities, and natural biodiversity, consistent with the primary goals of the area. (C) Historical Areas should be managed, consistent with the site management plan, to address habitat needs of indigenous flora and fauna including species and communities listed as threatened or endangered or species of special concern as identified by staff. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1994 TRD-9452231 Paul Shinkawa Acting General Counsel Texas Parks and Wildlife Department Effective date: December 30, 1994 Proposal publication date: September 30, 1994 For further information, please call: 1-800-792-1112, Ext. 4433 or (512) 389- 4433 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter NN. Electronic Benefit Transfer 40 TAC sec.3.4005, sec.3.4012 The Texas Department of Human Services (DHS) adopts an amendment to sec.3. 4005 and adopts new sec.3.4012, concerning benefit availability dates and resolution of disputes concerning issuance of Aid to Families with Dependent Children (AFDC) and Food Stamp benefits by Electronic Benefit Transfer (EBT), in its Income Assistance Services rule chapter. New sec.3.4012 is adopted with changes to the proposed text as published in the October 4, 1994, issue of the Texas Register (19 TexReg 7888). The amendment to sec.3.4005 is adopted without changes to the proposed text, and will not be republished. The justification for the amendment to sec.3.4005 is to modify the Food Stamp availability dates for benefits to increase the opportunity that food products will be available for purchase at the retail groceries when clients' benefits are issued each month, and to reduce their shopping time. This change is anticipated to encourage the participation of retail grocers in the EBT system. The justification for new sec.3.4012 is to add a procedure for clients to use when they have a question about their EBT account balance or transactions. The amendment and new section will function by increasing participation of grocers in the EBT program and by adding more flexibility for customers shopping with the EBT card. During the public comment period, no comments were received from the public; however, DHS is adopting sec.3.4012(a) with changes necessary to clarify the dispute-resolution procedure. The amendment and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment and new section implement the Human Resources Code, sec.sec.22. 001 and 33.002. sec.3.4012. Resolution of Disputes. (a) A client who has a question about an Electronic Benefit Transfer (EBT) account balance or transaction may contact the primary EBT contractor's toll- free help desk. If the primary contractor's help desk is unable to resolve the EBT dispute or error, the help desk will refer it to the Texas Department of Human Services' (DHS's) EBT dispute resolution staff in DHS's state office. A client who is dissatisfied with DHS staff's decision regarding any EBT-related transaction may request a fair hearing in accordance with Chapter 79, Subchapters L, M, N, and O of this title (relating to Fair Hearings, Appeals Process, Hearing Procedure, and Social Services Appeals). (b) When a client request for a fair hearing regarding an EBT transaction is received by DHS staff, a DHS Petition for Fair Hearing form must be completed and sent to the DHS regional attorney for the region where the client lives no later than five days following receipt of the request. 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 December 8, 1994. TRD-9452118 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: February 1, 1995 Proposal publication date: October 4 ,1994 For further information, please call: (512) 450-3765 Chapter 10. Self-support Services Child Care Services 40 TAC sec.sec.10.3485-10.3487 The Texas Department of Human Services (DHS) adopts new sec.sec.10.3485-10. 3487, concerning quality assurance performance indicators and standards, recoupment methodology based on quality assurance findings, and informal reviews and formal appeals, in its Self-Support Services rule chapter. New sec.10.3486 is adopted with a change to the proposed text as published in the October 18, 1994, issue of the Texas Register (19 TexReg 8285). New sec.10.3485 and sec.10.3487 are adopted without changes and will not be republished. The justification for the new sections is to establish performance indicators and standards for the quality assurance activity, and establish corrective action for failure to perform within the standards. The new sections will function by ensuring that Child Care Management Services contractors are held accountable for their performance through the application of performance indicators and standards for quality assurance activities and for the application of corrective actions or recoupment for failure to perform within the standards. During the public comment period DHS received comments from the Day Care Association of Fort Worth and Tarrant County; Child Care Management Services Consortium; Child Care Management Services; YWCA of El Paso; and South Plains Community Action Association. All of the comments addressed the same concern. A summary of the concern and DHS's response follows: Comment: There was general support for DHS's efforts to develop a quality assurance (QA) system. Concern was expressed, however, about changes being made in the QA system. A request was made that implementation of the rules regarding performance standards and potential recoupment be delayed until new and revised policies and procedures which affect CCMS contractor compliance with QA standards have been fully implemented. Response: DHS is adopting the rules as proposed. Clarifications to policy and additional revisions and changes have been made to the monitoring instruments and scoring guides to clarify procedures and assure more objective and accurate measurement of contractor performance in critical administrative areas. DHS will phase in scoring of contractor compliance with new and revised policies (i.e., timeframes for processing eligibility documentation; and, timeframes and process for monitoring vendors) in order to allow contractors sufficient time to train their staff on the new and revised procedures. Having formal rules in place will ensure clear understanding of contractor performance expectations. DHS's primary purpose for the QA system is to identify problems and provide opportunities for the contractor to resolve compliance issues before they become serious performance problems resulting in recoupment. DHS has made a minor editorial change to sec.10.3486(c) by adding the word "and" to the end of the paragraphs (2) and (3)(A) as a result of punctuation changes. The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 44, which provides the department with the authority to administer public assistance and day care programs. The new sections implement the Human Resources Code, sec.22.002(c) and sec.44. 002(a). sec.10.3486. Recoupment Methodology for Administrative Costs Based on Quality Assurance (QA) Findings. (a) Child Care Management Services (CCMS) contractors are subject to recoupment when they fail to meet standards for the performance indicators specified in sec.10.3485(a)(1) and (4) of this title (relating to Quality Assurance (QA) Performance Indicators and Standards) . The Texas Department of Human Services (DHS) may recoup for administrative costs when the CCMS contractor's annual compliance rate is less than the 95% standard. (b) DHS uses the following methodology to determine the amount to be recouped for a compliance rate that is less than the 95% standard for accurate and timely determinations and re-determinations of client eligibility. (1) DHS determines the average cost per client for client services. (2) DHS determines the administrative costs of client services for clients in a CCMS contractor's QA monitoring sample, based on the number of clients in the CCMS contractor's QA monitoring sample and the average costs per client for client services. (3) Based on the results of DHS monitoring of client eligibility determination and redetermination, if a CCMS contractor's compliance is: (A) below the 95% standard but at or above 85%, DHS recoups administrative costs in an amount equal to 1.5 times the percentage of noncompliance below 95% applied to the administrative costs of client services for clients in the QA monitoring sample. (B) below 85% of the standard, DHS recoups administrative costs in an amount equal to the percentage of noncompliance below 100% applied to the administrative costs of client services for clients in the QA monitoring sample. (c) DHS uses the following methodology to determine the amount to be recouped for a compliance rate that is less than the 95% standard for maintenance of valid vendor agreements: (1) DHS determines the average cost per client for vendor services; (2) DHS determines the costs of vendor services for vendors in a CCMS contractor's QA monitoring sample, based on the number of vendors in the CCMS contractor's sample and the average costs per vendor for vendor services; and (3) Based on the results of DHS monitoring of maintenance of valid vendor agreements, if a CCMS contractor's compliance is: (A) below the 95% standard but at or above 85%, DHS recoups administrative costs in an amount equal to 1.5 times the percentage of noncompliance below 95% applied to the administrative costs of vendor services for vendors in the monitoring sample; and (B) below 85% of the standard, DHS recoups administrative costs in an amount equal to the percentage of noncompliance below 100% applied to the administrative costs of vendor services for vendors in the monitoring sample. (d) If a CCMS contractor's compliance for accurate and timely determinations and re-determinations of client eligibility or maintenance of valid vendor agreements is below 85%, DHS may recoup child care costs related to the errors in the sample in addition to recouping administrative costs. DHS may also base recoupment on QA findings projected to the CCMS contractor's administrative and/or child care costs for all client services or all vendor services during the period of the QA monitoring sample. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1994. TRD-9452210 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Effective date: January 1, 1995 Proposal publication date: October 18, 1994 For further information, please call: (512) 450-3765 Part II. Texas Rehabilitation Commission Chapter 117. Special Rules and Policies 40 TAC sec.117.5 The Texas Rehabilitation Commission (TRC) adopts new sec.117.5 to adopt by reference the rules of the General Services Commission concerning charges for public records. The new rule is adopted without changes to the proposed text as published in the October 25, 1994, issue of the Texas Register (19 TexReg 8525). The justification for the new rule is to implement the provisions of Chapter 428, Acts, 73rd Legislature (House Bill Number 1009) with respect to the cost of providing records to the public and the charges that the TRC may set to recover the full costs of providing public records. The new rule will comply with House Bill Number 1009. No comments were received regarding adoption of the new rule. The new rule is adopted under Texas Human Resource Code, sec.111.018, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for rehabilitation and other services, procedures for hearings, and other regulations subject to this section as necessary to carry out the purpose of this chapter. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 8, 1994. TRD-9452148 Charles W. Schiesser Associate Commissioner for Legal Services Texas Rehabilitation Commission Effective date: December 29, 1994 Proposal publication date: October 25, 1994 For further information, please call: (512) 483-4051 Part XIX. Texas Department of Protective and Regulatory Services Chapter 700. Child Protective Services Subchapter E. Intake, Investigation, and Assessment 40 TAC sec.sec.700.507, 700.509, 700.516, 700.519, 700.520 The Texas Department of Protective and Regulatory Services (TDPRS) adopts amendments to sec.sec.700.507, 700.509, 700.516, and 700.519, and adopts new sec.700.520, without changes to the proposed text as published in the November 4, 1994, issue of the Texas Register (19 TexReg 8758). The justifications for the amendments and new section are to implement an amendment to the Human Resources Code enacted by the 73rd Texas Legislature, to implement a change in the Office of Child-Care Licensing's (CCL's) Minimum Standards for Child-Placing Agencies, and to make other minor changes in light of TDPRS's current practices. More specifically, the new section identifies the parties subject to criminal background checks during investigations. And the amendments add a reference to such criminal background checks; simplify PSFC's policies for purchasing medical, psychological, and psychiatric examinations during investigations of child abuse or neglect; authorize alleged perpetrators to contact TDPRS's Office of the Ombudsman at the end of administrative reviews of investigation findings; and increase (from 15 hours to 20) the minimum amount of training that investigation workers must receive annually to comply with CCL's new Minimum Standards for Child-Placing Agencies. The amendments and new section will function by improving the protection of children from abuse and neglect by identifying the parties subject to criminal background checks during investigations of child abuse and neglect and by making several minor additional changes in the department's policies for investigating and assessing reports of child abuse and neglect. No comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under the Human Resources Code, Title 2, Chapter 41, which authorizes the department to enforce laws for the protection of children. The amendments and new section are also adopted under the Texas Family Code, Title 2, Chapter 34, which authorizes the department to provide services to alleviate the effects of child abuse and neglect. The amendments and new sections are further adopted 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 program from the Texas Department of Human Services to TDPRS. The amendments and new section implement the Human Resources Code, sec.22. 0065(a)(4), which authorizes TDPRS to obtain information from the Texas Department of Public Safety, the Federal Bureau of Investigation, and other law- enforcement agencies regarding the criminal backgrounds of people who are the subjects of reports of child abuse and neglect. The amendments also implement Texas Civil Statutes, Article 4413(503), Section 15, which authorizes the department to enter into contracts as necessary to perform any of its powers or duties. The amendments additionally implement the Texas Family Code (TFC), sec.34.052(c) 626>(d), which authorizes anyone whom TDPRS designates as an alleged perpetrator of child abuse or neglect to request an administrative review of the investigation findings. And finally, the amendments implement TFC, sec.34.054, which requires TDPRS to adopt voluntary standards for investigators of child abuse. 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 December 8, 1994. TRD-9452120 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Protective and Regulatory Services Effective date: February 1, 1995 Proposal publication date: November 4, 1994 For further information, please call: (512) 450-3765