PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 67. Auctioneers 16 TAC sec.67.22, sec.67.81 The Texas Department of Licensing and Regulation proposes amendments to sec.67.22 and sec.67.81, concerning Auctioneers. The amendment to sec.67.22 changes the amount of time a person who has passed the auctioneer examination has in which to get a license without being required to retake the examination from two years to 90 days. Section 67.81 increases the late renewal fee from $25 to $50 and increases the amount of time within which a late license can be renewed without retesting from 30 to 90 days. The justification for raising the late fee is to make it the same as all other Department late fees and to make late renewal and possible holding of illegal auctions less attractive. The justification for changing the period of time during which an applicant may secure an auctioneer license after passing the examination from two years to 90 days is that auctioneers are required to know and comply with many laws dealing with taxes, deceptive trade, and other state and federal law concerning licenses to buy or sell various items. These laws and regulations can be changed at various times by the state legislature, the Congress, rulemaking by the Comptroller or various other agencies, and attorney general opinions. The public will be protected more effectively if the time when a license may be secured and the time knowledge is demonstrated are not widely separated. Jimmy G. Martin, Manager, Consumer Protection Section of the Texas Department of Licensing and Regulation, has determined that for the first five-year period these sections are in effect state government revenues will increase by $250 per year, and that there will be no fiscal implications for local government as a result of enforcing or administering the sections. Mr. Martin also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be more protection for the consumer because persons being licensed will be knowledgeable of current laws pertaining to auctioneering, taxes, and deceptive trade. The anticipated economic effect on small businesses and persons who are required to comply with the sections as proposed will be an additional $25 for late license renewal. Comments on the proposal may be submitted to Jimmy G. Martin, Manager, Consumer Protection Section, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711. The amendments are proposed under Texas Civil Statutes, Article 8700, which authorize the department to license and regulate auctioneers. No other statute, code or article is affected by this rule. sec.67.22. License Requirements -Examinations. (a)-(c) (No change.) (d) An applicant who passes an examination may be licensed up to 90 days
    [two years] from the date on the grade notice sent by the department. (e) (No change.) sec.67.81. Fees-Renewal. (a)-(b) (No change.) (c) A late fee of $50
      [$25] will be charged for renewal applications postmarked between midnight of the day a current license expires and midnight of the 90th
        [30th] day after the expiration. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 31, 1996. TRD-9601279 Jack W. Garison Executive Director Texas Department of Licensing and Regulation Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 463-7357 Part VIII. Texas Racing Commission Chapter 305. Licenses for Pari-mutuel Racing Subchapter B. Individual Licenses Specific Licensees 16 TAC sec.305.41 The Texas Racing Commission proposes an amendment to sec.305.41, concerning the licensing criteria for veterinarians. The amendment changes the qualifications to be licensed as a veterinarian. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the amendment is in effect the public benefit anticipated as a result of enforcing the section will be that the persons permitted to practice veterinary medicine on the grounds of licensed racetracks are qualified and competent. There will be no fiscal implications for small businesses. There is no anticipated economic cost to persons who are required to comply with the amendment as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.7.02, which authorizes the commission to adopt rules establishing the categories of licenses and the qualifications relating to each license category. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.305.41. Veterinarians. To be eligible to be licensed by the commission as a veterinarian, an individual must show proof of current licensure in good standing
          [be licensed] by the Texas State Board of Veterinary Medical Examiners. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601303 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Subchapter C. Racetrack Licenses General Provisions 16 TAC sec.305.70 The Texas Racing Commission proposes an amendment to sec.305.70, concerning the officials' fees. The amendment eliminates the differential in the compensation for stewards and commission veterinarians at pari-mutuel horse racetracks and raises the rate of compensation for those officials on race days. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for local government as a result of enforcing the section. There will be fiscal implications for state government, in that the amount the commission will receive in officials' fees will increase. However, because the officials' fee collected is calculated to directly offset the cost to the commission of compensating these officials, the net fiscal impact to the state will be neutral. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the officials supervising pari-mutuel horse racing will be of the highest quality. There will be fiscal implications for small businesses. A pari-mutuel horse racetrack will be required to pay an increased officials' fee for each day of racing. The exact amount of the increase will vary, depending on the number of race days conducted by the racetrack. A racetrack that conducts four days of live racing per week can expect to pay an officials' fee of $,3645 for each week of live racing, compared to the current fee of $3,125. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07, which authorizes the commission to impose a fee to offset the costs of compensating officials and to set the amount of the compensation by rule. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.305.70. Officials' Fee. (a)-(b) (No change.) (c) The officials' fee at a horse racetrack is based on the actual cost to the commission of compensating the presiding steward and the commission veterinarians. The compensation for these officials is $260 per race day and $175 per non-race day.
            [:] [(1) for the presiding steward, $225 per race day, $175 per non-race day, and $100 per day of pre-meet licensing; [(2) for the primary commission veterinarian, $225 per race day and $175 per non-race day; and [(3) for the secondary commission veterinarian, $200 per race day and $175 per non-race day.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601304 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Chapter 313. Officials and Rules of Horse Racing Subchapter A. Officials Duties of Other Officials 16 TAC sec.313.53 The Texas Racing Commission proposes an amendment to sec.313.53, concerning the mutuel manager at a horse racetrack. The amendment authorizes the mutuel manager to designate an individual to serve in the mutuel manager's absence subject to the approval of the executive secretary. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the officials supervising pari-mutuel horse racing will be of the highest quality. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.313.53. Mutuel Manager. (a) The mutuel manager shall supervise the operations of the pari-mutuel department of the association and its employees. The mutuel manager shall ensure the accuracy of the amounts in all pools and the amounts to be paid on winning wagers. (b) The mutuel manager may designate a representative to serve in the mutuel manager's absence, subject to approval by the executive secretary. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601305 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Subchapter B. Entries, Declarations, and Allowances Declarations and Scratches 16 TAC sec.313.132 The Texas Racing Commission proposes an amendment to sec.313.132, concerning scratch time at a horse racetrack. The amendment eliminates the requirement that a horse racetrack have a "scratch time". Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the patrons will have accurate information regarding the participants in a race, because late changes will be significantly reduced. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.313.132. Scratch Time. (a) An association may
              [shall] designate a "scratch time" for each race day. (b)-(d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601306 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Subchapter C. Claiming Races 16 TAC sec.313.301 The Texas Racing Commission proposes an amendment to sec.313.301, concerning claiming races at a horse racetrack. The amendment changes the criteria for claiming a horse. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the owning of race horses in Texas will be encouraged by increasing the number of people who are eligible to file claims for race horses. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.313.301. Eligibility to Claim. (a) Except as otherwise provided by this section, in a claiming race, each horse is subject to be claimed for its entered price by: (1) a licensed owner or lessee [who has a horse whose registration certificate is on file in the racing office at the current race meeting] or an authorized agent acting on behalf of the owner or lessee; or (2) (No change.) (b) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601307 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Subchapter D. Running of the Race The Race 16 TAC sec.313.449 The Texas Racing Commission proposes an amendment to sec.313.449, concerning the official order of finish at a horse racetrack. The amendment clarifies the requirements for a horse to be included in the official order of finish. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel racing in Texas will be of the highest quality and integrity. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.313.449. Official Order of Finish. (a)-(b) (No change.) (c) Except in a stakes race where the published conditions expressly provide for payment of purse money through last place, a horse must carry its assigned weight across the finish line to be eligible to earn any portion of the purse or a designation in the official order of finish other than "did not finish". This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601308 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Chapter 315. Officials and Rules for Greyhound Racing Subchapter A. Officials Duties 16 TAC sec.315.36 The Texas Racing Commission proposes an amendment to sec.315.36, concerning the mutuel manager at a greyhound racetrack. The amendment authorizes the mutuel manager at a greyhound racetrack to designate an individual to serve in the mutuel manager's absence, subject to the approval of the executive secretary. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the officials supervising pari-mutuel greyhound racing will be of the highest quality. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.315.36. Mutuel Manager. (a) The mutuel manager shall supervise the operations of the pari-mutuel department of the association and its employees. The mutuel manager shall ensure the accuracy of the amounts in all pools and the amounts to be paid on winning wagers. (b) The mutuel manager may designate a representative to serve in the mutuel manager's absence, subject to approval by the executive secretary. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601309 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Chapter 319. Veterinary Practices and Drug Testing Subchapter B. Treatment of Horses 16 TAC sec.319.111 The Texas Racing Commission proposes an amendment to sec.319.111, concerning the bleeder and furosemide (Lasix) program at race horses. The amendment streamlines and clarifies the requirements for designating a horse as a bleeder and for participating in the furosemide (Lasix) program. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel racing in Texas will be humane for race horses and that information provided to patrons will be accurate and reliable. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegally influencing of a race, including the use of medication. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.319.111. Bleeders and Furosemide (Lasix) Program. (a) Diagnosis of EIPH. A bleeder is a horse that experiences Exercise Induced Pulmonary Hemorrhage (EIPH). The medical diagnosis of EIPH may be made only by a commission veterinarian or a practicing veterinarian holding a current license from the commission. A veterinarian who diagnoses an EIPH event in a horse participating in pari-mutuel racing in this state shall report the event to the commission veterinarian in a format prescribed by the commission. On receipt of the first report of a diagnosed EIPH event for a horse, the commission veterinarian shall certify the horse as a bleeder. (b) Admission to Furosemide (Lasix) Program. (1) A horse that has been certified as a bleeder in this state may be admitted to the furosemide (Lasix) program. To be admitted to the furosemide (Lasix) program, the trainer of the horse must file a request for the horse's admission to the program before the horse is entered in its next race. If a trainer fails to request the horse's admission to the furosemide (Lasix) program before entry, the horse may not compete in the race with furosemide (Lasix). (2) The trainer of a horse that was certified as a bleeder in another pari-mutuel racing jurisdiction and who competed with furosemide (Lasix) in its most recent start out-of-state is required to request the horse's admission to the furosemide (Lasix) program. The trainer must provide documentation satisfactory to the commission veterinarian that the horse was certified as a bleeder in another jurisdiction. The request that the horse be admitted to the furosemide (Lasix) program must be filed before the horse is entered in its next race. If a trainer fails to request the horse's admission to the furosemide (Lasix) program before entry, the horse may not be entered in the race. (c) Administration of Furosemide (Lasix). Furosemide (Lasix) shall be administered to a horse in the furosemide (Lasix) program not later than four hours before the published post time for the race the horse is entered to run. The furosemide (Lasix) must be administered intravenously by a veterinarian licensed by the commission. The chief veterinarian shall periodically publish the permissible blood levels of furosemide (Lasix) in post-race specimens and shall post the levels at each licensed racetrack. (d) Requirement to Use Furosemide (Lasix). A horse in the furosemide (Lasix) program in Texas must compete with furosemide (Lasix) until withdrawn from the program. (e) Withdrawal from Furosemide (Lasix) Program. (1) The chief veterinarian of the commission shall establish criteria for withdrawing a horse from the furosemide (Lasix) program and shall make those criteria available in the commission veterinarian's office at each racetrack. (2) To withdraw a horse from the furosemide (Lasix) program, the trainer must apply to the commission veterinarian. The commission veterinarian shall require a signed medical statement from the trainer's regular practicing veterinarian that it is in the horse's best interest to be withdrawn from the furosemide (Lasix) program. The commission veterinarian may also request a record of past performances, a workout without furosemide (Lasix), a blood test at the time of the workout to confirm the absence of furosemide (Lasix), or a post-workout endoscopic examination. A withdrawal request and all accompanying information must be reviewed and approved by two commission veterinarians. The commission veterinarians must act on a withdrawal request no later than one week after the request is filed. (3) A horse in the furosemide (Lasix) program may not compete without furosemide (Lasix) until its withdrawal from the program has been approved by the commission veterinarians. Withdrawal from the furosemide (Lasix) program does not prohibit a horse from subsequent readmission to the program in accordance with this section. (f) Bleeders List. (1) The commission veterinarian shall maintain a list of horses that have been certified as bleeders and a list of horses that have been admitted to the furosemide (Lasix) program. (2) On receipt of a report of a diagnosed EIPH event, the commission veterinarian shall place the horse on the veterinarian's list. For the first diagnosed EIPH event, a horse shall be placed on the veterinarian's list and is not eligible to enter a race before the 10th day after the horse is placed on the list. For the second diagnosed EIPH event, a horse shall be placed on the veterinarian's list and is not eligible to enter a race before the 30th day after the date the horse is placed on the list. For the third diagnosed EIPH event, a horse shall be placed on the veterinarian's list and is not eligible to enter a race before the 180th day after the date the horse is placed on the list. For the fourth diagnosed EIPH event, a horse is barred from pari-mutuel racing in this state. (3) Notwithstanding the foregoing, if after reviewing a report of a diagnosed EIPH event the commission veterinarian determines additional days on the veterinarian's list are essential to the health and safety of the horse, the commission veterinarian may extend the number of days the horse is on the veterinarian's list. The commission veterinarian shall record the medical reasons for the additional days for review by the chief veterinarian. (4) A horse that has not had a diagnosed EIPH event for a period of 365 consecutive days is considered a non-bleeder for purposes of this section. [(a) A bleeder is a horse that demonstrates in the presence of the commission veterinarian visible external evidence of exercise-induced pulmonary hemorrhage or exhibits post-exercise hemorrhage in the trachea on endoscopic examination performed in the presence of the commission veterinarian. [(b) The evidence of bleeding described in subsection (a) of this section must be exhibited not later than two hours after the last race on the day on which the horse raced or not later than two hours after the scheduled close of workouts at the racetrack at which the horse worked. The costs of conducting a endoscopic examination to determine whether a horse is a bleeder must be borne by the owner or trainer of the horse. A horse that is seen by the commission veterinarian to bleed during the running of a race or within two hours after the race or a workout must be certified as a bleeder by the commission veterinarian, on a form prescribed by the commission. The commission veterinarian shall maintain a list of all confirmed bleeding incidents in Texas and a copy of the list shall be posted in the racing secretary's office. The certification of a horse as a bleeder shall be noted on the horse's registration papers. [(c) The trainer of a horse confirmed as a bleeder in Texas may request that the commission veterinarian admit the horse to the furosemide (Lasix) program for its next race. The request must be made on a form prescribed by the commission not later than one hour before post time for the first race on the day the horse is scheduled to race. A trainer shall declare at the time of entry whether the horse will race with or without furosemide (Lasix). The failure to make such a declaration or the making of a false declaration is grounds for disciplinary action by the stewards or the commission. [(d) The commission veterinarian shall maintain a list of horses that have been admitted to the furosemide (Lasix) program. A horse admitted to the furosemide (Lasix) program must race with furosemide (Lasix) until: [(1) the horse is withdrawn from the furosemide (Lasix) program at the request of the trainer; or [(2) the horse races in another jurisdiction without the use of furosemide (Lasix). [(e) Furosemide (Lasix) shall be administered to a horse that is admitted to the furosemide (Lasix) program not later than four hours before post time for each race in which the horse is to participate. The furosemide (Lasix) must be administered via intravenous injection by a veterinarian licensed by the commission. The dosage must be at least 150 mg (3cc) but not more than 250 mg (5cc). [(f) If a trainer elects to withdraw a horse from the furosemide (Lasix) program, the trainer must withdraw the horse not later than one hour before post time for the first race on the day the horse is scheduled to race. The failure of a horse that has been admitted to the furosemide (Lasix) program to race on furosemide (Lasix) without the proper notification to the commission veterinarian is grounds for disciplinary action by the commission or the stewards. A horse that races in another jurisdiction without furosemide (Lasix) , except a jurisdiction that does not permit furosemide (Lasix), is automatically withdrawn from the furosemide (Lasix) program. A horse that is withdrawn from the furosemide (Lasix) program may not be readmitted to the furosemide (Lasix) program until the horse is reconfirmed as a bleeder by the commission veterinarian or in another racing jurisdiction in accordance with subsection (g) of this section. [(g) A horse that has been confirmed as a bleeder in another racing jurisdiction may be admitted to the furosemide (Lasix) program in this state provided: [(1) the horse's last race was on furosemide (Lasix); [(2) the trainer declares at the time of entry that the horse will race with furosemide (Lasix); [(3) the trainer requests that the commission veterinarian admit the horse to the furosemide (Lasix) program not later than one hour before post time for the first race on the day the horse is scheduled to race; and [(4) the trainer provides written documentation satisfactory to the commission veterinarian that the horse was participating in the furosemide (Lasix) program in that jurisdiction. [(h) For the first confirmed incident of bleeding in this state, the horse shall be placed on the veterinarian's list and is not eligible to enter in a race before the 10th day after the date the horse is placed on the list. For the second confirmed incident of bleeding in this state, the horse shall be placed on the veterinarian's list and is not eligible to enter in a race before the 30th day after the date the horse is placed on the list. For the third confirmed incident of bleeding in this state, the horse shall be placed on the veterinarian's list and is not eligible to enter in a race before the 180th day after the date the horse is placed on the list. For the fourth confirmed incident of bleeding in this state, the horse is barred from pari-mutuel racing in this state.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601310 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Chapter 321. Pari-mutuel Wagering Subchapter A. Regulation and Totalisator Operations General Provisions 16 TAC sec.321.6 The Texas Racing Commission proposes an amendment to sec.321.6, concerning the pari-mutuel track report. The amendment modifies the type of information that must be provided by the racetrack to the commission regarding each day's wagering activity. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the commission will have complete information for the effective regulation of pari-mutuel wagering. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.321.6. Pari-Mutuel Track Report. (a)-(b) (No change.) (c) The association shall deliver a copy of the report to the commission on
                [not later than the 10th day after] the date of the performance for which the report was prepared. The report must contain: (1) total handle by gross pool; (2) total handle refunded by gross pool; (3) total handle by net gross pool; (4) total commissions derived from gross pools; (5) net amount of add-ins and carryovers to the payouts; (6) payouts attributable to wagers received; (7) breakage; (8) settlements to the sending track or receiving location; and (9) total handle from each receiving location. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601311 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Mutuel Tickets 16 TAC sec.321.38 The Texas Racing Commission proposes an amendment to sec.321.38, concerning the cancellation of mutuel tickets. The amendment modifies the circumstances under which a pari-mutuel wagering ticket may be canceled. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel wagering will be fair to the patrons, effectively regulated, and of the highest integrity. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.321.38. Cancellation of Tickets. (a) An association may cancel a ticket before the ticket-issuing machines are locked
                  if[:] [(1)] the customer or
                    pari-mutuel teller made an error in issuing the ticket and the patron requests that the ticket be canceled. For a ticket valued at more than $250, the mutuel manager or the mutuel manager's designee must approve the cancellation.
                      [before the patron leaves the teller's window and before the ticket-issuing machines are locked; or] (b)
                        [(2)] An association shall cancel a ticket
                          if the stewards or racing judges order tickets to be canceled because of a scratch in a race. (c) The association shall furnish a report of all canceled tickets to the commission at the end of the day. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601312 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Subchapter B. Distribution of Pari-mutuel Pools 16 TAC sec.321.114 The Texas Racing Commission proposes an amendment to sec.321.114, concerning the prevention of start. The amendment clarifies the effect on the distribution of pari-mutuel pools if a race animal is prevented from starting in a race due to the failure of the starting gate or starting box to open properly. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel wagering will be fair to the patrons, effectively regulated, and of the highest integrity. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; and sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.321.114. Prevention of Start. [(a)] Except as otherwise provided by these rules, in
                            [In] a race, if the doors of a mechanically or electronically operated starting gate or box fail to open simultaneously with the other doors, thereby preventing a horse or greyhound from obtaining a fair start when the starter dispatches the field, that animal is considered scratched for pari-mutuel purposes only, and all wagers made on that animal shall be refunded.
                              [this section applies to the distribution of the pari-mutuel pools.] [(b) If an animal is prevented from starting, the entire amount in the win, place, and show pools wagered on that animal shall be promptly refunded unless the animal finishes first, second, or third. In that case, the animal shall be considered a starter for all straight pools in which the animal earned a placing and a nonstarter in all other straight pools. There shall not be a refund if the animal is part of a coupled entry or field. [(c) If an animal is prevented from starting, the entire amount in the multiple pools wagered on that animal shall be promptly refunded unless the animal finishes first, second, or third. In that case, the animal shall be considered a starter for the multiple pool in which the animal earned a placing. There shall not be a refund if the animal is part of a coupled entry or mutuel field. [(d) If an animal is prevented from starting so that the total number of starters is less than five: [(1) if four animals of different betting interests leave the gate or box, the association may refund the entire amount wagered in the show pool; [(2) if two or three animals of different betting interests leave the gate or box, the association may refund the entire amount wagered in the show pool, the place pool, or both pools; and [(3) if fewer than two animals of different betting interests leave the gate or box, the association shall cancel the race and refund the entire amount wagered in the win, place, and show pools.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601313 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Subchapter C. Simulcast Wagering General Provisions 16 TAC sec.sec.321.204, 321.206-321.209 The Texas Racing Commission proposes amendments to sec. s321.204, 321. 206- 321.208 and new sec.321.209, concerning pari-mutuel wagering on simulcast races. The amendments modify the procedures approving certain simulcast races, modify the responsibilities of the sending and receiving racetracks, modify the emergency procedures for simulcasting, and establish the officials for supervising simulcasting. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing the sections. Ms. Carter also has determined that for each of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that pari-mutuel wagering on simulcast races will be fair to the patrons, cost-effective for the racetracks, effectively regulated, and of the highest integrity. There will be fiscal implications for small businesses. Because the amendment to sec.321.206 eliminates the requirement that the receiving racetrack provide a decoder, the receiving racetrack can expect to save approximately $250 per month. There will be no economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendments and new section are proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering; and sec.11.011, which authorizes the commission to adopt rules to regulate pari-mutuel wagering on simulcast races. The proposed amendments and new section implement Texas Civil Statutes, Article 179e. sec.321.204. Approval of Wagering on Simulcast Races. (a)-(f) (No change.) [(g) All graded races and stakes races with a purse of $50,000 or more shall be considered of national or historic interest.] sec.321.206. Duties of Receiving Location. (a) An association that conducts pari-mutuel wagering on a simulcast race acts as a receiving location on those dates. The receiving location shall [provide]: (1) provide adequate
                                communication facilities, [which include all wire, radio, optical, satellite, or other electromagnetic systems and the modems, phone systems and other equipment used to transmit voice, data, and images] enabling pari-mutuel data transmissions and data communications between totalisator systems of
                                  the sending racetrack and the receiving location; [(2) a voice communication system between the receiving location and the sending racetrack providing timely voice contact between the stewards or racing judges and the mutuel departments at each racetrack; and] (2)
                                    [(3)] if the receiving location participates
                                      [plans to participate] in common pools, provide
                                        a direct[, private] telephone line and a
                                          [, a telecopy or] facsimile machine, or other means approved by the executive secretary, located
                                            [and a cellular telephone] in the mutuels area to transmit information to the sending racetrack in case of a system failure; and (3) display the audio and video signals of the races being simulcast to the patrons
                                              . [(b) Before the beginning of the transmission of the first performance of each day, the receiving location shall initiate a test program of its receiver, decoder, if applicable, and data communication to ensure proper operation of the system. If a test program run under this subsection is unsuccessful or indicates a malfunction of any component of the receiving system, the association may not conduct pari-mutuel wagering on a simulcast race until a successful test program is run.] (b)
                                                [(c)] After each simulcast performance, the receiving location shall provide the reports of its pari-mutuel operations required by Subchapter A of this chapter (relating to Regulation and Totalisator Operations). sec.321.207. Duties of Sending Racetrack. (a)-(b) (No change.) (c) The sending racetrack shall provide transmission equipment of acceptable broadcast quality that does not interfere with the closed circuit TV system of the receiving location. The sending racetrack must have the capability to transmit and receive wagering information via a [dedicated] data circuit. If the sending racetrack plans to form common pools, the racetrack shall provide a direct[, private] telephone line and a
                                                  [, a telecopy or] facsimile machine, or other means approved by the executive secretary, located
                                                    [and a cellular telephone] in the mutuels area to receive information from the receiving locations in case of a system failure. [(d) Except as otherwise authorized by the commission, the simulcast shall be encrypted using a time displacement decoding algorithm encryption system or an equivalent encryption system approved by the commission.] (d)
                                                      [(e)] Unless otherwise permitted by the commission, a simulcast must contain in its video content: (1)-(5) (No change.) (e)
                                                        [(f)] At least 15 minutes before post time for the first race,
                                                          [Before the beginning of the transmission of the first performance of each day,] the sending racetrack must be transmitting its signal to ensure proper operation of the transmission system.
                                                            [shall initiate a test program of its transmitter, encryption equipment, and data communication to ensure proper operation of the system. If a test program run under this subsection is unsuccessful or indicates a malfunction of any component of the sending system, the association may not transmit any races until a successful test program is run.] [(g) With the prior approval of the executive secretary, a sending racetrack may transmit and receive wagering information via a dial-up telephone line.] sec.321.208. Emergency Procedures. (a) If an association is unable to establish or to maintain the audio or video signal from the sending racetrack, the association shall immediately notify the sending racetrack of the lost signal and may continue to accept wagers while attempting to establish the signal. (b) If the audio or video signal cannot be established or maintained, the association may continue to accept wagers on the signal provided: (1) an announcement is made to the public informing them that due to technical difficulties the audio or video signal has been lost; (2) the totalisator system licensee transmits the odds on the affected race to the video department to be displayed to the patrons; and (3) the totalisator system licensee locks all wagering on the affected race no later than one minute before post to ensure the integrity and transfer of the wagering pools. (c) If the sending racetrack loses the ability to transmit the audio or video signal, the sending racetrack: (1) shall notify all receiving locations of the technical difficulties being experienced; (2) may continue to accept wagers from the receiving locations on that day's races; (3) may not accept wagers from the receiving locations for subsequent race days until the technical difficulties have been corrected. [(a) An association may not accept wagers on a simulcast race until the association is receiving both the audio and video signals from the sending racetrack. [(b) If the association loses audio or video signal from the sending racetrack, the association shall immediately notify the sending racetrack of the lost signal. [(c) If the audio or video signal is lost, the association shall establish telephone linkup with the sending racetrack's announcer and the association's public address system. The association may continue to accept wagers with the telephone linkup while attempting to reestablish the audio or video signal [or until post time for the simulcast race. [(d) If both the audio and video signals are lost and the telephone linkup cannot be established, the association shall cease accepting wagers and immediately order a refund of all monies wagered into the pools for that race.] sec.321.209. Simulcasting Officials.
                                                              The mutuel manager or the mutuel manager's designee shall be present on association grounds at all times that the association is accepting wagers on simulcast races. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601314 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Simulcasting at Horse Racetracks 16 TAC sec.sec.321.232-321.235 The Texas Racing Commission proposes amendments to sec. s321.232-321.235, concerning pari-mutuel wagering on simulcast races at horse racetracks. The amendments change the requirements for negotiating with horsemen's representatives, allocation of purse and Texas-bred revenue, and prioritizing simulcast signals. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing the sections. Ms. Carter also has determined that for each of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that pari-mutuel wagering on simulcast races will be fair to the patrons, cost-effective for the racetracks, effectively regulated, and of the highest integrity. There will be fiscal implications for small businesses. The amount available for purses from intrastate simulcasting may shift among tracks located in Texas, because under the amendments, Texas tracks will share equally in purse revenues. This may cause the amount of purse revenue available at receiving tracks to decrease, while the amount of purse revenue available at sending tracks may increase. However, this is merely a shift of revenue and the total amount available for purses statewide is not expected to decrease because of the amendments. There will be no economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendments are proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering; and sec.11.011, which authorizes the commission to adopt rules to regulate pari-mutuel wagering on simulcast races. The proposed amendments implement Texas Civil Statutes, Article 179e. sec.321.232. Negotiation With Horsemen. [(a)] An association shall negotiate with the organization
                                                                [officially] recognized by the commission
                                                                  [horsemen's organization in this state] regarding the exporting and importing of simulcast signals during a live race meeting
                                                                    [all simulcasting]. [(b) If after a good faith effort the association and the organization cannot reach an agreement on simulcasting, either party may petition the commission to decide the issues in dispute. The decision of the commission is binding on all parties.] sec.321.233. Purses. (a) For any intrastate simulcast signal, the percentage of the revenue from the simulcast race(s) dedicated to purses in this state shall be equal to or greater than the minimum percentage required by the Act, sec.6.08 and the sending racetrack and the receiving location shall divide that revenue equally among them
                                                                      . (b) For any interstate simulcast signal [originating at a racetrack outside the state of Texas], an association shall provide that the percentage of the revenue from the simulcast race(s) dedicated to purses in this state shall be equal to or greater than the minimum percentage required by the Act, sec.6.08 unless a lesser amount is permitted by the officially recognized horsemen's organization in this state or by the commission. If the maximum net total takeout is reduced as a result of a common pool or the election by the association(s), the revenue for purses required under this subsection may be reduced by no more than on a pro-rata basis with that of the association's commission. (c) (No change.) sec.321.234. Allocation of Purses and Funds for Texas Bred Incentive Programs. (a) The funds derived by an association
                                                                        from a simulcast that are dedicated to purses and the Texas Bred Incentive programs shall be allocated among the various breeds of animals in a manner determined by the association, subject to the approval of the commission
                                                                          [that is agreed to by the official breed registries and the association]. On request by the commission, the association shall provide documentation, formulae, or other evidence to support its proposed allocation of funds. [(b) If after a good faith effort the association and the appropriate registries cannot reach an agreement on simulcasting, any party may petition the commission to decide the issues in dispute. The decision of the commission is binding on all parties.] (b)
                                                                            [(c)] An association shall set aside for the Texas Bred Incentive program at least 10% of the gross amount paid by an out-of-state receiving location to receive simulcasts of the association's races. An association shall allocate funds set aside under this subsection to the various breed registries in accordance with subsection (a) of this section. A breed registry shall distribute funds received under this subsection in the same manner as funds received pursuant to the Act, sec.6.08(f). sec.321.235. Priority of Signals. (a) Intra-state simulcasting. (1) A Class 1 or 2 racetrack may offer pari-mutuel wagering on a simulcast signal from any Texas racetrack that is conducting live races. (2) During a live race meeting, a Class 3 or 4 racetrack may offer pari- mutuel wagering on a simulcast signal from any Texas racetrack that is conducting live races. [(a) A Class 1 racetrack may offer wagering only on a race simulcast from another Class 1 Texas racetrack on dates when such a signal is made available pursuant to a contract between the sending track and receiving location and approved by the commission. If no such signal is available, a Class 1 racetrack may provide wagering on simulcast races originating from other racetracks in Texas or another jurisdiction, subject to the approval of the commission.] (b) Interstate simulcasting. (1) A Class 1 or 2 racetrack may offer pari-mutuel wagering on a race simulcast from another jurisdiction, subject to the approval of the commission provided the Class 1 or 2 racetrack also offers all available simulcast races originating in Texas on that day. (2) During a live race meeting, a Class 3 or 4 racetrack may offer pari- mutuel wagering on a race simulcast from another jurisdiction, subject to the approval of the commission, provided: (A) the Class 3 or 4 racetrack also offers all available simulcast races originating in Texas on that day; and (B) each Class 1 racetrack conducting live races on that day agrees to the receipt of the out-of-state signal
                                                                              . (c) A simulcast authorized by this section is subject to the commission's rules relating to the approval of simulcasting. [(b) A Class 2 racetrack may offer wagering only on a race simulcast from Class 1 Texas racetrack on dates when such a signal is made available pursuant to a contract between the sending track and receiving location and approved by the commission. If no such signal is available, a Class 2 racetrack may offer wagering only on a race simulcast from another Class 2 Texas racetrack on dates when such a signal is made available pursuant to a contract between the sending track and receiving location and approved by the commission. If no such signal is available, a Class 2 racetrack may provide wagering on races originating in another jurisdiction, subject to the approval of the commission. [(c) A Class 3 or 4 racetrack may not conduct a simulcast race meeting. A Class 3 or 4 racetrack may conduct wagering on simulcast races on dates when live racing is conducted at the racetrack only on races simulcast from a Class 1 Texas racetrack. If no such signal is available, a Class 3 or 4 racetrack may provide wagering on simulcast races originating at any racetrack in Texas or another jurisdiction, subject to the approval of the commission. [(d) At any time that a Class 1 racetrack is conducting live races, any other Class 1 or 2 racetrack may receive the simulcast signal from the Class 1 racetrack conducting live races and conduct pari-mutuel wagering on the simulcast races, subject to the provisions of sec.321.205 (relating to Simulcasting Contract) and sec.321.232 (relating to Negotiation with Horsemen).] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601315 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 Common Pool Wagering 16 TAC sec.321.272, sec.321.275 The Texas Racing Commission proposes amendments to sec.321.272 and sec.321. 275, concerning common pooling of pari-mutuel wagers on simulcast races. The amendments change the requirements for transmitting wagering data for common pools between the sending and receiving racetracks and for filing the report on the common pool. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing the sections. Ms. Carter also has determined that for each of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that pari-mutuel wagering on simulcast races will be fair to the patrons, cost-effective for the racetracks, effectively regulated, and of the highest integrity. There will be no fiscal implications for small businesses. There will be no economic cost to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted on or before March 11, 1996, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendments are proposed under the Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules on all matters relating to the operation of racetracks; sec.11.01, which authorizes the commission to adopt rules to regulate pari-mutuel wagering; and sec.11.011, which authorizes the commission to adopt rules to regulate pari-mutuel wagering on simulcast races. The proposed amendments implement Texas Civil Statutes, Article 179e. sec.321.272. Formation of Common Pool. (a) Wagering data shall be transmitted through a method authorized by this subsection, in the following order of preference: (1) via a [dedicated] data circuit; [(2) via a dial back-up;] (2)
                                                                                [(3)] via [telecopy or] facsimile; or (3)
                                                                                  [(4)] by voice. (b)-(c) (No change.) sec.321.275. Report to Commission. An association participating in a common pool shall submit to the commission a report on the pool on
                                                                                    [not later than the tenth day after] the date of the performance for which the pool was formed. The report shall contain: (1)-(6) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601316 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 833-6699 TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 463. Applications 22 TAC sec.463.32 The Texas State Board of Examiners of Psychologists proposes new sec.463. 32, concerning Specialist in School Psychology. The new rule is being proposed in order to define what an individual must do to obtain a license as a Specialist in School Psychology. The new rule sets forth training and examination requirements for applicants for this license. The rule also defines what individuals are eligible for grandparenting into the license and how temporary licenses can be obtained to provide psychological services in the public schools. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect, the cost to the Agency to implement this license is approximately $39,000 for fiscal year 1996 and $25,000 for fiscal year 1997 and every year thereafter. However, the 74th Legislature did not provide the Agency with appropriation authority to cover this cost. The revenue generated by application fees and renewal fees collected from these individuals would more than offset the anticipated costs. The Agency estimates the revenue would increase by $60,000 in fiscal year 1996 and by $30,000 in fiscal year 1997 and every year thereafter. The Agency anticipates no fiscal implications for local government as a result of enforcing or administering the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure the protection of the health and welfare of the citizens of Texas, in particular the children who attend public schools in Texas, by ensuring that individuals who provide psychological services in the public schools meet certain minimum requirements and are subject to the requirements and regulations of the agency. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the section will be in direct proportion to the cost of application fees, plus the costs of taking and passing the examinations required for licensure as set forth by the Educational Testing Service and in sec.473.2 of the Board's rules, as well as the fees for annual renewal of the license. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The new rule is proposed under Texas Civil Statutes, Article 4512c, Section 26, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed new rule does not affect other statutes, articles, or codes. sec.463.32. Licensed Specialist in School Psychology. Section 21.003(b), Education Code, authorizes the Board to set rules for a Licensed Specialist in School Psychology. This license replaces the school psychologist and associate school psychologist certificates previously issued by the Texas Education Agency for providers of school psychological services. For definitions, see sec.465.38 of this title (relating to Psychological Services in the Schools). (1) Training Qualifications. Candidates for Licensure as a Specialist in School Psychology with a currently valid National Certified School Psychologist (NCSP) certification or who have graduated from a training program approved by the National Association of School Psychologists or accredited in School Psychology by the American Psychological Association will be considered to have met the training qualifications. Other applicants must have completed a graduate degree in psychology from a regionally accredited academic institution, and have at least 60 graduate level semester credit hours, no more than 12 of which may be internship. A graduate degree in psychology means the name of the candidate's major or program of studies must be titled psychology. These applicants must submit evidence of graduate level coursework and internship as follows: (A) Psychological Foundations-minimum one course in each of the following: (i) biological bases of behavior (ii) human learning (iii) social bases of behavior (iv) multi-cultural bases of behavior (v) child or adolescent development (vi) psychopathology or exceptionalities (B) Research or Statistics-minimum one course (C) Educational Foundations-minimum one course in each of the following: (i) instructional design (ii) organization and operation of schools (D) Assessment-minimum one course in each of the following: (i) psychoeducational assessment (ii) emotional or behavioral or cultural assessment (E) Interventions-minimum one course in each of the following: (i) counseling (ii) behavior management (iii) consultation (F) Professional Issues and Ethics-minimum one course (G) Practicum (including assessment) -minimum one course (H) Internship or experience-minimum 1,200 hours, of which 600 must be in a public school. The internship or experience in the public school must be supervised by an individual qualified in accordance with sec.465.38 of this title (relating to Psychological Services in the Schools). Internship or experience which is not obtained in a public school must be supervised by a licensed psychologist. No experience with a supervisor who is related within the second degree of affinity or within the second degree by consanguinity to the person, nor is under Board disciplinary order, may be considered for Specialist in School Psychology licensure. Internships may not involve more than two sites (a school district is considered one site) and may be obtained in not less than one or more than two academic years. The title Specialist in School Psychology "Intern" or "Trainee" is to be used during this time. Direct, systematic supervision must involve a minimum of one face-to-face contact hour per week or two consecutive face-to-face contact hours once every two weeks with the intern. Experiences must include assessment, intervention, behavior management, and consultation, for children representing a range of ages, populations and needs. (2) Examinations. Candidates for licensure as a Specialist in School Psychology must take and pass the Board's Jurisprudence Exam. Candidates must also take the national School Psychology Examination administered by the Educational Testing Service and obtain at least the current cut-off score for the NCSP. (3) Additional Requirements. In addition to the requirements of subparagraphs (1) and (2) of this section, candidates for licensure as a Specialist in School Psychology must meet the requirements imposed under sec.11(d) of the Psychologists' Certification and Licensing Act. (4) Temporary Licenses. Individuals from another jurisdiction who meet the requirements as set forth in sec.15A of the Psychologists' Certification and Licensing Act may apply to the Board for a temporary license to offer psychological services in the public schools if they meet all the requirements for temporary licensure as a licensed specialist in school psychology as set forth in sec.463.5 of this title (relating to Application File Requirements). This license is valid for a period not to exceed one academic year. (5) Grandparenting Provision for the Licensed Specialist in School Psychology. (A) Grandparenting Time Period. A person who, on or after September 1, 1992, but before September 1, 1996, was providing psychological services in a public school of this state and was also credentialed by this Board, or the National School Psychologists' Certification Board, or the Texas Education Agency as a school psychologist or associate school psychologist is entitled to a license as a Licensed Specialist in School Psychology under sec.26 of the Psychologists' Certification and Licensing Act, without examination, if the person applies to the Board for the license before September 1, 1997. Persons who qualify for Grandparenting may continue to practice under their present certification or license until they obtain the Specialist in School Psychology license, with September 1, 1997 being the final date to apply. (B) Application Requirements. A completed application for grandparenting licensure as a specialist in school psychology includes: (i) an application and required fee; (ii) two current passport pictures of the applicant; (iii) verification sent directly to the Board from the school district superintendent or his/her administrative designee that the applicant provided psychological services in the district during the period set forth in subparagraph A of this paragraph. (iv) verification sent directly to this Board from the credentialing agency of the applicant's certification/licensure as set forth in subparagraph A of this paragraph. Any individual who holds either a temporary, intermediate or one year certificate issued by the Texas Education Agency must produce proof that their deficiency plans have been completed by September 1, 1997 to qualify for a license under this paragraph. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 29, 1996. TRD-9601264 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 305-7700 Chapter 465. Rules of Practice 22 TAC sec.465.38 The Texas State Board of Examiners of Psychologists proposes new sec.465. 38, concerning Psychological Services in the Schools. The new rule is being proposed in order to define the type and scope of practice permitted by individuals who provide psychological services in the public school systems of Texas as Licensed Specialists in School Psychology, as well as the minimum level of competency that all practitioners must possess in order to obtain licensure under the section. Rebecca E. Forkner, executive director, has determined that for the first five- year period the section is in effect, the cost to the Agency to implement this license is approximately $39,000 for fiscal year 1996 and $25,000 for fiscal year 1997 and every year thereafter. However, the 74th Legislature did not provide the Agency with appropriation authority to cover this cost. The revenue generated by application fees and renewal fees collected from these individuals would more than offset the anticipated costs. The Agency estimates the revenue would increase by $60,000 in fiscal year 1996 and by $30,000 in fiscal year 1997 and every year thereafter. The Agency anticipates no fiscal implications for local government as a result of enforcing or administering the section. Ms. Forkner also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be to ensure the protection of the health and welfare of the citizens of Texas, in particular the children who attend public schools in Texas, by ensuring that individuals who provide psychological services in the public schools meet certain minimum requirements and are subject to the requirements and regulations of the agency. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the section will be negligible. Comments on the proposal may be submitted to Janice C. Alvarez, Texas State Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 78701, (512) 305-7700. The new rule is proposed under Texas Civil Statutes, Article 4512c, Section 26, which provide the Texas State Board of Examiners of Psychologists with the authority to make all rules, not inconsistent with the Constitution and Laws of this State, which are reasonably necessary for the proper performance of its duties and regulations of proceedings before it. The proposed new rule does not affect other statutes, articles, or codes. sec.465.38. Psychological Services in the Schools. This rule acknowledges the unique difference in the delivery of school psychological services in the public schools from psychological services in the private sector. The Board recognizes the purview of the State Board of Education and the Texas Education Agency in safeguarding the rights of public school children in Texas. The mandated multidisciplinary team decision making, hierarchy of supervision, regulatory provisions, and past traditions of school psychological service delivery both nationally and in Texas, among other factors, allow for rules of practice in the public schools which reflect these occupational distinctions from the private practice of psychology. (1) Definition. The Specialist in School Psychology license is for provision of school psychological services specifically in the public schools of this state. A Licensed Specialist in School Psychology means a person who is trained to address psychological and behavioral problems manifested in and associated with educational systems by utilizing psychological concepts and methods in programs or actions which attempt to improve the learning, adjustment and behavior of students. The assessment of emotional or behavioral disturbance, for educational purposes, using psychological techniques and procedures is considered the practice of psychology. (2) Providers of School Psychological Services. School psychological services may be provided in Texas public schools only by individuals authorized by this Board to provide such services. Individuals who may provide such school psychological services include Licensed Specialists in School Psychology, interns or trainees as defined in sec.463.32 of this title (relating to Specialist in School Psychology) and individuals holding a Temporary License issued by this Board to provide such services under sec.463.32 of this title (relating to Specialist in School Psychology). Nothing in this rule prohibits public schools from retaining licensed psychologists and licensed psychological associates who are not licensed specialists in school psychology to provide psychological services, other than school psychology, in their areas of competency. (3) Supervision. Direct systematic, face-to-face supervision must be provided to Licensed Specialists in School Psychology for a period of one academic year following the internship. Individuals licensed under the grandparenting provisions of sec.463.32 of this title (relating to Licensed Specialist in School Psychology) are exempt from this requirement. Any Licensed Specialist in School Psychology must be supervised when providing psychological services outside his or her area of training and supervised experience. Nothing in this rule applies to administrative supervision of psychology personnel within the public schools, often done by non-psychologists, in job functions involving, but not limited to, attendance, time management, completion of assignments, or adherence to school policies and procedures. (4) Supervisor Qualifications. Supervision must be provided by a Licensed Specialist in School Psychology with a minimum of three years experience providing psychological services in the public schools. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 29, 1996. TRD-9601265 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 305-7700 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 38. Chronically Ill and Disabled Children's Services Program 25 TAC sec.38.6 The Texas Department of Health (department) proposes an amendment to sec.38.6, relating to providers for the Chronically Ill and Disabled Children's Services Program (CIDC). Increasing service costs, without increases in general revenue funding, have necessitated review of all aspects of CIDC service delivery and client eligibility. Currently, CIDC providers also must be Texas Medicaid providers. The proposed amendment to sec.38.6 would authorize CIDC to enroll as providers those drug manufacturers and pharmacies affiliated with disease- specific nonprofit associations that can demonstrate their ability to provide medications to Texas CIDC clients in a timely manner and at a savings in cost to the program. Debra Stabeno, Associate Commissioner for Health Care Delivery, has determined that for the first five-year period the section, as proposed, is in effect, there will be fiscal implications as a result of enforcing or administering the section. The effect on state government is estimated to be a reduction in cost of $10,000 per fiscal year (FY) for FYs 1996 through 2000. There are no anticipated fiscal implications for local governments. Ms. Stabeno also has determined that for each year of the first five years the section is in effect, the public benefit anticipated as a result of enforcing the amendment will be to reduce costs to CIDC for drugs purchased for clients. There will be no effect on small businesses or persons who are required to comply with the section as proposed. There is no anticipated impact on local employment. Comments on the proposed amendment may be submitted to Susan C. Penfield, M. D., Director, Children's Health Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3179, (512) 458-7111, Extension 3104. Public comments will be accepted for 30 days following the publication of the proposal in the Texas Register. The amendment is proposed under Health and Safety Code, s35.004, which allows the Board of Health (board) to adopt rules for the selection of providers; and under Health and Safety Code, sec.12.001(b), which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. The amendment will affect Health and Safety Code, Chapter 35. sec.38.6. Providers. (a) General requirements for participation. The Chronically Ill and Disabled Children's Services (CIDC) Act, Health and Safety Code, sec.35.004, provides the Texas Board of Health (board) with the authority to approve the physicians, dentists, podiatrists, facilities, specialty centers, and other providers to participate in the CIDC Program according to criteria and procedures adopted by the Texas Board of Health. (1)-(5) (No change.) (6) Except as provided in subsection (h) of this section, all
                                                                                      [All] types of providers who are qualified to enroll in the Title XIX Medicaid Program must participate as Medicaid providers in order for the client to utilize Medicaid coverage. The CIDC Program will not pay a provider for any service that could have been reimbursed by Medicaid. (7) (No change.) (b)-(g) (No change.) (h) Drug manufacturers and disease-specific nonprofit association pharmacies. In order to make quality drugs available to CIDC clients at the best available prices, and in accordance with CIDC reimbursement policies, the CIDC Program will approve as CIDC providers drug manufacturers or disease-specific nonprofit association pharmacies which otherwise would be ineligible for enrollment under subsection (a)(6) of this section. To be approved as a provider under this section, a drug manufacturer or a pharmacy affiliated with a national disease-specific nonprofit association must document: (1) its capacity to supply CIDC clients in Texas with drugs in a timely, dependable manner; and (2) its ability to supply drugs to CIDC clients in Texas at a lower cost, including any applicable shipping charges, than is available from providers enrolled under subsection (a)(6) of this section. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 29, 1996. TRD-9601237 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 458-7111 Chapter 241. Shellfish Sanitation Texas Crab Meat 25 TAC sec.sec.241.1, 241.2, 241.4-241.29 The Texas Department of Health (department) proposes amendments to sec.sec.241.1, 241.2, and 241.4-241.29, concerning Texas crab meat. The sections cover definitions; grounds and arrangements; sanitary controls; water supplies, storage areas, processing of crabs, maintenance and cleaning; records and supervision. The amendments will update and clarify the existing rules and will implement the statutory changes adopted by the 73rd Legislature. The amendments add new definitions and update existing definitions; establish new standards for the processing and distribution of crab meat; and establish new licensing and enforcement procedures. Richard E. Thompson, director, Seafood Safety Division, has determined that for the first five-year period the sections are in effect there will be minimal fiscal implications for state government as a result of enforcing or administering the sections. The effect on state government will occur only as a result of enforced administrative penalties. There will be no fiscal implications to local government. Mr. Thompson also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be better assurance that crab meat processed in or imported into Texas will be free of disease or other health hazards transmissible by these products. There is no anticipated economic cost to persons or small businesses who are required to comply with the sections. Cost will only occur as a result of administrative penalties assessed against crabmeat businesses who do not comply. There will be no effect in local employment. Comments on the proposal may be submitted to Richard E. Thompson, R.S., Director, Seafood Safety Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 719-0215. Comments will be accepted for 30 days from the date of publication of this proposal. Public hearings to receive comments on the proposed amendments will be held on Tuesday, February 27, 1996, at 7:00 p.m. at the Bauer Exhibit Building at the fairgrounds on County Road 101, Port Lavaca, Texas, and on Wednesday, February 28, 1996, at 7:00 p.m. at the auditorium in the classroom laboratory building, Pelican Island Campus, Texas A&M University, Galveston, Texas. The amendments are proposed under the Texas Health and Safety Code, sec.436. 12 and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. The amendments affect Texas Health and Safety Code, sec.436.12. sec.241.1. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Approved-Acceptable to the commissioner of health and the Seafood Safety Division
                                                                                        [Division of Shellfish Sanitation Control] . Crab meat-The edible meat of steamed or cooked crabs, without [other] processing other
                                                                                          than picking, packing and chilling. Department [(TDH)] -The Texas Department of Health, 1100 West 49th Street, Austin Texas 78756, or its successor. [Division of Shellfish Sanitation Control (DSSC) -The division of the TDH to which responsibility for regulating the processing, packing, and shipping of crab meat is delegated.] Durable material -Material with the ability to exist for several years without significant deterioration and able to withstand normal daily use associated with crab meat processing operations. License-A numbered document issued by the SSD
                                                                                            [DSSC] which authorizes a licensee
                                                                                              [person] to process crab meat for sale. Licensee-A processor who has complied with all regulations established by the SSD and has obtained a license. A licensee may be an individual, partnership, corporation, association, or other legal entity. License number -The number assigned by the SSD
                                                                                                [DSSC] to each licensed crab dealer which consists of a one to five digit number preceded by the two letter state abbreviation and followed by the one or two letter symbol designating the type of operation licensed (C-picking and packing; CP-picking, packing, and pasteurizing). Licensing-The issuing by the SSD
                                                                                                  [DSSC] of a numbered document to operate that indicates compliance with these sections. [Person-An individual, partnership, corporation, association or other legal entity.] Potable water-A public or private water source which is safe and suitable for drinking by humans. Processor-A licensee
                                                                                                    [person] who cooks, backs, [and] picks [crabs], [and] packs and may pasteurize
                                                                                                      crab meat. Seafood Safety Division (SSD)-The division of the department to which responsibility for regulating the processing, packing, and shipping of crab meat is delegated. Sewage-Primarily organic and biodegradable or decomposable and generally originates as human, animal, or plant waste from certain activities, including the use of toilet facilities, washing, bathing, and preparing food. Sewer-An artificial, usually subterranean, conduit to carry off sewage and sometimes surface water. Sewerage-The removal and disposal of sewage and surface water by sewers. Water closet-A toilet bowl and its accessories surrounded by walls or partitions. sec.241.2. Licensing and Enforcement Procedures. (a) No crab meat shall be offered for sale for food in the State of Texas unless the crab meat has been processed and packaged in compliance with these sections or obtained from sources outside the state accepted by the Texas Department of Health (department)
                                                                                                        [TDH]. If obtained from sources outside of the state, the crab meat shall originate from a crab meat processor currently licensed by the appropriate state or other government authority. Crab meat obtained from sources other than those outlined in this section shall be considered unfit for human consumption. No one
                                                                                                          [person] shall engage in the processing and packing of crab meat for sale without having complied with these sections. No one
                                                                                                            [person] shall engage in any activity requiring a license under these sections without having applied for and obtained a numbered license from the commissioner. A license shall automatically be invalid if there is a 5.0% or more change in shares of company stock owned by any company board member. (b) Prior to beginning
                                                                                                              construction of a new crab meat plant, or major remodeling of an existing crab meat plant, (which includes, but is not limited to: any process new to that particular plant; any change of product flow; or any enlarging of the plant structure); complete, legible plans showing the floor plan of the building, with dimensions drawn to scale, location of equipment, doors, floor drains, etc., and written, complete operational procedures for all phases of the activity, including flow of the product, shall be submitted to the Seafood Safety Division (SSD)
                                                                                                                [TDH's Division of Shellfish Sanitation Control (DSSC)] for review and approval. Additional plans of the entire premises shall be required showing all structures, as well as, all water wells and septic systems with related distances and a statement of specifications as to type, sizes, design, date installed, etc. Plans shall be submitted no less than 30 days prior to initiating a new process or beginning construction.
                                                                                                                  No operations shall be conducted while any inside plant construction or any other construction which has the potential to contaminate the product is occurring. A legibly written or typed application on forms provided by the department
                                                                                                                    [DSSC] must be filed with the SSD
                                                                                                                      [DSSC] before any crab meat processing begins each license year. (c) The application for a license must be accompanied by a letter from the appropriate state agency, authorized agent, or designated representative, as defined in the Health and Safety Code, Chapter 366, which states that the water supply is potable and the sewage disposal system is working properly. (1) For new construction, where the letter can not be submitted with the application, it must be submitted after the water supply connection is made and the sewage system is installed or the connection to an existing sewage system is made, the water supply and sewage system are inspected, and before the license will be issued. (2) For licensed locations where the crab meat activities are of a continuing nature, a letter concerning a public water supply and/or public sewage system shall be acceptable for a period not to exceed five years from the date of the letter. (3) For licensed locations where the crab meat activities are of a continuing nature, a letter concerning a private water supply and/or private sewage system shall be acceptable for a period not to exceed three years from the date of the letter. (4) A copy of the original letter may be submitted with the new application required each year. (5) If changes in activities increase the demand for water supply or the loading on the sewage system, if any construction or maintenance is required on the water supply or the sewage system or if any problems are observed or detected with the water supply or the sewage system, a new letter will be required. (d) The application for a license must be accompanied by acceptable sample results from at least one water sample from the water supply collected during the thirty day period immediately prior to the date on the application. (e) The application for a license must be accompanied by a written statement of the procedure the applicant will use to determine the SELL BY date for crab meat packed and shipped from the location listed in the application, if the applicant proposes to use a SELL BY date. (f) A license and unique
                                                                                                                        number shall be issued by the commissioner only after an inspection of the plant by an authorized agent has revealed that the plant and past operational procedures
                                                                                                                          [operations] are in compliance with these sections. (g)
                                                                                                                            [(c)] The inspection of a previously licensed plant which has exhibited operational problems or violations of the operational requirements of these sections or had a license revoked shall not be conducted until written, complete operational procedures for all phases of the activity, including flow of the product, have been submitted to the SSD
                                                                                                                              [DSSC] for review and approval. An application may be rejected and a license denied based on past
                                                                                                                                [a history of] failure to comply with the requirements of these sections. (h) [(d)] Crab meat processing at the plant shall not begin until the commissioner has issued the Crab Meat Processing License for that location
                                                                                                                                  [license issued by the commissioner has been received and posted at the plant]. Each license shall expire automatically at 11:59 p.m. the last day of February following the date of issue. Licenses shall not be transferable. (i)
                                                                                                                                    [(e)] After a license is issued, unannounced inspections shall be conducted at any time the SSD
                                                                                                                                      [DSSC] has reason to believe the plant may be in operation or that crab meat may be stored on the premises
                                                                                                                                        and at such frequency as may be necessary to assure that adequate operational and sanitary conditions are maintained [and shall be conducted a minimum of three times each six months]. All crab meat at a licensed location shall be considered the responsibility of the licensed dealer at that location, for the purposes of this undesignated head.
                                                                                                                                          A copy of the completed inspection form listing written descriptions of the violations observed, along with any necessary explanation, shall be provided by an authorized agent of the department
                                                                                                                                            [TDH] to the most responsible individual present at the firm at the conclusion of the inspection. Any violation of the same requirement found on a consecutive inspection may result in license suspension
                                                                                                                                              [revocation] in accordance with subsection (j)
                                                                                                                                                [(f)] of this section. (j)
                                                                                                                                                  [(f)] The SSD
                                                                                                                                                    [DSSC] may initiate procedures to suspend or
                                                                                                                                                      revoke a license as follows. (1) The procedures[, including the opportunity for a hearing prior to revocation,] shall be in accordance with Texas Health and Safety Code, sec.436.114, and the
                                                                                                                                                        provisions of the Administrative Procedure [and Texas Register] Act, the Government Code, Chapter 2001
                                                                                                                                                          [Texas Civil Statutes, Article 6252-13a], and the department's
                                                                                                                                                            [TDH] formal hearing procedures in Chapter 1 of this title (relating to the Board of Health). (2) The grounds for suspension or
                                                                                                                                                              revocation shall be either
                                                                                                                                                                one [or more] of the following: (A) inspection results indicate unsatisfactory conditions in the plant or the existence of a public health hazard; or (B) the license holder or representative refuses to allow an inspection or otherwise interferes with an
                                                                                                                                                                  [the] authorized [TDH] agent of the department
                                                                                                                                                                    in the performance of his or her duties. (k) A licensee whose license has been suspended may not process any crab meat for a period determined by the commissioner, not to exceed 60 days after the date of signing of the final order of suspension. (l)
                                                                                                                                                                      [(g)] A licensee
                                                                                                                                                                        [person] whose license has been suspended
                                                                                                                                                                          [revoked] shall not process any crab meat until the SSD
                                                                                                                                                                            [DSSC] is satisfied that all necessary corrections have been made. A suspension will not be rescinded
                                                                                                                                                                              [new license shall not be issued] until an inspection establishes that the firm has corrected all violations which resulted in the suspension and
                                                                                                                                                                                is in full compliance with all applicable criteria of these sections. [A person whose license has been revoked shall not apply for a new license until 30 days after the date of signing of the final order of revocation.] (m) A license may be revoked for any of the reasons outlined in subsection (j) of this section or for either of the following: (1) the violations initiating a suspension fail to be corrected within the time frame established; or (2) the license has been suspended more than twice. (n) A licensee whose license has been revoked shall not apply for a new license for 180 days or before the next licensing period, whichever is longer, after the date of signing of the final order of revocation. When the department contemplates suspension or revocation, the license holder shall be afforded the opportunity for a hearing. Notice of the contemplated action shall be given to the license holder by personal service or certified mail, return receipt requested. If no request for a hearing is received by the director, within 14 days of personal service or the date of receipt, the department may proceed to take the action set out in the notice. (o) When the department determines that monetary penalties are appropriate, proposals for assessment of and hearings on administrative penalties shall be made in accordance with Texas Health and Safety Code, sec.436.114, the Administrative Procedures Act, the Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to the Board of Health). (p) The seriousness of violations shall be categorized by one of the following severity levels. The examples following the severity levels are neither exhaustive nor controlling. They reflect only the seriousness of the violation and not the intent of the violator, the history of the violator, the amount necessary to deter future violations, or efforts to correct the violation. (1) Severity Level V -violations that are of minor public health significance. The following are examples of severity level V violations: (A) failure to keep premises clean and have adequate drainage; (B) failure to clean/maintain floors, walls, or ceilings; (C) failure to provide adequate and properly shielded lighting; (D) failure to post hand washing signs at hand washing stations; and (E) failure to restrict pickers from the packing room and all unauthorized persons from processing areas when operating. (2) Severity Level IV -Violations that are of more than minor significance, or if left uncorrected, could result in more serious violations. The following are examples of severity level IV violations: (A) failure to provide or use storage for employee clothing or personal articles; (B) failure to have clean, maintained, adequately drained floor; (C) failure to provide adequate heating/cooling/ventilation; (D) failure to provide adequate quantity of water to facility; (E) failure to provide hand washing stations with soap, sanitary towels, and/or waste receptacles with proper lids; (F) failure to properly construct, locate, maintain, and/or keep clean all non-food contact surfaces; (G) failure to provide detergents, approved sanitizers, brushes, and/or test kit to properly clean and sanitize the facility; (H) failure to properly store and/or keep single service containers clean; (I) failure to maintain frozen crab meat at 0 degrees Fahrenheit or less; (J) failure to require employees to wear clean outer garments, impermeable finger cots; to store properly; to wear proper hair restraints; (K) failure to promptly remove crab scrap or other accumulation; and (L) failure to meet code and/or install water disposal correctly or have adequate drainage where operations discharge water. (3) Severity Level III -Violations that are significant and which, if not corrected, could threaten public health. The following are examples of severity level III violations: (A) failure to exclude insects, rodents, vermin, or any other animals; (B) failure to provide hot and cold water at each sink/lavatory; (C) failure to protect plumbing from backflow, backsiphonage, and/or cross contamination; (D) failure to have toilets clean, repaired, or have self-closing doors; (E) failure to properly use, store, separate, and/or label poisonous/toxic materials; (F) failure to properly construct, locate, clean, and/or maintain food contact surfaces; (G) failure to provide a temperature measuring device in each refrigeration unit; (H) failure to wash/sanitize employees hands and/or exhibit good hygienic practice; (I) failure to restrict any personnel with infections from participating in crab meat processing operations; and (J) failure to maintain complete and accurate records. (4) Severity Level II -Violations that have a significant adverse impact on public health. The following are examples of severity level II violations: (A) failure to separate operations by partition, space, or time; (B) failure to provide adequate refrigeration units; (C) failure to clean and sanitize food contact surfaces effectively and within required time frame; (D) failure to label crab meat or properly complete label; (E) failure to protect crab meat from contamination; (F) failure to pack into containers with a valid license number for that location; comply with label requirements; to use proper date; (G) failure to promptly pick, pack, pasteurize, and/or protect the crab meat; and (H) failure to have responsible, effective, or designated person as supervisor. (5) Severity Level I -Violations that are most significant and create an imminent hazard to public health. The following are examples of severity level I violations: (A) failure to cease operations when location/plant is flooded; (B) failure to protect the water supply from contamination; (C) failure to install sewage disposal system properly; maintain or meet code; be adequate; (D) failure to maintain crab meat at the proper temperature; (E) failure to keep product from becoming contaminated; (F) failure to cool packed product to 45 degrees Fahrenheit within two hours of delivery to the packing room; (G) failure to maintain packed product at 40 degrees Fahrenheit or less during storage or to cover in ice; and (H) failure to provide sanitary ice and/or properly protect it. (q) The department may impose differing levels of penalties for different severity level violations and different persons. (1) Administrative penalties shall be imposed for Severity Level I, II and III violations. Administrative penalties shall be considered for Severity Level IV and V violations when they are combined with those of higher severity level(s) or for repeated violations which could have been prevented by corrective action and for which the license holder did not take effective corrective action. (2) Tables IA and IB show the base administrative penalties.
                                                                                                                                                                                  FIGURE 2: 25 TAC sec.241.2(q)(2)
                                                                                                                                                                                    FIGURE 3: 25 TAC sec.241.2(q)(2) (3) Adjustments to the values in Tables IA and IB in paragraph (2) of this subsection may be made for the presence or absence of the following factors: (A) prompt identification and reporting; (B) corrective action to prevent recurrence; (C) compliance history; (D) prior notice of similar event; and (E) multiple occurrences. (4) The penalty may be in an amount not to exceed $25,000 a day for each violation for a person who violates the Health and Safety Code, or this chapter, or an order. Each day a violation continues may be considered a separate violation for the purposes of penalty assessment. (r) The department may offer a license holder the opportunity to attend a settlement conference to discuss with the department, or a division thereof, methods and schedules for correcting the violation(s) or to show compliance with applicable provisions of the Health and Safety Code, this chapter, license conditions, and any orders of the department issued thereunder, or discuss both such topics. The department's Office of General Counsel may conduct settlement negotiations. (s) Notice of any settlement conference shall be sent by personal service or certified mail, return receipt requested. A settlement conference is not a prerequisite for the action to be taken under subsections (o), (p), or (q) of this section. (t)
                                                                                                                                                                                      [(h) ] By acceptance of a license, the holder agrees to save, hold harmless, and indemnify the State of Texas, the department
                                                                                                                                                                                        [TDH], and its employees against any and all liability, claims or losses for property damage or personal injury which result in whole or in part from the license holder's activities. The State of Texas shall not be held liable for financial losses incurred by the crab fishermen, plant supervisors, or plant owners due to failure of the crab industry, condemnation of crab meat, loss of crab meat, or other reasons. sec.241.4. Plant Location, Grounds, and Arrangements. (a)-(c) (No change.) (d) The backing room or area shall be adjacent to the cooking and cooling rooms and shall be physically separated from the live crab and cooking areas to prevent live crabs from entering the backing area. Where a crab rinsing
                                                                                                                                                                                          [washer] machine is utilized, it shall be located in the backing room. Entrance doors shall be provided to both the cooking and backing areas of the plant so that cooking and backing personnel can enter without passing through other processing areas of the plant. Cooking and backing personnel shall confine themselves to their particular area so as to retard cross-contamination of the cooked crab meat. (e)-(g) (No change.) (h) The waste product cool room shall be used to hold backing and picking room crab waste prior to disposal. This room shall be cleaned and disinfected each day of use. (i) All cooking, backing, picking, packing, and pasteurizing of crab meat in a picking or pasteurizing plant shall be conducted under one roof.
                                                                                                                                                                                            All processing areas for one plant shall be directly connected and shall be under one roof to eliminate contamination potentials. (j) Crab bait shall not be allowed to create sanitation or nuisance problems in or near
                                                                                                                                                                                              the crab meat plant at any time. (k) Processing and packing facilities shall be located so that they will not be subjected to flooding by ordinary high tides. If plant floors are flooded, all operations shall be discontinued and the SSD
                                                                                                                                                                                                [Texas Department of Health's (TDH) Division of Shellfish Sanitation Control (DSSC)] shall immediately be notified of the flooding. No operations may occur until waters have receded and the building is thoroughly cleaned and sanitized, and the facilities have been inspected by an authorized agent of the department
                                                                                                                                                                                                  [TDH]. (l)-(p) (No change.) (q) Because picking and packing operations occur in separate areas, a delivery opening
                                                                                                                                                                                                    [window], shelf, or counter shall be provided so that pickers do not enter the packing area. The delivery opening
                                                                                                                                                                                                      [window] area shall be equipped with a shelf or surface constructed of smooth, corrosion resistant, easily cleanable, durable
                                                                                                                                                                                                        materials which can be effectively sanitized. The shelf shall drain toward the picking room and, if necessary, be curbed on the packing room side. (r)-(s) (No change.) sec.241.5. Floors, Walls, and Ceilings. (a) Floors shall be constructed of smooth, easily cleanable, corrosion resistant, impervious, durable
                                                                                                                                                                                                          material. (b) (No change.) (c) The interior surfaces of rooms shall be smooth, washable, easily cleanable, corrosion resistant, impervious, constructed of durable material,
                                                                                                                                                                                                            white-colored, and shall be kept clean and in good repair. The interior surfaces shall be constructed and maintained to prevent contamination of the crab meat during holding or processing. sec.241.6. Insect and Vermin Control Measures. (a) (No change. ) (b) Insects, rodents, and other vermin, or evidence of their infestation, shall not be present inside any building which is associated with the licensed location
                                                                                                                                                                                                              . (c) Necessary external and
                                                                                                                                                                                                                internal insect and vermin control measures shall be used, and such measures shall be in compliance with all state and federal rules. The use of insecticides and rodenticides shall be permitted only under such precautions and restrictions as will prevent the contamination of the crab meat or packing materials with illegal residues, and will cause no health hazards to employees. sec.241.7. Lighting. (a) Safe and adequate lighting shall be provided in all areas. A minimum of 50 foot candles, verified by an authorized agent, shall be required at product level in all processing areas. (b) (No change.) sec.241.8. Heating, Cooling, and Ventilation. (a) (No change.) (b) Processors shall have their backing area cooled with mechanical refrigeration adequate to maintain the air temperature at 85 degrees Fahrenheit or less. (c)
                                                                                                                                                                                                                  [(b)] Processors shall have their picking and packing areas cooled with mechanical refrigeration adequate to maintain the internal air temperature at 72 degrees Fahrenheit or less. (d)
                                                                                                                                                                                                                    [(c)] Each processing room or area shall be equipped with an indicating thermometer installed to accurately measure, within three degrees, the temperature in the warmest location not to be more than six feet off the floor. sec.241.9. Water Supply. (a) Water used in any activity at a licensed location shall be from a potable supply.
                                                                                                                                                                                                                      [Potable water shall be from a safe source, and protected from contamination, and the water supply system shall be constructed, maintained, and operated according to applicable state laws and this undesignated head. All water distribution systems shall be designed and constructed so as to provide a minimum residual pressure of 20 pounds per square inch under peak demand conditions. Under normal operating conditions, minimum pressures should not be less than 35 pounds per square inch in the distribution system.] (b) (No change.) (c) Water of at least 110 degrees Fahrenheit
                                                                                                                                                                                                                        [Hot and cold water] shall be provided through a mixing valve at each compartment of every three compartment sink and at each hand washing lavatory. [(d) Water wells shall be so located that there will be no danger of pollution from flooding under normal conditions or from insanitary surroundings, such as, privies, sewage, sewage treatment plants, livestock and animal pens, solid waste disposal sites, or abandoned and improperly sealed wells. [(e) Well sites shall not be within 50 feet of a tile or concrete sanitary sewer, septic tank, or storm sewer, or within 150 feet of a septic tank perforated drainfield, absorption bed, evapotranspiration bed or underground fuel storage tank. [(f) No well site shall be located within 500 feet of a sewage treatment plant or within 300 feet of a sewage wet well, sewage pumping station or a drainage ditch which contains industrial waste discharges or the wastes from sewage treatment systems. [(g) No water wells shall be located within 500 feet of animal feed lots, solid waste disposal sites or lands irrigated by sewerage plant effluent. [(h) Livestock shall not be allowed within 50 feet of water supply wells. [(i) Abandoned water wells in the area of a proposed source shall be plugged and sealed properly to prevent possible contamination of freshwater strata. [(j) A sanitary control easement covering that portion of the lands within 150 feet of the well location shall be secured from all such property owners and recorded in the deed records at the county courthouse for all completed wells dug after the effective date of these sections. [(k) A concrete sealing block extending at least three feet from the well casing in all directions, with a minimum thickness of six inches and sloped to drain away at not less than 0.25 inches per foot shall be provided around the well head. [(l) Wellheads and pump bases shall be sealed by the use of gaskets or sealing compounds and, as applicable, properly vented to prevent the possibility of contamination of the well water. [(m) Upon completion of a new well, or after an existing well has been reworked, the well shall be disinfected and unused for at least six hours. After the water containing chlorine is completely flushed from the well, prior to placing the well in service, samples of water shall be collected and submitted for bacteriological analysis until three successive samples collected on separate days shall be free of coliform organisms. [(n) A suitable raw water sampling cock shall be provided on the discharge pipe of each well pump. [(o) Mechanical disinfection facilities capable of maintaining a free chlorine residual of 0.2-0.5 parts per million shall be provided with the point of injection prior to the hydropneumatic pressure tank or shall be ahead of the water storage reservoir(s), if a storage reservoir is provided. A test kit must be provided and available for testing the chlorine residual of the potable water. [(p) The use of disinfectants other than hypochlorination with mechanical injection shall be considered on a case-by-case basis. Hypochlorination solution containers and pumps shall be housed and locked to protect them from adverse weather conditions and vandalism. [(q) All hydropneumatic tanks shall be located wholly above grade and shall be of steel construction with welded seams. [(1) Metal thickness for hydropneumatic tanks shall be sufficient to provide at least a minimum of 1/8 inch corrosion allowance and to withstand the highest expected working pressures with a four to one factor of safety. [(2) All hydropneumatic tanks shall be provided with a pressure release device and an easily readable pressure gauge. [(3) The tank size shall be large enough to maintain 35 pounds per square inch working pressure to the farthest end of the distribution system and large enough to provide adequate disinfection contact time as reflected by negative confluent and/or coliform monthly sample results. The tank size shall not be less than 82 gallons.] (d)
                                                                                                                                                                                                                          [(r)] At least one sample of water taken from a
                                                                                                                                                                                                                            [the] distribution system which includes a private well
                                                                                                                                                                                                                              shall be submitted to an approved laboratory each month for bacteriological analysis. Any coliform positive or confluent (TNTC) sample shall necessitate resampling the water within 24 hours of receiving the result. All crab meat operations associated with the well shall immediately cease upon notification of a coliform positive result.
                                                                                                                                                                                                                                The SSD
                                                                                                                                                                                                                                  [The Texas Department of Health's Division of Shellfish Sanitation Control (DSSC)] shall be notified upon receipt of a coliform positive sample result. If the resample result is coliform positive, the SSD
                                                                                                                                                                                                                                    [DSSC] shall be notified upon receipt of the result and the SSD
                                                                                                                                                                                                                                      [DSSC] shall determine the appropriate steps for disinfection and/or resampling. Crab meat processing operations shall not resume until a coliform negative result is obtained and the SSD is properly notified. sec.241.10. Plumbing, Sewage, and Related Facilities. (a) (No change.) (b) Drainage outlets shall be constructed and maintained to prevent the possible entrance of insects and rodents. Floor drainage shall not be allowed to drain from the plant on top of the ground. (c)
                                                                                                                                                                                                                                        [(b)] There shall be no cross connections between the approved pressure water supply and water from an unapproved source, and there shall be no fixtures or connections through which the approved pressure water supply might be contaminated by backsiphonage. Adequate devices approved by a regulatory agency shall be installed to protect against backflow and backsiphonage at all fixtures and equipment where the air gap between the water supply inlet and the fixture's flood level rim is less than twice the diameter of the water system inlet. All submerged inlets including hoses attached to faucets shall be equipped with a backflow prevention device. If booster pumps are connected directly to the potable water supply, the pumps shall be equipped with a low pressure cutoff device or equivalent method to prevent backsiphonage. (d)
                                                                                                                                                                                                                                          [(c)] Hand washing facilities shall be adequate in number and size for the number of employees, convenient to the work areas, and located so that the person responsible for supervision can readily observe that employees wash their hands before beginning work and after each interruption. There shall be at least one hand washing lavatory located in each of these areas: the backing area; the picking room; and the packing room. At least one hand washing lavatory shall be provided in each of these three areas for every 15 employees among the first 100 employees, and at least one hand washing lavatory for each 25 employees in excess of the first 100 employees. (24 lineal inches of wash sink or 18 inches of a circular basin, when provided with water outlets for such space, will be considered equivalent to one lavatory.) Three compartment sinks shall not be used for hand washing, but may be used to sanitize the hands after washing them in a lavatory. There shall be at least one three compartment sink located in the picking room, and one in the packing room. A three compartment sink shall be provided in the picking room for every 20 pickers. There shall be at least one large basin sink in the backing room. These sinks shall be of adequate size to completely immerse and properly clean and sanitize
                                                                                                                                                                                                                                            equipment and utensils. (e)
                                                                                                                                                                                                                                              [(d)] Hand washing lavatories and three-compartment sinks shall be provided with hot water of at least 110
                                                                                                                                                                                                                                                [100] degrees Fahrenheit from either a controlled temperature source with a maximum temperature of 115 degrees Fahrenheit, or from a hot and cold mixing or combination faucet. Steam water mixing valves or steam water combination faucets shall not be acceptable. (f)
                                                                                                                                                                                                                                                  [(e)] A supply of hand cleaning soap or detergent shall be available at each hand washing lavatory
                                                                                                                                                                                                                                                    [facility]. A container of bactericide for hand rinsing purposes shall be provided near each group of lavatories in the processing areas. A supply of disposable towels or a suitable hand drying device that provides heated air shall be conveniently located near each hand washing lavatory
                                                                                                                                                                                                                                                      [facility]. Common towels shall be prohibited. Where disposable towels are used, easily cleanable waste receptacles, with covers, shall be conveniently located near the hand washing lavatories
                                                                                                                                                                                                                                                        [facilities]. Hand washing signs, in languages understood by the employees, shall be posted in toilet rooms and near hand washing lavatories
                                                                                                                                                                                                                                                          [facilities]. A hand washing lavatory shall be located immediately outside the toilet rooms so that hand washing can be readily observed. Hand washing lavatories
                                                                                                                                                                                                                                                            [facilities], hand drying devices, and all related equipment
                                                                                                                                                                                                                                                              [facilities] shall be kept clean and in good repair. (g)
                                                                                                                                                                                                                                                                [(f)] Water closets
                                                                                                                                                                                                                                                                  [Toilet facilities], in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with the following table. The number of water closets
                                                                                                                                                                                                                                                                    [facilities] to be provided for each sex shall be based on the number of employees of that sex for whom the facilities are furnished. Where toilet rooms will be occupied by no more than one person at a time, can be locked from the inside, and contain at least one water closet, separate toilet rooms for each sex need not be provided. Where such single-occupancy rooms have more than one commode
                                                                                                                                                                                                                                                                      [toilet facility], only one such facility in each toilet room shall be counted for the purposes of the table due to the lack of partitions
                                                                                                                                                                                                                                                                        . The sewage disposal method shall not endanger the health of employees. Each water closet shall occupy a separate compartment with a door and walls or partitions between fixtures adequately high to assure privacy. Toilet room doors shall be tight fitting, self-closing, and not open directly into a processing area. Toilet rooms shall be kept clean and in good repair. A supply of toilet paper in a suitable holder shall be available in the toilet rooms. Air vents shall be screened or have self-closing louvers. A covered waste receptacle shall be provided in each toilet room.
                                                                                                                                                                                                                                                                          FIGURE 3: 25 TAC sec.241.10(g) (h)
                                                                                                                                                                                                                                                                            [(g)] No drainpipes or wastepipes shall be located over food processing or storage areas, or over areas in which containers are stored or washed. (i)
                                                                                                                                                                                                                                                                              [(h)] Sewage shall be discharged into an adequate sewerage system or shall be disposed of through other effective means. Where private sewerage systems are utilized, they shall be constructed and maintained according to state and local laws. Privies are not acceptable. The sewerage system shall be constructed and maintained in order that sewage will be inaccessible to flies or other insects, rodents, or other vermin, and the sewage shall not provide a source of contamination. All sewerage lines and floor drainage lines shall be separate and shall be trapped to prevent entrance of sewage into any portion of the plant. sec.241.11. Poisonous or Toxic Materials. (a) Only those poisonous or toxic materials necessary for plant operation, cleaning, sanitizing, insect or vermin control
                                                                                                                                                                                                                                                                                shall be present in the plant. Containers of poisonous or toxic materials shall be prominently labeled according to law for easy identification of contents and safely stored. Such materials shall be used only in accordance with label directions. [(b) Poisonous or toxic materials not required for cleaning, sanitizing, insect or vermin control shall not be present in the plant.] (b)
                                                                                                                                                                                                                                                                                  [(c)] Each of the following categories of poisonous or toxic substances shall be separated from each other: (1) pesticides; and (2) cleaning agents, such as detergents and sanitizers, and chemicals, such as caustic acids or polishes. (c)
                                                                                                                                                                                                                                                                                    [(d)] Poisonous or toxic substances shall not be stored above or adjacent to
                                                                                                                                                                                                                                                                                      crab meat processing or storage, food contact surfaces, utensils, or single service articles, except that this section does not prohibit conveniently located detergents or sanitizers in utensil or equipment cleaning areas. (d)
                                                                                                                                                                                                                                                                                        [(e)] Poisonous or toxic materials shall not be used in a way that contaminates the crab meat or food contact surfaces or in a way that constitutes a hazard to employees. sec.241.12. Construction of Utensils and Equipment. (a) All plant equipment and utensils shall be suitable for their intended use, so designed and of such durable
                                                                                                                                                                                                                                                                                          material and workmanship as to be readily cleanable [and durable,] and shall be kept in good repair. The design, construction, and use of such equipment and utensils shall preclude the contamination of food with lubricants, fuel, metal fragments, contaminated water, or any other contaminants. All equipment shall be installed and maintained to facilitate the cleaning thereof and of all adjacent areas. (b) All utensils and equipment shall be designed and fabricated from smooth, corrosion resistant, safe, durable
                                                                                                                                                                                                                                                                                            materials for
                                                                                                                                                                                                                                                                                              [, durable under] conditions of normal use[,] and resistant to denting, buckling, pitting, chipping, and crazing. Unfinished and unpainted wood shall not be approved for use as food contact surfaces. (c) (No change.) (d) All utensils and equipment shall be subject to inspection for compliance by an agent of the SSD
                                                                                                                                                                                                                                                                                                [DSSC] prior to licensing or initial use and shall be kept in good repair. (e) (No change.) (f) Equipment of new design necessitated by new processes shall be reviewed by an authorized agent of the SSD
                                                                                                                                                                                                                                                                                                  [DSSC] before it is put into operation. sec.241.13. Cooking, Cooling, and Storage Areas. (a)-(d) (No change.) (e) Crates and/or baskets used in cookers shall be of corrosion resistant metal or other durable
                                                                                                                                                                                                                                                                                                    material approved by the department
                                                                                                                                                                                                                                                                                                      [Texas Department of Health] and shall be durable under the conditions of normal use. They shall be resistant to denting, buckling, pitting, chipping, and crazing. They shall have air gaps close enough to prevent spillage of crabs, and yet with as much space as possible to facilitate cooking and air penetration when cooling. (f) Crates and/or baskets shall not be allowed to come in contact with the floor or other contaminated surfaces either while clean and empty and waiting to be used or while being used to hold cooked crabs. Raised racks or other devices shall be provided to permit free air circulation and shall elevate the crab meat a minimum of four inches off the floor
                                                                                                                                                                                                                                                                                                        . (g)-(h) (No change.) (i) Cooked crabs shall be backed and rinsed
                                                                                                                                                                                                                                                                                                          [washed] immediately after cooking unless they are cooled to room temperature and placed under mechanical refrigeration at air temperatures of 45 degrees Fahrenheit or less within one hour of removal from the cooker. Refrigeration of unbacked cooked crabs shall not be allowed as a routine operation. Cooked crabs which are backed and rinsed
                                                                                                                                                                                                                                                                                                            [washed] immediately after cooking shall be placed under mechanical refrigeration and shall be maintained at air temperatures of 45 degrees Fahrenheit or less until picked. Coolers for cooked crabs or backed and rinsed
                                                                                                                                                                                                                                                                                                              [washed] crabs shall be capable of maintaining air temperatures of 45 degrees Fahrenheit or less at any time crabs are placed or stored in the cooler. (j) (No change.) sec.241.14. Backing of Cooked Crabs. (a)-(c) (No change.) (d) Backing table tops shall be of corrosion resistant metal without butt joints or open seams. Backing table frames and legs shall be constructed of corrosion resistant, durable
                                                                                                                                                                                                                                                                                                                material. Spray nozzles used for rinsing the waste out of the backed crab shall be smooth and easily cleanable. (e) Backed crabs shall be rinsed immediately after backing using
                                                                                                                                                                                                                                                                                                                  [washed only under] sprayed water, and shall be immediately placed in receptacles of approved design. Backed crabs and the containers shall not be exposed to the drainage or splash from the rinse
                                                                                                                                                                                                                                                                                                                    [wash]. (f) -(h) (No change.) sec.241.15. Picking of Crab Meat. (a) (No change.) (b) Picking tables shall be made with frames and legs of corrosion resistant, durable
                                                                                                                                                                                                                                                                                                                      material. Metal construction joints shall be made by welding and shall be ground to a smooth surface. Table top food contact surfaces shall be made without seams or butt joints. Table tops shall be made of type 302 and 304 stainless steel or its equivalent, number 4 finish or better on exposed surfaces, and 18 gauge or heavier. Construction and material may be of better quality than stated in this subsection. Construction shall be designed to avoid accumulation of organic material at the edge and underside of the table and all areas shall be easily cleanable. The tables shall be constructed to be graded to drain. (c) If wall tables are used, the backs of the tables shall extend at least 24 inches upward and be of durable
                                                                                                                                                                                                                                                                                                                        material at least equal to the table top. (d)-(g) (No change.) (h) Only small quantities of cooked crabs shall be removed from the refrigeration room at any one time to be delivered to the pickers to prevent undue warming of the crabs before and during picking. Condensation drip shall not come in contact with the cooked crabs. (i) (No change.) (j) Upon accumulating not more than six pounds of crab meat, each picker shall deliver the meat to the packing area to be weighed. [After each weighing, and before returning to work, the picker shall wash his/her hands and knife with hot water and detergent and then rinse them in a bactericide of approved strength.] (k) After each weighing, and before returning to work, the picker shall wash his/her hands and knife with hot water and detergent and then rinse them in a bactericide of approved strength. A bactericide solution of chlorine shall be kept between 50 and 100 parts per million (ppm) concentration, while an iodine solution shall be kept between 25 and 50 ppm concentration. (l)-(n) (No change.) sec.241.16. Packing of Crab Meat. (a) The packing area shall be equipped with a counter of rigid construction, surfaced with corrosion resistant metal or other impervious durable
                                                                                                                                                                                                                                                                                                                          material with no open seams. (b)-(e) (No change.) (f) A record of the quantity of meat picked by individuals may be kept in a ledger at the delivery opening
                                                                                                                                                                                                                                                                                                                            [window area], or on a tally board, or by other sanitary methods. (g)-(h) (No change.) (i) The packing operations shall be scheduled and conducted to pack and
                                                                                                                                                                                                                                                                                                                              chill the crab meat to an internal temperature of 45 degrees Fahrenheit or less within two hours of delivery to the packing area and further chilled to an internal temperature of 40 degrees Fahrenheit or less within four hours after picking. This four hour time frame is the maximum time allowed and shall not be exceeded
                                                                                                                                                                                                                                                                                                                                [packing]. (j) [Picked crab meat shall be packed and cooled to an internal temperature of 40 degrees Fahrenheit or less within four hours after picking.] Storage temperatures shall be maintained at 34 degrees Fahrenheit to 40 degrees Fahrenheit. (k) (No change.) (l) The packing process and equipment shall not transmit contaminants or objectionable substances to the products. Containers shall conform to applicable food additive regulations and provide adequate protection from contamination. Condensation drip shall not come in contact with the cooked crabs. (m)-(n) (No change.) sec.241.17. Refrigeration of Crab Meat. (a)-(b) (No change.) (c) Refrigeration rooms shall be large enough and constructed so that a full day's production, with ice, can be conveniently stored. Each room shall be equipped with an automatic temperature regulating control (thermostat) and an indicating thermometer installed to accurately measure, within three degrees, the temperature in the warmest location of the storage compartment. Condensation drip shall not come in contact with the cooked crabs. (d)-(f) (No change.) (g) Fresh crab meat shall be held and transported by a licensed dealer or any distributor under mechanical refrigeration
                                                                                                                                                                                                                                                                                                                                  at air temperatures of 40 degrees Fahrenheit or less. Storage and shipping of sealed containers of fresh crab meat completely covered
                                                                                                                                                                                                                                                                                                                                    in wet ice is also
                                                                                                                                                                                                                                                                                                                                      required. Containers of fresh crab meat shall not be stored upside down. (h) (No change.) (i) Refrigeration and frozen storage compartments shall be equipped in compliance with this section. Mechanical refrigeration facilities shall be adequate in size and cooling capacity to properly refrigerate all crab meat on the premises to comply with the temperature requirements of this section. (j) (No change.) sec.241.18. Disposal of Crab Scrap. (a) Suitable containers in accordance with sec.241.15 of this title (relating to Picking of Crab Meat) shall be provided in the backing and picking rooms for the collection of crab scrap. The containers shall be thoroughly cleaned and sanitized at the end of each day's operations. Containers shall be repaired or replaced when they can not be cleaned and sanitized properly. (b) (No change.) (c) Conveyances used to remove crab scrap from the plant shall be constructed to preclude spillage. These conveyances shall be cleaned and sanitized
                                                                                                                                                                                                                                                                                                                                        at the end of each day's operations. (d) (No change.) sec.241.19. Pasteurization of Crab Meat. (a) (No change.) (b) Recording and indicating thermometers shall be provided on all pasteurizing equipment, and shall serve as time and
                                                                                                                                                                                                                                                                                                                                          temperature controllers. The bulbs of both thermometers shall be located in such a place as to give a true representation of the operating temperature of the water bath. An authorized agent of the department
                                                                                                                                                                                                                                                                                                                                            [Texas Department of Health (TDH)] shall check the accuracy of both thermometers as installed and thereafter at least once each operating season. The recording thermometer chart must be at least a 24-hour chart, and shall be at least 12 inches in diameter. (c)-(f) (No change.) (g) The pasteurization unit shall not be operated without a recording thermometer chart in place, the pen in contact with the chart and an inked record being made of the operating time-temperature cycle. Any indication of falsification of a thermometer chart shall constitute a failure to comply with this section. A new chart shall be used for each day's operations and the code number or date of each batch shall be affixed to the chart for each pasteurizing cycle. A permanent file of the used thermometer charts shall be maintained by the pasteurizer and kept available for inspection by the department
                                                                                                                                                                                                                                                                                                                                              [TDH] for a period of one year. The following information shall be recorded within the confines of the pen markings after the pasteurization cycle has been completed: (1)-(3) (No change.) (4) if the pasteurizer processes meat for someone else, the packer's name, address and license [or certification] number; (5)-(7) (No change.) (h)-(i) (No change.) (j) Crab meat for pasteurization shall meet all of the requirements for fresh crab meat. The pasteurization process shall be conducted under the same roof as where the crab meat is packed. (k) The containers of crab meat to be pasteurized
                                                                                                                                                                                                                                                                                                                                                shall be sealed as quickly as possible after the meat is picked[, except that when meat is being packed for pasteurization on other premises a covering of a type approved by the TDH shall be used]. (l) The sealed
                                                                                                                                                                                                                                                                                                                                                  containers of crab meat to be pasteurized
                                                                                                                                                                                                                                                                                                                                                    shall be placed under mechanical
                                                                                                                                                                                                                                                                                                                                                      refrigeration at air temperatures of 40 degrees Fahrenheit or less
                                                                                                                                                                                                                                                                                                                                                        immediately after packing
                                                                                                                                                                                                                                                                                                                                                          [picking], unless they are to be pasteurized immediately after packing
                                                                                                                                                                                                                                                                                                                                                            . (m) Crab meat may be packed by one processor for another in containers furnished for that purpose by the latter, provided that all packing and pasteurizing shall be completed in the pasteurization
                                                                                                                                                                                                                                                                                                                                                              [packing] plant. In all instances the products processed under operations permitted by this paragraph shall meet the labeling requirements of this section. (n) Crab meat for pasteurization shall be pasteurized within 24 hours of the time it is picked. The minimum pasteurization specifications shall be the raising of the internal temperature of the container of crab meat to 185 degrees Fahrenheit and holding at that temperature for at least one minute at the geometric center of a container approved by the department
                                                                                                                                                                                                                                                                                                                                                                [TDH]. Each set of pasteurizing equipment shall be standardized so that the pasteurization treatment as described by this section can be obtained. The pasteurizer shall keep on file the standardization report, and his pasteurization procedure shall be performed in accordance with it. (o) The containers of pasteurized crab meat shall be chilled by cooling to 100 degrees Fahrenheit within 50 minutes to allow refrigerated storage within one hour after processing. The procedure for chilling shall be standardized. Pasteurized containers of crab meat shall be refrigerated immediately after reaching 100 degrees Fahrenheit. (p) Mechanically refrigerated
                                                                                                                                                                                                                                                                                                                                                                  [Refrigerated] storage shall be provided for the chilled pasteurized crab meat and shall maintain a storage temperature at or below 40 degrees Fahrenheit but above 32 degrees Fahrenheit. Pasteurized crab meat shall be transported under mechanical refrigeration between these same temperatures. (q) The label used shall clearly identify the contents of the container as pasteurized crab meat. Whenever the term CRAB MEAT (or its equivalent) appears on the label, the word PASTEURIZED shall be used in [immediate] conjunction with it and
                                                                                                                                                                                                                                                                                                                                                                    in print of similar
                                                                                                                                                                                                                                                                                                                                                                      [equal] prominence. (r) Each container of pasteurized crab meat
                                                                                                                                                                                                                                                                                                                                                                        shall be permanently and legibly identified with a code indicating the batch and the day of processing. (s)-(t) (No change.) (u) All containers of pasteurized crab meat shall have permanently recorded on the principal display panel, so as to be easily visible, the following information: (1) the packer's or distributor's name; (2) the packer's or distributor's address, including at least the city and state; and (3) the one to five digit license number preceded by the two letter state abbreviation and followed by the one or two letter abbreviation for the type of operation the dealer is qualified to perform. (v) Where the name and address of the distributor is used, it shall be preceded by the words PACKED FOR or DISTRIBUTED BY or followed by the word DISTRIBUTOR. (w) The presence of any chemical, if any is allowed, and the net weight of the contents shall be permanently recorded on the container. The proper designation of the content of the container shall be required, (lump, special, claw, fingers, etc.). (x) Such other matter pertinent to the public health as may be required by the department shall be recorded on the container. (y) All required information shall be provided in a legible and indelible form, and shall be on the sidewall of the container unless the cover becomes an integral part of the container during the sealing process. All information, except the date, shall be impressed, embossed, lithographed, or otherwise permanently recorded on the container by the container printing company. All labeling is subject to review and approval by the SSD. sec.241.20. General Maintenance and Cleanliness. (a)-(c) (No change.) (d) No wild or domestic
                                                                                                                                                                                                                                                                                                                                                                          [animal] animals other than crabs to be processed
                                                                                                                                                                                                                                                                                                                                                                            shall be permitted in a crab meat processing plant or on the premises. Unauthorized persons shall be excluded from the plant. sec.241.21. Cleaning and Sanitizing Equipment and Utensils. (a) -(d) (No change.) (e) Food contact surfaces of utensils and equipment used in the plant shall be cleaned and sanitized prior to use and following any interruption during which food contact surfaces may have become contaminated. The proper set up and use of a three compartment sink is necessary for proper washing and sanitizing. One end compartment of the three compartment sink shall be filled with hot water and cleanser or detergent and used for the cleaning of the utensils; the solution of water and cleanser or detergent shall be changed as frequently as necessary to assure thorough cleaning of all utensils. The middle compartment shall be kept free of standing water and used, first for rinsing the residue from the utensils before cleaning and second for rinsing the wash water from the utensils after cleaning. The other end compartment shall be used for bactericidal treatment of utensils. Chlorine, when used as a sanitizer, is most effective in cool, not hot, water. A free available chlorine level of 100 parts per million shall be maintained. A contact time of at least 15 seconds shall be used for sanitizing. A test kit must be provided and available for testing the chlorine residual of the potable water. (f)-(h) (No change.) sec.241.22. Single Service Containers. (a) Containers for crab meat shall be clean; shall be constructed of non toxic metal, food grade plastic, glass, or other impervious, durable
                                                                                                                                                                                                                                                                                                                                                                              material; and shall be designed and fabricated so that the contents shall be protected from contamination during shipping and storage. (b)-(d) (No change.) sec.241.23. Labeling 23>Fresh or Fresh Frozen Crab Meat. (a)-(c) (No change.) (d) If the date is a SELL BY date, the method of determining that date shall be based on the date the crab meat is packed [and shall be approved by the Texas Department of Health's (TDH) Division of Shellfish Sanitation Control (DSSC) before being used]. The proposed method must be submitted in writing to the SSD
                                                                                                                                                                                                                                                                                                                                                                                [DSSC] before being used
                                                                                                                                                                                                                                                                                                                                                                                  . The sell by date shall be preceded by the words SELL BY or BEST WHEN SOLD BY. (e) The presence of any chemical, if any is allowed, and the net weight of the contents shall be permanently recorded on the container. The proper designation of the content of the container shall be required, (lump, special, claw, fingers, etc.) and may be recorded on either the container sidewall or on the lid
                                                                                                                                                                                                                                                                                                                                                                                    . (f) Frozen crab meat shall be labeled as FROZEN , Individually Quick Frozen, or IQF,
                                                                                                                                                                                                                                                                                                                                                                                      in print of similar
                                                                                                                                                                                                                                                                                                                                                                                        [equal] prominence [immediately] adjacent to the words CRAB MEAT. The words
                                                                                                                                                                                                                                                                                                                                                                                          [word] FROZEN, Individually Quick Frozen, or IQF,
                                                                                                                                                                                                                                                                                                                                                                                            shall be impressed, embossed, lithographed, or otherwise permanently recorded on the container. Stamping shall not be allowed. Containers shall be marked as frozen prior to freezing. (g) (No change.) (h) Such other matter pertinent to the public health as may be required by the department
                                                                                                                                                                                                                                                                                                                                                                                              [TDH] shall be recorded on the container. (i) All required information shall be provided in a legible and indelible form, and shall be on the sidewall of the container unless the cover becomes an integral part of the container during the sealing process. All information, except the date, shall be impressed, embossed, lithographed, or otherwise permanently recorded on the container by the container printing company, unless, an adhesive label which has been approved by the SSD
                                                                                                                                                                                                                                                                                                                                                                                                [DSSC] is used. Adhesive labels shall be durable and waterproof and shall not be used unless prior approval from the SSD
                                                                                                                                                                                                                                                                                                                                                                                                  [DSSC] is obtained. The request must be submitted in writing. All labeling is subject to review and approval by the SSD
                                                                                                                                                                                                                                                                                                                                                                                                    [DSSC]. sec.241.24. Ice. (a) Ice shall be made
                                                                                                                                                                                                                                                                                                                                                                                                      [manufactured] at the establishment from potable water in a commercial machine which has been properly installed without any cross connections, or in another establishment approved by the appropriate regulatory agency. Plants purchasing crushed ice shall secure it from operators who handle, crush, and deliver it in a sanitary manner. (b) All facilities and equipment employed in handling and/or preparing ice for use shall be used for no other purpose and shall be cleaned each day the plant is in operation.
                                                                                                                                                                                                                                                                                                                                                                                                        Ice shall be stored so that it does not contact unclean surfaces and shall be handled in such a manner that it will not be contaminated or exposed to contamination. No objects other than approved ice handling equipment shall come in contact with the ice or ice bin/container.
                                                                                                                                                                                                                                                                                                                                                                                                          Equipment used to handle ice shall be kept clean and shall be hung or
                                                                                                                                                                                                                                                                                                                                                                                                            stored in a protected and
                                                                                                                                                                                                                                                                                                                                                                                                              sanitary manner. (c) Ice not made
                                                                                                                                                                                                                                                                                                                                                                                                                [manufactured] in the crab meat processing establishment shall be inspected upon receipt and rejected if not delivered in clean conveyances and protected from contamination. (d) To prevent floor drainage contamination, ice storage areas shall be sealed by perimeter curbing, utilizing an elevated floor pad a minimum of four inches in height, or be contained within an ice bin of approved-type material. Painted wood surfaces are not approved for ice (food) contact surfaces. sec.241.25. Records. (a) Complete, accurate, and legible records in a form approved by the SSD
                                                                                                                                                                                                                                                                                                                                                                                                                  [Texas Department of Health's (TDH) Division of Shellfish Sanitation Control (DSSC)] shall be maintained by each licensed dealer. These reports shall be sufficient to document the dates of purchases of live crabs and the dates of purchases or shipments
                                                                                                                                                                                                                                                                                                                                                                                                                    [sales] of packed crab meat so that a container of crab meat may be traced back to the specific cook lot in which it was processed. Specific quantities of live crabs purchased and shipments
                                                                                                                                                                                                                                                                                                                                                                                                                      [sales] of crab meat shall be recorded in a permanently bound ledger book. Transaction records indicating origin of the product shall be maintained in a legible, orderly file. If computer records are maintained, they shall be approved by the SSD
                                                                                                                                                                                                                                                                                                                                                                                                                        [DSSC]. (b) Records covering purchases of live crabs and shipments
                                                                                                                                                                                                                                                                                                                                                                                                                          [sales] of fresh crab meat shall be retained for a minimum of one year. Records covering purchases of live crabs and shipments
                                                                                                                                                                                                                                                                                                                                                                                                                            [sales] of pasteurized or frozen crab meat shall be retained for at least two years or for a period of time that exceeds the shelf life of the product, if that is longer than two years. (c) Records shall be made available for inspection upon verbal request by an agent of the department
                                                                                                                                                                                                                                                                                                                                                                                                                              [TDH] during all normal working hours. (d) All brands or trade names used on packages or containers holding crab meat shall be registered yearly at no charge with the SSD
                                                                                                                                                                                                                                                                                                                                                                                                                                [DSSC]. sec.241.26. Employee Health. (a) Persons infected by disease in a communicable form, or while a carrier of such disease, or while infected with boils, sores, infected wounds, or acute respiratory infection shall not work in a crab meat processing establishment in any capacity in which there is a likelihood of such persons contaminating the crab meat or crab meat contact surfaces with pathogenic organisms or transmitting diseases to other persons. Employees having boils, sores, wounds, or any other illness which may require the attention of a licensed medical doctor shall obtain a written explanation from a licensed medical doctor stating the employee is not contagious nor potentially hazardous to contaminate food or food contact surfaces and may return to work in a food processing establishment. (b) (No change.) (c) Upon an inquiry indicating the possibility of a communicable disease, the infected employee shall be excluded from the plant pending clearance by a licensed medical doctor. The employee shall obtain a written explanation from a licensed medical doctor stating the employee is not contagious nor potentially hazardous to contaminate food or food contact surfaces and may return to work in a food processing establishment. (d) (No change.) sec.241.27. Supervision. (a)-(b) (No change.) (c) Supervisors, whether appointed or the plant owner, shall be required to successfully complete the state-accredited Food Protection Management Program as prescribed in sec.241.29(c) of this title (relating to Education and Training). (d)
                                                                                                                                                                                                                                                                                                                                                                                                                                  [(c)] Unauthorized persons shall not be permitted in the processing areas during periods of operations. sec.241.28. Personal Cleanliness. (a) Employees handling cooked crabs or crab meat shall wear clean outer garments. These outer garments shall be rinsed or changed as necessary to be kept clean. Persons backing cooked crabs or picking and packing crab meat shall wear an apron of approved durable
                                                                                                                                                                                                                                                                                                                                                                                                                                    material. (b) (No change.) (c) Finger cots, gloves, and shields, if worn by pickers shall be sanitized as often as necessary or at least twice daily; shall be properly stored until used and shall be maintained in an intact, clean, and sanitary condition. Finger cots, gloves, and shields shall be made of an impermeable durable
                                                                                                                                                                                                                                                                                                                                                                                                                                      material [except where use of such materials would be inappropriate or incompatible with the work involved]. (d) (No change. ) (e) Employees shall not store clothing or other personal belongings, eat food, chew gum, drink beverages, use tobacco in any form, spit, or conduct any other unsanitary acts in areas: (1) (No change.) (2) where cooked crabs are being stored, backed, or rinsed
                                                                                                                                                                                                                                                                                                                                                                                                                                        [washed]; (3) (No change.) (4) [in areas] that are being used for washing equipment or utensils. (f)-(g) (No change.) sec.241.29. Education and Training. (a) (No change.) (b) Employees shall receive instruction and training in proper food handling and personal hygiene and sanitary practices from supervisory personal or from other sources acceptable to the Seafood Safety Division (SSD)
                                                                                                                                                                                                                                                                                                                                                                                                                                          [Texas Department of Health's (TDH) Division of Shellfish Sanitation Control (DSSC)]. (c) Crab meat plant owners and/or managers and supervisors shall be required to attend [a] the Food Protection Management Program
                                                                                                                                                                                                                                                                                                                                                                                                                                            [food protection management program], obtain a certificate of completion, and provide a copy to the SSD
                                                                                                                                                                                                                                                                                                                                                                                                                                              [DSSC] prior to obtaining a Crab Meat Processing License
                                                                                                                                                                                                                                                                                                                                                                                                                                                [shellfish certificate of compliance]. New supervisors shall be required to attend the course and obtain a certificate of completion before working as a supervisor in a plant and shall submit a copy of their certificate to the SSD
                                                                                                                                                                                                                                                                                                                                                                                                                                                  [DSSC] within two weeks of employment. Training shall be accomplished by means of a training program consisting of 15 classroom hours and said program shall be accredited by the department
                                                                                                                                                                                                                                                                                                                                                                                                                                                    [TDH]. Persons seeking certification may obtain said training from commercial or educational activities accredited by the department
                                                                                                                                                                                                                                                                                                                                                                                                                                                      [TDH]. Certification shall be accomplished after all course requirements have been met and the applicants have demonstrated by means of an examination that they possess the required essential knowledge as determined by the health authority. Certificates shall be valid only for a period of three years. Prior to expiration, a person may attend a refresher course approved by the department
                                                                                                                                                                                                                                                                                                                                                                                                                                                        [TDH] and obtain a certificate of completion or obtain a passing score on a national examination for certification of food service managers that meets requirements of the United States Food and Drug Administration and the department
                                                                                                                                                                                                                                                                                                                                                                                                                                                          [TDH]. Copies of proof of either must be submitted to the SSD
                                                                                                                                                                                                                                                                                                                                                                                                                                                            [DSSC] prior to expiration. (d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 31, 1996. TRD-9601326 Susan K. Steeg General Counsel Texas Department of Health Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 53. Finance Commercial Fishing Licenses and Tags 31 TAC sec.53.6 The Texas Parks and Wildlife Commission proposes an amendment of sec.53.6, concerning Commercial Fishing Licenses and Tags. The proposed amendment to sec.53.6 corrects an error in the fee amount for the nonresident sport oyster boat license. The amount of the nonresident sport oyster boat license is set in Parks and Wildlife Code sec.76.104 at $40 or a fee determined by the Commission, whichever is more. Dr. Bill Harvey, Department Regulatory Coordinator, has determined that for the first five-year period the rules will be in effect there will be no fiscal implications as a result of enforcing or administering the rule. Dr. Harvey also has determined that for each year of the first five years the rule as proposed is in effect the public will benefit by consistency between statute and regulations. The department has not filed a local impact statement with the Texas Employment Commission as required by the Administrative Procedure Act, sec.2001. 022, as this agency has determined that the rule as proposed will not impact local economies. Public comment may be submitted to Paul Israel, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389- 4823 or 1- 800-792-1112, extension 4823. The amendment is are proposed under authority of Parks and Wildlife Code, sec.76.104, which sets the fee for nonresident sport oyster boat licenses. Parks and Wildlife Code, sec.76.104 is affected by the proposed amendment. sec.53.6. Commercial Fishing Licenses and Tags. (a) (No change.) (b) Oystering licenses. (1) Licenses. The following license fee amounts are effective for the license year beginning September 1, 1995, and thereafter: (A)-(E) (No change.) (F) nonresident sport oyster boat (type 428)- $40
                                                                                                                                                                                                                                                                                                                                                                                                                                                              [$10]; (G)-(H) (No change.) (2)-(3) (No change.) (c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601295 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 Stamps 31 TAC sec.sec.53.11-53.13 The Texas Parks and Wildlife Commission proposes amendments of sec.sec.53. 11- 53.13, concerning stamps. Proposed amendment of sec.53.11 (concerning stamp form) removes the wording which prescribes the exact stamp size. Amendment of sec.53.12 (concerning stamp design) adds flexibility for the executive director to prescribe stamp designs. Amendments to sec.53.13 (concerning stamp mannerofissuance) remove the wording which prescribes the time period for stamps because it is considered an unnecessary restatement of statutory language. Dr. Bill Harvey, Department Regulatory Coordinator, has determined that for the first five-year period the rules will be in effect there will be no fiscal implications as a result of enforcing or administering the rule. Dr. Harvey also has determined that for each year of the first five years the rule as proposed is in effect the public will benefit because stamps may be issued by automated point of sale, greatly facilitating ease in obtaining these stamps. The department has not filed a local impact statement with the Texas Employment Commission as required by the Administrative Procedure Act, sec.2001. 022, as this agency has determined that the rule as proposed will not impact local economies. Public comment may be submitted to Paul Israel, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4823 or 1- 800-792-1112, extension 4823. The amendments are proposed under authority of Parks and Wildlife Code, sec.sec.43.012, 43.201, 43.252, 43.303, 43.403, 43.4035, 43.503, 43.508 and 43. 582, which provides authority for the department or commission to set valid periods, and prescribe the form, design, and manner of issuance of hunting and fishing stamps. Parks and Wildlife Code, sec.sec.43.012, 43.201, 43.252, 43.303, 43.403, 43. 4035, 43.503, 43.508 and 43.582 is affected by the proposed amendments. sec.53.11. Stamp Form. Stamp sizes and formats
                                                                                                                                                                                                                                                                                                                                                                                                                                                                [Each stamp] shall be [1 1/4 inches by 1 11/16 inches in size, printed 10 stamps per page, with one sheet per book or as otherwise] prescribed by the executive director. sec.53.12. Stamp Design.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                  An artist's original rendition will be the basic design. Stamps issued by an automated system may be an alternate design as prescribed by the executive director. sec.53.13. Stamp Manner of Issuance. The stamp will be issued upon payment of the prescribed fee in a manner determined by the executive director. [A stamp is valid only during the fiscal year for which it is issued without regard to the date on which the stamp is acquired.] This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601296 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 Vessel Registration Agents and Surety Bonds 31 TAC sec.53.18 The Texas Parks and Wildlife Commission proposes amendment of sec.53.18, concerning surety bond requirements for vessel registration agents. Proposed amendments to sec.53.18 corrects an error in reference to county clerks, which should refer to county tax assessor-collectors. Additionally, the amendment corrects reference to the Texas Department of Insurance. Dr. Bill Harvey, Department Regulatory Coordinator, has determined that for the first five-year period the rules will be in effect there will be no fiscal implications to governments or local businesses as a result of enforcing or administering the rule. Dr. Harvey also has determined that for each year of the first five years the rule as proposed is in effect the public will benefit by correct reference to governmental agents responsible for registration of vessels. The department has not filed a local impact statement with the Texas Employment Commission as required by the Administrative Procedure Act, sec.2001. 022, as this agency has determined that the rule as proposed will not impact local economies. Public comment may be submitted to Paul Israel, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4823 or 1- 800-792-1112, Extension 4823. The amendment is proposed under authority of Parks and Wildlife Code, sec.31. 0341. Parks and Wildlife Code, sec.31.0341 is affected by the proposed amendment. sec.53.18. Surety Bond Requirements. A public official (surety) bond or letter of credit is required of all persons approved as authorized vessel registration agents with the exception of departmental employees and county tax assessor- collectors
                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [clerks]. The public official (surety) bond must be executed by a bonding company licensed by the [State Board of Insurance of the] Texas Department of Insurance. The minimal penal sum and terms of the agent bond or letter of credit shall be prescribed by the executive director. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601297 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 License Deputies The Texas Parks and Wildlife Commission proposes the repeal of sec.53.21 and sec.53.24; and amendment of sec.sec.53.22, 53.23, and 53.25, concerning License Deputies. Repeal of sec.53.21 (concerning responsibility for issuance of licenses) removes an unnecessary restatement of statutory language. Section 53.24 (concerning cancellation of license deputies) is proposed for repeal because the wording contained in the section will be incorporated into amended sec.53. 22. Proposed amendments to sec.53.22 (concerning license deputy appointment and cancellation procedures) consolidate wording formerly contained in sec.53.24 and eliminate unnecessary wording about forms. Amendments to sec.53.23 (concerning surety bond requirements for license deputies) add an expiration provision of August 31, 1996 for bond requirements and change the reference to the Texas Department of Insurance. Amendments to sec.53.25 (concerning license deputy collection and issuance fees) simplify rules to provide a 5.0% license deputy collection and issuance fee for all items issued for the license year beginning September 1, 1996, and thereafter, and retains existing rates for those licenses and stamps issued for the license year which began on September 1, 1995. For the remainder of Fiscal Year 1996, 5.0% collection and issuance fees are proposed for items issued via the automated point-of-sale system and which do not currently have specified collection and issuance fee amounts. Dr. Bill Harvey, Department Regulatory Coordinator, has determined that for the first five-year period the sections are in effect there will be fiscal implications as a result of enforcing or administering the repealed and amended sections. The fiscal implications of the proposed sections will result in a negligible decrease in license and stamp revenue in Fiscal Year 1996 and a decrease of $1 million annually from fiscal years 1997-2000. There will be no effect on local government and only minimal effect on small business. Dr. Harvey also has determined that for each year of the first five years the sections as proposed are in effect the public will benefit because license deputies will be more fairly compensated for the services they provide to customers and profit margins on licenses, stamps, permits, and tags will be sufficient to cover costs of credit card transactions if individual license deputies choose to accept credit card payments. There are no anticipated costs to small businesses or persons required to comply with the sections. The department has not filed a local impact statement with the Texas Employment Commission as required by the Administrative Procedure Act, sec.2001. 022, as this agency has determined that the sections as proposed will not impact local economies. Public comment may be submitted to Paul Israel, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4823 or 1- 800-792-1112, extension 4823. 31 TAC sec.53.21, sec.53.24 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under authority of several sections of the Parks and Wildlife Code. Section 12.701 and sec.12.707, authorize issuance of licenses, stamps, permits, and tags by the Department. Section 12.702(a) allows the department to designate persons as license deputies. Parks and Wildlife Code, sec.sec.12.701-12.702 and s12.707 are affected by the proposed repeals. sec.53.21. Responsibility. sec.53.24. Cancellation. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601294 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 31 TAC sec.sec.53.22, 53.23, 53.25 The amendments are proposed under authority of several sections of the Parks and Wildlife Code. Sections 12.701 and 12.707, authorize issuance of licenses, stamps, permits, and tags by the Department. Section 12.702(a) allows the department to designate persons as license deputies. Section 12. 702(b) allows the Commission to set collection and issuance fees for licenses, stamps, tags, permits or other similar items issued under any chapter of the Parks and Wildlife Code. Parks and Wildlife Code sec.sec.12.701-12.702 and sec.12.707 are affected by the proposed amendments. sec.53.22. License Deputy Appointment and Cancellation Procedures. (a) (No change.) (b) The Texas Parks and Wildlife Department may cancel the authority of a license deputy to issue licenses if the person fails to comply with the terms set forth in the agreement with the department
                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [These forms may be inspected at the Texas Parks and Wildlife Department Headquarters Complex, 4200 Smith School Road, Austin, Texas 78744]. sec.53.23. Surety Bond Requirements. A public official (surety) bond or letter of credit is required of all persons approved as license deputies through the license year ending August 31, 1996
                                                                                                                                                                                                                                                                                                                                                                                                                                                                        with the exception of departmental employees and county clerks. The public official (surety) bond must be executed by a bonding company licensed by the Texas Department
                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [State Board] of Insurance. The minimal penal sum and terms of the license deputy bond or letter of credit shall be prescribed by the executive director. sec.53.25. License Deputy [Issuance and] Collection 23>and Issuance Fees. (a) The following license deputy collection and
                                                                                                                                                                                                                                                                                                                                                                                                                                                                            issuance [and collection] fee amounts are effective for
                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [from] the licensing period beginning September 1, 1995[, and thereafter]: (1)-(29) (No change.) (30) duplicate tarpon tag-$.50; [and] (31) Lake Texoma fishing-$.75; and (32) any item issued via the automated point-of-sale license system and not listed above-5.0% of the selling price. (b) License deputy collection and issuance fee amounts for items issued for the licensing period beginning September 1, 1996, and thereafter shall be 5% of the selling price of each item. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601553 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 Selling Price of Departmental Information 31 TAC sec.53.35 The Texas Parks and Wildlife Department proposes new sec.53.35, concerning the selling price of departmental information. House Bill 2012, enacted by the 74th Legislature, requires the Parks and Wildlife Commission to adopt policies regarding the disclosure of personal customer information recorded by the department in the course of its marketing and sales activities. The proposed new rule stipulates what types of information can and cannot be released, authorizes the executive director to set the price(s) for the sale of customer information such as mailing lists, and provides for the confidentiality of such information at the request of a customer. Jayna Burgdorf, Finance Division Director, has determined that for each of the first five years the rule as proposed is in effect the fiscal implications to state government as a result of administering or enforcing the rule as proposed are unquantifiable, since the demand for departmental information is unknown and the selling price will vary according to what the market will bear. There will be no fiscal implications for units of local governments. Ms. Burgdorf also has determined that for each of the first five years the rule as proposed is in effect the public benefit anticipated as a result of enforcing the rule as proposed will be an increase in revenue to assist the department in the attainment of its mission. There will be no effect on small businesses. The anticipated economic cost to persons required to comply with the rule as proposed will be the variable cost(s) of authorized personal customer information. The department has not filed a local impact statement with the Texas Employment Commission as required by the Administrative Procedure Act, sec.2001. 022, as this agency has determined that the rule as proposed will not impact local economies. Comments on the proposed rule may be submitted to Jayna Burgdorf, Finance Division, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4420 or 1-800-792-1112, Extension 4420. The new rule is proposed under Parks and Wildlife Code, s11.030, which gives the commission authority to set policies, delegate authority, and promulgate rules relating to the disclosure of personal customer information. The proposed new rule affects Parks and Wildlife Code, s11.030, and implements House Bill 2012, Acts of the 74th Texas Legislature, 1995. sec.53.35. Release and Sale of Customer Information. (a) The department may release customer information to accomplish its underlying mission and goals in accordance with existing commission policies. It is the policy of the commission that certain personal information about the department's customers shall not be released, including, but not limited to, customers' social security, drivers' license, bank account, credit card, or charge card numbers, except where release of such information is dictated by statute or valid court order. (b) The department may sell mailing lists consisting of names and addresses of persons who purchase customer products, licenses, or services. (c) The selling price of mailing lists may be adjusted periodically by the executive director or his designee to reflect fair market value of such lists. (d) The department may release customer information, except personal information, without charge or at a reduced fee when the executive director deems that release of such information is in the best interest of the state. (e) Upon request by a customer, information about that customer, or information about a customer's minor family members, will not be released or sold by the department except as otherwise specifically provided by law. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601293 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 Commercial Fishing Boat Numbers The Texas Parks and Wildlife Commission proposes repeal of sec.53.42 and amended sec.53.41, concerning Commercial Fishing Boat Numbers. Repeal of sec.53.42 removes an unnecessary restatement of statutory language. and amendments to sec.53.41 simplify wording and cross-reference duplicate license plate fee to sec.53.6. Dr. Bill Harvey, Department Regulatory Coordinator, has determined that for the first five-year period the rules will be in effect there will be no fiscal implications as a result of enforcing or administering the rule. There will be no effect on state government, local governments or small businesses. Dr. Harvey also has determined that for each year of the first five years the rule as proposed is in effect the public will benefit by clarification in rules related to commercial fishing boat numbering requirements. The Department has not filed a local employment impact statement with the Texas Employment Commission in compliance with the Administrative Procedure and Texas Register Act, Section 4A as this agency has determined that the rules as proposed will not impact local economics. Public comment may be submitted to Paul Israel, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4823 or 1- 800-792-1112, extension 4823. 31 TAC sec.53.41 The amendment is proposed under authority of Parks and Wildlife Code, sec.47.031, which provides authority to the commission to prescribe fees for transfers and duplicate plates for commercial fishing boat licenses. Parks and Wildlife Code sec.47.031 is affected by the proposed amendment. sec.53.41. Composition and Issuance. The commercial fishing boat number will be on a metal plate to be issued with the commercial fishing boat license bearing the same number in a manner determined by the executive director. The metal plate will be of a design and contain such additional information as the executive director may determine to be necessary to identify the boat as a commercial fishing boat. In the event of the loss or defacement of a metal plate, the licensee may obtain duplicate plates at the fees prescribed in sec.53.6
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [shall be required to obtain another commercial fishing boat license]. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-96012554 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 31 TAC sec.53.42 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under authority of Parks and Wildlife Code sec.47. 007 which directs the commission to provide rules for the issuance and use of commercial fishing boat numbers. Section 47.031 provides authority to the commission to prescribe fees for transfers and duplicate plates for commercial fishing boat licenses. Parks and Wildlife Code sec.47.007 is affected by the proposed repeal. sec.53.42. Use of Number. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601292 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 Chapter 55. Law Enforcement Subchaper I. Disposition of Dangerous Wild Animals 31 TAC sec.sec.55.501, 55.503, 55.505. The Texas Parks and Wildlife Department proposes new sec. s55.501, 55.503 and 55.505, concerning the disposition of dangerous wild animals. Senate Bill 97, enacted by the 74th Legislature, authorizes the department to seize and dispose of dangerous wild animals, or a carcass, hide, or part of or a product made from a dangerous wild animal if the live animal, carcass, hide, or part of or product was killed, wounded, or injured in, or obtained as a result of a controlled kill. The new rules set forth the regulations for the disposition of seized dangerous wild animals, carcasses, hides, and parts and products made from dangerous wild animals pursuant to Senate Bill 97. New sec.55.501 establishes the applicability of this subchapter and defines "convicted" as used in this subchapter. New sec.55.503 establishes means for disposition of live animals. New sec.55.505 establishes criteria for disposition of animal parts, hides, and animals carcasses. Boyd Kennedy, staff attorney, has determined that for each of the first five years the rules as proposed are in effect, there will be no fiscal implications to state government as a result of administering or enforcing the rules as proposed. There will be no fiscal implications for local governments or small businesses. Mr. Kennedy also has determined that for each of the first five years the rules as proposed is in effect the public benefit anticipated as a result of enforcing the rules as proposed will be the enhanced protection of dangerous wild animals in the state. There will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the rule as proposed. The department has not filed a local impact statement with the Texas Employment Commission as required by the Administrative Procedure Act, sec.2001. 022, as this agency has determined that the rule as proposed will not impact local economies. Comments on the proposed rule may be submitted to Boyd Kennedy, Law Enforcement Division, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4584 or 1-800-792-1112, Extension 4584. The new rules are proposed under Parks and Wildlife Code, sec.62.104, which gives the commission authority to adopt rules relating to the disposition of certain animals, animal parts, carcasses, and animal products. The proposed new rules affect Parks and Wildlife Code, s62.104, and implements Senate Bill 97, Acts of the 74th Texas Legislature, 1995. sec.55.501. Application. (a) This subchapter sets forth the regulations concerning the disposition of dangerous wild animals, and carcasses, hides, and parts of or products made from a dangerous wild animal seized by a peace officer pursuant to the provisions of Parks and Wildlife Code, Chapter 62, Subchapter F. (b) For purposes of this subchapter, "convicted" means found guilty by a judge or jury, a plea of guilty or nolo contendere, or placed on deferred adjudication. sec.55.503. Disposition of Live Animals. (a) A game warden or other authorized department employee acting under the direction of a game warden may euthanize a dangerous wild animal to eliminate its suffering due to illness or injury, or if the Department is unable to locate a suitable place for the animal under subsection (b) of this section. (b) If a person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the dangerous wild animal may be transferred to a sanctuary, or to a person with a permit that allows for possession of the animal. (c) If no person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the dangerous wild animal shall be disposed of according to the instructions of the court. sec.55.505. Disposition of Carcass, Hide, or Part of Animal, or Product Made From Animal. (a) If a person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the Department may destroy, or keep, or place on loan for use in an educational display, a carcass, hide, or part of or product made from a dangerous wild animal. (b) If no person is convicted of a violation of Chapter 62, Subchapter (F), Parks and Wildlife Code, the carcass, hide, or part of or product made from a dangerous wild animal shall be disposed of according to the instructions of the court, if any, or returned to the person from whom it was seized, or disposed of as specified by a court. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 30, 1996. TRD-9601298 Bill Harvey, Ph.D. Regulatory Coordinator Texas Parks and Wildlife Department Proposed date of adoption: March 14, 1996 For further information, please call: (512) 389-4642 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 9. Contract Management Subchapter C. Contracting for Architectural and Engineering 43 TAC sec.sec.9.31-9.33, 9.36-9.38 The Texas Department of Transportation proposes amendments to sec.sec.9.31-9. 33 and sec.sec.9.36-9.38, concerning contract management. Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act, sets forth requirements for selection and contracting of architectural and engineering services. Section 9.31 revises the definition of: available personnel to reflect the personnel proposed to be used on the contract rather than the entire company; consultant approval team to reflect delegation to the district, division or special office; consultant review committee to reflect delegation of provider selection to the district, division or special office; and Historically Underutilized Business to refer to definition of Historically Underutilized Business as defined by the General Services Commission. The amendments also add the definition of constructability. Section 9.32 clarifies types of work on which providers will be used by adding construction engineering and inspection. Section 9.33: removes child support statement as a requirement of the Request for Proposal (RFP), as this is now required as an attachment to the contract; removes copy of the contract with attachments as a requirement of the RFP, as this will now be provided to the provider as revisions are made to the standard contract, by the consultant review committee; and redefines preproposal meeting to allow the meeting to be held at the discretion of the district, regardless of the estimated contract fee. Section 9.36 clarifies the proposal evaluation summary. Section 9.37 clarifies the interview evaluation, specifies the number of firms contained in the short list summary, clarifies the duties delegated to the district consultant review committee, removes two criteria from the consultant approval team consideration, and allows more than one extension of the contract execution date. Section 9.38 clarifies criteria used to evaluate providers upon completion of the contract. Robert L. Wilson, Director of Design Division, has determined that for the first five years the amendments are in effect, there will not be fiscal implications for state or local government as a result of enforcing or administering the amendments. Mr. Wilson also has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the amendments. Mr. Wilson also has determined that for each year of the first five years the amendments are in effect, the public benefits anticipated as a result of enforcing the amendments will be to expedite the selection process and clarify and streamline procedures in accordance with the 1995-1999 Strategic Plan strategy to plan and design highway projects. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections, except there may be a decrease in cost to a provider for travel and lodging if the district determines that a preproposal meeting is not necessary. Pursuant to the Administrative Procedure Act, the Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed amendments. The public hearing will be held at 9:00 a.m. on Friday, February 23, 1996, in the first floor hearing room of the Dewitt C. Greer, State Highway Building, 125 East 11th Street, Austin, Texas, and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 8:30 a.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member where possible. Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc., for proper reference. Any suggestions or request for alternative language or other revisions in the proposed text should be submitted in written form. Presentations must remain pertinent to the issue being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lundgren, Director of the Public Information Office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the meeting so that appropriate arrangements can be made. Written comments on the proposal may be submitted to Robert L. Wilson, Director, Design Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of comments will be 5:00 p.m. on March 11, 1996. The amendments are proposed under Transportation Code, s201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation and Government Code, Chapter 2254, Subchapter A, the Professional Services Procurement Act, which sets forth requirements for selection and contracting of architectural and engineering services. The amendments do not affect other statutes, articles, or codes. sec.9.31. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Available personnel -The total number of personnel employed by the provider proposed to be used on the advertised contract
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [in all offices or branches, regardless of location or discipline] . [Child support statement-A signed, sworn statement, required by s14.52 of the Family Code, accompanying a proposal, affirming that a sole proprietor, partner, shareholder, or owner of the provider business entity is not 30 days or more delinquent in providing child support under a court order or a written repayment agreement.] Constructability-The ability of a project to be easily and accurately constructed from information presented in plans and specifications, and requiring few clarifications or revisions. Consultant approval team (CAT)-The district, division, or special office team
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [department,] that approves
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [receives provider recommendations from the DCRC through the CRC, and selects] the provider for the contract. Consultants review committee (CRC)-The department committee that oversees the provider review process [and reviews eligibility of providers]. Disadvantaged business enterprise (DBE)-As defined in 49 CFR s23.62
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [sec.23.5], a small business concern, certified by BOP, which is 51% owned by one or more minorities, women, or others that can prove social and economic disadvantages, or in the case of a publicly owned business, at least 51% of the stock is owned by one or more minorities, women, or others that can prove social and economic disadvantages, and whose management and daily business operations are controlled by one or more such individuals. Historically underutilized business (HUB)-Any business so certified by the General Services Commission
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [A corporation, sole proprietorship, partnership, or joint venture formed for the purpose of making a profit, certified by the General Services Commission, in which 51% of the company is owned by one or more persons who are socially disadvantaged because of their identification as a member of certain groups including Black Americans, Hispanic Americans, Women, Asian Pacific Americans, Asian Indian Americans, Native Americans, and have suffered the effects of discriminatory practices or similar insidious circumstances over which they have no control; and have a proportionate interest and demonstrate active participation in the control, operation, and management of the business affairs]. Preproposal meeting -A meeting held to answer questions regarding the contract and the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [to distribute] RFP [information]. sec.9.32. Provider Services Policy. Pursuant to Transportation Code, sec.223.041
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [Texas Civil Statutes, Article 6674g-1], it is the policy of the department regarding the regular use of private sector professional services for preliminary construction engineering and engineering design, to achieve a balance between the use of department employees and the use of private contractors, provided the costs are equivalent. In order to do so, the department may contract the following types of work: (1) preliminary engineering, design, plan work, specifications, and estimates; (2) construction engineering and inspection; (3)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [(2)] bridge inspection and scour analysis services; (4)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [(3)] environmental engineering, project observation, and inspection; (5)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(4)] architectural design, plan work, specifications, and estimates; (6)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(5)] architectural observation and inspection; and (7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(6)] other engineering or architectural services as defined in Government Code, Chapter 2254, Subchapter A. sec.9.33. Request for Proposals and Preproposal Meetings. (a) Notice. (1) Texas Register
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          and newspapers. The department will prepare a notice identifying a proposed contract and a due date for providers to send letters of interest
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [intent] to the department. The department will publish this notice in the Texas Register
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              and newspapers a minimum of ten days prior to the deadline for receiving the letter of interest
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [event]. The department will select newspapers based on general circulation to provide statewide distribution. (2) Electronic notice. The department will publish a notice containing the same information as the notices in the Texas Register
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  and newspapers on an electronic bulletin board a minimum of ten days prior to the deadline for receiving the letter of interest
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [event]. (3) Organizations. The department will publish a quarterly
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [monthly] statewide list of projected contracts for consulting engineering and architectural services and will furnish the list on a quarterly
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [monthly] basis to community, business, and professional organizations for dissemination to their membership. (b) Letter of interest
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [intent]. Within ten days of the publication of the notice concerning the contract, the provider shall send a letter of interest
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            [intent] to the department notifying the department of the provider's interest in submitting
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [intent to submit] a proposal. The department will accept a letter of interest
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [intent] by electronic facsimile. The department will notify the provider of the date for the preproposal meeting, if applicable, and send the provider a copy of the RFP. (c) Requests for proposals. An RFP will include the following proposal requirements: (1) -(6) (No change.) (7) a copy of the evaluation forms
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [matrices]; (8) (No change.) [(9) a child support statement form;] (9)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [(10)] a debarment certification form; (10)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [(11)] a lower tier debarment certification form; (11)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [(12)] a lobbying certification/disclosure form (if federally funded); and [(12) a copy of the proposed contract, with all attachments including, but not limited to, the DBE/HUB special provision; and] (12)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [(14)] any special contract requirements. (d) Preproposal meeting. The district may require a
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            preproposal meeting to provide
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [provides] an opportunity for the provider to seek clarification of questions concerning the contract. [The meeting is mandatory for contracts with an estimated fee over $250,000. The meeting is optional at the discretion of the district for contracts with an estimated fee less than or equal to $250,000.] If a preproposal meeting is required, the
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [The] department will not accept proposals from providers that did not have a representative at the preproposal meeting. sec.9.36. Interview. (a) Identification of providers for interview. The department will evaluate each proposal and prepare a proposal evaluation summary
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  [matrix] which totals the scores from the proposal evaluations. The DCRC will then choose a minimum of three providers to interview (provided that no less than three providers have submitted proposals) up to ten of those qualified from the highest ranking scores to interview based upon the number of proposals, qualifications, and score on the proposal evaluation scale. (b) (No change.) sec.9.37. Selection. (a) Evaluation criteria. (1) Factors considered. The CRC will establish weighting factors to be used statewide for the following factors that
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    DCRC will consider [the following factors] in its evaluation of the provider's interview: (A)-(C) (No change.) (2) (No change.) (b) Short list. (1) Short list summary. The department will prepare a short list summary which will include the DCRC's ranking of qualified providers, the name of the project managers, the names of any subproviders included on the team, and current dollar volume of the providers interviewed compared to the ratio of available personnel. [All those interviewed will be included, unless the department discovers that a provider has misrepresented information in the proposal.] (2) Selection. (A) The [CRC will review the] DCRC will
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      [recommendations to ensure compliance with state and federal laws, and department policies and procedures, and] forward the ranked
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        short list, proposals, and its recommendations to the CAT for approval. (B) The CRC will establish weighting factors to be used statewide for each of
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          [CAT will consider] the following factors that the CAT will consider
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            in selecting a provider: (i)-(iii) (No change.) [(iv) the project manager; [(v) the ability of the provider to commit resources;] and (iv)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              [(vi)] the DCRC ranking of qualified providers. (c) (No change.) (d) Negotiations. (1) (No change.) (2) Contract execution. The provider shall sign the contract 35 working days from the date of notification to the provider. The department may grant a
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                [one] 30-working day extension. An extension must be authorized before the expiration of the negotiation period or extension. (3)-(4) (No change.) sec.9.38. Contract Management. (a) DBE/HUB participation. (1) DBE/HUB program goals may be satisfied by the prime provider
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  . (2) (No change.) (b)-(f) (No change.) (g) Provider performance evaluations. Upon completion of the contract, the district, division, or special office
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    [The DCRC] will evaluate the provider's performance in the categories of cost administration, [engineering/architectural or services delivery] quality, timeliness
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      , and constructability
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        [conformance upon completion of the contract]. These performance evaluations may be used in determining the qualifications of the provider. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on January 31, 1996. TRD-9601345 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: March 11, 1996 For further information, please call: (512) 463-8630