ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 22. EXAMINING BOARDS Part III. Texas Board of Chiropractic Examiners Chapter 71. Application and Applicants The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.sec.71.1-71.3 and 71.5-71.12, concerning the application and examination process. Section 71.1 is adopted with changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10344). Sections 71.2, 71.3 and 71.5-71.12 are adopted without changes to the proposed text and will not be republished. These sections define terms used in the examination and application process as well as in the practice of chiropractic; establish who may apply; applicant qualifications; approved colleges; time, place and scope of examination; form for written examination; form for practical and theoretical examinations; grade requirements; reexamination procedures; disqualification to take examination; and, National Board Examination requirements. The sections also provide uniformity in the application process. Sections 4a, 10, 11(b), 11b and 12 of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding the application and examination processes to assure uniformity. Section 4a authorizes the Board to make rules consistent with this law as necessary to perform its duties. Section 10 requires the Board to adopt rules concerning reexamination. Section 11(b) and 11b authorize the Board to set fees for examinations. Section 12 requires the Board to adopt rules for the conduct of exams for applicants. Pursuant to this statutory authority these rules establish an application process to ensure an organized, fair, efficient, and easily understood method for qualified applicants successfully to obtain the license to practice chiropractic. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case and rules regarding internal operating procedures. Comments were received and a public hearing was held on December 29, 1995. Comments and the proceedings regarding sec.71.1 were considered in revising this rule. The Texas Osteopathic Medical Association (TOMA) commented only on sec.71.1. The Board has amended the rule in concurrence with TOMA comments, that the definition of the term was unnecessary, and agrees that the definition of practitioner in sec.71.1 should be omitted. TOMA stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." All comments submitted, including those not specifically referenced herein, were fully considered by the Board. 22 TAC sec.sec.71.1-71.3, 71.5-71.12 The repeals are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding application and examination processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603796 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new sections are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding application and examination processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. sec.71.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-An individual who applies to take the examination for licensure given by the board. Board-The Texas Board of Chiropractic Examiners. Board member-One of the decision-making body defined in this section as the board. Examinee-An individual who has been approved, admitted to, and/or has taken the examination given by the board. Executive Director-The Executive Director of the board. Licensee-An individual who has been granted a license to practice chiropractic by the Texas Board of Chiropractic Examiners and whose license is active and not under suspension. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603787 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 73. Licenses and Renewals The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.sec.73.1-73.5, concerning the licensure process, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10346). These sections establish procedures for recording and changing of licensees addresses; renewal of license; continuing education guidelines; inactive status for licensees; and, penalties and procedures for licensees who fail to meet continuing education requirements. Sections 4a, 8, 8a, 8b, 8d, 11(b) and 11b of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding license renewal, continuing education, inactive status and penalties for failure to meet set requirements. Section 4a authorizes the Board to make rules consistent with this law as necessary to perform its duties. Sections 8, 8a deal with annual renewal of the license. Section 8b(c) deals with mandatory continuing education. Section 8b(d) deals with assessing the participation and performance of licensees in continuing education programs. Section 8d concerns inactive status of a licensee. These rules outline and explain the procedures to be followed by the Board in implementing these various programs authorized by these sections of the statute. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comments were received on these rules at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673. " 22 TAC sec.sec.73.1-73.5 The repeals are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding the licensure process as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603795 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new sections are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding application and examination processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603786 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 74. Chiropractic Facilities The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.74.1, concerning registration of chiropractic facilities, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10348). This section establishes procedures for registering chiropractic facilities. Sections 4a and 12a of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding chiropractic facilities. Section 4a authorizes the Board to make rules consistent with this law as necessary to perform its duties. Section 12a requires the Board to adopt rules to license and regulate Chiropractic facilities. These rules provide the content for the requirements outlined in sub-sections 1, 2, and 3 of sec.12a. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comments were received on this rule at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673. " 22 TAC sec.74.1 The repeal is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding registration of chiropractic facilities as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603794 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new section is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding application and examination processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603785 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 75. Rules of Practice The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.sec.75.1, 75.5-75.10, concerning rules of practice. Section 75.9 is adopted with changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10349). Sections 75.1, 75. 5-75.8, and 75.10 are adopted without changes and will not be republished. These sections establish rules of practice concerning unprofessional conduct; witness fees; failure to respond to Board inquiries; fees; public interest information; complaint procedures; and, administrative fines and penalties. Sections 4a, 4b, 4d(b), 14(a), 14a, 14c, 14d, 14e and 19 of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding rules of practice which includes unprofessional conduct; witness fees; failure to respond to Board inquiries; fees; public interest information; complaint procedures; and administrative fines and penalties. Section 4a authorizes the Board to make rules consistent with this law as necessary to perform its duties. Section 4b authorizes the issuance of subpoena, administration of oaths, and the taking of testimony. Section 4d(b) concerns a written plan for non-English speaking individuals. Sections 14, 14a deal with disciplinary authority of the Board. Section 14c deals with the Enforcement Committee of the Board. Section 14d deals with enforcement proceedings. Section 14e concerns administrative penalties. These rules assure uniformity, proper disposition of complaints and record keeping to comply with the requirements for establishing the systems, programs, procedures mandated by the statute for these subjects. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case and rules regarding internal operating procedures. A public hearing was held on December 29, 1995. No oral comments were received regarding these rules, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." The Board amended sec.75.9 after discussion was presented by the Office of the Attorney General at the January 12, 1996 Board meeting. Section 75.9(e) is amended deleting any reference to the application procedure. This amendment is made to avert confusion in discussion of the separate procedures of application and complaint processing. All other sections were adopted as presented. 22 TAC sec.sec.75.1, 75.5-75.10 The repeals are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding rules of practice as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603793 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new sections are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding rules of practice as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. sec.75.9. Complaint Procedures. (a) Filing Complaints. Complaints may be filed with the agency in person at the board's office, or in any written form, including submission of a completed complaint form. The board adopts the following form in both English and Spanish as its official complaint form which shall be maintained at the board's office for use at the request of any complainant. Figure 1: 22 TAC sec.75.9(a) Figure 2: 22 TAC sec.75.9(a) At a minimum, all complaints shall contain information necessary for the proper processing of the complaint by the board, including, but not limited to: (1) Complainant's name, address and phone number; (2) Name, address and phone number of the chiropractor, chiropractic facility or other person, firm or corporation, if known; (3) date, time and place of occurrence of alleged violation; and (4) complete description of incident giving rise to the complaint. (b) Complaint Investigation and Disposition (1) All complaints received shall be sent to the Texas Board of Chiropractic Examiners. The board shall distinguish between categories of complaints as follows: (A) Consumer and patient complaints against chiropractors or chiropractic facilities regarding alleged violations of the Texas Chiropractic Act, duly promulgated rules or orders; (B) alleged unauthorized practice of chiropractic by unlicensed individuals, or by a licensee while a suspension order or restrictive sanction by the board is in effect; (C) licensure or reinstatement applications; (D) alleged advertising violations by chiropractors or chiropractic facilities, persons, or firms. (2) A complaint shall not be dismissed without appropriate consideration. The board and complainant shall be advised of complaint dismissals. (c) Enforcement Committee. (1) The President shall appoint a committee as statutorily constituted to consider all complaints filed with the board. The committee shall be known as the Enforcement Committee. The Executive Director under the direction of the Enforcement Chairperson shall supervise all investigations. (2) Copies of the complaint and the respondents' response shall be sent to the members of the enforcement committee. The Enforcement Committee shall have the power to issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, and documents, to issue commissions to take depositions, to administer oaths and to take testimony concerning all matters within the assigned jurisdiction. (3) On receipt of a complaint, the members of the Enforcement Committee shall determine the disposition of the case using procedures approved by the board. (4) Informal conferences shall be conducted by the Enforcement Committee as statutorily established. The licensee and/or the licensee's authorized representative should attend the informal conference and will be provided an opportunity to be heard. (5) In any case where charges are based upon information provided by a person who filed a complaint with the board (complainant), the complainant may attend the informal conference, and shall be provided with an opportunity to be heard with regard to charges based upon the information provided. Nothing herein requires a complainant to attend an informal conference. (6) Informal conferences shall not be deemed to be meetings of the board and no formal record of the proceedings at the conferences shall be made or maintained. (7) Any proposed order shall be presented to the board for its review. At the conclusion of its review, the board shall approve, amend, or disapprove the proposed order. Should the Board approve the proposed order, the appropriate notation shall be made in the minutes of the board and the proposed order shall be entered as an official action of the board. Should the board amend the proposed order, the executive director shall contact the respondent to seek concurrence. If the respondent does not concur, the provisions of the next sentence shall apply. Should the board disapprove the proposed order, the case shall be rescheduled for purposes of reaching an agreed order, or in the alternative forwarded to the State Office of Administrative Hearings for formal action. (d) Formal Disposition of a Contested Case. All contested cases not resolved by informal conference, shall be referred to the State Office of Administrative Hearings. (1) Notice. The respondent shall be entitled to reasonable notice of not less than ten days. Notice shall include the matters specifically required by the Administrative Procedures Act (APA), Chapter 2001 Government Code, to wit: (A) a statement of the time, place, and nature of the hearing; (B) a statement of the legal authority and jurisdiction under which the hearing is being held; (C) a reference to the particular sections of the Act and rules involved; and, (D) a short and plain statement of the matters asserted. (2) Notice of Service. The notice of hearing and a copy of the formal complaint shall be served on the respondent's last known address at least ten days prior to the hearing. Service on the respondent shall be complete and effective if the document to be served is sent by registered or certified mail and by regular mail to the respondent at the address shown on the respondent's annual renewal certificate. (3) Filing of documents. All pleadings and motions relating to any contested case pending before the State Office of Administrative Hearings shall be filed with the State Office of Administrative Hearings. They shall be deemed filed only when actually received. (4) Motion for Continuance. Continuances may be granted by the State Office of Administrative Hearings in accordance with procedural rules established by that agency. (5) Transcription. Proceedings, all or any part of them, must be transcribed on the written request of any party. The agency may pay the cost of the transcript or assess the cost to one or more parties. (6) Discovery. Requests for the issuance of subpoenas, requests for depositions and for production of documents, and other discovery matters shall be governed by the APA. (e) Probation. (1) The Board shall have the right and may, upon majority vote, rule that an order canceling, suspending, or revoking any license be probated so long as the probated practitioner conforms to such orders and rules as the board may set out in the terms of the probation. The board, at the time of its decision to probate the practitioner, shall set out the period of time of its decision to probate the practitioner, shall set out the period of time which shall constitute the probationary period; provided, however, that the board may at any time while the practitioner remains on probation upon majority vote rescind the probation and enforce the board's original action suspending or revoking such license for violation of the terms of the probation or for other good cause as the board in its discretion may determine. To rescind the probation shall require a formal disciplinary hearing and be conducted as a contested case within the meaning of the APA. (2) The Texas Board of Chiropractic Examiners shall maintain a chronological and alphabetical listing of licensees who have had their license canceled, suspended, or revoked, and shall monitor each consent order in respect to each license holder's specific sanction. Any noncompliance observed as a result of monitoring shall be referred to the board. (f) Reinstatement. Any practitioner whose license to practice has been revoked for a period of more than one year may, after the expiration of at least one year from the date that such revocation became final, apply to the board, on forms provided by the board, to have the revocation order withdrawn and to have the board reinstate a license to practice chiropractic. In considering the reinstatement of a revoked license, the board in its discretion may: (1) deny reinstatement of a revoked license; (2) reinstate a revoked license and probate the practitioner for a specified period of time under specified conditions; or (3) authorize reinstatement of the revoked license. (g) The Enforcement Committee or a two-thirds vote of the Board may temporarily suspend a license to practice chiropractic in the State of Texas if evidence presented clearly indicates that continued practice constitutes a continued or imminent threat to the public welfare. (1) Such suspension may occur without notice or hearing at such time as: (A) a disciplinary proceeding is scheduled not later than the 14th day after the date of suspension. (B) A second hearing shall be held not later than the 60th day after the date the suspension was ordered. If the second hearing is not held in the time required, the license is reinstated. (2) The licensee will be notified of actions taken against his license by certified mail. (3) The licensee may present information at the hearing which gives the committee or Board appropriate information to continue or disregard the suspension. (4) The license will remain suspended until such time as the committee shall take further disciplinary action. (5) The licensee will not practice chiropractic during the duration of the suspension. (6) During the suspension the enforcement and investigatory processes will continue. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603784 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 76. Investigations The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.sec.76.1 and 76.3-76.7, concerning the investigation process, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10352). These sections establish definition of investigation terms; procedures for furnishing records; initiation of investigations; undercover investigations; reports; and, licensure suspension with regard to criminal convictions. Sections 4a, 14a and 14c of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize and require the Board to establish rules regarding conduct of investigations. These rules meet the statutory requirement by providing the procedures to be followed by the Board in investigating complaints against licensees. Section 14c(2) provides for adoption of rules concerning the investigation of complaints. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comment was made at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." 22 TAC sec.sec.76.1, 76.3-76.7 The repeals are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding investigation processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603792 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new sections are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding application and examination processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603783 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 77. Advertising and Public Communication The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.sec.77.1-77.3, concerning advertising and public communication, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10354). These sections establish definitions and rules about advertising and public communication. Sections 4a and 17b of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding false advertising, or deceptive practices by licensees. These rules prohibit false, or misleading actions or ads in order to protect the public from deception in advertising or otherwise by unscrupulous licensees. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comment was made at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." 22 TAC sec.sec.77.1-77.3 The repeals are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding advertising and public communication as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603791 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new sections are adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding application and examination processes as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603782 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 78. Chiropractic Radiologic Technologists The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.78.1, concerning registration of chiropractic Radiologic Technologists, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10355). This section establishes procedures for the registration of chiropractic Radiologic Technologists. Sections 4a and 14b of the Chiropractic Act, Article 4512b and Article 4512m, Medical Radiologic Technologist Certification Act, Section 2.08(b) (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding registration of chiropractic Radiologic Technologists. These rules outline the procedures for registering with this agency if a licensee performs radiologic procedures. The rules determine the procedure for paying fees to be assessed for registration, the grounds for disciplining those registered, and the amount of training required. These rules are established to meet the requirements of Article 4512m, the Medical Radiologic Technologist Certification Act, and to insure that those who perform these services are properly trained and regulated. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comment was made at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." 22 TAC sec.78.1 The repeal is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding registration of chiropractic Radiologic Technologists as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act and Section 2.05(a)(f) , Article 4512m, the Medical Radiologic Technologist Certification Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603790 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new section is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding registration of chiropractic Radiologic Technologists as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603781 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 79. Provisional Licensure The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.79.1, concerning the Provisional Licensure process, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10356). This section establishes requirements for and procedures for the application and granting of a provisional license. Sections 4a, 9, 10, 11(b) and 11b of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) authorize the Board to establish rules regarding Provisional Licensure. Section 4a authorizes the Board to make rules consistent with this law as necessary to perform its duties. Section 9 deals with provisional licenses. Section 10 concerns exams which provisional license holders must pass to obtain a license. Sections 11(b) and 11b authorize the Board to establish fees. These rules meet the statutory mandate by establishing the procedures to be followed in pursuing a provisional license. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comment was made at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." 22 TAC sec.79.1 The repeal is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding Provisional Licensure as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603789 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 The new section is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding Provisional Licensure as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603779 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 80. Practice of Chiropractic The Texas Board of Chiropractic Examiners simultaneously repeals and adopts new sec.80.1, concerning miscellaneous items, without changes to the proposed text as published in the December 8, 1995, issue of the Texas Register (20 TexReg 10357). This section establishes procedures for delegation of authority by doctors of chiropractic to assistants. Sections 4a and 6 of the Chiropractic Act, Article 4512b (Vernon's Annotated Civil Statutes) require the Board to adopt rules to establish guidelines regarding delegation to assistants. This rules meets this statutory requirement by establishing guidelines for a doctor of chiropractic to follow in delegating tasks and procedures to an assistant. Section 24a of the Act requires that any rule adopted or proposed for adoption by the Texas Board of Chiropractic Examiners on or after September 1, 1994 must be reviewed and amended in conformance with the Act except for rules pertaining to procedures for conduct of a contested case or rules regarding internal operating procedures. No comment was made at the public hearing conducted on December 29, 1995, however, the Texas Osteopathic Medical Association (TOMA) stated in written comment format that "in general, the proposed rules are well written and seem to follow the intent as written and passed in Senate Bill 673." 22 TAC sec.80.1 The repeal is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding delegation of authority as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603788 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Chapter 80. Miscellaneous 278>22 TAC 80.1 The new section is adopted under Texas Civil Statutes, the Chiropractic Act of 1995, Senate Bill 673, 74th Legislature, Regular Session 1995, which require that the Board promulgate rules regarding delegation of authority as well as requiring the Board to review and amend rules as set forth in Section 24 of the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's authority. Issued in Austin, Texas, on March 18, 1996. TRD-9603780 Patte B. Kent Executive Director Texas Board of Chiropractic Examiners Effective date: April 8, 1996 Proposal publication date: December 8, 1995 For further information, please call: (512) 305-6700 Part XXI. Texas State Board of Examiners of Psychlogists Chapter 463. Applications 22 TAC 463.32 The Texas State Board of Examiners of Psychologists adopts new sec.463.32, concerning Licensed Specialist in School Psychology, with changes to the proposed text as published in the February 9, 1996, issue of the Texas Register (21 TexReg 931). The rule is being adopted to define what an individual must do to obtain a license as a specialist in school psychology, to set forth training and examination requirements for applicants for this license, to define what individuals are eligible for grandparenting into the license and how temporary licenses can be obtained to provide psychological services in the public schools. The new rule will 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. Comments were received from the Southwest Texas State Department of Psychological Services, the Texas Association of School Psychologists, the Texas Association of Psychological Associates and the Bastrop Special Education Cooperative. The comments received from these groups were favorable to the rule and recommended its adoption by the Board. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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) socio-emotional, including 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 1200 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, or 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 paragraphs (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 is 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 the Psychologists' Certification and Licensing Act, sec.26, 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 individuals who hold 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 20, 1996. TRD-9603886 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: April 10, 1996 Proposal Publication date: February 9, 1996 For further information, please call: (512) 305-7700 Chapter 465. Rules of Practice 22 TAC 465.38 The Texas State Board of Examiners of Psychologists adopts new sec.465.38, concerning Psychological Services in the Schools, with changes to the proposed text as published in the February 9, 1996, issue of the Texas Register (21 TexReg 932). The rule is being adopted to define the type and scope of practice permitted by individuals who provide psychological services in the public schools 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. The new rule will 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. A total of 12 comments were received regarding adoption of the new rule. Six of the comments were received at a public hearing on the rule held February 9, 1996 and six were submitted to the Board in writing. The following comments were received regarding sec.465.38. Representatives from the Southwest Texas State Department of Psychological Services, Texas Association of School Psychologists, the Texas Association of Psychological Associates and the Bastrop Special Education Cooperative commented favorably on the rule and recommended its adoption by the Board. Comment: A representative of Windham School District opposed the requirement of mandatory supervision required for newly licensed LSSP's which is set forth at sec.465.38(3). Response: The enabling statute requires the Board to adopt rules in conformity with national standards. All national standards on school psychology require supervision of newly licensed providers of school psychological services. Comment: Representatives from the School Psychology Division of the American Psychological Association, the Texas Psychological Association and Houston Independent School District opposed the fact that under sec.465.38(2)(b) , licensed psychologists with a doctoral specialty in school psychology must obtain an LSSP to practice in the schools. Response: The Board was informed by the Education Committee that the intent of the enabling statute was to make the LSSP the only credential under which an individual can legally practice school psychology in the public schools. Comment: Representatives from the American Psychological Association Accredited Doctoral School Psychology Programs in Texas voiced concern that sec.465.38 does not accurately reflect emerging models for the present and future in school psychology. Response: The Board's mission is to protect the public by ensuring that psychological services are provided to the people of Texas by qualified and competent practitioners who adhere to established professional standards. The Board feels that sec.465.38 accomplishes this purpose in an orderly, consistent scheme. The Board is mindful of the necessity to keep abreast of changes in the field and does its best to update its standards whenever necessary. Comment: A representative of South Texas School Psychology Network felt that the language of sec.465.38(2) is vague as to intent. Response: The Board feels that the language in this section places the practitioner on adequate notice that all services rendered must be within the competency of the practitioner. The new rule is adopted under Texas Civil Statutes, 4512c, which provide the Texas State Board of Examiners of Psychologists with the authority to promulgate rules consistent with the Statute. 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. (A) The specialist in school psychology license permits the licensee to provide school psychological services in the public schools of this state. (B) 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, including the assessment of emotional or behavioral disturbance, for educational purposes, using psychological techniques and procedures. (C) 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 Licensed Specialist in School Psychology) and individuals holding a temporary license issued by this Board to provide such services under 463.32 of this title (relating to Licensed 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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 20, 1996. TRD-9603885 Rebecca E. Forkner Executive Director Texas State Board of Examiners of Psychologists Effective date: April 10, 1996 Proposal Publication date: February 9, 1996 For further information, please call: (512) 305-7700 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter 330. Municipal Solid Waste The Texas Natural Resource Conservation Commission (commission or TNRCC) adopts new sec.sec.330.970-330.976 and sec. sec.330.980-330.989, relating to Grants Pertaining to the Collection, Reuse, and Recycling of Used Oil and Waste Tire Recycling and Energy Recovery Grants, respectively. New sec.sec.330.973, 330.975, 330.976, and 330.983-330.989 are adopted with changes to the proposed text as published in the November 17, 1995, issue of the Texas Register (20 TexReg 9541). New sec.sec.330.970-330.972, 330.974 and 330.980-330.982 are adopted without changes and will not be republished. The adopted rules, in two new subchapters, implement three types of grant programs directed by provisions in Senate Bill (SB)1683 and SB 776 enacted by the 74th Legislature, 1995. Subchapter U pertains to grants for the collection, reuse and recycling of household do-it-yourselfer used oil. The grants are to be provided from the Used Oil Recycling Fund which is funded primarily by fees collected on the first sale of automotive oil. Subchapter V pertains to grants for entities which construct facilities for recycling scrap tires into useful products and for entities that retrofit energy recovery facilities to enable utilization of shredded tires or whole tires as fuel. The grants are to be provided from the Waste Tire Recycling Fund which is funded primarily by fees collected on the sale of new and good used tires. The commission has prepared a Takings Impact Assessment for these rules pursuant to Texas Government Code Annotated Section 2007.043. The following is a summary of that Assessment. The specific purpose of the rule is to implement the provisions in SB 1683, 74th Legislature, which expanded the used oil recycling grants program, and to implement the provisions in SB 776, 74th Legislature, which established grant programs for construction of waste tire recycling facilities and retrofitting of waste tire energy recovery facilities. The rules will substantially advance this specific purpose by delineating eligible grant- supported activities, eligible applicants, the manner in which grant announcements will be made, and how grant recipients will be selected. In addition, the waste tire recycling grant rules cover additional grant-related requirements for construction of waste tire recycling facilities and for retrofitting of waste tire energy recovery facilities. Promulgation and enforcement of these rules will not adversely affect private real property and cannot result in a "taking" because the rules relate only to the processes for awarding grants for activities involving the recycling of used oil and waste tires, and for delineating eligible grant-supported activities, eligible applicants, and responsibilities of grant recipients. The commission received comments concerning the waste tire grant rules from the following: Aluminum Company of America; GreenMan Technologies, Inc.; Lone Star Chapter of the Sierra Club; North Texas Cement Company; World Tire Recycling, Inc.; Downwinders At Risk (Midlothian, Texas); and Wimberley SAFE. The definition of the used oil grant program advisory committee as proposed in sec.330.973 did not include a list of the duties of the committee pursuant to Texas Health and Safety Code, sec.371.023(c). The commission believes that the definition should include the committee's statutory duties in the rule and has included such language. The proposed rules in sec.sec.330.973-330.976 provided for the use of a Request For Proposal (RFP) as a method of announcing grant funds, selecting grant recipients and awarding assistance grants for the used oil program. However, the commission believes that there will be a sufficient amount of funds to allow the TNRCC to accept Requests For Applications (RFA) and award the grants on a first- come, first-served basis. Therefore, the RFP option has been deleted. Comments were received from the Downwinders at Risk and the Lone Star Chapter of the Sierra Club (the Sierra Club) in objection to authorization of existing energy recovery facilities to utilize tires as fuel. They stated that the tires would simply be shifted from the ground to the air, since those facilities were not designed to use scrap tires as fuel. They argued that the rules should require cement kilns to have the same (air) emission standards as hazardous waste (incinerator) facilities. The proposed rules only implement the grant programs mandated by legislation. The rules under consideration do not pertain to a specific facility or to air emission requirements for incinerators. Therefore, no change to the rule under consideration is being made in response to the comments. The Downwinders at Risk and the Sierra Club expressed concern that existing energy recovery facilities, like cement kilns, were not designed to utilize tires as fuel and that, therefore, these facilities should be upgraded with pollution control equipment which would prevent them from polluting the air. The Sierra Club, referencing sec.330.984(c), stated that purchase of air pollution abatement equipment and air pollution control monitoring systems should be added to the list of items eligible for grant payments. Wimberley SAFE, in comments at the public hearing, expressed similar views as these two other commenters. The commission agrees that pollution control equipment purchase and installation should be expenses for which retrofit grant funds should be eligible, if such equipment is required by the commission to enable an existing energy recovery facility to utilize scrap tires as fuel. Appropriate language has been added to sec.330.984(c). The Sierra Club, referencing sec.330.984(d)(5), argued that incineration is not recycling and requested that grant funds not be used to build waste disposal facilities or facility improvements where the use involves incineration of whole or chipped tires. The provisions of SB 776 clearly provide grants for waste tire energy recovery facilities. Section 330.984 (d) (5) specifically excludes from grant eligibility any costs to construct waste disposal facilities or improvements thereto, among other costs. The commission is therefore distinguishing costs associated with energy recovery from whole or shredded tires from mere disposal costs. The provisions are simply implementing SB 776; no changes to the provision are made. GreenMan Technologies (Green Man) described the desire to build a recycling and manufacturing facility in Texas. Concern was expressed that sec.330.986(c) (1) would disqualify a company from receiving a construction grant, if that company made powdered rubber. The exclusion of facilities that manufacture powdered rubber from the construction grant program is a direct quote from the enabling legislation and cannot be deleted. Aluminum Corporation of America (Alcoa) and North Texas Cement Company commented that sec.330.984(a)(1) and sec.330.985(b)(3) are not consistent with legislative intent to establish new tire recycling markets, since they allow reimbursement of recycling facility construction costs that occurred prior to the time that the legislation went into effect (September 1, 1995). The commission believes that the rules as drafted are, in fact, consistent with legislative intent which anticipates that some grant recipients will begin building or retrofitting prior to grant money being provided. Creation of new recycling markets at the expense of existing recycling markets does not necessarily increase the markets available. Furthermore, it is the intent of the commission to provide, to the greatest extent practicable, a level playing field for all grant applicants. It should be noted that the RFP process will take into consideration a variety of factors and will rank applicants accordingly, which will serve to create a fair evaluation process. Applicants may receive only a portion of or none of the funds requested, with the goal of any distribution to be supporting the continuation and development of recycling markets. Accordingly, the commission has made no changes in response to the comments. Regarding sec.330.984(c), The Downwinders at Risk and the Sierra Club recommended that waste tire energy recovery grants for whole or scrap tire users include funding for continuous emission stack monitors to include total hydrocarbons (THC), carbon monoxide, and opacity. The Sierra Club also recommended that grants be allowed to be used for air pollution abatement equipment. Alcoa and North Texas Cement Company requested that permitting and testing costs and fees be added to the list of activities which are eligible for reimbursement under energy recovery retrofitting grants, pointing to the mention of those activities as having been in the expression of legislative intent (House Journal, May 28, 1995, page 4475). In response to the comment recommending funding for continuous emissions monitors for THC, carbon monoxide and opacity, it should be noted that these rules are designed to implement the tire grant program and cannot set permitting standards. The commission has added language to include capital costs and costs for purchase of both continuous emissions monitoring equipment and air pollution abatement equipment as eligible expenses, if installation of such equipment is required by the commission to enable an existing energy recovery facility to utilize scrap tires as fuel. In response to the two comments requesting the addition of permitting, testing and fees as eligible expenses for energy recovery facilities the commission has included those expenses as eligible for reimbursement under sec.330.984(c). However, given the limited funds available, applicants may receive only a portion of, or none of, the funds requested. In order to clarify the difference between energy recovery and recycling facility eligible costs, the commission has added a new sec.330.984(d) and renumbered the originally-proposed sec.330.984(d) as sec.330.994(e). Referring to sec.330.984(d)(1), Alcoa requested that the TNRCC authorize reimbursement for retrofitted facility operation, repair, and maintenance, as well as reimbursement for the cost of the shredded tires used as supplemental fuel. Neither the statutory language nor the Statement of Legislative Intent contemplate funding of ongoing operations and maintenance. Furthermore, should a facility utilize tires shredded and reimbursed through the Waste Tire Recycling Fund, payment for such fuel would result in double payment by the State. In accordance with the intent to make eligible those costs necessary to retrofit and enable a facility to utilize tires as fuel, the commission believes that it is appropriate to retain this provision as proposed. Alcoa requested that sec.330.984(d)(7) be amended to make costs of waste material generated as a result of testing and retrofitting activities eligible costs under the grant program. The commission has determined that waste disposal costs are not eligible costs under the grant program and sees no reason to differentiate between waste materials generated on a daily and long-term basis from waste materials resulting from testing processes. Therefore, the commission has not made a change in response to the request. Regarding sec.330.986, Alcoa requested that the rule include requirements that grant applicants for recycling facility construction grants be required to show in their application that they manufacture a recycled product(s), that there is an identified end use for the product(s), and that the tires from which the product is made originated in Texas. The commission concurs that those requirements should be included in the rule and has included language to implement the suggestions. Both Alcoa and North Texas Cement Company commented that sec.330.987(c) [also applicable to sec.sec.330.986(e) and 330.988(c)] should be changed to recognize that a facility may not have access to tires from the Priority Enforcement List (PEL) if the TNRCC is handling PEL sites under contract. The commission observes that this requirement is only triggered when the total number of used or scrap tires or tire pieces contained in PEL sites is above 2. 5 million. Pursuant to sec.361.477 of the Health and Safety Code, when the total number of used or scrap tires or tire pieces contained in PEL sites is below 2.5 million the commission may elect to enter into contracts for the removal and shredding of such tires. A related comment from Alcoa stated that the provision establishes an arbitrary number of tires to be managed by a grant recipient, regardless of the total number of PEL tires available to all grant recipients. North Texas Cement Company also commented that the provision arbitrarily requires a grant recipient to process the scrap tire at his facility regardless of whether the facility can physically use PEL tires as a raw material. The provision(s) of concern is directly from SB 776, and applies to the grant programs. However, the commission has changed the provision(s) to be permissive rather than mandatory. Alcoa, in reference to sec.330.987(e), commented that the TNRCC should remove the prohibition against an entity receiving both a grant and a reimbursement. This prohibition originates in SB 776. However, wording of the rule can better clarify the intent of SB 776. Accordingly, the provision has been amended. Regarding proposed sec.330.989, Alcoa commented that proposed wording does not allow the TNRCC to utilize both a Request for Proposals and a Request for Applications for the same grant program. World Tire Recycling, Inc., suggested that the option to announce the opportunity to submit grant proposals be only in a Request for Proposals process, and that the Request for Applications option be eliminated. In a related comment, World Tire Recycling expressed support for ensuring that potential applicants have full knowledge of the rules and guidelines in the RFP process. In reviewing these suggestions, the commission has first determined that, for purposes of clarification and ease of implementation, a single method should be specified. Accordingly, the commission concurs with the suggestion of World Tire Recycling, Inc., and has changed the provision to implement the suggestion that only the RFP process be used. Furthermore, in the interest of assuring that all potential applicants have full knowledge of the basis of proposal evaluation and award, the commission has amended sec.330.989 to include proposal selection criteria. A comment from Alcoa asserted that sec.330.985(a) arbitrarily limited entities to receipt of only one grant per year and suggested that such limitation be removed from the final rule. While the commission does not agree that one facility should be eligible for multiple grant awards in any one fiscal year, the commission does believe that funding grant proposals of separate facilities is consistent with the legislative intent of promoting recycling, regardless of whether such separate facilities are owned by the same entity. As the RFP process is designed to fairly evaluate all grant proposals on a competitive basis, the commission believes that each facility's proposal will stand on its own. The commission has amended sec.330.985(a) to reflect this determination. Some proposed rules used the term "Registered Waste Tire Energy Recovery Facility", to reference the type of entity being discussed. Since, under the rule and SB 776, facilities eligible for retrofitting grants must be existing, must never have burned tires before, and must retrofit after September 1, 1995, then those entities would not necessarily be registered waste tire energy recovery facilities. The commission intends that the facility reference, as used, be consistent with the same facility reference defined and used in SB 776. Therefore, the term "waste tire energy recovery facility" will be used. Proposed sec.330.985(c)(2), required applicants to already have a permit or registration authorizing use of either whole or shredded scrap tires as a fuel. Because the permitting process may be either delayed or lengthy, and not all potential applicants have completed the permit application or application amendment process, the commission has amended the wording of this section to allow those entities that have either received the necessary permit or have submitted an appropriate and administratively and technically complete permit application to TNRCC, at the time a grant proposal is submitted, to qualify as applicants. As proposed, sec.330.976(d) and sec.330.989(d), required appropriate shell contracts to be available for review by applicants at the time of RFP or RFA publication. The commission believes that a more flexible RFP and RFA process would enable the TNRCC to better provide timely service to grant applicants by allowing certain administrative matters to parallel RFP and RFA publications, rather than risk delaying them. Therefore, the provision has been amended to delete the requirement that the draft or shell contract be available before the RFP or RFA is published. Subchapter U. Grants Pertaining to the Collection, Reuse, and Recycling of Used Oil 30 TAC sec.sec.330.970-330.976 The new sections are adopted under Texas Water Code, sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under the code and other laws of the State of Texas, and to establish and approve all general policy of the commission; and under the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.024, which gives the commission the authority to regulate solid and hazardous wastes and to adopt and promulgate rules consistent with the general intent and purposes of the Act. The new sections implement Health and Safety Code, Chapter 371, sec.371.023; and Chapter 361, sec.sec.361.471-361.499. sec.330.973. Definitions of Terms and Abbreviations. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Advisory committee -A committee established in accordance with the Health and Safety Code, sec.371. 023(c), for the purpose of assisting the commission in carrying out an effective used oil recycling grant program. The advisory committee shall: (A) recommend criteria for grants; (B) establish guidelines for allowable administrative expenses; and (C) recommend grant recipients to the commission based on the used oil collection, reuse and recycling needs of this state. Container-A portable device in which a material is stored, transported, treated, disposed of, or otherwise handled. DIY-Do-it-yourselfer. Do-it-yourselfer used oil collection center-A site or facility that accepts or aggregates and stores used oil collected only from household do-it- yourselfers. A registered do-it-yourselfer used oil collection center that is also a used oil generator may commingle household do-it-yourselfer used oil with the used oil it generates. Household do-it-yourselfer used oil-Oil that is derived from a household, including used oil generated by an individual through the maintenance of the individual's personal vehicle or equipment. Local government -A county, incorporated city or town, or any political subdivision of the state which has jurisdiction over two or more counties or parts of two or more counties, and which has been granted the power by the legislature to regulate solid waste handling or disposal practices or activities within its jurisdiction in accordance with the Health and Safety Code, sec.361.165. Private entity -Any business or private organization, including nonprofit organizations, involved in, or desiring to become involved in for the purpose of supporting, used oil collection, reuse and recycling, as may be further determined or described from time to time by the Advisory Committee and subsequently defined in commission-released RFAs. RFA-Request for Applications. Used oil collection center-A site or facility that is registered by the commission to manage used oil and accepts, aggregates, or stores used oil collected from: (A) used oil generators regulated under 40 CFR Part 279, Subpart C, who transport used oil to the used oil collection center in shipments of not more that 55 gallons under 40 CFR Section 279.24; or (B) household do-it-yourselfers. sec.330.975. Eligible Applicants. (a) Only those local governments and private entities that encourage, and formally commit to utilizing all received grant funds for the collection, reuse and, recycling of household do-it-yourselfer used oil shall be eligible to apply for or receive a grant under this subchapter. (b) Eligible local governments and private entities desiring to receive an assistance grant under this subchapter shall submit, within the time frames announced by the commission pursuant to sec.330.976 of this title (relating to Grant Announcements and Recipient Selection), formal project applications utilizing the forms and following the instructions and procedures provided by the commission for such purposes. (c) Recipient selection for any grant or other assistance offered by the commission under this subchapter shall be solely based on the merit of the applications and their compliance with the criteria established by the advisory committee and set forth in the appropriate Request for Applications. sec.330.976. Grant Announcement and Recipient Selection. (a) The commission shall announce grant funds, select grant recipients, and award assistance grants under this subchapter utilizing a Request for Applications (RFA) . Under the RFA process, the commission will: (1) publish a formal notice in the Texas Register advising eligible applicants that the commission is accepting grant applications for household do- it-yourselfer used oil collection, reuse and recycling projects, and that the commission will make grant awards, on a first-come, first-served basis, to those entities whose applications and proposed projects meet certain RFA-specified minimum requirements; (2) make available, upon request, application forms and instructions, together with the specific RFA document that sets forth the established minimum requirements and criteria for application acceptance and award of the grant; (3) accept and process applications, on a first-come, first-served basis; and (4) providing budgeted funds remain available, award grants to those local governments and/or private entities whose applications meet the minimum standards and criteria set forth in the RFA. (b) All grant applications will be reviewed and processed by the commission's staff to ensure compliance with the requirements of this subchapter, the appropriate RFA, and applicable requirements of Health and Safety Code, Chapter 371. The applications shall also be reviewed and considered by the advisory committee whose statutory duties include recommending grant recipients to the commission based on the used oil collection needs of the state and/or by other public agencies or organizations who have specific responsibilities to review, comment on, or coordinate the selection and/or awarding of state grants. (c) Applicants selected to receive used oil collection, reuse and recycling assistance grants, or other used oil recycling program support under this subchapter, may be required, depending on the specific RFA, to enter into a written contract with the commission as a condition to receiving a grant. The contracts will indicate the amount and type of grant, establish time frames and/or deadlines for completing grant-supported activities and for expending grant-provided funds, describe reporting requirements and payment procedures, and contain standard contract conditions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 20, 1996. TRD-9603875 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 10, 1996 Proposal publication date: November 17, 1995 For further information, please call: (512) 239-4640 Subchapter V. Waste Tire Recycling and Energy Recovery Grants 30 TAC sec.sec.330.980-330.989 The new sections are adopted under Texas Water Code, sec.5.103, which provides the commission with the authority to adopt any rules necessary to carry out its powers and duties under the code and other laws of the State of Texas, and to establish and approve all general policy of the commission; and under the Texas Solid Waste Disposal Act (the Act), Texas Health and Safety Code, sec.361.024, which gives the commission the authority to regulate solid and hazardous wastes and to adopt and promulgate rules consistent with the general intent and purposes of the Act. sec.330.983. Definitions of Terms and Abbreviations. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. RFP-Request for Proposals. Waste tire energy recovery facility-A facility at which whole used or scrap tires or shredded tires are used as a fuel, including: (A) cement kilns; (B) utility boilers; (C) pulp and paper mills; (D) cogeneration facilities; or (E) other facilities designated by the commission. Waste tire facility -A facility registered by the commission under the Health and Safety Code, sec.361.477, at which scrap tires are collected and shredded to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery and are stored in a waste tire storage facility or a facility that recycles, reuses, or recovers the energy from the shredded tire pieces. sec.330.984. Eligible Grant -Supported Activities. (a) Grants under this subchapter may be made for the following activities: (1) construction of recycling facilities initiated after January 1, 1994, (including ordering of equipment) that beneficially recycle either whole waste tires or shredded tires; (2) retrofitting carried out after September 1, 1995 by the owner or operator of a registered waste tire energy recovery facility, necessary to enable such facility to use tire shreds as fuel; or (3) retrofitting carried out after September 1, 1995 by the owner or operator of a registered waste tire energy recovery facility necessary to enable such facility to use whole scrap tires as fuel. (b) Costs eligible for reimbursement under any of the assistance grants authorized and described in subsection (a) of this section shall be strictly limited to those incurred or to be incurred as necessary to construct or retrofit facilities, including capital investment costs and installation costs. The process for determining allowable retrofitting costs will be specified in grant announcements. (c) Waste tire energy recovery facility retrofitting costs eligible for a grant under this subchapter shall include capital investment costs and installation costs of storage and feeding systems and capital investment costs and installation costs of charging systems. In addition, costs for engineering, design, permitting, testing and fees may also be eligible as long as such costs are necessary as determined by the executive director. Capital costs and costs for purchase of continuous emissions monitors and pollution control equipment will also be eligible, if installation of such equipment is required by the commission to enable an existing energy recovery facility to utilize scrap tires as fuel. (d) Waste tire recycling facility construction costs eligible for a grant under this subchapter shall include capital investment costs and equipment installation costs. (e) Waste tire energy recovery facility retrofitting costs and waste tire recycling facility construction costs not eligible for a grant under this subchapter shall include costs to: (1) operate, repair, or maintain either an existing or a newly constructed (or retrofitted), recycling or energy recovery facility; (2) pay any of the grant applicant's salary, fringe benefits, travel, or indirect operating costs; (3) purchase supplies, fuel, or office equipment; (4) acquire land or an interest in land; (5) construct waste disposal facilities or waste disposal facility improvements (Facilities designed to promote or enable the recycling or burning for energy recovery of what would otherwise qualify as waste materials are not considered disposal facilities.); (6) prepare, or pay others for the preparation of, final designs or working drawings of any waste disposal facility or waste disposal facility improvements; (7) pay for the disposal of any waste material; (8) purchase any food, drink, or entertainment; (9) pay for lobbying, at any governmental level, either for or against, concerning or related to any proposed legislation or initiative; or (10) carry out any activity expressly prohibited by the RFP. sec.330.985. Eligible Applicants. (a) Applicants may not receive, during any single state fiscal year, more than one grant under this subchapter for any single facility. Separate grant proposals may be submitted for separate facilities, despite common ownership. Evidence of separate facility status shall include, but not be limited to, individual permits or registrations. (b) To be eligible for a waste tire recycling facility grant, as described in sec.330.984(a)(1) of this title (relating to Eligible Grant-Supported Activities), an applicant must have: (1) either a valid permit or registration for the recycling facility named in the application; or (2) have on file with the commission an administratively and technically complete application for such permit or registration; and (3) shall not seek reimbursement for costs incurred prior to January 1, 1994. (c) To be eligible for a waste tire energy recovery facility grant, as described in sec.330.984(a)(2) and (3) of this title (relating to Eligible Grant-Supported Activities), an applicant must: (1) be either the current owner or operator of an existing waste tire energy recovery facility; or (2) have, for the facility described in the application, either a valid permit or registration authorizing use of scrap tires (either whole or shredded) as a fuel or must have on file with the commission an administratively and technically complete permit application or registration which, when approved by the commission, will authorize use of scrap tires as fuel; and (3) be in compliance with the terms and conditions of such permit, authorization, or registration; and (4) shall not seek reimbursement for costs incurred prior to September 1, 1995. sec.330.986. Additional Recycling Facility Construction Grant Requirements. (a) This section applies to those grants authorized under the Health and Safety Code, sec.361.4772, for the purpose of enabling or assisting the construction of waste tire recycling facilities for the recycling of whole waste tires or shredded tires, as further identified in sec.330.984(a)(1) of this title (relating to Eligible Grant-Supported Activities). (b) Persons desiring to receive a waste tire recycling facility construction grant under this subchapter, shall submit to the commission, prior to the deadline announced by the commission for such grants in the Texas Register , an application utilizing the forms and following the instructions and procedures provided by the commission concerning the completion and filing of such forms. (c) Recycling facility construction grants shall not be awarded for the manufacture from scrap tires (either whole or shredded) of the following: (1) powdered rubber; (2) a tire-derived fuel; (3) buffing dust; (4) a retreaded or recapped tire; or (5) a product that is otherwise ineligible for reimbursement under commission rules. (d) Persons applying for a recycling facility construction grant under this subchapter shall be required to submit evidence of financial responsibility in an amount adequate to assure proper cleanup and closure of the facility if the recipient anticipates accepting an amount of whole waste tires or shredded tire pieces for storage that exceeds the facility's 30-day processing capacity for such whole or shredded tires. (e) The commission will require that a grant recipient, after construction is complete and as long as the number of whole used or scrap tires or tire pieces contained in illegal waste tire sites that are identified on the commission's Priority Enforcement List exceeds 2.5 million tires for more than 60 consecutive days, assure that at least 15% but not more than 30% of the scrap tires processed by the plant each month will originate from sites on the Priority Enforcement List. (f) Persons who apply for funding under this subchapter must agree, as a condition to receiving grant funding, to perform community service on an annual basis. (g) As a part of the application process, an applicant shall submit documentation sufficient to verify the following: (1) that when construction is complete, the product to be manufactured on-site is comprised of a minimum of 80% Texas scrap tires, pursuant to sec.330.874(c) of this title (relating to WTRF Grants); and (2) that there is an identified and verifiable end market for the items or material manufactured. sec.330.987. Additional Requirements for Waste Tire Energy Recovery Facility Grants for Tire Shred Users. (a) This section applies only to grants issued to enable registered waste tire energy recovery facility owners or operators to retrofit their facilities to use tire shreds as fuel. (b) Persons desiring to receive a waste tire energy recovery facility retrofitting grant under this section shall submit to the commission, within the time frames established and periodically announced by the commission, an application utilizing the forms and following the instructions and procedures provided by the commission concerning the completion and filing of such forms. (c) The commission may require that a grant recipient, after plant retrofitting is complete and as long as the number of whole used or scrap tires or tire pieces contained in illegal waste tire sites that are identified on the commission's Priority Enforcement List exceeds 2.5 million tires for more than 60 consecutive days, assure that at least 15% but not more than 30% of the scrap tires processed by the plant each month will originate from sites on the Priority Enforcement List. (d) Persons who apply for funding under this subchapter must agree, as a condition to receiving grant funding, to perform community service on an annual basis. (e) A person receiving a waste tire energy recovery facility retrofitting grant under the Health and Safety Code, sec.361.4865, may not apply for or receive a reimbursement for whole tires used as fuel at the facility. sec.330.988. Additional Requirements for Waste Tire Energy Recovery Facility Grants for Whole Tire Users. (a) This section applies only to grants issued to enable registered waste tire energy recovery facility owners or operators to retrofit their facilities to use whole tires as fuel. (b) Persons desiring to receive a waste tire energy recovery facility retrofitting grant under this section shall submit to the commission, within the time frames established and periodically announced by the commission, an application utilizing the forms and following the instructions and procedures provided by the commission concerning the completion and filing of such forms. (c) The commission may require that a grant recipient, after plant retrofitting is complete and as long as the number of whole used or scrap tires or tire pieces contained in illegal waste tire sites that are identified on the commission's Priority Enforcement List exceeds 2.5 million tires for more than 60 consecutive days, assure that at least 15% but not more than 30% of the scrap tires processed by the plant each month will originate from sites on the Priority Enforcement List. (d) Persons who apply for funding under this subchapter must agree, as a condition to receiving grant funding, to perform community service on an annual basis. (e) A person receiving a waste tire energy recovery facility retrofitting grant under the Health and Safety Code, sec.361.4865, may not apply for or receive a reimbursement for whole tires used as fuel at the facility. sec.330.989. Grant Announcement and Recipient Selection. (a) The commission shall announce grant funds, select grant recipients, and award assistance grants under this subchapter utilizing a Request for Proposals (RFP). Under the RFP process, the commission will: (1) Publish a formal notice in the Texas Register inviting eligible applicants to submit to the commission, by an announced due date, written proposals for funding support, together with a completed application form and other RFP-specified materials or resolutions; (2) Make available, upon request, application forms and instructions, together with the current RFP document which sets forth the established minimum requirements and criteria for application acceptance and defines the selection criteria to be used by the commission in determining grant recipients and making the subsequent grant awards; (3) Accept applications, prior to the RFP-specified deadline, and process for eligibility determination and selection/funding, ranking those applications which meet the minimum requirements specified in the RFP; and (4) Select projects for grant award on a competitive basis in accordance with the formal screening and selection criteria set forth in the RFP. (b) All grant proposals/applications will be reviewed and processed by the commission's staff to ensure compliance with the requirements of this subchapter, the appropriate RFP, and those mandates set forth in the Health and Safety Code, Chapter 361. The applications may also be reviewed and considered by other public agencies or organizations who have specific responsibilities to review, comment on, or coordinate the selection and/or awarding of state grants. (c) All proposals received by the deadline stated in the RFP will be evaluated by TNRCC staff and ranked on a point system. Subject to availability of funds and number of eligible applicants, applicants may receive only a portion of, or none of, the funds requested. (1) The factors to be used to evaluate and rank proposals for construction grants are as follows: (A) completeness and adequacy of the proposal; (B) adequacy of the resolution accompanying the proposal, which, at a minimum, certifies representative authorization and which may contain other certifications as required by the RFP; (C) total plant capacity, as measured by the maximum number of used/scrap tires per month that the facility can remove from the waste stream and convert into useable and saleable products, regardless of whether the products qualify the facility for reimbursement of construction costs pursuant to sec.330.986 of this title (relating to Additional Recycling Facility Construction Grant Requirements); (D) monthly recycling capacity, as measured by the number of used/scrap tires that a facility can remove from the waste stream on a monthly basis and convert into items that qualify for reimbursement of construction costs pursuant to sec.330.986 of this title; (E) success of project financing, including, but not limited to, availability, extent, commitment and stability of project financing; (F) success of product marketing, including, but not limited to, firm markets for products manufactured from used/scrap tires, as evidenced by binding contracts; (G) facility completion and/or production time frame; (H) facility cost effectiveness, as measured by the ratio of eligible reimbursable costs requested to the monthly recycling capacity of the facility in tons-per-month; (I) facility economy and/or simplicity, including, but not limited to, evaluation of the facility's costs associated with, and loss of productivity necessitated by, breakdown, repair and/or maintenance; (J) facility flexibility, as measured by a facility's adaptability to changing end-use markets; (K) community support; and (L) other factors deemed necessary by the commission. (2) The factors to be used to evaluate and rank proposals for retrofitting grants are as follows: (A) completeness and adequacy of the proposal; (B) adequacy of the resolution accompanying the proposal, which, at a minimum, certifies representative authorization and which may contain other certifications as required by the RFP; (C) total tire fuel capacity, as determined by the maximum amount of sustained tire fuel use to be expected if the plant is operated at full capacity, using the optimum amount of tire-derived fuel in the fuel mix; (D) monthly rate of tire fuel use, as measured by the number of used/scrap tires that a facility can remove from the waste stream on a monthly basis by converting the tires to energy; (E) success of project financing, including, but not limited to, availability, extent, commitment and stability of project financing; (F) success of product marketing, including, but not limited to, firm markets for the energy or products produced from energy recovery of used/scrap tires, as evidenced by binding contracts; (G) facility completion and/or production time frame; (H) facility cost effectiveness, as measured by the ratio of eligible reimbursable costs requested to the monthly amount of tire-derived fuel capacity of the facility in tons-per-month; (I) facility economy and/or simplicity, including, but not limited to, evaluation of the facility's costs associated with, and loss of productivity necessitated by, breakdown, repair and/or maintenance; (J) facility flexibility, as measured by a facility's adaptability to changing end-use markets; (K) community support; and (L) other factors deemed necessary by the commission. (d) Applicants selected to receive tire recycling or energy recovery retrofitting assistance grants under this subchapter, will be required to enter into a written contract with the commission as a condition to receiving support. The contracts will indicate the amount and type of support, establish time frames and/or deadlines for completing grant-supported activities and for expending grant-provided funds, describe reporting requirements and payment procedures, and contain other standard contract conditions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 20, 1996. TRD-9603876 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: April 10, 1996 Proposal publication date: November 17, 1995 For further information, please call: (512) 239-4640 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 85. Admission and Placement Placement Planning 37 TAC sec.85.30 The Texas Youth Commission (TYC) adopts the repeal of sec.85.30, concerning involvement of victims, without changes to the proposed text as published in the February 16, 1996, issue of the Texas Register (21 TexReg 1250). The justification for the repeal of the section is to replace the rule with a new rule which promotes more efficient agency operation. The repeal will be replaced by a new section to allow changes in rules of operation which are more consistent with legislative intent and agency mission regarding committed juvenile delinquents. No comments were received regarding adoption of the repeal. The repeal is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603816 Steve Robinson Executive Director Texas Youth Commission Effective date: April 9, 1996 Proposal publication date: February 16, 1996 For further information, please call: (512) 483-5244 The Texas Youth Commission (TYC) adopts new sec.85.30, concerning involvement of victims, without changes to the proposed text as published in the February 16, 1996, issue of the Texas Register (21 TexReg 1250). The justification for the new section is to protect the rights of victims of the delinquent conduct of youth. The new rule provides procedures for victim participation in the TYC youth's release process to be consistent with the rights of victims as described in the Texas Family Code, sec.57.001. No comments were received regarding adoption of the new rule. The new rule is adopted under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the accomplishment of its functions. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603815 Steve Robinson Executive Director Texas Youth Commission Effective date: April 9, 1996 Proposal publication date: February 16, 1996 For further information, please call: (512) 483-5244 Part VII. Texas Commission on Law Enforcement Officer Standards and Education Chapter 211. Administration Division 37 TAC sec.211.81 The Texas Commission on Law Enforcement Officer Standards and Education ("commission") adopts the repeal of sec.211.81, concerning agency and chief administrator reporting responsibilities without changes to the proposed text as published in the December 26, 1995, issue of the Texas Register (20 TexReg 11106). This section is no longer necessary due to the promulgation of new sections to more clearly outline the responsibilities of law enforcement agencies to submit applications for licensing, to and terminations of licensees to the commission, and to report continuing education training of licensees. No comments were received regarding adoption of the repeal. The repeal is adopted under Government Code, Chapter 415, sec.415.010(1), which authorizes the commission to promulgate rules for the administration of Chapter 415, and under Government Code, Chapters 2001 and 2002, which establishes the rulemaking requirements for the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603859 Don Perry Chief Field Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: April 15, 1996 Proposal publication date: December 26, 1995 For further information, please call: (512) 450-0188 37 TAC sec.211.87 The Texas Commission on Law Enforcement Officer Standards and Education ("commission") adopts an amendment to sec.211.87, concerning the suspension of licenses issued by the commission, without changes to the proposed text as published in the December 26, 1995, issue of the Texas Register (20 TexReg 11107). The proposed amendment provides chief administrators and all licensees with a more concise statement of the reasons a license issued by the commission may be suspended. The amendment further provide for immediate suspension of a license whenever a licensee is charged with a felony and receives a community supervision sentence under the deferred adjudication procedure as provided in the Code of Criminal Procedure. No comments were received regarding adoption of the amendment. The amendment is adopted under Government Code, Chapter 415, sec.415.010(1), which authorizes the commission to promulgate rules for the administration of Chapter 415, and sec.sec.415.010(6), 415.058, and 415.060 as amended; and Code of Criminal Procedure, sec.42.011; and under Government Code, Chapters 2001 and 2002, which establishes the rulemaking requirements for the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603860 Don Perry Chief Field Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: April 15, 1996 Proposal publication date: December 26, 1995 For further information, please call: (512) 450-0188 Chapter 217. Licensing Requirements Division 37 TAC sec.217.9 The Texas Commission on Law Enforcement Officer Standards and Education ("commission") adopts new sec.217.9, concerning continuing education requirements for law enforcement personnel, without changes to the proposed text as published in the December 26, 1995, issue of the Texas Register (20 TexReg 11108). The section outlines the length and content of continuing education courses, as well as the manner in which the commission must notify agencies of their personnel's noncompliance with such requirements. This new section will replace parts of old sec.221.100, which will be repealed. Comments regarding this section requested that the commission consider requiring all license holders to have training in family violence and cultural awareness. In response, the commission points out that this section requires all peace officers, reserve law enforcement officers, county jailers and public security officers to complete training in civil rights, racial sensitivity and cultural diversity every 24 months. Regarding family violence training, however, the new section allows chief administrators to exempt peace officers from training concerning recognition and documentation of cases that involve child abuse, child neglect, family violence, sexual assault and issues concerning sex offender characteristics if these subjects are inconsistent with the officers' assigned duties. The commission cites Texas Government Code, Chapter 415, sec.415.034 which specifically allows and requires this exemption. Comments were also received regarding the requirement for peace officers to complete training in supervision "within 24 months following the date of appointment as a supervisor." Large agencies often provide this training to groups of prospective supervisors before they are appointed as such. They point out that, by requiring this training to be provided in the period following appointment, the commission places an unreasonable burden on agencies to adapt an effective and efficient method of administering training to the commission's requirements. In response, the commission notes that Texas Government Code, Chapter 415, sec.415.034(d) requires in-service training on supervision "as part of the course...during the 24 month period after the date of that appointment." However, commission policy permits the Executive Director, at his discretion and for good cause, to allow credit for training completed outside the established time limits. Such exceptions may be allowed when the agency makes a good faith effort to comply with continuing education requirements and the agency substantially meets all other continuing education requirements established by rule or statute. Comments regarding this section were received from the Sheriff's Association of Texas, the Public Policy Committee of the Texas Council on Family Violence, Dallas Police Department and Houston Police Department. This section is adopted under Government Code, Chapter 415, sec.415.010(1), which authorizes the commission to promulgate rules for the administration of Chapter 415, and sec.sec.415.010(6), 415.012(a)(1) and (c), 415.034 and 415.0345 as amended by Senate Bills 80, 225, 1135, and 1337, Acts 1995, 74th Legislature; and under Government Code, Chapters 2001 and 2002, which establishes the rulemaking requirements for the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603861 Don Perry Chief Field Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: April 15, 1996 Proposal publication date: December 26, 1995 For further information, please call: (512) 450-0188 Chapter 221. Proficiency Certificates and Other Post-Basic Licenses Division 37 TAC sec.sec.221.1, 221.3, 221.5, 221.7, 221.9 The Texas Commission on Law Enforcement Officer Standards and Education ("commission") adopts new sec.sec.221.1, 221.3, 221.5, 221.7, and 221.9, concerning the responsibilities of law enforcement agencies to submit applications for licensing, to report appointments, criminal convictions, and separations from employment of licensees, and to report continuing education training of licensees to the commission. The sections are adopted without changes to the proposed text as published in the December 26, 1995 issue of the Texas Register (20 TexReg 11109). These new sections will replace sec.211.81 and parts of sec.221.100, which will be repealed, and will provide chief administrators with a more concise statement of their reporting responsibilities. The sections will also incorporate changes required by amendments to Chapter 415, Government Code, made by the 74th Legislature. No comments were received regarding adoption of the new sections. The new sections are adopted under Government Code, Chapter 415, sec.415.010, which authorizes the commission to promulgate rules for the administration of Chapter 415, and sec.sec.415.010(6), 415.012, 415.051, 415.052, 415.057, 415.060, 415.063, and 415.0635; and under Government Code, Chapters 2001 and 2002, which establishes the rulemaking requirements for the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603862 Don Perry Chief Field Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: April 15, 1996 Proposal publication date: December 26, 1995 For further information, please call: (512) 450-0188 37 TAC sec.221.100 The Texas Commission on Law Enforcement Officer Standards and Education ("commission") adopts the repeal of sec.221.100, concerning in-service training requirements for agencies that appoint certain officers without changes to the proposed text as published in the December 26, 1995, issue of the Texas Register (20 TexReg 11111). The provisions of this section will be incorporated into new sec.217.9, which will also provide for administration of new legislative requirements in this area. No comments were received regarding adoption of the repeal. The repeal is adopted under Government Code, Chapter 415, sec.415.010, which authorizes the commission to promulgate rules for the administration of Chapter 415; and under Government Code, Chapters 2001 and 2002, which establishes the rulemaking requirements for the commission. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 19, 1996. TRD-9603863 Don Perry Chief Field Operations Texas Commission on Law Enforcement Officer Standards and Education Effective date: April 15, 1996 Proposal publication date: December 26, 1995 For further information, please call: (512) 450-0188