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 1. ADMINISTRATION PART IV. Office of the Secretary of State CHAPTER 91. Texas Register The Office of the Secretary of the State, Texas Register, adopts the repeal of sec.sec.91.1, 91.12, 91.19, 91.21-91.26, 91.31, 91.41-91.43, 91.51, 91.71-91.75, 91.91, 91.97, 91.124, 91.131-91.135, and new sec.sec.91.1, 91.7, 91.9, 91.11, 91.13, 91.15, 91.17, 91.19, 91.21, 91.23, 91.25, 91.27, 91.29, 91.31, 91.61, 91.63, 91.65, 91.67, 91.69, 91.71, 91.73, 91.75, and 91.77, concerning Texas Register procedures. New sec.sec.91.1, 91.9, 91.13, 91.15, 91.17, 91.19, 91.21, 91.23, 91.29, 91.31, 91.63, 91.65, 91.67, 91.71, 91.73, and 91.77 are adopted with changes to the proposed text as published in the July 29, 1997, issue (22 TexReg 6991). Section 91.61 was withdrawn and reproposed in the October 17, 1997, issue (22 TexReg 10203). It is being adopted with changes. The repeals of sec.sec.91.1, 91.12, 91.19, 91.21-91.26, 91.31, 91.41-91.43, 91.51, 91.71-91.75, 91.91, 91.97, 91.124, 91.131-91.135 and new sec.sec.91.7, 91.11, 91.25, 91.27, and 91.69 are adopted without changes and will not be republished. We are withdrawing proposed new sec.91.91 in this issue and will repropose it at a future date. We also withdrew the proposed repeal of sec.91.121 and sec.91.122. The Texas Register is revising its rules in response to Senate Bill 1177, Senate Bill 1715 and House Bill 1, as adopted by the 75th Legislature. The Texas Register is also taking this opportunity to reorganize Chapter 91 into new subchapters. Senate Bill 1715 requires the Texas Register to strike through as well as bracket obsolete language and to underline new language in proposed rules. Agencies will not change the way they code proposed rule amendments, but will now be required to use the code <new> for proposed new rules. Comments were filed by the Texas General Land Office (GLO), the Texas Department of Health (TDH), the Texas Department of Insurance (TDI), the Texas Natural Resource Conservation Commission (TNRCC), the Public Utility Commission of Texas (PUC), the Texas Railroad Commission (RRC), the State Securities Board (SSB), the Texas Water Development Board (TWDB), and the Texas Workers Compensation Commission (TWCC). We received the following comments regarding the proposed new rules in general. The TNRCC recommended that familiar terms, such as "you" and "we" not be included in rule language because such terms may be misinterpreted more readily than terms such as "agency" and "Register." TNRCC also recommended that the preamble for the proposed new rules include a brief explanation of each proposed rule. We agree with TNRCC that more explanation of the proposed rules would help clarify the purpose of each rule for readers. For the same reason we disagree with TNRCC regarding the strict use of third person. Terms such as "you" and "we" are plain to readers. TNRCC in fact uses "we" in its written comments. The RRC commented that the preamble was misleading in its explanation of the coding we require to designate new language in electronic files. We withdrew and reproposed new sec.91.61, concerning electronic procedures for filing rules and miscellaneous documents. The new sec.91.61 appeared in the October 17, 1997, Texas Register (22 TexReg 10203). The new rule addressed the RRC's concerns and simplifies the coding requirements for underlining the entire text of new rules as required by SB 1715 (75th Texas Legislature). The RRC suggested that the Texas Register Form and Style Manual be eliminated and that all requirements be included in the Texas Register rules in Chapter 91. The RRC suggested alternatively that the Form and Style Manual be adopted by reference to give it the force and effect of the rules. The SSB commented that the Form and Style Manual has been a valuable resource and teaching guide. The Texas Register Form and Style Manual will not be eliminated. It will be updated to address these new rules. The updated Form and Style Manual will be made available on the internet. The Manual will not be adopted by reference because it does not contain requirements that have the force and effect of rules. The rules in Chapter 91 provide the minimum requirements for filing documents for publication. The manual is a supplement to the Texas Register rules, offering checklists, examples, and other information which may be helpful to someone preparing documents for filing. The distinction between the Texas Register rules in Chapter 91 and the Texas Register Form and Style Manual is that the rules are mandatory procedures; the Form and Style Manual is optional. COMMENTS ON sec.91.1. DEFINITIONS. The TWCC commented that the definition of "rule" in paragraph (12) changes the definition currently contained in the Administrative Procedure Act. We agree. The definition is adopted with changes to conform to the APA definition. The RRC commented that the term "adoption by reference" should be defined. The RRC commented that in definition (5) Certifying official and in definition (9) Liaison, the word "person" should be changed to "individual" in order to conform to definition (10) Person. We agree. We will address "adoption by reference" in a future proposal. Definitions (5) and (9) will be adopted with changes to substitute the word "individual" for "person." COMMENTS ON sec.91.9. DOCUMENTS ACCEPTED BY THE TEXAS REGISTER. The TWCC commented that this rule should include miscellaneous documents that are not required by law for publication. The GLO commented that this rule should include notices filed by the Coastal Coordination Council under the Natural Resources Code, Chapter 33. We agree, and adopt the rule with changes. COMMENTS ON sec.91.13. NONACCEPTANCE OF DOCUMENTS. The SSB and the TWDB commented against this rule. The commenters described the rule as a harsh policy that would inconvenience agencies and possibly delay the adoption of agencies' rules. The SSB urged the Texas Register to be more cooperative and flexible with documents submitted for publication, noting that "...provisions which reject rule submissions without allowing for any 'play' between us and the Register staff can result in a compounding of the problem, requiring multiple filings and delayed publications." The TWDB recommended that the rule establish a specific time frame of two or three days from submission within which Texas Register staff makes notification of rejection. We agree that cooperation is mutually beneficial for agencies and the Texas Register. But in practice, an agency's priority is to expedite publication of its documents. Often when we notify an agency that a document fails to conform to our requirements, an agency, faced with the delay of a rejection, may promise that if we make an exception and accept the document this time, that next time the mistake will not be repeated. Too often, however, the mistake is repeated along with the promise never to do it again if only we will make an exception again. In the spirit of cooperation and flexibility, we are adopting sec.91.13 with changes. In subsection (a) the wording "We will reject documents that do not conform..." will be adopted to read "We may reject documents that do not conform..." We will notify agencies in writing when documents fail to conform to our rules. In most instances we will not reject documents the first time we send this kind of notification. If the same agency repeats the same mistake in future filings, we will reject the documents. We will notify agencies within two days of the filing deadline to acknowledge the receipt of documents. We will notify agencies within 10 days of the filing deadline if we reject documents. COMMENTS ON sec.91.17. CLASSIFICATION SYSTEMS. The RRC and TNRCC commented on our proposal to eliminate undesignated heads, and expressed concern about their chapters that include both subchapters and undesignated heads. We are adopting sec.91.17, concerning classification systems with changes. Undesignated heads present a difficulty precisely because they are undesignated. Instead of eliminating this classification level, we are changing it. In chapters that have subchapters and undesignated heads, we will change the undesignated heads to numbered divisions. In chapters that have undesignated heads, but no subchapters, we will change the existing undesignated heads to subchapters in the Texas Administrative Code. Divisions will be permitted only within a subchapter classification level. We will convert existing undesignated heads to subchapters or divisions in the Texas Administrative Code as time allows. If an agency converts one undesignated head to a subchapter in a rulemaking submission, we will convert all other undesignated heads in the chapter to subchapters without further notice to the agency. The PUC, the GLO and the RRC commented on the gapping of rules. The PUC and GLO commented that gapping is appropriate and should be allowed. The commenters noted that the new rules fail to address gapping. We agree. We encourage, but do not require, agencies to leave gaps between sections and often between chapters or even subchapters. Gapping leaves space for future additions. It is not necessary to mark a gap with the word "reserved" and we do not permit gapping within a section. We will adopt the following wording suggested by the RRC: "Do not indicate chapters, subchapters, divisions, rule numbers and/or parts of a section as being reserved for future use." COMMENTS ON sec.91.19. NUMBERING SCHEMES. The RRC commented that the new rules do not require that the first rule in a chapter or subchapter end in the number "1." We agree. In most instances it would make sense for the first rule in a chapter or subchapter to end in the number "1," but the rules do not require it. If an agency repealed the first rule in a chapter or subchapter, it would not be necessary to repeal the entire chapter only to make the section numbers line up. The TDI commented that the proposal to limit rule numbers to four digits before the decimal and four digits after the decimal would require some implementation time. The TDI commented that the repeal and readoption of groups of rules necessary to conform to the new four-digit limit would cause a significant expenditure of agency time. We agree. If an agency has existing rules with more than four digits before or after the decimal we will permit the agency to administratively renumber the groups of rules affected by this rule. COMMENTS ON sec.91.21. TITLES. The RRC recommended that we add language to sec.91.21 to explain how to amend the title of a rule. We agree, and will adopt the rule with additional wording suggested by the RRC: "Amendments to titles shall be made showing the new and deleted language in accordance with the requirements of sec.91.61 of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents)." COMMENTS ON sec.91.23. STRUCTURE; TERMINOLOGY. The TDH commented on a typographical error in sec.91.23(d)(1). "No change" should read "(No change)". The RRC commented on sec.91.23(a)(1)(B), suggesting the addition of the following language. "This is referred to as an 'implied (a)'." We agree, and will adopt this section with the added wording. COMMENTS ON sec.91.25. FORM OF CITATION. The TDH commented that the rule should explain how to cite statutes and suggested the following language: "To cite material published in the Texas Civil Statutes, give the article number followed by section number. For example: Texas Civil Statutes, Article 6252-13(a), sec.6(c)." We have no disagreement with the citation style suggested by TDH, but the purpose of this rule is to establish the citation format for agency rules published in the Texas Register and in the Texas Administrative Code. We no longer presume to dictate a form of citation for statutes. A widely accepted citation format is offered by the University of Texas Texas Law Review in its publication Texas Rules of Form. If you use Texas Rules of Form please note that its citation format for administrative rules differs slightly from the format in our rule. Use the format in sec.91.25 when filing documents for publication in the Texas Register. COMMENTS ON sec.91.28. PROCEDURE FOR FILING NOTICE OF OPEN MEETING. The SSB commented on a typographical error in the heading which included sec.91.28 among sections proposed for repeal (22 TexReg 6992). The procedure for filing notice of open meetings was not proposed for repeal and will not be changed by the adoption of these rules. We intend to change the open meeting filing procedure in 1998, but that will require publication of the proposal for comments. COMMENTS ON sec.91.29. SERIALIZATION OF DOCUMENTS TO BE PUBLISHED. The TWCC commented on sec.91.29. The comment reads, "No explanation is given as to the meaning of the term 'serialization note' and whether it is included in the first issue in which a document is serialized or the last issue." We agree, and will adopt the section with changes to clarify that when a submission is serialized, the first issue in the series determines the publication date for purposes of calculating the earliest possible date of adoption. A "serialization note" is an editor's note explaining that a submission is being published in series. COMMENTS ON sec.91.31. CORRECTION OF ERROR. The GLO commented in favor of extending the deadline from 10 to 20 days for requesting a correction. The TWCC commented that subsection (d) is unclear, and suggested clarification to the phrase "We will not make substantive corrections." The SSB commented that the rule's requirement to specify whether the error appeared in the print Texas Register, the web site, etc. places a hardship on agencies and would cause them to incur additional time and expense to review all formats. The SSB also asked for clarification of the consequences of a document that is inadvertently omitted from publication: "...would it affect the running of the 30-day comment period for proposed rules(?)...". We will adopt the rule with changes to clarify the meaning. If we make an error, we will publish a correction after you notify us. There is no time limit for notification of an error made by the Texas Register because the official text of a rule is the text on file with the Secretary of State and not the text published in the Texas Register or on file with the issuing state agency. It is the agency's responsibility to notify us in a timely manner if the version published in the Texas Register conflicts with the version filed by the agency. If an agency makes an error, the agency must notify the Texas Register that a correction is necessary before the rule becomes effective (usually 20 days after filing). We will not accept or publish a correction that conflicts with the version filed by the agency after the effective date. For corrections to proposed rules and other documents, we prefer to receive notification of an error within 20 days. Determination of adequate notice is an agency certifying official's responsibility. If a proposed rule inadvertently is omitted from an issue by the Texas Register, the 30-day notice period will not begin with the date on which the Texas Register should have published the rule, but with the date on which the rule actually is published. COMMENTS ON sec.91.61. ELECTRONIC PROCEDURES FOR FILING RULES AND MISCELLANEOUS DOCUMENTS. The SSB commented that the coding requirements are unclear. We are adopting the rule with changes to address the following questions. Must each subdivision in a rule be coded separately? Amended sections: yes. New sections: no. Every "" for new language and every opening bracket "[" must have a closing "" or closing bracket "]" in the same subdivision. For example: Use the "" code when you begin new language. Use the "" code at the end of the new language in that subdivision. Repeat the codes within each subdivision as needed. All text between the codes will be underlined. However, for new sections, just use the "" code before the section number at the beginning of the rule to underline the entire text of the rule. The purpose of the "" code and the stricter closing codes for amended rules is to simplify agencies' compliance with SB 1715 which requires all new language to be underlined and deleted text to be indicated with a strike-through. May the "" or "[ ]" codes be used for parts of a word? No. Add or delete a complete word or acronym. Does the requirement in subsection (b) "Use a hard return after each paragraph" signal that the Texas Register will reject an agency's rule submission if the agency uses two hard returns (a skipped line) between preamble paragraph and rule subdivisions? No. We will not reject an agency's document for using two hard returns or for using no hard returns. However, if you do not hit the return key at the end of each subdivision, the two subdivisions will be merged together when the rule is published. For example, if subsection (a) has two paragraphs and you do not hit the return key at the end of paragraph (1), then paragraph (2) will not begin on a separate line, but will be merged with paragraph (1). A second hard return does not present a problem. Is there a separate code, not set out in the rules, for underlining rule text? Is the "<etb>" code to signal the beginning of boldface and underlined text when used in rule text? No. The "<etb>" code will result in underlined text in rules. It will result in boldface text in miscellaneous documents. The Texas Register does not make available a code to create boldface text in rules because doing so might cause confusion. Before SB 1715 boldface text indicated new language. COMMENTS ON sec.91.63. SUBMISSION FORMS. The TWCC commented that subsection (b)(3) is not a method of delivering a submission and should be moved into its own subsection. The RRC commented that this section should address acknowledgments of receipt. The RRC and the SSB commented that the rule does not specify how many copies of the submission form are required. We are adopting the rule with a format change in response to the TWCC concern, and to specify that only one copy of a submission form is required. Subsection (a) concerning the TR-1 agency rule review form will be re-introduced in future rulemaking. COMMENTS ON sec.91.65. PROCEDURES FOR FILING RULES. The GLO, the TNRCC, the PUC, and RRC commented on proposed sec.91.65(a)(3) which limits agencies to one pending amendment at a time for a rule number. The GLO and PUC were opposed to the proposal. The TNRCC commented in favor, but recommended changes. The GLO commented that the limitation will impose great hardship on agencies, listing three examples of how the proposal would impair the GLO's ability to conduct its business and result in hampering the public's opportunity to comment on proposed rules. The PUC commented that the proposal to limit an agency to only one pending amendment per rule number places a significant and unnecessary burden on agencies with rapidly changing environments. The proposed change would impact PUC significantly because many of its existing rules were inadequately gapped, forcing PUC to segment its rules rather than adding new rules. PUC also commented that the Texas Register rules should permit agencies to propose new amendments upon adoption of a rule, rather than waiting until the effective date of a rule. The comments said the proposal will slow down agencies' rulemaking initiatives an additional 20 days. We disagree. Agencies may avoid any delay imposed by the proposal by dividing lengthy rules into shorter sections. Shorter sections are usually more readable. Agencies control their own gapping of rules. If an agency fills all the chapters and subchapters within its specified Part of the Texas Administrative Code, the agency may ask the Texas Register to administratively move the agency's part to permit expansion. The proposal will reduce errors and confusion caused by overlapping and conflicting amendments that are pending simultaneously on a single rule, but filed and published separately. The TNRCC commented in favor of the proposed limitation: "The regulated community can become confused with the language of a rule which is open for more than one set of revisions at a time. Also, the Texas Register and other agencies can encounter difficulty in tracking rule language development and effective dates if any errors occur in the processing of multiple rulemaking actions for a rule." The TNRCC and the GLO recommended that definition rules be excepted from the limitation. The RRC commented that the proposal should be clarified by adding the following wording: "This means that an agency may not propose amendments to different subsections of one section unless they are proposed simultaneously in the same filing. Agencies may not propose amendments to one subsection in one filing and then propose other amendments to a different subsection of that section in another filing until the first proposed amendments have been adopted and become effective." We agree. The rule is being adopted with changes to make definition sections the exception to the rule, and to add the suggested wording. The TDH and the TWCC commented on sec.91.65(c)(2)(C), concerning withdrawal of proposed rules. The commenters recommended clarification such as the following addition: "However, this does not preclude a new proposal of an identical or similar rule following rulemaking procedures for proposed rules as specified in sec.91.65(a) of the title." We agree. The rule is being adopted with the clarifying wording. The TDH and the TWCC commented on sec.91.65(d)(4), concerning emergency rules. The commenters recommended that the effectiveness of an emergency rule be changed from "immediately upon filing or on a stated date less than 30 days after filing" to read "immediately upon filing or on a stated date less than 20 days after filing." The commenters said 20 days would make the rule consistent with Texas Government Code, Chapter 2001 (APA), sec.2001.036(a)(2) concerning the adoption of rules. We proposed the "30 days" because that is the minimum notice period for a rule that is not an emergency. However, we will make the recommended change to "20 days." The TWCC commented on sec.91.65(b). The commenter said that subsection (b) misstates the APA provisions relating to the effective dates for adopted rules, and that paragraph (b)(2) incorrectly suggests that the Texas Register staff has the authority to make substantive corrections to rules. The term "substantive" should be replaced by the term "formatting." We agree, and we are adopting the rule with the recommended changes. The TWCC commented on sec.91.65(f), questioning the requirement that an agency formally repeal a rule rendered invalid by legislation, constitutional amendment, or court decision. The commenter noted that the public comment process is irrelevant and will not change the legislation, constitutional amendment, or court decision that rendered the rule invalid. Subsection (f) does not require an agency to take any action. However, we will not remove rules from the Texas Administrative Code unless an agency repeals them. Subsection (f) gives the public notice that the invalid rules are being removed. This is not a change from current Texas Register rules, and we are adopting this provision as proposed. However, we will consider the TWCC's comments for possible future rulemaking. If we determine that the Secretary of State has the authority to streamline the removal of invalid rules from the Texas Administrative Code, we may propose a change to this policy. The RRC commented on subsection (d), suggesting that the word "days" should be plural possessive: "...less than 30 days' notice...". In subsection (d)(5) the RRC suggested a change in wording to indicate that more than one emergency amendment may be made. We agree, and the rule is being adopted with the recommended changes. COMMENTS ON sec.91.67. RULE SUBMISSION PREAMBLES. The TDH, the GLO, the TNRCC, and the RRC, commented on sec.91.67. The commenters said the proposed rule omitted mention of the Administrative Procedure Act requirement for local employment impact statements, and that the wording of the proposed rule is confusing and inconsistent with the language in the Administrative Procedure Act. We agree with the comments, and adopt the rule with changed wording that is consistent with the Administrative Procedure Act. COMMENTS ON sec.91.71. NOTICE OF TEXAS DEPARTMENT OF INSURANCE FILINGS UNDER THE INSURANCE CODE, ARTICLE 5.96 AND ARTICLE 5.97. The TNRCC commented on a typographical error in subsection (a). The word "Article" should be plural, "Articles." We agree. COMMENTS ON sec.91.73. ADOPTION BY REFERENCE (ABR). The TDH, the GLO, the TNRCC, the RRC, the SSB, and the TWCC commented on sec.91.73. The commenters recommended that no revision date should be required for federal statutes and federal and state rules. We discourage agencies from using wording such as "...as amended in the future," but the rule is adopted with changes to exclude the revision date requirement for federal and state statutes and rules. The GLO commented that the rule does not make a distinction between "adoption" by reference and "incorporation" by reference. We disagree. The rule uses the term "adoption by reference." We will consider proposing a definition for this term in future rulemaking. At that time it may be appropriate to determine if "incorporation" means the same thing as adoption. The current Texas Register rules deliberately do not address the term "incorporation by reference." The Administrative Procedure Act does not use either term. The RRC commented that the rule does not specifically require that agencies file the ABR material with the Secretary of State. We agree with the comment and we may consider reintroducing this requirement in future rulemaking. The rule does not prohibit agencies from filing ABR material with the Texas Register, but in some instances the cost of filing a copy with the Texas Register may be expensive. The Texas Government Code (APA), sec.2002.014 does not specify that the information omitted from the Texas Register is to be filed with the Secretary of State. The TDH and other agencies have made suggestions regarding Adoption by Reference filings, and the somewhat related Memoranda of Understanding (MOU) filings. We anticipate reviewing these policies more extensively in future rulemaking. COMMENTS ON sec.91.75. PROCEDURES FOR FILING A FEDERALLY MANDATED DOCUMENT. The TNRCC commented that the wording of sec.91.75 is broad. We agree. The proposal is intended to establish filing procedures for Texas Government Code (APA), sec.2001.036(a)(3). The rule is adopted with changes to clarify the requirements. COMMENTS ON sec.91.77. GRAPHIC MATERIAL. The RRC and the TWCC commented on typographical errors in the section. "Tables and Graphic" should be spelled "Tables and Graphics." The RRC suggested revised wording for subsections (a) and (e). We agree that the suggested wording clarifies the rule and have included it. The RRC commented against the proposed requirement in subsection (b) to underline new language and strike through deleted language on proposed graphics, noting that this requirement would destroy the format of the graphics or might be impossible in the case of drawings. We agree. The rule is adopted with changes. Agencies will explain amendments to graphics in the preamble. The RRC questioned the necessity for agencies to file tables and graphics with an amended rule when the tables and graphics are not being amended. We agree it is unnecessary to file graphics which are not being amended. However, agencies should account for the graphics as they would any subdivision of a rule. We are adopting sec.91.77 with a change that allows agencies to designate a figure as "(No change)." COMMENTS ON sec.91.91. CHARGES FOR PRODUCTS. The RRC, the SSB, and the TWCC commented against sec.91.91 because the term "market value" is not explained in the rule or in the preamble. We agree. Although "market price" is a statutory term, we failed to explain it adequately in the proposal. We are required to sell the print Register at a reasonable fee fixed by the Secretary of State, but Government Code, sec.2002.0151 allows us to charge "market price" for "specialized value-added services related to the Texas Register." We are withdrawing proposed sec.91.91 in this issue and will repropose it at a future date. We also withdrew the proposed repeal of sec.91.121 and sec.91.122. Definition of Terms 1 TAC sec.91.1 The repeal is adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeal does not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801220 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Agency Liaison 1 TAC sec.91.12 The repeal is adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeal does not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801221 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Filing of Documents 1 TAC sec.sec.91.19, 91.21-91.26, 91.31 The repeals are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeals do not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801222 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Adoption by Reference: Adoption under Federal Mandate 1 TAC sec.sec.91.41-91.43 The repeals are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeals do not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801223 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Format 1 TAC sec.91.51 The repeal is adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeal does not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801224 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Classification Systems 1 TAC sec.sec.91.71-91.75 The repeals are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeals do not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801225 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Submission Forms 1 TAC sec.91.91, sec.91.97 The repeals are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeals do not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801226 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Subscriptions, Individual Copies, and Reprints 1 TAC sec.91.124 The repeal is adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeal does not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801227 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 Miscellaneous Provisions 1 TAC sec.sec.91.131-91.135 The repeals are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The repeals do not affect other statutes, articles, or codes. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801228 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 SUBCHAPTER A. Administrative 1 TAC sec.sec.91.1, 91.7, 91.9, 91.11, 91.13, 91.15, 91.17, 91.19, 91.21, 91.23, 91.25, 91.27, 91.29, 91.31 The new sections are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The new sections do not affect other statutes, articles, or codes. sec.91.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Administrative Code - The Texas Administrative Code, as established by the Government Code, Chapter 2002, Subchapter C, sec.2002.051, also referred to as TAC. (2) APA - Administrative Procedure Act, Government Code, Chapter 2001. (3) Agency - Any state board, commission, department, or officer having statewide jurisdiction, other than an agency wholly financed by federal funds, the legislature, the courts, and institutions of higher education, that makes rules or determines contested cases. (4) Certify - To ensure that submitted documents have been reviewed by legal counsel, whose responsibility it is under the APA to determine whether the rule action is within the agency's legal authority. (5) Certifying official - An individual authorized by an agency to certify documents submitted for filing with the Texas Register. (6) Code - The Texas Administrative Code established by the APA, also referred to as TAC. (7) Electronic transmission - The submission of electronic data to the Texas Register by telecommunications, file transfer protocol (FTP) via Internet, e- mail, or diskette. (8) Graphic material - Documents formatted in two or more columns as tables or as maps, charts, spread sheets, pictures, equations or as any other type of document that requires special formatting. (9) Liaison - An individual designated by an agency to act as its representative to the Texas Register. (10) Person - Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency. (11) Register - The Texas Register established by the Government Code, Chapter 2002, Subchapter B. (12) Rule - Any agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency. It also includes the amendment or repeal of a prior rule, but does not include a statement regarding only the internal management of a state agency not affecting private rights or procedures. (13) Section - A reference to a specific rule in the Texas Administrative Code. (14) Verify - To ensure that submitted documents have been reviewed by the agency liaison, are processed properly, and are correct in format, structure, and content. sec.91.9. Documents Accepted by the Texas Register. File the following documents with the Texas Register for publication: emergency, proposed, withdrawn, and adopted rules; notices of open meetings; appointments; executive orders of the Governor of Texas; summaries of requests for opinions, opinions, and open records decisions of the Attorney General of Texas; summaries of requests for opinions and opinions issued by the Texas Ethics Commission; election law opinions of the Texas Secretary of State; notices filed by agencies, regional councils of government, and the Texas State Library under the Government Code, Chapter 551; notices of proposals and adoptions filed by the Texas Department of Insurance pursuant to the Insurance Code, Article 5.96 and Article 5.97; proposal requests for private consultant services under the Government Code, Chapter 2254; Court of Criminal Appeal rules of appellate procedure and rules of criminal evidence under Texas Civil Statutes, Article 1811f, sec.3; notices filed by the Coastal Coordination Council under the Natural Resources Code, Chapter 33; and, with approval from the Texas Register, miscellaneous documents not required to be published by law. sec.91.13. Nonacceptance of Documents. (a) We may reject documents that do not conform to the Government Code and to the Texas Register rule requirements. We will notify the agency liaison in writing when a document fails to conform to our rules. With the permission of the agency liaison, we will attempt to correct a format error on its first occurrence. If the agency repeats the format error in a future filing, we will reject the document. If we reject a document, we will notify the liaison in writing within 10 days of the filing date explaining why the document is rejected. (b) Reasons for rejecting a document include the following: (1) document structure which does not conform to sec.91.23 of this title (relating to Structure; Terminology); (2) electronic format which does not conform to our procedures as outlined in sec.91.61 of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents); and (3) filing procedures which do not conform to sec.91.65 of this title (relating to Procedures for Filing Rules). sec.91.15. Calculation of Effective Dates. (a) In computing a period of days, the first day is excluded and the last day is included. (b) If a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun. If there are not as many days in the concluding month as in the beginning month, the period ends on the last day of the concluding month. sec.91.17. Classification Systems. Use the following classification structure when promulgating rules. (1) We assign each agency to a title identified by an Arabic number and subject category, e.g., Title 1. Administration. (2) We assign each agency a Roman numeral part number to identify the agency within its title. The name of the part shall be the agency's name, e.g., Part IV. Office of the Secretary of State. (3) We assign a chapter range designated with Arabic numbers to each agency. Within that range, organize and name the chapters according to subject matter, e.g., Chapter 91. Texas Register. (4) You may subdivide a chapter into subchapters identified by capital letters. Name subchapters according to subject matter, e.g., Subchapter A. Administrative. (5) You may subdivide a subchapter into divisions identified by Arabic numbers. Name subdivisions according to subject matter, e.g., Division 1. General. (6) Do not indicate chapters, subchapters, divisions, rule numbers, and/or parts of a rule as reserved for future use. sec.91.19. Numbering Schemes. A rule number consists of the chapter number followed by a decimal point and the individual section number, e.g., sec.91.15. Neither the chapter number nor the section number may exceed four digits. Comply with paragraphs (1)-(4) of this section when you submit rules. (1) The proposed and adopted version of a rule must have the same rule number. (2) The number of a proposed rule which has been withdrawn may be used to identify another rule. (3) The number of a repealed rule may be used to identify another rule. (4) Do not amend rule numbers. To change a rule number, repeal and replace the rule. sec.91.21. Titles. Title all chapters, subchapters, divisions, and sections in accordance with the subject matter of the chapters, subchapters, divisions, and sections. In proposed rulemaking, show changes to titles with new and deleted language as required by sec.91.61 of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents). sec.91.23. Structure; Terminology. (a) Follow the structure and order outlined in paragraphs (1)-(7) of this subsection when subdividing a rule. (1) The highest subdivision within a rule is a "subsection." You need not subdivide below this level. (A) When there are two or more subsections, designate them with a lower-cased letter in parenthesis, e.g., (a), (b), etc. (B) When there is only one subsection in a section, omit the "(a)." This is referred to as an "implied (a)." (2) The rule subdivision below a subsection is called a "paragraph" and is designated by an Arabic number in parenthesis, e.g., (1), (2), etc. (3) The rule subdivision below the paragraph is called a "subparagraph" and is designated by an upper-cased letter in parenthesis, e.g., (A), (B), etc. (4) The rule subdivision below the subparagraph is called a "clause" and is designated by a lower-cased Roman numeral in parenthesis, e.g., (i), (ii), etc. (5) The rule subdivision below the clause is called a "subclause" and is designated by an upper-cased Roman numeral in parenthesis, e.g., (I), (II), etc. (6) The rule subdivision below the subclause level is called an "item" and is designated by a lower-cased letter with a dash on both sides in parenthesis, e.g., (-a-), (-b-), etc. (7) The rule subdivision below the item is called a "subitem" and is designated by an Arabic numeral with a dash on both sides in parenthesis, e.g., (-1-), (-2- ), etc. (b) When subdividing a rule, follow a parallel outline format, i.e., no (a) without (b), no (1) without (2), etc., with the exception of the implied (a) described in subsection (a)(1)(B) of this section. (c) When amending an existing rule, you must account for all existing language. Within the rule structure, put new language before obsolete language. Use the codes as described in sec.91.61(c)(5), (6), and (9) of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents). Figure: 1 TAC 91.23(c) (d) When you amend a subdivision within a rule, follow the "No change" policy outlined in paragraphs (1)-(3) of this subsection. (1) When you amend only part of an existing rule, we print only the text of the affected subdivisions. Same-level subdivisions are labeled (No change.) Figure: 1 TAC 91.23(d)(1) (2) When you amend a subdivision of a rule below the subsection level, show the text of all the higher-level subdivisions which contain the amended subdivision. Figure: 1 TAC 91.23(d)(2) (3) When you renumber a subdivision that contains lower-level subdivisions, show the language contained in the lower-level subdivisions for clarification. Figure: 1 TAC 91.23(d)(3) (e) Do not reserve subdivisions within a rule for future expansion. (f) Follow any reference to another section or chapter in the same title with the phrase "of this title (relating to...)" with the title of the section or chapter inserted in the parenthesis. Follow a reference to a different subchapter in the same chapter with the phrase "of this chapter (relating to...)" with the title of the subchapter inserted in the parenthesis. It is not necessary to reference the same section, subchapter, or chapter name twice within a rule. (g) Cite any reference to a rule in another title with the title and section number(s) in accordance with sec.91.25(b) of this title (relating to Form of Citation). For example: 1 TAC sec.91.21. sec.91.29. Serialization of Documents To Be Published. If necessary, we will serialize documents submitted for publication. We publish serialized documents in consecutive regular issues. The earliest possible date of adoption for a proposal is determined by the issue date in which the serialization begins. sec.91.31. Correction of Error. (a) Notify us in writing if the Texas Register publishes your agency's submission with an error or omission. (b) Include the following information in the notification: (1) the name of the agency; (2) the date of the issue and the specific section of the Texas Register in which the error occurred (i.e., In Addition, Proposed Rules, etc.); and (3) the nature of the error, and whether it was made by the Texas Register or by the submitting agency. (c) We publish the corrections of errors in the "In Addition" section of the Texas Register. (d) We will not accept a correction that conflicts with the text on file with the Secretary of State after the effective date of a rule. (e) Except as provided in subsection (d) of this section, we will publish a correction in the next available issue of the Texas Register. If the Texas Register inadvertently omits a proposed rule from an issue, the 30-day notice period will not begin until the rule is actually published. Otherwise, determination of adequate notice is an agency's responsibility. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801229 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 SUBCHAPTER B. Electronic Filing Procedures 1 TAC sec.sec.91.61, 91.63, 91.65, 91.67, 91.69, 91.71, 91.73, 91.75, 91.77 The new sections are adopted under the Government Code, Chapter 2002, Subchapter B, sec.2002.017, which provides the Secretary of State with the authority to promulgate rules consistent with the code. The new sections do not affect other statutes, articles, or codes. sec.91.61. Electronic Procedures for Filing Rules and Miscellaneous Documents. (a) Submit documents in electronic format using one of the following methods: file transfer protocol (FTP), e-mail, or 3-1/2 inch diskettes. Submit files in the American Standard Code for Information Interchange (ASCII) format. ASCII means standard keyboard characters limited to those represented by a decimal 32 (a space) to a decimal 126 (a tilde). Characters above 127 (extended characters) are not acceptable without our permission. Name files using the date (month and date only) of the submission followed by a decimal point and the agency code assigned by the Texas Register. If you submit more than one file on the same day, insert a letter in sequence after the date and before the decimal point. For example: 0715.004 indicates that this file was sent on July 15 by the Office of the Secretary of State; 0715a.004 and 0715b.004 indicate a second and third file were sent on the same day. You may submit more than one document in an electronic file except that rules and miscellaneous documents must be submitted as separate files. If you include multiple submissions in an electronic file, insert the code *n (as defined in subsection (c)(10) of this section) between each submission. Include all appropriate language as required by sec.91.67 of this title (relating to Rule Submission Preambles) with each rule submission in the file. (b) All text in an electronic file must be flush left. Do not use tabs or indentations in the file. The preamble introduction statement is the first line of text in the file. Do not use extraneous header information in the file, i.e., title, part, chapter, etc. The submission form contains the necessary agency information. Use a hard return after each paragraph. (c) Enclose codes in < > brackets to designate new language, new paragraphs, italics, section symbols, and other formatting commands. The codes are as follows. (1) --This code is placed before the rule number of each new rule. This code is not used in an amended rule. (2) <*> -- This code is used in place of the section symbol. (3)

-- This code indicates a new paragraph. The new paragraph indicator is used in the text of miscellaneous documents and in rule preambles. (4) -- This code indicates italics in the preamble and text of a rule or in a miscellaneous submission. (5) -- This code indicates boldface type within miscellaneous documents and new language within proposed rule amendments. Within a rule subdivision, place the code before new language and the code after new language. Every code in a subdivision must have a closing code in the same subdivision. (6) -- This code indicates a return to regular typeface or the end of new language. (7) -- This code indicates a superscript and is inserted before the superscripted letter, word, or number. Insert after the superscripted letter, word, or number. (8) -- This code indicates a subscript and is inserted before the subscripted letter, word, or number. Insert after the subscripted letter, word, or number. (9) [ ] -- Brackets indicate deleted language in proposed amendments. Use brackets only with complete words or acronyms. Do not bracket out part of a word. Every opening bracket in a subdivision must have a closing bracket in the same subdivision. (10) *n -- This code indicates the end of a submission within a file comprised of multiple submissions. A submission consists of either the complete text of a miscellaneous document or a rulemaking document (preamble plus rule or rules). (d) After you use FTP to submit a document, fax the appropriate submission form as specified in sec.91.63 of this title (relating to Submission Forms). (e) After you transmit a file through e-mail, fax the appropriate submission form as specified in sec.91.63 of this title. (f) When you submit documents on diskette, format the diskette using DOS 3.1 or a newer version of the operating system. We accept high-density formatted diskettes. Diskettes must contain only the files being submitted for one particular publication in the Texas Register. We will reject diskettes containing files not related to the submission. We do not return diskettes to the issuing agency. You may request a diskette in exchange for the submitted diskette or periodically retrieve your diskettes. Attach a label to the diskette identifying the submitting agency and the file name used on the submission. Deliver or mail the diskette with the appropriate submission form(s) attached. (g) We may postpone publication of documents submitted on paper. (h) Label graphic material as specified in sec.91.77 of this title (relating to Graphic Material) and deliver it to the Texas Register by the deadline. Do not fax graphic material. (i) If we are unable to access a file, if the file does not match the submission form, if an error occurred in the creation of the ASCII file, or if the file is not coded correctly in accordance with subsection (c)(1)-(10) of this section, we will contact the liaison promptly. If time permits us to process the document without delaying production of the issue, we will ask the liaison to resubmit the file. If there is not sufficient time, we will hold the submission for the next issue. sec.91.63. Submission Forms. (a) One typed submission form certified and signed by the agency liaison and certifying official accompanies each document submitted to the Texas Register. The document types and corresponding forms are listed in paragraphs (1)-(5) of this subsection: (1) TR-2--rule submissions; (2) TR-3--open meeting submissions; (3) TR-4--miscellaneous submissions; (4) TR-5--Governor, Attorney General, Secretary of State, Texas Ethics Commission, and Department of Banking submissions; and (5) TR-6--notification pursuant to the Insurance Code, Chapter 5, Subchapter L. (b) Deliver submission forms to the Register by one of the following methods. (1) If you transmit a rule or miscellaneous document electronically, fax the submission form(s) immediately after successful transmission of the document. (2) If you submit a document on diskette, either deliver or mail the submission form(s) with the diskette attached. (c) We will notify agencies within two days of the filing deadline to acknowledge the receipt of submission forms. (d) List on the submission form the file name and means of transmission, i.e., diskette, internet, modem, or e-mail. See sec.91.61 of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents). (e) You may reproduce all Texas Register submission forms from blank sample copies or electronic Word files provided by the Texas Register. You may duplicate the forms using your own software. (f) Do not alter the format of Texas Register submission forms listed in subsection (a) of this section without permission from the director of the Register. sec.91.65. Procedures for Filing Rules. (a) Proposed rules. The APA requires an agency to propose rules at least 30 days prior to adoption. When proposing rules, comply with the following procedures. (1) Notice of a proposed action follows rulemaking procedures as specified in sec.91.61 and sec.91.67 of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents and Rule Submission Preambles). (2) Propose only one version of a new rule. (3) A rule will have only one pending amendment at a time with the exception of rules containing only definitions. (b) Adopted rules. The APA states that a rule takes effect 20 days after the date on which it is filed in the Office of the Secretary of State unless a later date is required by statute, specified in the rule, or required by federal mandate. When adopting rules, comply with the following procedures. (1) Notice of an adopted action follows rulemaking procedures as specified in sec.91.61 and sec.91.67 of this title. (2) When filing a rule adoption, incorporate any formatting changes made by the Texas Register staff to the proposal as published. If you submit the final version of the rules without accounting for these changes, we will reject the submission. (3) If you submit the final version of the adopted rules without eliminating old and new language coding, we will reject the submission. (4) Submit the text of new and amended rules even when they are adopted without changes and will not be republished in the Texas Register. (5) The proposed and adopted version of a rule must have the same rule number. (6) Do not withdraw an adopted rule. (c) Withdrawn rules. When withdrawing rules, comply with the following procedures. (1) Withdrawal of proposed rules. (A) You may withdraw a proposed rule action prior to its adoption or before the effective date of the automatic withdrawal (see paragraph (2) of this subsection) by submitting a submission form in accordance with sec.91.63 of this title (relating to Submission Forms). (B) The withdrawal takes effect immediately upon filing or on a stated date not later than 20 days after filing. The effective date may not be before the date of filing. (C) You may take no further action on a proposal which you have withdrawn; however, this does not preclude a new proposal of an identical or similar rule following rulemaking procedures for proposed rules as specified in subsection (a) of this section. (2) Automatic withdrawals. (A) We automatically withdraw a proposed rule six months after the date of publication in the Texas Register if the agency neither adopts nor withdraws it. (B) We publish the notice of the automatic withdrawal. The effective date of the automatic withdrawal is the day after the last day of the six-month period. (C) You may take no further action on the proposal after the expiration of the six-month period; however, this does not preclude a new proposal of an identical or similar rule following rulemaking procedures for proposed rules as specified in subsection (a) of this section. (d) Emergency rules. (1) Under the APA, sec.2001.034, you may promulgate emergency rulemaking action on less than 30 days' notice. (2) Notice of adoption of emergency action follows rulemaking procedures as specified in sec.91.61 and sec.91.67 of this title. (3) Emergency rulemaking action does not preclude proposed and final rulemaking action in accordance with the Government Code, Chapters 2001 and 2002. (4) Emergency action becomes effective immediately upon filing or on a stated date less than 20 days after filing. The effective date cannot be earlier than the filing date. The APA limits the effectiveness of emergency action to 120 days, renewable for no more than 60 days, for a maximum of 180 days. Calculate the period of effectiveness by counting the effective date as day one. File the renewal notice during the last 20 days of the original period of effectiveness. You may not renew the effective period after the expiration date. The expiration date is the day after the final full calendar day in the count. (5) After the original filing of an emergency rule, emergency amendments may be made to the original action as many times as needed during the 180-day period of effectiveness (120 days original period of effectiveness plus 60 days renewal of effectiveness). All such amendments expire on the original expiration date. Do not withdraw an emergency rule and file it a second time in order to extend the 180-day effective period. (e) Multiple rule filing. You may file more than one rule number in a submission, if the rules share the same chapter and, if applicable, the same subchapter or division. Do not submit repeals on a submission form containing new or amended rules. (f) Invalid rules. You must formally revise or repeal rules rendered invalid by legislation, constitutional amendment, or court decision in accordance with rulemaking procedures in this chapter. (g) Rule transfers. If legislation transfers rulemaking authority from one agency to another, the transferring and/or receiving agency requests that we administratively transfer the affected rules. The agency should send a written request to the director of the Texas Register. The written request will cite the legislation that requires this transfer and include a copy of the legislation, the effective date of the transfer, and a conversion chart containing the old and new chapters, subchapters (if applicable), and rule numbers affected by the transfer. We will notify the agencies of the transfer notice publication date. sec.91.67. Rule Submission Preambles. (a) A preamble is a narrative introduction to a rule submission containing the information cited in paragraphs (1)-(3) of this subsection. (1) Proposed rule submissions include the information required by Texas Government Code, sec.2001.024. (2) Adopted rule submissions include the information required by the Texas Government Code, sec.2001.033. (3) Emergency rule submissions include the information required by the Texas Government Code, sec.2001.034. (b) You may submit one preamble for all submissions which share the same chapter and fiscal impact note. The "common preamble" accompanies the submission with the lowest rule number. If a repeal and new rule submission have the same number, the common preamble accompanies the repeal. The common preamble addresses all the affected rules; however, each rule submission has its own statutory authority note. sec.91.71. Notice of Texas Department of Insurance Filings under the Insurance Code, Article 5.96 and Article 5.97. (a) Actions under the articles specified in this subsection are exempt from the requirements of APA and are subject to the requirements of the Insurance Code, Article 5.96 and Article 5.97, Chapter 5, Subchapter L. (b) Emergency action under Article 5.96 and Article 5.97 may become effective immediately on filing or on a stated date less than 15 days after filing. The action cannot have an effective date earlier than the file date. sec.91.73. Adoption by Reference (ABR). (a) A document which is being adopted by reference follows the same requirements as other rule actions specified in sec.91.61 and sec.91.65 of this title (relating to Electronic Procedures for Filing Rules and Miscellaneous Documents and Procedures for Filing Rules); however, the actual text of the ABR material need not conform to the Texas Register format requirements and will not be published in the Texas Register or TAC. You may adopt the following documents by reference: (1) federal statutes and regulations; (2) state statutes and regulations; (3) state plans, including those circulated under OMB Circular A-95 for review and comment; and (4) forms. (b) The director of the Texas Register must approve ABR information not listed in subsection (a)(1)-(4) of this section before you adopt it by reference. To be eligible for ABR the information must be cumbersome, expensive, or otherwise inexpedient to include in the Texas Register. (c) Give notice of intention to adopt by reference in the form of a numbered rule and, except for federal or state statutes or regulations, note the revision date of the ABR document. Except for rules adopting federal or state statutes or regulations, amend the rule to adopt a newer version of the ABR document. (d) Agencies are responsible for maintaining and distributing to interested parties all versions of the ABR. We are responsible only for maintaining the most current version of ABR material for public inspection purposes. sec.91.75. Procedures for Filing a Federally Mandated Document. (a) If you are required by federal mandate to implement a rule by a certain date, the rule is effective on the prescribed date. (b) If time allows, follow all format and content requirements for proposed rules as specified in sec.91.65(a) of this title (relating to Procedures for Filing Rules). (c) If federal law or rule specifies a date that does not allow time for notice of proposed action, follow all format and content requirements in the notice of adopted action as specified in sec.91.65(b) of this title. (d) The preamble will state the legal authority for which the rule is proposed or adopted pursuant to federal requirements. sec.91.77. Graphic Material. (a) Graphic material accompanying a rule appears in the Tables and Graphics section of the Texas Register. Label each graphic with a reference code comprised of the word Figure, the TAC citation, and the level of the rule that references the material. Example: "Figure: 34 TAC Section 3.334(a)(1)." The rule text must reference the same label at the appropriate level. (b) Explain in the preamble changes made to amended graphic material. Do not use the , [ ], , or <*> codes in graphic material. If a table or graphic attached to an amended subdivision is not amended or deleted, you may mark it as (No change.), e.g., "Figure: 34 TAC Section 3.334(a)(1) (No change.)" (c) Label a table or graphic within a preamble with the word "Figure," TAC citation, and the word "preamble." Example: "Figure: 34 TAC Chapter 3-- preamble." (d) Do not refer to the Tables and Graphics section of the Texas Register in rule text. Place all table citations at the end of the appropriate subdivision and not within the text of the subdivision. The figure label should not be the only text in a subdivision. (e) Provide a new or amended table or graphic with an adopted rule submission, whether or not the rule is being republished. You may be required to provide a complete table or graphic for publication in the Texas Administrative Code. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801230 Clark Ervin Assistant Secretary of State Office of the Secretary of State Effective date: February 17, 1998 Proposal publication date: July 29, 1997 For further information, please call: (512) 463-5561 PART V. General Services Commission CHAPTER 111.Executive Administration Division Memorandum of Understanding Between the Texas Department of Economic Development and the General Services Commission 1 TAC sec.111.25 The General Services Commission adopts new section sec.111.25, a memorandum of understanding (MOU) between the General Services Commission and the Texas Department of Economic Development (the "TDED") concerning cooperation in program planning, budgeting relating to procurement information, and certification and technical assistance to small and historically underutilized businesses. The new section is adopted without changes to the proposed text as published in the December 19, 1997, issue of the Texas Register (22 TexReg 12361). The new section allows for enactment of the Texas Government Code, Section 481.028 (Vernon 1998). The MOU will enhance opportunities, education, and knowledge of Historically Underutilized Businesses. No comments were received regarding the adoption of new section. The new section is adopted under the Texas Government Code, sec.481.028 and the Texas Government Code, Title 10, Subtitle D, Section 2161, which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of that Chapter. 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. Filed with the Office of the Secretary of State on January 26, 1998. TRD-9801179 Judy Ponder General Counsel General Services Commission Effective date: February 15, 1998 Proposal publication date: December 19, 1997 For further information, please call: (512) 463-3960 CHAPTER 115.Building and Property Services Division Space Allocation 1 TAC sec.115.50 The General Services Commission adopts an amendment to sec.115.50, concerning space allocation and the 153 square feet usable office space rule, without changes to the proposed text as published in the December 19, 1997, issue of the Texas Register (22 TexReg 12362). The amendment is being adopted to correct the old statutory cite for the State Purchasing and General Services Act referenced in subsection 115.50(a) to its current location under the Texas Government Code, Title 10, Subtitle D; and adds new language under subsection 115.50(g) concerning exemptions and/or exclusions to the 153 square feet rule. The amendments enable the commission to efficiently allocate facilities to state agencies for an emergency lease, negotiated lease with a political subdivision, and a negotiated lease in the absence of competition. No comments were received regarding the adoption of amendment. The amendment is adopted under the Texas Government Code, Title 10, Subtitle D., Chapter 2165, sec.2165.108, which provides the General Services Commission with the authority to promulgate rules necessary to accomplish the purpose of that Chapter. 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. Filed with the Office of the Secretary of State on January 26, 1998. TRD-9801173 Judy Ponder General Counsel General Services Commission Effective date: February 15, 1998 Proposal publication date: December 19, 1997 For further information, please call: (512) 463-3960 PART X. Texas Department of Information Resources CHAPTER 201.Planning and Management of Information Resources Technologies SUBCHAPTER 1 TAC sec.201.2 The Department of Information Resources adopts new sec.201.2, concerning complaints, without changes to the proposed text as published in the October 31, 1997 issue of the Texas Register (22 TexReg 10593). The new section requires the department to notify consumers and service recipients of the name, mailing address, and telephone number of an identified employee of the department for the purpose of directing complaints to the department. The department received no comments regarding the proposed new section. The new section is proposed in accordance with Texas Government Code sec.2054.035(c), which requires the board of the department by rule to establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department. 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. Filed with the Office of the Secretary of State on January 27, 1998. TRD-9801201 C. J. Brandt, Jr. General Counsel Texas Department of Information Resources Effective date: February 16, 1998 Proposal publication date: October 31, 1997 For further information, please call: (512) 475-2153 1 TAC sec.201.13 The Department of Information Resources adopts an amendment to sec.201.13, concerning information resources standards, with changes to the proposed text as published in the September 12,1997, issue of the Texas Register (22 TexReg 9196). The effect of the amendment is to require state agencies to adhere to building wiring standards when wiring or re-wiring state-owned or state-leased space. The department received one comment regarding the proposed rule. The commenter suggested that the language in subparagraph (f)(2)(A)(i) of the proposed subsection should be deleted. This language had been derived from a recommendation issued by the department in 1993 and would have prohibited the use of an optional eight-position jack pin/pair assignment under a particular specified wiring standard. However, the commenter pointed out that the optional pin/pair assignment is now commonly in use. Because common industry wiring practice has evolved since the initial publication of the wiring recommendation in 1993, the department agrees with the comment and has deleted the language in question. Names of those making comments for and against the section: For: the University of Texas at Austin. Against: None. The amendment is adopted pursuant to the provisions of Texas Government Code, sec.2054.051(b), which requires the department to develop and publish standards relating to information resource management by state agencies, and Texas Government Code, sec.2054.052(a), which permits the department to adopt rules as necessary to implement its responsibilities. The amendment is also adopted in accordance with the provisions of House Bill 1, 75th Legislature, Article IX, sec.171. sec.201.13.Information Resource Standards. (a)-(e) (No change.) (f) Communications Wiring Standards for State Facilities. (1) Definitions. The following words and terms, when used in this subsection, shall have the following meanings unless the context clearly indicates otherwise. ANSI -- the American National Standards Institute. EIA -- the Electronics Industry Association. TIA -- the Telecommunications Industry Association. (2) All state agencies will adhere to the following standards when wiring or re- wiring state-owned or state-leased space: (A) ANSI/EIA/TIA-568-1995, Commercial Building Telecommunications Wiring Standard or its most recent successor document. This applies to the telecommunications wiring for buildings that are office-oriented and when ANSI/EIA/TIA-570-1991 is not selected. The term "commercial enterprises" is used in ANSI/EIA/TIA-568-1991 to differentiate between office buildings and buildings designed for industrial enterprises. ST-type fiber connectors shall be used for fiber optic terminations. (B) ANSI/EIA/TIA-570-1991, Residential and Light Commercial Building Telecommunications Wiring Standard or its most recent successor document, when planning and designing premises-wiring systems intended for connecting one to four exchange access lines to various types of customer-premises equipment when ANSI/EIA/TIA-568-1991 is not selected. (C) ANSI/EIA/TIA-569-1990, Commercial Building Telecommunications Pathways and Spaces or its most recent successor document, when planning and designing state- owned and state-leased space to accommodate telecommunications system wiring. (D) ANSI/EIA/TIA-606-1993, Administration Standard for the Telecommunications Infrastructure of Commercial Buildings or its most recent successor document, when documenting and administering telecommunications infrastructures in state- owned and state-leased space. 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. Filed with the Office of the Secretary of State on January 27, 1998. TRD-9801199 C. J. Brandt, Jr. General Counsel Texas Department of Information Resources Effective date: February 16, 1998 Proposal publication date: September 12, 1997 For further information, please call: (512) 475-2153 1 TAC sec.201.16 The Department of Information Resources adopts new sec.201.16, concerning minimum standards for meetings held by videoconference call, without changes to the proposed text as published in the November 7, 1997 issue of the Texas Register (22 TexReg 10870). The new section requires governmental bodies to adhere to certain technical and operational standards when holding an open or closed meeting by videoconference call. The department received no comments regarding the proposed new section. The section is adopted in accordance with Texas Government Code sec.551.126(h), which requires the department by rule to specify minimum standards for audio and video signals at a meeting held by videoconference call. 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. Filed with the Office of the Secretary of State on January 27, 1998. TRD-9801202 C. J. Brandt, Jr. General Counsel Texas Department of Information Resources Effective date: February 16, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 475-2153 TITLE 7. BANKING AND SECURITIES PART VI. Credit Union Department CHAPTER 91.Chartering, Operations, Mergers, Liquidations Loans 7 TAC sec.91.705 The Texas Credit Union Commission adopts an amendment to sec.91.705, concerning loans to credit union officials, with changes to the proposed text as published in the October 31, 1997 issue of the Texas Register (22 TexReg 10594). No substantive change was made as proposed. The amendment will increase the dollar amount of secured credit a credit union may extend to any one official without seeking prior approval from the board of directors, and will set a limit on the aggregate amount of loans to credit union officials as a whole that a credit union may have outstanding at any one time. Increasing the secured credit dollar threshold is warranted given current economic conditions and the higher price of automobiles and other tangible goods in today's market place. Instituting an aggregate limit for loans to officials will ensure that a credit union has the ability to meet its other members' lending needs. The amendment also allows the credit union to apply to the commissioner for a waiver from the aggregate limit, and establishes reporting requirements. Comments generally in support of the amendment were received from the Texas Credit Union League and Dallas Teachers Credit Union. One comment received indicated that additional wording is needed to clarify the commission's intention of having the 20% aggregate limit apply to all loans made to all credit union officials and senior executive staff, along with loans made to those persons' immediate family members. Therefore, the commission added the word "all" to subsection (d) after the words "guaranteed by", made plural the proceeding nouns, and changed the wording "any such individual" to "all such individuals." Another comment made relates to the commission requiring that the report described in subsection (e) include a statement regarding compliance with loan policies for each loan made under this rule. The commenting party believes the use of such boilerplate language will cause the requirement to lose its usefulness. Furthermore, as the board is responsible for developing loan policies in the first place, board members should know whether a reported transaction is compliant. Therefore, placing such a statement in the report could be perceived as encouraging less diligence on the board's part. The commission, however, disagrees with this comment. Because directors and senior executive staff have a responsibility to ensure that a credit union operates in a safe and sound manner and practices are in compliance with board and internal policies, it is imperative that loans made to those individuals withstand scrutiny. Unless a loan is in excess of the amounts contained in the rule, the board is merely being notified of the loans made to credit union officials and senior executive staff. The statement of compliance, therefore, will provide the board with a greater degree of comfort that those loans are above reproach, as well as make the board aware of any loans to officials that are out of policy compliance. Also in regard to subsection (e), a comment was made that it would be more appropriate to identify the type of collateral taken on the loan rather than the purpose of the loan as currently required for the report described in subsection (e). The commission believes that identification of the collateral type will allow the credit union to identify the loans that would require approval by the board prior to the loan being made, which was the original intent of requiring the purpose to be stated. The commission has reflected this recommendation in the final rule. The amendment is adopted under the provisions of the Texas Finance Code, sec.124.201 and sec.124.202, which provide the Credit Union Commission with the authority to establish, by rule, lending conditions and limits for loans to directors, employees, and credit committee members. The specific section affected by this amendment is Texas Finance Code, sec.124.202. sec.91.705.Loans to Officials. (a) The rates, terms, conditions, and availability of any loan or extension of credit made to, or endorsed or guaranteed by, a director, employee, loan officer, credit manager, members of the credit committee or an immediate family member of any such individual shall not be more favorable than the rates, terms, conditions, and availability of comparable loans or credit to other credit union members. (b) Before making a loan, extending credit, or becoming contractually liable to make a loan or extend credit to a director, employee, loan officer, credit manager, members of the credit committee or members of their immediate families, the board of directors must approve the transaction if the loan or the extension of credit or aggregate of outstanding loans or extensions of credit to any one person, the person's business interests, and members of the person's immediate family is greater than $25,000 if unsecured credit or $75,000 if secured credit, plus pledged shares and deposits. A loan secured by a lien on improved residential real estate which is the homestead and is actually occupied by the borrower shall not be subject to, or included in the aggregate amounts included in this section. (c) For purposes of this section, the term immediate family member includes a spouse or other family member living in the same household. (d) The aggregate of all outstanding loans or extensions of credit made to, or endorsed or guaranteed by all directors, committee members, senior executive staff, and immediate family members of all such individuals shall not exceed 20% of the credit union's total assets. The requirements described in this subsection shall apply unless waived in writing by the commissioner for good cause shown. (e) The president shall make a report to the board of directors on all loans approved since the previous board meeting for any director, committee member, senior executive staff or immediate family members of such individual. The report shall consist of at least the official's loan number, the amount of the loan, the type of collateral securing the loan, if applicable, the aggregate amount of indebtedness to the credit union, and a statement regarding compliance with loan policies. The board of directors must review this loan approval report at each regular monthly board meeting. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801289 Harold E. Feeney Commissioner Credit Union Department Effective date: February 17, 1998 Proposal publication date: October 31, 1997 For further information, please call: (512) 837-9236 CHAPTER 97.Commission Policies and Administrative Rules General Provisions 7 TAC sec.97.103 The Texas Credit Union Commission adopts new sec.97.103, concerning recusal and disqualification of commission members, with changes to the proposed text published in the October 31, 1997, issue of the Texas Register (22 TexReg 10595). Adoption of the rule is necessary to comply with new statutory requirements enacted by the passage of Senate Bill 358, effective September 1, 1997, 75th Legislature, Chapter 338, 1997 Texas Session Law (to be codified at Texas Finance Code Annotated, sec.15.208), which requires the Commission to adopt rules for recusal by its members. The new rule requires a member who has a personal or private interest in a matter to disqualify him- or herself from any participation in the decision. Comments generally supporting adoption of the rule were received from the Texas Credit Union League and from Dallas Teachers Credit Union. One comment related to the fact that there are two basic conflict of interest provisions in the Texas Finance Code for commission members, and the proposed rule does not make a distinction between them. One provision states that no commission member may act on matters under consideration which directly affect any credit union of which the member of the commission is an officer, director, or member. The second provision requires recusal of members who have a personal or private interest in a measure, proposal, or decision pending before the commission. In response, the commission has expanded subsection (a) to address both provisions. Even if the law might not expressly prohibit a member from participating in the discussion of a matter directly affecting a credit union with which the member is affiliated, participation in the discussion would allow the commission member to advocate a position which is basically what a vote entails. Therefore, the proposed rule precludes a member from both discussing and voting on such matters. Another comment recommended deletion of the portion of the text in subsection (b) that states the term "personal or private interest" includes a direct personal or financial interest in a credit union which is the subject of commission action. The commenting party opines that, as written, a member having a small dollar balance in a credit union's share account would potentially need to recuse him-or herself from any discussion relating to that credit union specifically or to all credit unions in general. Should the commission not make the recommended change, the commenting parting suggests language should be added to further define the term "personal or financial interest." In response, the commission believes that a change to proposed subsection (b) is not necessary. The proposed rule references Section 572.058 of the Texas Government Code in defining what constitutes a "personal or private interest." The definition in that citation excludes an individual engaged in a profession, trade, or occupation from having a personal or private interest in a matter if the individual's interest is the same as all others similarly engaged in the profession, trade, or occupation. Therefore, a commission member whose interest in a matter before the commission is the same as that of other credit union members would not be considered to have a personal or private interest for the purposes of this rule. Furthermore, since the commission members must adhere to the provisions of Texas Government Code and have the benefit of any case law precedents related thereto, any additions to the proposed rule would be redundant. Both parties commented that a commission member could potentially have an personal or private interest in a matter before the commission that is not credit union related, and that it may be appropriate to address such a circumstance in subsection (b). In response, the Commission has added language to subsection (b) to include a direct personal or financial interest in other matters subject to commission action. The new section is adopted under Texas Finance Code, sec.15.402, which provides the Credit Union Commission with the authority to adopt reasonable rules; and under Section 9 of Senate Bill 358, effective September 1, 1997, 75th Legislature, Chapter 338, 1997 Texas Session Law (codified at Texas Finance Code Annotated, sec.15.208), which requires the Commission to adopt rules for recusal by its members. sec.97.103.Recusal Or Disqualificaiton Of Commission Members. (a) A commission member may not vote on or otherwise participate in the deliberation or decision of a matter pending before the commission: (1) in which the commission member has a personal or private interest; or (2) which directly affects the credit union of which the commission member is an officer, director, or member. (b) The term "personal or private interest" shall be given the meaning as prescribed in Texas Government Code, sec.572.058, and includes a direct personal or financial interest in a credit union or other matter which is the subject of commission action. (c) A commission member who is disqualified under subsection (a) of this section shall publicly disclose the fact to the commission in a meeting called and held in compliance with the Open Meetings Act, Texas Government Code, Chapter 551. The disclosure shall be entered in the minutes of the meeting. (d) A commission member who is recused or disqualified will be counted in determining a quorum. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801292 Harold E. Feeney Commissioner Credit Union Department Effective date: February 17, 1998 Proposal publication date: October 31, 1997 For further information, please call: (512) 837-9236 7 TAC sec.97.106 The Texas Credit Union Commission adopts new sec.97.106, concerning the methods by which members of credit unions are notified of the name, mailing address, and telephone number of the department for the purpose of directing complaints to the department, with only a minor, nonsubstantive change from the proposed text published in the October 31, 1997, issue of the Texas Register (22 TexReg 10596). Adoption of the rule is necessary to comply with new statutory requirements enacted by the passage of Senate Bill 358, effective September 1, 1997, 75th Legislature, Chapter 338, 1997 Texas Session Law (to be codified at Texas Finance Code Annotated, sec.15.409), which requires the commission to adopt rules governing the methods by which credit union members will be notified that they may file complaints with the department. The commission selected the method of providing notification through signage in the place of business of each credit union regulated by the department. Comments in support of the adoption of the rule were received from the Texas Credit Union League and from Dallas Teachers Credit Union. Dallas Teachers Credit Union recommended a minor technical change in the form of deleting the word "conspicuously" from subsection (a), based on the belief that the word is unnecessary given the requirements set forth in subsection (b). As a result of this comment, the Commission has omitted the word "conspicuously" from subsection (a). The new section is adopted under Texas Finance Code, sec.15.402, which provides the Credit Union Commission with the authority to adopt reasonable rules; and under Section 13 of Senate Bill 358, effective September 1, 1997, 75th Legislature, Chapter 338, 1997 Texas Session Law (to be codified at Texas Finance Code Annotated, sec.15.409), which requires the Commission to adopt rules governing the methods by which credit union members will be notified that they may file complaints with the department. sec.97.106.Complaint Notice. (a) Every credit union shall post, in its principal place of business and all other offices and service facilities, a public notice which provides the name, address, and telephone number of the department. The notice shall further inform members that complaints to the department may be directed to that address or telephone number. (b) The notice shall be printed in at least 14-point type or larger, and shall be clearly visible in a public entrance or lobby area. The commissioner shall prescribe the design and content of the notice to be used for this purpose. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801293 Harold E. Feeney Commissioner Credit Union Department Effective date: February 17, 1998 Proposal publication date: October 31, 1997 For further information, please call: (512) 837-9236 TITLE 16. ECONOMIC REGULATION PART IV. Texas Department of Licensing and Regulation CHAPTER 70. Industrialized Housing and Buildings 16 TAC sec.sec.70.20, 70.22, 70.23, 70.50, 70.60, 70.61, 70.70, 70.71, 70.75, 70.80 The Texas Department of Licensing and Regulation adopts amendments to sec.sec.70.20, 70.22, 70.23, 70.50, 70.60, 70.61, 70.70, 70.71, 70.75 and 70.80 concerning industrialized housing and buildings. Sections 70.20, 70.50, 70.71 and 70.80 are adopted with changes to the proposed text as published in the September 19, 1997, issue of the Texas Register (22 TexReg 9405). Sections 70.22, 70.23, 70.60, 70.61, 70.70 and 70.75 are adopted without changes and will not be republished. The amendment in sec.70.20 broadens the scope of the installation permit as recommended by the Texas Industrialized Building Code Council. The amendments to sec.70.22 and sec.70.23 will permit the acceptance of the Building Officials and Code Administrators International, Inc. (BOCA) certifications as well as the International Conference of Building Officials (ICBO) and the Southern Building Code Congress International (SBCCI) certifications. The amendments to sec.70.50 clarify changes in reporting requirements due to the addition of the installation permit and the changes in sec.70.60 clarify that the Industrialized Building Code Council is responsible for establishing procedures for certification inspections. The amendments to sec.70.61(a) clarify that third party inspection agencies and third party inspectors must conduct Texas IHB inspections in accordance with the procedures established by the Council. The changes in sec.70.61(c) clarify that manufacturers must designate in writing the third party inspection agency responsible for inspections in their facility. The amendments in sec.70.70 eliminate the requirement that plans be submitted on 8-1/2 inch by 11 inch pages. The changes in sec.70.71 from what was proposed is to correct a typographical error and the changes in sec.70.75 revises permit/owner information requirements to include installation permit holders. The changes in sec.70.80 (f), (g), (i) and (j) will permit travel costs to be reimbursed directly to contract providers. The amendments to sec.70.80(h) and (k) raise fees for decals and insignia, eliminate fees for alteration inspections, and add a fee for an installation permit. The Department received a recommendation from the Texas Industrialized Building Code Council in favor of the proposed amendments with minor changes. The amendments will function by increasing program integrity. The amendments are adopted under Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 1989) which provides the Texas Department of Licensing and Regulation the authority to promulgate and enforce a code of rules and take action necessary to assure compliance with the intent and purpose of the Act. The Article that is affected by the amendment is Texas Revised Civil Statutes Annotated, article 5221f-1 (Vernon 1989). sec.70.20. Registration of Manufacturers and Industrialized Builders. Manufacturers and industrialized builders shall not engage in any business activity relating to the construction or location of industrialized housing or buildings without being registered with the department. (1) An application for registration shall be submitted on a form supplied by the department, and shall contain such information as may be required by the department. The application must be verified under oath by the owner of a sole proprietorship, the managing partner of a partnership, or the chief executive or chief operating officer of a corporation. The application must be accompanied by the fee set forth in sec.70.70 of this title (relating to Commission Fees). (2) A person who does not purchase industrialized housing or buildings from a manufacturer for sale or lease to the public may file for an installation permit in lieu of registering as an industrialized builder. A person who is not registered as an industrialized builder and who buys or leases industrialized housing or buildings from an industrialized builder and assumes responsibility for the installation of the unit or units shall apply for an installation permit. The application shall be submitted on a form supplied by the department and shall contain such information as may be required by the Department. A separate application must be submitted for each building containing industrialized housing and buildings modules or modular components. The application must be accompanied by the fee set forth in sec.70.80 of this title (relating to Commission Fees). (3) The registration shall be valid for 12 months and must be renewed annually. Every corporate entity must be separately registered. Each separate manufacturing facility must be registered; a manufacturing facility is separate if it is not on property which is contiguous to a registered manufacturing facility. An industrialized builder must register each separate sales office but is not required to register each job location. (4) A registered manufacturer or industrialized builder shall notify the department in writing within 10 days if: (A) the corporate or firm name is changed; (B) the main address of the registrant is changed; (C) there is a change in 25% or more of the ownership interest of the company within a 12-month period; (D) the location of any manufacturing facility is changed; (E) a new manufacturing facility is established; or (F) there are changes in principal officers of the firm. (5) A manufacturer certified pursuant to sec.70.61 of this title (relating to Responsibilities of the Department - Plant Certification), whose registration expires shall have his certification revoked if the registration is not renewed within 30 day of the expiration date. A manufacturer whose certification has been revoked must undergo another certification inspection to reinstate the certification. (6) An application for original registration or renewal may be rejected if any information contained on, or submitted with, the application is incorrect. The certificate of registration may be revoked or suspended or a penalty or fine may be imposed for any violation of the Act, violation of the rules and regulations in this chapter or administrative orders of the department, or violations of the instructions and determinations of the council in accordance with sec.70.90 of this title (relating to Sanctions - Administrative Sanctions/Penalties), and sec.70.91 of this title (relating to Revocation or Suspension because of a Criminal Conviction). sec.70.50. Manufacturer's and Builder's Monthly Reports. (a) The manufacturer shall submit a monthly report to the department, of all industrialized housing, buildings, modules, and modular components which were constructed and to which decals and insignia were applied during the month. The manufacturer shall keep a copy of the monthly report on file for a minimum of five years. The report must state the name and address of the industrialized builder to whom the structures, modules, or modular components were sold, consigned, or shipped. If any such units were produced and stored, the report must state the storage location. The report shall also contain: (1)-(2) (No change.) (3) the registration number of the industrialized builder (as assigned by the department) to whom the units were sold, consigned, and shipped or the installation permit number issued by the Department; (4)-(7) (No Change.) (b) Each industrialized builder shall submit a monthly report to the department of all industrialized housing, buildings, modules, and modular components which were installed during the month. A copy of the report shall be kept on file by the industrialized builder for a minimum of five years. The report shall contain: (1) (No change.) (2) identification of the type of foundation system in accordance with the following: (A) if the unit was installed within the corporate limits of a city, the name of the city responsible for the site inspection; (B) if the unit was installed outside the corporate limits of a city and if the builder is not responsible for the installation and site work, then identification of the installation permit number or builder registration number obtained from the Department by the person responsible; (C) if the unit was installed outside the corporate limits of a city and if the builder is responsible for the installation and site work and the unit is installed on a permanent foundation system, identification of the Texas approved inspector that performed the site inspection; or (D) if the unit was installed outside the corporate limits of a city and if the builder is responsible for the installation and the site work and the unit is installed on a temporary foundation system, then the builder shall provide a notarized statement certifying that the unit was installed on a temporary foundation system in compliance with the engineered plans and all applicable codes. (3)-(5) (No change.) (c)-(d) (No change.) sec.70.71. Responsibilities of the Registrants - Manufacturer's Data Plate. (a) The manufacturer will attach a data plate to each dwelling unit of a residential structure containing industrialized housing and buildings modules and to each appropriate unit of a commercial structure containing industrialized housing and buildings modules. The data plate must be made of a material that will not deteriorate over time and be permanently placed so that it cannot be removed without destruction. The data plate will be placed on or near the electrical distribution panel or in some other easily accessible location as designated in the approved design package. (b) The data plate must contain, as a minimum, the following information: (1) the manufacturer's name, registration number, and address; (2) (No change.) (3) the State decal numbers; (4)-(11) (No change.) (c) All modular components shall be marked with, or otherwise have permanently affixed, a data plate containing the following information: (1) the manufacturer's name, registration number, and address; (2) the serial or identification number of the component or components; (3) the State insignia number or numbers; (4) the name and date of applicable codes; (5) the design loads for the component; and (6) any special conditions of use for the component. (d) The information required in subsection (c) of this section may be placed in the crate in which the component or components are shipped or on a tag attached to the crate or to the component if the component is such that the information may not be marked or permanently affixed to the component. (e) Structures designated by the manufacturer as not being designed for placement on a permanent foundation shall have a manufacturer's seal permanently attached inside the door of the electrical panel or near the entrance door if the unit does not have an electrical panel. The seal shall not be smaller than 2 by 1 - 1/2 inches and shall be constructed of a metallic alloy. The seal must contain the following capitalized statement: THIS STRUCTURE IS NOT DESIGNED FOR PLACEMENT ON A PERMANENT FOUNDATION AND DOES NOT MEET THE REQUIREMENTS OF TEXAS CIVIL STATUTES, ARTICLE 5221f-1, INDUSTRIALIZED HOUSING AND BUILDINGS. sec.70.80. Commission Fees. (a)-(e) (No change.) (f) The fee for department personnel for certification inspections at a manufacturing facility shall be $40 per hour. Travel and per diem costs shall be reimbursed by the manufacturer in accordance with the current rate as established in the current Appropriations Act. The department shall present a billing statement to the manufacturer at the completion of the inspection that is payable upon receipt. (g) When the department acts as a design review agency, the fee for such services is $40 per hour. The manufacturer for whom the services are performed shall pay the fee before approval of the designs, plans, specifications, compliance control documents, and installation manuals and before the release of the documents to the manufacturer. Travel and per diem costs shall be reimbursed by the manufacturer in accordance with the current rate as established in the current Appropriations Act. (h) The fees for issuing decals and insignia are: (1) modules (decals): $0.07 per square foot of floor area, with a minimum of $25 for each decal; and (2) modular component (insignia): $0.02 per square foot of surface area with a minimum of $0.60 for each insignia or $0.07 per square foot of floor area with a minimum of $15 for each insignia. (i) The fee for department personnel for special inspections shall be $40 per hour. A special inspection is any inspection for industrialized housing and buildings that is not covered by other fees. The Department will present a billing statement at the conclusion of the inspection that is payable upon receipt. Travel and per diem costs shall be reimbursed in accordance with the current rate as established in the current Appropriation Act. (j) The fee for department monitoring of design review agencies and third party inspection agencies outside headquarters shall be $40 per monitor hour. Travel and per diem costs shall be reimbursed in accordance with the current rate as established in the current Appropriations Act. The department will present the agency or manufacturer a statement at the conclusion of the monitoring trip, and it is payable upon receipt. (k) The fee for an installation permit shall be $75 for each building containing industrialized housing and buildings modules or modular components. A separate application must be submitted for each building containing industrialized housing and buildings modules or modular components. 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. Filed with the Office of the Secretary of State on February 2, 1998. TRD-9801441 Tommy V. Smith Executive Director Texas Department of Licensing and Regulation Effective date: March 16, 1998 Proposal publication date: September 19, 1997 For further information, please call: (512) 463-7357 TITLE 25. HEALTH SERVICES PART VII. Texas Medical Disclousre Panel CHAPTER 601.Informed Consent 25 TAC sec.sec.601.4, 601.6, 601.8 The Texas Medical Disclosure Panel (panel), by majority vote of the panel on January 13, 1998, enters this order finally adopting amendments to sec.601.4 and sec.601.6, and adopting new sec.601.8, concerning informed consent with changes to text as published in the October 31, 1997, issue of the Texas Register (22 TexReg 10615). The proposed amendments and new section were published in the October 17, 1997, issue of the Texas Register (22 TexReg 10236) in error without the proposed disclosure and consent forms, and with the wrong certifying official. The proposal was republished correctly in the October 31, 1997. Section 601.4 adopts the form to be used to inform a patient or person authorized to consent for the patient of the possible risks and hazards involved in the medical treatments and surgical procedures named on the form. The amendment to sec.601.4 adds language providing exceptions to using the general disclosure and consent form. The language addresses the exceptions to using the general disclosure and consent form for radiation therapy, electroconvulsive therapy, and the new exception, hysterectomy procedures. There are no changes to the disclosure and consent form for medical and surgical procedures. Section 601.4(a) is adopted with minor clarification changes. Section 601.6 provides a history of rule actions. The amendment to sec.601.6 updates the history of rules changes, by including the rules adopted by the panel effective October 3, 1995, as stated in new subsection (g); the rules adopted by the panel effective October 23, 1997, as stated in new subsection (h); and these rules which were adopted by the panel on January 13, 1998, with an effective date of February 18, 1998, as stated in new subsection (i). Section 601.6 (g), (h), and (i) is adopted with minor clarification changes. The panel clarified language in subsection (i) to include the effective date of the adoption and to include the legislative directive that the section applies to hysterectomies performed at least 90 days following publication of the adopted section in the Texas Register. New sec.601.8 establishes a new disclosure and consent form which shall be used by a physician or health care provider to inform a patient or person authorized to consent for the patient of the possible risks and hazards involved in performing a hysterectomy. The form was established in response to House Bill 723, which amended the Medical Liability and Insurance Improvement Act of Texas (Act), Texas Civil Statutes, Article 4590i, Subchapter F, by adding sec.6.08, which requires the panel to develop and prepare written materials to inform a patient or person authorized to consent for a patient of the possible risks and hazards of a hysterectomy. The form includes the information required by HB 723 and incorporates current language from the general disclosure and consent form to meet the requirements of sec.6.08(d) of the Act, which requires a physician or health care provider to obtain informed consent under both sec.6.05 and sec.6.08 of the Act from a patient or person authorized to consent for the patient before performing a hysterectomy. The form also incorporates the risks associated with the use of blood and blood byproducts previously adopted by the panel. Sections 6.08(a)-(b) of the Medical Liability and Insurance Act required the panel to develop and prepare the materials to be available in English, Spanish, and any other language the panel considers appropriate. The panel determined that it was only appropriate to prepare the form in English and Spanish at this time. The English form is published as part of the rule. Both English and Spanish versions of the form will be available from the Texas Department of Health. In response to a comment received during the comment period, the panel has included a designation for hysterectomies performed using endoscopy/laparoscopy, together with the risks and hazards for same, to the consent form. The panel has also added clarifying language to specify that the form is required for hysterectomies performed at least 90 days after publication of the adopted section, and that the Spanish version is available from the Texas Department of Health. The following is a summary of written comments received during the comment period ending December 1, 1997. All comments concern the disclosure and consent form for a hysterectomy in sec.601.8. COMMENT: A commenter suggested that the language contained in the "NOTICE" portion of the form be changed to read, "Refusal to consent to a hysterectomy will not result in the withdrawal or withholding of any benefits provided by programs or projects receiving federal funds or state funds or otherwise affect your right to future care or treatment." The commenter also suggested changing the language in the third sentence of paragraph six of the consent form to read, "I understand that I have the right to seek a second opinion from a second physician if I so desire." RESPONSE: The panel appreciates the comment but determined that the suggested changes would exceed the panel's statutory authority since the language in the proposed rule is mandated by House Bill 723. No change was made as a result of the comments. COMMENT: A commenter stated that "Section 1 of House Bill 723, sec.sec.6.08(a)- (b) of the Medical Liability Insurance Act requires the panel to develop and prepare materials available in English, Spanish, and any other language the panel considers appropriate. While the proposed form includes the required statutory material in English, it does not provide the material in Spanish as required by sec.6.08(b). Also, the proposed rule does not specify if the panel considers any other language as appropriate." The commenter asked, since proposed sec.601.8 provided that, "the form shall be available in both English and Spanish," whether it is assumed that the panel has determined that no other language is appropriate at this time." The commenter further recommended that, since sec.2 of House Bill 723 states that the panel shall prescribe the form and content of the materials required to be distributed under sec.6.08, the panel should also publish the required form in Spanish. RESPONSE: No comments were received suggesting that the form be made available in any other languages. The panel has determined that the form shall be available only in English and Spanish at this time. However, the provider must present the information in a manner understandable to the individual patient regardless of what languages the panel has deemed be made available pursuant to House Bill 723. In response to the commenter's recommendation that the panel publish the form in Spanish, on advice of the Texas Department of Health's Office of General Counsel (OGC), House Bill 723 does not require the panel to publish the form in Spanish. Both the English and the Spanish version of the form will be provided by the Texas Department of Health. The OGC believes that this meets the intent of House Bill 723. No change was made as a result of the comments. COMMENT: One commenter suggested that the panel include a Spanish version of the form for Spanish speaking patients as required by House Bill 723, and add a signature line for an interpreter to sign if the patient is in need of an interpreter to understand the consent form. The commenter further stated that by adding these components the form would meet the federal Medicaid requirement. RESPONSE: The panel appreciates the comments and, as previously noted, is not publishing the form in Spanish. The Spanish version of the form will be available from the Texas Department of Health. In response to the commenter's other concern, providers are free to include additional documentation when an interpreter is used. No change was made as a result of the comments. COMMENT: One commenter expressed concern, "that as a result of the new law it appears a facility may need three consents prior to performing a hysterectomy," referencing the new Texas Medical Disclosure Panel consent form, the consent form with National Heritage Insurance Corporation (NHIC) language, and the "routine facility consent form." The commenter wanted the panel to be aware of these factors when considering the implementation of the consent form. The commenter is in favor of streamlining the process. RESPONSE: The panel appreciates the commenter's concern, however, the panel has promulgated the form required by House Bill 723. The form meets the requirements of sec.6.05 and sec.6.08, as set forth in House Bill 723. While the panel supports attempts to streamline the process of obtaining consent, it would exceed the panel's charge to attempt to incorporate language required by NHIC and the panel is not aware of the content or purpose of a "routine facility consent form." No change was made as a result of the comment. COMMENT: One commenter suggested, "that a designation for endoscopy/laparoscopy, together with the risks and hazards for same, be added to the proposed consent form." The commenter believes that, if the suggested change is made, a patient undergoing a laparoscopically assisted vaginal hysterectomy (LAVH), for example, will only need to sign one form. "Otherwise, practitioners will either have to have the patient sign the standard form in addition to the hysterectomy form, or else they will have to write in the endoscopy/laparoscopy information on the hysterectomy form. Neither of these latter choices would seem preferable to the signing of one, completely pre-printed form." RESPONSE: The panel agrees and has revised the form to list the additional risks associated with endoscopy/laparoscopy. COMMENT: Concerning sec.601.8, a commenter asked if the rules included a Spanish version of the form as required by House Bill 723. RESPONSE: As previously stated, the Spanish version of the form will be available from the Texas Department of Health. No change was made as a result of the comment. The commenters include a representative from Representative Dawnna M. Duke's office; Texas Hospital Association, Austin, Texas; Hermann Hospital, Houston, Texas; Providence Health Center, Waco, Texas; Texas State Board of Medical Examiners, Austin, Texas; and an individual. The commenters were generally in favor of the rules, but expressed concerns, asked questions, and made recommendations as previously mentioned. The amendments and new section are adopted under the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i, sec.6.04, which provides the Texas Medical Disclosure Panel with the authority to prepare lists of medical treatments and surgical procedures that do and do not require disclosure by physicians and health care providers of the possible risks and hazards and to prepare the form(s) for the treatments and procedures which do require disclosure; and sec.6.08 which requires the panel to develop and prepare written materials to inform a patient or person authorized to consent for a patient of the risks and hazards of a hysterectomy. sec.601.4.Disclosure and Consent Form. (a) The Texas Medical Disclosure Panel adopts the following form which shall be used by a physician or health care provider to inform a patient or person authorized to consent for the patient of the possible risks and hazards involved in the medical treatments and surgical procedures named in the form. Except for the procedures shown in subsection (b) of this section, the following form shall be used for the medical treatments and surgical procedures described in sec.601.2 of this title (relating to Procedures Requiring Full Disclosure--List A). Figure 1: 25 TAC sec.601.4(a) (b) Informed consent for: (1) radiation therapy shall be provided in accordance with sec.601.5 of this title (relating to Radiation Therapy Disclosure and Consent Form); (2) electroconvulsive therapy shall be provided in accordance with sec.601.7 of this title (relating to Informed Consent for Electroconvulsive Therapy); and (3) hysterectomy procedures shall be provided in accordance with sec.601.8 of this title (relating to Hysterectomy Disclosure and Consent Form). sec.601.6. History. (a)-(f) (No change.) (g) Effective October 3, 1995, sec.601.1 - 601.4 of this title were repealed and replaced with new sec.601.1 of this title (relating to General), sec.601.2 of this title (relating to Procedures Requiring Full Disclosure (List A), sec.601.3 of this title (relating to Procedures Requiring No Disclosure (List B), and sec.601.4 of this title (relating to Disclosure and Consent Form), sec.601.5 of this title (relating to Radiation Therapy Disclosure and Consent Form), this section, and sec.601.7 of this title (relating to Informed Consent for Electroconvulsive Therapy). The sections were repealed to incorporate List A and List B into Texas Register format. In addition, sections were added to include general provisions; to provide a history of the rules of the panel; and to adopt a section which addresses informed consent for electroconvulsive therapy. (h) Effective October 23, 1997, sec.601.2 of this title was amended to update risks and hazards requiring full disclosure prior to performing abdominal endoscopic/laparoscopy procedures and endoscopic surgery of the thorax. (i) Effective February 18, 1998, sec.601.4 of this title and this section were amended and new sec.601.8 of this title (relating to Hysterectomy Disclosure and Consent Form) was added to address legislative requirements relating to informed consent for hysterectomies. Section 601.8 of this title adopts a form to be used in providing informed consent prior to performing a hysterectomy and applies to hysterectomies performed at least 90 days after the date of publication of adopted sec.601.8 of this title in the Texas Register. sec.601.8.Hysterectomy Disclosure and Consent Form. The Texas Medical Disclosure Panel adopts the following form which shall be used to provide informed consent to a patient or person authorized to consent for the patient of the possible risks and hazards involved in the hysterectomy surgical procedure named in the form. This form is to be used in lieu of the general disclosure and consent form adopted in sec.601.4 of this title (relating to Disclosure and Consent Form) for disclosure and consent relating to only hysterectomy procedures. Providers are required to use the form to obtain consent for hysterectomies performed at least 90 days following publication of this adopted section in the Texas Register. Providers shall have the form available in both English and Spanish language. The Spanish version is available from the Texas Department of Health. Figure 1: 25 TAC sec.601.8 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. Filed with the Office of the Secretary of State on January 29, 1998. TRD-9801382 Melba W. Swafford, M.D. Chairperson Texas Medical Disclosure Panel Effective date: February 18, 1998 Proposal publication date: October 31, 1997 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 3.Life, Accident, Health Insurance and Annuities SUBCHAPTER MM.Assessment 28 TAC sec.3.13001 The Commissioner of Insurance adopts new sec.3.13001, concerning definitions, procedures, criteria and forms for the making and collecting of assessments on insurers that provide health insurance in this state by the Texas Health Insurance Risk Pool. The section is adopted with changes to the proposed text as published in the December 19, 1997 issue of the Texas Register (22 TexReg 12394). A public hearing on the section was held on January 8, 1998. The new section is required by Insurance Code, Article 3.77, sec.8 which directs the commissioner of insurance to adopt rules to provide the procedures, criteria and forms necessary for the Texas Health Insurance Risk Pool to implement, collect and deposit assessments made to recoup the Pool's net loss under Insurance Code, Article 3.77, sec.13. The section was developed with the assistance of the Board of Directors of the Texas Health Insurance Risk Pool to assure that it met the needs of the pool. The board of directors of the pool has frequently expressed its desire to minimize administrative costs so that the maximum amount of money collected in premiums and assessments can be used by the pool to pay claims, therefore the adopted section is intended to meet the requirement of Insurance Code, Article 3.77, sec.8, while minimizing the cost of compliance with the section for the pool. Besides the board's contribution in the drafting of the section, several changes were made to the proposed section in response to the board's testimony at the hearing on the section and written comments submitted by the board. The definition of "insurer" in sec.3.13001(a)(2) was changed, a new paragraph in sec.3.13001(c)(5) was inserted, sec.3.13001(c)(3) was changed and sec.3.13001(e) was changed, all in response to comments from the pool. In addition to the latitude provided in the procedures for making assessments and the criteria for those assessments, the section provides the pool with an outline for the forms to be used in determining and collecting assessments, instead of adopting a specific form. The adopted section provides an uncomplicated procedure and clear criteria for the making of assessments by the board of directors of the pool. Every insurer that collects health insurance premiums in this state will be affected by the section. The Texas Health Insurance Risk Pool is authorized by Insurance Code, Article 3.77, sec.13, to assess insurers providing health insurance in this state for operating funds and for any net loss experienced by the pool in providing insurance to medically uninsurable Texans. The new section provides definitions, procedures, criteria and forms for the making and collecting of assessments by the Texas Health Insurance Risk Pool. Section 3.13001(a) contains definitions of the terms used in the section. The definition of "insurer" was changed in response to a comment to conform it to the definition of "insurer" in Insurance Code, Article 3.77. Section 3.13001(b) authorizes the board of directors of the pool to consider and determine the need for, and the amount of, any regular and interim assessments at any meeting of the board. Section 3.13001(c)(1)-(3) provides that interim assessments shall cover estimated cash requirements of the pool and shall be credited against the regular assessment for the applicable fiscal year. Section 3.13001(c)(4) directs the board to request insurers to provide the board information on their health insurance premiums in this state. If an insurer does not provide the information, the section provides that the board may presume that all the insurer's health insurance premiums reported to the Texas Department of Insurance are assessable. A new section 3.13001(c)(5) was inserted in response to a comment and proposed sec.3.13001(c)(4) was renumbered as paragraph (5). Proposed sec.3.13001(c)(5) was renumbered as paragraph (6). It provides that the pool may audit the information on health insurance premiums submitted by insurers. Section 3.13001(c)(6) was renumbered as paragraph (7). It provides that the board shall determine the date an assessment must be paid by an insurer and charge interest if an assessment is not paid when due. Section 3.13001(c)(7) was renumbered as paragraph (8). It provides that the limitation on assessments of one-half of one percent of an insurers collected health insurance premiums in this state in Insurance Code, Article 3.77, sec.13(e) shall be calculated on the insurer's collected health insurance premiums for that year. It further provides that the limit shall not apply after January 1, 2000, which is consistent with the expiration date in the statute. Section 3.13001(d) prescribes the information the board will provide an insurer when an insurer is notified of an assessment. It directs the board to adopt a form for the gathering information on health insurance premiums provided for in Section 3.13001(c)(4). Section 3.13001(e) was changed in response to a comment by changing the title of the subsection changed to "Unpaid Assessments or Abatements." Also in response to a comment, a sentence was added at the end of the subsection providing that an insurer receiving an abatement or deferment shall remain liable to the pool for the deficiency. Since the sentence is identical to the language in Insurance Code, Article 3.77, sec.13(e), there is no substantive change caused by the addition of this sentence. Five commenters suggested that the definition of "health insurance premium" in sec.3.13001(a)(1) be changed by adding Medicare supplement premiums subject to Insurance Code, Article 3.74 and small group health insurance premiums subject to Insurance Code, Articles 26.01 through 26.76 to the coverages that are excluded from the definition of the term under sec.3.13001(a)(1)(B). RESPONSE: Staff disagrees with the comments, but has inserted a new paragraph (5) in sec.3.13001(c) and renumbered the subsequent paragraphs. The definition of "health insurance premiums" in the section is patterned after the definition of "health insurance" in Insurance Code, Article 3.77, sec.2. Medicare supplement premiums and small group health insurance premiums are clearly health insurance coverages, however Insurance Code, Article 3.77 sec.13(d) specifically provides that the premium for these coverages is excluded in the calculation of the amount of an assessment on an insurer. Since the calculation of an assessment is expressly described in Article 3.77, sec.13(d), the department did not repeat it in the regulation. To address the concerns expressed by the commenters, the department has inserted a new paragraph (5) in sec.3.13001(c) and renumbered paragraphs (5) through (7). The new sec.3.13001(c)(5) paraphrases Article 3.77, sec.13(d), therefore the new paragraph has no substantive effect. Two commenters suggested that long term care insurance be excluded from the definition of health insurance premium. RESPONSE: The definition of "health insurance premiums" is patterned after the definition of "health insurance" in Article 3.77, sec.2. The statutory definition does not mention long term care, and is not susceptible to an interpretation that would allow excluded coverages to be expanded by a regulation of the department. For example, in the Health Insurance Portability and Availability Act (Insurance Code, Article 26.035), the Legislature excluded long term care coverage from the definition of "creditable coverage", therefore, the department believes the Legislature could have used similar language in Article 3.77 if it intended to exclude long term care premiums. Another commenter noted that the definition of "insurer" in sec.3.13001(a)(2) did not include the language in Insurance Code, Article 3.77 that provides "and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation." RESPONSE: The department has added the language to the definition of "insurer" in the section. One commenter said there was inconsistency in terms between sec.3.13001(c)(3) and sec.3.13001(c)(2) and suggested that "incurred claims" in paragraph (3) be changed to "incurred losses for the current calendar year." RESPONSE: The department agrees with the comment and changed sec.3.13001(c)(3) in accordance with the comment. One commenter stated that "each insurer" be deleted from sec.3.13001(c)(4) because it was redundant. RESPONSE: The intent of sec.3.13001(c)(4) is to direct the board of directors of the pool to determine the total amount of health insurance premiums collected in this state by all insurers and the total amount of health insurance premiums collected in this state by each insurer. These two numbers will be used as the denominator and the numerator, respectively, in the calculation of an insurer's assessment. One commenter stated that the title of sec.3.13001(e) should be changed since the subsection did not address enforcement of the section. The commenter suggested the subsection be titled "Unpaid Assessments or Abatements." RESPONSE: The department agrees with the comment and changed sec.3.13001(e) in accordance with the comment. One commenter recommended that sec.3.13001(e)(2) be changed by adding a sentence at the end of the paragraph so it would conform with Insurance Code, Article 3.77, sec.13(c). RESPONSE: The sentence, "The insurer receiving such abatement or deferment shall remain liable to the pool for the deficiency," was added to paragraph(2). Comments on the provisions of the section were received from Texas Health Insurance Risk Pool, American Council of Life Insurance, Texas Association of Life and Health Insurers and Health Insurance Association of America. The Texas Health Insurance Risk Pool and the Texas Association of Life and Health Insurers also testified at the hearing. No comments for or against the section were received. The new section is adopted under the Insurance Code, Articles 3.77 and 1.03A. Article 3.77, sec.8 provides authorization for the Commissioner of Insurance to adopt rules to provide the procedures, criteria and forms necessary to implement, collect, and deposit assessments made and collected under the Insurance Code, Article 3.77, sec.13. Article 1.03A provides that the commissioner of insurance may adopt rules and regulations for the conduct and execution of the duties and functions of the Texas Department of Insurance only as authorized by a statute. sec.3.13001.Assessments. (a) Definitions. Words and terms used in this section that are defined in Insurance Code, Article 3.77, have the same meanings as defined therein. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise. (1) Health insurance premiums - any consideration collected by an insurer for individual or group medical or health care services for residents of the State of Texas whether by insurance or otherwise, or received by a health care plan or arrangement that pays for or furnishes medical or health care services whether by insurance or otherwise. (A) The term includes, but is not limited to the coverages described in clauses (i) - (iv) of this paragraph: (i) individual or group medical or health care services; (ii) Stop-loss or excess loss insurance for physicians, health care providers, hospitals, or for any benefit arrangements to the extent permitted by Section 3, Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002); (iii) Hospital, medical or surgical expense incurred coverages or any combination of coverages; or (iv) Health coverage provided through a multiple employer welfare arrangement, except for any amount for stop loss or excess loss insurance. (B) The term does not include the coverages described in (i) - (x) of this paragraph: (i) short term limited duration coverage; (ii) coverage only for accident (including accidental death and dismemberment; (iii) disability income insurance; (iv) dental only or vision only benefits that are limited in scope to a narrow range or type of benefits and that are generally excluded from policies that combine hospital medical or surgical benefits; (v) credit insurance; (vi) coverage only for a specified disease or illness (for example, cancer policies), or hospital indemnity or other fixed indemnity insurance (for example "Hospital Confinement Indemnity Coverage" as defined in sec.3.3073 of this title (relating to Minimum Standards for Hospital Confinement Indemnity Coverage) provided that: (l) there is no coordination between the provision of benefits and benefits provided under any other policy; and (ll) benefits are paid with respect to a covered event regardless of whether benefits are provided with respect to the same event under any policy. (vii) coverage issued as a supplement to liability insurance; (viii) insurance arising out of workers' compensation or similar law; (ix) automobile medical-payment insurance and personal injury protection; or (x) insurance under which benefits are payable with or without regard to fault and which is statutorily required to be contained in any liability insurance policy or equivalent self insurance. (2) Insurer - any entity that provides health insurance in this state, including stop-loss or excess loss insurance. The term includes, but is not limited to, an insurance company; a health maintenance organization operating under the Texas Health Maintenance Organization Act (Chapter 20A, Insurance Code); an approved nonprofit health corporation; a fraternal benefit society; a stipulated premium insurance company; a group hospital service corporation subject to Chapter 20, Insurance Code; a multiple employer welfare arrangement subject to Insurance Code, Article 3.95-1 et seq., a surplus lines carrier; an insurer providing stop-loss or excess loss insurance to physicians, health care providers, hospitals, or to any benefit arrangements to the extent permitted by Section 3, Employee Retirement Income Security Act of 1974 (29 U.S.C. Section 1002); and any other entity providing a plan of health insurance or health benefits subject to state insurance regulation. (3) Interim assessment - an assessment made for the purpose of funding anticipated shortfall of revenues to cover organizational and interim operating expenses, including claims, of the pool. (4) Regular assessment - an assessment made for the purpose of recouping any net losses of the pool during the previous calendar year. (b) Procedures. (1) For the purpose of providing the funds necessary to carry out the powers and duties of the pool, the board shall determine interim and regular assessments, at such times and for such amounts as the board finds necessary. (2) Interim and regular assessments may be considered at any meeting of the board and must be approved by the board in accordance with the plan of operation. (c) Criteria. (1) Computation of the funds necessary to carry out the powers and duties of the pool shall be made with a reasonable degree of accuracy, recognizing that exact determinations may not always be possible. (2) Regular assessments shall cover the net losses of the pool, including administrative expenses and incurred losses, for the preceding calendar year as determined by the board and reported in the annual statement of the pool filed with the commissioner. Any interim assessments made in a fiscal year shall be credited as offsets against the regular assessment for that fiscal year. (3) Interim assessments shall cover projected cash requirements of the pool, as determined by the board, after taking into account operating and investment activity and expected and incurred losses for the current calendar year which may exceed collected premiums. (4) The board shall determine the health insurance premiums of all insurers and each insurer in the state from information provided by the insurers, subject to verification as provided in paragraph (6) of this subsection. If an insurer fails to timely respond to a request for information, the board shall presume that the unresponsive insurer has no health insurance premiums exempt from assessment and the amount reflected in the Schedule T of the annual statement for the preceding year for accident, health insurance premium including policy, membership and other fees shall be used in determining its assessment. In the event the entity does not file on schedule T, or does not file schedule T for all affected premiums, the board shall use the most comparable available information. (5) The assessment imposed against each insurer shall be in an amount that is equal to the ratio of the health insurance premiums collected by the insurer in this state during the preceding calendar year, except for Medicare supplement premiums subject to Insurance Code, Article 3.74 and small group health insurance premiums subject to Insurance Code, Articles 26.01 through 26.76, to the health insurance premiums collected by all insurers in this state during the preceding calendar year, except for Medicare supplement premiums subject to Insurance Code, Article 3.74 and small group health insurance premiums subject to Insurance Code, Articles 26.01 through 26.76. (6) The board may audit from time to time the information provided by insurers under paragraph (4) of this subsection. (7) The board shall determine the due date for payment of the assessment, which shall not be less than the 30th day after the date on which the notice of the assessment is mailed to the insurers. Interest shall accrue on any unpaid amount at a rate determined by the board, beginning on the due date. (8) The total amount of all assessments on an insurer in a calendar year shall not exceed one-half of one percent of the insurer's health insurance premiums for that year. The limitation in this paragraph does not apply on or after January 1, 2000. (d) Forms. (1) The board shall adopt a form for the invoicing of each insurer's portion of any assessment. The form shall include: (A) The health insurance premiums for all insurers for the preceding calendar year except for Medicare supplement premiums subject to Article 3.74 and small group health insurance premiums subject to Articles 26.01 through 26.76; (B) The health insurance premiums for the individual insurer for the preceding calendar year except for Medicare supplement premiums subject to Article 3.74 and small group health insurance premiums subject to Articles 26.01 through 26.76; (C) The amount of total assessment and whether the assessment is a regular assessment or interim assessment; (D) If a regular assessment, the amount of any interim assessment credited toward that regular assessment; (E) The amount of the assessment for the insurer; and (F) The payment due date for the assessment and the interest rate which will apply to any delinquent payment. (2) The board shall adopt a form for requesting the data necessary to determine the amount of assessments. (e) Unpaid Assessments or Abatements. (1) Any insurer whose certificate of authority to do business in this state is canceled or surrendered shall be liable for any unpaid assessments that relate to health insurance premiums written prior to the date of such cancellation or surrender. (2) An insurer may petition the commissioner for an abatement or deferment of all or part of an assessment imposed by the board. The commissioner may abate or defer, in whole or in part, such assessment if the commissioner determines that the payment of the assessment would endanger the ability of the participating insurer to fulfill its contractual obligations. If an assessment against an insurer is abated or deferred in whole or in part, the amount of such assessment abated or deferred shall be assessed against the other insurers in a manner consistent with the basis for assessments set forth in Insurance Code, Article 3.77, sec.13(e). The insurer receiving such abatement or deferment shall remain liable to the pool for the deficiency. 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. Filed with the Office of the Secretary of State on January 27, 1998. TRD-9801200 Caroline Scott General Counsel and Chief Clerk Texas Department of Insurance Effective date: February 16, 1998 Proposal publication date: December 19, 1997 For further information, please call: (512) 463-6327 CHAPTER 12. Independent Review Organizations SUBCHAPTER C. General Standards of Independent Revies 28 TAC sec.12.208 Due to a technical error on behalf of the Texas Register, the text of the following rule submitted by the Texas Department of Insurance was inadvertently omitted from the November 21, 1997, issue of the Texas Register (22 TexReg 8853). Section 12.208 was adopted with changes and should have been republished. sec.12.208. Confidentiality. (a) An independent review organization shall preserve the confidentiality of individual medical records, personal information, and any proprietary information provided by payors. Personal information shall include, at a minimum, name, address, telephone number, social security number and financial information. (b) An independent review organization may not disclose or publish individual medical records or other confidential information about a patient without the prior written consent of the patient or as otherwise required by law. An independent review organization may provide confidential information to a third party under contract or affiliated with the independent review organization for the sole purpose of performing or assisting with independent review. Information provided to third parties shall remain confidential. (c) The independent review organization may not publish data which identify a particular payor, physician or provider, including any quality review studies or performance tracking data, without prior written consent of the involved payor, physician or provider. This prohibition does not apply to internal systems or reports used by the independent review organization. (d) All payor, patient, physician, and provider data shall be maintained by the independent review organization in a confidential manner which prevents unauthorized disclosure to third parties. Nothing in this chapter shall be construed to allow an independent review organization to take actions that violate a state or federal statute or regulation concerning confidentiality of patient records. (e) To assure confidentiality, an independent review organization must, when contacting a utilization review agent, a physician's or provider's office, or hospital, provide its certification number and the caller's name and professional qualifications to the provider or the provider's named independent review representative. (f) The independent review organization's procedures shall specify that specific information exchanged for the purpose of conducting review will be considered confidential, be used by the independent review organization solely for the purposes of independent review, and be shared by the independent review organization with only those third parties who have authority to receive such information. The independent review organization's plan shall specify the procedures that are in place to assure confidentiality and that the independent review organization agrees to abide by any federal and state laws governing the issue of confidentiality. Summary data which does not provide sufficient information to allow identification of individual patients, providers, payors or utilization review agents need not be considered confidential. (g) Medical records and patient-specific information shall be maintained by the independent review organization in a secure area with access limited to essential personnel only. (h) Information generated and obtained by the independent review organization in the course of the review shall be retained for at least four years if the information relates to a case for which an adverse decision was made at any point. (i) Destruction of documents in the custody of the independent review organization that contain confidential patient information or payor, physician or provider financial data shall be by a method which ensures complete destruction of the information, when the organization determines that the information is no longer needed. 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. Filed with the Office of the Secretary of State on November 6, 1997. TRD-9714792 Lynda H. Nesenholtz Assistant General Counsel Texas Department of Insurance Effective date: November 26, 1997 Proposal publication date: September 5, 1997 For further information, please call: (512) 463-6327 TITLE 34. PUBLIC FINANCE PART IV. Employee Retirement System of Texas CHAPTER 85.Flexible Benefits 34 TAC sec.sec.85.1, 85.3, 85.5, 85.7, 85.13 The Employees Retirement System of Texas (ERS), adopts amendments to sec.sec.85.1, 85.3, 85.5, 85.7, and 85.13, concerning the Flexible Benefits (Cafeteria Plan) Program without changes to the proposed text as published in the November 7, 1997 issue of the Texas Register (22 TexReg 10922). These rules are being amended to reflect the inclusion of the premium conversion plan into the Uniform Group Insurance Program rules. Premium conversion plan rules will be located in the Uniform Group Insurance Program rules. No comments were received regarding adoption of these amendments. The amendments are adopted under Insurance Code, Article 3.50-2, sec.4A, which provides the ERS with the authority to promulgate all rules and regulations necessary to implement and to administer the Uniform Group Insurance Program and the Flexible Benefits (Cafeteria Plan) Program. 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. Filed with the Office of the Secretary of State on January 23, 1998. TRD-9801101 Sheila W. Beckett Executive Director Employee Retirement System of Texas Effective date: February 12, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 867-3336 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART VI. Texas Department of Criminal Justice CHAPTER 163.Community Justice Assistance Division Standards 37 TAC sec.163.34 The Texas Department of Criminal Justice adopts new sec.163.34 concerning carrying of weapons without changes to the proposed text as published in the December 5, 1997, issue of the Texas Register (22 TexReg 12025). The new section is needed in order to address all of the requirements necessary for CSCD officers carrying weapons. One interagency comment was received from the director of training and staff development concerning a Memorandum of Understanding between the Department and the Texas Commission on Law Enforcement Officer Standards and Education. House Bill 2909 (Chapter 1261, Session Laws, 75th Legislature) requires the two agencies to enter into an agreement regarding firearms proficiency training for supervision officers. The Texas Commission on Law Enforcement Officer Standards and Education has proposed in the December 26, 1997, issue of the Texas Register (22 TexReg 12708), 37 TAC sec.211.33 (relating to Memorandum of Understanding Regarding Firearms Proficiency Training for Supervision Officers). In response to the comment received and to comply with House Bill 2909 (Chapter 1261, Session Laws, 75th Legislature), the Department is proposing, in this issue of the Texas Register, new sec.159.9 which adopts by reference 37 TAC sec.211.33. The new section is adopted under sec.76.0051, Government Code, which authorizes CSOs to carry weapons; sec.415.038, which requires TCLEOSE training for CSOs; and sec.509.003, which provides general rulemaking authority for CJAD standards. 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. Filed with the Office of the Secretary of State on February 2, 1998. TRD-9801438 Carl Reynolds General Counsel Texas Department of Criminal Justice Effective date: February 22, 1998 Proposal publication date: December 5, 1997 For further information, please call: (512) 463-9693 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 19. Nursing Facility Requirements for Licensure and Medicaid Certification The Texas Department of Human Services (DHS) adopts the repeal of sec.19.2147; amendments to sec.sec.19.1, 19.101, 19.201, 19.204, 19.210, 19.212, 19.214, 19.216, 19.326, 19.401, 19.403, 19.408, 19.415, 19.502, 19.503, 19.601, 19.602, 19.801, 19.1001, 19.1010, 19.1101, 19.1104, 19.1912, 19.1918, 19.1920, 19.1921, 19.2002, 19.2004, 19.2008, 19.2102, 19.2104, 19.2106, 19.2110, 19.2112, 19.2146, 19.2308, 19.2320; and new 19.205, 19.209, 19.2111, 19.2114, 19.2115, 19.2147, and 19.2148, concerning Nursing Facility Requirements for Licensure and Medicaid Certification. The repeal of sec.19.2147; amendments to sec.sec.19.1, 19.201, 19.204, 19.210, 19.212, 19.216, 19.326, 19.401, 19.403, 19.408, 19.415, 19.503, 19.601, 19.801, 19.1001, 19.1010, 19.1101, 19.1912, 19.1918, 19.1920, 19.1921, 19.2002, 19.2004, 19.2008, 19.2102, 19.2146, 19.2308, 19.2320; and new sec.sec.19.205, 19.209, 19.2111, 19.2114, 19.2115, and 19.2147 are adopted without changes to the proposed text published in the November 7, 1997, issue of the Texas Register (22 TexReg 10928), and the text will not be republished. Sections 19.101, 19.214, 19.502, 19.602, 19.1104, 19.2104, 19.2106, 19.2110, 19.2112, and 19.2148 are adopted with changes to the proposed text. The justification for the repeals, amendments, and new sections is that the department is implementing new legislation which gives DHS additional authority to deny, suspend, or revoke the licenses of providers of poor quality care and also provides greater enforcement remedies for providers who violate licensure rules. Texas nursing facility residents will be better protected through these amendments. The amendments and new sections will function by implementing the changes to the Health and Safety Code mandated by major parts of Senate Bill 190 and Senate Bill 118 passed during the 75th legislative session and by making other minor changes. The department received the following comments from Advocates for Nursing Home Reform, the National Committee to Preserve Social Security and Medicare, the Texas Health Care Association, the Texas Dietetic Association, the American Association of Retired Persons, Texas Advocates for Nursing Home Residents, the Texas Association of Homes and Services for the Aged, the Texas Association of Licensed Facility Administrators and individuals at the December 3, 1997, public hearing and during the comment period: Comment: Numerous commenters expressed concern about the term "willful" in the proposed definition of "abuse" because it sets a very high standard for proving culpability in cases of alleged abuse. Retaining the former definition which contains the terms "knowingly" and "recklessly" will provide broader protection for the residents. Response: The department concurs and will retain the current language. Comment: Regarding sec.19.101, since the definitions for abuse, neglect and misappropriation have changed, a new letter to nursing facilities (NFs) advising them on when to report abuse, neglect and misappropriation of resident property is needed. The current letter of instruction is inconsistent with the proposed change in definitions. Response: The department's response to the previous comment will make a new letter unnecessary. Comment: Numerous commenters asked to retain the language proposed to be deleted at sec.19.502, regarding notifying the department when a facility is planning to discharge a resident with less than 30 days notice. The commenters stated that the current rule has served as a deterrent to unnecessary immediate discharges. Response: The department concurs and will retain the current language. Comment: Retain the current language at sec.19.1912(e)(1)(C) regarding starting a new medication sheet after a resident returns to a facility from a brief hospitalization. The current language provides some hope that staff will be actively aware of what medications a readmitted resident is to have. Response: The department does not concur and will adopt the rule as proposed. The deleted language requires nursing staff to spend time on an unnecessary task: copying a medication record on to a new sheet. Deleting the requirement will allow nursing staff to make a notation of the hospitalization, delete any discontinued medications, add any new medications prescribed as a result of the hospitalization, and continue the previously prescribed medications. This method will actually promote nursing staff's awareness of all medications of a readmitted resident. Comment: Regarding sec.19.1001, adopt the Consumer's Minimum Staffing Standard for every nursing facility, which includes a full- time RN Director of Nursing, a full-time RN Assistant Director of Nursing in facilities of 100 beds or more, a full-time RN Director of In-service Education in facilities of 100 beds or more, an RN nursing supervisor on duty at all times, and the following ratios: Direct Caregivers (licensed nurse or certified nurse aide) to resident - day: 1 to 5; evening: 1 to 10; and night: 1 to 15; and Licensed Nurse to Resident - day: 1 to 15; evening: 1 to 25; and night: 1 to 35. Response: Nursing facilities in Texas utilize a case-mix system. The impact of this is that each NF has a different staffing need based on the service requirements of its residents. This difference in case-mix makes it difficult to propose any one minimum standard that would be meaningful. However, the department will study this issue seriously and will make recommendations prior to the 76th legislative session. Comment: Change sec.19.601(a)(1) to require that restrained residents be observed at least every ten minutes, with restraints released and the resident repositioned every hour. Response: The language at sec.19.601(a)(1) will be retained. The current language requires that "restraints must be released and the resident repositioned as needed to prevent deterioration in the resident's condition." The rules further state that at a minimum restraints should be released and the resident repositioned every two hours. This rule does not preclude releasing the restraints more often than every two hours. Comment: In sec.19.801, please specify that the full Resident Assessment Instrument be used, including the Minimum Data Set and the Resident Assessment Protocols, and that assessment reviews be routinely required every three months. Response: The current rules require the above. No changes are necessary. Comment: The workgroup's consensus document includes, at sec.19.210(a)(2), the requirement that a "change in the owner holding the facility license" is a change in ownership which requires the submission of a full license application. The proposed rule omits this language. We therefore recommend modifying sec.19.210(a) to reflect the consensus document. In this regard, it may be necessary to add a provision to sec.19.2308 indicating that among the requirements to transfer ownership is the full re-licensure of the new owner. The functional definition of a "change in ownership" should be consistent in both sec.19.210 and sec.19.2308. Response: The new wording does not reflect a change in the meaning of this rule. Draft subparts (a)(1) and (2) were combined to clarify that the department considers a change of ownership to be a change of 50% or more in the ownership of the business organization that is licensed to operate the facility, or, if the entity licensed to operate the facility is an actual person rather than some type of business entity, a change from that person to either another person or a business organization. The functional definition of "change of ownership" is consistent in sec.19.210 and sec.19.2308. Comment: Add the sentence "Each day of a continuing violation constitutes a separate violation" to sec.19.2112(f) as the second sentence in that subsection, immediately after the sentence "Administrative penalties may be levied for each violation found in a single survey." This sentence was dropped from the workgroup's consensus document. Response: The department has made the suggested change. Comment: sec.19.214(a)(4) carries forward the outdated phrase "applicant, manager or affiliate." Change this to "person." Response: The department has made the suggested change. Comment: sec.19.1104(a), regarding Dietary Consultant Requirements, needs further modification to satisfy fully the mandate of Senate Bill 190, which required, at sec.242.403, "nutrition services...in scheduled consultation with (a licensed dietitian) as frequently and for such time as the department shall determine necessary to assure each resident a diet that meets the daily nutritional and special dietary needs of each resident." Therefore, we recommend the following changes to the first sentence of the proposed language: "The facility must ensure that a qualified dietitian is available as frequently and for such time as is necessary to assure each resident a diet that meets the daily nutritional and special dietary needs of each resident, based upon the acuity and clinical needs of the resident." Response: The department concurs and has made the suggested change. Comment: The department should supply the bimonthly facility compliance record which sec.19.1921(e)(3)(A) requires a facility to post. Response: The department does not concur and will propose that the facility will be responsible for the record. Comment: Regarding sec.19.101 and sec.19.2110, change the definition of threatened violation to more closely follow the statute in Section 242.063(a)(1) and (2) so that it reads,"a situation which, unless immediate steps are taken to correct, the department has reason to believe creates a threat of injury or harm to a resident's health and safety." Response: The proposed language was agreed upon in the SB 190 workgroup. The department will retain the proposed language. Comment: Regarding sec.19.201(f), clarification is needed that based on the applicant's personal judgement he/she is signing the sworn affidavit of a satisfactory compliance history. Add to this section; "the applicant swears or affirms that in his personal judgement." Response: The actual language of the affidavit on the application, which includes the affidavit of compliance history, is: My name is (person's name). I am over the age of 18, legally competent and in all respects qualified and authorized to make this affidavit. The facts set forth in the foregoing application are true and correct. I understand that submission of false information in the foregoing application will constitute grounds for denial, suspension, or revocation of my nursing facility license. The department needs to receive accurate information so the application can be properly processed and evaluated. It is the responsibility of the applicant to be sure the information on the application is true and correct. If the applicant questions whether the information is true and correct, he should resolve the questions or verify the information before signing the affidavit. Comment: Regarding sec.19.204 (c), the wording of this section for additional background information is too vague. It specifies that "at the request of DHS, an applicant or license holder must provide to the department any additional background information within 30 days of the request." This rule needs to specify that additional information as outlined by the application process can be requested. Response: The department retains the right to request any and all information it deems necessary in investigating the background of an applicant. The language will be retained as proposed. Comment: Regarding sec.19.205 (2), which proposes that all facilities must complete the supplemental licensure application information form and submit it to the Licensing Section of Long Term Care-Regulatory within 90 days. Instead of having the supplementation due within 90 days of the effective date of the regulation, we recommend that each license holder submit supplemental information at the time of renewal. At the end of item (2) delete "within 90 days" and add "at the time of renewal." Response: The department does not concur. The recommendation above would take two years to implement because licenses are renewed every two years. All facilities must comply with the requirements of SB 190 as soon as possible. Comment: Regarding sec.19.209 (a), the section on exclusion from licensure for two to ten years should only be applied when the failure is persistent and permeating throughout the operation. Add to the end of (a) "and this failure is persistent and permeating throughout the operation." Response: The SB 190 workgroup fully discussed the language suggested above, but agreed upon the proposed language instead. The department will retain the proposed language. Comment: Regarding sec.19.214 (a)(1)(A) and (B), a history of satisfactory compliance should be determined by conditions over the five-year period and not just a single incident or an isolated snapshot of the facility. The focus should be on the cumulative history and not a single violation. The department should look to see if there is a pattern of threat or a failure to fix problems and not a single violation. Other remedies are available to the department (i.e. revocation of a license) if there is a situation that warrants immediate remedies. Change (A) and (B) to reflect a pattern rather than a single incident. Response: The department does not concur. A single violation is a part of a facility's compliance history, and as such, the department needs be aware of it. The department will retain the proposed language. Comment: Regarding sec.19.214 (a)(1)(E), what is a "reasonable period of time?" This requirement should be more specific and tied to deadlines in the rules that are in accordance with promulgated guidelines. Response: The department concurs and will change "reasonable period of time" to "an acceptable period of time, as specified in the plan of correction or credible allegation of compliance, whichever is appropriate." Comment: Regarding sec.19.214 (a)(7)(B), this section should be limited to imposed (and not proposed) federal or state nursing facility sanctions or penalties. In item (c) of this section it states that only final actions are considered for the purposes of (a) (7). We agree with this and recommend that only final actions be reported. Add the word "final actions" at the beginning of (B). Response: The department does not concur. The items listed under sec.19.214(a)(7) are instances for which the department may deny a license. As part of the decision-making process, the department needs to know if a facility has had sanctions or penalties proposed. Comment: Regarding sec.19.401(b), the Statement of Resident Rights, the list of rights should follow the language in the bill for clarity. The bill speaks to residents not giving up their constitutional, civil, and legal rights. The proposed language is "You, the resident do not give up any rights when you enter a nursing facility." Change the wording to read: "You the resident do not give up constitutional, civil, and legal rights when you enter a nursing facility." Also, resident right number 1 "to all care necessary for you to have the highest possible level of health" is not in the statute. This concept follows a rule from the OBRA statute and is already in state and federal rules. Delete number 1 from the list of resident rights. There was discussion during the workgroup to incorporate all resident rights lists into this list. The department's list of resident rights needs to be an accumulation of all resident rights legislation that has been passed so the facility will only have to hand out one list of resident rights instead of multiples. This will assist the resident in understanding their rights. Has this been accomplished so facilities can give residents one list? Response: The first two points were raised in the SB 190 workgroup. The consensus of the group was that "all rights" is a simpler and more easily understood way of saying "constitutional, civil, and legal rights." The first right listed is a paraphrasing of the OBRA statute, and as such, the department wishes to retain it as proposed. A consolidation of all rights has not been accomplished at this time, but may occur when the Texas Department on Aging completes its listing of rights pursuant to the revisions of Chapter 102 of the Human Resources Code. Comment: Regarding sec.19.1921(e)(4), what is the summary required in this rule as "non-technical language prepared by DHS?" Response: The summary is Licensure Form 3630. Comment: Regarding sec.19.2008, we recommend that the department encourage the complainant to identify himself/herself so the department can provide a follow- up on the complaint and obtain additional information if necessary. We also suggest that the following language from the SB 190 statute, found at sec.242.551(b), be added so that the department will encourage persons making an oral complaint to also submit a written, signed complaint: "The department shall encourage a person who makes an oral complaint to submit a written, signed complaint." Response: The department does not disagree with the comments; however, they pertain more to TDHS's internal procedures than to rule language. As to the first comment, the department already encourages individuals to identify themselves upon initial contact. The other comment will be pilot-tested. Comment: Regarding sec.19.2110, Referral to the Attorney General, add language from Appendix Q that the facility has the opportunity to correct. The referral for injunctions and restraining orders would occur if the facility were unable or not willing to comply with the requirements of participation. Response: The department does not concur. Senate Bill 190 does not contain the opportunity to correct in relation to a referral to the Attorney General. Comment: Regarding sec.19.2112, to effectively implement the administrative penalties system that is being proposed, we suggest that a comprehensive set of guidelines be developed. These guidelines can provide department staff the tools they need to implement a system that is consistent throughout the state. Response: The department is developing a set of guidelines which should be available by February 1998. Comment: Regarding sec.19.2114(d)(1)(B), the words "serious threat to health and safety of resident" and "substantially limits the facility's capacity to provide care" are not defined. Add definitions to the above phrases. Response: The department does not wish to define the two terms listed above. In order to protect the department's ability to address the wide range of circumstances which might occur in one of Texas' 1100 NFs, it is important that the terms be subject to broad interpretation. Comment: Regarding sec.19.2115, direction is needed on the use of amelioration of fines. Add the following language to clarify the amelioration of violation section: "If the facility has a history of correcting violations in a timely fashion, the Commissioner will allow amelioration of the fine. The department will direct the facility to use appropriate funds to correct the violation in lieu of assessing an administrative penalty." Response: Many factors will be given consideration when making the decision to allow amelioration; your recommendation will be one of those factors. However, each situation will be different and the department does not want to limit in any way the Commissioner's discretion to use the amelioration of fines. Comment: Regarding sec.19.2320(e)(2)(C), the wording in this item could require the nursing facility to obtain a prior-authorization for transport for everyone with nonemergency ambulance transportation needs. Some patients will require medical transportation indefinitely and prior-authorization would be unnecessary. The Texas Department of Health acknowledges this and does allow for an annual prior- authorization. Add the following sentence to the end of item (C): " For the resident that has a chronic or permanent medical condition that will require transportation by way of ambulance indefinitely, TDH shall grant "permanent certificate of permission." Response: The department does not concur. Details about the prior- authorization procedure will be contained in the Medicaid Provider Manual, and therefore, are not needed in the rule. Comment: The definition of "controlling person" and the language at sec.19.2116(b) regarding administrative penalties poses a problem to the extent that a licensed facility administrator could possibly be a "person in a position of actual control or authority with respect to a nursing facility" and also could be said to be a "managing employee of a licensed nursing facility." If so, then an administrator could be twice penalized for a single act of omission: the administrator could be subject to administrative penalties under sec.19.2112 and under the sanctions in the regulatory program for licensed facility administrators established by Senate Bill 84, currently found at 42 TAC sec.241.11 and sec.241.20. This effectively puts the administrator in double jeopardy. Any and all administrative penalties against administrators should be assessed only through the regulatory scheme set in place under Senate Bill 84. We seek a specific exemption in sec.19.2112 for administrators or a statement in the adoption of proposed rules to the effect that any and all potential disciplinary actions, including the possibility of administrative penalties, against administrators will be conducted exclusively according to the requirements of Senate Bill 84 and rules implemented under that legislation. Response: Both the definition of "controlling person" and sec.19.2112 were taken directly from statute. As such, the department cannot exempt administrators from their provisions. In addition, the department made changes to several sections. In sec.19.101, Definitions, the department has deleted the proposed language of abuse, misappropriation of resident property, and neglect, and added the former definitions of abuse, misappropriation of funds, and neglect. In sec.19.214(a)(1), the department has changed the comma after nursing home regulations to a period and capitalized the word "in." In sec.19.602(d) the phone number is now 1-800-458-9858. In both sec.19.2104 and sec.19.2106 the reference in (a)(2) to sec.19.214(a)(2)-(6) now reads sec.19.2112(a)(2)-(6) of this title (relating to Administrative Penalties). In sec.19.2110, the department deleted "it" in the first sentence to clarify the sentence. In sec.19.2112(i) the department deleted "or" in the first sentence to correct a Texas Register error that left out the deletion in the proposal. In sec.19.2148 the department corrected the reference to 1 TAC Chapter 163 that was erroneously deleted by the Texas Register. SUBCHAPTER A. Basis and Scope 40 TAC sec.19.1 The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Health and Safety Code, sec.sec.242.001-242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801297 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER B. Definitions 40 TAC sec.19.101 The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Health and Safety Code, sec.sec.242.001-242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.101. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Abuse - Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental/psychological, or physical abuse, including corporal punishment, involuntary seclusion, or any other actions within this definition. (A) "Involuntary seclusion" - Separation of a resident from others or from his room against the resident's will or the will of the resident's legal representative. Temporary monitored separation from other residents will not be considered involuntary seclusion and may be permitted if used as a therapeutic intervention as determined by professional staff and consistent with the resident's plan of care. (B) "Mental/psychological abuse" - Mistreatment within the definition of "abuse" not resulting in physical harm, including, but not limited to, humiliation, harassment, threats of punishment, deprivation, or intimidation. (C) "Physical abuse" - Physical action within the definition of "abuse," including, but not limited to, hitting, slapping, pinching, and kicking. It also includes controlling behavior through corporal punishment. (D) "Sexual abuse" - Any touching or exposure of the anus, breast, or any part of the genitals of a resident without the voluntary, informed consent of the resident and with the intent to arouse or gratify the sexual desire of any person and includes but is not limited to sexual harassment, sexual coercion, or sexual assault. (E) "Verbal abuse" - The use of any oral, written, or gestured language that includes disparaging or derogatory terms to a resident or within the resident's hearing distance, regardless of the resident's age, ability to comprehend, or disability. Controlling person - A person with the ability, acting alone or in concert with others, to directly or indirectly, influence, direct, or cause the direction of the management, expenditure of money, or policies of a nursing facility or other person. A controlling person does not include a person, such as an employee, lender, secured creditor, or landlord, who does not exercise any influence or control, whether formal or actual, over the operation of a facility. A controlling person includes: (A) a management company, landlord, or other business entity that operates or contracts with others for the operation of a nursing facility; (B) any person who is a controlling person of a management company or other business entity that operates a nursing facility or that contracts with another person for the operation of a nursing facility; and (C) any other individual who, because of a personal, familial, or other relationship with the owner, manager, landlord, tenant, or provider of a nursing facility, is in a position of actual control or authority with respect to the nursing facility, without regard to whether the individual is formally named as an owner, manager, director, officer, provider, consultant, contractor, or employee of the facility. Misappropriation of funds - The taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident. Neglect - A deprivation of life's necessities of food, water, or shelter, or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury, or harm or death to the resident. Person - An individual, firm, partnership, corporation, association, joint stock company, limited partnership, limited liability company, or any other legal entity, including a legal successor of those entities. Threatened violation - A situation which, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801298 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER C. Nursing Facility Licensure Application Process 40 TAC sec.sec.19.201, 19.204, 19.205, 19.209, 19.210, 19.212, 91.214, 91.216 The amendments and new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities. The amendments and new sections implement the Health and Safety Code, sec.sec.242.001-242.804. sec.19.214. Criteria for Denying a License or Renewal of a License. (a) The Texas Department of Human Services (DHS) may deny an initial license or refuse to renew a license if an applicant, or any person required to submit background and qualification information: (1) does not have a satisfactory history of compliance with state and federal nursing home regulations. In determining whether there is a history of satisfactory compliance with federal or state regulations, DHS at a minimum may consider: (A) whether any violation resulted in significant harm or a serious and immediate threat to the health, safety, or welfare of any resident; (B) whether the person promptly investigated the circumstances surrounding any violation and took steps to correct and prevent a recurrence of a violation; (C) the history of surveys and complaint investigation findings and any resulting enforcement actions; (D) repeated failure to comply with regulation; (E) inability to attain compliance with cited deficiencies within an acceptable period of time as specified in the plan of correction or credible allegation of compliance, whichever is appropriate; (F) the number of violations relative to the number of facilities the applicant or any other person named in sec.19.201(e) of this title (relating to Criteria for Licensing) has been affiliated with during the last five years; and (G) any exculpatory information deemed relevant by DHS; (2) has committed any act described in sec.19.2112(a)(2)-(6) of this title (relating to Administrative Penalties); (3) violated Chapter 242 of the Texas Health and Safety Code in either a repeated or substantial manner; (4) aids, abets, or permits a substantial violation described in paragraph (3) of this subsection about which the person had or should have had knowledge; (5) fails to provide the required information and facts and/or references; (6) fails to pay the following fees, taxes, and assessments when due: (A) licensing fees as described in sec.19.216 of this title (relating to License Fees); (B) reimbursement of emergency assistance funds within one year from the date on which the funds were received by the trustee in accordance with the provisions of sec.19.2116(e) and (f) of this title (relating to Involuntary Appointment of a Trustee); or (C) franchise taxes; (7) discloses any of the following actions within the five-year period preceding the application: (A) operation of a facility that has been decertified and/or had its contract canceled under the Medicare or Medicaid program in any state; (B) federal or state nursing facility sanctions or penalties, including, but not limited to, monetary penalties, downgrading the status of a facility license, proposals to decertify, directed plans of correction or the denial of payment for new Medicaid admissions; (C) state or federal criminal convictions for any offense that provides a penalty of incarceration; (D) unsatisfied final judgments; (E) eviction involving any property or space used as a facility in any state; or (F) suspension of a license to operate a health care facility, long- term care facility, personal care facility, or a similar facility in any state. (b) DHS will not issue a license to an applicant to operate a new facility if the applicant discloses any of the following actions during the five-year period preceding the application: (1) revocation of a license to operate a health care facility, long- term care facility, personal care facility, or similar facility in any state; (2) debarment or exclusion from the Medicare or Medicaid programs by the federal government or a state; or (3) a court injunction prohibiting the applicant or manager from operating a facility. (c) Only final actions are considered for purposes of subsections (a)(7) and (b) of this section. An action is final when routine administrative and judicial remedies are exhausted. All actions, whether pending or final, must be disclosed. (d) If an applicant for a new license owns multiple facilities, the overall record of compliance in all of the facilities will be examined. Denial of an application for a new license will not preclude the renewal of licenses of other of the applicant's facilities with satisfactory records. (e) If DHS denies a license or refuses to issue a renewal of a license, the applicant or licensee may request an administrative hearing. Administrative hearings are held under the provisions of the Administrative Procedures Act (APA), Title 10 of the Texas Government Code, sec.sec.2001.051 et seq, and DHS's formal hearing rules in sec.sec.79.1601 - 79.1614 of this title (relating to Formal Hearings). 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801299 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER D. Facility Construction 40 TAC sec.19.326 The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities. The amendment implements the Health and Safety Code, sec.sec.242.001-242.804. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801300 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER E. Resident Rights 40 TAC sec.sec.19.401, 19.403, 19.408, 19.415 The amendments and new section are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments and new section implement the Health and Safety Code, sec.sec.242.001-242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801301 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER F. Admission, Transfer, and Discharge Rights in Medicaid-Certified Facilities 40 TAC sec.19.502, sec.19.503 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec.sec.22.001- 22.030 and sec.sec.32.001-32.042. sec.19.502. Transfer and Discharge in Medicaid-certified Facilities. (a)-(d) (No change.) (e) Timing of the notice. (1) (No change.) (2) The requirements described in paragraph (1) of this subsection and subsection (g) of this section do not have to be met if the resident, responsible party, or family or legal representative requests the transfer or discharge. (3) (No change.) (4) When an immediate involuntary transfer or discharge as specified in subsection (b)(3) or (4) of this section, is contemplated, unless the discharge is to a hospital, the facility must: (A) immediately call the staff of the Quality Assurance Review and Investigations Section of the Texas Department of Human Services' (DHS's) state office to report their intention to discharge; and (B) submit the required physician documentation regarding the discharge. (f)-(g) (No change.) (h) Notice of relocation to another room. Except in an emergency, the facility must notify the resident and either the responsible party or the family or legal representative at least five days before relocation of the resident to another room within the facility. The facility must prepare a written notice which contains: (1)-(3) (No change.) (i) Fair hearings. (1) Individuals who receive a discharge notice from a facility have 10 days to appeal. If the recipient appeals, he may remain in the facility, except in the circumstances described in subsections (b)(5) and (e)(3) of this section, until the hearing officer makes a final determination. Vendor payments and eligibility will continue until the hearing officer makes a final determination. If the recipient has left the facility, Medicaid eligibility will remain in effect until the hearing officer makes a final determination. (2) When the hearing officer determines that the discharge was inappropriate, the facility, upon written notification by the hearing officer, must readmit the resident immediately, or to the next available bed. If the discharge has not yet taken place, and the hearing officer finds that the discharge will be inappropriate, the facility, upon written notification by the hearing officer, must allow the resident to remain in the facility. The hearing officer will also report the findings to Long Term Care-Regulatory for investigation of possible noncompliance. (3) When the hearing officer determines that the discharge is appropriate, the resident is notified in writing of this decision. Any payments made on behalf of the recipient past the date of discharge or decision, whichever is later, must be recouped. (j) Discharge of married residents. If two residents in a facility are married and the facility proposes to discharge one spouse to another facility, the facility must give the other spouse notice of his right to be discharged to the same facility. If the spouse notifies a facility, in writing, that he wishes to be discharged to another facility, the facility must discharge both spouses on the same day, pending availability of accommodations. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801302 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER G. Resident Behavior and Facility Practice 40 TAC sec.19.601, sec.19.602 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Health and Safety Code, sec.sec.242.001- 242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.602. Incidents of Abuse and Neglect Reportable to the Texas Department of Human Services (DHS) by Facilities. (a) Any facility staff member who has cause to believe that the physical or mental health or welfare of a resident has been or may beadversely affected by abuse or neglect caused by another person must report the abuse or neglect. Facility staff must also report conduct or conditions resulting in: (1) exploitation of residents; (2) serious accidental injury to residents; or (3) hospitalization of residents. (b) Each employee of a facility must sign a statement which states: (1) the employee may be criminally liable for failure to report abuses; and (2) under the Health and Safety Code, Title 4, sec.242.133, the employee has a cause of action against a facility, its owner(s) or employee(s) if he is suspended, terminated, disciplined, or discriminated or retaliated against as a result of: (A) reporting any action described in subsection (a) of this section to DHS or a law enforcement agency; (B) reporting the abuse or neglect or other complaint to the person's supervisors; or (C) for initiating or cooperating in any investigation or proceeding of a governmental entity relating to care, services, or conditions at the nursing facility. (c) The statements described in subsection (b) of this section must be available for inspection by DHS. (d) Reports described in subsection (a) of this section are to be made to the DHS state office, Austin, Texas, at 1-800-458-9858. The person reporting must make an oral report immediately on learning of the alleged abuse or neglect. (e) The facility must conduct an investigation of the reported acts in subsection (a) of this section. A written report of the investigation must be sent no later than the fifth calendar day after the oral report. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801303 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER I. Resident Assessment 40 TAC sec.19.801 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec.sec.22.001- 22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801304 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER K. Nursing Services 40 TAC sec.19.1001, sec.19.1010 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Health and Safety Code, sec.sec.242.001-242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801305 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER L. Dietary Services 40 TAC sec.19.1101, sec.19.1104 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Health and Safety Code, sec.sec.242.001-242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.1104. Dietary Consultant Requirements. (a) The facility must ensure a qualified dietitian is available as frequently and for such time as is necessary to assure each resident a diet that meets the daily nutritional and special dietary needs of each resident, based upon the acuity and clinical needs of the resident. The facility must ensure that dietary consultant hours are provided, at a minimum, as follows: (1)-(2) (No change.) (b)-(d) (No change.) 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801306 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER T. Administration 40 TAC sec.sec.19.1912, 19.1918, 19.1920, 19.1921 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Health and Safety Code, sec.sec.242.001- 242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801307 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER U. Inspections, Surveys, and Visits 40 TAC sec.sec.19.2002, 19.2004, 19.2008 The amendments are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities. The amendments implement the Health and Safety Code, sec.sec.242.001-242.804. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801308 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER V. Enforcement Enforcement Generally 40 TAC sec.19.2102 The amendment is adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities; under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Health and Safety Code, sec.sec.242.001-242.804, and the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801309 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 Licensing Remedies 40 TAC sec.sec.19.2104, 19.2106, 19.2110-19.2112, 19.2114, 19.2115 The amendments and new sections are adopted under the Health and Safety Code, Chapter 242, which provides the department with the authority to license nursing facilities. The amendments and new sections implement the Health and Safety Code, sec.sec.242.001-242.804. sec.19.2104. Suspension of a License. (a) The Texas Department of Human Services (DHS) may suspend a facility's license when the license holder, or any other person described in sec.19.201(e) of this title (relating to Criteria for Licensing), has: (1) violated the requirements in either a repeated or substantial manner; or (2) committed any act described in sec.19.2112(a)(2)-(6) of this title (relating to Administrative Penalties). (b)-(e) (No change.) sec.19.2106. Revocation of a License. (a) The Texas Department of Human Services (DHS) may revoke a facility's license when the license holder, or any other person described in sec.19.201(e) of this title (relating to Criteria for Licensing), has: (1) violated the requirements of the Health and Safety Code, Chapter 242, or the rules adopted under that chapter, in either a repeated or substantial manner; or (2) committed any act described in sec.19.2112(a)(2)-(6) of this title (relating to Administrative Penalties). (b) Revocation of a license may occur simultaneously with any other enforcement provision available to DHS. (c) The facility will be notified by certified mail of DHS's intent to revoke the license, including the facts or conduct alleged to warrant the revocation. The facility has an opportunity to show compliance with all requirements of law for the retention of the license as provided in sec.19.215 of this title (relating to Informal Reconsideration). If the facility requests an informal reconsideration, DHS will give the license holder a written affirmation or reversal of the proposed action. (d) The facility will be notified by certified mail of DHS's revocation of the facility's license. The facility has 15 days from receipt of the certified mail notice to request a hearing in accordance with sec.sec.79.1601-79.1614 of this title (relating to Formal Hearings). The revocation will take effect when the deadline for appeal of the revocation passes, unless the facility appeals the revocation. If the facility appeals the revocation, the status of the license holder is preserved until final disposition of the contested matter. Upon revocation, the license must be returned to DHS. sec.19.2110. Referral to the Attorney General. In this section, "threatened violation" means a situation which, unless immediate steps are taken to correct, may cause injury or harm to a resident's health and safety. The Texas Department of Human Services (DHS) may refer a facility to the attorney general who may petition a district court for: (1) a temporary restraining order to restrain a person from a violation or threatened violation of the requirements or any other law affecting residents if DHS reasonably believes that the violation or threatened violation creates an immediate threat to the health and safety of a resident; (2) an injunction to restrain a person from a violation or threatened violation of the requirements or any other law affecting residents if DHS reasonably believes that the violation or threatened violation creates a threat to the health and safety of a resident; or (3) the assessment of civil penalties under the Texas Health and Safety Code, sec.242.065, for a violation that threatens the health and safety of a resident. DHS recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors, or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84). sec.19.2112. Administrative Penalties. (a) The Texas Department of Human Services (DHS) may assess an administrative penalty against a person who: (1) violates Chapter 242, Health and Safety Code or a rule, standard or order adopted or license issued under Chapter 242; (2) makes a false statement, that the person knows or should know is false, of a material fact: (A) on an application for issuance or renewal of a license or in an attachment to the application; or (B) with respect to a matter under investigation by DHS; (3) refuses to allow a representative of DHS to inspect: (A) a book, record, or file required to be maintained by a facility; or (B) any portion of the premises of a facility; (4) willfully interferes with the work of a representative of DHS or the enforcement of this chapter; (5) willfully interferes with a representative of DHS preserving evidence of a violation of a rule, standard, or order adopted or license issued under Chapter 242, Health and Safety Code. (6) fails to pay a penalty assessed by DHS under chapter 242, Health and Safety Code by the 10th day after the date the assessment of the penalty becomes final. (b) The persons against whom DHS may impose an administrative penalty include: (1) an applicant for a license; (2) a license holder; (3) a partner, officer, director, or managing employee of an applicant or a license holder; and (4) a person who controls a nursing facility. (c) DHS recognizes the limited immunity from civil liability granted to volunteers serving as officers, directors or trustees of charitable organizations, under the Charitable Immunity and Liability Act of 1987 (Texas Civil Practice and Remedies Code, Chapter 84). (d) In determining whether a violation warrants an administrative penalty, DHS considers the facility's history of compliance and whether: (1) a pattern or trend of violations exists; or (2) the violation is recurrent in nature and type; or (3) the violation presents danger to the health and safety of at least one resident; or (4) the violation is of a magnitude or nature that constitutes a health and safety hazard having a direct or imminent adverse effect on resident health, safety, or security, or which presents even more serious danger or harm; or (5) the violation is of a type established elsewhere in DHS's rules concerning licensing standards for long term care facilities. (e) In determining the amount of the penalty, DHS considers at a minimum: (1) the gradations of penalties; (2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation and the hazard or potential hazard to the health and safety of the residents; (3) the history of previous violations; (4) deterrence of future violations; and (5) efforts to correct the violation. (f) Administrative penalties may be levied for each violation found in a single survey. Each day of a continuing violation constitutes a separate violation. The following table contains the gradations of penalties in accordance with the relative seriousness of the violation. The penalties for a violation of the requirement to post notice of the suspension of admissions, additional reporting requirements found at sec.19.601(a) of this title (relating to Resident Behavior and Facility Practice), or residents' rights cannot exceed $1,000 a day for each violation, unless the violation of a resident's right also violates a rule in Subchapter H, Quality of Life, or Subchapter J, Quality of Care. Figure: 40 TAC 40.2112(f) (g) No facility will be penalized because of a physician's or consultant's nonperformance beyond the facility's control or if documentation clearly indicates the violation is beyond the facility's control. (h) DHS may issue a preliminary report regarding an administrative penalty. Within 10 days of the issuance of the preliminary report, DHS will give the facility written notice of the recommendation for an administrative penalty. The notice will include: (1) a brief summary of the violations; (2) a statement of the amount of penalty recommended; (3) a statement of whether the violation is subject to correction under sec.19.2114 of this title (relating to Right to Correct) and if the violation is subject to correction, a statement of: (A) the date on which the facility must file a plan of correction (POC) to be approved by DHS; and (B) the date on which the POC must be completed to avoid assessment of the penalty; and (4) a statement that the facility has a right to a hearing on the violation, the amount of the penalty, or both. (i) Within 20 days after the date on which written notice of recommended assessment of a penalty is sent to a facility, the facility must give DHS written consent to the penalty, make a written request for a hearing, or if the violation is subject to correction, submit a plan of correction in accordance with sec.19.2114 of this title. If the facility does not make a response within the 20-day period, DHS will assess the penalty. (j) The procedures for notification of recommended assessment, opportunity for hearing, actual assessment, payment of penalty, judicial review, and remittance will be in accordance with Health and Safety Code, sec.sec.242.067 - 242.069. Hearings will be held in accordance with DHS's formal hearing procedures in Chapter 79 of this title (relating to Legal Services). Interest on penalties is governed by Health and Safety Code sec.242.069(g). 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801310 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 Remedies in Medicaid-Certified Facilities 40 TAC sec.sec.19.2146-19.2148 The amendment and new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment and new sections implement the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. sec.19.2148. Arbitration. A facility may elect arbitration as provided in 1 TAC Chapter 163 (concerning Arbitration Procedures for Certain Enforcement Actions of the Department of Human Resources). 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801312 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 40 TAC sec.19.2147 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The repeal implements the Human Resources Code, sec.sec.22.001-22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801311 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 SUBCHAPTER X. Requirements for Medicaid-Certified Facilities 40 TAC sec.19.2308, sec.19.2320 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs; and under Texas Government Code sec.531.021, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments implement the Human Resources Code, sec.sec.22.001- 22.030 and sec.sec.32.001-32.042. 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. Filed with the Office of the Secretary of State on January 28, 1998. TRD-9801313 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: March 1, 1998 Proposal publication date: November 7, 1997 For further information, please call: (512) 438-3765 TITLE 43. TRANSPORTATION PART I. Texas Department of Transportation CHAPTER 25.Traffic Operation SUBCHAPTER A.General 43 TAC sec.25.12 The Texas Department of Transportation adopts new sec.25.12, concerning the department's Procedures for Establishing Speed Zones. Section 25.12 is adopted without changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11064) and will not be republished. Transportation Code, sec.545.353 authorizes the Texas Transportation Commission to adopt procedures that will be used to determine speed limits on public roadways. Pursuant to this authority, the department has adopted a Procedures for Establishing Speed Zones manual. Transportation Code, Chapter 545, Subchapter H requires most speed limits, whether set by the commission, a county commissioners court, a tollway authority, or a municipality, to be determined from the results of an engineering and traffic investigation. The commission, and a municipality when setting a speed limit on the state highway system, are required to use the department's Procedures for Establishing Speed Zones when conducting an investigation. The procedures may be used in all other circumstances. Senate Bill 370, sec.1.45, 75th Legislature, 1997, authorizes a county commissioners court to request the commission determine and declare a reasonable and safe prima facie speed limit lower than the maximum speed allowable under state law. The commission may declare such a lower speed limit on a farm-to- market or ranch-to-market road of the state highway system in the county with a pavement width of twenty feet or less. In these instances, the commission is given greater flexibility in establishing speed limits by not being required to perform an engineering and traffic investigation. The commission is instead required to use sound and generally accepted traffic engineering practices. Senate Bill 370, sec.1.45 also requires the commission to establish standards for determining these lower speed limits within a set range by rule. Concern over the rise in traffic fatalities that occurred statewide in 1996 also prompted the department to conduct a series of town meetings in conjunction with the Texas Department of Public Safety in order to examine the criteria and procedures for establishing speed limits on rural highways. These town meetings also identified a need to incorporate greater flexibility for setting speed limits on public roads where conditions warrant a lower speed than the maximum allowable under state law. Section 25.12 adopts the department's Procedures for Establishing Speed Zones manual by reference, incorporates revisions to these procedures necessary to implement the provisions of Senate Bill 370, sec.1.45 and the public comments received at the town meetings, and provides the additional discretion needed to potentially reduce traffic accidents on some public roads. The manual states that the posted speed limit may be reduced by as much as 10 miles per hour (12 miles per hour for locations with crash rates higher than the statewide average) below the 85th percentile speed, based on sound and generally accepted engineering judgment that includes consideration of the following factors: roadway pavement widths of 20 feet or less; horizontal and vertical curves; hidden driveways and other developments; a high density of driveways; a crash history at the location; rural residential or developed areas; and roadways without improved and striped shoulders. No comments were received on the proposed new section. The new section is adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation and, more specifically, Transportation Code, Chapter 545, Subchapter H, as amended by Senate Bill 370, sec.1.45, 75th Legislature, 1997, which provides the commission and certain political subdivisions with the authority to alter speed limits established by state law, as determined from the results of an engineering and traffic investigation. 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. Filed with the Office of the Secretary of State on January 30, 1998. TRD-9801421 Bob Jackson Acting General Counsel Texas Department of Transportation Effective date: February 19, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-8630 SUBCHAPTER J.Municipal Restrictions on Use of State Highways 43 TAC sec.sec.25.601-25.603 The Texas Department of Transportation adopts new, sec.sec.25.601-25.603, concerning municipal restrictions on the use of state highways. Sections 25.601- 25.603 are adopted without changes to the proposed text as published in the November 14, 1997, edition of the Texas Register (22 TexReg 11068) and will not be republished. Senate Bill 773, 75th Legislature, 1997, added Transportation Code, sec.545.0651 to authorize municipalities by ordinance to restrict through traffic, by vehicle class, to two designated lanes of a highway in the municipality. Senate Bill 773 limits a municipality's authority in this regard to controlled access highways on the state highway system that have three or more lanes, excluding access or frontage roads, in each direction of traffic. Senate Bill 773 requires a municipality, before adopting an ordinance restricting the use of a highway, to submit a description of the proposed restriction to the department for evaluation, and to obtain department approval of the restriction before it may be enforced. Department approval is required to be based on a traffic study that evaluates the effect of the proposed restriction. Department approval must also ensure, to the greatest extent practicable, coordination among adjacent municipalities to prevent inconsistent lane restrictions. Senate Bill 773 requires the department to install and maintain all traffic control devices necessary to implement and enforce a municipal ordinance which prescribes lane restrictions on a highway, and allows the department to suspend or rescind approval of a lane restriction based on criteria such as a change in pavement or traffic conditions. New sec.25.601 describes the purpose of the new subchapter, which is to implement Senate Bill 773, authorizing a municipality by ordinance to restrict, by class of vehicle, through traffic to two designated lanes of traffic on highways in the municipality. New sec.25.602 provides definitions for words and terms used in the new subchapter. New sec.25.603 prescribes the responsibilities of municipalities in the development and designation of lane restrictions, prescribes responsibilities of municipalities related to the cost of restriction development, prescribes the responsibilities of the department in evaluating and approving municipal proposals for lane restrictions, and describes how the public will be involved in establishing lane restrictions. A public hearing was held on December 2, 1997, and no comments were received on the proposed new sections. The new sections are adopted under Transportation Code, sec.201.101, which authorizes the Texas Transportation Commission to promulgate rules for the conduct of the work of the Texas Department of Transportation, and more specifically, Transportation Code, sec.545.0651 as added by Senate Bill 773, 75th Legislature, 1997. 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. Filed with the Office of the Secretary of State on January 30, 1998. TRD-9801422 Bob Jackson Acting General Counsel Texas Department of Transportation Effective date: February 19, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-8630 SUBCHAPTER K.Major Agricultural Interest Sign Program 43 TAC sec.sec.25.700-25.708 The Texas Department of Transportation adopts new sec.sec.25.700-25.708 concerning the major agricultural interest sign program. Section 25.704 is adopted with changes to the proposed text as published in the November 14, 1997, edition of the Texas Register (22 TexReg 11070). Sections 25.700-25.703 and 25- 705-25.708 are adopted without changes and will not be republished. Senate Bill 370, sec.2.04, 75th Texas Legislature, 1997 added sec.391.097 of the Transportation Code, to require that the Texas Transportation Commission enter into one or more contracts with an individual, firm, group, or association of this state to erect and maintain major agricultural interest signs at appropriate locations along eligible rural highways. This statute further requires the commission to adopt rules necessary to enforce and implement this section. Section 25.700 describes the purpose of the subchapter which is to implement Transportation Code, sec.391.097. Section 25.701 provides definitions for words and terms used in the subchapter. Section 25.702 authorizes the department to award a contract for the placement of agricultural interest signs and describes the contractor's marketing responsibilities. This section describes the contractor's responsibilities for sign placement, installation, maintenance, cooperation with other contractors, annual reports, attendance at meetings, and record keeping. This section allows the department to install or perform other work on these signs under emergency conditions at which time the contractor is immediately required to pay the department for the cost of the work and authorizes the department to require the contractor to relocate or remove a major agricultural interest sign under certain conditions. It requires the contractor to remit a fee of 5.0% to the department to reimburse the department's administrative expenses, assess a one- time sign installation fee and an annual rental fee, and meet all bonding requirements contained in Government Code, Chapter 2253. Section 25.703 describes the requirements and procedures that a contractor must follow to be eligible to bid on a contract and describes the criteria the department will use to evaluate the contractor's prequalification documentation. Section 25.704 describes the procedures under which the contract will be awarded and the requirements a contractor must follow in order to submit an acceptable bid. This section requires bids to be opened at a public hearing, and authorizes the commission to accept or reject all bids and award the contract to the lowest bidder. Section 25.705 describes the specifications, design, and placement requirements for major agricultural interest signs. Section 25.706 requires an agricultural interest to be a farm, ranch, winery, greenhouse, or other facility that sows an agricultural commodity, devotes at least five acres of land to the production of an agricultural commodity, markets the products on the premises as a retail sale, and conducts public tours of the grounds or facilities in order to be eligible for a sign. This section also requires the agricultural interest to be within five miles of an intersection with an eligible rural highway, post its hours of operation, provide modern restroom facilities and drinking water, provide adequate parking, and be ineligible for the logo sign program sign. Section 25.707 describes the procedures for obtaining an application form, where the application must be submitted, the rights of the agricultural interest to renew its participation agreement with the contractor, and the conditions under which a major agricultural interest sign may be covered or removed by the contractor. Section 25.708 describes the procedures by which the contractor may appeal a decision by the department or the contractor. A public hearing was held on December 2, 1997, and no comments were received on the proposed new sections. Section 25.704 is adopted with a change in subsection (b)(2) to correct a typographical error in the formula of Figure 1. The new sections are adopted under Transportation Code, sec.201.101, which authorizes the Texas Transportation Commission to promulgate rules for the conduct of the work of the Texas Department of Transportation, and more specifically, Transportation Code, sec.391.097 which requires the Texas Transportation Commission to enter into a contract to erect and maintain major agricultural interest signs at appropriate locations along eligible rural highways and adopt rules necessary to enforce and implement this section. sec.25.704. Contract Award Procedures. (a) Notice. The department will publish a notice of intent to award a sign program contract in industry related publications at least 45 calendar days prior to contractor selection. The notice shall include prequalification requirements for bidders. (b) Bidding requirements. (1) To be considered for award of a contract under this section, a prequalifed bidder must file with the director of the traffic operations division a sealed bid proposal in a form prescribed by the department. Submission of the bid proposal must comply with the location, date, and time requirements of the notice. The bids shall be opened at a public hearing conducted by the director of the traffic operations division. All bidders may attend and all bids shall be opened in their presence. (2) The bid amount for the sign program contract will be the total of the sign installation fee plus, one-tenth of the sum of the sign rental fees. Expressed as a formula in the following Figure 1. (3) The department will not consider a bid which: (A) fails to comply with any requirement of the notice; or (B) specifies an installation fee that is less than 5% or greater than 25% of the sign annual rental fee. (c) Award of contract. (1) All bid proposals received by the director of the traffic operations division shall be tabulated and forwarded to the commission. The commission may accept or reject all bids, and if accepted, award the contract to the lowest bidder. (2) The department will notify the contractor by certified mail of the award of the sign program contract within 10 calendar days of the date of the award. To accept the award, the contractor must execute a contract with the department within 30 calendar days of the date of the award. (3) The contract shall be in a form prescribed by the department and shall, at a minimum, include all terms and conditions prescribed by this subchapter and such other terms and conditions the department deems advantageous to the state. 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. Filed with the Office of the Secretary of State on January 30, 1998. TRD-9801423 Bob Jackson Acting General Counsel Texas Department of Transportation Effective date: February 19, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-8630 CHAPTER 28.Oversize and Overweight Vehicles and Loads SUBCHAPTER G.Port Authority Permits 43 TAC sec.sec.28.90-28.92 The Texas Department of Transportation adopts new sec.sec.28.90-28.92, concerning port authority permits, with changes to the proposed text as published in the November 21, 1997 issue of the Texas Register (22 TexReg 11334). The new sections are necessary to implement the provisions of Senate Bill 1276 and to ensure the department's proper administration of the laws concerning the issuance of permits for the movement of oversize and overweight loads. Senate Bill 1276, 75th Legislature, 1997, amended Chapter 623, Transportation Code, by adding Subchapter K, to provide that the department may authorize a port authority to issue permits for the movement of oversize and overweight vehicles carrying cargo on State Highway 48/State Highway 4 between the Gateway International Bridge and the Port of Brownsville. The new sections outline the procedures for the issuance of such permits. Section 28.90, Purpose, provides that the purpose of this subchapter is to set forth the requirements and procedures applicable to the issuance of permits by the Brownsville Navigation District of Cameron County, Texas (Port of Brownsville) for the movement of oversize and overweight vehicles. Section 28.90 is adopted with changes to remove the term "non-divisible" in describing the type of cargo to be transported. Section 28.91, Responsibilities, outlines responsibilities of the Port of Brownsville and the department under this subchapter; stipulates maximum fees and how fees collected under this subchapter shall be used; provides how the department will be reimbursed by the Port Authority for maintenance of State Highway 48/State Highway 4 between the Port of Brownsville and the Gateway International Bridge; stipulates how permits shall be issued by the Port of Brownsville and how such may be verified by the department or law enforcement personnel; provides for the department to conduct audits related to the issuance of permits under this subchapter and stipulates how such audits will be conducted; provides for revocation of the Port of Brownsville's authority to issue permits and provides procedures for appealing any such revocation; stipulates travel requirements and restrictions for any permits issued under this subchapter by the Port of Brownsville; and stipulates that the Port of Brownsville shall enter into a maintenance contract with the department for the maintenance of State Highway 48/State Highway 4 between the Gateway International Bridge and the Port of Brownsville. Section 28.91 is adopted with the following changes: subsection (b) is amended to remove the requirement that all permits issued by the Brownsville Navigation District of Cameron County, Texas ("Port of Brownsville") be provided electronically to the department, to provide that all permits shall be carried in the permitted vehicle, and to provide that the Port of Brownsville shall provide access or a telephone number for verification of permit authenticity by law enforcement or department personnel; and subsection (f) is amended to state that the department shall provide a 30 day notice of non-compliance prior to instituting procedures to revoke the Port of Brownsville's authority to issue permits. Section 28.92, Permit Issuance Requirements and Procedures, stipulates the information to be included on a permit application, the form of application, and how permits issued under this subchapter may be used; payment of permit fees; weight limits and restrictions; vehicle registration requirements; motor carrier registration requirements; speed limit restrictions; and states that this subchapter expires March 1, 2001. Section 28.92 is adopted with changes to subsection (h) to delete the requirement that the Port of Brownsville "utilize" scales and to include a requirement that vehicles issued a permit by the Port of Brownsville must be weighed on scales capable of determining gross vehicle weights and individual axle loads and, to ensure the accuracy of the permit, a requirement that such scales must be certified by the Texas Department of Agriculture or must be accepted by the United Mexican States. A public hearing was held on December 11, 1997. Fifty-seven oral and written comments were submitted in response to the proposed rules. The following provided verbal comments in favor of the proposed rules: Texas State Representative Rene Oliveira, two representatives of TRANS Montingue, one representative of the Brownsville Economic Development Council, two representatives of the Brownsville Navigation District of Cameron County, Texas ("Port of Brownsville"), a representative of Texas State Senator Eddie Lucio's office, and three individuals. South Texas Grain Company and Brownsville Gulfside Warehouse provided verbal and written comments in favor of the proposed rules. Two individuals provided verbal comments against the proposed rules. Four individuals provided verbal and written comments against the proposed rules. A representative of the University of Texas Center for Transportation Research provided written comments against the proposed rules. The following provided verbal comments in favor of the proposed rules with changes: Dix Shipping Company, a representative of the Brownsville Chamber of Commerce, Groendyke Transport Transporte Intermex, a representative of the Cameron County Commissioner's Court, and two individuals. The following provided verbal and written comments in favor of the proposed rules with amendments: Texas State Senator Eddie Lucio, seven representatives of the Port of Brownsville, Port Elevator of Brownsville, BND Lessee Association, Plitt Crane Equipment, and two individuals. Gulf Stream Marine provided written comments in favor of the proposed rules with amendments. Comment: Regarding sec.28.90, Purpose, several commenters expressed concerns regarding restricting permits issued by the Port of Brownsville to non-divisible loads, felt that this limitation would defeat the legislation's intent, and that this restriction may be beyond the department's authority. Another commenter expressed concern regarding the ability to transport divisible loads under this permit and the deviation from the original intent of existing permit statutes, which were created for the transportation of non-divisible loads. Response: Since the inception of the original permit law in 1929 all oversize/overweight permits, with the exception of one, have been for the transport of non-divisible loads. However, upon further evaluation of the specific highway corridor and the types of loads transported along this corridor, and upon evaluation of comments regarding the original intent of the enabling legislation, which was to allow the transport of divisible loads with this permit, the department has amended the rules to allow the transport of divisible loads. Comment: Regarding sec.28.91(b), Transmission of permits, several commenters stated that the Port of Brownsville should not be required to transmit permits to the department at the time of issuance by the port. The commenters felt that this requirement would delay the issuance process and would create additional costs for the Port of Brownsville. Response: The rules are amended to allow original permits to be carried in the permitted vehicle in lieu of electronic updating. The rules are further amended to state that it is the Port of Brownsville's responsibility to provide access or a telephone number for verification of permit authenticity by law enforcement or department personnel. The title of sec.28.91(b) has been changed to reflect these revisions. Comment: Concerning sec.28.91(h)(1), Maintenance contract, several commenters felt that the department should tighten maintenance contract language to be more specific. Response: The current language allows the department to protect public safety and the public's investment in the transportation system, and more specific language could limit the department's flexibility in seeking remedies as needed. The department has also amended this subsection to clarify that it is the maintenance contract that shall provide for a system of payments. Comment: Concerning sec.28.92(c), Maximum permit weight limits, one commenter stated that the rules may need to coincide with the weight limits of the United Mexican States for six-axle units of 106,000 pounds. Another commenter requested that the rules specify only gross weight, and not axle weight limits, and several commenters requested modifications to provide greater allowance for axle and gross weight tolerances. Response: The rules mirror weight limits for all other oversize/overweight permits issued under Title 43, Texas Administrative Code, Chapter 28. These weight limits were developed based upon engineering analyses to determine weights sustainable by Texas' roads without unacceptable damage, and are standard weight limits accepted by the motor carrier industry. Additionally, the rules do not require Mexican law to be violated. Regarding allowances for axle and gross weight tolerances, the foregoing description of the development of weight limits also applies. To the extent the commenter is requesting an increased enforcement allowance, the department has no authority in this matter. This is an enforcement issue and the department is not an enforcement agency. Comment: Concerning sec.28.92(f), Revocation of authority to issue permits, several commenters requested a 30-day grace period to correct improprieties, before procedures to revoke the port's authority to issue permits are instituted. Response: Upon evaluation of these comments, the department has determined that, in fairness to all concerned parties, a mechanism allowing the Port of Brownsville time to correct any improprieties should be included in these rules. The rules are amended to allow for a 30-day grace period to correct improprieties before the department institutes actions to revoke permit issuance authority. Comment: Several commenters requested that sec.28.92(f), regarding Travel conditions, be amended to require the District Engineer to make a determination regarding whether or not road conditions are hazardous. Response: The determination of whether or not weather conditions are hazardous falls under the purview of law enforcement, rather than the department's District Engineers. The rules mirror language for all oversize/overweight permits issued under Title 43, Texas Administrative Code, Chapter 28, and law enforcement personnel are familiar with the current weather condition restrictions for all permitted vehicles. Comment: Concerning sec.28.92(f), Travel conditions, one commenter stated that visibility restrictions for carriers should be extended from two-tenths of one mile to six-tenths of one mile. Response: This requirement mirrors requirements addressing visibility in the issuance of all other oversize/overweight permits under Title 43, Texas Administrative Code, Chapter 28. The language concerning visibility has been utilized for more than 20 years, was established with law enforcement personnel input, and has proven effective in protecting the safety of the traveling public and the transportation infrastructure. Comment: Concerning sec.28.92(h), Restrictions, several commenters expressed concerns relating to the terminology, "install" versus "utilize" scales. Additionally, one commenter expressed concerns with language stating the use of scales certified by the Texas Department of Agriculture would nullify a certified weight ticket issued by the government of the United Mexican States. Response: Upon further evaluation, the department has determined that the term "install" in the rules would imply that the Port of Brownsville must purchase and install new scales and would not be able to utilize existing scales owned by the Port or by others. In addition, the department has determined that it would be redundant to require the re-weighing of vehicles that were weighed in the United Mexican States prior to crossing into Texas. In order to clarify these provisions, sec.28.92(h)(1) is amended to remove the requirement that the Port of Brownsville install scales, to state that any vehicle issued a permit by the Port of Brownsville must be weighed on scales certified by the Texas Department of Agriculture, or on scales accepted by the United Mexican States, and to require that scales be capable of determining gross vehicle weights and individual axle loads. Comment: Concerning sec.28.92(h)(6), Restrictions, several commenters stated that the maximum speed limit should be less than 55 miles per hour. Response: Texas statutes specifically set the maximum speed at 55 miles per hour or the posted maximum, whichever is less, and the department does not have the authority to lower the speed limit as it pertains to the subject permits. Additionally, to require a lower speed limit could create abnormal traffic patterns, thereby creating a potential safety hazard. Comment: Several commenters expressed overall general safety concerns, including concerns for area schoolchildren and concerns regarding the stopping distance for oversize vehicles. Other commenters felt that safety issues had been adequately addressed in the proposed rules. Response: The department is sensitive to the commenters' concerns, and acknowledges the safety issues inherent in vehicular travel. However, the department is of the opinion that the rules adequately protect public safety by providing safety requirements, such as visibility and night movement restrictions, which are based upon sound engineering principles and detailed, long-term transportation studies. The rules also provide for a maximum speed limit. Comment: Several commenters expressed concern for the integrity of pavement and structures as a result of issuing permits authorized by these rules. Response: The department believes that the proposed rules protect the integrity of the transportation infrastructure by providing for a maintenance contract between the department and the Port of Brownsville. This contract will require the Port of Brownsville to provide maintenance as the department deems necessary to ensure that the roadways are maintained in an acceptable condition. Comment: Several commenters requested that emergency rules be adopted to allow immediate issuance of permits by the Port of Brownsville. Response: The adoption of emergency rules is limited to those situations where imminent peril will result if such are not adopted. As an emergency situation does not exist in this case, the rules will be effective 20 days after filing by the department with the Secretary of State, and subsequent entrance into a maintenance agreement between the Port of Brownsville and the department. Comment: One commenter questioned the department's authority to adopt administrative rules implementing Senate Bill 1276, and stated that this legislation did not require administrative rules. Response: The adoption of administrative rules implementing Senate Bill 1276 is a valid exercise of the Texas Transportation Commission's authority, and the department is required to adopt such rules under Government Code, Chapter 2001. Comment: One commenter stated that insurance limits for Mexican vehicles should be increased. Response: Insurance levels for vehicles owned or operated by citizens of the United Mexican States are not a part of this rulemaking process. Comment: One commenter challenged the constitutionality of the proposed rules and stated that these rules encourage violation of state and federal laws. Response: The department is unclear as to which state and federal laws the commenter refers. The proposed rules have been examined by the department's Office of General Counsel, and the department is unaware of any constitutional conflict regarding these rules. The new sections are adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation and, more specifically, Transportation Code, Chapter 623, which authorizes the department to carry out the provisions of those laws governing the issuance of oversize and overweight permits. sec.28.90. Purpose. In accordance with Transportation Code, Chapter 623, Subchapter K, the department may authorize the Brownsville Navigation District of Cameron County, Texas (Port of Brownsville) to issue permits for the movement of oversize or overweight vehicles carrying cargo on State Highway 48/State Highway 4 between the Gateway International Bridge and the entrance to the Port of Brownsville. This subchapter sets forth the requirements and procedures applicable to the issuance of permits by the Port of Brownsville for the movement of oversize and overweight vehicles. sec.28.91.Responsibilities. (a) Surety bond. The Port of Brownsville shall post a surety bond in the amount of $500,000 for the purpose of reimbursing the department for actual maintenance costs of State Highway 48/State Highway 4 in the event that sufficient revenue is not collected from permits issued under this subchapter. (b) Verification of permits. All permits issued by the Port of Brownsville shall be carried in the permitted vehicle. The Port of Brownsville shall provide access or a phone number for verification of permit authenticity by law enforcement or department personnel. (c) Training. The Port of Brownsville shall secure any training necessary for personnel to issue permits under this subchapter. The department may provide assistance with training upon request by the Port of Brownsville. (d) Accounting. The department shall develop accounting procedures related to permits issued under this subchapter which the Port of Brownsville must comply with for the purpose of revenue collections and any payment made to the department under subsection (h) of this section. (e) Audits. The department may conduct audits semi-annually or upon direction by the executive director of all Port of Brownsville permit issuance activities. In order to insure compliance, audits will at a minimum include a review of all permits issued, financial transaction records related to permit issuance, review of vehicle scale weight tickets and monitoring of personnel issuing permits under this subchapter. (f) Revocation of authority to issue permits. If the department determines as a result of an audit that the Port of Brownsville is not complying with this subchapter, the executive director will issue a notice to the Port of Brownsville allowing 30 days to correct any non-compliance issue. If after 30 days it is determined that the Port of Brownsville is not in compliance, then the executive director may revoke the Port of Brownsville's authority to issue permits. (1) Upon notification that its authority to issue permits under this subchapter has been revoked, the Port of Brownsville may appeal the revocation to the commission in writing. (2) In cases where a revocation is being appealed, the Port of Brownsville's authority to issue permits under this subchapter shall remain in effect until the commission makes a final decision regarding the appeal. (g) Fees. Fees collected under this subchapter shall be used solely to provide funds for the payments provided for under Transportation Code, sec.623.213, less administrative costs. (1) The permit fee shall not exceed $80 per trip. The Port of Brownsville may retain up to 10% of such permit fees for administrative costs, and the balance of the permit fees shall be used to make payments to the department for maintenance of State Highway 48/State Highway 4. (2) The Port of Brownsville may issue a permit and collect a fee for any load exceeding vehicle size or weight as specified by Transportation Code, Chapter 621, Subchapters B and C, originating at the Gateway International Bridge traveling on State Highway 48/State Highway 4 to the Port of Brownsville or originating at the Port of Brownsville traveling on State Highway 48/State Highway 4 to the Gateway International Bridge. (h) Maintenance Contract. The Port of Brownsville shall enter into a maintenance contract with the department for the maintenance of State Highway 48/State Highway 4 between the Gateway International Bridge and the Port of Brownsville. (1) The maintenance contract shall provide for a system of payments from the Port of Brownsville to the department for all maintenance costs expended by the department to maintain State Highway 48/State Highway 4 to the current level of service or pavement conditions. Maintenance shall include, but is not limited to, routine maintenance, preventative maintenance, and total reconstruction of the roadway and bridge structures as determined by the department to maintain the current level of service for State Highway 48/State Highway 4. (2) The Port of Brownsville may make direct restitution to the department for actual maintenance costs from this fund in lieu of the department filing against the surety bond described in subsection (a) of this section, in the event that sufficient revenue is not collected. sec.28.92. Permit Issuance Requirements and Procedures. (a) Permit application. Application for a permit issued under this subchapter shall be in a form approved by the department, and shall at a minimum include: (1) the name of the applicant; (2) date of issuance; (3) signature of the director of the Port of Brownsville; (4) a statement of the kind of cargo being transported; (5) the maximum weight and dimensions of the proposed vehicle combination, including number of tires on each axle, tire size for each axle, distance between each axle, measured from center of axle to center of axle, and the specific weight of each individual axle when loaded; (6) the kind and weight of each commodity to be transported, not to exceed loaded dimensions of 12' wide, 15'6" high, 110' long or 125,000 pounds gross weight; (7) statement of any condition on which the permit is issued; (8) a statement that the cargo shall be transported over the most direct route using State Highway 48/State Highway 4 between the Gateway International Bridge and the Port of Brownsville; (9) the name of the driver of the vehicle in which the cargo is to be transported; (10) the location where the cargo was loaded; and (11) the name of the specific Port of Brownsville employee issuing the permit. (b) Permit issuance. (1) General. (A) The original permit must be carried in the vehicle for which it is issued. (B) A permit is void when an applicant: (i) gives false or incorrect information; (ii) does not comply with the restrictions or conditions stated in the permit; or (iii) changes or alters the information on the permit. (C) A permittee may not transport an overdimension or overweight load with a voided permit. (2) Payment of permit fee. The Port of Brownsville may determine acceptable methods of payment. All fees transmitted to the department must be in U.S. currency. (c) Maximum permit weight limits. (1) An axle group must have a minimum spacing of four feet, measured from center of axle to center of axle, between each axle in the group to achieve the maximum permit weight for the group. (2) Two or more consecutive axle groups must have an axle spacing of 12 feet or greater, measured from the center of the last axle of the preceding group to the center of the first axle of the following group, in order for each group to be permitted for maximum permit weight. (3) Maximum permit weight for an axle or axle group is based on 650 pounds per inch of tire width or the following axle or axle group weights, whichever is the lesser amount: (A) single axle -- 25,000 pounds; (B) two axle group -- 46,000 pounds; (C) three axle group -- 60,000 pounds; (D) four axle group -- 70,000 pounds; (E) five axle group -- 81,400 pounds; (4) A permit issued under this subchapter does not authorize the vehicle to exceed manufacturer's tire load rating. (d) Vehicles exceeding weight limits. Any vehicle exceeding weight limits outlined in subsection (c) of this section, shall apply directly to the department for an oversize or overweight permit in accordance with sec.28.11 of this title (relating to Permit Issuance Requirements and Procedures). (e) Registration. Any vehicle or combination of vehicles permitted under this subchapter shall be registered in accordance with Transportation Code, Chapter 502. (f) Travel conditions. Movement of a permitted vehicle is prohibited when visibility is reduced to less than 2/10 of one mile or the road surface is hazardous due to weather conditions such as rain, ice, sleet, or snow, or highway maintenance or construction work. (g) Daylight and night movement restrictions. An oversize permitted vehicle may be moved only during daylight hours, as defined by Transportation Code, sec.541.401(1); however, an overweight only permitted vehicle may be moved at any time. (h) Restrictions. (1) Any vehicle issued a permit by the Port of Brownsville must be weighed on scales capable of determining gross vehicle weights and individual axle loads. For the purpose of ensuring the accuracy of the permit, the scales must be certified by the Texas Department of Agriculture or on scales accepted by the United Mexican States. (2) A valid permit and certified weight ticket must be presented to the gate authorities before the permitted vehicle shall be allowed to exit or enter the port. (3) A copy of the certified weight ticket shall be retained by the Port of Brownsville and become a part of the official permit record subject to inspection by department personnel or Texas Department of Public Safety personnel. (4) The owner of a vehicle permitted under this subchapter must be registered as a motor carrier in accordance with Transportation Code, Chapters 643 or 645, prior to the oversize or overweight permit being issued. The Port of Brownsville shall maintain records relative to this subchapter, which are subject to audit by department personnel. (5) Permits issued by the Port of Brownsville shall be in a form prescribed by the department. (6) The maximum speed for a permitted vehicle shall be 55 miles per hour or the posted maximum, whichever is less. (7) This subchapter expires March 1, 2001. 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. Filed with the Office of the Secretary of State on January 30, 1998. TRD-9801426 Bob Jackson Acting General Counsel Texas Department of Transportation Effective date: February 19, 1998 Proposal publication date: November 21, 1997 For further information, please call: (512) 463-8630 CHAPTER 29.Maintenance SUBCHAPTER A.General 43 TAC sec.29.3 The Texas Department of Transportation adopts the repeal of sec.29.3, concerning the distribution of roadway materials to counties. This section is no longer necessary due to the simultaneous adoption of this subject matter in new sec.29.3, concerning local government assistance. No comments were received regarding the adoption on the repeal. The repeal is adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation and, more specifically, Transportation Code, sec.201.706 and Rider 43 to the department's appropriations for fiscal years 1998-1999, which require the department to develop rules and procedures to provide for the distribution of local government assistance. 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. Filed with the Office of the Secretary of State on January 30, 1998. TRD-9801424 Bob Jackson Acting General Counsel Texas Department of Transportation Effective date: February 19, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-8630 The Texas Department of Transportation adopts new sec.29.3, concerning local government assistance, with changes to the proposed text as published in the November 14, 1997, issue of the Texas Register (22 TexReg 11076). Transportation Code, sec.201.706, requires the department to assist counties with materials to repair and maintain county roads. Section 201.706 also requires the department to develop rules and procedures to implement that section and to provide for the distribution of the assistance. In order to ensure the equitable distribution of these materials, these procedures must give preference to counties with an above average number of overweight trucks receiving weight tolerance permits, as determined by the previous year's permit totals. Section 201.706 requires that the department supply the counties with at least $12,000,000 of materials in both fiscal years 1998 and 1999 and at least $6,000,000 of materials per fiscal year thereafter. Rider 43 to the department's appropriations for fiscal years 1998-1999 requires the department to assist cities and counties with the maintenance of city streets and county roads by providing engineering/maintenance expertise on roadway maintenance and by providing available surplus materials to any local government for the maintenance of city streets and county roads when these materials are available. New sec.29.3 describes the purpose of the section, defines words and terms used in that section, describes the assistance that will be provided, prescribes the formula for distributing materials on hand to counties, describes how engineering and maintenance expertise and surplus materials will be distributed under Rider 43, and prescribes procedures for applying for assistance. On December 5, 1997, a public hearing was held for the purpose of receiving comments concerning the repeal of existing sec.29.3 and the proposed adoption of new sec.29.3. No oral comments were received at the hearing. However, on December 16, 1997, the department received written comments from Senator Stephen E. Ogden of the Texas Senate. Senator Ogden stated that he believed the department's proposed rules are largely consistent with the language and legislative intent of the relevant statutes. However, he also stated that, in his opinion, the rules needed to be clarified to ensure that $12 million of material assistance is made available to counties even if there is not $12 million of surplus materials on hand. In response, the department agrees that, regardless of whether the source of the materials is materials on hand, surplus materials, or new materials, a minimum amount of materials must be made available to the counties. The department has amended subsection (c) of sec.29.3 to specify that distributed materials may include surplus materials on hand or new materials. Subsection (c) also provides that new materials will be made available when surplus materials on hand are not sufficient to meet the required annual value. Senator Ogden also stated that he thought the rules should address subparagraph (4) of sec.201.706, which directs the department to undertake cooperative and joint procurement of road materials under General Services Commission procedures. He stated that it was his intention with this language to give county governments access to some of the department's purchasing power, in order to lower their cost of acquisition. In response, the department considers the statutory mandate to develop rules and procedures providing for the distribution of materials to counties and the mandate to undertake joint procurement efforts with counties to be separate concepts. The department also notes that the General Services Commission (GSC) has adopted rules implementing a Cooperative Purchasing Program (1 TAC sec.sec.113.81-113.88) and that a county may participate in the program by, among other things, submitting a resolution evidencing its intent to participate in the program. Participation in the program allows a county to issue purchase orders against a department or GSC contract. However, to comply with the proactive nature of the legislative mandate, the department has been in contact with GSC concerning the purchase of road materials and has suggested that GSC place an article in its Buyways newsletter, which is distributed to the 130 counties that currently participate in the state cooperative purchasing program. This article will provide information concerning how to purchase road materials. The department will also contact the 124 remaining counties and provide information concerning how to become part of the cooperative program, including describing the advantages of purchasing road materials using state pricing. The new section is adopted under Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to promulgate rules for the conduct of the work of the Texas Department of Transportation and, more specifically, Transportation Code, sec.201.706 and Rider 43 to the department's appropriations for fiscal years 1998-1999, which require the department to develop rules and procedures to provide for the distribution of local government assistance. sec.29.3. Local Government Assistance. (a) Purpose. (1) Transportation Code, sec.201.706, requires the department to assist counties with materials to repair and maintain county roads. Section 201.706 also requires the department to develop rules and procedures to implement the section and to provide for the distribution of the assistance with preference given to counties with an above average number of overweight trucks receiving weight tolerance permits based on the previous year's permit totals. (2) Rider 43 to the department's appropriations for fiscal years 1998-1999 requires the department to assist cities and counties with the maintenance of city streets and county roads by providing engineering/maintenance expertise on roadway maintenance and to provide available surplus materials to any local government. (3) This section prescribes the policies and procedures for implementation of these two legal requirements. (b) Definitions. (1) City - Any municipality incorporated under the laws of the state. (2) City street - A public street under the jurisdiction of a city. (3) Cost of materials - Statewide average cost, actual cost, or fair market value of roadway maintenance material available to counties, such cost to include indirect costs in an amount prescribed by the department's Indirect Cost Recovery Program and the department's cost to administer the program. (4) County - One of the 254 geographical political subdivisions of the state. (5) County road - A public road under the jurisdiction of a county. (6) Department - The Texas Department of Transportation. (7) District - A subdivision of the department responsible for the day-to-day operations of the department in a specific geographically defined area. (8) District engineer - The chief administrative officer of a district of the department. (9) Engineering/maintenance expertise - Assistance consisting of providing existing department standards, specifications, or oral advice to cities or counties for use in roadway maintenance. (10) Materials on hand - Roadway maintenance materials previously acquired by the department which are currently in department stock accounts. (11) Surplus materials - Material on hand that the district engineer deems to be in excess of the district's need. (12) Weight tolerance permits - A permit issued by the department under Transportation Code, 623.011, authorizing a vehicle to exceed maximum legal weight limitations. (c) Distribution of assistance. (1) Distribution of materials under Transportation Code, 201.706. Distributed materials may include surplus materials on hand or new materials. New materials will be made available when surplus materials on hand are not sufficient to meet the required annual value. The value of assistance to counties as required by Transportation Code, 201.706, will be allotted to districts as follows. (A) 20% of the assistance will be based on the daily vehicle miles on county roads in a county divided by the total vehicle miles on county roads in the state. (B) 15% of the assistance will be based on the number of lane miles of county roads in a county divided by the total lane miles of county roads in the state. (C) 65% of the assistance will be based on the number of weight tolerance permits issued for a county divided by the total number of weight tolerance permits issued in the state. (2) Distribution of assistance and material under Rider 43. (A) Engineering/maintenance expertise will be provided to cities and counties upon written request from the local government. (B) Material determined by the district engineer as surplus will be given to a local government upon request after the department has complied with the requirements of Transportation Code, 201.706. (d) Application for assistance. (1) Materials allocated under Transportation Code, 201.706. (A) At the beginning of the fiscal year, or as soon as practical thereafter, each district engineer of the department shall notify each county in the district engineer's district of the assistance available to the county and provide a list of materials on hand, such list to include the cost of materials. (B) Each county shall be requested to make a written request, within 45 days of the notification, to the local district engineer for assistance with materials in accordance with the requirements. Such requests shall be prioritized by the county. (C) After the requested assistance to each county is determined for a fiscal year, any remaining unused fiscal year district allotment will be distributed based on need as determined by an engineering analysis. (D) A county that receives assistance shall be responsible for the hauling of the department's material on hand from the site of storage unless otherwise approved by the department. If material is hauled by the department, the material price shall be increased by the cost of the haul. (2) Assistance under Rider 43. Engineering/maintenance expertise shall be available to any city or county requesting such assistance. Materials shall be made available upon request, consistent with subsection (c)(2)(B) of this section. 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. Filed with the Office of the Secretary of State on January 30, 1998. TRD-9801425 Bob Jackson Acting General Counsel Texas Department of Transportation Effective date: February 19, 1998 Proposal publication date: November 14, 1997 For further information, please call: (512) 463-8630