PROPOSED RULES
Before an agency may permanently adopt a new or amended section or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before action is taken. The 30-day time period gives 
interested persons an opportunity to review and make oral or written comments on 
the section. Also, in the case of substantive action, a public hearing must be 
granted if requested by at least 25 persons, a governmental subdivision or 
agency, or an association having at least 25 members.
Symbology in proposed amendments. New language added to an existing section is 
indicated by the <nl> code. [Brackets] indicate deletion of existing material 
within a section.

TITLE 1. ADMINISTRATION
PART IV. Office of the Secretary of State
CHAPTER 81.Elections
SUBCHAPTER D.Voting Systems Certification
1 TAC sec.81.60
The Office of the Secretary of State, Elections Division, proposes an amendment 
to sec.81.60, concerning voting system certification procedures. The amendment 
is proposed to require applicants for certification or modification of a voting 
system in Texas to include a summary report from a Nationally Recognized Test 
Laboratory declaring that the item meets the Federal Election Commission's 
minimum voting system requirements. 
Ann McGeehan, Deputy Assistant Secretary of State for Elections, has determined 
that for the first five-year period that this rule is in effect there will be no 
fiscal implications for state or local governments as a result of enforcing or 
administering the rule. 
Ms. McGeehan has determined also that for each year of the first five years that 
the rule is in effect the public benefit anticipated as a result of enforcing 
the rule will be to enhance public confidence in the accuracy and security of 
electronic voting systems by requiring the systems to meet the more stringent 
testing standards promulgated by the FEC. There will be no effect on small 
businesses. There are no anticipated economic costs to persons who are required 
to comply with the rule as proposed. 
Comments on the proposal may be submitted to Ann McGeehan, Deputy Assistant 
Secretary of State for Elections, Office of the Secretary of State, P.O. Box 
12060, Austin, Texas 78711-2060. 
The amendment is proposed under the Code, Chapter 31, Subchapter A, sec. 31.003, 
which provides the Secretary of State with authority to promulgate rules to 
obtain uniformity in the interpretation and application of the Code, and under 
the Code, Chapter 122, sec. 122.001(c), which authorizes the Secretary of State 
to prescribe additional standards for voting systems.
The Code, Chapter 122, is affected by this proposed amendment. 

sec.81.60. Voting System Certification Procedures: 
In addition to the procedures prescribed by the Texas Election Code, Chapter 
1322, compliance with the following procedures is required for certification of 
a voting system.
(1) (No change.)
(2) The applicant must deliver four copies of all relevant software and source 
codes, and six copies of any user and/or reference manuals<nl>, and six copies 
of the summary report(s) for all examinations conducted by a Nationally 
Recognized Test Laboratory (NRTL), if applicable, declaring that the item meets 
the Federal Election Commission's minimum voting system requirements<ol> to the 
Office of the Secretary of State no later than 45 days prior to the examination.
(3)-(11) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 15, 1998.
TRD-9807970
Clark Kent Ervin
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-5650

1 TAC sec.81.61
The Office of the Secretary of State, Elections Division, proposes new 
sec.81.61, concerning adoption of the Federal Election Commission's (FEC) 
testing standards for certification of electronic voting systems. The new rule 
is proposed to require an electronic voting system, or modifications to a 
previously certified system, to have been certified by a nationally recognized 
test laboratory and to meet or exceed the minimum FEC voting system 
requirements.
Ann McGeehan, Deputy Assistant Secretary of State for Elections, has determined 
that for the first five-year period that this rule is in effect, there will be 
no fiscal implications for state or local governments as a result of enforcing 
or administering the rule. 
Ms. McGeehan has determined also that for each year of the first five years that 
the rule is in effect, the public benefit anticipated as a result of enforcing 
the rule will be to enhance public confidence in the accuracy and security of 
electronic voting systems by requiring those systems to meet the more stringent 
testing standards promulgated by the FEC. There will be no effect on small 
businesses. There are no anticipated economic costs to persons who are required 
to comply with the rule as proposed. 
Comments on the proposal may be submitted to Ann McGeehan, Deputy Assistant 
Secretary of State for Elections, Office of the Secretary of State, P.O. Box 
12060, Austin, Texas 78711-2060. 
The rule is proposed under the Code, Chapter 31, Subchapter A, sec. 31.003, 
which provides the Secretary of State with authority to promulgate rules to 
obtain uniformity in the interpretation and application of the Code, and under 
the Code, Chapter 122, sec. 122.001(c), which authorizes the Secretary of State 
to prescribe additional standards for voting systems. 
The Code, Chapter 122, sec. 122.001(c) is affected by this proposed rule.

sec.81.61.Condition for Approval of Electronic Voting Systems.
For any voting machine, voting device, voting tabulation device and any software 
used for each, including the programs and procedures for vote tabulation and 
testing, or any modification to any of the above, to be certified for use in 
Texas elections, the system shall have been certified, if applicable, by means 
of qualification testing by a Nationally Recognized Test Laboratory (NRTL) and 
shall meet or exceed the minimum requirements set forth in the Performance and 
Test Standards for Punch Card, Mark Sense, and Direct Recording Electronic 
Voting Systems, or in any successor voluntary standard document developed and 
promulgated by the Federal Election Commission. This section applies only to 
systems and modifications to previously certified systems submitted after the 
effective date of this rule.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 15, 1998.
TRD-9807971
Clark Kent Ervin
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-5650

TITLE 16. ECONOMIC REGULATION
PART I. Railroad Commission of Texas
CHAPTER 3. Oil and Gas Division
16 TAC sec.3.41, sec.3.42
The Railroad Commission of Texas proposes amendments to sec.3.41 and sec.3.42, 
relating to application for new oil or gas field designation and/or allowable, 
and oil discovery allowable. The proposed amendments move the bottom-hole 
pressure requirement from sec.3.42 to sec.3.41, and allow the commission to 
exempt certain low volume oil wells from the bottom-hole pressure test 
requirement. 
Additionally, some proposed amendments reword existing subsections without 
changing any substantive provisions in order to better clarify the requirements 
and the person(s) required to comply. 
The proposed amendments to sec.3.41 add revised paragraph (3) to subsection (a) 
requiring bottom-hole pressure data for oil wells to be included on the 
application for new oil field designation and/or allowable. The bottom-hole 
pressure test requirement, currently in sec.3.42, is being moved to sec.3.41 to 
better facilitate applications for new oil or gas designation and/or allowable. 
Moving the bottom-hole test requirement to sec.3.41, and thus requiring that the 
bottom-hole pressure data be included on the application for new oil or gas 
field designation and/or allowable, will ensure that bottom-hole pressure data 
is available to the commission staff when reviewing new field discovery 
applications. 
Additionally, the proposed amendments to sec.3.41(a)(3) give operators of 
discovery oil wells the option to determine bottom- hole pressures by methods 
which are generally less costly than pressure build-up tests. 
Finally, the proposed amendments to sec.3.41(a)(3) exempt from the bottom-hole 
pressure test requirement low volume discovery oil wells that have a potential 
production test of 15 barrels of oil per day or less. 
The remaining proposed amendments to sec.3.41 renumber paragraphs (3) through 
(5) of subsection (a) and reword them, without changing the substantive 
provisions, in order to clarify the regulations. 
The proposed amendments to sec.3.42 reword subsection (a), without changing any 
substantive provisions, to clarify the rule. In addition, the proposed 
amendments to sec.3.42 delete subsection (c), which contained the subsurface 
pressure test requirement, and redesignate sec.3.42(d) as sec.3.42(c).
Rita E. Percival, Oil and Gas Division planner, has determined that for each 
year of the first five years the rules as proposed will be in effect, the fiscal 
implications as a result of enforcing or administering the new rules will be a 
net savings to the state of $3,192 in fiscal year 1998 and an annual estimated 
savings of $4,438 in fiscal years 1999 through 2001. In the first year, the 
bottom-hole pressure report form will require revision at a one-time cost of 
$1,246. The anticipated annual savings of $4,438 will be the result of operators 
clearly knowing when to file bottom-hole pressure information. By operators 
knowing to file the information with the new field discovery application rather 
than later in the allowable process, the commission geologist will be able to 
eliminate an estimated one hour of work on each of approximately 175 new oil 
field applications received annually. This time has been spent contacting the 
operator, explaining the need for filing the bottom-hole information with the 
application, and, in most cases, receiving, granting, and following up on 
extensions of the information filing. There will be no effect on local 
government. 
There will be no increase in cost of compliance for small business. In fact, the 
revision of the rules may result in a savings for the small producer: the 
proposed amendments include alternatives to the more costly bottom-hole pressure 
test, some wells (those testing at 15 or less barrels of oil a day) will be 
exempt from the requirement for bottom-hole pressure information, and operators 
submitting the information in the more timely manner will reduce the paperwork 
required when requesting extension applications. An estimated 31 new oil field 
applications per year will involve wells producing 15 barrels of oil or less 
daily and will therefore be exempt from the bottom- hole pressure information 
requirement. The operator of such a well should save approximately $675 (for an 
average 7,000-foot well) for such a test. Well servicing companies that perform 
only pressure build-up tests may experience a negative fiscal impact if the 
demand for such tests decreases due to some operators choosing alternate ways to 
obtain bottom-hole pressure information and/or choosing not to test exempt 
wells. 
The commission has not requested a local employment impact statement, pursuant 
to Tex. Gov't Code, sec.2001.022(h). 
Comments may be submitted to Mickey R. Olmstead, Hearings Examiner, Office of 
General Counsel, P. O. Box 12967, Austin, Texas 78711-2967. The deadline for 
filing comments is 30 days after publication in the Texas Register. Comments 
should include the docket number of this rulemaking proceeding, 20-0217578. 
The commission proposes the amendments pursuant to Texas Natural Resources Code 
sec.sec.81.051, 81.052, 85.042, 85.201, 85.202, 86.041, and 86.042, which 
authorize the commission to prevent waste of oil and gas and to protect 
correlative rights. 
The Texas Natural Resources Code, sec.sec.85.053, et seq., and 88.051, are 
affected by this rule. 

sec.3.41. Application for New Oil or Gas Field Designation and/or Allowable. 
(a) <nl>The commission shall assign a new field designation and/or discovery 
allowable after an operator furnishes to the commission's Austin office proper 
evidence<ol> [Evidence] proving that a well is a <nl>new<ol> discovery<nl>.<ol> 
[must be received in the commission's Austin office prior to the assignment of a 
new field designation and/or discovery allowable.] Evidence other than 
horizontal distance is required. An <nl> operator shall<ol> [application must] 
include the following <nl> in the application<ol>: 
(1) a legible area map, drawn to scale, preferably on white paper<nl>,<ol> which 
shows the following: 
(A)-(E) (No change.) 
(2) <nl>a<ol> [A] complete legible electric log of the well. <nl>However, an 
operator is not required to file a complete<ol> [The filing of an] electric log 
<nl>if the operator has filed<ol> [is not necessary provided that] all other 
required data<nl>, a portion of the log showing the top and bottom of the 
proposed reservoir interval, log headings, and applicable scales,<ol> [is 
submitted] and satisfactorily proves discovery as a new reservoir. Any electric 
log filed <nl>shall<ol> [will] be considered public information pursuant to 
sec.3.16 of this title (relating to Log and Completion or Plugging Report) 
(Statewide Rule 16). 
<nl>(3)<ol> a bottom-hole pressure for oil wells, submitted on the appropriate 
form. This bottom-hole pressure may be determined by a pressure build-up test, 
drill stem test, wire line formation tester, calculations based on fluid level 
surveys, or calculations made on flowing wells using shut-in wellhead pressures. 
The commission staff may grant an exception to the requirement of reporting 
bottom-hole pressure for oil wells that have a potential production test of 15 
barrels of oil per day or less. 
<nl>(4)<ol> a subsurface structure map and/or cross section(s), if separation is 
based on structural differences, including faulting and pinch-outs. The 
structure map shall show the contour of the top of the producing formation and 
the line(s) of cross section. The cross section(s) shall be prepared from 
comparable electric logs (not tracings) with the wells, producing formation, and 
hydrocarbon reservoir identified. The engineer or geologist who prepared the map 
and cross section shall sign them. 
<nl>(5)<ol> reservoir pressure measurements or calculations, if separation is 
based on pressure differentials. 
<nl>(6)<ol> core data, drillstem test data, cross sections of nearby wells, 
and/or production data estimating the fluid level, if separation is based on 
differences in fluid levels. The operator shall obtain the fluid level data 
within 10 days of the potential test date. 
[(3) If separation is based on structural differences, including faulting and 
pinch outs, submit a subsurface structure map or cross section(s), or preferably 
both. The structure map should show the contour of the top of the producing 
formation and the line(s) of cross section. The cross section(s) must be 
prepared from comparable electric logs (not tracings) with the wells, producing 
formation, and hydrocarbon reservoir identified. Both the map and cross section 
must be signed by the engineer or geologist who prepared it.] 
[(4) If separation is based on pressure differentials, submit reservoir pressure 
measurements or calculations.]
[(5) If separation is based on differences in fluid levels, submit core data, 
drillstem test data, cross sections of nearby wells, or production data 
estimating the fluid level. Fluid level data should be recently dated.] 
(b)-(c) (No change.) 
(d) If the <nl>director of the Oil and Gas Division, or the director's 
delegate,<ol> [Director, Oil and Gas,] declines administratively to grant an 
application, the operator may request a hearing. If <nl>the commission receives 
the hearing request<ol> [an application is protested] within <nl>10<ol> [ten 
(10)] days of <nl>the date of the<ol> notice <nl>of administrative denial of the 
application<ol>, <nl> the commission shall schedule a<ol> [it will be set for] 
hearing. After hearing, the examiner shall recommend final commission action. 

sec.3.42. Oil Discovery Allowable. 
(a) <nl>The commission shall determine the<ol> [The] discovery allowable rate 
for oil wells proven to be completed in a new and separate reservoir [shall be 
determined] from the following discovery allowable schedule. 
Figure: 16 TAC sec.3.42(a) (No change.) 
(b) (No change.) 
[(c) A subsurface pressure test shall be made on the discovery well in 
accordance with the instructions on the commission's appropriate form, and the 
results thereof reported to the commission within 60 days after completion of 
the discovery well.] 
<nl>(c)<ol> [(d)] The director or the director's delegate shall review the 
production performance of discovery wells to evaluate whether waste is occurring 
due to the discovery allowable. If the director or the director's delegate 
believes waste is or may be occurring, the director or the director's delegate 
may request any additional relevant information from the operator and may set 
the matter for hearing to allow the commission to determine if the discovery 
allowable should be lowered to prevent waste.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 1998.
TRD-9807843
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: June 28, 1998
Issued in Austin, Texas on May 12, 1998.
For further information, please call: (512) 463-7008

16 TAC sec.3.103
The Railroad Commission of Texas proposes new sec.3.103, concerning a procedure 
to obtain certification of eligibility for a severance tax exemption for gas 
from an oil well or lease that was previously vented or flared and is now 
marketed. The new section is proposed to implement the Tax Code, sec.201.058, 
which was added by the 75th Legislature, Regular Session, effective September 1, 
1997. The proposed new rule provides for certification by the commission that an 
operator produces and markets casinghead gas that was previously vented or 
flared pursuant to rules of the commission from an oil well or oil lease. 
Operators who wish to participate in the voluntary program shall apply on the 
appropriate form accompanied by information necessary to establish prior release 
into the air of casinghead gas for 12 months or more during a period of 13 
consecutive months, and taxable proceeds generated as a result of marketing such 
gas on or after September 1, 1997. 
Rita E. Percival, planner for the Oil and Gas Division, has determined that for 
each year of the first five years the rule as proposed will be in effect, the 
fiscal implications as a result of enforcing or administering the new rule will 
be approximately $1,300. This $1,300 annual cost will be for the commission 
staff's review of the incentive application, a check of databases, and 
preparation of the certification or application denial by an administrative 
technician, as well as review of the application and approval or denial of it by 
a graduate engineer. This is based on an estimated 50 applications filed 
annually. There will be no fiscal implications for local governments. 
The anticipated economic cost of compliance with the new rule for small 
businesses wishing to apply for incentive certification, which is voluntary, 
will include review of venting and flaring records, and filling out and mailing 
the Form ST-1 incentive application form. These activities will require 
approximately one hour but will vary according to the way an applicant's 
organization records are kept. The cost of an individual application should be 
approximately $17 if prepared by an engineer technician. The commission does not 
have information with which to make a comparison between the cost of compliance 
for a small business and the cost of compliance for the largest businesses 
affected by the rule based on costs per each employee, per each hour of labor, 
or per $100 of sales. 
Meredith Kawaguchi, legal examiner, Office of General Counsel, has determined 
that for each year of the first five years the section as proposed is in effect, 
the public benefits anticipated as a result of enforcing the section as proposed 
will be the capture and marketing of casinghead gas which otherwise would have 
been released into the air without beneficial use. As no severance taxes would 
have been generated, there will be no decrease in severance tax revenues. There 
will be an associated increase in sales and ad valorem tax revenues as a result 
of the increase in marketable gas. The commission has not requested a local 
employment impact statement, pursuant to Tex. Gov't Code, sec.2001.022(h). 
Comments on the proposal may be submitted to Meredith Kawaguchi, Legal Examiner, 
Office of General Counsel - Oil and Gas Section, Railroad Commission of Texas, 
P. O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days 
after publication in the Texas Register. Comments should refer to the docket 
number of this rulemaking, 20-0217821. For further information, contact Ms. 
Kawaguchi at (512) 463-7152.
The commission proposes new sec.3.103 under the commission's general rulemaking 
authority over all persons and their operations under the jurisdiction of the 
commission as set forth in the Texas Natural Resources Code, sec.81.052. 
Texas Natural Resources Code, sec.81.052, and Texas Tax Code, sec.sec.201.051 
and 201.053, are affected by this rule. 

sec.3.103. Certification for Severance Tax Exemption for Casinghead Gas 
Previously Vented or Flared.
(a) Purpose. The purpose of this section is to provide a procedure by which an 
operator may obtain commission certification that the operator markets gas that 
was previously released into the air for 12 months or more pursuant to sec.3.32 
of this title (relating to Gas Well Gas and Casinghead Gas Shall Be Used for 
Legal Purposes). Certification under this section is voluntary. 
(b) Definitions. The following terms, when used in this section, shall have the 
following meanings, unless the context clearly indicates otherwise:
(1) Oil lease--A commission-designated oil lease to which the commission has 
assigned an identifying number as listed on the monthly oil proration schedule 
at the time an application is filed under this rule.
(2) Oil well--A wellbore completed in a commission-designated field and assigned 
to an oil lease as listed on the monthly oil proration schedule at the time an 
application for certification is filed under this rule. 
(c) Eligibility. An operator shall be eligible to receive the tax exemption on 
marketed casinghead gas for the life of an oil well or oil lease as listed on 
the oil proration schedule at the time an application for certification is filed 
under this rule if: 
(1) the operator previously released the casinghead gas from an oil well or oil 
lease into the air for 12 months or more pursuant to sec.3.32 of this title; and 
(2) the operator marketed the gas no earlier than June 1, 1997, in accordance 
with sec.3.32 of this title. 
(d) Certification. 
(1) An operator may apply for commission certification on the appropriate form. 
The completed form shall be accompanied by information necessary to establish: 
(A) prior release into the air of casinghead gas for 12 months or more during a 
period of 13 consecutive months pursuant to sec.3.32 of this title; and 
(B) such gas has generated taxable proceeds subject to the severance tax as a 
result of being marketed on or after September 1, 1997.
(2) The director of the commissions's Oil and Gas Division, or the director's 
delegate, may administratively approve or deny a request for certification. 
(3) If the director of the commission's Oil and Gas Division or the director's 
delegate denies the request, the operator may request a hearing by filing such a 
request in writing within 15 days after the postmarked date of the notice of the 
administrative denial. 
(4) If the operator fails to appear at the hearing without good cause, the 
request for certification shall be dismissed. 
(5) Filings and correspondence concerning the application for certification 
shall be addressed to the Railroad Commission, P. O. Box 12967, Austin, Texas 
78711-2967, Attention: Permitting/Production Services Section. 
(e) Application to the Comptroller. After the commission issues the 
certification provided for in subsection (d) of this section, the operator may 
apply to the Comptroller of Public Accounts to receive the tax exemption.
(f) Termination of Authorization to Release Gas. On the date the commission 
issues the certification provided for in subsection (d) of this section, either 
by administrative action or by commission order, the volume of casinghead gas 
authorized to be released into the air as an exception obtained pursuant to 
sec.3.32(h) of this title shall be reduced to the volume of casinghead gas not 
subject to the certification. If all of the volume of casinghead gas authorized 
to be released under an exception is certified for purposes of the tax 
exemption, the exception shall no longer apply, and shall automatically 
terminate as of the date of certification. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 14, 1998.
TRD-9807950
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: June 28, 1998
Issued in Austin, Texas on May 12, 1998.
For further information, please call: (512) 463-7008

CHAPTER 7. Gas Utilities Division
SUBCHAPTER B. Substantive Rules
16 TAC sec.7.74
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Railroad 
Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Railroad Commission of Texas proposes the repeal of existing sec.7.74, 
relating to school piping testing, and the adoption of new sec.7.74, relating to 
school piping testing. On November 21, 1997, a representative of Texas local 
distribution companies filed a petition for rulemaking that proposed 
modifications to the then recently-adopted sec.7.74. The commission has reviewed 
the petition and has incorporated most of the requested changes in proposed new 
sec.7.74, which comprehensively describes the duties and obligations of all 
parties under the statute that requires the biannual inspection of natural gas 
piping in school facilities, Texas Civil Statutes, Article 6053-2a, and 
clarifies definitions, testing procedures, and timelines for compliance. Because 
the petition also rearranged the portions of existing sec.7.74 that would be 
retained, for ease of review the commission proposes the simultaneous repeal of 
the existing rule and the adoption of the reorganized and amended version. 
Proposed new sec.7.74 includes definitions for "school district," "school 
district facility," "natural gas supplier," "other inspection," and "Act." The 
commission changed the petition's requested definition of "natural gas supplier" 
to match that in Texas Civil Statutes, Article 6053-2a, which is a more 
comprehensive definition. 
The commission also modified the petition's requested procedures, found in 
subsection (c). As proposed, sec.7.74(c) requires a natural gas supplier that 
sells and delivers natural gas to school district facilities to develop 
procedures for (1) receiving written notice from school districts specifying the 
date and result of each test; and (2) terminating natural gas service in the 
event that either a hazardous leak is found during testing or testing is not 
completed in the required intervals. The gas supplier is also responsible for 
maintaining a list of school district facilities to which it sells and delivers 
natural gas, as well as copies of test results for a period of at least two 
years. Proposed new sec.7.74 outlines who is qualified to conduct testing and 
when the testing shall be conducted, as well as the procedures for conducting 
the testing. 
Proposed new sec.7.74 includes two provisions not found in existing sec.7.74, 
specifically (c)(3) and (4), which outline the limits of responsibilities of 
natural gas suppliers under this rule, and identify methods of compliance. The 
commission modified the sections as proposed in the original petition to 
incorporate the requested changes yet still be consistent with the requirements 
of Texas Civil Statutes, Article 6053-2a. 
The remaining provisions focus on clarifying the types of tests that comply with 
this rule and labeling the section as "Testing." The commission also added 
language to clarify that a person conducting testing must be "qualified" and 
must notify both the school district and the natural gas supplier in the event 
of a leak. In the event of either failure to test or report of a hazardous leak, 
the supplier is responsible for terminating service. 
Mary McDaniel, Assistant Director, Gas Services Division, Pipeline Safety 
Section, has determined that, for each of the first five years the proposed 
repeal and new rule are in effect, there will be no fiscal implications for 
state government as a result of enforcing or administering the repeal and new 
rule. There will be no additional fiscal implications for local governments, in 
particular school districts, as a result of the proposed repeal and new rule. As 
in current sec.7.74, the cost for a test or other inspection is a minimum of 
$200; the exact cost for a particular school district will depend on how many 
facilities a school district is required to test each year and whether any 
problems are found as a result of the test or tests. 
Ms. McDaniel has also determined that the public benefit anticipated as a result 
of enforcing the repeal and new rule will be an increase in safety in Texas 
school districts that use natural gas. There will be an economic cost to small 
businesses or individuals that are natural gas suppliers as a result of the 
proposed repeal and new rule because of the requirement that they develop 
procedures for receiving notification from the school districts regarding 
location of facilities supplied with natural gas and for terminating service in 
the event that testing is not completed in the two-year time interval or in the 
event a hazardous leak is reported. In addition all natural gas suppliers are 
required to maintain a listing of the schools that are supplied natural gas and 
the results of each test for at least two years. The cost of complying with 
these requirements, however, will vary by type of supplier and size of the 
school district, and it is not possible to calculate the anticipated cost for a 
particular supplier. 
Comments on the proposal may be submitted to Mary McDaniel, Assistant Director, 
Gas Services Division, Pipeline Safety Section, Railroad Commission of Texas, P. 
O. Box. 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days 
after publication in the Texas Register and should refer to Gas Utilities Docket 
(GUD) Number 8838. For more information, contact Ms. McDaniel at (512) 463-7058.
The commission proposes the repeal under Texas Utilities Code, sec.sec.121.201-
121.205, which authorize the commission to adopt safety standards and practices 
applicable to the transportation of gas and to all gas pipeline facilities 
within Texas to the maximum degree permissible under, and to take any other 
requisite action in accordance with, 49 U.S.C. sec.60101, et seq. (West 1997), 
and under Texas Civil Statutes, Article 6053-2a, which directs the Railroad 
Commission of Texas to enforce the article.
Texas Utilities Code, sec.sec.121.201-121.205, and Texas Civil Statutes, Article 
6053-2a, are affected by the proposed repeal. 
sec.7.74. School Piping Testing. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 1998.
TRD-9807841
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: June 28, 1998
Issued in Austin, Texas on May 12, 1998.
For further information, please call: (512) 463-7008

The commission proposes the new rule under Texas Utilities Code, 
sec.sec.121.201-121.205, which authorize the commission to adopt safety 
standards and practices applicable to the transportation of gas and to all gas 
pipeline facilities within Texas to the maximum degree permissible under, and to 
take any other requisite action in accordance with, 49 U.S.C. sec.60101, et seq. 
(West 1997), and under Texas Civil Statutes, Article 6053-2a, which directs the 
Railroad Commission of Texas to enforce the article.
Texas Utilities Code, sec.sec.121.201-121.205, and Texas Civil Statutes, Article 
6053-2a, are affected by the proposed new rule.

sec.7.74. School Piping Testing.
(a) The purpose of this section is to implement the requirements of Texas Civil 
Statutes, Article 6053-2a, relating to the testing of natural gas piping systems 
in school district facilities. 
(b) Definitions. 
(1) Act--Chapter 1238 of the Acts of the 75th Texas Legislature (Regular 
Session) as codified at Texas Civil Statutes, Article 6053-2a. 
(2) Natural gas supplier--The individual or company selling and delivering the 
natural gas to a school district facility. If more than one individual or 
company sells and delivers natural gas to facilities of a school district, each 
individual or company is a natural gas supplier for purposes of this rule. 
(3) Other inspection--A test of the natural gas piping system in a school 
district facility performed under a municipal code. 
(4) School district--An entity created in accordance with the laws of the State 
of Texas and accredited by the Texas Education Agency pursuant to Texas 
Education Code, Chapter 39, Subchapter D. The term does not include programs and 
facilities under the jurisdiction of the Texas Department of Mental Health and 
Mental Retardation, the Texas Youth Commission, the Texas Department of Human 
Services, the Texas Department of Criminal Justice or any probation agency, the 
Texas School for the Blind and Visually Impaired, the Texas School for the Deaf 
and Regional Day Schools for the Deaf, the Texas Academy of Mathematics & 
Science, the Texas Academy of Leadership in the Humanities, Charter Schools 
created pursuant to Chapter 12 of the Education Code, private, parochial, home, 
or proprietary schools as defined in Texas Education Code, sec.132.001, and 
those schools and educational institutions described in Texas Education Code, 
sec.132.002. 
(5) School district facility--All buildings and structures operated by a school 
district that are downstream of a meter measuring natural gas service in which 
students receive instruction or participate in school district sponsored 
extracurricular activities, excluding maintenance or bus facilities, 
administrative offices, and similar facilities not regularly utilized by 
students. 
(c) Procedures. Natural gas suppliers shall develop procedures for: 
(1) receiving written notice from the school districts specifying the date and 
result of each test or other inspection as provided by subsection (d) of this 
section.
(2) terminating natural gas service to a school district facility in the event 
that: 
(A) the natural gas supplier receives notification of a hazardous natural gas 
leak in the school district facility piping system pursuant to this rule; or 
(B) the natural gas supplier does not receive written notification specifying 
the date that testing has been completed on a school district facility as 
provided by subsection (d) of this section, and the results of such testing. 
(3) A natural gas supplier may rely on a written notification complying with 
this rule as proof that a school district facility is in compliance with the Act 
and this rule. 
(4) A natural gas supplier shall have no duty to inspect a school district 
facility for compliance with the Act. 
(d) Testing or Other Inspection. 
(1) A test performed under a municipal code in compliance with paragraph (4) of 
this subsection shall satisfy the testing requirements.
(2) A pressure test to determine if the natural gas piping in each school 
district facility will hold at least normal operating pressure shall be 
performed as follows: 
(A) For systems on which the normal operating pressure is less than 0.5 psig, 
the test pressure shall be 5 psig and the time interval shall be 30 minutes. 
(B) For systems on which the normal operating pressure is 0.5 psig or more, the 
test pressure shall be 1.5 times the normal operating pressure or 5 psig, 
whichever is greater, and the time interval shall be 30 minutes. 
(C) A pressure test using normal operating pressure shall be utilized only on 
systems operating at 5 psig or greater, and the time interval shall be one hour. 
(3) The testing shall be conducted by: 
(A) a licensed plumber; 
(B) a qualified employee or agent of the school district who is regularly 
employed as or acting as a maintenance person or maintenance engineer; or 
(C) a person exempt from the plumbing license law as provided in Texas Civil 
Statutes, Article 6243-101, sec.3(b) and (c). 
(4) The testing shall occur as follows: 
(A) for school district facilities tested prior to the beginning of the 1997-
1998 school year, at least once every two years thereafter before the beginning 
of the school year; 
(B) for school district facilities not tested prior to the beginning of the 
1997-1998 school year, as soon as practicable thereafter but prior to the 
beginning of the 1998-1999 school year and at least once every two years 
thereafter before the beginning of the school year; 
(C) for school district facilities operated on a year-round calendar and tested 
prior to July 1, 1997, at least once every two years thereafter; and 
(D) for school district facilities operated on a year-round calendar and not 
tested prior to July 1, 1997, once prior to July 1, 1998, and at least once 
every two years thereafter. 
(5) The firm or individual conducting the test shall immediately report any 
hazardous natural gas leak in a school district facility to the board of 
trustees of the school district and natural gas supplier.
(e) Records. Natural gas suppliers shall maintain for at least two years a 
listing of the school district facilities to which it sells and delivers natural 
gas as well as copies of the written notification regarding testing and 
hazardous leaks received pursuant to the Act and this rule. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 13, 1998.
TRD-9807842
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: June 28, 1998
Issued in Austin, Texas on May 12, 1998.
For further information, please call: (512) 463-7008

TITLE 19. EDUCATION
PART II. Texas Education Agency
CHAPTER 33. Statement of Investment Objectives, Policies, and Guidelines of the 
Texas Permanent School Fund
19 TAC sec.sec.33.5, 33.10, 33.20, 33.25, 33.30, 33.40, 33.55, 33.60
The Texas Education Agency (TEA) proposes amendments to sec.sec.33.5, 33.10, 
33.20, 33.25, 33.30, 33.40, 33.55, and 33.60, concerning the Texas Permanent 
School Fund (PSF). The sections establish investment objectives, policies, and 
guidelines for the PSF. Section 33.60(3) provides for the annual review of 19 
TAC Chapter 33, Statement of Investment Objectives, Policies, and Guidelines of 
the Texas PSF, to determine if changes are necessary or desirable. 
The proposed amendments relieve the TEA of the requirement to inform investment 
managers and consultants of Texas laws, narrow the focus of legal governance of 
the PSF to the Texas Constitution, and clarify the role of the TEA Internal 
Audit Division in the annual review of the PSF. The proposed amendments also 
clarify the State Board of Education's (SBOE) duty in contracting with 
investment services providers, clarify the circumstances under which external 
investment managers will be responsible for failed trades attributable to broker 
error, and modify investment manager reporting responsibilities. Also, a 
technical correction is made throughout the sections changing the name of the 
SBOE committee that oversees the management of the PSF from "SBOE Committee on 
the Permanent School Fund" to "SBOE Committee on School Finance/Permanent School 
Fund." 
Dean Murray, executive administrator of the PSF, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
Mr. Murray and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that the income of the PSF will flow to school districts 
and reduce the tax burden to the public and the state. There will not be an 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the sections as proposed. 
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. 
Comments may also be submitted electronically to rules@tmail.tea.state.tx.us. 
All requests for a public hearing on the proposed sections submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the sections 
has been published in the Texas Register. 
The amendments are proposed under the Texas Education Code, sec.7.102(c)(31), 
which authorizes the State Board of Education to invest the PSF within the 
limits of the authority granted by the Texas Constitution, Article VII, sec.5, 
and the Texas Education Code, Chapter 43. 
The amendments implement the Texas Education Code, sec.7.102(c)(31).

sec.33.5. Code of Ethics.
(a)-(g) (No change.) 
(h) Responsibilities of investment managers and consultants. Each investment 
manager retained by the PSF shall be notified in writing of the code of ethics 
contained in this section [and the related conflict of interest laws of Texas]. 
Any future investment shall strictly conform to this code of ethics. The manager 
or consultant shall report in writing any suggestion or offer by an SBOE member 
to deviate from the provisions of this section to the commissioner of education 
for distribution to all SBOE members. An investment manager, consultant, or 
other person retained in a fiduciary capacity must comply with the provisions of 
this section. 
(i) (No change.) 

sec.33.10. Purposes of Texas Permanent School Fund Assets and the Statement of 
Investment Policy. 
(a) (No change.) 
(b) The purposes of the investment policy statement are to:
(1) specify the investment objectives, policies, and guidelines the SBOE 
considers appropriate and prudent, considering the needs of the PSF, and to 
comply with the Texas Constitution by directing PSF assets[. Although the PSF is 
not subject to the provisions of the Employee Retirement Income Security Act 
(ERISA) of 1974, as amended, the SBOE intends to comply with the provisions of 
ERISA regarding fiduciary responsibility to the greatest extent possible. 
Further, the provisions of the Uniform Management of Institutional Funds Act, as 
stated in the Texas Property Code, sec.sec.163.001-163.009, shall apply, to the 
extent they are consistent with the provisions of the Texas Constitution, 
Article VII, governing the operation of the PSF];
(2)-(6) (No change.) 

sec.33.20. Responsible Parties and Their Duties. 
(a) The Texas Constitution, Article VII, sec.sec.1-8, establishes the Available 
School Fund, the Texas Permanent School Fund (PSF), and the State Board of 
Education (SBOE), and specifies the standard of care SBOE members must exercise 
in managing PSF assets. In addition, the constitution directs the legislature to 
establish suitable provisions for supporting and maintaining an efficient public 
free school system, defines the composition of the PSF and the Available School 
Fund, and requires the SBOE to set aside sufficient funds to provide free 
textbooks for the use of children attending the public free schools of this 
state. [The Texas Education Code, Chapter 43, regulates the use of state funds 
to support public schools, and the provisions of this chapter govern the 
investment objectives, policies, and guidelines of the PSF.]
(b) The SBOE shall be responsible for overseeing all aspects of the PSF and may 
employ any of the following parties, whose duties and responsibilities are as 
follows. 
(1)-(5) (No change.) 
[(6) The Internal Audit Division of the Texas Education Agency (TEA) reviews the 
internal control procedures of the PSF Investment Office annually at the 
direction of the SBOE. The division conducts the audit according to standards 
advocated by the Institute of Internal Auditors, Inc., and reports all findings 
to the commissioner of education. The purpose of the internal audit shall be to 
evaluate the controls over assets and test compliance with TEA rules and 
procedures.] 
<nl>(6)<ol> [(7)] The State Auditor's Office is an independent state agency that 
performs an annual financial audit of the TEA at the direction of the Texas 
Legislature. The financial audit, conducted according to generally accepted 
auditing standards, is designed to test compliance with generally accepted 
accounting principles. The state auditor performs tests of the transactions of 
the PSF Investment Office as part of this annual audit, including compliance 
with governing statutes and SBOE policies and directives. <nl>The TEA Internal 
Audit Division will participate in the audit process by participating in 
entrance and exit conferences, being provided copies of all reports and 
management letters furnished by the external auditor, and having access to the 
external auditor's audit programs and working papers.<ol> 
<nl>(7)<ol> [(8)] The SBOE may retain independent external auditors to review 
the PSF accounts annually or on an as-needed basis. <nl> The TEA Internal Audit 
Division will participate in the audit process by participating in entrance and 
exit conferences, being provided copies of all reports and management letters 
furnished by the external auditor, and having access to the external auditor's 
audit programs and working papers.<ol> 
(c)-(d) (No change.)
(e) The SBOE shall have the following exclusive duties: 
(1)-(3) (No change.) 
(4) approving all contracts <nl>and<ol> [with] <nl>selection of<ol> external 
professional investment managers, financial advisors, financial consultants, or 
other external professionals employed to help the SBOE invest the PSF; 
(5) approving the performance measurement contract <nl> and<ol> [with] 
<nl>selection of<ol> a well-recognized and reputable firm employed to evaluate 
and analyze PSF investment results. The service shall compare investment results 
to the written investment objectives of the SBOE and also compare the investment 
of the PSF with the investment of other public and private funds against market 
indices and by managerial style; 
(6)-(7) (No change.) 
(f)-(g) (No change.) 

sec.33.25. Permissible and Restricted Investments and General Guidelines for 
Investment Managers. 
(a)-(b) (No change.) 
(c) General guidelines for investment managers. 
(1) (No change.) 
(2) As fiduciaries of the PSF, investment managers shall discharge their duties 
solely in the interests of the PSF according to the prudent expert rule, 
engaging in activities that include the following. 
(A) (No change.) 
(B) Securities trading. 
(i)-(iii) (No change.) 
(iv) The SBOE shall require each external manager to indemnify the PSF for all 
failed trades not due to the negligence of the PSF or its custodian <nl>in 
instances where the selection of the broker dealer is not in compliance with 
sec.33.40 of this title (relating to Trading and Brokerage Policy)<ol>. 
(C)-(D) (No change.) 
(d) Reporting procedures for investment managers. The investment manager shall:
(1) prepare a monthly <nl>and quarterly<ol> report for delivery to the SBOE, the 
SBOE Committee on [the] <nl>School Finance/ <ol> Permanent School Fund, and the 
PSF investment staff that shall include, in the appropriate format, items 
requested by the SBOE. The <nl> monthly<ol> reports shall <nl>briefly<ol> cover 
[any change in the firm's structure, professional team, or product offerings;] 
the firm's economic review; a review of recent and anticipated investment 
activity; <nl> a summary<ol> [an analysis] of major changes that have occurred 
in the investment markets and in the portfolio, particularly since the last 
report; [a detail of the portfolio holdings and each transaction that has been 
completed or is in process since the last report]; and a summary of the key 
characteristics of the PSF portfolio. <nl>Quarterly reports shall 
comprehensively cover the same information as monthly reports but shall also 
include any changes in the firm's structure, professional team, or product 
offerings; a detail of the portfolio holdings; and transactions for the period. 
<ol> Periodically, the PSF investment staff shall provide the investment manager 
a detailed description of, and format for, these reports; 
(2) when requested by the SBOE Committee on [the] <nl>School Finance/<ol> 
Permanent School Fund, make a presentation describing the professionals retained 
for the PSF, the investment process used for the PSF portfolio under the 
manager's responsibility, and any related issues; 
(3)-(4) (No change.) 

sec.33.30. Standards of Performance. 
(a) The State Board of Education (SBOE) Committee on [the] <nl>School 
Finance/<ol> Permanent School Fund shall set and maintain performance standards 
for the total fund, the equity fund, the fixed income fund, and the cash fund of 
the Texas Permanent School Fund (PSF), and all investment managers based on 
criteria that include the following: 
(1)-(5) (No change.) 
(b) The SBOE Committee on [the] <nl>School Finance/<ol> Permanent School Fund 
shall develop and implement the procedures necessary to establish and recommend 
to the SBOE the performance standards criteria.
(c) (No change.) 

sec.33.40. Trading and Brokerage Policy.
(a) (No change.) 
(b) Directed Trades. The SBOE may adopt directed trade procedures for the PSF 
portfolio according to procedures developed by the SBOE Committee on [the] 
<nl>School Finance/<ol> Permanent School Fund. 
(c) Guidelines for selecting a brokerage firm. 
(1)-(3) (No change.) 
(4) Review and evaluation. At least annually, the SBOE Committee on [the] 
<nl>School Finance/<ol> Permanent School Fund shall review the brokerage firms 
used by PSF investment managers and all transactions for compliance with the 
provisions of this section. 

sec.33.55. Standards for Selecting Consultants, Investment Managers, Custodians, 
and Other Professionals To Provide Outside Expertise for the Fund. 
The State Board of Education (SBOE) may retain qualified professionals to assist 
in investment and related matters. 
(1)-(2) (No change.) 
(3) Process for selecting professional assistance. The SBOE shall establish and 
maintain in the Texas Permanent School Fund (PSF) Procedures Manual an objective 
process for selecting expertise or assistance. The SBOE Committee on [the] 
<nl>School Finance/<ol> Permanent School Fund shall periodically review the 
process to ensure it reflects SBOE objectives. 

sec.33.60. Performance and Review Procedures. 
As requested by the State Board of Education (SBOE) or Texas Permanent School 
Fund (PSF) investment staff, evaluation and periodic investment reports shall 
supply critical information on a continuing basis, such as the amount of trading 
activity, investment performance, cash positions, diversification ratios, rates 
of return, and other perspectives of the portfolios. The reports shall address 
compliance with investment policy guidelines. 
(1) Performance measurements. The SBOE Committee on [the] <nl>School 
Finance/<ol> Permanent School Fund shall review <nl> the<ol> [at least] 
quarterly [the] performance of each investment manager portfolio of the PSF in 
terms of the provisions of this chapter. The investment performance review shall 
include comparisons with representative benchmark indices, a broad universe of 
investment managers, and the consumer price index. A time-weighted return 
formula (which minimizes the effect of contributions and withdrawals) shall be 
used for investment return analysis. The review also may include quarterly 
performance analysis and comparisons of retained firms. The services of an 
outside, independent consulting firm that provides performance measurement and 
evaluation shall be retained. 
(2) Meeting and reports. At least annually, the SBOE Committee on [the] 
<nl>School Finance/<ol> Permanent School Fund shall meet with the PSF investment 
managers and custodian to review their responsibilities, the PSF portfolio, and 
investment results in terms of the provisions of this chapter. 
(3) Review and modification of investment policy statement. The SBOE Committee 
on [the] <nl>School Finance/<ol> Permanent School Fund shall review the 
provisions of this chapter at least once a year to determine if modifications 
are necessary or desirable. Upon approval by the SBOE, any modifications shall 
be promptly reported to all investment managers and other responsible parties. 
(4) Compliance with this chapter and Texas statutes. Annually, the SBOE 
Committee on [the] <nl>School Finance/<ol> Permanent School Fund shall confirm 
that the PSF and each of its managed portfolios have complied with the 
provisions of this chapter concerning exclusions imposed by the SBOE, proxy 
voting, and trading and brokerage selection. 
(5) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808061
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-9701

CHAPTER 66. State Adoption and Distribution of Instructional Materials
SUBCHAPTER C. Local Operations
19 TAC sec.66.107
The Texas Education Agency (TEA) proposes an amendment to sec.66.107, concerning 
instructional materials. The section establishes procedures for school districts 
and open-enrollment charter schools to conduct an annual physical inventory of 
currently adopted instructional materials requisitioned by and delivered to 
districts and open- enrollment charter schools. The proposed amendment would 
require school districts and open-enrollment charter schools to return surplus 
textbooks to the state textbook depository for redistribution. The proposed 
amendment also prohibits districts and open-enrollment charter schools from 
inflating enrollments and ordering textbooks in excess of the actual needs. 
Under the proposed amendment, districts and open-enrollment charter schools that 
inflate enrollments and order textbooks in excess of the actual needs will 
purchase the excess textbooks from the state. 
Local school districts and open-enrollment charter schools are responsible for 
selecting and submitting requisitions for instructional materials. Currently, 
there are no rules in place that addresses the issue of textbook orders based on 
reported enrollment that exceeds actual enrollment. The proposed amendment 
provides a means for the state to require districts and open-enrollment charter 
schools to return surplus textbooks in a timely manner. Failure to return 
surplus textbooks increases textbook expenditures for the state by denying the 
opportunity for redistribution from the state textbook depository. New textbooks 
are purchased instead. 
Felipe Alanis, deputy commissioner for programs and instruction, has determined 
that for the first five-year period the section is in effect there will be 
fiscal implications as a result of enforcing or administering the section. 
However, the effect on state and local government cannot be determined at this 
time. While total savings for the state also cannot be estimated at this time, 
the potential exists for significant savings by requiring more stringent 
ordering processes on the part of school districts and open-enrollment charter 
schools and by implementing a return policy for surplus textbooks that can be 
redistributed by the state. 
Mr. Alanis and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the section 
is in effect the public benefit anticipated as a result of enforcing the section 
will be facilitating a more responsible and expeditious expenditure of state 
funds by requiring school districts and open-enrollment charter schools to 
return surplus textbooks to the state textbook depository for redistribution in 
a timely manner. There will not be an effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the section 
as proposed. 
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. 
Comments may also be submitted electronically to rules@tmail.tea.state.tx.us. 
All requests for a public hearing on the proposed section submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the section 
has been published in the Texas Register. 
The amendment is proposed under the Texas Education Code, sec.31.003, which 
authorizes the State Board of Education to adopt rules, consistent with the 
Texas Education Code, Chapter 31, for the adoption, requisition, distribution, 
care, use, and disposal of textbooks; and Texas Education Code, sec.31.103, 
which specifies the provisions for textbook requisitions.
The amendment implements the Texas Education Code, sec.31.003 and sec.31.103.

sec.66.107. Local Accountability.
<nl>(a)<ol> Each school district or open-enrollment charter school shall conduct 
an annual physical inventory of all currently adopted instructional materials 
that have been requisitioned by, and delivered to, the district. The results of 
the inventory shall be recorded in the district's files. Reimbursement and/or 
replacement shall be made for all instructional materials determined to be lost 
[during the physical inventory].
<nl>(b)<ol> After the beginning of every school year, each school district or 
open-enrollment charter school shall determine if it has surplus instructional 
materials for any subject area/grade level, based on its current enrollment for 
the subject area/grade level. Instructional materials determined by the school 
district or open-enrollment charter school to be surplus-to-quota shall be 
returned to the State Textbook Depository in accordance with instructions 
provided by the Texas Education Agency. A school district or open- enrollment 
charter school is entitled to retain surplus-to-quota instructional materials 
only when data approved by the Texas Education Agency indicate that students 
will be enrolled in the subject and a need for the surplus-to-quota 
instructional materials exists. 
<nl>(c)<ol> When placing orders for instructional materials, school districts 
and open-enrollment charter schools shall report enrollments as follows: 
<nl>(1)<ol> Annual orders for instructional materials. Enrollments shall be 
reported based on the maximum number of students enrolled in the district or 
open-enrollment charter school during the previous school year and/or registered 
to attend the district during the next school year; and 
<nl>(2)<ol> Supplemental orders for instructional materials. Enrollments shall 
be reported based on the actual number of students enrolled in the district when 
the order is submitted. 
<nl>(d)<ol> The Texas Education Agency assumes that enrollments reported by a 
school district or open-enrollment charter school at the time an order for 
instructional materials is placed are accurate. 
<nl>(e)<ol> A school district or open-enrollment charter school that orders 
instructional materials in excess of its eligibility by reporting enrollments 
above enrollments described in subsection (c)(1) and (2) of this section enters 
into a contract with the state to purchase the instructional materials supplied 
that exceed the school district or open-enrollment charter school's eligibility 
for the subject area/grade level. A school district or open-enrollment charter 
school may cancel the contract to purchase instructional materials supplied in 
excess of its eligibility by immediately returning the excess instructional 
materials to the State Textbook Depository. If prior approval is received, 
excess instructional materials may also be returned to the publisher's approved 
depository. A school district or open-enrollment charter school that retains 
excess instructional materials for more than six months after the beginning of 
the school year shall reimburse the state at the full price for the excess 
instructional materials.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808062
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-9701

CHAPTER 109. Budgeting, Accounting, and Auditing
SUBCHAPTER B. Texas Education Agency Audit Functions
19 TAC sec.109.25
The Texas Education Agency (TEA) proposes new sec.109.25, concerning the 
reporting and auditing system for the state compensatory education program. The 
new section provides for a reporting and auditing system for district and campus 
expenditures of compensatory education funds that are distributed under the 
Foundation School Program. Senate Bill 1873, 75th Texas Legislature, 1997, 
amended Texas Education Code (TEC), sec.42.152, in relation to direct costs 
attributed to the state compensatory education allotment. The bill requires the 
design and implementation of a reporting and auditing system that ensures 
monitoring of school districts for appropriate use of compensatory education 
allotment funds. Appropriate use of compensatory education allotment funds has 
been defined as expenditures for instructional programs that improve or enhance 
the regular educational program and that are supplementary to the regular 
education program. According to the statutes, the State Board of Education is to 
be assisted by the Office of the State Auditor and Comptroller of Public 
Accounts in the design and implementation of the reporting and auditing system. 
Proposed new module nine of the "Financial Accountability System Resource Guide" 
describes the reporting and auditing system required by Senate Bill 1873. 
Proposed new module nine describes an auditing system that involves risk 
assessment and desk audit processes. The risk assessment and desk audit 
processes will review academic performance of students in at-risk situations, 
financial management of the state compensatory education allotment, and the 
quality of data submitted by districts to the TEA. Problems in any of these 
areas could result in an on-site visit of a school district. Proposed new module 
nine of the " Resource Guide" also provides guidelines to districts regarding 
the use of the compensatory education allotment to supplement the regular 
education program. Proposed new module nine of the "Resource Guide" was filed as 
an adoption by reference with the Office of the Secretary of State and published 
in the April 17, 1998, issue of the Texas Register (23 TexReg 3791). Proposed 
new module nine will be amended, as necessary, in accordance with any revisions 
to proposed new 19 TAC sec.109.25. The adoption of proposed new module nine will 
be filed at the same time as the adoption of proposed new 19 TAC sec.109.25. 
The proposed effective date for proposed new 19 TAC sec.109.25 is September 1, 
1998. Implementation during Fiscal Year (FY) 1999 will be on a hold-harmless 
basis, providing a transitional year for implementing the new financial 
accounting requirements for the state compensatory education allotment. 
Joe Wisnoski, coordinator for school finance and fiscal analysis, has determined 
that for the first five-year period the section is in effect there will be 
fiscal implications for state government as a result of enforcing or 
administering the section. 
The TEA will incur additional costs in connection with implementing the new 
reporting and auditing system for state compensatory education, required by 
Senate Bill 1873, 75th Texas Legislature, 1997. The reporting and auditing 
system is proposed in new module nine of the "Financial Accountability System 
Resource Guide." Unless additional funds are appropriated to the TEA operating 
budget and the full-time equivalent (FTE) cap is raised, the TEA would need to 
reallocate existing and future budget allocations from other administrative 
areas. 
The estimated cost to the TEA to fully implement the needed monitoring system 
would be $280,000 in FY1999; $2,280,000 in FY2000; and $2,190,000 in FY2001 and 
FY2002. The cost in FY1999 would involve the information system design; 
specification and testing; and development of procedures and writing manuals. 
Costs in subsequent fiscal years would include an estimated 25 FTE positions to 
analyze information submitted by school districts and travel to school districts 
in order to perform on-site reviews of problems involving local administration 
of state compensatory education programs. 
There may be fiscal implications for local governments as a result of enforcing 
or administering the section. Failure to comply with the proposed new rule could 
result in a financial penalty to school districts, in accordance with TEC, 
sec.42.152. If a financial penalty is applied to a district, the amount of the 
financial penalty will be restored when an adequate corrective action plan is 
filed by a district with the TEA. Because it is anticipated that all districts 
will file adequate corrective action plans, if they have not spent the 
compensatory education allotment appropriately, there will be little, if any, 
overall fiscal impact to school districts. 
Mr. Wisnoski and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the section 
is in effect the public benefit anticipated as a result of enforcing the section 
will be improving financial accountability for the use of state compensatory 
education allotment funds. There will not be an effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed. 
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. 
Comments may also be submitted electronically to rules@tmail.tea.state.tx.us. 
All requests for a public hearing on the proposed section submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the section 
has been published in the Texas Register. 
The new section is proposed under the Texas Education Code, sec.42.152, as 
amended by Senate Bill 1873, 75th Texas Legislature, 1997, which authorizes the 
State Board of Education to develop and implement by rule a reporting and 
auditing system for district and campus expenditures of compensatory education 
funds to ensure that compensatory education funds, other than the indirect cost 
allotment, are spent only to supplement the regular program. 
The new section implements the Texas Education Code, sec.42.152. 

sec.109.25. State Compensatory Education Program Reporting and Auditing System.
(a) Each school district shall report financial information relating to 
expenditure of the state compensatory education allotment under the Foundation 
School Program to the Texas Education Agency (TEA). Each district shall report 
the information according to standards for financial accounting provided in 
sec.109.41 of this title (relating to Financial Accountability System Resource 
Guide.) The financial data will be reported annually through the Public 
Education Information Management System. The commissioner of education shall 
ensure that districts follow guidelines contained in the "Financial 
Accountability System Resource Guide" in attributing supplemental direct costs 
to state compensatory education and accelerated instruction programs and 
services. Costs charged to state compensatory education shall be for programs 
and services that enhance and improve the regular education program. 
(b) Each district shall ensure that supplemental direct costs and personnel 
attributed to compensatory education and accelerated instruction are identified 
in district and/or campus improvement plans at the summary level for financial 
units or campuses. Each district shall maintain documentation that supports the 
attribution of supplemental costs and personnel to compensatory education. 
Districts must also maintain sufficient documentation supporting the appropriate 
identification of students in at-risk situations, under criteria established in 
Texas Education Code (TEC), sec.29.081. 
(c) The TEA shall conduct risk assessment and desk audit processes to identify 
the districts or campuses most at risk of inappropriate allocation and/or 
underexpenditure of the compensatory education allotment. In the risk assessment 
and desk audit processes, the TEA shall consider the following factors: 
(1) aggregate performance of students in at-risk situations on the state 
assessment instruments that is below the standards for the "acceptable" rating, 
as defined in the state accountability system; 
(2) the financial management of compensatory education funds; and/or 
(3) the quality of data related to compensatory education submitted by a 
district. 
(d) The TEA shall use the results of risk assessment and desk audit processes to 
prioritize districts for the purpose of on-site visits and may conduct on-site 
visits. 
(e) The TEA shall issue a preliminary report resulting from a desk audit or an 
on-site visit before submitting a final report to the district. After issuance 
of a preliminary report, a district must file with the TEA the following: 
(1) a response to the preliminary report within 20 calendar days from the date 
of the preliminary report outlining steps the district will take to resolve the 
issues identified in the preliminary report; and
(2) a corrective action plan within 60 calendar days from the date of the 
preliminary report if the district's response to the preliminary report does not 
resolve issues identified in the preliminary report. 
(f) The TEA shall issue a final report that indicates whether the district has 
resolved the findings in the preliminary report and whether the corrective 
action plan filed under subsection (e)(2) of this section is adequate. 
(1) If the final report contains a finding of noncompliance with TEC, 
sec.42.152(c), the report shall include a financial penalty authorized under 
TEC, sec.42.152(q). 
(2) If the district responds with an appropriate corrective action plan, the 
financial penalty shall be restored. 
(g) The TEA may conduct an on-site visit to verify the implementation of a 
district's corrective action plan. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808063
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-9701

CHAPTER 157. Hearings and Appeals
SUBCHAPTER D. Independent Hearing Examiners
19 TAC sec.157.41
The Texas Education Agency (TEA) proposes an amendment to sec.157.41, concerning 
certification criteria for independent hearing examiners. The section 
establishes the certification criteria for independent hearing examiners. The 
proposed amendment to 19 TAC sec.157.41(f) specifies that three of the 10 hours 
of continuing legal education credit for certified hearing examiners, who 
preside over employment due process hearings at the district level, be in school 
law and the other seven hours be in civil trial advocacy. The proposed amendment 
to 19 TAC sec.157.41(k) allows the commissioner of education, upon application 
for recertification, to consider a complaint by an attorney who participated in 
a hearing that a hearing examiner did not conduct his or her duties in a 
competent manner. The commissioner would consider, but not be limited to, three 
factors relating to the conduct of the examiner: timeliness, accuracy and 
appropriateness of procedural and evidentiary rulings; and decorum or control. 
David Anderson, chief counsel, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. Mr. 
Anderson and Criss Cloudt, associate commissioner for policy planning and 
research, have determined that for each year of the first five years the section 
is in effect the public benefit anticipated as a result of enforcing the section 
will be to ensure that independent hearing examiners possess experience in the 
processing of due process hearings and in the areas of evidence and procedure. 
There will not be an effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the section as 
proposed. 
Comments on the proposal may be submitted to Criss Cloudt, Policy Planning and 
Research, 1701 North Congress Avenue, Austin, Texas 78701, (512) 463-9701. 
Comments may also be submitted electronically to rules@tmail.tea.state.tx.us. 
All requests for a public hearing on the proposed section submitted under the 
Administrative Procedure Act must be received by the commissioner of education 
not more than 15 calendar days after notice of a proposed change in the section 
has been published in the Texas Register. 
The amendment is proposed under the Texas Education Code, sec.21.252, which 
directs the State Board of Education to establish criteria for the certification 
of hearing examiners in consultation with the State Office of Administrative 
Hearings. 
The amendment implements the Texas Education Code, sec.21.252. 

sec.157.41. Certification Criteria for Independent Hearing Examiners. 
(a)-(e) (No change.) 
(f) Continuing education. During each year of certification, a certified 
<nl>hearing<ol> examiner must receive credit for <nl>ten <ol> [10] hours of 
continuing legal education<nl>, with three hours <ol> in the area of school law 
<nl>and seven hours in the area of civil trial advocacy,<ol> during the period 
January 1 to December 31 of each year of certification. 
(g)-(j) (No change.) 
(k) Annual recertification. Certification expires on December 31 of each 
calendar year. All examiners seeking recertification shall reapply on a date 
specified by the commissioner. <nl>Upon written complaint by an attorney who has 
participated in a hearing, the commissioner, in his discretion, may decline to 
recertify a certified hearing examiner, if the commissioner determines that the 
certified hearing examiner has failed to perform the duties of an examiner in a 
competent manner. The commissioner may consider, but is not limited to, the 
following factors:<ol> 
<nl>(1)<ol> timeliness; 
<nl>(2)<ol> accuracy and appropriateness of procedural and evidentiary rulings; 
or 
<nl>(3)<ol> decorum or control.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808064
Criss Cloudt
Associate Commissioner, Policy Planning and Research
Texas Education Agency
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-9701

TITLE 22. EXAMINING BOARDS
PART III. Texas Board of Chiropractic Examiners
CHAPTER 73. Licenses and Renewals
22 TAC sec.73.3, sec.73.5
The Texas Board of Chiropractic Examiners proposes amendments to 
sec.73.3(1)(E),(2), (3), relating to verification of and exemption from 
mandatory continuing education, and sec.73.5, relating to failure to meet 
continuing education requirements. The Chiropractic Act, Texas Civil Statutes, 
Article 4512b, sec.8b(c), requires the board to establish a minimum number of 
continuing education courses for licensees for renewal of a license each year. 
Currently, the board's continuing education program is set out in three separate 
rules (sec.sec.73.2, 73.3, and 73.5). Some of the provisions are internally 
inconsistent. The reason for this rulemaking is to set out in a single rule, the 
provisions relating to a licensee's failure to meet the continuing education 
requirements, to delete other redundant or inconsistent language, and to clarify 
existing provisions. 
The current practice of the board is to allow a licensee an additional 12 months 
in which to meet the continuing education obligation. That practice is continued 
in sec.73.5 with some changes. One proposed amendment to sec.73.5 revises 
subsection (d). Instead of a license being "canceled" for failure to be 
reinstated at the end of a probationary period, the board will consider a 
license to have "expired" from the date of its renewal, with the existing 
consequence of having to obtain a new license as provided in the Chiropractic 
Act, sec.8a(e) and board rule 73.2(c) for failure to renew timely a license. In 
this context, the word "expired" is consistent with terminology in the related 
rules and section of the Chiropractic Act. 
New subsections (e)-(h) are proposed for sec.73.5. They: prohibit a licensee 
from applying courses obtained for reinstatement toward the continuing education 
requirement for the next reporting year; allow a licensee to be placed on 
probationary status for only one year at a time and prohibit renewal of a 
license of a licensee who is deficient for two years in a row; prohibit such a 
licensee from practicing until the license is renewed; and allow renewal if all 
deficient courses are completed and as provided by sec.73.2 for expired licenses 
generally. 
Under these proposed amendments, a licensee who is in non-compliance with the 
continuing education requirements for two years in a row, must cease practicing 
as provided by the Chiropractic Act, sec.8a for expired licenses for failure to 
renew. Such licensee may renew his or her license by curing any deficiency and 
complying with sec.8a and board rule sec.73.2(c). 
As stated previously, the Chiropractic Act mandates the board to require 
continuing education as a condition of renewal. The board's program gives 
licensees 12 additional months to comply for each reporting year. It is the 
board's opinion that two years is a reasonable amount of time to obtain a total 
of 32 hours or 16 hours per year of continuing education. The Chiropractic Act's 
continuing education requirement dictates that renewal of a license be denied if 
the continuing education requirement is not met. The Act further expressly 
states in sec.8a(a) that practicing without a renewal certificate is practicing 
without a license, subject to all of the penalties provided in the Act. The 
board's proposed administrative procedures include an incentive to encourage 
timely compliance by making the burdens and sanction for non-compliance more 
stringent the longer compliance is delayed. These proposed amendments for 
dealing with licensees who fail to meet the obligations of renewal implement the 
Act's mandates while, at the same time, give adequate and reasonable opportunity 
for licensees to comply. It is the board's intent to require timely completion 
of mandatory continuing education as well as to make reasonable allowances for 
those times when a licensee may have difficulty in complying timely. The 
amendment to sec.73.3(E) provides an alternative method for complying with the 
requirements for licensees who are unable to travel due to illness or 
disability. An eligible licensee may satisfy the board's continuing education 
requirements by viewing video taped courses which are offered by the Foundation 
for Chiropractic Education and Research. The proposed amendment adds audio tapes 
to this provision. The proposed amendment seeks to provide an appropriate 
accommodation for persons who are ill or disabled by allowing an alternative 
means of complying with the board's continuing education requirements. The 
amendment will assist licensees who may be visually impaired or otherwise ill or 
disabled to complete their continuing education requirements by use of audio or 
video tapes. The amendment indirectly promotes the continuing safety of patients 
by facilitating access to continuing education training for those licensees who 
may be physically unable to travel to a course. The proposed amendment to 
sec.73.3 also deletes part of paragraph (3), deleting the subparagraph (A) and 
existing subparagraph (B), re-letting existing clauses (i)-(iv) under 
subparagraph (A) as new subparagraphs (A)-(D). The subject matter of these 
provisions is addressed in the new subsections of sec.73.5. Section 73.3(1)(A) 
and (2)(A) is amended to clarify that licensees are to report compliance at the 
time of license renewal, that is, on or before the first day of their birth 
months. The proposed amendment to sec.73.3(2)(A) also explains the type of 
verification required. The sanction, in sec.73.3(2)(C), for failing to provide 
verification upon request is deleted as being unnecessary. A new subparagraph 
(C) is being proposed which makes the failure to provide verification for each 
reporting year the same as non-compliance with the continuing education 
requirements under sec.73.5. Verification of compliance is essential to any 
regulatory program. The absence of verification leaves the board without any 
adequate mechanism to confirm each licensee's compliance; therefore, failing to 
submit verification is treated the same as failing to comply in the first 
instance. Other grammatical changes for clarity and consistency have been 
proposed throughout the affected sections. 
Joyce Kershner, director of licensure, and Dr. Keith Hubbard, D.C., chair, Rules 
Committee, have determined that for the first five year period the rules as 
amended are in effect, there will be no fiscal implications for state or local 
government, as a result of enforcing or administering the rules. 
Ms. Kershner and Dr. Hubbard, also have determined that for each year of the 
first five years the rules are in effect, the public benefit anticipated as a 
result of enforcing the rules as amended will be: that licensees are provided 
better notice of the board's compliance provisions relating to its mandatory 
continuing education program and the consequences of non-compliance; and 
assurance that patients are treated by licensees who continue to acquire 
training and thus, maintain proficiency in their practice. Licensees who are 
unable to travel to continuing education courses, due to illness or disability, 
will have the benefit of participating in continuing education. There will be no 
added effect on small businesses versus that on larger businesses. Each licensee 
is subject to the same requirements, regardless of the size of their practice. 
There is no anticipated economic costs to persons who are required to comply 
with the amended rules inasmuch as licensees are required currently to comply 
with similar or the same provisions. Licensees at present pay a fee for 
attending continuing education seminars. Licensees who are eligible for the 
audio or video tape option will pay instead a fee for the audio or video tape. 
Comments may be submitted, no later than 30 days form the date of this 
publication, to Dr. Keith Hubbard, D.C., Chairman, Rules Committee, Texas Board 
of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas 
78701. 
The amendments are proposed under Texas Civil Statutes, Article 4512b, sec.4(c), 
sec.4a, which authorize the board to adopt rules necessary for performance of 
its duties, the regulation of the practice of chiropractic, and the enforcement 
of the Act, and sec.8b, which requires the board to establish a mandatory 
continuing education program with which licensees must comply in order to renew 
their licenses annually. 
The following sections of Texas Civil Statutes, Article 4512b are affected by 
these proposed amendments: sec.sec.4(c), 4a, 8b. 

sec.73.3. Continuing Education. 
A licensee is required to attend continuing education courses as a condition of 
renewal of a license. 
(1) Requirements. 
(A) <nl>Every licensee shall<ol> [All licensees will annually] attend and 
complete 16 hours of continuing education <nl> each<ol> [per calendar] year[.] 
<nl> unless a licensee is exempted under paragraph (3) of this section. Each 
licensee's reporting year shall begin on the first day of the month in which his 
or her birthday occurs.<ol> [The calendar year is considered to begin January 1 
and end December 31.] 
(B)-(D) (No change.) 
(E) A licensee who is unable to travel for the purpose of attending a continuing 
education course or seminar due to a mental or physical illness or disability 
may satisfy the board's continuing education requirements by <nl>listening to 
audio or<ol> viewing video taped courses from the Foundation for Chiropractic 
Education and Research. In order for <nl>an audio or<ol> [a] video taped course 
to be accepted by the board, a licensee must submit a letter from a licensed 
chiropractor, M.D., D.O., D.P.M., D.D.S. or O.D., who is not associated with the 
licensee in any manner. In the letter, the chiropractor or other doctor must 
state the nature of the illness or disability and certify that the licensee was 
ill or disabled, and unable to travel for the purpose of obtaining continuing 
education hours due to the illness or disability. A licensee is required to 
submit a new certificate for each year an exemption is sought. An untrue 
certification submitted to the board shall subject the licensee to disciplinary 
action as authorized by the Chiropractic Act, Texas Civil Statutes, Article 
4512b, sec.14a, sec.14e. 
(2) Verification. 
(A) <nl>At the time of license renewal each year, a licensee shall submit, to 
the board, written verification from each sponsor, of the licensee's attendance 
at and completion of each continuing education course which is used in the 
fulfillment of the 16 hours for the reporting year just ending<ol> [Verification 
of the 16 hours will be provided to the board office by the licensee at the time 
of license renewal]. 
(B) Upon request by the board, <nl>a<ol> [the] licensee <nl>shall provide<ol> 
[will be responsible for providing] verification of his <nl>or her<ol> 
continuing education for all years requested. 
(C) <nl>Failure to submit verification as required by subparagraph (A) of this 
paragraph shall be considered the same as failing to meet the continuing 
education requirements of paragraph (1) of this section<ol> [ Should the 
licensee fail to submit verification upon request by the board, it will be 
considered a violation of Texas Civil Statutes, Article 4512b, sec.8a(a)]. 
(3) Qualifying exemption. 
[(A)] [Licensees who have not complied with the continuing education 
requirements may not be issued a renewal license unless such person is entitled 
to an exemption.] The following persons are exempt <nl>from the requirements of 
paragraph (1) of this section<ol>:
<nl>(A)<ol> [(i)] a licensee who holds an inactive Texas license [does not 
practice chiropractic in Texas]. However, if at any time during the 
<nl>reporting<ol> [calendar] year for which such exemption <nl>applies<ol> [has 
been obtained] such person desires to practice chiropractic, such person shall 
not be entitled to practice chiropractic in Texas until 16 hours of continuing 
education credits are obtained and the executive director has been notified of 
completion of such continuing education requirements; 
<nl>(B)<ol> [(ii)] a licensee who served in the regular armed forces of the 
United States during part of the 12 months immediately preceding the annual 
license renewal date; 
<nl>(C)<ol> [(iii)] a licensee who submits proof satisfactory to the board that 
the licensee suffered a mental or physical illness or disability which prevented 
the licensee from complying with the requirements of this section during the 12 
months immediately preceding the annual license renewal date; or 
<nl>(D)<ol> [(iv)] a licensee who is first licensed within the 12 months 
immediately preceding the annual renewal date. 
[(B) Written proof of attendance and completion of approved courses must be 
supplied by the licensed chiropractor to the board in conjunction with the 
renewal application for a chiropractic license.] 

sec.73.5. Failure To Meet Continuing Education Requirements. 
(a) A licensee who fails to meet the minimum continuing education requirements 
imposed by <nl>sec.73.3(1) of this title (relating to Continuing Education)<ol> 
[Texas Civil Statutes, Article 4512b, sec.8b(a)], shall have his <nl>or her<ol> 
license placed in a probated status for a period of 12 months. <nl>Renewal of a 
license will be issued contingent on compliance with this section.<ol> 
(b) During probation under this section, a licensee may continue to practice 
provided that he <nl>or she<ol> enrolls in<nl>, attends<ol> and satisfactorily 
completes the required continuing education requirements within the probationary 
period. 
(c) Upon <nl>submission<ol> [proof] to the board <nl> of written 
verification<ol> of <nl>the licensee's attendance at and<ol> completion of the 
required continuing <nl>education<ol> [educational] requirements, the board 
shall fully reinstate the licensee's license.
(d) If a licensee fails to have his <nl>or her<ol> license reinstated during any 
probationary period, the licensee's license shall be <nl> considered expired 
from the beginning date of the probationary year,<ol> [canceled] and the 
licensee must obtain a new license as provided by <nl>sec.73.2(c)(4) of this 
title (relating to Renewal of License) and Texas Civil Statutes, Article 4512b, 
sec.8a(e)<ol> [law].
<nl>(e)<ol> Continuing education courses obtained to satisfy any deficiency in a 
prior reporting year may not be applied toward the continuing education 
requirements for the next reporting year.
<nl>(f)<ol> A licensee may not be placed on probationary status for two 
consecutive years. If a licensee who was on probationary status under this 
section for the prior reporting year is in non-compliance with sec.73.3 of this 
title for the current reporting year, his or her license shall be considered 
expired and shall not be renewed except as provided by subsection (h) of this 
section. 
<nl>(g)<ol> A licensee subject to subsection (f) of this section shall not 
practice chiropractic until his or her license is renewed or a new license is 
obtained as provided by sec.73.2(c) of this title. 
<nl>(h)<ol> A licensee subject to subsection (f) of this section may renew his 
or her license upon completion of all deficient courses and as provided by 
sec.73.2(c) of this title.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808070
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-6709

22 TAC sec.73.4
The Texas Board of Chiropractic Examiners proposes an amendment to sec.73.4, 
relating to inactive status. The purpose of this amendment is to conform the fee 
provision in sec.73.4 to the board's current fee schedule in sec.75.7 under 
which the board charges no fee for inactive status. Under proposed subsection 
(b), a licensee who files a late application for inactive status will be subject 
to late fees for late renewal of a license. Proposed subsection (e) also 
conforms the rule's re-examination requirement for licensees on inactive status 
for more than five years to the board's current examinations in sec.71.6. Other 
proposed amendments incorporate changes for clarity, grammar and consistency, 
and delete redundant language in existing subsections (d) and (e). Matters in 
those subsections are also found in existing subsections (h) and (i). These four 
subsections have been combined into the proposed subsections (d) and (f). 
Joyce Kershner, Director of Licensure, has determined that for the first five-
year period the amendment is in effect, there will be no fiscal implications for 
state or local government as a result of enforcing or administering the rule. 
The proposed amendment does not implement new requirements; it conforms this 
rule to existing provisions of other board rules and procedures. 
Ms. Kershner also has determined that for each year of the first five years, the 
amendment is in effect, the public benefit anticipated as a result of enforcing 
the rule, as amended, will be that licensees are provided better notice of the 
board's procedures and requirements relating to inactive status. There will be 
no added effect on small businesses versus that on larger businesses. Each 
licensee is subject to the same requirements, regardless of the size of their 
practice. There is no anticipated economic cost to persons who are required to 
comply with the amendment inasmuch as the amendment does not add new conditions 
or requirements on licensees. 
Comments may be submitted, no later than 30 days from the date of this 
publication, to Dr. Keith Hubbard, D. C., Chairman, Rules Committee, Texas Board 
of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas 
78701. 
The amendment is proposed under Texas Civil Statutes, Article 4512b, 
sec.sec.4(c), 4a, which authorize the board to adopt rules necessary for 
performance of its duties, the regulation of the practice of chiropractic, and 
the enforcement of the act, and sec.8d, which requires the board to establish 
rules for inactive status. 
The following are the statutes, articles, or codes affected by the proposed 
amendment: Texas Civil Statutes, Articles 4512b, sec.sec.4(c), 4a, 8d

sec.73.4. Inactive Status.
(a) <nl>A licensee who is not currently practicing chiropractic in Texas may 
request his or her license be placed on inactive status by applying on a form 
prescribed by the board .<ol> [Licenses which can be placed on inactive status 
category are any licensees who are not currently practicing chiropractic in the 
state of Texas.] 
[(b) The Board may place a licensee's license in an inactive status category 
upon proper application by the licensee. Forms for inactive status category may 
be obtained from the board.] 
<nl>(b)<ol> [(c)] A licensee on inactive status [category] is <nl>not<ol> 
required to pay a [license processing] fee <nl>if the application for inactive 
status is submitted on or before the annual expiration date of the license. If 
the application is late, the licensee shall be subject to the applicable late 
fee as provided by sec.73.2 of this title (relating to Renewal of License). A 
licensee on inactive status is not required to complete continuing education as 
provided in sec.73.3 of this title (relating to Continuing Education), <ol> [but 
is not required to complete license renewal courses during any period of 
inactive status]. 
[(d) A licensee on inactive status category may not perform any activity 
regulated by the board.] 
[(e) A licensee on inactive status category who desires to re-enter active 
status must notify the board in writing. The board will remove the licensee from 
inactive status category upon payment of all applicable fees and the licensee 
meeting all requirements for active licensure.] 
<nl>(c)<ol> To place a license on inactive status at a time other than the time 
of license renewal, a licensee shall:
<nl>(1)<ol> return the current renewal certificate to the board office; and 
<nl>(2)<ol> submit a signed, notarized statement stating that the licensee shall 
not practice chiropractic in Texas while the license is inactive, and the date 
the license is to be place on inactive status.
<nl>(d)<ol> To reactivate a license which has been on inactive status for five 
years or less, a licensee shall, prior to beginning practice in this state: 
<nl>(1)<ol> apply for active status on a form prescribed by the board; 
<nl>(2)<ol> submit written verification of attendance at and completion of 
continuing education courses as required by sec.73.3 of this title for the 
number of hours that would otherwise have been required for renewal of a 
license. Approved continuing education earned within the calendar year prior to 
the licensee applying for reactivation may be applied toward the continuing 
education requirement; and 
<nl>(3)<ol> pay the Active License Renewal Fee. 
<nl>(e)<ol> [(f)] A license which has been on inactive status for a period of 
more than five years may be reactivated only upon successfully passing <nl>Part 
IV of the National Board of Examination and<ol> the <nl>board's Jurisprudence 
Examination<ol> [State board examination] prior to reactivation. 
[(g) To place a license on inactive status at a time other than the time of 
license renewal the licensee shall:]
[(1) return the current renewal certificate to the Board Office; and] 
[(2) submit a signed, notarized statement stating that the licensee shall not 
practice chiropractic in Texas while the license is inactive, and the date the 
license is to be place on inactive status.] 
[(h) Reactivation of an Inactive License.] 
[(1) A holder of a license that is on inactive status may return the license to 
active status by:] 
[(A) applying for active status on a form prescribed by the board; ] 
[(B) providing proof of completion certificates from approved continuing 
education programs as specified in sec.73.3 of this title (relating to 
Continuing Education) for the number of hours that would otherwise have been 
required for the renewal of the license. Approved continuing education earned 
within the calendar year prior to the licensee applying for the return to active 
status may be applied toward the continuing education requirement; ] 
[(C) paying the Active License Fee prior to beginning practice within the 
state.] 
[(2) If the application for re-activation of the license is made at the time of 
license renewal, the applicant shall pay the license renewal fee specified in 
sec.75.7 of this title (relating to Chiropractic Fees).] 
<nl>(f)<ol> [(i)] Prohibition against Practicing Chiropractic in Texas. A 
<nl>licensee while<ol> [holder of a license that is] on inactive status shall 
not practice chiropractic in this state. The practice of chiropractic by a 
<nl>licensee while<ol> [holder of a license that is] on inactive status 
constitutes the practice of chiropractic without a license. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808071
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-6709

CHAPTER 75. Rules of Practice
22 TAC sec.75.1, sec.75.2
The Texas Board of Chiropractic Examiners proposes an amendment to sec.75.1, 
relating to grossly unprofessional conduct, and new sec.75.2, relating to proper 
diligence and the efficient practice of chiropractic. The proposed amendment to 
sec.75.1 is made for the purpose of clarifying the board's intent. The 
prohibited conduct enumerated in the rule is not an exclusive list. Other types 
of conduct, based on the totality of circumstances, could also be considered 
grossly unprofessional conduct in violation of this rule and the Chiropractic 
Act, Texas Civil Statutes, Article 4512b sec.14a.5. The proposed amendment 
clarifies that intent by expressly stating that grossly unprofessional conduct 
is not limited to the enumerated conduct. Also, sec.75.1, subsection (b) is 
proposed for deletion. The subsection is not necessary, and its inclusion could 
inaccurately imply that the board was not intending to exercise its power to 
discipline a licensee under sec.14a in instances of grossly unprofessional 
misconduct, but intends only to assess administrative penalties. Under Article 
4512b sec.14a and sec.19a, the board has power to discipline by suspension, 
revocation, probation, or assessment of administrative penalties for violations 
of the Chiropractic Act or its rules or orders. The appropriate disciplinary 
sanction in a particular case is within the discretion of the board based on the 
circumstances of the case. In its enforcement activities, the board intends to 
make use of the full range of the sanctions which are authorized in the Act. 
Other changes are proposed for further clarity, grammar and consistency. 
The board proposes new sec.75.2 to provide examples of conduct which it 
considers to be lack of proper diligence in the practice of chiropractic or 
grossly inefficient practice of chiropractic. Article 4512b sec.14a.14 makes 
such conduct a basis for disciplining a licensee. Section 14a does not define 
the terms, "lack of proper diligence" or "grossly inefficient practice," leaving 
the board with the discretion to define the type of conduct covered by 
sec.14a.14. In order to give greater notice to licensees of the expected 
standard of conduct and the consequences if that standard is violated, the board 
has set out two categories of prohibited conduct which might subject a licensee, 
under the proper facts, to disciplinary action. Both directly relate to the 
performance of chiropractic on a patient. The failure to comply with appropriate 
standards can cause injury to a patient; therefore, the board believes that such 
conduct is at the core of proper diligence and efficient practice of 
chiropractic, whether a licensee performs basic chiropractic procedures or more 
complex procedures requiring greater skill and training than provided in the 
basic curriculum at colleges of chiropractic.
Joyce Kershner, Director of Licensure, has determined that for the first five-
year period the proposed amendment and new rule are in effect, there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the rules. 
Ms. Kershner also has determined that for each year of the first five years, the 
amendment and new rule are in effect, the public benefit anticipated as a result 
of enforcing the rules, will be that licensees are provided better notice of the 
board's standards for performing chiropractic and the grounds for disciplining 
licensees under Article 4512b sec.sec.14a.5, .14. Greater awareness of 
compliance standards and adherence to them will benefit the public by providing 
greater care in treatment and in the safety of patients. There will be no added 
effect on small businesses versus that on larger businesses. Each licensee is 
subject to the same requirements, regardless of the size of their practice. 
There is no anticipated economic cost to persons who are required to comply with 
the amendment and new rule inasmuch as licensees are currently subject to 
sec.14a which sets out the grounds for disciplinary action. The proposed rules 
do not add new grounds; they only clarify the existing grounds in sec.14a. 
Comments may be submitted, no later than 30 days from the date of this 
publication, to Dr. Keith Hubbard, D. C., Chairman, Rules Committee, Texas Board 
of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas 
78701. 
The amendment and new rule are proposed under Texas Civil Statutes, Article 
4512b, sec.sec.4(c), 4a, which authorize the board to adopt rules necessary for 
performance of its duties, the regulation of the practice of chiropractic, and 
the enforcement of the act. 
The following are the statutes, articles, or codes affected by the proposed 
amendment and new rule: Texas Civil Statutes, Articles 4512b, sec.sec.4(c), 4a, 
14a. 

sec.75.1. Grossly Unprofessional Conduct.
[(a)] <nl>Grossly unprofessional conduct when applied to a licensee or 
chiropractic facility includes, but is not limited to the following<ol> [It 
shall be considered grossly unprofessional conduct for a licensee]:
(1) <nl>maintaining<ol> [to maintain] unsanitary or unsafe equipment; 
(2) <nl>failing<ol> [to fail] to use the word "chiropractor," "Doctor, D.C.," or 
"Doctor of Chiropractic, D.C." in all advertising <nl>medium, including<ol> 
signs[,] <nl>and <ol> letterheads[, etc.]; 
(3) <nl>engaging<ol> [to engage] in sexual misconduct with a patient within the 
chiropractic/patient relationship; 
(4) <nl>exploiting<ol> [to exploit] patients through the fraudulent use of 
chiropractic services which result in financial gain for a licensee or a third 
party. The rendering of chiropractic services becomes fraudulent when the 
services rendered or goods or appliances sold by a chiropractor to a patient are 
clearly excessive to the justified needs of the patient as determined by 
accepted standards of the chiropractic profession;
(5) <nl>submitting<ol> [to submit] a claim for chiropractic services, goods or 
appliances to a patient or a third-party payer which contains charges for 
services not actually rendered or goods or appliances not actually sold; 
(6) <nl>failing<ol> [to fail] to disclose, upon request by a patient or his or 
her duly authorized representative, the full amount charged for any service 
rendered or goods supplied. 
[(b) Penalties for engaging in gross unprofessional conduct shall be determined 
in accordance with sec.75.10 of this title (relating to Administrative Fines and 
Penalties).] 

sec.75.2. Proper Diligence and Efficient Practice of Chiropractic. 
(a) A lack of proper diligence in the practice of chiropractic or the gross 
inefficient practice of chiropractic when applied to a licensee or chiropractic 
facility includes but is not limited to the following: 
(1) failing to conform to the minimal acceptable standards of practice of 
chiropractic, regardless of whether or not actual injury to any person was 
sustained, including, but not limited to: 
(A) failing to assess and evaluate a patient's status; 
(B) performing or attempting to perform procedures in which the chiropractor is 
untrained by education or experience; 
(C) delegating chiropractic functions or responsibilities to an individual 
lacking the ability or knowledge to perform the function or responsibility in 
question; or 
(D) causing, permitting, or allowing physical injury to a patient or impairment 
of the dignity or the safety of a patient; 
(2) failing to provide direct supervision of students or other persons as 
required by sec.80.1 of this title (relating to delegation of authority) or 
sec.78.1 (relating to registration of chiropractic radiologic technologists). 
(b) Conduct enumerated in subsection (a) of this section may also constitute, 
under appropriate circumstances, violations of other provisions of the 
Chiropractic Act or other board rules, including but not limited to those which 
prohibit grossly unprofessional conduct or dishonorable conduct. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808072
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-6709

CHAPTER 78. Chiropractic Radiologic Technologists
22 TAC sec.78.1, sec.78.2
The Texas Board of Chiropractic Examiners proposes an amendment to sec.78.1, 
relating to registration of chiropractic radiologic technologists (CRT's), and 
new sec.78.2 relating to definitions. The Medical Radiologic Technologist 
Certification Act (MRTCA), Texas Civil Statutes, Article 4512m sec.2.08, and the 
Texas Chiropractic Act, Texas Civil Statutes, Article 4512b sec.14b, require the 
board to adopt rules in compliance with the MRTCA and rules of the Texas 
Department of Health (TDH) relating to medical radiologic technologists. Section 
78.1 was originally adopted to implement this statutory mandate. In 1997 (22 
TexReg 2230), the board amended the rule to establish the board registration for 
persons performing radiologic procedures. Under the MRTCA and TDH rules, all 
persons performing radiologic procedures had a deadline of January 1, 1998 to 
complete the mandatory training requirements unless they were performing under 
the supervision of a practitioner who had been granted a hardship exemption by 
the TDH, under 25 TAC sec.143.19. The current sec.78.1 does not recognize the 
hardship exemption process. Accordingly, one proposed amendment allows a person 
to register with the board and to perform radiologic procedures without 
compliance with the TDH minimum training standards if working under a hardship 
exemption. Another proposed amendment clarifies the board's annual continuing 
education requirements for CRT's and the exemption from continuing education 
during enrollment in TDH's mandatory training and instruction program. A new 
subsection (g) has been added to sec.78.1 expressly restricting a CRT to 
performing such procedures under the supervision of a chiropractor. The TDH's 
definition of supervision is provided in new sec.78.2 along with other relevant 
definitions. New subsections (j) and (k) in sec.78.1 set out the 
responsibilities of board licensees in the performance of radiologic procedures 
under the MRTCA. Lastly, new subsection (l) gives notice that board disciplinary 
action against a CRT is governed by the Administrative Procedures Act and 
applicable enforcement provisions in the Chiropractic Act. Other proposed 
amendments make changes in existing text for clarity and consistency.
Joyce Kershner, Director of Licensure, has determined that for the first five-
year period the proposed amendment and new rule are in effect, there will be no 
fiscal implications for state or local government, as a result of enforcing or 
administering the rules. 
Ms. Kershner also has determined that for each year of the first five years, the 
proposed amendment and new rule are in effect, the public benefit anticipated as 
a result of enforcing the rules will be that licensees and persons required to 
be registered under sec.78.1 are provided better notice of the board's 
compliance provisions. Moreover, public safety benefits are addressed by 
requiring chiropractor supervision for persons performing radiologic procedures 
and responsibility for compliance with the MRTCA and TDH rules, as well as by 
requiring continuing education of such technologists. There will be no added 
effect on small businesses versus that on larger businesses. Each licensee and 
CRT is subject to the same requirements, regardless of the size of their 
practice. There is no anticipated economic cost to persons who are required to 
comply with the amendment and new rule inasmuch as licensees and CRT's are 
required currently to comply with similar or the same provisions. 
Comments may be submitted, no later than 30 days from the date of this 
publication, to Dr. Keith Hubbard, D. C., Chairman, Rules Committee, Texas Board 
of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas 
78701. 
The amendment and new rule are proposed under Texas Civil Statutes, Article 
4512b, sec.sec.4(c), 4a, which authorize the board to adopt rules necessary for 
performance of its duties, the regulation of the practice of chiropractic, and 
the enforcement of the act, sec.6 which authorizes the board to adopt rules 
establishing guidelines relating to tasks and procedures that a chiropractor may 
delegate to an assistant, and sec.14b which authorizes the board to require 
evidence of proper training, precaution and safety in the use of x-ray in 
conformity with state law and the rules of the Texas Department of Health and to 
implement state law relating to radiologic training for employees of a 
chiropractor. The amendments are further proposed pursuant to the Medical 
Radiologic Technologist Certification Act, Texas Civil Statutes, Article 4512m 
sec.2.08, which requires the board to adopt rules relating to the delegation and 
supervision of the performance of radiologic procedures and which must include 
certain specified requirements listed in sec.2.08(c).
The following are the statutes, articles, or codes affected by the proposed 
amendment and new rule: Texas Civil Statutes, Articles 4512b, sec.sec.4(c), 4a, 
6, 14b; 4512m sec.2.08 

sec.78.1. Registration of Chiropractic Radiologic Technologists. 
(a) Any person performing radiologic procedures in a chiropractic facility must 
register with the Texas Board of Chiropractic Examiners. This section does not 
apply to registered nurses or to persons certified under the Medical Radiologic 
<nl>Technologist<ol> [Technologists] Certification Act. 
<nl>(b)<ol> An applicant for registration must either: 
<nl>(1)<ol> submit proof of the applicant's registry with the Texas Department 
of Health and completion of training and instruction as required by 25 TAC 
sec.143.17 (concerning mandatory training programs for non-certified 
technicians); or 
<nl>(2)<ol> perform radiologic procedures for a licensee to whom a hardship 
exemption was granted by the Texas Department of Health within the previous 12 
months under 25 TAC sec.143.19 (concerning hardship exemptions). 
[(b) Any person who registers with the Texas Board of Chiropractic Examiners 
must show successful completion of and certification through a Texas Department 
of Health Non-Radiologic Technologist approval program.] 
(c) <nl>An applicant shall submit his or her application for registration along 
with the radiologic technologist application fee as provided in sec.75.7 of this 
title (relating to fees)<ol> [The fee for registration required under this 
section shall be set and approved annually by the board, and], payable to the 
Texas Board of Chiropractic Examiners by cashier's check or money order [upon 
submission of the registration application]. <nl>On or before January 1 of each 
year after initial registration, a CRT shall renew his or her registration, by 
submitting a registration application, along with the radiologic technologist 
application fee, proof of renewal status as provided in subsection (b) of this 
section and proof of completion of continuing education or enrollment in 
mandatory training and instruction as provided by subsection (e) of this 
section.<ol> 
(d) <nl>The board may refuse to issue or renew, suspend, or revoke the 
registration of a CRT <ol> [Registration may be suspended, revoked, not renewed, 
or denied] for the following: 
(1) violation of the rules <nl>or an order<ol> of the Texas Board of 
Chiropractic Examiners; 
(2) violation of the Medical Radiologic Technologist Certification Act; 
(3) violation of the rules <nl>or an order<ol> of the Texas Department of 
Health; 
(4) violation of the Texas Chiropractic Act; <nl>or <ol> 
(5) [violation of the rules of the registrant's licensing agency; and] 
[(6)] nonpayment of registration fees. 
(e) [Each chiropractic radiologic technologist shall renew the registration 
annually.] <nl>A CRT<ol> [The technologist] shall complete six clock hours of 
continuing education hours <nl> each year in order to renew his or her 
registration<ol> [during the period January 1, 1998, to December 31, 1998, for 
use in license renewal for 1999]. The continuing education <nl>required by this 
subsection <ol> shall meet the requirements of the rules of the Texas Department 
of Health relating to continuing education for medical radiologic technologists. 
No <nl> continuing education<ol> [Continuing Education] will be required <nl> 
for any year in which a CRT is enrolled for the mandatory training and 
instruction program required by 25 TAC sec.143.17 (concerning mandatory training 
programs for non-certified technicians)<ol> [during January 1, 1997, to December 
31, 1997, at which time certification as set forth by the Department of Health 
is being completed]. 
(f) All registrants <nl>shall<ol> [must] comply with the rules of the Texas 
Department of Health for the Control of Radiation.
(g) <nl>A CRT shall perform radiological procedures only under the supervision 
of a licensee physically present on the premises. <ol> [All registrants who 
perform radiologic procedures must meet the minimum training and supervision 
standards promulgated by the Texas Department of Health, 25 TAC sec.sec.143.1-
143.14]. 
(h) Procedures that include cineradiography are limited to use by a 
<nl>licensee<ol> [doctor] who has passed a course in its use, approved by the 
Texas Board of Chiropractic Examiners. 
(i) Any non-static procedure has the potential to be more dangerous and 
hazardous and by definition may only be performed by a <nl> licensee<ol> 
[practitioner] or a certified medical radiologic technologist. 
<nl>(j)<ol> A licensee shall not authorize or permit a person who is not 
registered under this section to perform radiologic procedures on a patient 
unless otherwise authorized under the Medical Radiologic Technologist Act or 25 
TAC Chapter 143 (concerning medical radiologic technologists).
<nl>(k)<ol> A licensee shall comply with the Medical Radiological Technologist 
Certification Act and all applicable rules of the Texas Department of Health. 
<nl>(l)<ol> Disciplinary action against a CRT, including the imposition of 
administrative penalties, is governed by the Administrative Procedures Act, 
Government Code, Chapter 2001, and applicable enforcement provisions of the 
Texas Chiropractic Act, including Texas Civil Statutes, Article 4512b 
sec.sec.14c.1 through 14e, 19a. 

sec.78.2. Definitions.
The following words and terms when used in this chapter shall have the following 
meanings unless the context clearly indicates otherwise. 
(1) Board - The Texas Board of Chiropractic Examiners. 
(2) Chiropractic Radiologic Technologist (CRT) or Registrant - A person who is 
registered with the board under this chapter. 
(3) Licensee or Chiropractor - A person who is licensed by the board to practice 
chiropractic in the State of Texas. 
(4) Medical Radiologic Technologist Certification Act - Texas Civil Statutes, 
Article 4512m. 
(5) Supervision - Responsibility for and control of quality, radiation safety 
and protection, and technical aspects of the application of ionizing radiation 
to human beings for diagnostic and/or therapeutic purposes.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808073
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-6709

PART XXI. Texas State Board of Examiners of Psychologists 
CHAPTER 461.General Rulings
22 TAC sec.461.7
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.461.7, concerning License Statuses. The amendment is being proposed in order 
to reflect that the Board may sanction a delinquent status and that a licensee 
must comply with the continuing education requirements before being allowed to 
retire his/her license. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will ensure that all licensees obtain mandatory continuing education credits 
each year that they hold a license. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.461.7License Statuses. 
(a)-(b) No change 
(c) Delinquent Status. A person who fails to renew his/her license for any 
reason when required is considered to be on delinquent status. Any license 
delinquent for more than one consecutive year shall be void. A person may not 
engage in the practice of psychology under a delinquent license. The Board may 
sanction a delinquent licensee for violations of Board rules. 
(d) (No change) 
(e) Retirement Status. A person who is on active or inactive status with the 
Board may retire by notifying the Board in writing prior to or up until the 
renewal date for the license. A person seeking to retire after his or her 
renewal date must submit <nl>proof of compliance with the Board's continuing 
education requirement<ol> [a written request to the Board stating the reasons 
that notice was not given prior to the expiration date]. A person with a pending 
complaint, a restricted license, [a delinquent license,] or who is otherwise not 
in compliance with all applicable Board rules may not retire his or her license 
[without written permission from the Board]. Permission to retire will not be 
granted for the purpose of allowing a licensee to avoid compliance with 
sec.461.11 of this title (relating to Continuing Education). A person who 
retires shall be reported to have retired in good standing. 
(f)-(h) (No change) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807736
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.461.11
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.461.11, concerning Continuing Education. The amendment is being proposed in 
order to clarify the requirements for all licensees in obtaining and documenting 
relevant and appropriate mandatory continuing education hours. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure that all licensees obtain relevant and appropriate continuing 
education in a uniform manner. There will be no effect on small businesses. The 
anticipated economic cost to persons who are required to comply with the rule as 
proposed will be in direct proportion to the cost of the continuing education 
obtained by each licensee. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.461.11.Continuing Education. 
(a) Requirements. All licensees of the Board are obligated to continue their 
professional education by completing <nl>a minimum of <ol> 12 hours of 
continuing education during each year that they hold a license from the Board 
regardless of the number of separate licenses held by the licensee. 
[(1) Continuing education hours may be obtained by participating in one or more 
of the following activities. The same workshop or course may not be used for 
credit more than once. 
[(A) graduate level studies in psychology;
[(B) formal continuing education activities;
[(C) workshop presentations; and/or 
[(D) publications.] 
[(2) Continuing education hours may be obtained from: 
[(A) regionally accredited institutions of higher education; 
[(B) national, regional, state, or local Psychological Associations; or 
[(C) other Board recognized providers of continuing education.] 
<nl>(b)<ol> [(3)] <nl>Relevancy. All continuing <ol> [Continuing] education 
hours must be directly related to the practice of psychology. The Board shall 
make the determination as to whether the <nl>activity or publication<ol> 
[activities] claimed by the licensee <nl>is<ol> [are] directly related to the 
practice of psychology. It is the responsibility of the licensee to <nl>engage 
in <ol> [choose] activities which provide demonstrated relevance to the practice 
of psychology. <nl>In order to establish relevancy to the practice of 
psychology, the Board may require a licensee to produce, in addition to the 
documentation required by subsection (d) of this section, course descriptions, 
conference catalogs and syllabi, or other material as warranted by the 
circumstances. The Board does not pre-approve continuing education credit.<ol> 
The Board <nl> shall not allow continuing education credit for<ol> [will not 
consider] personal psychotherapy, workshops for personal growth, <nl>the 
provision of<ol> [or] services to professional associations <nl>by a licensee, 
foreign language courses, or computer training classes<ol> [as meeting the 
requirements for continuing education]. 
[(b) Banking. Continuing education hours received after December 31, 1997, 
cannot be banked. Continuing education hours accrued prior to December 31, 1997, 
received from formal continuing education programs in excess of four hours 
during any one-year period may be banked for no longer than an additional two 
years provided that eight hours of additional continuing education hours are 
also completed each year by the licensee.] 
<nl>(c)<ol> <nl>Permitted activities. <ol> 
<nl>(1)<ol> <nl>Continuing education hours may be obtained by participating in 
one or more of the following activities, provided that the specific activity may 
not be used for credit more than once: <ol>
<nl>(A)<ol> <nl> attendance or participation in a formal continuing education 
activity for which continuing education hours have been pre-assigned by a 
provider; <ol>
<nl>(B)<ol> <nl> teaching or attendance as an officially enrolled student in a 
graduate level course in psychology at a regionally accredited institution of 
higher education; <ol> 
<nl>(C)<ol> <nl>presentation of a program or workshop; and<ol> 
<nl>(D)<ol> <nl> authoring or editing publications. <ol>
<nl>(2)<ol> <nl>Providers include: <ol>
<nl>(A)<ol> <nl> national, regional, state, or local psychological associations; 
or <ol>
<nl>(B)<ol> <nl> other formally organized groups providing continuing education 
that is directly related to the practice of psychology. Examples of such 
providers include: public or private institutions, professional associations, 
and training institutes devoted to the study or practice of particular areas or 
fields of psychology; professional associations relating to other mental health 
professions such as psychiatry, counseling, or social work; state or federal 
agencies; and regional service centers for public school districts. <ol>
<nl>(3)<ol> <nl>Credits will be provided as follows: <ol>
<nl>(A)<ol> <nl> For attendance at formal continuing education activities, the 
number of hours pre-assigned by the provider. <ol> 
<nl>(B)<ol> <nl>For teaching or attendance of a graduate level psychology 
course, four hours per credit hour. A particular course may not be taught or 
attended by a licensee for continuing education credit more than once. <ol>
<nl>(C)<ol> <nl>For presentations of workshops or programs, three hours for each 
hour actually presented, for a maximum of six hours per year. A particular 
workshop or presentation topic may not be utilized for continuing education 
credit more than once. <ol> 
<nl>(D)<ol> <nl>For publications, eight hours for authoring or co-authoring a 
book; six hours for editing a book; four hours for authoring a published article 
or book chapter. A maximum credit of eight hours for publication is permitted 
for any one year. <ol>
<nl>(4)<ol> <nl> When obtained, any submitted continuing education hours other 
than hours banked pursuant to subsection (g) of this section, must have been 
obtained during the 12 months prior to the renewal period for which they are 
submitted. <ol>
<nl>(d)<ol> [(c)] Documentation. <nl>It is the responsibility of each licensee 
to maintain documentation of all continuing education hours claimed under this 
rule and to provide this documentation upon request by the Board. Licensees 
shall maintain documentation of all continuing education hours claimed for at 
least five years.<ol> [Any submitted continuing education credits must have been 
received no earlier than 12 months prior to the renewal period for which they 
are submitted.] The Board will accept as documentation of continuing education: 
<nl>(1)<ol> <nl>for hours received from attendance or participation in formal 
continuing education activities, a certificate or other document containing the 
name of the sponsoring organization, the title of the activity, the number of 
pre-assigned continuing education hours for the activity, the signature of an 
official representative of the sponsoring organization, and the name of the 
licensee claiming the hours; <ol> 
<nl>(2)<ol> [(1)] for hours received from attending college or university 
courses, <nl>official<ol> grade slips or transcripts <nl>issued by the 
institution of higher education<ol> must be submitted. [Each semester credit 
hour will count as four hours of continuing education.] 
<nl>(3)<ol> [(2)] for hours received for teaching college or university courses, 
documentation demonstrating that the licensee taught the course must be 
submitted<nl>; and<ol> [. The same course may not be used for credit more than 
once. Each semester credit hour will count as four hours of continuing 
education.] 
[(3) for hours received from continuing education workshops or programs, 
certificates of attendance or completion specifying the actual number of pre-
assigned continuing education hours will be required for attendees.] 
(4) for presenters of continuing education workshops <nl> or programs<ol>, 
copies of the <nl>official<ol> program announcement <nl> naming the licensee as 
a presenter and an outline or syllabus of the contents of the program or 
workshop.<ol> [and content will be required. Presenters may submit for credit 
only six hours per year in this category. The same workshop or topic may be 
submitted only once per year in this category.]
(5) for authors <nl>or editors<ol> of publications<nl>, a copy of<ol> 
[(articles, chapters, or books),] the article or table of contents <nl>or title 
page bearing the name of licensee as the author or editor.<ol> [may be submitted 
as proof of publication. Articles or chapters in relevant professional journals, 
periodicals, or books may be credited four hours towards the continuing 
education requirements per year. The title page and table of contents may be 
submitted for published books and edited books. Published books authored or co-
authored may be credited eight hours. Editing of a relevant professional book 
may be credited six hours. ] 
<nl>(e)<ol> [(d)] Declaration Form. <nl>All licensees<ol> [Licensees] must sign 
and submit a completed Continuing Education Declaration Form <nl>for each year 
in which they are licensed by the Board specifying the continuing education 
received for the preceding renewal period. Licensees wishing to renew their 
license must submit the declaration form<ol> with the annual renewal form 
<nl>and fee no later than the renewal date. Licensees who do not wish to renew 
their license must submit the declaration form along with a written request to 
retire the license on or before the renewal date. Licensees shall not submit 
documentation of continuing education credits obtained unless requested to do so 
by the Board. <ol> [specifying the continuing education they received for that 
period. This does not alter the responsibility of licensees to reply truthfully 
to any question concerning continuing education on the renewal form itself.
[(e) Record Maintenance. Licensees shall maintain continuing education records 
for five years.]
(f) Audit. <nl>The Board conducts two types of audits. Licensees shall comply 
with all Board requests for documentation and information concerning compliance 
with continuing education and/or Board audits.<ol> 
<nl>(1)<ol> Random audits. Each month, [The Board will audit] 10% of <nl>the<ol> 
licensees <nl>will be selected by an automated process for an audit of the 
licensee's<ol> [each year for] compliance with the <nl>Board's<ol> continuing 
education requirements. The Board will notify a licensee by mail <nl>of the<ol> 
[that they have been selected for an] audit. Upon receipt of an audit 
notification, <nl> licensees planning to renew their licenses<ol> [the licensee] 
must <nl>submit requested documentation<ol> [mail the requested proof] of 
[his/her] compliance [with annual continuing education requirements back] to the 
Board [along] with <nl>their <ol> [his/her] annual renewal <nl>form no later 
than the renewal date of the license. Licensees wishing to retire their licenses 
should submit the requested documentation no later than the renewal date of the 
license. <ol> [notice and renewal fees in order to renew and avoid non-
compliance penalties. All licensees shall comply with any Board requests for 
documentation and information concerning compliance with continuing education 
and/or Board audits.] 
<nl>(2)<ol> <nl>Individualized audits. The Board will also conduct audits of a 
specific licensee's compliance with its Continuing Education requirements at any 
time that the Board determines that there are grounds to believe that a licensee 
has not complied with the requirements of this rule. Upon receipt of 
notification of an individualized audit, the licensee must submit all requested 
documentation within the time period specified in the notification. <ol>
<nl>(g)<ol> <nl> Banking. Continuing education hours obtained after December 31, 
1997, cannot be banked. Continuing education hours accrued prior to December 31, 
1997, received from formal continuing education programs as defined under formal 
Board rule 461.11(a)(1) of this section (relating to Continuing Education) in 
effect prior to November 10, 1997, in excess of four hours during any one-year 
period may be banked for no longer than an additional two years provided that 
all other required additional continuing education hours are also completed each 
year by the licensee. <ol>
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807737
Sherry L. Lee
Exedcutive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

CHAPTER 467.Announcements and Listings
22 TAC sec.467.1
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas State 
Board of Examiners of Psychologists or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.) 
The Texas State Board of Examiners of Psychologists proposes the repeal of 
sec.467.1, concerning Listings in Yellow Pages. The rule is being repealed 
because the requirement that only licensed psychologists may list themselves 
under psychologist in the yellow pages is already contained in a separate Board 
rule, and the rest of the rule is no longer necessary.
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the repeal is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be to eliminate an unnecessary rule and make the rules easier to 
understand and follow. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the rule as 
proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 
78701, (512) 305-7700. 
The repeal is proposed under Texas Civil Statutes, Article 4512c, which provide 
the Texas State Board of Examiners of Psychologists with the authority to make 
all rules, not inconsistent with the Constitution and Laws of this State, which 
are reasonably necessary for the proper performance of its duties and 
regulations of proceedings before it. 
The proposed repeal does not affect other statutes, articles, or codes.
sec.467.1. Listings in Yellow Pages. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807738
Sherry L. Lee
Executive Director
Texas Sate Board of Examiners of Physchologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

CHAPTER 469.Specialty Certification
22 TAC sec.469.1
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.469.1, concerning Definition of Health Service Provider in Psychology. The 
amendment is being proposed in order to clarify the definition of a Health 
Service Provider in Psychology as a specialty credential rather than a license. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule.
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will clarify the definition of Health Service Provider in Psychology and ensure 
that the public understands that this is a specialty credential rather than a 
license. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes. 

sec.469.1Definition of Health Service Provider in Psychology. 
A health service provider in psychology is [defined as] a licensed psychologist 
who <nl>meets the criteria set forth in sec.469.2 of this title (relating to 
Criteria for Health Service Provider in Psychology) and/or meets the criteria 
for the health service provider set forth by the National Register of Health 
Service Providers in Psychology and who is currently credentialed as a health 
service provider in psychology by this Board and/or the National Register of 
Health Service Providers in Psychology<ol> [is duly trained and experienced 
(meets defined criteria of training and experience) in the delivery of direct, 
preventive, assessment and therapeutic intervention services to individuals 
whose growth, adjustment or functioning is actually impaired or is demonstrably 
at high risk of impairment]. <nl>A credential as a health service provider in 
psychology does not constitute a license to practice psychology under the 
Act.<ol> 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807739
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

CHAPTER 471.Renewals
22 TAC sec.471.1
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.471.1, concerning Notification of Renewal. The amendment is being proposed 
in order to be consistent with the Psychologists' Licensing Act, which 
eliminated certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.471.1Notification of Renewal. 
All [certificates and] licenses issued by the Board shall be subject to annual 
renewal. Annual renewals are due on the last day of each persons's birth month. 
Persons whose [certification or] licensure is about to expire shall be notified 
once by regular mail at least 30 days before the last day of their birth month 
each year and shall be notified by certified mail if they fail to renew by the 
last day of their birth month. The second notice will not be mailed prior to the 
last day of their birth month. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807740
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.471.2
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.471.2, concerning Renewal Forms. The amendment is being proposed in order to 
be consistent with the Psychologists' Licensing Act, which eliminated 
certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.471.2Renewal Forms. 
Psychological associate and <nl>provisionally licensed<ol> [certified] 
psychologist renewal forms shall contain a space to indicate current employment 
setting. If the setting is exempt, as defined in the Psychologists' 
[Certification and] Licensing Act, Section 22, the supervisor's signature is not 
needed. <nl>All other<ol> [For non-exempt employment settings, the] 
psychological associate and <nl>provisionally licensed <ol> [certified] 
psychologist renewal <nl>forms<ol> [form] must include the name and signature of 
<nl>the<ol> [his/her ] supervisor. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807741
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.471.3
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas State 
Board of Examiners of Psychologists or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.) 
The Texas State Board of Examiners of Psychologists proposes the repeal of 
sec.471.3, concerning Renewal Fees. The rule is being repealed in order to 
eliminate a duplicitous rule. Renewal fees are clearly set forth in another 
Board rule. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the repeal is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be to eliminate an unnecessary rule, making the rules easier to 
understand and follow. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the rule as 
proposed.
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 
78701, (512) 305-7700. 
The repeal is proposed under Texas Civil Statutes, Article 4512c, which provide 
the Texas State Board of Examiners of Psychologists with the authority to make 
all rules, not inconsistent with the Constitution and Laws of this State, which 
are reasonably necessary for the proper performance of its duties and 
regulations of proceedings before it. 
The proposed repeal does not affect other statutes, articles, or codes.
sec.471.3. Renewal Fees. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807742
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 205-7700

22 TAC sec.471.4
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.471.4, concerning Guaranteed Student Loan Requirement. The amendment is 
being proposed in order to be consistent with the Psychologists' Licensing Act, 
which eliminated certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700.
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes. 

sec.471.4Guaranteed Student Loan Requirement.
A licensee [or certificand] who is identified as a student loan defaulter is not 
eligible to apply for [certification or] licensure or eligible to renew his/her 
[certificate or] license until entering a repayment agreement with the 
appropriate Guaranteed Student Loan Holder and filing a certificate from said 
student loan holder with the Board's office certifying this repayment agreement. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807743
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.471.5
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.471.5, concerning Updated Information Requirements. The amendment is being 
proposed in order to be consistent with the Psychologists' Licensing Act, which 
eliminated certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.471.5 Updated Information Requirements. 
Each [certificand and] licensee shall provide the following information when 
renewing his/her [certificate or license] each year: 
(1) Whether he/she has been charged or convicted of a felony since last renewal 
date; 
(2) Whether any action has been taken against a <nl> professional<ol> 
[certificate or] license <nl>held by the licensee <ol> in <nl>this or<ol> any 
other jurisdiction; 
(3) The names of all jurisdictions where he/she currently holds a [psychology 
certificate or] license to practice psychology;
(4) Whether he/she has complied with the annual requirements for continuing 
education. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807744
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

CHAPTER 473.Fees
22 TAC sec.473.1
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.473.1, concerning Application Fees. The amendment is being proposed in order 
to be consistent with the Psychologists' Licensing Act, which eliminated 
certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. There anticipated economic cost to persons who 
are required to comply with the rule as proposed will be in direct proportion to 
the type of license for which the person is applying.
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes. 

sec.473.1Application Fees-(Not refundable). 
(a) (No change) 
(b) <nl>Provisionally Licensed<ol> Psychologist [Certification] $300 
(c)- (d) (No change) 
(e) Temporary <nl>License<ol> [License/Certificate] $260 
(f) (No change) 
(g) Licensed Specialist in School Psychology [(including grandparenting)] $180 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807745
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.473.2
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.473.2, concerning Examination Fees. The amendment is being proposed to be 
effective October 22, 1998, in order to cover the cost of the examination, which 
has been increased by the owner and distributor of the examination from $250 to 
$350 as of the April 1999 examination. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule.
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure that the fee charged by the Agency covers the exact cost of 
the examination to the Agency. The Agency retains none of the fees it collects 
for the examination. There will be no effect on small businesses. The 
anticipated economic cost to persons who are required to comply with the rule as 
proposed will be in direct proportion to the cost of the examination the person 
will be taking. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.473.2. Examination Fees-(Not refundable). 
(a) Examination for the Professional Practice of Psychology-<nl> $350<ol> [$250] 
(b)-(c) (No change) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807746
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.473.3
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.473.3, concerning Annual Renewal Fees. The amendment is being proposed in 
order to be consistent with the Psychologists' Licensing Act, which eliminated 
certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. The anticipated economic cost to persons who 
are required to comply with the rule as proposed will be in direct proportion to 
the type of license the person is renewing. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.473.3.Annual Renewal Fees-(Not refundable) 
(a) (No change.) 
(b) <nl>Provisionally Licensed<ol> Psychologist [Certification]-$85 
(c) - (e) (No change.) 
(f) <nl>Licensees<ol> [Certificands/Licensees] Over the age of 70-No Fee 
(g) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807747
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC 473.4
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.473.4, concerning Late Fees for Renewals. The amendment is being proposed in 
order to be consistent with the Psychologists' Licensing Act, which eliminated 
certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the rule is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to ensure consistency with the Psychologists' Licensing Act. There will 
be no effect on small businesses. The anticipated economic cost to persons who 
are required to comply with the rule as proposed will be in direct proportion to 
the number of days individuals may be late in payment of their renewal fees. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and Laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.473.4.Late Fees for Renewals-(Not refundable)
(a) Licensed Psychological Associates, [Certified Psychologists, ] Provisionally 
Licensed Psychologists, Licensed Psychologists 
(1) One day to ninety days-$125 
(2) Ninety-one days to less than one year-$250 
(b) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807748
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.473.5
The Texas State Board of Examiners of Psychologists proposes an amendment to 
sec.473.5, concerning Miscellaneous Fees. The amendment is being proposed in 
order to be consistent with the Psychologists' Licensing Act, which eliminated 
certification. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section.
Ms. Lee also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to ensure consistency with the Psychologists' Licensing Act. 
There will be no effect on small businesses. The anticipated economic cost to 
persons who are required to comply with the section as proposed will be in 
direct proportion to the cost of the service needed by each person.
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, Texas 
78701, (512) 305-7700. 
The amendment is proposed under Texas Civil Statutes, Article 4512c, which 
provide the Texas State Board of Examiners of Psychologists with the authority 
to make all rules, not inconsistent with the Constitution and laws of this 
State, which are reasonably necessary for the proper performance of its duties 
and regulations of proceedings before it. 
The proposed amendment does not affect other statutes, articles, or codes.

sec.473.5 Miscellaneous Fees-(Not refundable). 
(a) Duplicate or Replacement [certificate or] License-$25 
(b) (No change.) 
(c) Remailing of <nl>license<ol> [certificate/license]-$ 10 
(d)- (i) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807749
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

22 TAC sec.473.6
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas State 
Board of Examiners of Psychologists or in the Texas Register office, Room 245, 
James Earl Rudder Building, 1019 Brazos Street, Austin.) 
The Texas State Board of Examiners of Psychologists proposes the repeal of 
sec.473.6, concerning Reciprocity Fee. The rule is being repealed because the 
fee is set elsewhere in the Board rules, thereby making this rule unnecessary. 
Sherry L. Lee, Executive Director, has determined that for the first five-year 
period the repeal is in effect there will be no fiscal implications for state or 
local government as a result of enforcing or administering the rule. 
Ms. Lee also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be to reduce unnecessary rules making the rules easier to understand 
and follow. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the rule as proposed. 
Comments on the proposal may be submitted to Janice C. Alvarez, Texas State 
Board of Examiners of Psychologists, 333 Guadalupe, Suite 2-450, Austin, TX 
78701, (512) 305-7700. 
The repeal is proposed under Texas Civil Statutes, Article 4512c, which provide 
the Texas State Board of Examiners of Psychologists with the authority to make 
all rules, not inconsistent with the Constitution and Laws of this State, which 
are reasonably necessary for the proper performance of its duties and 
regulations of proceedings before it. 
The proposed repeal does not affect other statutes, articles, or codes. 
sec.473.6.Reciprocity Fee. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 12, 1998.
TRD-9807750
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 305-7700

TITLE 25. HEALTH SERVICES
PART I. Texas Department of Health
CHAPTER 97.Communicable Diseases
SUBCHAPTER A.Control of Communicable Diseases
25 TAC sec.97.12, sec.97.13
The Texas Department of Health (department) proposes amendments to sec.97.12 and 
sec.97.13, concerning persons with certain communicable diseases at the time of 
death and mandatory testing of persons suspected of exposing certain other 
persons to reportable diseases, and workers' compensation issues relevant to 
postexposure management of emergency responders. 
The amendment to sec.97.12 clarifies that hospital administrators and clinical 
administrators are also responsible for affixing or causing to be affixed the 
toe tag. The amendment to sec.97.13 modifies the definition of "correctional 
officer" to include those employed by private and public entities other than 
counties and the Texas Department of Criminal Justice. The change will allow a 
larger group of correctional workers to obtain testing of the source where there 
is an occupational exposure to a communicable disease under procedures described 
in the rule and Health and Safety Code sec.81.050.
Martin Powel, Chief of Staff Services, Associateship for Disease Control and 
Prevention, Texas Department of Health, has determined that for the first five 
year period these rules are in effect, there will be fiscal implications to 
state and local government as a result of enforcing or administering sec.97.13 
as proposed. The exact impact will depend on how many exposure incidents occur 
among correctional officers employed by individual local governments, or 
employed within their jurisdictions. For each such incident, the local 
government employer may be asked to assist in the preparation of the affidavit 
required by law for submission to a health authority. If the local government 
has appointed a health authority, he or she must devote time to evaluation of 
the affidavit to determine if a test of the source is required. If the local 
government has a health department, they will test the source and counsel both 
the source and the correctional officer. Thus the actual cost to the local 
government will depend on several variables. For each exposure incident the cost 
to the local governmental unit which employs a correctional officer will be 
approximately $20 in staff time to prepare an affidavit. For each exposure 
incident the additional cost to a local governmental unit which employs a health 
authority there will be approximately $20 in staff time to evaluate the 
affidavit. For each exposure incident the additional cost to the local 
governmental unit which has a local health department the cost will be 
approximately $20 in staff time to test the source and to counsel the 
correctional officer and the source. Some of these local government entities may 
have part of these costs covered by grants of state or federal money for human 
immunodeficiency virus (HIV) counseling and testing activities. 
Mr. Powel also has determined that for each year of the first five years these 
rules are in effect, the public benefit anticipated as a result of enforcing the 
section will be increased testing and diagnosis for hepatitis B and HIV, and 
greater reassurance to correctional officers who feel they have been exposed to 
bloodborne pathogens. There will be no effect on small businesses. There are no 
anticipated economic costs to persons who are required to comply with the 
sections as proposed. There is no anticipated impact on local employment.
Comments on the proposal may be submitted to Sharilyn Stanley, M.D., Acting 
Bureau Chief, Bureau of HIV and STD Prevention, 1100 West 49th Street, Austin, 
Texas, 78756, (512) 458-7729. Comments will be accepted for 30 days following 
publication of this proposal in the Texas Register.
The amendments are proposed under the Texas Health and Safety Code, sec.81.004 
which allows the board to adopt rules necessary for the effective administration 
of Chapter 81 (Communicable Disease), sec.81.050 which requires the board to 
prescribe by rule the criteria that constitute exposure to reportable disease 
for purposes of notifying first responders, and sec.12.001, which provides the 
Texas Board of Health (board) with the authority to adopt rules for the 
performance of every duty imposed by law on the board, the department, and the 
commissioner of health. 
The amendments affect Health and Safety Code, Chapter 81.

sec.97.12. Death of a Person with Certain Communicable Diseases.
(a) If a physician has knowledge that a person had, at the time of death, a 
communicable disease listed in subsection (c) of this section, then <nl>the 
hospital administrator, clinic administrator, nurse, or<ol> the physician shall 
affix or cause to be affixed a tag on the body, preferably <nl> the<ol> [on a] 
great toe. 
(b)-(d) (No change.)

sec.97.13. Mandatory Testing of Persons Suspected of Exposing Certain Other 
Persons to Reportable Diseases, and Workers' Compensation Issues Relevant to 
Postexposure Management of Emergency Responders. 
(a) (No change.) 
(b) Definitions. For the purposes of this section, the following words and/or 
terms will have the following meanings, unless the context clearly indicates 
otherwise. 
(1) Correctional officer - A [public safety] worker [employed by either a county 
or the Texas Department of Criminal Justice] whose normal duties and 
responsibilities include management or supervision of incarcerated <nl>or 
detained<ol> persons. 
(2)-(4) (No change.) 
(c)-(l) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 18, 1998.
TRD-9808028
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 458-7236

CHAPTER 229.Food and Drug
The Texas Department of Health (department) proposes the repeal of existing 
sec.sec.229.161 - 229.171, sec.229.173, and sec.sec.229.231 - 229.239, and 
proposal of new sec.sec.229.161 - 229.171, and sec.sec.229.173 -229.175 
concerning food establishments. Specifically, these sections are the basic 
operating requirements for all food establishments and concern definitions; 
management and personnel; food; equipment, utensils and linens; water, plumbing 
and waste; physical facilities; poisonous or toxic materials; mobile food 
establishments; temporary food establishments; compliance and enforcement; 
Heimlich maneuver posters; certain bed and breakfast establishments; and 
outfitter operations. The new regulations will provide a much needed update 
which reflects advances in current food science and technology. 
The proposed rules will repeal the existing rules on food service sanitation and 
the rules on retail food store sanitation and replace them with the new rules. 
The new rules are patterned after the U.S. Food and Drug Administration 1997 
Model Food Code and reflect current science to better control emerging pathogens 
and new retail food technologies such as reduced atmosphere packaging. These new 
regulations focus on food safety factors such as proper temperature control and 
personal hygiene which are directly related to the factors most commonly 
associated with foodborne illness. 
The current rules were adopted under Health and Safety Code, Chapter 431, the 
Texas Food, Drug, and Cosmetic Act. Since that time, Chapter 437, Regulation of 
Food Service Establishments, Retail Food Stores, Mobile Food Units, and Roadside 
Food Vendors, has been amended and specifically authorizes the department to 
establish minimum standards for granting and maintaining retail food permits. 
Since this is a more specific statute with regard to regulation of food service 
establishments, retail food stores, mobile food units, and roadside food 
vendors, the proposed new rules are proposed under Chapter 437. 
Section 229.172, the rule for accreditation of food protection management 
programs, implements Health and Safety Code, Chapter 438, Subchapter D, Food 
Service Programs, and will remain unchanged. 
Section 229.173 is amended in format only and implements Health and Safety Code, 
Chapter 438, Subchapter E, regarding a requirement for Heimlich maneuver 
posters. New sec.229.174 will implement House Bill 2553, 74th Legislature, which 
amended Chapter 437 which concerns bed and breakfast operations. This bill added 
sec.437.019 to the statute which requires specific regulations for certain bed 
and breakfast operations. New sec.229.175 are requirements specific for 
outfitter operations such as trail rides and river raft trips that prepare food 
for their customers. 
Steven C. McAndrew, Director, Retail Foods Division, has determined that for 
each year of the first five-year period the sections are in effect, the fiscal 
impact for state government will be $8,792 annually in costs that will be 
incurred by the department in copying and distributing the proposed rules to 
local health agencies and the regulated community. Local governments with retail 
food regulatory programs in place are expected to continue operations under the 
new rules with no fiscal impact. There will be no fiscal impact to retail food 
establishments under state permitting and inspection. 
Mr. McAndrew has also determined that for each year of the first five years the 
sections are in effect, the public benefit anticipated as a result of enforcing 
the sections will be a more effective inspection of retail food establishments 
and a reduction in the potential for foodborne illness in Texas consumers. There 
are no anticipated economic costs during this five-year period to small 
businesses who are required to comply with the rules as proposed since they are 
already operating under similar minimum standards at this time. There is no 
anticipated impact on local employment. 
Comments on the proposal may be submitted to Steven C. McAndrew, Director, 
Retail Foods Division, Texas Department of Health, 1100 West 49th Street, 
Austin, Texas 78756, (512) 719-0232. Comments will be accepted for 30 days 
following publication of this proposal in the Texas Register. 
Public hearings to receive comments on the proposed rules will be held on the 
following dates at the respective locations listed: 
June 9, 1998: Dallas County Health & Human Services, 2377 N. Stemmons Freeway, 
Suite 600, Dallas, Texas 75207, 1:00 p.m., Telephone: (214) 670-7200.
June 10, 1998: West End Multi-Service Center, 170 Heights Boulevard, Building 3, 
Houston, Texas 77009, 1:00 p.m., Telephone: (713) 866-4239. 
June 16, 1998: Ector County Courthouse Annex, Administration Building, 
Commissioners Courtroom, 1010 E. 8th Street, Odessa, Texas 79761, 2:00 p.m., 
Telephone (915) 498-4000. 
June 22, 1998: Texas Department of Health, 1100 West 49th Street, Room K-100, 
Austin, Texas 78756, 9:00 a.m., Telephone: (512) 719-0232. 

SUBCHAPTER J.Food Service Sanitation
25 TAC sec.sec.229.161-229.171, 229.173
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeal is under Health and Safety Code, sec.431.241 and the Health and 
Safety Code, sec.12.001 which provides the board with authority to adopt rules 
for the performance of every duty imposed by law on the board, the department, 
and the commissioner of health. 
The repeal will affect Health and Safety Code, Chapter 431. 
sec.229.161.Purpose.
sec.229.162.Definition.
sec.229.163.Food Care.
sec.229.164.Personnel.
sec.229.165.Equipment and Utensils.
sec.229.166.Cleaning, Sanitization and Storage of Equipment and Utensils.
sec.229.167.Sanitary Facilities and Controls.
sec.229.168.Construction and Maintenance of Physical Facilities.
sec.229.169.Mobile Food Units.
sec.229.170.Temporary Food Service Establishments.
sec.229.171.Inspection and Enforcement.
sec.229.173.Heimlich Maneuver Poster.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 18, 1998.
TRD-9808059
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER J.Texas Food Establishments
25 TAC sec.sec.229.161-229.171, 229.173-229.175
The new sections are proposed under Health and Safety Code sec.437.0056, which 
requires the Board of Health (board) to adopt rules for granting and maintaining 
retail food permits in areas not regulated by counties and public health 
districts; Health and Safety Code 438; and the Health and Safety Code, 
sec.12.001 which provides the board with authority to adopt rules for the 
performance of every duty imposed by law on the board, the department, and the 
commissioner of health. 
The new sections will affect Health and Safety Code, Chapter 437 and Chapter 
438. 

sec.229.161. Purpose.
The purpose of these rules is to safeguard public health and provide to 
consumers food that is safe, unadulterated, and honestly presented. 

sec.229.162. Definitions. 
The following words and terms, when used in this chapter, shall have the 
following meanings unless the context clearly indicates otherwise: 
(1) Additive- 
(A) Food additive is a substance which affects the characteristics of any food 
as specified in the Texas Health and Safety Code, Chapter 431, sec.431.002(17). 
(B) Color additive is any material imparting color to a food as stated in the 
Texas Health and Safety Code, Chapter 431, sec.431.002(6).
(2) Adulterated food - A food containing any poisonous or deleterious substance 
as specified in the Texas Health and Safety Code, Chapter 431, sec.431.081. 
(3) Approved - Acceptable to the regulatory authority based on a determination 
of conformity with principles, practices, and generally recognized standards 
that protect public health. 
(4) Bed & Breakfast - 
(A) Bed & Breakfast Limited means: 
(i) an establishment with seven or fewer rooms for rent; 
(ii) that serves only breakfast to overnight guests; 
(iii) the establishment is not a retail food establishment; and 
(iv) the owner or manager shall successfully complete a food manager's 
certification course accredited by the department. 
(B) Bed & Breakfast Extended means: 
(i) an establishment with more than seven rooms for rent; or 
(ii) that provides food service other than breakfast to overnight guests; and 
(iii) the establishment must meet the specific requirements as outlined in 
sec.229.174 of this title (relating to Bed and Breakfast Extended 
Establishments). 
(C) Bed & Breakfast Food Establishment means: 
(i) an establishment that provides food service other than to its overnight 
guests; and 
(ii) the establishment must meet the rules and regulations applicable to retail 
food establishments. 
(5) Beverage - A liquid for drinking, including water. 
(6) Bottled drinking water - Water from an approved source that is sealed in 
bottles, packages, or other containers and offered for sale for human 
consumption, including bottled mineral water. 
(7) Certification number - A unique combination of letters and numbers assigned 
by a shellfish control authority to a molluscan shellfish dealer according to 
the provisions of the National Shellfish Sanitation Program.
(8) Child care center - Any facility licensed by the regulatory authority to 
receive 13 or more children for child care which prepares food for on-site 
consumption. 
(9) Cleaned in place (CIP) - The circulation or flowing by mechanical means 
through a piping system of a detergent solution, water rinse, and sanitizing 
solution onto or over equipment surfaces that require cleaning, such as the 
method used, in part, to clean and sanitize a frozen dessert machine. The term 
does not include the cleaning of equipment such as band saws, slicers or mixers 
that are subjected to in-place manual cleaning without the use of a CIP system. 
(10) Code of Federal Regulations (CFR) - The compilation of the general and 
permanent rules published in the Federal Register by the executive departments 
and agencies of the Federal government. Citations in these Rules to the CFR 
refer sequentially to the title, part, and section numbers, such as 21 CFR 
178.1010 refers to Title 21, Part 178, sec.1010.
(11) Comminuted - Reduced in size by methods including chopping, flaking, 
grinding, or mincing. The term includes fish or meat products that are reduced 
in size and restructured or reformulated such as gefilte fish, gyros, ground 
beef, and sausage; and a mixture of two or more types of meat that have been 
reduced in size and combined, such as sausages made from two or more meats. 
(12) Common dining area - A central location in a group residence where people 
gather to eat at mealtime. The term does not apply to a kitchenette or dining 
area located within a resident's private living quarters. 
(13) Confirmed disease outbreak - A foodborne disease outbreak in which 
laboratory analysis of appropriate specimens identifies a causative organism and 
epidemiological analysis implicates the food as the source of the illness. 
(14) Consumer - A person who is a member of the public, takes possession of 
food, is not functioning in the capacity of an operator of a food establishment 
or food processing plant, and does not offer the food for resale. 
(15) Corrosion-resistant material - A material that maintains acceptable surface 
cleanability characteristics under prolonged influence of the food to be 
contacted, the normal use of cleaning compounds and sanitizing solutions, and 
other conditions of the use environment. 
(16) Critical control point - A point or procedure in a specific food system 
where loss of control may result in an unacceptable health risk. 
(17) Critical item - A provision of these rules that, if in noncompliance, is 
more likely than other violations to contribute to food contamination, illness, 
injury, or environmental health hazard. 
(18) Critical limit - The maximum or minimum value to which a physical, 
biological, or chemical parameter must be controlled at a critical control point 
to minimize the risk that the identified food safety hazard may occur. 
(19) Department - The Texas Department of Health. 
(20) Drinking water - Water that meets 30 TAC sec.290.101-sec.290.121 relating 
to (Drinking Water Standards Governing Drinking Water Quality and Reporting 
Requirements for Public Water Supply Systems). The term is traditionally known 
as "potable water" and includes the term "water" except where the term used 
connotes that the water is not potable, such as "boiler water," "mop water," 
"rainwater," "wastewater," and "nondrinking" water. 
(21) Dry storage area - A room or area designated for the storage of packaged or 
containerized bulk food that is not potentially hazardous and dry goods such as 
single-service items. 
(22) Easily cleanable - A characteristic of a surface that allows effective 
removal of soil by normal cleaning methods; is dependent on the material, 
design, construction, and installation of the surface; and varies with the 
likelihood of the surface's role in introducing pathogenic or toxigenic agents 
or other contaminants into food based on the surface's approved placement, 
purpose, and use. 
(23) Easily movable - Weighing 14 kg (30 pounds) or less; mounted on casters, 
gliders, or rollers; or provided with a mechanical means requiring no more than 
14 kg (30 pounds) of force to safely tilt a unit of equipment for cleaning; and 
having no utility connection, a utility connection that disconnects quickly, or 
a flexible utility connection line of sufficient length to allow the equipment 
to be moved for cleaning of the equipment and adjacent area. 
(24) Employee - The permit holder, person in charge, person having supervisory 
or management duties, person on the payroll, family member, volunteer, person 
performing work under contractual agreement, or other person working in a food 
establishment. 
(25) EPA - The U.S. Environmental Protection Agency.
(26) Equipment - An article that is used in the operation of a food 
establishment such as a freezer, grinder, hood, ice maker, meat block, mixer, 
oven, reach-in refrigerator, scale, sink, slicer, stove, table, temperature 
measuring device for ambient air, vending machine, or warewashing machine. The 
term does not include items used for handling or storing large quantities of 
packaged foods that are received from a supplier in a cased or over wrapped lot, 
such as hand trucks, forklifts, dollies, pallets, racks, and skids. 
(27) Exotic animal - Member of a species of game not indigenous to this state 
including axis deer, nilga antelope, red sheep, or other cloven-hoofed ruminant 
animals. Exotic animals are considered livestock as defined in these rules and 
are amenable to inspection under Texas Health and Safety Code, Chapter 433, 
sec.433.035 (Inspection and Other Regulation of Exotic Animals in Interstate 
Commerce).
(28) Fish - Fresh or saltwater finfish, crustaceans and other forms of aquatic 
life (including alligator, frog, aquatic turtle, jellyfish, sea cucumber, and 
sea urchin and the roe of such animals) other than birds or mammals, and all 
mollusks, if such animal life is intended for human consumption. The term 
includes an edible human food product derived in whole or in part from fish, 
including fish that have been processed in any manner. 
(29) Food - A raw, cooked, or processed edible substance, ice, beverage, or 
ingredient used or intended for use or for sale in whole or in part for human 
consumption, or chewing gum. 
(30) Foodborne disease outbreak - An incident in which two or more persons 
experience a similar illness after ingestion of a common food, and 
epidemiological analysis implicates the food as the source of the illness; 
except that in cases of botulism or chemical poisoning, one ill person shall 
constitute an outbreak. 
(31) Food-contact surface - A surface of equipment or a utensil with which food 
normally comes into contact; or a surface of equipment or a utensil from which 
food may drain, drip, or splash into a food, or onto a surface normally in 
contact with food. 
(32) Food employee - An individual working with unpackaged food, food equipment 
or utensils, or food-contact surfaces. 
(33) Food establishment - An operation that stores, prepares, packages, serves, 
or otherwise provides food for human consumption such as: a food service 
establishment; retail food store; satellite or catered feeding location; 
catering operation; if the operation provides food directly to a consumer or to 
a conveyance used to transport people; market; remote catered operations; 
conveyance used to transport people; institution; or food bank; and that 
relinquishes possession of food to a consumer directly, or indirectly through a 
delivery service such as home delivery of grocery orders or restaurant takeout 
orders, or delivery service that is provided by common carriers.
(A) The term includes an element of the operation such as a transportation 
vehicle or a central preparation facility that supplies a vending location or 
satellite feeding location unless the vending or feeding location is permitted 
by the regulatory authority; a restaurant; a grocery store; an operation that is 
conducted in a mobile, roadside, stationary, temporary, or permanent facility or 
location; group residence; outfitter operations; bed and breakfast extended and 
bed and breakfast food establishments; where consumption is on or off the 
premises; and regardless of whether there is a charge for the food. 
(B) The term does not include: an establishment that offers only prepackaged 
foods that are not potentially hazardous; a produce stand that only offers 
whole, uncut fresh fruits and vegetables; a food processing plant; a kitchen in 
a private home if only food that is not potentially hazardous is prepared for 
sale or service at a function, such as a religious or charitable organization's 
bake sale; a Bed and Breakfast Limited facility as defined in these rules; or a 
private home. 
(34) Food processing plant - A commercial operation that manufactures, packages, 
labels, or stores food for human consumption and does not provide food directly 
to a consumer. The term does not include a food establishment as previously 
defined. 
(35) Game animal - An animal, the products of which are food, that is not 
classified as livestock or fish as defined in these rules. The term includes 
animals such as wild rabbit, squirrel, opossum, nutria, muskrat, and nonaquatic 
reptiles such as rattlesnake. 
(36) General use pesticide - A pesticide that is not classified by the U.S. 
Environmental Protection Agency (EPA) for restricted use as specified in 40 CFR 
152.175. 
(37) Grade A standards - The requirements of the U.S. Public Health Service/Food 
and Drug Administration (USPHS/FDA) "Grade A Pasteurized Milk Ordinance" and 
"Grade A Condensed and Dry Milk Products and Condensed and Dry Whey" with which 
certain fluid and dry milk and milk products must comply. 
(38) Group residence - A private or public housing corporation or institutional 
facility that provides living quarters and meals. The term includes a domicile 
for unrelated persons such as a retirement home, correctional facility, or a 
long-term health care facility. 
(39) Hazard - A biological, chemical, or physical property that may cause an 
unacceptable consumer health risk. 
(40) Hazard Analysis Critical Control Point (HACCP) - A rational, systematic 
approach that identifies and monitors specific foodborne hazards (biological, 
chemical, or physical) that may adversely affect the safety of the food product. 
This system utilizes the HACCP Principles as defined by the National Advisory 
Committee on Microbiological Criteria for Foods (NACMCF), 1992, or its successor 
document. 
(41) Hazard Analysis Critical Control Point (HACCP) plan - A written document 
that delineates the formal procedures for following the HACCP principles 
developed by The National Advisory Committee on Microbiological Criteria for 
Foods. 
(42) Hermetically sealed container - A container that is designed and intended 
to be secure against the entry of microorganisms and, in the case of low acid 
canned foods, to maintain the commercial sterility of its contents after 
processing. 
(43) Highly susceptible population - A group of persons who are more likely than 
other populations to experience foodborne disease because they are 
immunocompromised or older adults; and in a facility that provides health care 
or assisted living services, such as a hospital or nursing home; or preschool 
age children in a facility that provides custodial care, such as a child care 
center. 
(44) Imminent health hazard - A significant threat or danger to health that is 
considered to exist when there is evidence sufficient to show that a product, 
practice, circumstance, or event creates a situation that requires immediate 
correction and cessation of operation to prevent injury based on the number of 
potential injuries and the nature, severity, and duration of the anticipated 
injury. 
(45) Injected - Manipulating a meat so that infectious or toxigenic 
microorganisms may be introduced from its surface to its interior through 
tenderizing with deep penetration or injecting the meat such as with juices 
which may be referred to as "injecting," "pinning," or "stitch pumping."
(46) Kitchenware - Food preparation and storage utensils.
(47) Law - Applicable local, state, and federal statutes, regulations, and 
ordinances. 
(48) Linens - Fabric items such as cloth hampers, cloth napkins, table cloths, 
wiping cloths, and work garments including cloth gloves.
(49) Livestock - Cattle, sheep, swine, goats, horses, mules, other equine, 
poultry, domesticated rabbits, exotic animals, and domesticated birds. Livestock 
are amenable to inspection. 
(50) Meat - The flesh of animals used as food including the dressed flesh of 
cattle, swine, sheep, or goats and other edible animals, except fish, poultry, 
exotic animals as specified in sec.229.164(b)(7)(A)(ii) and (iii) and game 
animals as specified in sec.229.164(b)(7)(C)(ii) and (iii) of this title 
(relating to Food) that is offered for human consumption.
(51) Mobile food establishment - a vehicle mounted food establishment designed 
to be readily moveable. 
(52) Milligrams per liter (mg/L) - The metric equivalent of parts per million 
(ppm). 
(53) Molluscan shellfish - Any edible species of fresh or frozen oysters, clams, 
mussels, and scallops or edible portions thereof, except when the scallop 
product consists only of the shucked adductor muscle.
(54) Outfitter operation - any operations such as trail rides or river raft 
trips where food is offered to patrons and which operates out of a central 
preparation location or food establishment. 
(55) Packaged - Bottled, canned, cartoned, securely bagged, or securely wrapped, 
whether packaged in a food establishment or a food processing plant. The term 
does not include a wrapper, carry-out box, or other nondurable container used to 
containerize food with the purpose of facilitating food protection during 
service and receipt of the food by the consumer. 
(56) Permit - The document issued by the regulatory authority that authorizes a 
person to operate a food establishment. 
(57) Permit holder - The entity that is legally responsible for the operation of 
the food establishment such as the owner, the owner's agent, or other person; 
and who possesses a valid permit to operate a food establishment. 
(58) Person - An association, corporation, individual, partnership, other legal 
entity, government, or governmental subdivision or agency. 
(59) Person in charge - The individual present at a food establishment who is 
responsible for the operation at the time of inspection.
(60) Personal care items - Items or substances that may be poisonous, toxic, or 
a source of contamination and are used to maintain or enhance a person's health, 
hygiene, or appearance. The term includes items such as medicines; first aid 
supplies; and other items such as cosmetics, and toiletries such as toothpaste 
and mouthwash. 
(61) "pH" - the symbol for the negative logarithm of the hydrogen ion 
concentration, which is a measure of the degree of acidity or alkalinity of a 
solution. Values between 0 and 7 indicate acidity and values between 7 and 14 
indicate alkalinity. The value for pure distilled water is 7, which is 
considered neutral. 
(62) Physical facilities - The structure and interior surfaces of a food 
establishment including accessories such as soap and towel dispensers and 
attachments such as light fixtures and heating or air conditioning system vents. 
(63) Plumbing fixture - A receptacle or device that is permanently or 
temporarily connected to the water distribution system of the premises and 
demands a supply of water from the system; or discharges used water, waste 
materials, or sewage directly or indirectly to the drainage system of the 
premises. 
(64) Plumbing system - The water supply and distribution pipes; plumbing 
fixtures and traps; soil, waste, and vent pipes; sanitary and storm sewers and 
building drains, including their respective connections, devices, and 
appurtenances within the premises; and water-treating equipment.
(65) Poisonous or toxic materials - Substances that are not intended for 
ingestion and are included in four categories: 
(A) Cleaners and sanitizers, which include cleaning and sanitizing agents and 
agents such as caustics, acids, drying agents, polishes, and other chemicals; 
(B) Pesticides, which include substances such as insecticides and rodenticides; 
(C) Substances necessary for the operation and maintenance of the establishment 
such as nonfood grade lubricants and personal care items that may be deleterious 
to health; and 
(D) Substances that are not necessary for the operation and maintenance of the 
establishment and are on the premises for retail sale, such as petroleum 
products and paints. 
(66) Potentially hazardous food - A food that is natural or synthetic and that 
requires temperature control because it is in a form capable of supporting the 
rapid and progressive growth of infectious or toxigenic microorganisms; the 
growth and toxin production of Clostridium botulinum; or in raw shell eggs, the 
growth of Salmonella enteritidis. 
(A) The term includes an animal food (a food of animal origin) that is raw or 
heat-treated; a food of plant origin that is heat-treated or consists of raw 
seed sprouts; cut melons; and garlic and oil mixtures that are not acidified or 
otherwise modified at a food processing plant in a way that results in mixtures 
that do not support growth as specified in this definition.
(B) The term does not include an air-cooled hard-boiled egg with shell intact; a 
food with a water activity (a<sub>w) value of 0.85 or less; a food with a pH 
level of 4.6 or below when measured at 24 degrees Celsius (75 degrees 
Fahrenheit); and a food, in an unopened hermetically sealed container, that is 
commercially processed to achieve and maintain commercial sterility under 
conditions of nonrefrigerated storage and distribution. The term also does not 
include a food for which laboratory evidence demonstrates that the rapid and 
progressive growth of infectious or toxigenic microorganisms or the growth of S. 
enteritidis in eggs or C. botulinum cannot occur, such as a food that has an 
a<sub>w and a pH that are above the levels specified above and that may contain 
a preservative, other barrier to the growth of microorganisms, or a combination 
of barriers that inhibit the growth of microorganisms. The term also does not 
include a food that may contain an infectious or toxigenic microorganism or 
chemical or physical contaminant at a level sufficient to cause illness, but 
that does not support the growth of microorganisms as specified in the 
definition of a potentially hazardous food. 
(67) Poultry - Any domesticated bird whether live or dead as defined in the 
Texas Health and Safety Code, Chapter 433, sec.433.003. Chickens, turkeys, 
ducks, geese, guineas, migratory waterfowl, game bird or squab such as pheasant, 
partridge, quail, and grouse, whether live or dead are examples of poultry. The 
term also includes ratites (e.g., ostrich, emu, and rhea) which are amenable to 
inspection as poultry. 
(68) Premises - The physical facility, its contents, and the contiguous land or 
property under the control of the permit holder; or the physical facility, its 
contents, and the contiguous land or property and its facilities and contents 
that are under the control of the permit holder that may impact food 
establishment personnel, facilities, or operations, if a food establishment is 
only one component of a larger operation such as a health care facility, hotel, 
motel, school, recreational camp, or prison.
(69) Primal cut - A basic major cut into which carcasses and sides of meat are 
separated, such as a beef round, pork loin, lamb flank or veal breast. 
(70) Public water system - Has the meaning stated in 30 TAC sec.290.101-
sec.290.121 relating to (Drinking Water Standards Governing Drinking Water 
Quality and Reporting Requirements for Public Water Supply Systems). 
(71) Pushcart - A non self-propelled mobile food unit limited to serving 
nonpotentially hazardous food or potentially hazardous foods requiring a limited 
amount of preparation as authorized by the regulatory authority. A push cart is 
classified as a mobile food establishment. 
(72) Ready-to-eat food - Food that is in a form that is edible without washing, 
cooking, or additional preparation by the food establishment or the consumer and 
that is reasonably expected to be consumed in that form. The term includes 
unpackaged potentially hazardous food that is cooked to the temperature and time 
required for the specific food under sec.229.164(k) of this title (relating to 
Food); raw, washed, cut fruits and vegetables; whole, raw, fruits and vegetables 
that are presented for consumption without the need for further washing, such as 
at a buffet; and other food presented for consumption for which further washing 
or cooking is not required and from which rinds, peels, husks, or shells are 
removed. 
(73) Reduced oxygen packaging - The reduction of the amount of oxygen in a 
package by mechanically evacuating the oxygen; displacing the oxygen with 
another gas or combination of gases; or otherwise controlling the oxygen content 
in a package to a level below that normally found in the surrounding atmosphere, 
which is 21% oxygen. The term includes methods that may be referred to as 
altered atmosphere, modified atmosphere, controlled atmosphere, low oxygen, and 
vacuum packaging including sous vide. 
(74) Refuse - Solid waste not carried by water through the sewage system. 
(75) Regulatory authority - The local, state, or federal enforcement body or 
authorized representative having jurisdiction over the food establishment. 
(76) Restricted use pesticide - A pesticide product that contains the active 
ingredients specified in 40 CFR 152.175 (Pesticides) classified for restricted 
use, and that is limited to use by or under the direct supervision of a 
certified applicator. 
(77) Roadside food vendor - A person who operates a mobile retail food store 
from a temporary location adjacent to a public road or highway. Potentially 
hazardous foods shall not be prepared or processed by a roadside food vendor. A 
roadside food vendor is classified as a food establishment.
(78) Safe material - An article manufactured from or composed of materials that 
may not reasonably be expected to result, directly or indirectly, in their 
becoming a component or otherwise affecting the characteristics of any food; an 
additive that is used as specified in Chapter 431 of the Texas Health and Safety 
Code; or other materials that are not additives and that are used in conformity 
with applicable regulations of the Food and Drug Administration.
(79) Sanitization - The application of cumulative heat or chemicals on cleaned 
food-contact surfaces that, when evaluated for efficacy, yield a reduction of 5 
logs, which is equal to a 99.999% reduction of representative disease 
microorganisms of public health importance. 
(80) Sealed - Free of cracks or other openings that allow the entry or passage 
of moisture. 
(81) Servicing area - An operating base location to which a mobile food 
establishment or transportation vehicle returns as needed for such things as 
discharging liquid or solid wastes, refilling water tanks and ice bins, and 
boarding food. 
(82) Sewage - Liquid waste containing animal or vegetable matter in suspension 
or solution and may include liquids containing chemicals in solution. 
(83) Shellfish control authority - Texas Department of Health Seafood Safety 
Division. 
(84) Shellstock - Raw, in-shell molluscan shellfish.
(85) Shucked shellfish - Molluscan shellfish that have one or both shells 
removed. 
(86) Single-service articles - Tableware, carry-out utensils, and other items 
such as bags, containers, placemats, stirrers, straws, toothpicks, and wrappers 
that are designed and constructed for one time, one person use.
(87) Single-use articles - Utensils and bulk food containers designed and 
constructed to be used once and discarded. The term includes items such as wax 
paper, butcher paper, plastic wrap, formed aluminum food containers, jars, 
plastic tubs or buckets, bread wrappers, pickle barrels, ketchup bottles, and 
number 10 cans which do not meet the materials, durability, strength and 
cleanability specifications contained in sec.229.165(a)(1), (c)(1), and (d)(1) 
of this title (relating to Equipment, Utensils, and Linens) for multi-use 
utensils. 
(88) Slacking - The process of moderating the temperature of a food such as 
allowing a food to gradually increase from a temperature of -23 degrees Celsius 
(-10 degrees Fahrenheit) to -4 degrees Celsius (25 degrees Fahrenheit) in 
preparation for deep-fat frying or to facilitate even heat penetration during 
the cooking of previously block-frozen food such as spinach. 
(89) Smooth - A food-contact surface having a surface free of pits and 
inclusions with a cleanability equal to or exceeding that of (100 grit) number 3 
stainless steel; a nonfood-contact surface of equipment having a surface equal 
to that of commercial grade hot-rolled steel free of visible scale; and a floor, 
wall, or ceiling having an even or level surface with no roughness or 
projections that render it difficult to clean. 
(90) Support animal - A trained animal such as a seeing eye dog that accompanies 
a person with a disability to assist in managing the disability and enables the 
person to perform functions that the person would otherwise be unable to 
perform. 
(91) Table-mounted equipment - Equipment that is not portable and is designed to 
be mounted off the floor on a table, counter, or shelf. 
(92) Tableware - Eating, drinking, and serving utensils for table use such as 
flatware including forks, knives, and spoons; hollowware including bowls, cups, 
serving dishes, tumblers; and plates. 
(93) Temperature measuring device - A thermometer, thermocouple, thermistor, or 
other device that indicates the temperature of food, air, or water. 
(94) Temporary food service establishment - A food establishment that operates 
for a period of no more than 14 consecutive days in conjunction with a single 
event or celebration. 
(95) USDA - The United States Department of Agriculture.
(96) Utensil - A food-contact implement or container used in the storage, 
preparation, transportation, dispensing, sale, or service of food, such as 
kitchenware or tableware that is multiuse, single-service, or single-use; gloves 
used in contact with food; and food temperature measuring devices. 
(97) Vending machine - A self-service device that, upon insertion of a coin, 
paper currency, token, card, or key, dispenses unit servings of food in bulk or 
in packages without the necessity of replenishing the device between each 
vending operation. 
(98) Vending machine location - The room, enclosure, space, or area where one or 
more vending machines are installed and operated and includes the storage and 
servicing areas on the premises that are used to serice and maintain the vending 
machines. 
(99) Warewashing - The cleaning and sanitizing of food-contact surfaces of 
equipment and utensils. 
[sub]w)- A measure of the free moisture in a food, is the quotient of the water 
vapor pressure of the substance divided by the vapor pressure of pure water at 
the same temperature.

sec.229.163. Management and Personnel.
(a) Responsibility, assignment. The permit holder shall be the person in charge 
or shall designate a person in charge and shall ensure that a person in charge 
is present at the food establishment during all hours of operation. 
(b) Knowledge, demonstration. Based on the risks of foodborne illness inherent 
to the food operation, during inspections and upon request the person in charge 
shall demonstrate to the regulatory authority knowledge of foodborne disease 
prevention, application of the Hazard Analysis Critical Control Point 
principles, and the requirements of these rules. The person in charge shall 
demonstrate this knowledge by compliance with these rules, by being a certified 
food protection manager who has shown proficiency of required information 
through passing a test that is part of an accredited program, or by responding 
correctly to the inspector's questions as they relate to the specific food 
operation. The person in charge may demonstrate such knowledge by: 
(1) describing the relationship between the prevention of foodborne disease and 
the personal hygiene of a food employee; 
(2) explaining the responsibility of the person in charge for preventing the 
transmission of foodborne disease by a food employee who has a disease or 
medical condition that may cause foodborne disease; 
(3) describing the symptoms associated with the diseases that are transmissible 
through food; 
(4) explaining the significance of the relationship between maintaining the time 
and temperature of potentially hazardous food and the prevention of foodborne 
illness; 
(5) explaining the hazards involved in the consumption of raw or undercooked 
meat, poultry, eggs, and fish; 
(6) stating the required food temperatures and times for safe cooking of 
potentially hazardous food including meat, poultry, eggs, and fish; 
(7) stating the required temperatures and times for safe refrigerated storage, 
hot holding, cooling, and reheating of potentially hazardous food; 
(8) describing the relationship between the prevention of foodborne illness and 
the management and control of the following: 
(A) cross-contamination; 
(B) hand contact with ready-to-eat foods; 
(C) handwashing; and 
(D) maintaining the food establishment in a clean condition and in good repair; 
(9) explaining the relationship between food safety and providing equipment that 
is: 
(A) sufficient in number and capacity; and 
(B) properly designed, constructed, located, installed, operated, maintained, 
and cleaned; 
(10) explaining correct procedures for cleaning and sanitizing utensils and 
food-contact surfaces of equipment; 
(11) identifying the source of water used and measures taken to ensure that it 
remains protected from contamination such as providing protection from backflow 
and precluding the creation of cross connections;
(12) identifying poisonous and toxic materials in the food establishment and the 
procedures necessary to ensure that they are safely stored, dispensed, used, and 
disposed of according to law; 
(13) identifying critical control points in the operation from purchasing 
through sale or service that when not controlled may contribute to the 
transmission of foodborne illness and explaining steps taken to ensure that the 
points are controlled in accordance with the requirements of these rules; 
(14) explaining the details of how the person in charge and food employees 
comply with the Hazard Analysis Critical Control Point (HACCP) plan if a plan is 
required by the law, these rules, or an agreement between the regulatory 
authority and the establishment; and 
(15) explaining the responsibilities, rights, and authorities assigned by these 
rules to the: 
(A) food employee; 
(B) person in charge; and 
(C) regulatory authority. 
(c) Duties, person in charge. The person in charge shall ensure that: 
(1) food establishment operations are not conducted in a private home or in a 
room used as living or sleeping quarters as specified under sec.229.167(d)(10) 
of this title (relating to Physical Facilities); 
(2) persons unnecessary to the food establishment operation are not allowed in 
the food preparation, food storage, or warewashing areas, except that brief 
visits and tours may be authorized by the person in charge if steps are taken to 
ensure that exposed food; clean equipment, utensils, and linens; and unwrapped 
single-service and single-use articles are protected from contamination; 
(3) employees and other persons such as delivery and maintenance persons and 
pesticide applicators entering the food preparation, food storage, and 
warewashing areas comply with these rules; 
(4) employees are effectively cleaning their hands, by routinely monitoring the 
employees' handwashing; 
(5) employees are visibly observing foods as they are received to determine that 
they are from approved sources, delivered at the required temperatures, 
protected from contamination, unadulterated, and accurately presented, by 
routinely monitoring the employees' observations and periodically evaluating 
foods upon their receipt; 
(6) employees are properly cooking potentially hazardous food, being 
particularly careful in cooking those foods known to cause severe foodborne 
illness and death, such as eggs and comminuted meats, through daily oversight of 
the employees' routine monitoring of the cooking temperatures;
(7) employees are using proper methods to rapidly cool potentially hazardous 
foods that are not held hot or are not for consumption within four hours, 
through daily oversight of the employees' routine monitoring of food 
temperatures during cooling; 
(8) consumers who order raw or partially cooked ready-to-eat foods of animal 
origin are informed as specified under sec.229.164(k)(1)(C) and sec.229.164(r) 
of this title (relating to Food) that the food is not cooked sufficiently to 
ensure its safety; 
(9) employees are properly sanitizing cleaned multiuse equipment and utensils 
before they are reused, through routine monitoring of solution temperature and 
exposure time for hot water sanitizing, and chemical concentration, hydrogen ion 
concentration (pH), temperature, and exposure time for chemical sanitizing; 
(10) consumers are notified that clean tableware is to be used when they return 
to self-service areas such as salad bars and buffets;
(11) employees are preventing cross-contamination of ready-to-eat food with 
their bare hands by proper handwashing or the use of suitable utensils such as 
deli tissue, spatulas, tongs or single-use gloves; and 
(12) employees are trained in basic food safety principles.
(d) Disease or medical condition. 
(1) Responsibility of the person in charge to require reporting by food 
employees and applicants. The permit holder shall require food employee 
applicants to whom a conditional offer of employment is made and food employees 
to report to the person in charge, information about their health and activities 
as they relate to diseases that are transmissible through food. A food employee 
or applicant shall report the information in a manner that allows the person in 
charge to prevent the likelihood of foodborne disease transmission, including 
the date of onset of jaundice or of an illness specified in subparagraph (C) of 
this paragraph, if the food employee or applicant: 
(A) is diagnosed with an illness due to: 
(i) Salmonella typhi; 
(ii) Shigella spp.; 
(iii) Escherichia coli O157:H7 or other enterohemorrhagic E. coli; or 
(iv) hepatitis A virus; 
(B) has a symptom caused by illness, infection, or other source that is: 
(i) associated with an acute gastrointestinal illness such as: 
(I) diarrhea; 
(II) fever; 
(III) vomiting; 
(IV) jaundice; or 
(V) sore throat with fever; or 
(ii) a lesion containing pus such as a boil or infected wound;
(C) had a past illness from an infectious agent specified in subparagraph (A) of 
this paragraph; or 
(D) meets one or more of the following high-risk conditions:
(i) is suspected of causing, or being exposed to, a confirmed disease outbreak 
caused by S. typhi, Shigella spp., E. coli O157:H7, or hepatitis A virus illness 
including an outbreak at an event such as a family meal, church supper, or 
festival because the food employee or applicant: 
(I) prepared food implicated in the outbreak; 
(II) consumed food implicated in the outbreak; or 
(III) consumed food at the event prepared by a person who is infected or ill 
with the infectious agent that caused the outbreak or who is suspected of being 
a shedder of the infectious agent; or 
(ii) lives in the same household as a person who is diagnosed with a disease 
caused by S. typhi, Shigella spp., E. coli O157:H7, or hepatitis A virus;
(iii) lives in the same household as a person who attends or works in a setting 
where there is a confirmed disease outbreak caused by S. typhi, Shigella spp., 
E. coli O157:H7, or hepatitis A virus; or 
(iv) traveled out of the United States or to a United States' territory within 
the last 50 calendar days to an area that is identified as having epidemic or 
endemic disease caused by S. typhi, Shigella spp., E. coli O157:H7, or hepatitis 
A virus based on information published by the Centers for Disease Control and 
Prevention, such as the document titled Health Information for International 
Travel.
(2) Exclusions and restrictions. The person in charge shall: 
(A) exclude a food employee from a food establishment if the food employee is 
diagnosed with an infectious agent specified in paragraph
(1)(A) of this subsection; 
(B) except as specified under subparagraph (C) or (D) of this paragraph, 
restrict a food employee from working with exposed food; clean equipment, 
utensils, and linens; and unwrapped single-service and single-use articles, in a 
food establishment if the food employee is: 
(i) suffering from a symptom specified in paragraph (1)(B) of this subsection; 
or 
(ii) not experiencing a symptom of acute gastroenteritis specified in paragraph 
(1)(B)(i) of this subsection but has a stool that yields a specimen culture that 
is positive for Salmonella typhi, Shigella spp. and E. coli 0157:H7; 
(C) if the population served is a highly susceptible population, exclude a food 
employee who: 
(i) is experiencing a symptom of acute gastrointestinal illness specified in 
paragraph (1)(B)(i) of this subsection and meets a high-risk condition specified 
in paragraph (1)(D) of this subsection; 
(ii) is not experiencing a symptom of acute gastroenteritis specified in 
paragraph (1)(B)(i) of this subsection but has a stool that yields a specimen 
culture that is positive for S. typhi, Shigella spp., or Escherichia coli 
O157:H7;
(iii) had a past illness from S. typhi within the last three months; or 
(iv) had a past illness from Shigella spp. or E. coli O157:H7 within the last 
month; and 
(D) for a food employee who is jaundiced: 
(i) if the onset of jaundice occurred within the last seven calendar days, 
exclude the food employee from the food establishment; or 
(ii) if the onset of jaundice occurred more than seven calendar days before: 
(I) exclude the food employee from a food establishment that serves a highly 
susceptible population; or 
(II) restrict the food employee from activities specified in subparagraph (B) of 
this paragraph, if the food establishment does not serve a highly susceptible 
population. 
(3) Removal of exclusions and restrictions.
(A) The person in charge may remove an exclusion specified in paragraph (2)(A) 
of this subsection if: 
(i) the person in charge obtains approval from the regulatory authority; and 
(ii) the person excluded as specified in paragraph (2)(A) of this subsection 
provides to the person in charge written medical documentation from a physician 
licensed to practice medicine that specifies that the excluded person may work 
in an unrestricted capacity in a food establishment, including an establishment 
that serves a highly susceptible population, because the person is free of the 
infectious agent of concern as specified in sec.229.171(o)(4) of this title 
(relating to Compliance and Enforcement). 
(B) The person in charge may remove a restriction specified in: 
(i) paragraph (2)(B)(i) of this subsection if the restricted person: 
(I) is free of the symptoms specified in paragraph (1)(B) of this subsection and 
no foodborne illness occurs that may have been caused by the restricted person; 
(II) is suspected of causing foodborne illness but is free of the symptoms 
specified in paragraph (1)(B) of this subsection, and provides written medical 
documentation from a physician licensed to practice medicine stating that the 
restricted person is free of the infectious agent that is suspected of causing 
the person's symptoms or causing foodborne illness, as specified in 
sec.229.171(o)(4) of this title; or 
(III) provides written medical documentation from a physician licensed to 
practice medicine stating that the symptoms experienced result from a chronic 
noninfectious condition such as Crohn's disease, ulcerative colitis or irritable 
bowel syndrome; or 
(ii) paragraph (2)(B)(ii) of this subsection if the restricted person provides 
written medical documentation from a physician, licensed to practice medicine, 
according to the criteria specified in sec.229.171(o)(4) of this title that 
indicates the stools are free of Salmonella typhi, Shigella spp., E. coli 
O157:H7, or other enterohemorrhagic E. coli.
(C) The person in charge may remove an exclusion specified in subsection 
(d)(2)(C) of this section if the excluded person provides written medical 
documentation from a physician licensed to practice medicine: 
(i) that specifies the person is free of: 
(I) the infectious agent of concern, as specified in sec.229.171(o)(4) of this 
title; or 
(II) jaundice as specified under subparagraph (D) of this paragraph if hepatitus 
A virus is the infectious agent of concern; or 
(ii) if the person is excluded under subsection (d)(2)(C)(i) of this section 
stating that the symptoms experienced result from a chronic noninfectious 
condition such as Crohn's disease, irritable bowel syndrome, or ulcerative 
colitis. 
(D) The person in charge may remove an exclusion specified in paragraphs 
(2)(D)(i) and (2)(D)(ii)(I) of this subsection and a restriction specified in 
paragraph (2)(D)(ii)(II) of this subsection if: 
(i) no foodborne illness occurs that may have been caused by the excluded or 
restricted person and the person provides written medical documentation from a 
physician licensed to practice medicine stating that the person is free of 
hepatitis A virus as specified in sec.229.171(o)(4) of this title; or 
(ii) the excluded or restricted person is suspected of causing foodborne illness 
and complies with clause (i) of this subparagraph. 
(4) Responsibility of a food employee or an applicant to report to the person in 
charge. A food employee or a person who applies for a job as a food employee 
shall: 
(A) in a manner specified in paragraph (1) of this subsection, report to the 
person in charge the information specified in paragraph (1)(A)-(D) of this 
subsection; and 
(B) comply with exclusions and restrictions that are specified in paragraph (2) 
of this subsection. 
(e) Hands and arms. 
(1) Clean condition. Food employees shall keep their hands and exposed portions 
of their arms clean. 
(2) Cleaning procedure. Food employees shall clean their hands and exposed 
portions of their arms with a cleaning compound in a lavatory that is equipped 
as specified under sec.229.166(f)(2)(A) of this title (relating to Water, 
Plumbing, and Waste) by vigorously rubbing together the surfaces of their 
lathered hands and arms for at least 20 seconds and thoroughly rinsing with 
clean water. Employees shall pay particular attention to the areas underneath 
the fingernails and between the fingers. 
(3) Special handwash procedures. Employees not utilizing suitable utensils or 
single-use gloves when handling ready-to-eat foods shall wash hands twice using 
the cleaning procedure specified in subsection (e)(2) of this section. 
(4) When to wash. Food employees shall clean their hands and exposed portions of 
their arms as specified under paragraph (2) of this subsection at the following 
times: 
(A) after touching bare human body parts other than clean hands and clean, 
exposed portions of arms; 
(B) after using the toilet room; 
(C) after caring for or handling support animals as allowed under subsection 
(k)(2) and (3) of this section; 
(D) after coughing, sneezing, using a handkerchief or disposable tissue, using 
tobacco, eating, or drinking; 
(E) after handling soiled equipment or utensils; 
(F) immediately before engaging in food preparation including working with 
exposed food, clean equipment and utensils, and unwrapped single-service and 
single-use articles; 
(G) during food preparation, as often as necessary to remove soil and 
contamination and to prevent cross contamination when changing tasks;
(H) when switching between working with raw foods and working with ready-to-eat 
foods; or 
(I) after engaging in other activities that contaminate the hands. 
(5) Where to wash. Food employees shall clean their hands in a handwashing 
lavatory and may not clean their hands in a sink used for food preparation, 
warewashing, or in a service sink or a curbed cleaning facility used for the 
disposal of mop water and similar liquid waste. 
(6) Hand sanitizers. 
(A) If used, a hand sanitizer, or a chemical hand sanitizing solution used as a 
hand dip, shall: 
(i) have active antimicrobial ingredients that are: 
(I) listed as safe and effective for application to human skin as an antiseptic 
handwash in a monograph for OTC (over-the-counter) Health-Care Antiseptic Drug 
Products; or 
(II) previously authorized, and listed for such use in the USDA List of 
Proprietary Substances and Nonfood Compounds, Miscellaneous Publication No. 
1419; 
(ii) have components that are: 
(I) regulated for the intended use as food additives as specified in 21 CFR 178 
- Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers; or 
(II) generally recognized as safe (GRAS) for the intended use in contact with 
food within the meaning of the Federal Food, Drug, and Cosmetic Act sec.201(s); 
or 
(III) exempted from the requirement of being listed in the federal food additive 
regulations as specified in 21 CFR 170.39 Threshold of Regulation for Substances 
Used in Food-contact Articles; and 
(iii) be applied only to hands that are cleaned as specified under subsection 
(e)(2) and (3) of this section. 
(B) If a hand sanitizer or a chemical hand sanitizing solution used as a hand 
dip does not meet the criteria specified under subparagraph (A)(ii) of this 
paragraph, use shall be: 
(i) followed by thorough hand rinsing in clean water before hand contact with 
food or by the use of gloves; or 
(ii) limited to situations that involve no direct contact with food by the bare 
hands. 
(C) A chemical hand sanitizing solution used as a hand dip shall be maintained 
clean and at a strength equivalent to at least 100 mg/L chlorine. 
(f) Fingernails, maintenance. Food employees shall keep their fingernails 
trimmed, filed, and maintained so the edges and surfaces are cleanable and not 
rough. 
(g) Jewelry, prohibition. While preparing food, food employees may not wear 
jewelry on their arms and hands. This section does not apply to a plain ring 
such as a band style ring. 
(h) Outer clothing, clean condition. Food employees shall wear clean outer 
clothing to prevent contamination of food, equipment, utensils, linens, and 
single-service and single-use articles. 
(i) Food contamination prevention. 
(1) Eating, drinking, or using tobacco. 
(A) Except as specified in subparagraph (B) of this paragraph, an employee shall 
eat, drink, or use any form of tobacco only in designated areas where the 
contamination of exposed food; clean equipment, utensils, and linens; unwrapped 
single-service and single-use articles; or other items needing protection cannot 
result. 
(B) A food employee may drink from a nonspillable, closed beverage container if 
the container is handled to prevent contamination of:
(i) the employee's hands; 
(ii) the container; and 
(iii) exposed food; clean equipment, utensils, and linens; and unwrapped single-
service and single-use articles. 
(2) Discharges from the eyes, nose, and mouth. Food employees experiencing 
persistent sneezing, coughing, or a runny nose that causes discharges from the 
eyes, nose, or mouth may not work with exposed food; clean equipment, utensils, 
and linens; or unwrapped single-service or single-use articles. 
(j) Hair restraints, effectiveness. 
(1) Use required. Except as provided under paragraph (2) of this subsection, 
food employees shall wear hair restraints such as hats, hair coverings or nets, 
beard restraints, and clothing that covers body hair, that are designed and worn 
to effectively control and keep their hair from contacting exposed food; clean 
equipment, utensils, and linens; and unwrapped single-service and single-use 
articles. 
(2) Exceptions. This section does not apply to food employees such as counter 
staff who only serve beverages and wrapped or packaged foods; hosts and 
hostesses; and wait staff if they present a minimal risk of contaminating 
exposed food, clean equipment, utensils, linens, and unwrapped single-service 
and single-use articles. 
(k) Animals, handling prohibition. 
(1) Handling, prohibition. Except as specified in paragraph
(2) of this subsection, food employees may not care for or handle animals that 
may be present such as patrol dogs, support animals, or pets that are allowed 
under sec.229.167(p)(15)(B)(ii)-(iv) of this title (relating to Physical 
Facilities). 
(2) Food employees with support animals. Food employees with support animals may 
handle or care for their support animals if they wash their hands as specified 
under subsection (e)(2) and (3) and (4)(C) of this section before working with 
exposed food; clean equipment, utensils, and linens; or unwrapped single-service 
and single-use articles. 
(3) Food employees handling fish, shellfish, crustacea. Food employees handling 
edible fish in aquariums, shellfish or crustacea in display tanks shall wash 
their hands before handling exposed food; cleaning equipment, utensils, and 
linens; or unwrapped single-service and single-use articles.

sec.229.164. Food.
(a) Condition safe, unadulterated, and honestly presented. Food shall be safe, 
unadulterated, and, as specified under subsection (p)(2) of this section, 
honestly presented. 
(b) Approved sources. 
(1) Compliance with food law. 
(A) Food shall be obtained from sources that comply with applicable laws and are 
licensed by the state regulatory authority having jurisdiction over the 
processing and distribution of the food. 
(B) Food prepared in a private home, except as allowed in these rules, or from 
an unlicensed food manufacturer or wholesaler, is considered to be from an 
unapproved source and may not be used or offered for human consumption in a food 
establishment. 
(C) Packaged food shall be labeled as specified in law, including 21 CFR 101 
Food Labeling, 9 CFR 317 Labeling, Marking Devices, and Containers, and 9 CFR 
381 Subpart N Labeling and Containers, and as specified under subsection (c)(8) 
and (9) of this section. 
(D) Fish, other than molluscan shellfish, that are intended for consumption in 
their raw form and allowed as specified under subsection (k)(1)(C) of this 
section shall be obtained from a supplier that freezes the fish as specified 
under subsection (l)(1) of this section; or shall be frozen on the premises as 
specified under subsection (l)(1) of this section and records shall be retained 
as specified under subsection (l)(3) of this section. 
(2) Food in a hermetically sealed container. Food in a hermetically sealed 
container shall be obtained from a food processing plant that is regulated by 
the food regulatory agency that has jurisdiction over the plant. 
(3) Fluid milk and milk products. Fluid milk and milk products shall be obtained 
from sources that comply with Grade A standards as specified in law. 
(4) Fish. 
(A) Fish may not be received for sale or service unless they are commercially 
and legally caught or harvested, or otherwise approved by the regulatory 
authority. 
(B) Molluscan shellfish that are recreationally caught may not be received for 
sale or service. 
(5) Molluscan shellfish. 
(A) Molluscan shellfish shall be obtained from sources according to law and the 
requirements specified in the Department of Health and Human Services, Public 
Health Service, Food and Drug Administration, National Shellfish Sanitation 
Program Manual of Operations, or its successor document. 
(B) Molluscan shellfish shall be from sources that are currently certified by 
the appropriate state or national shellfish control authority.
(6) Wild mushrooms. 
(A) Except as specified in subparagraph (B) of this paragraph, mushroom species 
picked in the wild shall be obtained from sources where each mushroom is 
individually inspected and found to be safe by a scientific expert approved by 
the regulatory authority. 
(B) This section does not apply to: 
(i) cultivated wild mushroom species that are grown, harvested, and processed in 
an operation that is regulated by the food regulatory agency that has 
jurisdiction over the operation; or 
(ii) wild mushroom species if they are in packaged form and are the product of a 
food processing plant that is regulated by the food regulatory agency that has 
jurisdiction over the plant. 
(7) Exotic animals and game animals. 
(A) If exotic animals are received for sale or service, they shall: 
(i) be commercially raised for food and: 
(I) slaughtered, processed, and deemed to be "inspected and approved" under an 
inspection program administered by U.S.D.A. in accordance with 9 CFR 352 
Voluntary Exotic Animal Program; or 
(II) slaughtered, processed, and deemed to be "inspected and passed" under a 
meat and poultry inspection program administered by the department or any other 
state meat inspection program deemed equal to U.S.D.A. inspection;
(ii) as allowed by law, for exotic animals that are live caught, be slaughtered 
and processed as required in paragraph (7)(A)(i)(I) or (II) of this subsection; 
(iii) as allowed by law, for exotic animals that are field dressed: 
(I) receive an antemortem and postmortem examination by the appropriate 
inspection personnel as described in paragraph (7)(A)(i)(I) or (II) of this 
subsection; and 
(II) be field dressed, transported, and processed according to the requirements 
specified by the appropriate regulatory authority as described in paragraph 
(7)(A)(i)(I) or (II) of this subsection
(B) No exotic animal or game animal may be received for sale or service if it is 
a species that is listed in 50 CFR 17 Endangered and Threatened Wildlife and 
Plants. 
(C) Game animals must be from a source approved by the regulatory authority and 
must be commercially processed. Approved sources include: 
(i) as allowed by law, commercially raised indigenous game animals; 
(ii) indigenous game animals harvested under the authority of the Texas Parks 
and Wildlife Department, which are wholesome at the time of delivery to a 
commercial processor; and 
(iii) other hunter killed indigenous game animal species, such as rattlesnakes, 
which are wholesome at the time of delivery to a commercial processor. 
(c) Specifications for receiving. 
(1) Temperature. 
(A) Except as specified in subparagraph (B) of this paragraph, refrigerated, 
potentially hazardous food shall be at a temperature of 5 degrees Celsius (41 
degrees Fahrenheit) or below when received. 
(B) Foods such as milk, molluscan shellfish, and shell eggs may be received at 
the temperature specified in laws governing their distribution.
(C) Potentially hazardous food that is cooked to a temperature and for a time 
specified under subsection (k) of this section and received hot shall be at a 
temperature of 60 degrees Celsius (140 degrees Fahrenheit) or above. 
(D) A food that is labeled frozen and shipped frozen by a food processing plant 
shall be received frozen. 
(E) Upon receipt, potentially hazardous food shall be free of evidence of 
previous temperature abuse. 
(2) Additives. Food may not contain unapproved food additives or additives that 
exceed amounts allowed in 21 CFR, 170-180 relating to food additives, generally 
recognized as safe or prior sanctioned substances that exceed amounts allowed in 
21 CFR, 181-186, substances that exceed amounts specified in 9 CFR 318.7 
Approval of substances for use in the preparation of products, 9 CFR 381.147 
Restrictions on the use of substances in poultry products, or pesticide residues 
that exceed provisions specified in 40 CFR 185 Tolerances for Pesticides in 
Food. 
(3) Shell eggs. Shell eggs shall be received clean and sound and may not exceed 
the restricted egg tolerances for U.S. Consumer Grade B as specified in 7 CFR 
Part 56 - Regulations Governing the Grading of Shell Eggs and U.S. Standards, 
Grades, and Weight classes for Shell Eggs, and 7 CFR Part 59 - Regulations 
Governing the Inspection of Eggs and Egg Products.
(4) Liquid, frozen, and dry eggs. Liquid, frozen, and dry eggs and egg products 
shall be obtained pasteurized. 
(5) Fluid milk, dry milk, and milk products. 
(A) Fluid milk, dry milk, and milk products complying with Grade A standards as 
specified in law shall be obtained pasteurized. 
(B) Frozen milk products, such as ice cream, shall be obtained pasteurized in 
accordance with the Texas Frozen Desserts Manufacturer Licensing Act, Texas 
Health and Safety Code, Chapter 440. 
(C) Cheese shall be obtained pasteurized unless alternative procedures to 
pasteurization are provided for in the CFR, such as 21 CFR 133 - Cheeses and 
Related Cheese Products, for curing certain cheese varieties.
(6) Package integrity. Food packages shall be in good condition and protect the 
integrity of the contents so that the food is not exposed to adulteration or 
potential contaminants. 
(7) Ice. Ice used as a food or a cooling medium shall be made from drinking 
water. 
(8) Shucked shellfish, packaging and identification. Raw shucked shellfish shall 
be obtained in nonreturnable packages legibly bearing the name and address of 
the person who shucks and packs or repacks the shellfish, the person's 
authorized certification number, and the "sell by" date for packages with a 
capacity of less than 1.87 L (one-half gallon) or the date shucked for packages 
with a capacity of 1.87 L (one-half gallon) or more. 
(9) Shellstock identification. Shellstock shall be obtained in containers 
bearing legible source identification tags or labels that are affixed by the 
harvester and each dealer that depurates, ships, or reships the shellstock, as 
specified in the Texas Molluscan Shellfish Rules, 25 TAC, Chapter 241, 
sec.241.50-sec.241.67. 
(A) Except as specified under subparagraph (C) of this paragraph, each dealer's 
tag or label shall contain the following information in the following order: 
(i) the dealer's name and address, and the certification number assigned by the 
shellfish control authority; 
(ii) the original shipper's certification number including the abbreviation of 
the name of the state or country in which the shellfish were harvested; 
(iii) the date of harvesting; 
(iv) the most precise identification of the harvest location or aquaculture site 
that is practicable based on the system of harvest area designations that is in 
use by the shellfish control authority and including the abbreviation of the 
name of the state or country in which the shellfish are harvested; 
(v) the type and quantity of shellfish; 
(vi) the following statement in bold, capitalized type: "THIS TAG IS REQUIRED TO 
BE ATTACHED UNTIL CONTAINER IS EMPTY AND THEREAFTER KEPT ON FILE FOR 90 DAYS;" 
and 
(vii) the consumer information statement required as specified in subsection (r) 
of this section. 
(B) A container of shellstock that does not bear a tag or label or that bears a 
tag or label that does not contain all the information as required in 
subparagraphs (A) and (B) of this subsection shall be subject to detention as 
provided in Texas Health and Safety Code, Chapter 436. 
(C) If a place is provided on the harvester's tag or label for a dealer's name, 
address, and certification number, the dealer's information shall be listed 
first. 
(D) If the harvester's tag or label is designed to accommodate each dealer's 
identification as specified under subparagraph (A)(i) of this paragraph, 
separate dealer tags or labels need not be provided. 
(10) Shellstock, condition. When received by a food establishment, shellstock 
shall be reasonably free of mud, shall be alive, and have unbroken shells. Dead 
shellstock or shellstock with badly broken shells shall be discarded. 
(d) Original containers and records. 
(1) Molluscan shellfish, original container. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, 
molluscan shellfish may not be removed from the container in which they were 
received other than immediately before sale or preparation for service.
(B) Shellstock may be removed from the container in which they were received, 
displayed on drained ice, or held in a display container, maintained at or below 
41 degrees Fahrenheit, and a quantity specified by a consumer may be removed 
from the display or display container and provided to the consumer if: 
(i) the source of the shellstock on display is identified as specified under 
subsection (c)(9) of this section, the source information is displayed with the 
shellstock and recorded as specified under paragraph (2) of this subsection; and 
(ii) the shellstock are protected from contamination. 
(C) Shucked shellfish may be removed from the container in which they were 
received and held in a display container maintained at or below 41 degrees 
Fahrenheit from which individual servings are dispensed upon a consumer's 
request if: 
(i) the labeling information for the shellfish on display as specified under 
subsection (c)(8) of this section is retained and correlated to the date when, 
or dates during which, the shellfish are sold or served and the information is 
displayed with the shellfish; and 
(ii) the shellfish are protected from contamination. 
(2) Shellstock, maintaining identification. The identity of the source of 
shellstock that are sold or served shall be maintained by retaining shellstock 
tags or labels for 90 calendar days from the date the container is emptied by: 
(A) using a record keeping system approved by the Department that keeps the tags 
or labels in chronological order correlated to the date when, or dates during 
which, the shellstock are sold or served; and 
(B) if shellstock are removed from their tagged or labeled container, using only 
one tagged or labeled container at a time and ensuring that shellstock from one 
tagged or labelled container are not commingled with shellstock from another 
container, unless all tag or label information is identical, before being 
ordered by the consumer. Shellstock tags shall remain attached to the container 
in which the shellstock are received until the container is empty. 
(3) Disclosure of tag or label information. Tag or label information shall be 
made available to any consumer upon request.
(e) Preventing contamination by employees.
(1) Preventing contamination from hands. 
(A) Food employees shall wash their hands as specified under sec.229.163(e) of 
this title (relating to Management and Personnel). 
(B) Except when washing fruits and vegetables as specified in subsection (f)(6) 
of this section, food employees shall avoid contact of exposed ready-to-eat food 
with their bare hands by use of suitable utensils such as deli tissue, spatulas, 
tongs, or single-use gloves; or shall wash hands as specified in 
sec.229.163(e)(3) of this title. 
(C) Food employees shall minimize bare hand and arm contact with exposed food 
that is not in a ready-to-eat form. 
(2) Preventing contamination when tasting. A food employee may not use a utensil 
more than once to taste food that is to be sold or served. 
(f) Preventing food and ingredient contamination. 
(1) General. At all times, including while being stored, prepared, displayed, 
served, or transported, food shall be protected from potential contamination. 
(2) Packaged and unpackaged food - separation, packaging, and segregation. 
(A) Food shall be protected from cross contamination by: 
(i) separating raw animal foods during storage, preparation, holding, and 
display from: 
(I) raw ready-to-eat food including other raw animal food such as fish for sushi 
or molluscan shellfish, or other raw ready-to-eat food such as vegetables; and 
(II) cooked ready-to-eat food. 
(ii) except when combined as ingredients, separating types of raw animal foods 
from each other such as beef, fish, lamb, pork, and poultry during storage, 
preparation, holding, and display by: 
(I) using separate equipment for each type; or 
(II) arranging each type of food in equipment so that cross contamination of one 
type with another is prevented; and 
(III) preparing each type of food at different times or in separate areas. 
(iii) cleaning equipment and utensils as specified under sec.229.165(n)(1) of 
this title (relating to Equipment, Utensils, and Linens) and sanitizing as 
specified under sec.229.165(r) of this title; 
(iv) except as specified under subparagraph (B) of this paragraph, storing the 
food in packages, covered containers, or wrappings; 
(v) cleaning hermetically sealed containers of food of visible soil before 
opening; 
(vi) protecting food containers that are received packaged together in a case or 
overwrap from cuts when the case or overwrap is opened;
(vii) storing damaged, spoiled or recalled food being held in the food 
establishment as specified under sec.229.167(n) of this title (relating to 
Physical Facilities); and 
(viii) separating fruits and vegetables, before they are washed as specified 
under paragraph (6) of this subsection from ready-to-eat food.
(B) Subparagraph (A)(iv) of this paragraph does not apply to: 
(i) whole, uncut, raw fruits and vegetables and nuts in the shell, that require 
peeling or hulling before consumption; 
(ii) primal cuts, quarters, or sides of raw meat or slab bacon that are hung on 
clean, sanitized hooks or placed on clean, sanitized racks;
(iii) whole, uncut, processed meats such as country hams, and smoked or cured 
sausages that are placed on clean, sanitized racks; 
(iv) food being cooled as specified under subsection (n)(5)(B)(ii) of this 
section; or 
(v) shellstock. 
(3) Food storage containers, identified with common name of food. Working 
containers holding food or food ingredients that are removed from their original 
packages for use in the food establishment such as cooking oils, flour, herbs, 
potato flakes, salt, spices, and sugar shall be identified with the common name 
of the food except that containers holding food that can be readily and 
unmistakably recognized such as dry pasta need not be identified. 
(4) Pasteurized eggs, substitute for shell eggs for certain recipes and 
populations. Pasteurized shell eggs or pasteurized liquid, frozen, or dry eggs 
or egg products shall be substituted for raw shell eggs in the preparation of: 
(A) foods such as Caesar salad, hollandaise or bearnaise sauce, mayonnaise, 
eggnog, ice cream, and egg-fortified beverages that are not: 
(i) cooked as specified under subsection (k)(1)(A)(i) or (ii) of this section; 
or 
(ii) included under subsection (k)(1)(C) of this section; and 
(B) eggs for a highly susceptible population if the eggs are broken, combined in 
a container, and not cooked immediately or if the eggs are held before service 
following cooking. 
(5) Protection from unapproved additives. 
(A) Food shall be protected from contamination that may result from the addition 
of, as specified in subsection (c)(2) of this section: 
(i) unsafe or unapproved food or color additives; and 
(ii) unsafe or unapproved levels of approved food and color additives. 
(B) A food employee may not: 
(i) apply sulfiting agents to fresh fruits and vegetables intended for raw 
consumption or to a food considered to be a good source of vitamin B<sub>1; or 
(ii) serve or sell food specified in clause (i) of this subparagraph that is 
treated with sulfiting agents before receipt by the food establishment, except 
that grapes need not meet this subparagraph. 
(6) Washing fruits and vegetables. 
(A) Raw fruits and vegetables shall be thoroughly washed in water to remove soil 
and other contaminants before being cut, combined with other ingredients, 
cooked, served, or offered for human consumption in ready-to-eat form except 
that whole, raw fruits and vegetables that are intended for washing by the 
consumer before consumption need not be washed before they are sold.
(B) Fruits and vegetables may be washed by using chemicals as specified 
undersec.229.168(f)(2) of this title (relating to Poisonous or Toxic Materials). 
(g) Preventing contamination from ice used as a coolant. 
(1) Ice used as exterior coolant, prohibited as contamination ingredient. After 
use as a medium for cooling the exterior surfaces of food such as melons or 
fish, packaged foods such as canned beverages, or cooling coils and tubes of 
equipment, ice may not be used as food. 
(2) Storage or display of food in contact with water or ice. 
(A) Packaged food may not be stored in direct contact with ice or water if the 
food is subject to the entry of water because of the nature of its packaging, 
wrapping, or container or its positioning in the ice or water. 
(B) Except as specified in subparagraphs (C) and (D) of this paragraph, 
unpackaged food may not be stored in direct contact with undrained ice. 
(C) Whole, raw fruits or vegetables; cut, raw vegetables such as celery or 
carrot sticks or cut potatoes; and tofu may be immersed in ice or water. 
(D) Raw chicken and raw fish that are received immersed in ice in shipping 
containers may remain in that condition while in storage awaiting preparation, 
display, service, or sale. 
(h) Preventing contamination from equipment, utensils, wiping cloths, and 
linens. 
(1) Food contact with equipment and utensils. Food may not contact: 
(A) probe-type price or identification tags, unless each tag is cleaned and 
sanitized prior to each use and used only in raw foods that will not be consumed 
as a ready-to-eat food; and 
(B) surfaces of utensils and equipment that are not cleaned as specified under 
sec.229.165(m)-(o) of this title and sanitized as specified in sec.229.165(p)-
(r) of this title. 
(2) In-use utensils, between-use storage. During pauses in food preparation or 
dispensing, food preparation and dispensing utensils shall be stored: 
(A) except as specified under subparagraph (B) of this paragraph, in the food 
with their handles above the top of the food and the container;
(B) in food that is not potentially hazardous with their handles above the top 
of the food within containers or equipment that can be closed, such as bins of 
sugar, flour, or cinnamon; 
(C) on a clean portion of the food preparation table or cooking equipment and 
shall be cleaned and sanitized at a frequency specified under sec.229.165(n)(1) 
and (q) of this title; 
(D) in running water of sufficient velocity to flush particulates to the drain, 
if used with moist food such as ice cream or mashed potatoes; or 
(E) in a clean, protected location if the utensils, such as ice scoops, are used 
only with a food that is not potentially hazardous. 
(3) Wiping cloths, used for one purpose. 
(A) Cloths that are in use for wiping food spills shall be used for no other 
purpose. 
(B) Cloths used for wiping food spills shall be: 
(i) dry and used for wiping food spills from tableware and carry-out containers; 
or 
(ii) moist and cleaned as specified under sec.229.165(t)(4) of this title, 
stored in a chemical sanitizer as specified under sec.229.168(f)(1) of this 
title, and used for wiping spills from food-contact and nonfood-contact surfaces 
of equipment. 
(C) Dry or moist cloths that are used with raw animal foods shall be kept 
separate from cloths used for other purposes, and moist cloths used with raw 
animal foods shall be kept in a separate sanitizing solution.
(4) Linens and napkins, use limitation. Linens and napkins may not be used in 
contact with food unless they are used to line a container for the service of 
foods and the linens and napkins are replaced each time the container is 
refilled for a new consumer. 
(5) Gloves, use limitation. 
(A) If used, single-use gloves shall be used for only one task such as working 
with ready-to-eat food or with raw animal food, used for no other purpose, and 
discarded when damaged or soiled, or when interruptions occur in the operation. 
(B) Except as specified in subparagraph (C) of this paragraph, slash-resistant 
gloves that are used to protect the hands during operations requiring cutting 
shall be used in direct contact only with food that is subsequently cooked as 
specified in these rules, such as frozen food or a primal cut of meat. 
(C) Slash-resistant gloves may be used with ready-to-eat food that will not be 
subsequently cooked if the slash-resistant gloves have a smooth, durable, and 
nonabsorbent outer surface; or if the slash-resistant gloves are covered with a 
smooth, durable, nonabsorbent glove, or a single-use glove. 
(D) Cloth gloves may not be used in direct contact with food unless the food is 
subsequently cooked as required in these rules such as frozen food or a primal 
cut of meat. 
(6) Using clean tableware for second portions and refills. 
(A) Food employees may not use tableware, including single-service articles, 
soiled by the consumer to provide second portions or refills. 
(B) Except as specified in subparagraph (C) of this paragraph, self-service 
consumers may not be allowed to use soiled tableware, including single-service 
articles, to obtain additional food from the display and serving equipment. A 
card, sign or other effective means of notification shall be displayed to notify 
consumers that clean tableware is to be used upon return to self-service areas 
such as salad bars and buffets. 
(C) Cups and glasses may be reused by self-service consumers if refilling is a 
contamination-free process as specified under sec.229.165(f)(3)(A),(B) and (D) 
of this title. 
(7) Refilling returnables. 
(A) A take-home food container returned to a food establishment may not be 
refilled at a food establishment with a potentially hazardous food.
(B) Except as specified in subparagraph (C) of this paragraph, a take-home food 
container refilled with food that is not potentially hazardous shall be cleaned 
as specified in sec.229.165(o)(7) of this title. 
(C) Personal take-out beverage containers, such as thermally insulated bottles, 
nonspill coffee cups and promotional beverage glasses, may be refilled by 
employees or the consumer if refilling is a contamination-free process as 
specified in sec.229.165(f)(3)(A),(B), and (D) of this title.
(i) Preventing contamination from the premises. 
(1) Food Storage. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, food 
shall be protected from contamination by storing the food:
(i) in a clean, dry location; 
(ii) where it is not exposed to splash, dust, or other contamination; and 
(iii) at least 15 centimeters (6 inches) above the floor.
(B) Food in packages and working containers may be stored less than 15 
centimeters (6 inches) above the floor on case lot handling equipment as 
specified under sec.229.165(f)(22) of this title. 
(C) Pressurized beverage containers, cased food in waterproof containers such as 
bottles or cans, and milk containers in plastic crates may be stored on a floor 
that is clean and not exposed to floor moisture.
(2) Food storage, prohibited areas. Food may not be stored: 
(A) in locker rooms; 
(B) in toilet rooms; 
(C) in dressing rooms; 
(D) in garbage rooms; 
(E) in mechanical rooms; 
(F) under sewer lines that are not shielded to intercept potential drips; 
(G) under leaking water lines, including leaking automatic fire sprinkler heads, 
or under lines on which water has condensed; 
(H) under open stairwells; or 
(I) under other sources of contamination. 
(3) Vended potentially hazardous food, original container. Potentially hazardous 
food dispensed through a vending machine shall be in the package in which it was 
placed at the food establishment or food processing plant at which it was 
prepared, unless the food was manufactured within the machine. 
(4) Food preparation. During preparation, unpackaged food shall be protected 
from environmental sources of contamination. 
(j) Preventing contamination by consumers. 
(1) Food display. Except for nuts in the shell and whole, raw fruits and 
vegetables that are intended for hulling, peeling, or washing by the consumer 
before consumption, food on display shall be protected from contamination by the 
use of packaging; counter, service line, or salad bar food guards; display 
cases; or other effective means. 
(2) Condiments, protection. 
(A) Condiments shall be protected from contamination by being kept in dispensers 
that are designed to provide protection, protected food displays provided with 
the proper utensils, original containers designed for dispensing, or individual 
packages or portions. 
(B) Condiments at a vending machine location shall be in individual packages or 
provided in dispensers that are filled at a location that is approved by the 
regulatory authority, such as the food establishment that provides food to the 
vending machine location, a food processing plant that is regulated by the 
agency that has jurisdiction over the operation, or a properly equipped facility 
that is located on the site of the vending machine location. 
(3) Consumer self-service operations, sale from self-service containers. 
(A) Unpackaged, raw animal food, such as beef, lamb, pork, poultry, and fish may 
not be offered for consumer self-service. This paragraph does not apply to 
consumer self-service of ready-to-eat foods at buffets or salad bars that serve 
foods such as sushi or raw shellfish, or to ready-to-cook individual portions 
for immediate cooking and consumption on the premises such as consumer-cooked 
meats or consumer-selected ingredients for Mongolian barbecue. 
(B) Consumer self-service operations for ready-to-eat foods shall be provided 
with suitable utensils or effective dispensing methods that protect the food 
from contamination. 
(C) Consumer self-service operations such as buffets and salad bars shall be 
monitored by food employees trained in safe operating procedures.
(D) A person may sell unpackaged food that is displayed and sold in bulk from a 
self-service container if: 
(i) the self-service container has a tight-fitting lid that is securely attached 
to the container; and 
(ii) the container, lid, and any utensil are constructed of nontoxic materials 
that provide for easy cleaning and proper repair. 
(E) The lid of a gravity feed type container shall be kept closed except when 
the container is being serviced or refilled. 
(F) The lid of a scoop utensil type container shall be kept closed except during 
customer service. The container must have a utensil, equipped with a handle, to 
be used in dispensing the food. 
(G) The seller shall: 
(i) keep the container, lid, and any utensil sanitary to prevent spoilage and 
insect infestation; and 
(ii) post in the immediate display area a conspicuous sign that instructs the 
customer on the proper procedure for dispensing the food.
(4) Returned food, reservice or sale. 
(A) Except as specified under subparagraph (B) of this paragraph, after being 
served or sold and in the possession of a consumer, food that is unused or 
returned by the consumer may not be offered as food for human consumption. 
(B) Except as specified in subsection (u) of this section, food that is not 
potentially hazardous, such as crackers and condiments, in an unopened original 
package and maintained in sound condition may be reserved or resold. 
(5) Miscellaneous sources of contamination. Food shall be protected from 
contamination that may result from a factor or source not specified in 
subsections (e)-(j) of this section. 
(k) Cooking. 
(1) Raw animal foods. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, raw 
animal foods such as eggs, fish, meat, poultry, and foods containing these raw 
animal foods, shall be cooked to heat all parts of the food to a temperature and 
for a time that complies with one of the following methods based on the food 
that is being cooked: 
(i) 63 degrees Celsius (145 degrees Fahrenheit) or above for 15 seconds for: 
(I) raw shell eggs that are broken and prepared in response to a consumer's 
order and for immediate service; and 
(II) except as specified under subparagraph (A)(ii) and (iii) and subparagraph 
(B) of this paragraph, fish and meat including game animals and exotic animals 
commercially raised for food under a voluntary inspection program. 
(ii) 68 degrees Celsius (155 degrees Fahrenheit) for 15 seconds or the 
temperature specified in the following table that corresponds to the holding 
time for pork, ratites, and injected meats; the following if they are 
comminuted: fish, meat, game animals and exotic animals commercially raised for 
food under a voluntary inspection program; and raw eggs that are not prepared as 
specified under subparagraph (A)(i)(I) of this paragraph; or 
Figure: 25 TAC sec.229.164(k)(1)(A)(ii) 
(iii) 74 degrees Celsius (165 degrees Fahrenheit) or above for 15 seconds for 
poultry except for ratites, wild game animals and exotic animals which are live 
caught and are under a routine inspection program, stuffed fish, stuffed meat, 
stuffed pasta, stuffed poultry, stuffed ratites, or stuffing containing fish, 
meat, poultry, or ratites. 
(B) Whole beef roasts and corned beef roasts shall be cooked:
(i) in an oven that is preheated to the temperature specified for the roast's 
weight that is held at that temperature as specified in the following table: 
Figure: 25 TAC sec.229.164(k)(1)(B)(i)
(ii) and all parts of the food shall be heated to a temperature and for the 
holding time that corresponds to that temperature in the following table: 
Figure: 25 TAC sec.229.164(k)(1)(B)(ii)
(C) Except for food establishments serving a highly susceptible population, 
subparagraphs (A) and (B) of this paragraph do not apply if, upon consumer 
order, the food is a raw animal food such as raw, marinated fish; raw molluscan 
shellfish; steak tartare; or a partially cooked food such as lightly cooked 
fish, rare meat, and soft cooked eggs that is served or offered for sale in a 
ready-to-eat form, and the consumer is informed that to ensure its safety, the 
food should be cooked as specified in this paragraph. Consumers shall be 
informed by brochures, deli-case or menu advisories, label statements, table 
tents, placards, or other effective means. 
(2) Microwave cooking. Raw animal foods cooked in a microwave oven shall be: 
(A) rotated or stirred throughout or midway during cooking to compensate for 
uneven distribution of heat; 
(B) covered to retain surface moisture; 
(C) heated to a temperature of at least 74 degrees Celsius (165 degrees 
Fahrenheit) in all parts of the food; and 
(D) allowed to stand covered for two minutes after cooking to obtain temperature 
equilibrium. 
(3) Plant food cooking for hot holding. Fruits and vegetables that are cooked 
for hot holding shall be cooked to a temperature of 60 degrees Celsius (140 
degrees Fahrenheit). 
(l) Freezing. 
(1) Parasite destruction. Except as specified in paragraph (2) of this 
subsection, before service or sale in ready-to-eat form, raw, raw-marinated, 
partially cooked, or marinated- partially cooked fish other than molluscan 
shellfish shall be frozen throughout to a temperature of:
(A) -20 degrees Celsius (-4 degrees Fahrenheit) or below for 168 hours (7 days) 
in a freezer; or 
(B) -35 degrees Celsius (-31 degrees Fahrenheit) or below for 15 hours in a 
blast freezer. 
(2) Tuna species. If the fish are tuna of the species Thunnus alalunga, Thunnus 
albacares (Yellowfin tuna), Thunnus atlanticus, Thunnus maccoyii (Bluefin tuna, 
Southern), Thunnus obesus (Bigeye tuna), or Thunnus thynnus (Bluefin tuna, 
Northern), the fish may be served or sold in a raw, raw-marinated, or partially 
cooked ready-to-eat form without freezing as specified under paragraph (1) of 
this subsection. 
(3) Records, creation and retention. 
(A) Except as specified in paragraph (2) of this subsection and subparagraph (B) 
of this paragraph, if raw, raw-marinated and lightly cooked-marinated fish are 
served or sold in ready-to-eat form, the person in charge shall record the 
freezing temperature and time to which the fish are subjected and shall retain 
the records at the food establishment for 90 calendar days beyond the time of 
service or sale of the fish. 
(B) If the fish are frozen by a supplier, a written agreement or statement from 
the supplier stipulating that the fish supplied are frozen to a temperature and 
for a time specified under paragraph (1) of this subsection may substitute for 
the records specified under subparagraph (A) of this paragraph.
(m) Reheating. 
(1) Reheating for hot holding. 
(A) Except as specified under subparagraphs (B), (C), and (E) of this paragraph, 
potentially hazardous food that is cooked, cooled, and reheated for hot holding 
shall be reheated so that all parts of the food reach a temperature of at least 
74 degrees Celsius (165 degrees Fahrenheit) for 15 seconds. 
(B) Except as specified under subparagraph (C) of this paragraph, potentially 
hazardous food reheated in a microwave oven for hot holding shall be reheated so 
that all parts of the food reach a temperature of at least 74 degrees Celsius 
(165 degrees Fahrenheit) and the food is rotated or stirred, covered, and 
allowed to stand covered for two minutes after reheating. 
(C) Ready-to-eat food taken from a commercially-processed, hermetically-sealed 
container, or from an intact package from a food processing plant that is 
inspected by the food regulatory authority that has jurisdiction over the plant, 
shall be heated to a temperature of at least 60 degrees Celsius (140 degrees 
Fahrenheit) for hot holding. 
(D) Reheating for hot holding shall be done rapidly and the minimum temperature 
specified under subsection (n)(6)(B) or (C) of this section shall be reached 
within two hours. 
(E) Remaining unsliced portions of roasts of beef that are cooked as specified 
in subsection (k)(1)(B) of this section may be reheated for hot holding using 
the oven parameters and minimum time and temperature conditions specified in 
subsection (k)(1)(B) of this section. 
(2) Reheating for immediate service. Cooked and refrigerated food that is 
prepared for immediate service in response to an individual consumer order, such 
as a roast beef sandwich au jus, may be served at any temperature. 
(n) Time and temperature control. 
(1) Frozen food. Stored frozen foods shall be maintained frozen.
(2) Potentially hazardous food, slacking. Frozen potentially hazardous food that 
is slacked to moderate the temperature shall be held:
(A) under refrigeration that maintains the food temperature at 5 degrees Celsius 
(41 degrees Fahrenheit) or less, or at 7 degrees Celsius (45 degrees Fahrenheit) 
or less as specified in paragraph (6)(C) of this subsection; or 
(B) at any temperature if the food remains frozen. 
(3) Thawing. Potentially hazardous food shall be thawed: 
(A) under refrigeration that maintains the food temperature at 5 degrees Celsius 
(41 degrees Fahrenheit), or less; or at 7 degrees Celsius (45 degrees 
Fahrenheit) or less as specified in paragraph (6)(C) of this subsection;
(B) completely submerged under running water: 
(i) at a water temperature of 21 degrees Celsius (70 degrees Fahrenheit) or 
below; 
(ii) with sufficient water velocity to agitate and float off loose particles in 
an overflow; and 
(iii) for a period of time that does not allow thawed portions of ready-to-eat 
food to rise above 5 degrees Celsius (41 degrees Fahrenheit), or 7 degrees 
Celsius (45 degrees Fahrenheit) as specified in paragraph (6)(C) of this 
subsection; or 
(iv) for a period of time that does not allow thawed portions of a raw animal 
food requiring cooking as specified in subsection (k)(1)(A) or (B) of this 
section to be above 5 degrees Celsius (41 degrees Fahrenheit) or 7 degrees 
Celsius (45 degrees Fahrenheit) as specified in paragraph (6) (C) of this 
subsection for more than four hours including the time the food is exposed to 
the running water and the time needed for preparation for cooking or the time it 
takes under refrigeration to lower the food temperature to 5 degrees Celsius (41 
degrees Fahrenheit) or to 7 degrees Celsius (45 degrees Fahrenheit) as specified 
in paragraph (6)(C) of this subsection; 
(C) as part of a cooking process if the food that is frozen is: 
(i) cooked as specified in subsection (k)(1)(A) or (B) or (k)(2) of this 
section; or 
(ii) thawed in a microwave oven and immediately transferred to conventional 
cooking equipment, with no interruption in the process; or
(D) using any procedure that thaws a portion of frozen ready-to-eat food that is 
prepared for immediate service in response to an individual consumer's order. 
(4) Cooling. 
(A) Cooked potentially hazardous food shall be cooled: 
(i) from 60 degrees Celsius (140 degrees Fahrenheit) to 21 degrees Celsius (70 
degrees Fahrenheit) within two hours; and 
(ii) from 21 degrees Celsius (70 degrees Fahrenheit) to 5 degrees Celsius (41 
degrees Fahrenheit), or below, or to 7 degrees Celsius (45 degrees Fahrenheit) 
as specified in paragraph (6) (C) of this subsection within four hours. 
(B) Potentially hazardous food shall be cooled to 5 degrees Celsius (41 degrees 
Fahrenheit) or below or to 7 degrees Celsius (45 degrees Fahrenheit) as 
specified in paragraph (6)(C) of this subsection within four hours if prepared 
from ingredients at ambient temperature, such as reconstituted foods and canned 
tuna. 
(C) A potentially hazardous food received in compliance with laws allowing a 
temperature above 5 degrees Celsius (41 degrees Fahrenheit) during shipment from 
the supplier shall be cooled to 5 degrees Celsius (41 degrees Fahrenheit) or 
below within four hours or to 7 degrees Celsius (45 degrees Fahrenheit) as 
specified in paragraph (6)(C) of this subsection within four hours. 
(5) Cooling methods. 
(A) Cooling shall be accomplished in accordance with the time and temperature 
criteria specified under paragraph (4) of this subsection by using one or more 
of the following methods based on the type of food being cooled: 
(i) placing the food in shallow pans; 
(ii) separating the food into smaller or thinner portions;
(iii) using rapid cooling equipment; 
(iv) stirring the food in a container placed in an ice water bath; 
(v) using containers that facilitate heat transfer; 
(vi) adding ice as an ingredient; or 
(vii) other effective methods. 
(B) When placed in cooling or cold holding equipment, food containers in which 
food is being cooled shall be: 
(i) arranged in the equipment to provide maximum heat transfer through the 
container walls; and 
(ii) loosely covered, or uncovered if protected from overhead contamination as 
specified under subsection (i)(1)(A)(ii) of this section, during the cooling 
period to facilitate heat transfer from the surface of the food. 
(6) Potentially hazardous food, hot and cold holding. Except during preparation, 
cooking, or cooling, or when time is used as the public health control as 
specified under paragraph (10) of this subsection, potentially hazardous food 
shall be maintained: 
(A) at 60 degrees Celsius (140 degrees Fahrenheit) or above, except that roasts 
cooked to a temperature and for a time specified in subsection (k)(1)(B) of this 
section may be held at a temperature of 54 degrees Celsius (130 degrees 
Fahrenheit); or 
(B) at 5 degrees Celsius (41 degrees Fahrenheit) or below, except as specified 
under subparagraph (C) of this paragraph, paragraphs (7)-(9) of this subsection, 
and sec.229.165(f)(11) of this title; or 
(C) at 7 degrees Celsius (45 degrees Fahrenheit) provided the mechanical 
refrigeration unit in which the food is held: 
(i) is currently in place and in use in the food establishment; and 
(ii) is upgraded or replaced with a refrigeration unit that can meet the 
requirements of subparagraph (B) of this paragraph within five years of adoption 
of these rules by the department. 
(D) Shell eggs must be held at an ambient temperature of 45 degrees Fahrenheit 
or less. If the United States Department of Agriculture and the U.S. Food and 
Drug Administration determine by law that a lower temperature must be 
maintained, the lower temperature shall prevail. 
(7) Prepared on premise ready-to-eat potentially hazardous food, date marking. 
(A) Except as specified in paragraph (8)(C) of this subsection, refrigerated, 
ready-to-eat potentially hazardous food prepared and held refrigerated for more 
than 24 hours in a food establishment shall be clearly marked at the time of 
preparation to indicate the date, including the day of preparation, by which the 
food shall be consumed which shall be: 
(i) seven calendar days or less from the day that the food is prepared, if the 
food is maintained at 5 degrees Celsius (41 degrees Fahrenheit) or less; or 
(ii) four calendar days or less from the day the food is prepared, if the food 
is maintained at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified 
under paragraph (6)(C) of this subsection. 
(B) Except as specified in paragraph (8)(C) of this subsection, a ready-to-eat, 
potentially hazardous food prepared in a food establishment and subsequently 
frozen, shall be clearly marked: 
(i) when the food is thawed, to indicate that the food shall be consumed within 
24 hours; or 
(ii) when the food is placed into the freezer, to indicate the length of time 
before freezing, including the day of preparation, that the food is held 
refrigerated: 
(I) seven calendar days or less from the day of preparation, if the food is 
maintained at 5 degrees Celsius (41 degrees Fahrenheit) or less; or 
(II) four calendar days or less from the day of preparation, if the food is 
maintained at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified 
under paragraph (6)(C) of this subsection. 
(iii) when the food is removed from the freezer, to indicate the date by which 
the food shall be consumed which is: 
(I) seven calendar days or less after the food is removed from the freezer, 
minus the time before freezing, that the food is held refrigerated if the food 
is maintained at 5 degrees Celsius (41 degrees Fahrenheit) or less before and 
after freezing; or 
(II) four calendar days or less after the food is removed from the freezer, 
minus the time before freezing, that the food is held refrigerated if the food 
is maintained at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified 
under paragraph (6)(C) of this subsection before and after freezing. 
(8) Commercially processed ready-to-eat potentially hazardous food, date 
marking. 
(A) Except as specified in subparagraphs (C) and (D) of this paragraph, a 
container of refrigerated, ready-to-eat potentially hazardous food prepared and 
packaged by a food processing plant shall be clearly marked, at the time the 
original container is opened in a food establishment, to indicate the date, 
including the day the original container is opened, by which the food shall be 
consumed which is: 
(i) seven calendar days or less after the original container is opened, if the 
food is maintained at 5 degrees Celsius (41 degrees Fahrenheit) or less; or 
(ii) four calendar days or less from the day the original container is opened, 
if the food is maintained at 7 degrees Celsius (45 degrees Fahrenheit) or less 
as specified under paragraph (6) (C) of this subsection.
(B) Except as specified in subparagraphs (C) and (D) of this paragraph, a 
container of refrigerated, ready-to-eat potentially hazardous food prepared and 
packaged by a food processing plant and subsequently opened and frozen in a food 
establishment shall be clearly marked: 
(i) when the food is thawed, to indicate that the food shall be consumed within 
24 hours; or 
(ii) to indicate the time between the opening of the original container and 
freezing that the food is held refrigerated and which is, including the day of 
opening the original container: 
(I) seven calendar days or less, after opening the original container if the 
food is maintained at 5 degrees Celsius (41 degrees Fahrenheit) or less; or 
(II) four calendar days or less after opening the original container if the food 
is maintained at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified 
under paragraph (6) (C( of this subsection; and
(iii) when the food is removed from the freezer, to indicate the date by which 
the food shall be consumed which is: 
(I) seven calendar days, minus the time before freezing, that the food is held 
refrigerated if the food is maintained at 5 degrees Celsius (41 degrees 
Fahrenheit) or less before and after freezing; or 
(II) four calendar days, minus the time before freezing, that the food is held 
refrigerated if the food is maintained at 7 degrees Celsius (45 degrees 
Fahrenheit) or less as specified under paragraph (6)(C) of this subsection 
before and after freezing. 
(C) Paragraphs (7)(A) and (B) and (8)(A) and (B) of this subsection do not apply 
to individual meal portions served or repackaged for sale from a bulk container 
upon a consumer's request. 
(D) Paragraph (8)(A) and (B) of this subsection do not apply to whole, unsliced 
portions of a cured and processed product with original casing maintained on the 
remaining portion, such as bologna, salami, or other sausage in a cellulose 
casing. 
(9) Ready-to-eat potentially hazardous food, disposition.
(A) A food specified in paragraph (7)(A) of this subsection shall be discarded 
if not consumed within: 
(i) seven calendar days from the date of preparation if the food is maintained 
at 5 degrees Celsius (41 degrees Fahrenheit) or less; or
(ii) four calendar days from the date of preparation if the food is maintained 
at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified under 
paragraph (6)(C) of this subsection. 
(B) A food specified under paragraphs (7)(B)(i) or (8)(B)(i) of this subsection 
shall be discarded if not consumed within 24 hours after thawing. 
(C) A food specified under paragraphs (7)(B)(ii) and (iii) or (8)(B)(ii) and 
(iii) of this subsection shall be discarded on or before the most recent date 
marked on the food container or package if the food is not consumed by that 
date. 
(D) A food specified under paragraph (8)(A) of this subsection shall be 
discarded if not consumed within, including the day of opening the original 
container: 
(i) seven calendar days after the date that the original package is opened in a 
food establishment if the food is maintained at 5 degrees Celsius (41 degrees 
Fahrenheit) or less; or 
(ii) four calendar days after the date that the original package is opened in a 
food establishment if the food is maintained at 7 degrees Celsius (45 degrees 
Fahrenheit) or less as specified under paragraph (6)(C) of this subsection. 
(E) A food specified under paragraphs (7)(A) or (B) and (8)(A) or (B) of this 
subsection shall be discarded if the food is: 
(i) marked with the date specified under paragraphs (7)(A) or (B) or (8)(A) or 
(B) of this subsection and the food is not consumed before the most recent date 
expires; 
(ii) in a container or package which does not bear a date or time; or 
(iii) inappropriately marked with a date or time that exceeds the date or time 
specified under paragraphs (7)(A) or (B) or (8)(A) or (B) of this subsection. 
(F) Refrigerated, ready-to-eat potentially hazardous food prepared in a food 
establishment and dispensed through a vending machine with an automatic shut-off 
control that is activated at a temperature of: 
(i) 5 degrees Celsius (41 degrees Fahrenheit) shall be discarded if not sold 
within seven days; or 
(ii) 7 degrees Celsius (45 degrees Fahrenheit) shall be discarded if not sold 
within four days. 
(10) Time as a public health control. If time only, rather than time in 
conjunction with temperature, is used as the public health control for a working 
supply of potentially hazardous food before cooking, or for ready-to-eat 
potentially hazardous food that is displayed or held for service for immediate 
consumption: 
(A) the food shall be marked, labeled, tagged, or otherwise unmistakably 
identified to indicate the time which is four hours past the point when the food 
was removed from temperature control; 
(B) the food shall be cooked and served, served if a ready-to-eat food, or 
discarded within four hours of the time at which the food was removed from 
temperature control; 
(C) the food in unmarked containers or packages or marked to exceed a four hour 
limit shall be discarded; and 
(D) written procedures shall be maintained in the food establishment and made 
available to the regulatory authority upon request, to ensure compliance with: 
(i) subparagraphs (A)-(C) of this paragraph; and 
(ii) paragraph (4) of this subsection for food that is prepared, cooked, and 
refrigerated before time is used as a public health control. 
(o) Specialized processing methods. 
(1) Variance requirement for specialized processes. A food establishment shall 
obtain a variance as specified in sec.229.171(c)(1) and (2) of this title 
(relating to Compliance and Enforcement) before smoking or curing food; using 
food additives or adding components such as vinegar as a method of food 
preservation rather than as a method of flavor enhancement or to render a food 
nonpotentially hazardous; using a reduced oxygen method of packaging food except 
as specified in paragraph (2) of this subsection where a barrier to Clostridium 
botulinum in addition to refrigeration exists; or preparing food by another 
method that is determined by the regulatory authority to require a variance. 
(2) Reduced oxygen packaging, criteria. 
(A) A food establishment that packages food using a reduced oxygen packaging 
method shall have a HACCP Plan that contains the information specified under 
sec.229.171(d)(2)(D) of this title and that: 
(i) identifies the food to be packaged; 
(ii) limits the food packaged to a food that does not support the growth of 
Clostridium botulinum because it complies with one of the following: [sub]W)
of 0.91 or less; 
(II) has a hydrogen ion concentration (pH) of 4.6 or less;
(III) is a meat or poultry product cured at a food processing plant regulated by 
the U.S. Department of Agriculture or the department, and is received in an 
intact package; or 
(IV) is a food with a high level of competing organisms such as raw meat or raw 
poultry; 
(iii) specifies methods for maintaining food at 5 degrees Celsius (41 degrees 
Fahrenheit) or below; and 
(iv) describes how the packages shall be prominently and conspicuously labeled 
on the principal display panel in bold type on a contrasting background, with 
instructions to: 
(I) maintain the food at 5 degrees Celsius (41 degrees Fahrenheit) or below; and 
(II) discard the food if within 14 calendar days of its packaging if it is not 
served for on-premises consumption, or consumed if served or sold for off-
premises consumption. 
(v) limits the shelf life to no more than 14 calendar days from packaging to 
consumption or the original manufacturer's "sell by" or "use by" date, whichever 
occurs first; 
(vi) includes operational procedures that: 
(I) require employees contacting foods with bare hands to wash hands properly or 
utilize proper utensils; 
(II) identify a designated area and the method by which physical barriers or 
methods of separation of raw foods and ready-to-eat foods minimize cross 
contamination, and access to the processing equipment is restricted to 
responsible trained personnel familiar with the potential hazards of the 
operation; 
(III) delineate cleaning and sanitization procedures for food-contact surfaces; 
and 
(vii) describes the training program that ensures that the individual 
responsible for the reduced oxygen packaging operation understands the: 
(I) concepts required for a safe operation; 
(II) equipment and facilities; and 
(III) procedures specified in paragraph (2)(A)(vi) of this subsection and 
sec.229.171(d)(2)(D) of this title. 
(B) Except for fish that is frozen before, during, and after packaging, a food 
establishment may not package fish using a reduced oxygen packaging method. Some 
foods, such as hard cheeses, may not require a HACCP plan. 
(p) Food identity and accurate representation. 
(1) Standards of identity. Packaged food shall comply with standard of identity 
requirements in 21 CFR 131-169 and 9 CFR 319 Definitions and Standards of 
Identity or Composition, 9 CFR 381.156-381.171, 381.173 and 381.174 Standards of 
Identity for Poultry and Poultry Products, and the general requirements in 21 
CFR 130 Food Standards: General, and 9 CFR 319 Subpart A General. 
(2) Honestly presented. 
(A) Food shall be offered for human consumption in a way that does not mislead 
or misinform the consumer. 
(B) Food or color additives, colored overwraps, or lights may not be used to 
misrepresent the true appearance, color, or quality of food. 
(q) Labeling. 
(1) Food labels. 
(A) Food packaged in a food establishment shall be labeled according to law, 
including 21 CFR 101 Food Labeling, 9 CFR 317 Labeling, Marking Devices, and 
Containers, and 9 CFR 381 Subpart N Labeling and Containers. Label information 
shall include: 
(i) the common name of the food, or absent a common name, an adequately 
descriptive identity statement; 
(ii) if made from two or more ingredients, a list of ingredients in descending 
order of predominance by weight, including a declaration of artificial color or 
flavor and chemical preservatives, if contained in the food; 
(iii) an accurate declaration of the quantity of contents;
(iv) the name and place of business of the manufacturer, packer, or distributor; 
and 
(v) except as exempted in the Federal Food, Drug, and Cosmetic Act 
sec.403(Q)(3)-(5), nutrition labeling as specified in 21 CFR 101 - Food Labeling 
and 9 CFR 317 Subpart B - Nutrition Labeling. 
(B) Except as specified in paragraph (2)(C) of this subsection, food that is not 
packaged need not be labeled unless a health or nutrient content claim is made. 
(2) Other forms of information. 
(A) Consumer information, such as nutritional information, and consumer warnings 
if required by law, shall be provided. 
(B) Food establishment or manufacturers' dating information on foods may not be 
concealed or altered. 
(C) Bulk food that is available for consumer self-dispensing shall be 
prominently labeled with the following information in plain view of the 
consumer: 
(i) the manufacturer's or processor's label that was provided with the food; or 
(ii) a card, sign, or other method of notification that includes:
(I) the common name of the food; 
(II) a list of ingredients in order of predominance; 
(III) a declaration of artificial color or flavor and chemical preservatives, if 
contained in the food; and 
(IV) nutrition labeling if specified in 21 CFR 101 Food Labeling.
(D) Bulk, unpackaged foods which are apportioned to consumers with the 
assistance of food establishment personnel, including bakery products, need not 
be labeled if: 
(i) a health, nutrient content claim, or other claim is not made; 
(ii) the food is manufactured or prepared on the premises of the food 
establishment or a food processing plant that is owned by the same person and is 
licensed by the food regulatory agency that has primary jurisdiction; and 
(iii) ingredients contained in the food, including potential allergens, are 
provided to the consumer on request from a recipe book or by other means. 
(3) Menu claims. 
(A) If a nutrient content claim or health claim is made, such claims shall 
conform to the definitions of such terms found in 21 Code of Federal Regulations 
Part 101. 
(B) Claims must be capable of being substantiated. Substantiation may be based 
upon a recipe for the food, or a database developed and tested nationally and 
acceptable to the regulatory authority. Evidence of substantiation must be 
supplied to the regulatory authority upon request. 
(C) Nutritional information must be made available to the consumer upon request 
for any food for which a nutrient content claim or health claim is made. 
(r) Consumer advisory. Food establishments which deliver shellfish to a consumer 
for raw consumption shall inform consumers by brochures, deli-case or menu 
advisories, label statements, table tents, placards, or other effective written 
means of the significantly increased risk associated with certain especially 
vulnerable consumers eating such shellfish in raw or undercooked form. The 
language in the advisory shall be as follows unless otherwise approved by the 
Retail Foods Division or the Seafood Safety Division in the department in 
response to a written request from the food service establishment or the retail 
food store: THERE IS A RISK ASSOCIATED WITH CONSUMING RAW OYSTERS OR ANY RAW 
ANIMAL PROTEIN. IF YOU HAVE CHRONIC ILLNESS OF THE LIVER, STOMACH, OR BLOOD, OR 
HAVE IMMUNE DISORDERS, YOU ARE AT GREATEST RISK OF ILLNESS FROM RAW OYSTERS AND 
SHOULD EAT OYSTERS FULLY COOKED. IF UNSURE OF YOUR RISK, CONSULT YOUR PHYSICIAN. 
(s) Disposition, contaminated food. 
(1) Unsafe, adulterated, or not honestly presented food. A food that is unsafe, 
adulterated, or not honestly presented as specified in subsection (a) of this 
section shall be reconditioned according to a procedure approved by the 
department or discarded. 
(2) Food from unapproved source. Food that is not from an approved source as 
specified in subsection (b)(1)-(7) of this section is subject to detention by 
the regulatory authority or shall be discarded. 
(3) Contaminated ready-to-eat food. Ready-to-eat food that may have become 
contaminated by an employee who has been restricted or excluded as specified in 
sec.229.163(d)(2) of this title shall be discarded.
(4) Food contaminated by personal contact. Food that is contaminated by food 
employees, consumers, or other persons through contact with their hands, bodily 
discharges, such as nasal or oral discharges, or other means shall be discarded. 
(t) Donation of foods. 
(1) Previous service. Foods which have been previously served to a consumer may 
not be donated. 
(2) Potentially hazardous foods. A potentially hazardous food may be donated if: 
(A) the food has been kept at or above 60 degrees Celsius (140 degrees 
Fahrenheit) during hot holding and service, and subsequently refrigerated to 
meet the time and temperature requirements under subsection (n)(4) and (5) of 
this section; 
(B) the donor can substantiate that the food recipient has the facilities to 
meet the transportation, storage, and reheating requirements of these rules; 
(C) the temperature of the food is at or below 41 degrees Fahrenheit at the time 
of donation, and is protected from contamination; and
(D) if the food is to be transported by the recipient directly to a consumer, 
the recipient need meet only the transportation requirements, including holding 
temperatures, under these rules. 
(3) Labeling. Donated foods shall be labeled with the name of the food, the 
source of the food, and the date of preparation.
(4) Shelf life. Donated potentially hazardous foods may not exceed the shelf 
life for leftover foods outlined in these rules. 
(5) Damaged foods. Heavily rim or seam-dented canned foods, or packaged foods 
without the manufacturer's complete labeling, shall not be donated. 
(6) Distressed foods. Foods which are considered distressed, such as foods which 
have been subjected to fire, flooding, excessive heat, smoke, radiation, other 
environmental contamination, or prolonged storage shall not be directly donated 
for consumption by the consumer. Such foods may be sold or donated to a licensed 
food salvage establishment if permitted under the provisions of the Health and 
Safety Code, Chapter 432. 
(u) Additional safeguards, requirements for food establishments serving highly 
susceptible populations. 
(1) Apple juice beverages. Apple juice, apple cider, and other beverages 
containing apple juice served to a highly susceptible population shall be 
obtained pasteurized, or in a commercially sterile shelf-stable form in a 
hermetically sealed container. 
(2) Pasteurized eggs, egg products. Pasteurized shell eggs or pasteurized 
liquid, frozen, or dry eggs or egg products shall be substituted for raw shell 
eggs in the preparation of: 
(A) foods such as caesar salad, hollandaise or bernaise sauce, mayonnaise, egg 
nog, ice cream, and egg-fortified beverages; and 
(B) eggs that are broken, combined in a container, and not cooked immediately or 
eggs that are held before service following cooking.
(3) Food in unopened original packages. Food in an unopened original package may 
not be re-served. 
(4) Raw animal foods. Raw animal food such as raw or raw-marinated fish; raw 
molluscan shellfish; steak tartare; or a partially cooked food such as lightly 
cooked fish, rare meat, and soft-cooked eggs may not be served or offered for 
sale in a ready-to-eat form. 

sec.229.165. Equipment, Utensils, and Linens. 
(a) Multiuse materials. 
(1) Characteristics. Materials that are used in the construction of utensils and 
food-contact surfaces of equipment may not allow the migration of deleterious 
substances or impart colors, odors, or tastes to food and under normal use 
conditions shall be: 
(A) safe; 
(B) durable, corrosion-resistant, and nonabsorbent; 
(C) sufficient in weight and thickness to withstand repeated warewashing; 
(D) finished to have a smooth, easily cleanable surface; and
(E) resistant to pitting, chipping, crazing, scratching, scoring, distortion, 
and decomposition. 
(2) Cast iron, use limitation. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, cast 
iron may not be used for utensils or food-contact surfaces of equipment. 
(B) Cast iron may be used as a surface for cooking. 
(C) Cast iron may be used in utensils for serving food if the utensils are used 
only as part of an uninterrupted process from cooking through service. 
(3) Lead in ceramic, china, and crystal utensils, use limitation. Ceramic, 
china, crystal utensils, and decorative utensils such as hand painted ceramic or 
china that are used in contact with food shall be lead-free or contain levels of 
lead not exceeding the limits shown in the following table: 
Figure: 25 TAC sec.229.165(a)(3) 
(4) Copper, use limitation. 
(A) Except as specified in subparagraph (B) of this paragraph, copper and copper 
alloys such as brass may not be used in contact with a food that has a pH below 
6 such as vinegar, fruit juice, or wine or for a fitting or tubing installed 
between a backflow prevention device and a carbonator.
(B) Copper and copper alloys may be used in contact with beer brewing 
ingredients that have a pH below 6 in the prefermentation and fermentation steps 
of a beer brewing operation such as a brewpub or microbrewery. 
(5) Galvanized metal, use limitation. Galvanized metal may not be used for 
utensils or food-contact surfaces of equipment that are used in contact with 
acidic food. 
(6) Sponges, use limitation. Sponges may not be used in contact with cleaned and 
sanitized or in-use food-contact surfaces. 
(7) Lead in pewter alloys, use limitation. Pewter alloys containing lead in 
excess of 0.05% may not be used as a food contact surface.
(8) Lead in solder and flux, use limitation. Solder and flux containing lead in 
excess of 0.2% may not be used as a food contact surface.
(9) Wood, use limitation. 
(A) Except as specified in subparagraphs (B)-(D) of this paragraph, wood and 
wood wicker may not be used as a food-contact surface. 
(B) Hard maple or an equivalently hard, close-grained wood may be used for: 
(i) cutting boards; cutting blocks; bakers' tables; and utensils such as rolling 
pins, doughnut dowels, salad bowls, and chopsticks; and 
(ii) wooden paddles used in confectionery operations for pressure scraping 
kettles when manually preparing confections at a temperature of 110 degrees 
Celsius (230 degrees Fahrenheit) or above. 
(C) Whole, uncut, raw fruits and vegetables, and nuts in the shell may be kept 
in the wood shipping containers in which they were received, until the fruits, 
vegetables, or nuts are used. 
(D) If the nature of the food requires removal of rinds, peels, husks, or shells 
before consumption, the whole, uncut, raw food may be kept in: 
(i) untreated wood containers; or 
(ii) treated wood containers if the containers are treated with a preservative 
that meets the requirements specified in 21 CFR 178.3800, Preservatives for 
wood. 
(10) Nonstick coatings, use limitation. Multiuse kitchenware such as frying 
pans, griddles, sauce pans, cookie sheets, and waffle bakers that have a 
perfluorocarbon resin coating shall be used with nonscoring or nonscratching 
utensils and cleaning aids. 
(11) Nonfood-contact surfaces. Nonfood-contact surfaces of equipment that are 
exposed to splash, spillage, or other food soiling or that require frequent 
cleaning shall be constructed of a corrosion-resistant, nonabsorbent, and smooth 
material. 
(b) Single-service and single-use, characteristics. Materials that are used to 
make single-service and single-use articles: 
(1) may not: 
(A) allow the migration of deleterious substances; or 
(B) impart colors, odors, or tastes to food; and 
(2) shall be: 
(A) safe; and 
(B) clean. 
(c) Durability and strength. 
(1) Equipment and utensils. Equipment and utensils shall be designed and 
constructed to be durable and to retain their characteristic qualities under 
normal use conditions. 
(2) Food temperature measuring devices. Food temperature measuring devices may 
not have sensors or stems constructed of glass, except that thermometers with 
glass sensors or stems that are encased in a shatterproof coating such as candy 
thermometers may be used. 
(d) Cleanability. 
(1) Food-contact surfaces. Multi use food-contact surfaces shall be: 
(A) smooth; 
(B) free of breaks, open seams, cracks, chips, pits, and similar imperfections; 
(C) free of sharp internal angles, corners, and crevices;
(D) finished to have smooth welds and joints; and 
(E) accessible for cleaning and inspection by one of the following methods: 
(i) without being disassembled; 
(ii) by disassembling without the use of tools; or 
(iii) by easy disassembling with the use of handheld tools commonly available to 
maintenance and cleaning personnel such as mallets, screwdrivers, pliers, or 
wrenches that are kept near the equipment and are accessible for use. 
(2) Cleaned in place (CIP) equipment. 
(A) CIP equipment shall meet the characteristics specified under paragraph (1) 
of this subsection and shall be designed and constructed so that: 
(i) cleaning and sanitizing solutions circulate throughout a fixed system and 
contact all interior food-contact surfaces; and 
(ii) the system is self-draining or capable of being completely drained of 
cleaning and sanitizing solutions. 
(B) CIP equipment that is not designed to be disassembled for cleaning shall be 
designed with inspection access points to ensure that all interior food-contact 
surfaces throughout the fixed system are being effectively cleaned. 
(3) "V" threads, use limitation. "V" type threads may not be used on food-
contact surfaces. This paragraph does not apply to hot oil cooking or filtering 
equipment. 
(4) Hot oil filtering equipment. Hot oil filtering equipment shall meet the 
characteristics specified under paragraphs (1) or (2) of this subsection and 
shall be readily accessible for filter replacement and cleaning of the filter. 
(5) Can openers. Cutting or piercing parts of can openers shall be readily 
removable for cleaning and for replacement. 
(6) Nonfood-contact surfaces. Nonfood-contact surfaces shall be free of 
unnecessary ledges, projections, and crevices, and designed and constructed to 
allow easy cleaning and to facilitate maintenance. 
(7) Kick plates, removable. Kick plates, if used, shall be designed so that the 
areas behind them are accessible for inspection and cleaning by being: 
(A) removable by one of the methods specified in paragraph (1)(E) of this 
subsection or capable of being rotated open; and 
(B) removable or capable of being rotated open without unlocking equipment 
doors. 
(8) Ventilation hood systems, filters. Filters or other grease extracting 
equipment shall be designed to be readily removable for cleaning and replacement 
if not designed to be cleaned in place. 
(e) Accuracy of temperature measuring devices. 
(1) Temperature measuring device, food. 
(A) Food temperature measuring devices that are scaled only in Celsius or dually 
scaled in Celsius and Fahrenheit shall be accurate to plus or minus 1 degrees 
Celsius (1.8 degrees Fahrenheit) in the intended range of use. 
(B) Food temperature measuring devices that are scaled only in Fahrenheit shall 
be accurate to plus or minus 2 degrees Fahrenheit in the intended range of use. 
(2) Temperature measuring device, ambient air and water. 
(A) Ambient air and water temperature measuring devices that are scaled in 
Celsius or dually scaled in Celsius and Fahrenheit shall be designed to be 
easily readable and accurate to plus or minus 1.5 degrees Celsius (2.7 degrees 
Fahrenheit) in the intended range of use. 
(B) Ambient air and water temperature measuring devices that are scaled only in 
Fahrenheit shall be accurate to plus or minus 3 degrees Fahrenheit in the 
intended range of use. 
(3) Pressure measuring devices, mechanical warewashing equipment. Pressure 
measuring devices that display the pressures in the water supply line for the 
fresh hot water sanitizing rinse shall have increments of 7 kilopascals (1 pound 
per square inch) or smaller and shall be accurate to plus or minus 14 
kilopascals (plus or minus 2 pounds per square inch) in the 100-170 kilopascals 
(15-25 pounds per square inch) range. 
(f) Functionality of equipment. 
(1) Ventilation hood systems, drip prevention. Exhaust ventilation hood systems 
in food preparation and warewashing areas including components such as hoods, 
fans, guards, and ducting shall be designed to prevent grease or condensation 
from draining or dripping onto food, equipment, utensils, linens, and single-
service and single-use articles. 
(2) Equipment openings, closures and deflectors. 
(A) A cover or lid for equipment shall overlap the opening and be sloped to 
drain. 
(B) An opening located within the top of a unit of equipment that is designed 
for use with a cover or lid shall be flanged upward at least 5 millimeters (two-
tenths of an inch). 
(C) Except as specified under subparagraph (D) of this paragraph, fixed piping, 
temperature measuring devices, rotary shafts, and other parts extending into 
equipment shall be provided with a watertight joint at the point where the item 
enters the equipment. 
(D) If a watertight joint is not provided: 
(i) the piping, temperature measuring devices, rotary shafts, and other parts 
extending through the openings shall be equipped with an apron designed to 
deflect condensation, drips, and dust from food openings; and
(ii) the opening shall be flanged as specified under subparagraph (B) of this 
paragraph. 
(3) Dispensing equipment, protection of equipment and food. In equipment that 
dispenses or vends liquid food or ice in unpackaged form: 
(A) the delivery tube, chute, orifice, and splash surfaces directly above the 
container receiving the food shall be designed in a manner, such as with 
barriers, baffles, or drip aprons, so that drips from condensation and splash 
are diverted from the opening of the container receiving the food;
(B) the delivery tube, chute, and orifice shall be protected from manual contact 
such as by being recessed; 
(C) the delivery tube or chute and orifice of equipment used to vend liquid food 
or ice in unpackaged form to self-service consumers shall be designed so that 
the delivery tube or chute and orifice are protected from dust, insects, 
rodents, and other contamination by a self-closing door if the equipment is: 
(i) located in an outside area that does not otherwise afford the protection of 
an enclosure against the rain, windblown debris, insects, rodents, and other 
contaminants that are present in the environment; or 
(ii) available for self-service during hours when it is not under the full-time 
supervision of a food employee; and 
(D) the dispensing equipment actuating lever or mechanism and filling device of 
consumer self-service beverage dispensing equipment shall be designed to prevent 
contact with the lip-contact surface of glasses or cups that are refilled. 
(4) Vending machine, vending stage closure. The dispensing compartment of a 
vending machine including a machine that is designed to vend prepackaged snack 
food that is not potentially hazardous such as chips, party mixes, and pretzels 
shall be equipped with a self-closing door or cover if the machine is: 
(A) located in an outside area that does not otherwise afford the protection of 
an enclosure against the rain, windblown debris, insects, rodents, and other 
contaminants that are present in the environment; or 
(B) available for self-service during hours when it is not under the full-time 
supervision of a food employee. 
(5) Bearings and gear boxes, leakproof. Equipment containing bearings and gears 
that require lubricants shall be designed and constructed so that the lubricant 
cannot leak, drip, or be forced into food or onto food-contact surfaces. 
(6) Beverage tubing, separation. Beverage tubing and cold-plate beverage cooling 
devices may not be installed in contact with stored ice. This section does not 
apply to cold plates that are constructed integrally with an ice storage bin. 
(7) Ice units, separation of drains. Liquid waste drain lines may not pass 
through an ice machine or ice storage bin. 
(8) Condenser unit, separation. If a condenser unit is an integral component of 
equipment, the condenser unit shall be separated from the food and food storage 
space by a dustproof barrier. 
(9) Can openers on vending machines. Cutting or piercing parts of can openers on 
vending machines shall be protected from manual contact, dust, insects, rodents, 
and other contamination. 
(10) Molluscan shellfish tanks. 
(A) Except as specified under subparagraph (B) of this paragraph, molluscan 
shellfish life-support system display tanks may only be used to display 
shellfish that are not offered for human consumption and shall be conspicuously 
marked so that it is obvious to the consumer that the shellfish are for display 
only. 
(B) Molluscan shellfish life-support system display tanks that are used to store 
and display shellfish that are offered for human consumption shall be operated 
and maintained in accordance with a Hazard Analysis Critical Control Point 
(HACCP) Plan that: 
(i) is submitted by the permit holder and approved by the regulatory authority 
as specified under sec.229.171(c) of this title (relating to Compliance and 
Enforcement); and 
(ii) ensures that: 
(I) water used with fish other than molluscan shellfish does not flow into the 
molluscan tank; 
(II) the safety and quality of the shellfish as they were received are not 
compromised by use of the tank; and 
(III) the identity of the source of the shellstock is retained as specified 
under sec.229.164(d)(2) of this title (relating to Food), and the source 
information is displayed with the shellstock as required in sec.229.164(c)(9) of 
this title. 
(11) Vending machines, automatic shutoff.
(A) A machine vending potentially hazardous food shall have an automatic control 
that prevents the machine from vending food: 
(i) if there is a power failure, mechanical failure, or other condition that 
results in an internal machine temperature that cannot maintain food 
temperatures as specified under sec.229.164 of this title; and 
(ii) if a condition specified in clause (i) of this subparagraph occurs, until 
the machine is serviced and restocked with food that has been maintained at 
temperatures specified under sec.229.164 of this title. 
(B) The temperature specified for activation of the automatic shutoff within a 
machine vending potentially hazardous food may deviate from the temperature and 
for a time as follows: 
(i) in a refrigerated vending machine, at an ambient temperature of 7 degrees 
Celsius (45 degrees Fahrenheit) or more, for no more than 30 minutes immediately 
after the machine is filled, serviced, or restocked; or
(ii) in a hot holding vending machine, at an ambient temperature of less than 60 
degrees Celsius (140 degrees Fahrenheit), for no more than 120 minutes after the 
machine is filled, serviced, or restocked. 
(12) Temperature measuring devices. 
(A) In a mechanically-refrigerated or hot food storage unit, the sensor of a 
temperature measuring device shall be located to measure the air temperature in 
the warmest part of a mechanically-refrigerated unit and in the coolest part of 
a hot food storage unit. 
(B) Except as specified in subparagraph (C) of this paragraph, cold or hot 
holding equipment used for potentially hazardous food shall be designed to 
include and shall be equipped with at least one integral or permanently affixed 
temperature measuring device that is located to allow easy viewing of the 
device's temperature display. 
(C) Subparagraph (B) of this paragraph does not apply to equipment for which the 
placement of a temperature measuring device is not a practical means for 
measuring the ambient air surrounding the food because of the design, type, and 
use of the equipment, such as calrod units, heat lamps, cold plates, bainmaries, 
steam tables, insulated food transport containers, and salad bars.
(D) Temperature measuring devices shall be designed to be easily readable. 
(E) Food temperature measuring devices and water temperature measuring devices 
on warewashing machines shall have a numerical scale, printed record, or digital 
readout in increments no greater than 1 degree Celsius or 2 degrees Fahrenheit 
in the intended range of use. 
(13) Warewashing machine, data plate operating specifications. A warewashing 
machine shall be provided with an easily accessible and readable data plate 
affixed to the machine by the manufacturer that indicates the machine's design 
and operating specifications including the: 
(A) temperatures required for washing, rinsing, and sanitizing;
(B) pressure required for the fresh water sanitizing rinse unless the machine is 
designed to use only a pumped sanitizing rinse; and
(C) conveyor speed for conveyor machines or cycle time for stationary rack 
machines. 
(14) Warewashing machines, internal baffles. Warewashing machine wash and rinse 
tanks shall be equipped with baffles, curtains, or other means to minimize 
internal cross- contamination of the solutions in wash and rinse tanks.
(15) Warewashing machines, temperature measuring devices. A warewashing machine 
shall be equipped with a temperature measuring device that indicates the 
temperature of the water in each wash and rinse tank, and as the water enters 
the hot water sanitizing final rinse manifold or in the chemical sanitizing 
solution tank. 
(16) Manual warewashing equipment, heaters and baskets. If hot water is used for 
sanitization in manual warewashing operations, the sanitizing compartment of the 
sink shall be: 
(A) designed with an integral heating device that is capable of maintaining 
water at a temperature not less than 77 degrees Celsius (171 degrees 
Fahrenheit); and 
(B) provided with a rack or basket to allow complete immersion of equipment and 
utensils into the hot water. 
(17) Warewashing machines, sanitizer level indicator. A warewashing machine that 
uses a chemical for sanitization and that is installed after adoption of these 
rules shall be equipped with a device that indicates audibly or visually when 
more chemical sanitizer needs to be added. 
(18) Warewashing machines, flow pressure device. 
(A) Warewashing machines that provide a fresh hot water sanitizing rinse shall 
be equipped with a pressure gauge or similar device such as a transducer that 
measures and displays the water pressure in the supply line immediately before 
entering the warewashing machine. 
(B) If the flow pressure measuring device is upstream of the fresh hot water 
sanitizing rinse control valve, the device shall be mounted in a 6.4 millimeter 
or one-fourth inch Iron Pipe Size (IPS) valve. 
(C) Subparagraphs (A) and (B) of this paragraph do not apply to a machine that 
uses only a pumped or recirculated sanitizing rinse. 
(19) Warewashing sinks and drain boards, self-draining. Sinks and drain boards 
of warewashing sinks and machines shall be self-draining.
(20) Equipment compartments, drainage. Equipment compartments that are subject 
to accumulation of moisture due to conditions such as condensation, food or 
beverage drip, or water from melting ice shall be sloped to an outlet that 
allows complete draining. 
(21) Vending machines, liquid waste products. 
(A) Vending machines designed to store beverages that are packaged in containers 
made from paper products shall be equipped with diversion devices and retention 
pans or drains for container leakage. 
(B) Vending machines that dispense liquid food in bulk shall be: 
(i) provided with an internally mounted waste receptacle for the collection of 
drip, spillage, overflow, or other internal wastes; and
(ii) equipped with an automatic shutoff device that will place the machine out 
of operation before the waste receptacle overflows. 
(C) Shutoff devices specified in subparagraph (B)(ii) of this paragraph shall 
prevent water or liquid food from continuously running if there is a failure of 
a flow control device in the water or liquid food system or waste accumulation 
that could lead to overflow of the waste receptacle.
(22) Case lot handling equipment, moveability. Equipment, such as dollies, 
pallets, racks, and skids used to store and transport large quantities of 
packaged foods received from a supplier in a cased or over wrapped lot, shall be 
designed to be moved by hand or by conveniently available equipment such as hand 
trucks and forklifts. 
(23) Vending machine doors and openings. 
(A) Vending machine doors and access opening covers to food and container 
storage spaces shall be tight-fitting so that the space along the entire 
interface between the doors or covers and the cabinet of the machine, if the 
doors or covers are in a closed position, is no greater than 1.5 millimeters or 
one-sixteenth inch by: 
(i) being covered with louvers, screens, or materials that provide an equivalent 
opening of not greater than 1.5 millimeters or one-sixteenth inch. Screening of 
12 or more mesh to 2.5 centimeters (12 mesh to 1 inch) meets this section; 
(ii) being effectively gasketed; 
(iii) having interface surfaces that are at least 13 millimeters or one-half 
inch wide; or 
(iv) jambs or surfaces used to form an L-shaped entry path to the interface. 
(B) Vending machine service connection openings through an exterior wall of a 
machine shall be closed by sealants, clamps, or grommets so that the openings 
are no larger than 1.5 millimeters or one-sixteenth inch.
(24) Food equipment certification, classification, acceptability. Food equipment 
that is certified or classified for sanitation by an American National Standards 
Institute (ANSI)-accredited certification program will be deemed to comply with 
subsections (a)-(f) of this section.
(g) Equipment, numbers and capacities. 
(1) Cooling, heating, and holding capacities. Equipment for cooling and heating 
food, and holding cold and hot food, shall be sufficient in number and capacity 
to provide food temperatures as specified under sec.229.164 of this title. 
(2) Manual warewashing, sink compartment requirements.
(A) Except as specified in subparagraph (C) of this paragraph, a sink with at 
least three compartments shall be provided for manually washing, rinsing, and 
sanitizing equipment and utensils. 
(B) Sink compartments shall be large enough to accommodate immersion of the 
largest equipment and utensils. If equipment or utensils are too large for the 
warewashing sink, a warewashing machine or alternative equipment as specified in 
subparagraph (C) of this paragraph shall be used.
(C) Alternative manual warewashing equipment may be used when there are special 
cleaning needs or constraints and the regulatory authority has approved the use 
of the alternative equipment. Alternative manual warewashing equipment may 
include: 
(i) high-pressure detergent sprayers; 
(ii) low- or line-pressure spray detergent foamers; 
(iii) other task-specific cleaning equipment; 
(iv) brushes or other implements; 
(v) two-compartment sinks as specified under subparagraph
(D) and (E) of this paragraph; or 
(vi) receptacles that substitute for the compartments of a multi compartment 
sink. 
(D) Before a two-compartment sink is used: 
(i) it must be approved by the regulatory authority; and 
(ii) the nature of warewashing shall be limited to batch operations for cleaning 
kitchenware such as between cutting one type of raw meat and another or cleanup 
at the end of a shift and: 
(I) a limited number of items shall be cleaned; 
(II) the cleaning and sanitizing solutions shall be made up immediately before 
use and drained immediately after use; 
(III) a detergent-sanitizer shall be used to sanitize and shall be applied as 
specified under subsection (k)(15) of this section; or
(IV) a hot water sanitization immersion step shall be used as specified under 
subsection (o)(6)(C) of this section. 
(E) A two-compartment sink may not be used for warewashing operations where 
cleaning and sanitizing solutions are used for a continuous or intermittent flow 
of kitchenware or tableware in an ongoing warewashing process. 
(3) Drain boards. Drain boards, utensil racks, or tables large enough to 
accommodate all soiled and cleaned items that may accumulate during hours of 
operation shall be provided for necessary utensil holding before cleaning and 
after sanitizing. 
(4) Ventilation hood systems, adequacy. Ventilation hood systems and devices 
shall be sufficient in number and capacity to prevent grease or condensation 
from collecting on walls and ceilings. 
(5) Clothes washers and dryers. 
(A) Except as specified in subparagraph (B) of this paragraph, if work clothes 
or linens are laundered on the premises, a mechanical clothes washer and dryer 
shall be provided and used. 
(B) If on-premises laundering is limited to wiping cloths intended to be used 
moist, or wiping cloths are air-dried as specified under subsection (v)(2) of 
this section, a mechanical clothes washer and dryer need not be provided. 
(h) Utensils, temperature measuring devices, and testing devices.
(1) Utensils, consumer self-service. A food dispensing utensil shall be 
available for each display container displayed at a consumer self-service unit 
such as a buffet or salad bar. 
(2) Food temperature measuring devices. Food temperature measuring devices shall 
be provided where required and readily accessible for use in ensuring attainment 
and maintenance of food temperatures as specified under sec.229.164 of this 
title. 
(3) Temperature measuring devices, manual warewashing. In manual warewashing 
operations, a temperature measuring device shall be provided and readily 
accessible for frequently measuring the washing and sanitizing temperatures. 
(4) Sanitizing solutions, testing devices. A test kit or other device that 
accurately measures the concentration in milligrams per liter (mg/L) of 
sanitizing solutions shall be provided and readily available for use. 
(i) Location of equipment, clothes washers and dryers, and storage cabinets. 
(1) Location requirements. Except as specified in paragraph (2) of this 
subsection, equipment, a cabinet used for the storage of food, or a cabinet that 
is used to store cleaned and sanitized equipment, utensils, laundered linens, 
and single-service and single-use articles may not be located:
(A) in locker rooms; 
(B) in toilet rooms; 
(C) in garbage rooms; 
(D) in mechanical rooms; 
(E) under sewer lines that are not shielded to intercept potential drips; 
(F) under leaking water lines including leaking automatic fire sprinkler heads 
or under lines on which water has condensed; 
(G) under open stairwells; or 
(H) under other sources of contamination. 
(2) Linen, single-service, single-use item exception. A storage cabinet used for 
linens or single-service or single-use articles may be stored in a locker room. 
(3) Clothes washer and dryer location requirements. If a mechanical clothes 
washer or dryer is provided, it shall be located so that the washer or dryer is 
protected from contamination and only where there is no exposed food; clean 
equipment, utensils, and linens; and unwrapped single-service and single-use 
articles. 
(j) Installation, fixed equipment. 
(1) Fixed equipment, spacing or sealing. 
(A) A unit of equipment that is fixed because it is not easily movable shall be 
installed so that it is: 
(i) spaced to allow access for cleaning along the sides, behind, and above the 
unit; 
(ii) spaced from adjoining equipment, walls, and ceilings a distance of not more 
than 1 millimeter or one thirty-second inch; or 
(iii) sealed to adjoining equipment or walls, if the unit is exposed to spillage 
or seepage. 
(B) Table-mounted equipment that is not easily movable shall be installed to 
allow cleaning of the equipment and areas underneath and around the equipment by 
being: 
(i) sealed to the table; or 
(ii) elevated on legs as specified under paragraph (2)(D) of this subsection. 
(2) Fixed equipment, elevation or sealing.
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, floor- 
mounted equipment that is not easily movable shall be sealed to the floor or 
elevated on legs that provide at least a 15 centimeter (6 inch) clearance 
between the floor and the equipment. 
(B) If no part of the floor under the floor-mounted equipment is more than 15 
centimeters (6 inches) from the point of cleaning access, the clearance space 
may be only 10 centimeters (4 inches). 
(C) This section does not apply to display shelving units, display refrigeration 
units, and display freezer units located in the consumer shopping areas of a 
retail food store, if the floor under the units is maintained clean. 
(D) Except as specified in subparagraph (E) of this paragraph, table-mounted 
equipment that is not easily movable shall be elevated on legs that provide at 
least a 10 centimeter (4 inch) clearance between the table and the equipment. 
(E) The clearance space between the table and table-mounted equipment may be: 
(i) 7.5 centimeters (3 inches) if the horizontal distance of the table top under 
the equipment is no more than 50 centimeters (20 inches) from the point of 
access for cleaning; or 
(ii) 5 centimeters (2 inches) if the horizontal distance of the table top under 
the equipment is no more than 7.5 centimeters (3 inches) from the point of 
access for cleaning. 
(k) Equipment, maintenance and operation. 
(1) Good repair and proper adjustment. 
(A) Equipment shall be maintained in a state of repair and condition that meets 
the requirements specified in subsections (a) and (b).
(B) Equipment components such as doors, seals, hinges, fasteners, and kick 
plates shall be kept intact, tight, and adjusted in accordance with 
manufacturers' specifications. 
(C) Cutting or piercing parts of can openers shall be kept sharp to minimize the 
creation of metal fragments that can contaminate food when the container is 
opened. 
(2) Cutting surfaces. Surfaces such as cutting blocks and boards that are 
subject to scratching and scoring shall be resurfaced if they can no longer be 
effectively cleaned and sanitized, or discarded if they are not capable of being 
resurfaced. 
(3) Microwave ovens. Microwave ovens shall meet the safety standards specified 
in 21 CFR 1030.10, Microwave Ovens. 
(4) Warewashing equipment, cleaning frequency. A warewashing machine; the 
compartments of sinks, basins, or other receptacles used for washing and rinsing 
equipment, utensils, or raw foods, or laundering wiping cloths; and drain boards 
or other equipment used to substitute for drain boards as specified in 
subsection (g)(3) of this section shall be cleaned: 
(A) before use; 
(B) throughout the day at a frequency necessary to prevent recontamination of 
equipment and utensils and to ensure that the equipment performs its intended 
function; and 
(C) if used, at least every 24 hours. 
(5) Warewashing machines, manufacturers' operating instructions. 
(A) A warewashing machine and its auxiliary components shall be operated in 
accordance with the machine's data plate and other manufacturer's instructions. 
(B) A warewashing machine's conveyor speed or automatic cycle times shall be 
maintained accurately timed in accordance with manufacturer's specifications. 
(6) Warewashing sinks, use limitation. 
(A) A warewashing sink may not be used for handwashing or dumping mop water. 
(B) A warewashing sink may be used to wash wiping cloths, wash produce, or thaw 
food if the sink is cleaned as specified under paragraph (4) of this subsection 
before and after each time it is used to wash wiping cloths or wash produce or 
thaw food. Sinks used to wash or thaw food shall be sanitized as specified under 
subsections (p)-(r) of this section before and after using the sink to wash 
produce or thaw food. 
(7) Warewashing equipment, cleaning agents. The wash compartment of a sink, 
mechanical warewasher, or wash receptacle of alternative manual warewashing 
equipment as specified in subsection (g)(2)(C) of this section, shall, when used 
for warewashing, contain a wash solution of soap, detergent, acid cleaner, 
alkaline cleaner, degreaser, abrasive cleaner, or other cleaning agent according 
to the cleaning agent manufacturer's label instructions. 
(8) Warewashing equipment, clean solutions. The wash, rinse, and sanitize 
solutions shall be maintained clean. 
(9) Manual warewashing equipment, wash solution temperature. The temperature of 
the wash solution in manual warewashing equipment shall be maintained at not 
less than 43 degrees Celsius (110 degrees Fahrenheit) unless a different 
temperature is specified on the cleaning agent manufacturer's label 
instructions. 
(10) Mechanical warewashing equipment, wash solution temperature. 
(A) The temperature of the wash solution in spray type warewashers that use hot 
water to sanitize may not be less than: 
(i) for a stationary rack, single temperature machine, 74 degrees Celsius (165 
degrees Fahrenheit); 
(ii) for a single tank, conveyor, dual temperature machine, 71 degrees Celsius 
(160 degrees Fahrenheit); 
(iii) for a stationary rack, dual temperature machine, 66 degrees Celsius (150 
degrees Fahrenheit); or 
(iv) for a multitank, conveyor, multi temperature machine, 66 degrees Celsius 
(150 degrees Fahrenheit). 
(B) The temperature of the wash solution in spray-type warewashers that use 
chemicals to sanitize may not be less than 49 degrees Celsius (120 degrees 
Fahrenheit). 
(11) Manual warewashing equipment, hot water sanitization temperatures. If 
immersion in hot water is used for sanitizing in a manual operation, the 
temperature of the water shall be maintained at 77 degrees Celsius (171 degrees 
Fahrenheit) or above. 
(12) Mechanical warewashing equipment, hot water sanitization temperatures. 
(A) Except as specified in subparagraph (B) of this paragraph, in a mechanical 
operation, the temperature of the fresh hot water sanitizing rinse as it enters 
the manifold may not be more than 90 degrees Celsius (194 degrees Fahrenheit), 
or less than: 
(i) for a stationary rack, single temperature machine, 74 degrees Celsius (165 
degrees Fahrenheit); or 
(ii) for all other machines, 82 degrees Celsius (180 degrees Fahrenheit). 
(B) The maximum temperature specified under subparagraph (A) of this paragraph 
does not apply to the high pressure and temperature systems with wand-type, 
hand-held spraying devices used for the in-place cleaning and sanitizing of 
equipment such as meat saws. 
(13) Mechanical warewashing equipment, sanitization pressure. The flow pressure 
of the fresh hot water sanitizing rinse in a warewashing machine may not be less 
than 100 kilopascals (15 pounds per square inch) or more than 170 kilopascals 
(25 pounds per square inch) as measured in the water line immediately downstream 
or upstream from the fresh hot water sanitizing rinse control valve. 
(14) Manual and mechanical warewashing equipment, chemical sanitization - 
temperature, water activity (pH), concentration, and hardness. A chemical 
sanitizer used in a sanitizing solution for a manual or mechanical operation at 
exposure times specified in subsection (r)(3) of this section shall be listed in 
21 CFR 178.1010, Sanitizing Solutions, shall be used in accordance with the U.S. 
Environmental Protection Agency (EPA)-approved manufacturer's label use 
instructions, and shall be used as follows:
(A) a chlorine solution shall have a minimum temperature based on the 
concentration and pH of the solution as listed in the following table:
Figure: 25 TAC sec.229.165(k)(14)(A) 
(B) an iodine solution shall have a: 
(i) minimum temperature of 24 degrees Celsius (75 degrees Fahrenheit); 
(ii) pH of 5.0 or less, unless the manufacturer's use directions included in the 
labeling specify a higher pH limit of effectiveness; and 
(iii) concentration between 12.5 mg/L and 25 mg/L. 
(C) a quaternary ammonium compound solution shall: 
(i) have a minimum temperature of 24 degrees Celsius (75 degrees Fahrenheit); 
(ii) have a concentration as specified under sec.229.168(f)(1) of this title 
(relating to Poisonous or Toxic Materials) and as indicated by the 
manufacturer's use directions included in the labeling; and 
(iii) be used only in water with 500 mg/L hardness or less or in water having a 
hardness no greater than specified by the manufacturer's label. 
(D) other solutions of the chemicals specified in subparagraphs (A)-(C) of this 
paragraph may be used if it can be demonstrated that sanitization is achieved 
and they are approved by the regulatory authority; or 
(E) other chemical sanitizers may be used if approved by the regulatory 
authority and applied in accordance with the manufacturer's use directions 
included in the labeling. 
(15) Manual warewashing equipment, chemical sanitization using detergent-
sanitizers. If a detergent-sanitizer is used to sanitize in a cleaning and 
sanitizing procedure where there is no distinct water rinse between the washing 
and sanitizing steps, the agent applied in the sanitizing step shall be the same 
detergent-sanitizer that is used in the washing step.
(16) Warewashing equipment, determining chemical sanitizer concentration. 
Concentration of the sanitizing solution shall be accurately determined by using 
a test kit or other device. 
(l) Utensils and temperature measuring devices. 
(1) Good repair and proper calibration. 
(A) Utensils shall be maintained in a state of repair or condition that complies 
with the requirements specified in subsections (a)-(f) of this section or shall 
be discarded. 
(B) Temperature measuring devices shall be calibrated in accordance with 
manufacturer's specifications as necessary to ensure their accuracy.
(C) Ambient air temperature, water pressure, and water temperature measuring 
devices shall be maintained in good repair and be accurate within the indicated 
range of use. 
(2) Single-service and single-use articles, required use. A food establishment 
without facilities specified in subsections (m)-(r) of this section for cleaning 
and sanitizing kitchenware and tableware shall provide only single-use 
kitchenware, single-service articles, and single-use articles for use by food 
employees and single-service articles for use by the consumer. 
(3) Single-service and single-use articles, bulk milk dispensing tubes, reuse 
limitation. 
(A) Single-service and single-use articles may not be reused.
(B) The bulk milk container dispensing tube shall be cut on the diagonal leaving 
no more than one inch protruding from the chilled dispensing head. 
(4) Shells, use limitation. Mollusk and crustacea shells may not be used more 
than once as serving containers. If the shell is not the original shell from 
which the mollusc or crustacea was harvested, the shell must be sanitized prior 
to use to preclude contamination of other foods. Shells specifically purchased 
for use as serving containers, which contain any evidence of filth or debris, 
are prohibited from use. 
(m) Cleaning of equipment and utensils. 
(1) Equipment, food-contact surfaces, and utensils. 
(A) Equipment food-contact surfaces and utensils shall be clean to sight and 
touch. 
(B) The food-contact surfaces of cooking equipment and pans shall be kept free 
of encrusted grease deposits and other soil accumulations.
(2) Nonfood-contact surfaces. Nonfood-contact surfaces of equipment shall be 
kept free of an accumulation of dust, dirt, food residue, and other debris. 
(n) Frequency of cleaning. 
(1) Equipment food-contact surfaces and utensils. 
(A) Equipment food-contact surfaces and utensils shall be cleaned: 
(i) except as specified in subparagraph (B) of this paragraph, before each use 
with a different type of raw animal food such as beef, fish, lamb, pork, or 
poultry; 
(ii) each time there is a change from working with raw foods to working with 
ready-to-eat foods; 
(iii) between uses with raw fruits or vegetables and with potentially hazardous 
food; 
(iv) before using or storing a food temperature measuring device; and 
(v) at any time during the operation when contamination may have occurred. 
(B) Subparagraph (A)(i) of this paragraph does not apply if raw animal foods 
that require cooking temperatures specified under sec.229.164(k)(1)(A)(iii) of 
this title are prepared after foods that require cooking temperatures specified 
under sec.229.164(k)(1)(A)(i) and (ii) and (B) of this title. 
(C) Except as specified in subparagraph (D) of this paragraph, if used with 
potentially hazardous food, equipment food-contact surfaces and utensils shall 
be cleaned throughout the day at least every four hours. 
(D) Surfaces of utensils and equipment contacting potentially hazardous food may 
be cleaned less frequently than every four hours if: 
(i) in storage, containers of potentially hazardous food and their contents are 
maintained at temperatures specified under sec.229.164 of this title and the 
containers are cleaned when they are empty; 
(ii) utensils and equipment are used to prepare food in a refrigerated room 
maintained at 50 degrees Fahrenheit or less, and food under preparation is 
maintained according to the times and at temperatures specified under 
sec.229.164 of this title, and the utensils and equipment are cleaned at least 
every 12 hours; 
(iii) containers in serving situations such as salad bars, delis, and cafeteria 
lines hold ready-to-eat potentially hazardous food that is maintained at the 
temperatures specified under sec.229.164 of this title, are intermittently 
combined with additional supplies of the same food that is at the required 
temperature, and the containers are cleaned at least every 24 hours; 
(iv) temperature measuring devices are maintained in contact with foods, such as 
when left in a container of deli food or in a roast, held at temperatures 
specified under sec.229.164 of this title; 
(v) equipment is used for storage of packaged or unpackaged foods such as a 
reach-in refrigerator and the equipment is cleaned at a frequency necessary to 
preclude accumulation of soil residues; or 
(vi) the regulatory authority approves the cleaning schedule based on 
consideration of: 
(I) characteristics of the equipment and its use; 
(II) the type of food involved; 
(III) the amount of food residue accumulation; and 
(IV) the temperature at which the food is maintained during the operation and 
the potential for the rapid and progressive multiplication of pathogenic or 
toxigenic microorganisms that are capable of causing foodborne disease. 
(E) Except when dry cleaning methods are used as specified under subsection 
(o)(1) of this section, surfaces of utensils and equipment contacting food that 
is not potentially hazardous shall be cleaned: 
(i) at any time when contamination may have occurred; 
(ii) at least every 24 hours for iced tea dispensers and consumer self-service 
utensils such as tongs, scoops, or ladles; 
(iii) before restocking consumer self-service equipment and utensils such as 
condiment dispensers and display containers; or 
(iv) equipment such as ice bins and beverage dispensing nozzles and enclosed 
components of equipment such as ice makers, beverage dispensing lines or tubes, 
coffee bean grinders, and water vending equipment: 
(I) at a frequency specified by the manufacturer; or 
(II) absent manufacturer specifications, at a frequency necessary to preclude 
accumulation of soil or mold. 
(2) Cooking and baking equipment. 
(A) The food-contact surfaces of cooking and baking equipment shall be cleaned 
at least every 24 hours. This section does not apply to hot oil cooking and 
filtering equipment if it is cleaned as specified under paragraph (1)(D)(vi) of 
this subsection. 
(B) The cavities and door seals of microwave ovens shall be cleaned at least 
every 24 hours by using the manufacturer's recommended cleaning procedure. 
(3) Nonfood-contact surfaces. Nonfood-contact surfaces of equipment shall be 
cleaned at a frequency necessary to preclude accumulation of soil residues. 
(o) Methods of cleaning. 
(1) Dry cleaning. 
(A) If used, dry cleaning methods such as brushing, scraping, and vacuuming 
shall contact only surfaces that are soiled with dry food residues that are not 
potentially hazardous. 
(B) Cleaning equipment used in dry cleaning food-contact surfaces may not be 
used for any other purpose. 
(2) Precleaning. 
(A) Food debris on equipment and utensils shall be scrapped over a waste 
disposal unit, scupper, or garbage receptacle or shall be removed in a 
warewashing machine with a prewash cycle. 
(B) If necessary for effective cleaning, utensils and equipment shall be 
preflushed, presoaked, or scrubbed with abrasives. 
(3) Loading of soiled items, warewashing machines. Soiled items to be cleaned in 
a warewashing machine shall be loaded into racks, trays, or baskets or onto 
conveyors in a position that exposes the items to the unobstructed spray from 
all cycles and allows the items to drain.
(4) Wet cleaning.
(A) Equipment food-contact surfaces and utensils shall be effectively washed to 
remove or completely loosen soils by using the manual or mechanical means 
necessary such as the application of detergents containing wetting agents and 
emulsifiers; acid, alkaline, or abrasive cleaners; hot water; brushes; scouring 
pads; high-pressure sprays; or ultrasonic devices.
(B) The washing procedures selected shall be based on the type and purpose of 
the equipment or utensil, and on the type of soil to be removed. 
(5) Washing, procedures for alternative manual warewashing equipment. If washing 
in sink compartments or a warewashing machine is impractical such as when the 
equipment is fixed or the utensils are too large, washing shall be done by using 
alternative manual warewashing equipment as specified in subsection (g)(2)(C) of 
this section in accordance with the following procedures:
(A) equipment shall be disassembled as necessary to allow access of the 
detergent solution to all parts; 
(B) equipment components and utensils shall be scrapped or rough cleaned to 
remove food particle accumulation; and 
(C) equipment and utensils shall be washed as specified under paragraph (4)(A) 
of this subsection. 
(6) Rinsing procedures. Washed utensils and equipment shall be rinsed so that 
abrasives are removed and cleaning chemicals are removed or diluted through the 
use of water or a detergent-sanitizer solution by using one of the following 
procedures: 
(A) use of a distinct, separate water rinse after washing and before sanitizing 
if using: 
(i) a three-compartment sink; 
(ii) alternative manual warewashing equipment equivalent to a three-compartment 
sink as specified under subsection (g)(2)(C) of this section; or 
(iii) a three-step washing, rinsing, and sanitizing procedure in a warewashing 
system for CIP equipment. 
(B) use of a detergent-sanitizer as specified under subsection (k)(15) of this 
section if using: 
(i) alternative warewashing equipment as specified under subsection (g)(2)(C) of 
this section that is approved for use with a detergent-sanitizer; or 
(ii) a warewashing system for CIP equipment. 
(C) use of a nondistinct water rinse that is integrated in the hot water 
sanitization immersion step of a two-compartment sink operation;
(D) if using a warewashing machine that does not recycle the sanitizing solution 
as specified in subparagraph (E) of this paragraph, or alternative manual 
warewashing equipment such as sprayers, use of a nondistinct water rinse: 
(i) that is integrated in the application of the sanitizing solution; and 
(ii) washed immediately after each application; or 
(E) if using a warewashing machine that recycles the sanitizing solution for use 
in the next wash cycle, use of a nondistinct water rinse that is integrated in 
the application of the sanitizing solution. 
(7) Returnables, cleaning for refilling. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, returned 
empty containers intended for cleaning and refilling with food shall be cleaned 
and refilled in a regulated food processing plant. 
(B) A food-specific container for beverages may be refilled at a food 
establishment if: 
(i) only a beverage that is not a potentially hazardous food is used as 
specified under sec.229.164(h)(7)(A) of this title; 
(ii) the design of the container and of the rinsing equipment and the nature of 
the beverage, when considered together, allow effective cleaning at home or in 
the food establishment; 
(iii) facilities for rinsing before refilling returned containers with fresh, 
hot water that is under pressure and not recirculated are provided as part of 
the dispensing system; 
(iv) the consumer-owned container returned to the food establishment for 
refilling is refilled for sale or service only to the same consumer; and
(v) the container is refilled by: 
(I) an employee of the food establishment; or 
(II) the owner of the container if the beverage system includes a contamination-
free transfer process that can not be bypassed by the container owner. 
(C) Consumer-owned containers that are not food-specific may be filled at a 
water vending machine or system. 
(p) Sanitization, food-contact surfaces and utensils. Equipment food-contact 
surfaces and utensils shall be sanitized. 
(q) Sanitization frequency, before use after cleaning. Utensils and food-contact 
surfaces of equipment shall be sanitized before use after cleaning. 
(r) Sanitization methods, hot water and chemical. After being cleaned, equipment 
food-contact surfaces and utensils shall be sanitized in:
(1) hot water manual operations by immersion for at least 30 seconds as 
specified under subsection (k)(11) of this section; 
(2) hot water mechanical operations by being cycled through equipment that is 
set up as specified under subsection (k)(5), (12) and (13) of this section and 
achieving a utensil surface temperature of 71 degrees Celsius (160 degrees 
Fahrenheit) as measured by an irreversible registering temperature indicator; 
(3) chemical manual or mechanical operations, including the application of 
sanitizing chemicals by immersion, manual swabbing, brushing, or pressure 
spraying methods, using a solution as specified under subsection (k)(14) of this 
section by providing: 
(A) except as specified in subparagraph (B) of this paragraph, an exposure time 
of at least 10 seconds for a chlorine solution as specified in subsection 
(k)(14)(A) of this section; 
(B) an exposure time of at least 7 seconds for a chlorine solution of 50 mg/L 
that has a pH of 10 or less and a temperature of at least 38 degrees Celsius 
(100 degrees Fahrenheit) or a pH of 8 or less and a temperature of at least 24 
degrees Celsius (75 degrees Fahrenheit); 
(C) an exposure time of at least 30 seconds for other chemical sanitizer 
solutions; or 
(D) an exposure time used in relationship with a combination of temperature, 
concentration, and pH that, when evaluated for efficacy, yields sanitization as 
defined in sec.229.162 of this title (relating to Definitions).
(s) Laundering, clean linens. Clean linens shall be free from food residues and 
other soiling matter. 
(t) Laundering, frequency. 
(1) Linens. Linens that do not come in direct contact with food shall be 
laundered between operations if they become wet, sticky, or visibly soiled. 
(2) Cloth gloves. Cloth gloves as specified in sec.229.164(h)(5)(D) of this 
title shall be laundered before being used with a different type of raw animal 
food such as beef, lamb, pork, and fish. 
(3) Certain linens. Linens that are used as specified in sec.229.164(h)(4) of 
this title and cloth napkins shall be laundered between each use. 
(4) Wet wiping cloths. Wet wiping cloths shall be laundered before being used 
with a fresh solution of cleanser or sanitizer. 
(5) Dry wiping cloths. Dry wiping cloths shall be laundered as necessary to 
prevent contamination of food and clean serving utensils.
(u) Laundering, methods.
(1) Storage of soiled linens. Soiled linens shall be kept in clean, nonabsorbent 
receptacles or clean, washable laundry bags and stored and transported to 
prevent contamination of food, clean equipment, clean utensils, and single-
service and single-use articles. 
(2) Mechanical washing. 
(A) Except as specified in subparagraph (B) of this paragraph, linens shall be 
mechanically washed. 
(B) In food establishments in which only wiping cloths are laundered as 
specified in (g)(5)(B) of this section, the wiping cloths may be laundered in a 
mechanical washer, a sink designated only for laundering wiping cloths, or a 
warewashing or food preparation sink that is cleaned as specified under 
subsection (k)(4) of this section. 
(3) Use of laundry facilities. 
(A) Except as specified in subparagraph (B) of this paragraph, laundry 
facilities on the premises of a food establishment shall be used only for the 
washing and drying of items used in the operation of the establishment.
(B) Separate laundry facilities located on the premises for the purpose of 
general laundering such as for institutions providing boarding and lodging may 
also be used for laundering food establishment items. 
(v) Drying, equipment and utensils. 
(1) Equipment and utensils, air-drying required. After cleaning and sanitizing, 
equipment and utensils: 
(A) shall be air-dried or used after adequate draining as specified in paragraph 
(a) of 21 CFR 178.1010, Sanitizing Solutions, before contact with food; and 
(B) may be polished, after air-drying, with cloths that are maintained clean and 
dry, provided the cloths are used for no other purpose.
(2) Wiping cloths, air-drying locations. Wiping cloths laundered in a food 
establishment that does not have a mechanical clothes dryer as specified in 
subsection (g)(5)(B) of this section shall be air-dried in a location and in a 
manner that prevents contamination of food, equipment, utensils, linens, and 
single-service and single-use articles and the wiping cloths. This section does 
not apply if wiping cloths are stored after laundering in a sanitizing solution 
as specified under subsection (k)(14) of this section.
(w) Lubricating and reassembling of food-contact surfaces, equipment. 
(1) Food-contact surfaces. Lubricants shall be applied to food-contact surfaces 
that require lubrication in a manner that does not contaminate food-contact 
surfaces. 
(2) Equipment. Equipment shall be reassembled so that food-contact surfaces are 
not contaminated. 
(x) Storage. 
(1) Equipment, utensils, linens, and single-service and single-use articles. 
(A) Except as specified in subparagraph (D) of this paragraph, cleaned equipment 
and utensils, laundered linens, and single-service and single-use articles shall 
be stored: 
(i) in a clean, dry location; 
(ii) where they are not exposed to splash, dust, or other ontamination; and 
(iii) at least 15 centimeters (6 inches) above the floor.
(B) Clean equipment and utensils shall be stored as specified under subparagraph 
(A) of this paragraph and shall be sorted:
(i) in a self-draining position that permits air-drying; and
(ii) covered or inverted. 
(C) Single-service and single-use articles shall be stored as specified under 
subparagraph (A) of this paragraph and shall be kept in the original protective 
package or stored by using other means that afford protection from contamination 
until used. 
(D) Items that are kept in closed packages may be stored less than 15 
centimeters (6 inches) above the floor on dollies, pallets, racks, and skids 
that are designed as provided under subsection (f)(21) of this section.
(2) Storage prohibitions. 
(A) Except as specified in subparagraph (B) of this paragraph, cleaned and 
sanitized equipment, utensils, laundered linens, and single-service and single-
use articles may not be stored: 
(i) in locker rooms; 
(ii) in toilet rooms; 
(iii) in garbage rooms; 
(iv) in mechanical rooms; 
(v) under sewer lines that are not shielded to intercept potential drips; 
(vi) under leaking water lines including leaking automatic fire sprinkler heads 
or under lines on which water has condensed; 
(vii) under open stairwells; or 
(viii) under other sources of contamination. 
(B) Laundered linens and single-service and single-use articles that are 
packaged or in a facility such as a cabinet may be stored in a locker room. 
(y) Handling of utensils, single-service articles. 
(1) Kitchenware and tableware. 
(A) Single-service and single-use articles and cleaned and sanitized utensils 
shall be handled, displayed, and dispensed so that contamination of food and 
lip-contact surfaces is prevented. 
(B) Knives, forks, and spoons that are not prewrapped shall be presented so that 
only the handles are touched by employees and by consumers if consumer self-
service is provided. 
(C) Except as specified under subparagraph (B) of this paragraph, single-service 
articles that are intended for food- or lip-contact shall be furnished for 
consumer self-service with the original individual wrapper intact or from an 
approved dispenser. 
(2) Soiled and clean tableware. Soiled tableware shall be removed from consumer 
eating and drinking areas and handled so that clean tableware is not 
contaminated. 
(3) Preset tableware. If tableware is preset: 
(A) it shall be protected from contamination by being wrapped, covered, or 
inverted; 
(B) exposed and unused settings shall be removed when a consumer is seated; or 
(C) exposed, unused settings shall be cleaned and sanitized before further use 
if the settings are not removed when a consumer is seated.

sec.229.166. Water, Plumbing, and Waste.
(a) Water source. 
(1) Approved system. Drinking water shall be obtained from an approved source 
that is: 
(A) a public water system; or 
(B) a nonpublic water system that is constructed, maintained, and operated 
according to law. 
(2) System flushing and disinfection. A drinking water system shall be flushed 
and disinfected before being placed in service after construction, repair, or 
modification and after an emergency situation, such as a flood, that may 
introduce contaminants to the system. 
(3) Bottled drinking water. Bottled drinking water used or sold in a food 
establishment shall be obtained from approved sources in accordance with 25 TAC 
sec.229.81(b)(1) (Processing and Bottling of Bottled Drinking Water). 
(b) Water quality standards. 
(1) Public and private water systems. Except as specified under paragraph (2) of 
this subsection: 
(A) water from a public water system shall meet state drinking water quality 
standards in accordance with 30 TAC sec.290.101-sec.290.121 (Drinking Water 
Standards Governing Drinking Water Quality and Reporting Requirements); and 
(B) water from a private water system shall meet state drinking water quality 
standards. 
(2) Nondrinking water. 
(A) A nondrinking water supply may be used only if its use is approved by the 
regulatory authority. 
(B) Nondrinking water shall be used only for non-culinary purposes such as air 
conditioning, nonfood equipment cooling, fire protection, and irrigation. 
(3) Sampling. Except when used as specified under paragraph (2) of this 
subsection, water from a nonpublic water system shall be sampled and tested at 
least annually and as required by state water quality regulations. 
(4) Sample report. The most recent sample report for the nonpublic water system 
shall be retained on file in the food establishment or the report shall be 
maintained as specified by state water quality regulations. 
(c) Water quantity and availability. 
(1) Capacity. The water source and system shall be of sufficient capacity to 
meet the water demands of the food establishment. 
(2) Pressure. Water under pressure shall be provided to all fixtures, equipment, 
and nonfood equipment that are required to use water except that water supplied 
as specified in subsection (d)(2)(A) and (B) of this section to a temporary food 
establishment or in response to a temporary interruption of a water supply need 
not be under pressure.
(3) Hot water. Hot water generation and distribution systems shall be sufficient 
to meet the peak hot water demands throughout the food establishment. 
(d) Water distribution, delivery, and retention systems. 
(1) Distribution. Water shall be received from the source through the use of: 
(A) an approved public water main; or 
(B) one or more of the following that shall be constructed, maintained, and 
operated according to law: 
(i) nonpublic water main, water pumps, pipes, hoses, connections, and other 
appurtenances; 
(ii) water transport vehicles; and 
(iii) water containers. 
(2) Alternative water supply. Water meeting the requirements specified under 
subsections (a)-(c) of this section shall be made available for a mobile 
facility, for a temporary food establishment without a permanent water supply, 
and for a food establishment with a temporary interruption of its water supply 
through: 
(A) a supply of containers of commercially bottled drinking water; 
(B) one or more closed portable water containers; 
(C) an enclosed vehicular water tank; 
(D) an on-premises water storage tank; or 
(E) piping, tubing, or hoses connected to an adjacent approved source. 
(e) Plumbing systems, approved materials. 
(1) Construction. A plumbing system and hoses conveying water shall be 
constructed and repaired with approved materials according to law.
(2) Water filter. A water filter shall be made of safe materials. 
(f) Plumbing design, construction, and installation. 
(1) Approved system and cleanable fixtures. 
(A) A plumbing system shall be designed, constructed, and installed according to 
law. 
(B) A plumbing fixture such as a handwashing lavatory, toilet, or urinal shall 
be easily cleanable. 
(2) Handwashing lavatory, water temperature, and flow. 
(A) A handwashing lavatory shall be equipped to provide water at a temperature 
of at least 43 degrees Celsius (110 degrees Fahrenheit) through a mixing valve 
or combination faucet. 
(B) A steam mixing valve may not be used at a handwashing lavatory. 
(C) A self-closing, slow-closing, or metering faucet shall provide a flow of 
water for at least 15 seconds without the need to reactivate the faucet. 
(3) Backflow prevention, air gap. An air gap between the water supply inlet and 
the flood level rim of the plumbing fixture, equipment, or nonfood equipment 
shall be at least twice the diameter of the water supply inlet and may not be 
less than 25 millimeters (1 inch). 
(4) Backflow prevention device, design standard. A backflow or backsiphonage 
prevention device installed on a water supply system shall meet American Society 
of Sanitary Engineering (A.S.S.E.) standards for construction, installation, 
maintenance, inspection, and testing for that specific application and type of 
device. 
(5) Conditioning device, design. A water filter, screen, and other water 
conditioning device installed on water lines shall be designed to facilitate 
disassembly for periodic servicing and cleaning. A water filter element shall be 
of the replaceable type. 
(6) Service sink, water, water temperature. Service sinks shall be equipped to 
provide water at a temperature of 43 degrees Celsius (110 degrees Fahrenheit). 
(g) Plumbing, numbers and capacities. 
(1) Handwashing lavatory. At least one handwashing lavatory, a number of 
handwashing lavatories necessary for their convenient use by employees in areas 
specified under subsection (h)(1) of this section, and not fewer than the number 
of handwashing lavatories required by law shall be provided.
(2) Toilets and urinals. At least one toilet and not fewer than the number of 
toilets required by law shall be provided. If authorized by law and urinals are 
substituted for toilets, the substitution shall be done as specified in the law. 
(3) Service sink. In new or extensively remodeled food establishments, at least 
one service sink or one curbed cleaning facility equipped with a floor drain 
shall be provided and conveniently located for the cleaning of mops or similar 
wet floor cleaning tools and for the disposal of mop water and similar liquid 
waste. 
(4) Backflow prevention device, when required. A plumbing system shall be 
installed to preclude backflow of a solid, liquid, or gas contaminant into the 
water supply system at each point of use at the food establishment, including on 
a hose bibb if a hose is attached or on a hose bibb if a hose is not attached 
and backflow prevention is required by law, by: 
(A) providing an air gap as specified under subsection (f)(3) of this section; 
or 
(B) installing an approved backflow prevention device as specified under 
subsection (f) (4) of this section.
(h) Plumbing, location and placement. 
(1) Handwashing lavatory. A handwashing lavatory shall be located: 
(A) to allow convenient use by employees in food preparation, food dispensing, 
and warewashing areas; and 
(B) in, or immediately adjacent to, toilet rooms. 
(2) Backflow prevention device, location. A backflow prevention device shall be 
located so that it may be serviced and maintained.
(3) Conditioning device, location. A water filter, screen, and other water 
conditioning device installed on water lines shall be located to facilitate 
disassembly for periodic servicing and cleaning. 
(i) Plumbing, operation and maintenance. 
(1) Using a handwashing lavatory. 
(A) A handwashing lavatory shall be maintained so that it is accessible at all 
times for employee use. 
(B) A handwashing lavatory may not be used for purposes other than handwashing. 
(2) Prohibiting a cross connection. 
(A) Except as allowed under 9 CFR 308.3(d) and 30 TAC sec.290.44(h), a person 
may not create a cross connection by connecting a pipe, hose, or conduit between 
the drinking water system and a nondrinking water system or a water system of 
unknown quality. 
(B) The piping of a nondrinking water system shall be durably identified so that 
it is readily distinguishable from piping that carries drinking water. 
(3) Scheduling inspection and service for a water system device. A device such 
as a water treatment device or backflow preventer shall be scheduled for 
inspection and service, in accordance with manufacturer's instructions and as 
necessary to prevent device failure based on local water conditions, and records 
demonstrating inspection and service shall be maintained by the person in charge 
for a period of one year. 
(4) Water reservoir of fogging devices, cleaning. 
(A) A reservoir that is used to supply water to a device such as a produce 
fogger shall be: 
(i) maintained in accordance with manufacturer's specifications; and 
(ii) cleaned in accordance with manufacturer's specifications or ac cording to 
the procedures specified under subparagraph (B) of this paragraph, whichever is 
more stringent. 
(B) Cleaning procedures shall include at least the following steps and shall be 
conducted at least once a week: 
(i) draining and complete disassembly of the water and aerosol contact parts; 
(ii) brush-cleaning the reservoir, aerosol tubing, and discharge nozzles with a 
suitable detergent solution; 
(iii) flushing the complete system with water to remove the detergent solution 
and particulate accumulation; and 
(iv) rinsing by immersing, spraying, or swabbing the reservoir, aerosol tubing, 
and discharge nozzles with at least 50 milligrams per liter (mg/L) hypochlorite 
solution. 
(5) System maintained in good repair. A plumbing system shall be: 
(A) repaired according to law; and 
(B) maintained in good repair. 
(j) Sewage retention, drainage, and delivery. 
(1) Establishment drainage system. Food establishment drainage systems, 
including grease traps, that convey sewage shall be designed and installed as 
specified under subsection (f)(1)(A) of this section.
(2) Backflow prevention. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, a direct 
connection may not exist between the sewage system and a drain originating from 
equipment in which food, portable equipment, or utensils are placed. 
(B) If allowed by law, a warewashing machine may have a direct connection 
between its waste outlet and a floor drain when the machine is located within 
1.5 meters (5 feet) of a trapped floor drain and the machine outlet is connected 
to the inlet side of a properly vented floor drain trap.
(C) If allowed by law, a warewashing or culinary sink may have a direct 
connection. 
(3) Grease trap. If used, a grease trap or grease interceptor shall be located 
to be easily accessible for cleaning. 
(4) Conveying sewage. Sewage shall be conveyed to the point of disposal through 
an approved sanitary sewage system or other system, including use of sewage 
transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections 
that are constructed, maintained, and operated according to law. 
(k) Disposal facility. 
(1) Approved sewage disposal system. Sewage shall be disposed through an 
approved facility that is: 
(A) a public sewage treatment plant; or 
(B) an individual sewage disposal system that is sized, constructed, maintained, 
and operated according to law. 
(2) Other liquid wastes and rainwater. Condensate drainage and other nonsewage 
liquids and rainwater shall be drained from point of discharge to disposal 
according to law. 
(l) Storage facilities on the premises. 
(1) Indoor storage area. If located within the food establishment a storage area 
for refuse, recyclables, and returnables shall meet the requirements specified 
under sec.229.167(a), 
(c) , and (d)(5) and (6) of this title (relating to Physical Facilities). 
(2) Outdoor storage surface. An outdoor storage surface for refuse, recyclables, 
and returnables shall be constructed of nonabsorbent material such as concrete 
or asphalt and shall be smooth, durable, and sloped to drain. 
(3) Outdoor enclosure. If used, an outdoor enclosure for refuse, recyclables, 
and returnables shall be constructed of durable and cleanable materials. 
(4) Receptacles. 
(A) Except as specified in subparagraph (B) of this paragraph, receptacles and 
waste handling units for refuse, recyclables, and returnables and for use with 
materials containing food residue shall be durable, cleanable, insect-and 
rodent-resistant, leakproof, and nonabsorbent. 
(B) Plastic bags and wet strength paper bags may be used to line receptacles for 
storage inside the food establishment, or within closed outside receptacles. 
(5) Receptacles in vending machines. A refuse receptacle may not be located 
within a vending machine, except that a receptacle for beverage bottle crown 
closures may be located within a vending machine. 
(6) Outside receptacles. 
(A) Receptacles and waste handling units for refuse, recyclables, and 
returnables used with materials containing food residue and used outside the 
food establishment shall be designed and constructed to have tight-fitting lids, 
doors, or covers. 
(B) Equipment for refuse and recyclables such as an on-site compactor shall be 
installed so that accumulation of debris and insect and rodent attraction and 
harborage are minimized and effective cleaning is facilitated around and, if the 
equipment is not installed flush with the base pad, under the unit. 
(7) Storage areas, rooms, and receptacles, capacity and availability. 
(A) An inside storage room and area and outside storage area and enclosure, and 
receptacles shall be of sufficient capacity to hold refuse, recyclables, and 
returnables that accumulate. 
(B) A receptacle shall be provided in each area of the food establishment or 
premises where refuse is generated or commonly discarded, or where recyclables 
or returnables are placed. 
(C) If disposable towels are used at handwashing lavatories, a waste receptacle 
shall be located at each lavatory or group of adjacent lavatories. 
(8) Toilet room receptacle, covered. A toilet room used by females shall be 
provided with a covered receptacle for sanitary napkins.
(9) Cleaning implements and supplies. 
(A) Except as specified in subparagraph (B) of this paragraph, suitable cleaning 
implements and supplies such as high pressure pumps, hot water, steam, and 
detergent shall be provided as necessary for effective cleaning of receptacles 
and waste handling units for refuse, recyclables, and returnables.
(B) If approved by the regulatory authority, off-premises-based cleaning 
services may be used if on-premises cleaning implements and supplies are not 
provided. 
(10) Storage areas, redeeming machines, receptacles, and waste handling units, 
location. 
(A) An area designated for refuse, recyclables, returnables, and, except as 
specified in subparagraph (B) of this paragraph, a redeeming machine for 
recyclables or returnables shall be located so that it is separate from food, 
equipment, utensils, linens, and single-service and single-use articles and a 
public health nuisance is not created. 
(B) A redeeming machine may be located in the packaged food storage area or 
consumer area of a food establishment if food, equipment, utensils, linens, and 
single-service and single-use articles are not subject to contamination from the 
machines and a public health hazard or nuisance is not created. 
(C) The location of receptacles and waste handling units for refuse, 
recyclables, and returnables may not create a public health nuisance or 
interfere with the cleaning of adjacent space. 
(11) Storing refuse, recyclables, and returnables. Refuse, recyclables, and 
returnables shall be stored in receptacles or waste handling units so that they 
are inaccessible to insects and rodents. 
(12) Areas, enclosures, and receptacles, good repair. Storage areas, enclosures, 
and receptacles for refuse, recyclables, and returnables shall be maintained in 
good repair. 
(13) Outside storage prohibitions. 
(A) Except as specified in subparagraph (B) of this paragraph, refuse 
receptacles not meeting the requirements specified under paragraph (4)(A) of 
this subsection such as receptacles that are not rodent-resistant, unprotected 
plastic bags and paper bags, or baled units that contain materials with food 
residue may not be stored outside. 
(B) Cardboard or other packaging material that does not contain food residues 
and that is awaiting regularly scheduled delivery to a recycling or disposal 
site may be stored outside without being in a covered receptacle if it is stored 
so that it does not create a rodent harborage problem. 
(14) Covering receptacles. Receptacles and waste handling units for refuse, 
recyclables, and returnables shall be kept covered:
(A) inside the food establishment if the receptacles and units:
(i) contain food residue and are not in continuous use; or
(ii) after they are filled; and 
(B) with tight-fitting lids or doors if kept outside the food establishment. 
(15) Using drain plugs. Drains in receptacles and waste handling units for 
refuse, recyclables, and returnables shall have drain plugs in place. 
(16) Maintaining refuse areas and enclosures. A storage area and enclosure for 
refuse, recyclables, or returnables shall be maintained free of unnecessary 
items, as specified under sec.229.167(p)(14) of this title, and clean. 
(17) Cleaning receptacles. 
(A) Receptacles and waste handling units for refuse, recyclables, and 
returnables shall be thoroughly cleaned in a way that does not contaminate food, 
equipment, utensils, linens, or single-service and single-use articles, and 
waste water shall be disposed of as specified under subsection (j)(4) of this 
section. 
(B) Soiled receptacles and waste handling units for refuse, recyclables, and 
returnables shall be cleaned at a frequency necessary to prevent them from 
developing a buildup of soil or becoming attractants for insects and rodents. 
(m) Refuse removal. 
(1) Frequency. Refuse, recyclables, and returnables shall be removed from the 
premises at a frequency that will minimize the development of objectionable 
odors and other conditions that attract or harbor insects and rodents. 
(2) Receptacles or vehicles. Refuse, recyclables, and returnables shall be 
removed from the premises by way of: 
(A) portable receptacles that are constructed and maintained according to law; 
or 
(B) a transport vehicle that is constructed, maintained, and operated according 
to law. 
(n) Facilities for disposal and recycling, community or individual facility. 
Solid waste not disposed of through the sewage system such as through grinders 
and pulpers shall be recycled or disposed of in an approved public or private 
community recycling or refuse facility; or solid waste shall be disposed of in 
an individual refuse facility such as a landfill or incinerator which is sized, 
constructed, maintained, and operated according to law. 

sec.229.167.Physical Facilities.
(a) Indoor areas, surface characteristics. Materials for indoor floor, wall, and 
ceiling surfaces under conditions of normal use shall be:
(1) smooth, durable, and easily cleanable for areas where food establishment 
operations are conducted; 
(2) closely woven and easily cleanable carpet for carpeted areas; and 
(3) nonabsorbent for areas subject to moisture such as food preparation areas, 
walk-in refrigerators, warewashing areas, toilet rooms, mobile food 
establishment servicing areas, and areas subject to flushing or spray cleaning 
methods. 
(b) Outdoor areas, surface characteristics. 
(1) Walking and driving areas. The outdoor walking and driving areas shall be 
surfaced with concrete, asphalt, or gravel or other materials that have been 
effectively treated to minimize dust, facilitate maintenance, and prevent muddy 
conditions. 
(2) Exterior surfaces. Exterior surfaces of buildings and mobile food 
establishments shall be of weather-resistant materials and shall comply with 
law. 
(3) Storage areas. Outdoor storage areas for refuse, recyclables, or returnables 
shall be of materials specified under sec.229.166(l)(2) and (3) of this title 
(relating to Water, Plumbing, and Waste). 
(c) Floors, walls, and ceilings. 
(1) Cleanability. Except as specified in paragraph (4) of this subsection, the 
floors, floor coverings, walls, wall coverings, and ceilings shall be designed, 
constructed, and installed so they are smooth and easily cleanable, except that 
antislip floor coverings or applications may be used for safety reasons. 
(2) Floors, walls, and ceilings, utility lines. 
(A) Utility service lines and pipes may not be unnecessarily exposed. 
(B) Exposed utility service lines and pipes shall be installed so they do not 
obstruct or prevent cleaning of the floors, walls, or ceilings.
(C) Exposed horizontal utility service lines and pipes may not be installed on 
the floor. 
(3) Floor and wall junctures, coved, and enclosed or sealed. 
(A) In food establishments in which cleaning methods other than water flushing 
are used for cleaning floors, the floor and wall junctures shall be coved and 
closed to no larger than 1 millimeter (one thirty-second inch). 
(B) The floors in food establishments in which water flush cleaning methods are 
used shall be provided with drains and graded to drain, and the floor and wall 
junctures shall be coved and sealed. 
(4) Floor carpeting, restrictions and installation.
(A) Carpeting may not be installed as a floor covering in food preparation 
areas, walk-in refrigerators, warewashing areas, toilet room areas where 
handwashing lavatories, toilets, and urinals are located, refuse storage rooms, 
or other areas subject to moisture, flushing, or spray cleaning methods. 
(B) If carpeting is installed as a floor covering in areas other than those 
specified in subparagraph (A) of this paragraph, it shall be: 
(i) securely attached to the floor with a durable mastic, by using a stretch and 
tack method, or by another method; and 
(ii) installed tightly against the wall under the coving or installed away from 
the wall with a space between the carpet and the wall and with the edges of the 
carpet secured by metal stripping or some other means. 
(5) Floor covering, mats and duckboards. Mats and duckboards shall be designed 
to be removable and easily cleanable. 
(6) Wall and ceiling coverings and coatings. 
(A) Wall and ceiling covering materials shall be attached so that they are 
easily cleanable. 
(B) Except in areas used only for dry storage, concrete, porous blocks, or 
bricks used for indoor wall construction shall be finished and sealed to provide 
a smooth, nonabsorbent, easily cleanable surface. 
(7) Walls and ceilings, attachments. 
(A) Except as specified in subparagraph (B) of this paragraph, attachments to 
walls and ceilings such as light fixtures, mechanical room ventilation system 
components, vent covers, wall mounted fans, decorative items, and other 
attachments shall be easily cleanable.
(B) In a consumer area, wall and ceiling surfaces and decorative items and 
attachments that are provided for ambiance need not meet this requirement if 
they are kept clean. 
(8) Walls and ceilings, studs, joists, and rafters. Studs, joists, and rafters 
may not be exposed in areas subject to moisture. This requirement does not apply 
to temporary food establishments. 
(d) Functionality. 
(1) Light bulbs, protective shielding. 
(A) Except as specified in subparagraph (B) of this paragraph, light bulbs shall 
be shielded, coated, or otherwise shatter-resistant in areas where there is 
exposed food; clean equipment, utensils, and linens; or unwrapped single-service 
and single-use articles. 
(B) Shielded, coated, or otherwise shatter-resistant bulbs need not be used in 
areas used only for storing food in unopened packages, if: 
(i) the integrity of the packages cannot be affected by broken glass falling 
onto them; and 
(ii) the packages are capable of being cleaned of debris from broken bulbs 
before the packages are opened. 
(C) An infrared or other heat lamp shall be protected against breakage by a 
shield surrounding and extending beyond the bulb so that only the face of the 
bulb is exposed. 
(2) Heating, ventilating, air conditioning system vents. Heating, ventilating, 
and air conditioning systems shall be designed and installed so that make-up air 
intake and exhaust vents do not cause contamination of food, food contact 
surfaces, equipment, or utensils. 
(3) Insect control devices, design and installation.
(A) Insect control devices that are used to electrocute or stun flying insects 
shall be designed to retain the insect within the device.
(B) Insect control devices shall be installed so that: 
(i) the devices are not located over a food preparation area; and 
(ii) dead insects and insect fragments are prevented from being impelled onto or 
falling on exposed food; clean equipment, utensils, and linens; and unwrapped 
single-service and single-use articles. 
(4) Toilet rooms, enclosed. A toilet room located on the premises shall be 
completely enclosed and provided with a tight-fitting and self-closing door 
except that this requirement does not apply to a toilet room that is located 
outside a food establishment and does not open directly into the food 
establishment such as a toilet room that is provided by the management of a 
shopping mall. 
(5) Outer openings, protected. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, outer 
openings of a food establishment shall be protected against the entry of insects 
and rodents by: 
(i) filling or closing holes and other gaps along floors, walls and ceilings; 
(ii) closed, tight-fitting windows; and 
(iii) solid self-closing, tight-fitting doors, except that doors designed for 
emergency exit only and which are activated for security alarm when opened need 
not be self-closing. 
(B) Subparagraph (A) of this paragraph does not apply if a food establishment 
opens into a larger structure, such as a mall, airport, or office building, or 
into an attached structure, such as a porch, and the outer openings from the 
larger or attached structure are protected against the entry of insects and 
rodents. 
(C) Except as specified in subparagraphs (B) and (D) of this paragraph, if the 
windows or doors of a food establishment, or of a larger structure within which 
a food establishment is located, are kept open for ventilation or other 
purposes, or a temporary food establishment is not provided with windows and 
solid doors as specified under subparagraph (A) of this paragraph, the openings 
shall be protected against the entry of insects and rodents by:
(i) 16 mesh to 25.4 millimeters (16 mesh to 1 inch) screens;
(ii) properly designed and installed air curtains; or 
(iii) other effective means. 
(D) Subparagraph (C) of this paragraph does not apply if flying insects and 
other pests are absent due to the location of the establishment or other 
limiting condition. 
(6) Exterior walls and roofs, protective barrier. Perimeter walls and roofs of a 
food establishment shall effectively protect the establishment from the weather 
and the entry of insects, rodents, and other animals. 
(7) Outdoor food vending areas, overhead protection. If located outside, a 
machine used to vend food shall be provided with overhead protection except that 
machines vending canned beverages need not meet this requirement. 
(8) Outdoor walking and driving surfaces, graded to drain. Exterior walking and 
driving surfaces shall be graded to drain. 
(9) Outdoor refuse areas, curbed and graded to drain. Outdoor refuse areas shall 
be constructed in accordance with law and shall be curbed and graded to drain to 
collect and dispose of liquid waste that results from the refuse and from 
cleaning the area and waste receptacles.
(10) Private homes and living or sleeping quarters, use prohibition. A private 
home, a room used as living or sleeping quarters, or an area directly opening 
into a room used as living or sleeping quarters may not be used for conducting 
food establishment operations. 
(11) Living or sleeping quarters, separation. Living or sleeping quarters 
located on the premises of a food establishment such as those provided for 
lodging registration clerks or resident managers shall be separated from rooms 
and areas used for food establishment operations by complete partitioning and 
solid self-closing doors. 
(e) Handwashing lavatories. 
(1) Minimum number. Handwashing lavatories shall be provided as specified under 
sec.229.166(g)(1) of this title. 
(2) Handwashing cleanser, availability. Each handwashing lavatory or group of 
two adjacent lavatories shall be provided with a supply of hand cleaning liquid, 
powder, or bar soap. 
(3) Hand drying provision. Each handwashing lavatory or group of adjacent 
lavatories shall be provided with: 
(A) individual, disposable towels; 
(B) a continuous towel system that supplies the user with a clean towel; or 
(C) a heated-air hand drying device. 
(4) Handwashing aids and devices, use restrictions. A sink used for food 
preparation or utensil washing, or a service sink or curbed cleaning facility 
used for the disposal of mop water or similar wastes, shall not be provided with 
the handwashing aids and devices required for a handwashing lavatory as 
specified in paragraphs (2) and (3) of this subsection and sec.229.166(l)(7)(C) 
of this title. 
(f) Toilets and urinals. 
(1) Minimum number. Toilets and urinals shall be provided as specified under 
sec.229.166(g)(2) of this title. 
(2) Toilet tissue, availability. A supply of toilet tissue shall be available at 
each toilet. 
(g) Lighting, intensity. The light intensity shall be: 
(1) at least 110 lux (10 foot candles) at a distance of 75 centimeters (30 
inches) above the floor, in walk-in refrigeration units and dry food storage 
areas and in other areas and rooms during periods of cleaning;
(2) at least 220 lux (20 foot candles): 
(A) at a surface where food is provided for consumer self-service such as 
buffets and salad bars or where fresh produce or packaged foods are sold or 
offered for consumption; 
(B) inside equipment such as reach-in and under-counter refrigerators; or 
(C) at a distance of 75 centimeters (30 inches) above the floor in areas used 
for handwashing, warewashing, and equipment and utensil storage, and in toilet 
rooms; and 
(3) at least 540 lux (50 foot candles) at a surface where a food employee is 
working with food or working with utensils or equipment such as knives, slicers, 
grinders, or saws where employee safety is a factor.
(h) Ventilation, mechanical. If necessary to keep rooms free of excessive heat, 
steam, condensation, vapors, obnoxious odors, smoke, and fumes, mechanical 
ventilation of sufficient capacity shall be provided. 
(i) Dressing areas and lockers, designation. 
(1) Provision for dressing rooms and areas. Dressing rooms or dressing areas 
shall be designated if employees routinely change their clothes in the 
establishment. 
(2) Lockers. Lockers or other suitable facilities shall be provided for the 
orderly storage of employees' clothing and other possessions.
(j) Service sinks, availability. A service sink or curbed cleaning facility 
shall be provided as specified under sec.229.166(g)(3) of this title. 
(k) Handwashing lavatories, conveniently located. Handwashing lavatories shall 
be conveniently located as specified under sec.229.166(h)(1) of this title. 
(l) Toilet rooms, convenience and accessibility. Toilet rooms shall be 
conveniently located and accessible to employees during all hours of operation. 
(m) Employee accommodations, designated areas. 
(1) Eating and tobacco areas. Areas designated for employees to eat, drink, and 
use tobacco shall be located so that food, equipment, linens, and single-service 
and single-use articles are protected from contamination.
(2) Location of lockers. Lockers or other suitable facilities shall be located 
in a designated room or area where contamination of food, equipment, utensils, 
linens, and single-service and single-use articles cannot occur. 
(n) Distressed merchandise, segregation and location. Products that are held by 
the permit holder for credit, redemption, or return to the distributor, such as 
damaged, spoiled, or recalled products, shall be segregated and held in 
designated areas that are separated from food, equipment, utensils, linens, and 
single-service and single-use articles. 
(o) Receptacles, waste handling units, and designated storage areas. Units, 
receptacles, and areas designated for storage of refuse and recyclable and 
returnable containers shall be located as specified under sec.229.166(l)(10) of 
this title.
(p) Premises, buildings, systems, rooms, fixtures, equipment, devices, and 
materials. 
(1) Repairing. The physical facilities shall be maintained in good repair. 
(2) Cleaning, frequency and restrictions. 
(A) The physical facilities shall be cleaned as often as necessary to keep them 
clean. 
(B) Cleaning shall be done during periods when the least amount of food is 
exposed such as after closing. This requirement does not apply to cleaning that 
is necessary due to a spill or other accident. 
(3) Cleaning floors, dustless methods. 
(A) Except as specified in subparagraph (B) of this paragraph, only dustless 
methods of cleaning shall be used, such as wet cleaning, vacuum cleaning, 
mopping with treated dust mops, or sweeping using a broom and dust-arresting 
compounds. 
(B) Spills or drippage on floors that occur between normal floor cleaning times 
may be cleaned: 
(i) without the use of dust-arresting compounds; and 
(ii) in the case of liquid spills or drippage, with the use of a small amount of 
absorbent compound such as sawdust or diatomaceous earth applied immediately 
before spot cleaning. 
(4) Cleaning ventilation systems, nuisance and discharge prohibition. 
(A) Intake and exhaust air ducts shall be cleaned and filters changed so they 
are not a source of contamination by dust, dirt, and other materials. 
(B) If vented to the outside, ventilation systems may not create a public health 
hazard or nuisance or unlawful discharge. 
(5) Cleaning maintenance tools, preventing contamination. Food preparation 
sinks, handwashing lavatories, and warewashing equipment may not be used for the 
cleaning of maintenance tools, the preparation or holding of maintenance 
materials, or the disposal of mop water and similar liquid wastes. 
(6) Drying mops. After use, mops shall be placed in a position that allows them 
to air-dry without soiling walls, equipment, or supplies. 
(7) Absorbent materials on floors, use limitation. Except as specified under 
paragraph (3)(B) of this subsection, sawdust, wood shavings, granular salt, 
baked clay, diatomaceous earth, or similar materials may not be used on floors.
(8) Maintaining and using handwashing lavatories. Handwashing lavatories shall 
be kept clean and maintained and used as specified under sec.229.166(i)(1) of 
this title. 
(9) Closing toilet room doors. Toilet room doors as specified under subsection 
(d)(4) of this section shall be kept closed except during cleaning and 
maintenance operations. 
(10) Using dressing rooms and lockers. 
(A) Dressing rooms shall be used by employees if the employees regularly change 
their clothes in the establishment. 
(B) Lockers or other suitable facilities shall be used for the orderly storage 
of employee clothing and other possessions. 
(11) Controlling pests. 
(A) Insects, rodents, and other pests shall be controlled as specified in 
subparagraph (B) of this paragraph to minimize their presence:
(i) within the physical facility and its contents; and 
(ii) on the contiguous land or property under the control of the permit holder. 
(B) The presence of insects, rodents, and other pests shall be controlled by: 
(i) routinely inspecting incoming shipments of food and supplies;
(ii) routinely inspecting the premises for evidence of pests;
(iii) using methods, if pests are found, such as trapping devices or other means 
of pest control as specified under sec.229.168(d)(2) and (h)(2) and (3) of this 
title (relating to Poisonous or Toxic Materials); and 
(iv) eliminating harborage conditions. 
(12) Removing dead or trapped birds, insects, rodents, and other pests. Dead or 
trapped birds, insects, rodents, and other pests shall be removed from control 
devices and the premises at a frequency that prevents their accumulation, 
decomposition, or the attraction of pests.
(13) Storing maintenance tools. Maintenance tools such as brooms, mops, vacuum 
cleaners, and similar items shall be: 
(A) stored so they do not contaminate food, equipment, utensils, linens, and 
single-service and single-use articles; and 
(B) stored in an orderly manner that facilitates cleaning of the area used for 
storing the maintenance tools. 
(14) Maintaining premises, unnecessary items and litter. The premises shall be 
free of: 
(A) items that are unnecessary to the operation or maintenance of the 
establishment such as equipment that is nonfunctional or no longer used; and 
(B) litter. 
(15) Prohibiting animals. 
(A) Except as specified in subparagraphs (B) and (C) of this paragraph, live 
animals may not be allowed on the premises of a food establishment.
(B) Live animals may be allowed in the following situations if the contamination 
of food, clean equipment, utensils, linens, and unwrapped single-service and 
single-use articles can not result: 
(i) edible fish or decorative fish in aquariums, shellfish or crustacea on ice 
or under refrigeration, and shellfish and crustacea in display tank systems; 
(ii) patrol dogs accompanying police or security officers in offices and dining, 
sales, and storage areas, and sentry dogs running loose in outside fenced areas; 
(iii) in areas that are not used for food preparation such as dining and sales 
areas, support animals such as guide dogs that are trained to assist an employee 
or other person who is handicapped, are controlled by the handicapped employee 
or person, and are not allowed to be on seats or tables; and 
(iv) pets in the common dining areas of group residences at times other than 
during meals if: 
(I) effective partitioning and self-closing doors separate the common dining 
areas from food storage or food preparation areas; 
(II) condiments, equipment, and utensils are stored in enclosed cabinets or 
removed from the common dining areas when pets are present; and
(III) dining areas including tables, countertops, and similar surfaces are 
effectively cleaned before the next meal service. 
(C) Live or dead fish bait shall be stored so that contamination of food; clean 
equipment, utensils, and linens; and unwrapped single-service and single-use 
articles cannot result. 

sec.229.168. Poisonous or Toxic Materials.
(a) Original containers, identifying information, prominence. Containers of 
poisonous toxic materials and personal care items shall bear a legible 
manufacturer's label. 
(b) Working containers, common name. Working containers used for storing 
poisonous or toxic materials such as cleaners and sanitizers taken from bulk 
supplies shall be clearly and individually identified with the common name of 
the material. 
(c) Storage, separation. Poisonous or toxic materials shall be stored so they 
cannot contaminate food, equipment, utensils, linens, and single-service and 
single-use articles by: 
(1) separating the poisonous or toxic materials by spacing or partitioning; and 
(2) locating the poisonous or toxic materials in an area that is not above food, 
equipment, utensils, linens, and single-service or single-use articles. This 
paragraph does not apply to equipment and utensil cleaners and sanitizers that 
are stored in warewashing areas for availability and convenience if the 
materials are stored to prevent contamination of food, equipment, utensils, 
linens, and single-service and single-use articles. 
(d) Presence and use. 
(1) Restriction. 
(A) Only those poisonous or toxic materials that are required for the operation 
and maintenance of a food establishment, such as for the cleaning and sanitizing 
of equipment and utensils and the control of insects and rodents, shall be 
allowed in a food establishment. 
(B) Subparagraph (A) of this paragraph does not apply to packaged poisonous or 
toxic materials that are for retail sale. 
(2) Conditions of use. Poisonous or toxic materials shall be: 
(A) used according to: 
(i) law and these rules; 
(ii) manufacturer's use directions included in labeling, and, for a pesticide, 
manufacturer's label instructions that state that use is allowed in a food 
establishment; 
(iii) the conditions of certification, if certification is required, for use of 
the pest control materials; and 
(iv) additional conditions that may be established by the regulatory authority; 
and 
(B) applied so that: 
(i) a hazard to employees or other persons is not constituted; and 
(ii) contamination including toxic residues due to drip, drain, fog, splash or 
spray on food, equipment, utensils, linens, and single-service and single-use 
articles is prevented, and for a restricted-use pesticide, this is achieved by: 
(I) removing the items; 
(II) covering the items with impermeable covers; 
(III) taking other appropriate preventive actions; and 
(IV) cleaning and sanitizing equipment and utensils after the application; and 
(C) for restricted use pesticides, applied only by an applicator certified as 
defined in 7 USC 136(e), Certified Applicator, of the Federal Insecticide, 
Fungicide and Rodenticide Act, or a person under the direct supervision of a 
certified applicator. 
(e) Container prohibitions, poisonous or toxic material containers. A container 
previously used to store poisonous or toxic materials may not be used to store, 
transport, or dispense food. 
(f) Chemicals. 
(1) Sanitizers, criteria. Chemical sanitizers and other chemical antimicrobials 
applied to food contact surfaces shall meet the requirements specified in 21 CFR 
178.1010, Sanitizing Solutions. 
(2) Chemicals for washing fruits and vegetables, criteria. Chemicals used to 
wash or peel raw, whole fruits and vegetables shall meet the requirements 
specified in 21 CFR 173.315, Chemicals used in washing or to assist in the lye 
peeling of fruits and vegetables. 
(3) Boiler water additives, criteria. Chemicals used as boiler water additives 
shall meet the requirements specified in 21 CFR 173.310, Boiler Water Additives.
(4) Drying agents, criteria. Drying agents used in conjunction with sanitization 
shall: 
(A) contain only components that are listed as one of the following: 
(i) generally recognized as safe for use in food as specified in 21 CFR 182 - 
Substances Generally Recognized as Safe, or 21 CFR 184 - Direct Food Substances 
Affirmed as Generally Recognized as Safe; 
(ii) generally recognized as safe for the intended use as specified in 21 CFR 
186 - Indirect Food Substances Affirmed as Generally Recognized as Safe; 
(iii) approved for use as a drying agent under a prior sanction specified in 21 
CFR 181 - Prior-Sanctioned Food Ingredients; 
(iv) specifically regulated as an indirect food additive for use as a drying 
agent as specified in 21 CFR Parts 175-178; or 
(v) approved for use as a drying agent under the threshold of regulation process 
established by 21 CFR 170.39, Threshold of regulation for substances used in 
food-contact articles; and 
(B) when sanitization is with chemicals, the approval required in subparagraph 
(A)(iii) or (v) of this paragraph or the regulation as an indirect food additive 
required in subparagraph (A)(iv) of this paragraph, shall be specifically for 
use with chemical sanitizing solutions. 
(g) Lubricants, incidental food contact, criteria. Lubricants shall meet the 
requirements specified in 21 CFR 178.3570, Lubricants with incidental food 
contact, if they are used on food-contact surfaces, on bearings and gears 
located on or within food-contact surfaces, or on bearings and gears that are 
located so that lubricants may leak, drip, or be forced into food or onto food-
contact surfaces. 
(h) Pesticides. 
(1) Restricted use pesticides, criteria. Restricted use pesticides as specified 
in subsection (d)(2)(C) of this section shall be listed by the U.S. 
Environmental Protection Agency (EPA) as meeting the requirements specified in 
40 CFR 152 Subpart l, Classification of Pesticides.
(2) Rodent bait stations. Rodent bait shall be contained in a covered, tamper-
resistant bait station. 
(3) Tracking powders, pest control and monitoring. 
(A) A tracking powder pesticide may not be used in a food establishment. 
(B) If used, a nontoxic tracking powder such as talcum or flour may not 
contaminate food, equipment, utensils, linens, and single-service and single-use 
articles. 
(i) Medicines. 
(1) Restriction and storage. 
(A) Only those medicines that are necessary for the health of employees shall be 
allowed in a food establishment. This section does not apply to medicines that 
are stored or displayed for retail sale. 
(B) Medicines that are in a food establishment for the employees' use shall be 
labeled as specified under subsection (a) of this section and located to prevent 
the contamination of food, equipment, utensils, linens, and single-service and 
single-use articles. 
(2) Refrigerated medicines, storage. Medicines belonging to employees or to 
children in a day care center that require refrigeration and are stored in a 
food refrigerator shall be: 
(A) stored in a package or container and kept inside a covered, leakproof 
container that is identified as a container for the storage of medicines; and 
(B) located so that they are inaccessible to children. 
(j) First aid supplies, storage. First aid supplies that are in a food 
establishment for the employees' use shall be: 
(1) labeled as specified under subsection (a) of this section; and 
(2) stored in a kit or a container that is located to prevent the contamination 
of food, equipment, utensils, and linens, and single-service and single-use 
articles. 
(k) Other personal care items, storage. Except as specified in subsections 
(i)(2) and (j) of this section, employees shall store their other personal care 
items as specified under sec.229.167(i)(2) of this title (relating to Physical 
Facilities). 
(l) Storage and display, separation. Poisonous or toxic materials shall be 
stored and displayed for retail sale so they cannot contaminate food, equipment, 
utensils, linens, and single-service and single-use articles by:
(1) separating the poisonous or toxic materials by spacing or partitioning; and 
(2) locating the poisonous or toxic materials in an area that is not above food, 
equipment, utensils, linens, and single-service or single-use articles. 

sec.229.169. Mobile Food Establishments.
(a) Mobile food establishment provisions. 
(1) General. Mobile food establishments shall comply with the requirements of 
these rules, except as otherwise provided in this paragraph and in paragraph (2) 
of this subsection. The regulatory authority may impose additional requirements 
to protect against health hazards related to the conduct of the food 
establishment as a mobile operation, may prohibit the sale of some or all 
potentially hazardous food, and when no health hazard will result, may waive or 
modify requirements of this rule relating to physical facilities, except those 
requirements as specified in paragraphs (5) and (6) of this subsection; 
subsection (b)(1) of this section; subsection (c)(1)(A)-(E) of this section and 
sec.229.164(k)-(n) of this title (relating to Food). 
(2) Restricted operation. Mobile food establishments that serve only food that 
is prepared, packaged in individual servings, transported and stored under 
conditions meeting the requirements of these sections, or beverages that are not 
potentially hazardous and are dispensed from covered urns or other protected 
equipment, need not comply with the requirements of these rules pertaining to 
the necessity of water and sewage systems nor to those requirements pertaining 
to the cleaning and sanitization of equipment and utensils if the required 
equipment for cleaning and sanitization exists at its central preparation 
facility. 
(3) Single-service articles. Mobile food establishments shall provide only 
single-service articles for use by the consumer. 
(4) Existing refrigeration equipment. Existing refrigeration equipment will be 
upgraded to meet the 41 degree Fahrenheit requirement or replaced within five 
years of the adoption of these rules as specified in sec.229.164(n)(6)(C) of 
this title. 
(5) Mobile water tank and mobile food establishment water tank. 
(A) Approved materials. Materials that are used in the construction of a mobile 
water tank, mobile food establishment water tank and appurtenances shall meet 
the requirements specified in sec.229.165(a)(1)(A), (B), and
(D) of this title (relating to Equipment, Utensils, and Linens). 
(B) Water system. A mobile food unit requiring a water system shall meet the 
requirements of sec.229.166(a)-(d) of this title (relating to Water, Plumbing, 
and Waste). The system shall be of sufficient capacity to furnish enough hot and 
cold water for food preparation, utensil cleaning and sanitizing, and hand 
washing, in accordance with the requirements of these rules. 
(C) Enclosed system, sloped to drain. A mobile water tank shall be enclosed from 
the filling inlet to the discharge outlet and sloped to an outlet that allows 
complete drainage of the tank. All water distribution pipes or tubing shall be 
constructed and installed in accordance with the requirements of these rules. 
(D) Inspection and cleaning port, protected and secured. If a water tank is 
designed with an access port for inspection and cleaning, the opening shall be 
in the top of the tank and: 
(i) flanged upward at least 13 millimeters (one-half inch); and 
(ii) equipped with a port cover assembly that is provided with a gasket and a 
device for securing the cover in place, and flanged to overlap the opening and 
sloped to drain. 
(E) "V" type threads, use limitation. A fitting with "v" type threads on a water 
tank inlet or outlet may be allowed only when a hose is permanently attached. 
(F) Tank vent, protected. If provided, a water tank vent shall terminate in a 
downward direction and shall be covered with: 
(i) 16 mesh to 25.4 millimeters (16 mesh to 1 inch) screen or equivalent when 
the vent is in a protected area; or 
(ii) a protective filter when the vent is in an area that is not protected from 
windblown dirt and debris. 
(G) Inlet and outlet, sloped to drain. 
(i) A water tank and its inlet and outlet shall be sloped to drain. 
(ii) A water tank inlet shall be positioned so that it is protected from 
contaminants such as waste discharge, road dust, oil, or grease.
(H) Hose, construction and identification. A hose used for conveying drinking 
water from a water tank shall be: 
(i) safe; 
(ii) durable, corrosion-resistant, and nonabsorbent; 
(iii) resistant to pitting, chipping, crazing, scratching, scoring, distortion, 
and decomposition; 
(iv) finished with a smooth interior surface; and 
(v) clearly and durably identified as to its use if not permanently attached. 
(I) Filter, compressed air. A filter that does not pass oil or oil vapors shall 
be installed in the air supply line between the compressor and drinking water 
system when compressed air is used to pressurize the water tank system. 
(J) Protective cover or device. A cap and keeper chain, closed cabinet, closed 
storage tube, or other approved protective cover or device shall be provided for 
a water inlet, outlet, and hose. 
(K) Mobile food establishment tank inlet. A mobile food establishment's water 
tank inlet shall be 19.1 millimeters (three-fourths inch) in inner diameter or 
less and provided with a hose connection of a size or type that will prevent its 
use for any other service. 
(L) System flushing and disinfection. A water tank, pump, and hoses shall be 
flushed and sanitized before being placed in service after construction, repair, 
modification, and periods of nonuse. 
(M) Using a pump and hoses, backflow prevention. A person shall operate a water 
tank, pump, and hoses so that backflow and other contamination of the water 
supply are prevented. 
(N) Protecting inlet, outlet, and hose fitting. If not in use, a water tank and 
hose inlet and outlet fitting shall be protected as specified under subparagraph 
(J) of this paragraph. 
(O) Tank, pump, and hoses, dedication. 
(i) Except as specified in clause (ii) of this subparagraph, a water tank, pump, 
and hoses used for conveying drinking water shall be used for no other purpose. 
(ii) Water tanks, pumps, and hoses approved for liquid foods may be used for 
conveying drinking water if they are cleaned and sanitized after each use. 
(6) Sewage, other liquid waste, and rainwater.
(A) Waste retention. If liquid waste results from operation of a mobile food 
establishment, the waste shall be stored in a permanently installed retention 
tank. 
(B) Capacity and drainage. A sewage holding tank in a mobile food establishment 
shall be: 
(i) sized at least 15% larger in capacity than the water supply tank; and 
(ii) sloped to a drain that is 25 millimeters (1 inch) in inner diameter or 
greater, equipped with a shut-off valve. 
(C) All connections on the vehicle for servicing the mobile food establishment 
waste disposal facilities shall be of a different size or type than those used 
for supplying potable water to the mobile food establishment.
(D) Discharge liquid waste shall not be discharged from the retention tank while 
the mobile food establishment is in motion. 
(E) Flushing a waste retention tank. A tank for liquid waste retention shall be 
thoroughly flushed and drained in a sanitary manner. 
(F) Removing mobile food establishment wastes. Sewage and other liquid wastes 
shall be removed from a mobile food establishment at an approved waste servicing 
area or by a sewage transport vehicle in such a way that a public health hazard 
or nuisance is not created. 
(b) Central preparation facility. 
(1) Supplies, cleaning, and servicing operations. Mobile food establishments 
shall operate from a central preparation facility or other fixed food 
establishment and shall report to such location for supplies and for cleaning 
and servicing operations. 
(2) Construction. The central preparation facility or other fixed food service 
establishment, used as a base of operation for mobile food establishments, shall 
be constructed and operated in compliance with the requirements of these rules. 
(c) Servicing area and operations. 
(1) Protection. 
(A) A mobile food establishment servicing area shall be provided and shall 
include at least overhead protection for any supplying, cleaning, or servicing 
operation except those areas used only for the loading of water and/or the 
discharge of sewage and other liquid waste, through the use of a closed system 
of hoses, need not be provided with overhead protection. 
(B) Within this servicing area, a location provided for the flushing and 
drainage of liquid wastes shall be separate from the location provided for water 
servicing and for the loading and unloading of food and related supplies. 
(C) This servicing area will not be required where only packaged food is placed 
on the mobile food establishment or where mobile food establishments do not 
contain waste retention tanks. 
(D) The surface of the servicing area shall be constructed of a smooth 
nonabsorbent material, such as concrete or machine-laid asphalt and shall be 
maintained in good repair, kept clean, and be graded to drain.
(E) Potable water servicing equipment shall be installed in the servicing area 
according to law and stored and handled in a way that protects the water and 
equipment from contamination. 
(2) Construction exemption. The construction of the walls and ceilings of the 
servicing area is exempted from the provisions of sec.229.167(c)(1) of this 
title (relating to Physical Facilities). 

sec.229.170. Temporary Food Establishments.
(a) General. A temporary food establishment shall comply with the requirements 
of these rules except as otherwise provided in this section. The regulatory 
authority may impose additional requirements to protect against health hazards 
related to the conduct of the temporary food establishment, may prohibit the 
sale of some or all potentially hazardous foods, and when no health hazard will 
result, may waive or modify requirements of these rules.
(b) Food temperatures. All food temperature requirements shall be met as 
contained in sec.229.164(k)-(n) of this title (relating to Food).
(c) Ice. Ice that is consumed or that contacts food shall have been made under 
conditions meeting the requirements of these rules. The ice shall be obtained 
only in chipped, crushed, or cubed form and in single-use safe plastic or wet-
strength paper bags filled and sealed at the point of manufacture. Ice for 
consumption shall be held in their bags until it is dispensed in a way that 
protects it from contamination. 
(d) Equipment. 
(1) Design and construction. Equipment and utensils shall be designed and 
constructed to be durable and to retain their characteristic qualities under 
normal use conditions. 
(2) Location and installation. Equipment shall be located and installed and 
cleaned in a way that prevents food contamination and that also facilitates 
cleaning of the establishment. 
(3) Hot and cold holding equipment. Equipment for cooling or heating food, and 
holding cold or hot food shall be adequate in number and capacity to provide 
food temperatures as specified under sec.229.164(k)-(n) of this title. 
(4) Protection from contamination. Food-contact surfaces of equipment shall be 
protected from contamination by consumers and other contamination sources. Where 
necessary to prevent contamination, effective shields for such equipment shall 
be provided. 
(5) Alternative manual warewashing. Alternative manual warewashing equipment, 
such as receptacles that substitute for the compartments of a multi-compartment 
sink, may be used when there are special cleaning needs or constraints and the 
regulatory authority has approved the use of alternative equipment. 
(e) Single-service articles. A temporary food establishment shall provide only 
single-service articles for use by the consumer. 
(f) Water. Water from an approved source shall be made available in a temporary 
food establishment for food preparation, handwashing, and for cleaning and 
sanitizing utensils and equipment. Water need not be under pressure but shall 
come from approved sources which include: commercially bottled drinking water, 
closed portable water containers, enclosed vehicular water tanks, on-premise 
water storage tanks, or piping, tubing or hoses connected to an approved source.
(g) Wet storage. Packaged food may not be stored in direct contact with ice or 
water if the food is subject to the entry of water because of the nature of its 
packaging, wrapping, or container or its positioning in the ice or water. 
(h) Sewage. All waste water and sewage generated from the establishment shall be 
disposed of through an approved sanitary sewage system that is constructed, 
maintained and operated according to law. 
(i) Handwashing. Handwash facilities with water, soap and individual disposable 
towels shall be provided for employee handwashing. The handwash facility may 
consist of a container of water with spigot and catch pan or two separate 
basins, one for washing and one for rinsing. When food exposure is limited and 
handwash facilities are not available, the regulatory authority may permit the 
use of chemically treated towelettes for handwashing.
(j) Floors. If graded to drain, a floor may be concrete, machine-laid asphalt, 
dirt, or gravel if it is covered with mats, removable platforms, duckboards, or 
other suitable materials approved by the regulatory authority that are 
effectively treated to control dust and mud. 
(k) Ceilings and outer openings of food preparation areas.
(1) Ceilings. Ceilings shall be made of wood, canvas, or other materials that 
protect the interior of the establishment from the weather, windblown dust, 
birds, and debris. 
(2) Outer openings. The outer openings shall be protected against entry of 
insects and rodents by: 
(A) 16 mesh to 25.4 millimeters (16 mesh to 1 inch) screens;
(B) properly designed and installed air curtains; or 
(C) other effective means. 
(3) Exclusion provision. Paragraph (2) of this subsection does not apply if 
flying insects and other pests are absent due to the location of the 
establishment or other limiting condition. 

sec.229.171. Compliance and Enforcement.
(a) Use for intended purpose, public health protection. 
(1) Safeguarding public health. The regulatory authority shall apply these rules 
to promote its underlying purpose, as specified in sec.229.161 of this title 
(relating to Purpose), of safeguarding public health and ensuring that food is 
safe, unadulterated, and honestly presented when offered to the consumer. 
(2) Assessment of existing facilities. In enforcing the provisions of these 
rules, the regulatory authority shall assess existing facilities or equipment 
that were in use before the effective date of these rules based on the following 
considerations: 
(A) whether the facilities or equipment are in good repair and capable of being 
maintained in a sanitary condition; 
(B) whether food-contact surfaces comply with sec.229.165(a) of this title 
(relating to Equipment, Utensils, and Linens); and 
(C) whether the capacities of cooling, heating, and holding equipment are 
sufficient to comply with sec.229.165(g)(1) of this title.
(b) Additional requirements, preventing health hazards, provision for conditions 
not addressed. 
(1) Option to impose additional requirements. If necessary to protect against 
public health hazards or nuisances, the department may impose specific 
requirements in addition to the requirements contained in these rules if 
authorized by law. 
(2) Required documentation. The regulatory authority shall document the 
conditions that necessitate the imposition of additional requirements and the 
underlying public health rationale. A copy of the documentation shall be 
provided to the food establishment and the original shall be maintained in the 
regulatory authority's file for the food establishment. 
(c) Variances. 
(1) Modifications and waivers. The department's Retail Foods Division may grant 
a variance by modifying or waiving the requirements of these rules if in its 
opinion a health hazard or nuisance will not result from the variance. If a 
variance is granted, the department shall retain the information specified in 
paragraph (2) of this subsection in its records for the food establishment. 
(2) Documentation of proposed variance and justification. Before a variance from 
a requirement of these rules is approved, the information that shall be provided 
by the person requesting the variance shall include:
(A) a statement of the proposed variance of the rule requirement citing relevant 
rule section numbers; 
(B) an analysis of the rationale for how the potential public health hazards and 
nuisances addressed by the relevant rule sections will be alternatively 
addressed by the proposal; and 
(C) a Hazard Analysis Critical Control Point (HACCP) plan if required as 
specified in subsection (d)(1)(A) of this section that includes the information 
specified in subsection (d)(2)(A) of this section as it is relevant to the 
variance requested. 
(3) Conformance with Approved Procedures. If a variance is granted as specified 
in paragraph (1) of this subsection, or a HACCP plan is otherwise required as 
specified in subsection (d)(1) of this section, the food establishment shall: 
(A) comply with the HACCP plans and procedures that are submitted and approved 
as specified in subsection (d)(2) of this section as a basis for the 
modification or waiver; and 
(B) maintain and provide upon request, records specified in subsection (d)(2)(D) 
and (E) of this section that demonstrate that the following are routinely 
employed: 
(i) procedures for monitoring critical control points; 
(ii) monitoring of the critical control points; 
(iii) verification of the effectiveness of an operation or process; and 
(iv) necessary corrective actions if there is failure at a critical control 
point. 
(d) HACCP plan requirements. 
(1) When a HACCP plan is required. 
(A) Before engaging in an activity that requires a HACCP plan, a food 
establishment shall submit to the regulatory authority for approval a properly 
prepared HACCP plan as specified under paragraph (2) of this subsection and the 
relevant provisions of these rules if a variance is required as specified under 
sec.229.164(o)(1) of this title (relating to Food) or sec.229.165(f)(10)(B) of 
this title. 
(B) A food establishment shall have a properly prepared HACCP plan as specified 
under sec.229.164(o)(2) of this title. 
(2) Contents of a HACCP plan. For a food establishment that is required under 
paragraph (1) of this subsection to have a HACCP plan, the plan and 
specifications shall indicate: 
(A) a categorization of the types of potentially hazardous foods that are 
specified in the menu such as soups and sauces, salads, and bulk, solid foods 
such as meat roasts, or of other foods that are specified by the regulatory 
authority; 
(B) a flow diagram by specific food or category type identifying critical 
control points and providing information on the following: 
(i) ingredients, materials, and equipment used in the preparation of that food; 
and 
(ii) formulations or recipes that delineate methods and procedural control 
measures that address the food safety concerns involved; 
(C) food employee and supervisory training plan for the person(s) in charge and 
food employee(s) pertaining to public health and the safety and integrity of 
food; 
(D) a statement of standard operating procedures for the plan under 
consideration including and clearly identifying: 
(i) each critical control point; 
(ii) the critical limits for each critical control point;
(iii) the method and frequency for monitoring and controlling each critical 
control point by the food employee designated by the person in charge; 
(iv) the method and frequency for the person in charge to routinely verify that 
the food employee is following standard operating procedures and monitoring 
critical control points; 
(v) action to be taken by the person in charge if the critical limits for each 
critical control point are not met; and 
(vi) records to be maintained by the person in charge to demonstrate that the 
HACCP plan is properly operated and managed; and 
(E) additional scientific data or other information, as required by the 
regulatory authority, supporting the determination that food safety is not 
compromised by the proposal. 
(e) Confidentiality, trade secrets. The regulatory authority shall treat as 
confidential in accordance with the requirements of the Public Information Act, 
Texas Government Code, Chapter 552, information that meets the criteria for a 
trade secret and is contained on inspection report forms and in the plans and 
specifications submitted as specified in subsection (d)(2) of this section. 
(f) Permit requirement, prerequisite for operation. A person may not operate a 
food establishment without a valid permit or license to operate issued by the 
regulatory authority. 
(g) Conditions of permit retention, responsibilities of the permit holder. Upon 
acceptance of the permit issued by the regulatory authority, the permit holder 
in order to retain the permit shall: 
(1) post the permit in a location in the food establishment that is conspicuous 
to consumers; 
(2) comply with the provisions of these rules including the conditions of a 
granted variance as specified under subsection (c)(3) of this section; 
(3) if a food establishment is required under subsection (d)(1) of this section 
to operate under a HACCP plan, comply with the plan as specified under 
subsection (c)(3) of this section; 
(4) immediately discontinue operations and notify the regulatory authority if an 
imminent health hazard exists as specified in subsection (k) of this section; 
(5) allow representatives of the regulatory authority access to the food 
establishment as specified under subsection (i)(1) of this section; 
(6) except as specified in paragraph (7) of this subsection, replace existing 
facilities and equipment allowed in subsection (a) of this section with 
facilities and equipment that comply with these rules if: 
(A) the regulatory authority directs the replacement because the facilities and 
equipment constitute a public health hazard or nuisance or no longer comply with 
the criteria upon which the facilities and equipment were accepted; 
(B) there is a change of ownership in the establishment; or
(C) the facilities and equipment are replaced in the normal course of operation. 
(7) upgrade or replace refrigeration equipment as specified under 
sec.229.164(n)(6)(C) of this title if the circumstances specified under 
paragraph (6)(A)-(C) of this subsection do not occur first, and five years pass 
after adoption of these rules by the department; 
(8) comply with directives of the regulatory authority including time frames for 
corrective actions specified in inspection reports, notices, orders, warnings, 
and other directives issued by the regulatory authority in regard to the permit 
holder's food establishment or in response to community emergencies; 
(9) accept notices issued and served by the regulatory authority according to 
law; and 
(10) be subject to the administrative, civil, injunctive, and criminal remedies 
authorized under law for failure to comply with these rules or a directive of 
the regulatory authority, including time frames for corrective actions specified 
in inspection reports, notices, orders, warnings, and other directives. 
(h) Inspection frequency, performance-based and risk-based. The regulatory 
authority should inspect each food establishment at least once every six months. 
If the regulatory authority cannot meet this frequency, inspection frequency 
shall be prioritized based upon assessment of a food establishment's history of 
compliance with these rules and the potential for causing foodborne illness by 
evaluating: 
(1) past performance for noncompliance with these rules, including HACCP plan 
requirements, that are critical; 
(2) past performance, for numerous or repeat violations of these rules, 
including HACCP plan requirements, that are noncritical; 
(3) the hazards associated with the particular foods that are prepared, stored, 
or served; 
(4) the type of operation including the methods and extent of food storage, 
preparation, and service; 
(5) the number of people served; 
(6) whether the population served is a highly susceptible population; and 
(7) any other risk factor deemed relevant to the operation by the regulatory 
authority. 
(i) Access. 
(1) Allowed at reasonable times after due notice. After the regulatory authority 
presents official credentials, the person in charge shall allow the regulatory 
authority to determine if a food establishment is in compliance with these rules 
by allowing access to the establishment, allowing inspection, and providing 
information pertaining to food and supplies purchased, received or used, or to 
persons employed and records specified in these rules during the food 
establishment's hours of operation and other reasonable times.
(2) Refusal, notification of right to access, and final request for access. If a 
person denies access to the regulatory authority, the regulatory authority 
shall: 
(A) inform the person that: 
(i) the food establishment is required to allow access to the regulatory 
authority as specified under this subsection; 
(ii) access is a condition of the acceptance and retention of a food 
establishment permit to operate as specified under subsection (g)(5) of this 
section; and 
(iii) if access is denied, an order issued by the appropriate authority allowing 
access, hereinafter referred to as an inspection warrant, may be obtained 
according to law; and 
(B) make a final request for access. 
(3) Refusal, reporting. If after the regulatory authority presents credentials 
and provides notice as specified under paragraph (1) of this subsection, 
explains the authority upon which access is requested, and makes a final request 
for access as specified in paragraph (2) of this subsection, the person in 
charge continues to refuse access, the regulatory authority shall provide 
details of the denial of access on an inspection report form. 
(4) Inspection warrant to gain access. If denied access to a food establishment 
for an authorized purpose and after complying with paragraph (2) of this 
subsection, the regulatory authority may issue, or apply for the issuance of, an 
inspection warrant to gain access as provided under law. 
(j) Report of findings. 
(1) Documenting information and observations. The regulatory authority shall 
document administrative information about the establishment's legal identity and 
all other findings and observations on the inspection report form. A copy of the 
inspection report form shall be furnished to the owner or person in charge which 
constitutes a written notice. The inspection report form shall summarize the 
inspectional findings, and shall set forth a weighted point value for each 
classification of inspection items. The total demerits of the establishment 
shall be the cumulative total of the demerit values of the inspection items. 
(2) Specifying time frame for corrections. The regulatory authority shall 
specify on the inspection report form the time frame for correction of the 
violations as specified under subsections (k)(1), (l)(1), and (m) of this 
section. 
(3) Issuing report and obtaining acknowledgment of receipt. At the conclusion of 
the inspection and according to law, the regulatory authority shall provide a 
copy of the completed inspection report and the notice to correct violations to 
the permit holder or to the person in charge, and request that the person in 
charge during the inspection sign the completed inspection report. 
(4) Refusal to sign acknowledgment. The regulatory authority shall: 
(A) inform a person who declines to sign an acknowledgment of receipt of 
inspectional findings as specified in paragraph (3) of this subsection that: 
(i) an acknowledgment of receipt is not an agreement with findings; 
(ii) refusal to sign an acknowledgment of receipt will not affect the permit 
holder's obligation to correct the violations noted in the inspection report 
within the time frames specified; 
(iii) a refusal to sign an acknowledgment of receipt is noted in the inspection 
report and conveyed to the regulatory authority's historical record for the food 
establishment; and 
(B) make a final request that the person in charge sign an acknowledgment of 
receipt of inspectional findings. 
(5) Public information. Unless prohibited by law and except as specified in 
subsection (e) of this section, the regulatory authority shall treat the 
inspection report as a public document and shall make it available for 
disclosure upon request. 
(6) Inspection report form. For the purposes of Chapter 437, Texas Health and 
Safety Code, the department adopts the Retail Food Establishment Inspection 
Report form as specified in the following figure: 
Figure: 25 TAC sec.229.171(j)(6)
(k) Imminent health hazards. 
(1) Ceasing operations and reporting. 
(A) Except as specified in subparagraph (B) of this paragraph, a food 
establishment shall immediately discontinue operations and notify the regulatory 
authority if an imminent health hazard may exist because of an emergency such as 
a fire, flood, extended interruption of electrical or water service, sewage 
backup, misuse of poisonous or toxic materials, onset of an apparent foodborne 
illness outbreak, gross insanitary occurrence or condition, or other 
circumstance that may endanger public health. 
(B) A permit holder need not discontinue operations in an area of an 
establishment that is unaffected by the imminent health hazard.
(2) Resumption of operations. If operations are discontinued as specified under 
paragraph (1) of this subsection or otherwise according to law, the permit 
holder shall obtain approval from the regulatory authority before resuming 
operations. 
(l) Critical violations, time frame for corrections. 
(1) Timely correction. 
(A) Except as specified in subparagraph (B) of this paragraph, the food 
establishment shall at the time of inspection implement immediate corrective 
actions of all food (PHF) temperature violations; personnel/handling/source 
requirement violations; facility and equipment requirement violations; any HACCP 
plan provision that is not in compliance with its critical limit; and all other 
critical violations noted. 
(B) Considering the nature of the potential hazard involved and the complexity 
of the corrective action needed, the regulatory authority may agree to or 
specify a longer time frame, not to exceed 10 calendar days after the 
inspection, for the food establishment to correct facility and equipment 
requirement violations. 
(2) Verification and documentation of correction.
(A) After observing at the time of inspection a correction of a violation, the 
regulatory authority shall document the violation and note the corrective action 
on the inspection report. 
(B) As specified under paragraph (1)(B) of this subsection, if immediate 
correction is not achieved, the regulatory authority shall verify correction of 
the violation made at the time of the next inspection, document the information 
on the inspection report, and enter the report in the regulatory authority's 
records. 
(C) When the total cumulative demerit value of an establishment exceeds 30 
demerits, the establishment shall initiate immediate corrective action on all 
identified critical violations and shall initiate corrective action on all other 
violations within 48 hours. One or more reinspections shall be conducted at 
reasonable time intervals to assure correction. 
(D) In the case of temporary food establishments, all critical violations must 
be corrected immediately and other violations must be corrected within 24 hours 
or sooner if required by the regulatory authority. If violations are not 
corrected, the establishment shall immediately cease food operations until 
authorized to resume by the regulatory authority. 
(m) Other violations, time frame for corrections. 
(1) Time frame. Except as specified in paragraph (2) of this subsection, the 
food establishment shall correct all other violations as soon as possible, and 
in any event, by the time of the next routine inspection, but no later than 90 
calendar days after the inspection. 
(2) Extension of compliance schedule. The regulatory authority may approve a 
compliance schedule that extends beyond the time limits specified under 
paragraph (1) of this subsection if a written schedule of compliance is 
submitted by the food establishment and no health hazard exists or will result 
from allowing an extended schedule for compliance. 
(n) Examination and detention of food. The regulatory authority may examine and 
collect samples of food as often as necessary for the enforcement of these 
rules. A receipt for samples shall be issued by the regulatory authority. The 
department shall, upon written notice to the owner or person in charge 
specifying the reason therefor, place under detention any food which it has 
probable cause to believe is adulterated or misbranded in accordance with the 
provisions of the Texas Food, Drug, and Cosmetic Act, Texas Health and Safety 
Code, Chapter 431. 
(o) Investigation and control. 
(1) Obtaining information: personal history of illness, medical examination, and 
specimen analysis. The regulatory authority shall act when it has reasonable 
cause to believe that a food employee has possibly transmitted disease; may be 
infected with a disease in a communicable form that is transmissible through 
food; may be a carrier of infectious agents that cause a disease that is 
transmissible through food; or is affected with a boil, an infected wound, or 
acute respiratory infection by requiring appropriate medical examinations, 
including collection of specimens for laboratory analysis, of a suspected 
employee and other employees. 
(2) Restriction or exclusion of food employee, establishment closure. Based on 
the findings of an investigation related to an employee who is suspected of 
being infected or diseased, the regulatory authority may require any or all of 
the following: 
(A) immediately restricting the employee's services to specific areas and tasks 
in a food establishment that present no risk of transmitting the disease; 
(B) immediately excluding the employee from all food establishments; or 
(C) immediately closing the food establishment until, in the opinion of the 
regulatory authority, no further danger of disease outbreak exists. 
(3) Restriction or exclusion order: warning or hearing not required, information 
required in order. Based on the findings of the investigation as specified in 
paragraph (1) of this subsection and to control disease transmission, the 
regulatory authority may issue an order of restriction or exclusion to a 
suspected employee or the permit holder without prior warning, notice of a 
hearing, or a hearing if the order: 
(A) states the reasons for the restriction or exclusion that is ordered; 
(B) states the evidence that the employee or permit holder shall provide in 
order to demonstrate that the reasons for the restriction or exclusion are 
eliminated; 
(C) states that the suspected employee or the permit holder may request an 
appeal hearing by submitting a timely request as provided under law; and 
(D) provides the name and address of the regulatory authority representative to 
whom a request for an appeal hearing may be made. 
(4) Release of employee from restriction or exclusion. The regulatory authority 
shall release an employee from restriction or exclusion according to Texas 
Health and Safety Code, Chapter 438, sec.438.033 and the following conditions: 
(A) an employee who was infected with Salmonella typhi if the employee's stools 
are negative for S. typhi based on testing of at least three consecutive stool 
specimen cultures that are taken: 
(i) not earlier than one month after onset; 
(ii) at least 48 hours after discontinuance of antibiotics; and 
(iii) at least 24 hours apart; 
(B) if one of the cultures taken as specified in subparagraph (A) of this 
paragraph is positive, repeat cultures are taken at intervals of one month until 
at least three consecutive negative stool specimen cultures are obtained; 
(C) an employee who was infected with Shigella spp. or Escherichia coli O157:H7 
if the employee's stools are negative for Shigella spp. or E. coli O157:H7 based 
on testing of two consecutive stool specimen cultures that are taken:
(i) not earlier than 48 hours after discontinuance of antibiotics; and 
(ii) at least 24 hours apart; and 
(D) an employee who was infected with hepatitis A virus if:
(i) symptoms cease; or 
(ii) at least two blood tests show falling liver enzymes.
(p) Reporting of communicable diseases. 
(1) Who shall report. Certain persons, as required in Texas Health and Safety 
Code, Chapter 97, sec.97.2, shall report certain confirmed and suspected 
foodborne diseases. 
(2) What to report. Confirmed and suspected cases of the following diseases, 
including, but not limited to the following, are reportable: botulism; 
campylobacteriosis; cryptosporidiosis; Escherichia coli 0157:H7; hepatitis A, 
acute viral; listeriosis; salmonellosis; shigellosis; trichinosis; and Vibrio 
infection. 
(3) When to report. Reporting of communicable diseases shall be done in 
accordance with Texas Health and Safety Code, Chapter 97, sec.97.4. 
(4) Where to report. Persons required to report communicable diseases shall 
report to the local health authority, or in the case where there is no local 
health authority, the report shall be made to the department's Regional Director 
as required in Texas Health and Safety Code, Chapter 97, sec.97.5. 
(5) Reporting and other duties of local health authorities and regional 
directors. Local health authorities and regional directors shall report 
communicable diseases to the department as provided for in Texas Health and 
Safety Code, Chapter 97, sec.97.6. 
(q) Food establishment inspector qualifications. An individual conducting 
inspections of retail food establishments should be a Registered Professional 
Sanitarian in Texas, as defined in Texas Health and Safety Code, Chapter 337, 
sec.337.181, or meet the equivalent educational requirements in order to: 
(1) assure application of basic scientific principles, including HACCP 
principles of food safety, during inspections; 
(2) properly conduct foodborne illness investigations;
(3) assure uniformity in the interpretations of these rules; and 
(4) assure fair and uniform enforcement of these rules.

sec.229.173.Heimlich Maneuver Poster.
(a) Purpose. The purpose of this section is to establish the requirements for 
signs depicting the Heimlich Maneuver for dislodging an obstruction from a 
choking person. 
(b) Placement. The prescribed sign shall be in all food service establishments 
and shall be in a place conspicuous to employees or customers.
(c) Implementation date. This rule shall be implemented 90 days after the 
effective date of the rule. 
(d) Specifications. The prescribed sign shall meet the following poster 
requirements: 
(1) the poster shall be printed on white 70 pound gloss coated cover stock and 
shall be no smaller than 15 inches wide by 18 inches long;
(2) the poster shall be printed in English and Spanish and in at least two 
conspicuous contrasting colors. Major title and figure blocks shall be in 
contrasting color to remaining copy blocks; 
(3) major poster headings shall be a minimum Bengeat Bold 72 point or 
equivalent; 
(4) subheadings shall be a minimum Bengeat Bold Italic 60 point or equivalent; 
(5) remaining subheadings shall be a minimum Bengeat Bold 24 point or 
equivalent; and 
(6) body copy shall be Helios Bold 14 point or equivalent.
(e) Camera ready copies. Camera ready copies of the sign shall be available for 
reproduction purposes upon written request to: Texas Department of Health, 
Retail Foods Division, 1100 West 49th Street, Austin, Texas 78756-3182.

sec.229.174.Bed and Breakfast Extended Establishments. 
(a) General. Bed and breakfast extended establishments shall comply with these 
minimum requirements of this section. 
(b) Food supplies. Food shall be obtained from approved sources, shall be in 
sound condition, and be safe for human consumption. 
(c) Food preparation and protection. 
(1) Food preparation and protection. Food shall be prepared and protected in 
accordance with these rules. 
(2) Temperature requirements. All food temperature requirements shall be met as 
contained in sec.229.164(k)-(n) of this title (relating to Food). 
(d) Cleaning and sanitizing. 
(1) Manual. A three compartment sink shall be used if washing, rinsing and 
sanitizing of utensils and equipment is done manually; or a two compartment sink 
may be utilized if single service tableware is provided, or when an approved 
detergent sanitizer is used. 
(2) Mechanical. Cleaning and sanitizing may be done by spray-type or immersion 
dishwashing machines or by any other type of machine or device if it is 
demonstrated that it thoroughly cleans and sanitizes equipment and utensils 
either by chemical or mechanical sanitization. 
(e) Personal hygiene. Employees shall conform to good hygienic practices as 
required in these rules. 
(f) Employee restrooms. A restroom shall be available for use by employees. 
(g) Equipment and utensil design and construction. All equipment and utensils 
shall be constructed of safe materials and maintained in good repair. 
(h) Handsinks. 
(1) Location. An accessible and conveniently located handwash sink shall be 
provided in or immediately adjacent to food preparation areas.
(2) Intended use. Handsink(s) shall be used for no other purpose other than 
handwashing. 
(i) Food-contact surfaces. All food contact surfaces, counters, or work surfaces 
in the establishment shall be smooth, non-absorbent and easily cleanable. 
(j) Insect proof/rodent proof. 
(1) Construction. Food service preparation and storage areas shall be 
constructed and maintained to prevent the entry of pests and other vermin. 
(2) Chemical control. Pesticides and rodenticides shall be applied according to 
law. 
(k) Equipment. Equipment shall be provided to maintain potentially hazardous 
foods at the temperatures required by these rules. 
(l) Garbage receptacles. Impervious receptacles shall be provided for storage of 
garbage and refuse. 
(m) Sewage. Sewage shall be disposed through an approved facility that is: 
(1) a public sewage treatment plant; or 
(2) an individual sewage disposal system that is sized, constructed, maintained, 
and operated according to law. 
(n) Water supply. Hot and cold water under pressure shall be provided and shall 
be from an approved source. 

sec.229.175. Outfitter Operations.
(a) General. Requirements in this section are specific for Outfitter Operations. 
The regulatory authority may impose additional requirements to protect against 
health hazards which may be specific to these operations.
(b) Food supplies. Food supplies, including ice, shall be obtained from approved 
sources. No home prepared products shall be offered.
(c) Food temperatures. All food temperature requirements shall be met as 
contained in sec.229.164(k)-(n) of this title (relating to Food).
(d) Warewashing. Alternative manual warewashing equipment, such as receptacles 
that substitute for the compartments of a multi-compartment sink, may be used 
for washing and sanitizing utensils when approved by the regulatory authority. 
Outfitters without effective facilities for cleaning and sanitizing tableware 
shall only provide single-service articles for use by food employees and 
consumers. 
(e) Ice usage. Ice that is used for cooling food may not be used for human 
consumption. 
(f) Potable water. Potable water shall be used on excursions for food 
preparation, handwashing, and for cleaning and sanitizing utensils and 
equipment. 
(g) Handwashing lavatory. Facilities for handwashing shall be provided for 
employee usage. The facility may consist of a container of water with spigot and 
catch pan or two separate basins, one for washing and one for rinsing, with soap 
and individual paper towels. If approved by the regulatory authority, chemically 
treated towelettes for handwashing may be used. 
(h) Equipment. All equipment and utensils intended for food contact shall be 
approved for food use. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 18, 1998.
TRD-9808060
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER N.Retail Food Store Sanitation
25 TAC sec.sec.229.231-229.239
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The repeal is under Health and Safety Code, sec.431.241 and the Health and 
Safety Code, sec.12.001 which provides the board with authority to adopt rules 
for the performance of every duty imposed by law on the board, the department, 
and the commissioner of health. 
The repeal will affect Health and Safety Code, Chapter 431. 
sec.229.231.General Provisions. 
sec.229.232.Food.
sec.229.233.Personnel.
sec.229.234.Equipment and Utensils.
sec.229.235.Cleaning, Sanitization and Storage of Equipment and Utensils.
sec.229.236.Sanitary Facilities and Controls. 
sec.229.237.Construction and Maintenance of Physical Facilities. 
sec.229.238.Compliance Procedures. 
sec.229.239.Enactment Provision. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 18, 1998.
TRD-9808058
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 458-7236

SUBCHAPTER Y.Regulations to Restrict the Sale and Distribution of Foods, Drugs, 
and Dietary Supplements Containing Ephedrine
25 TAC sec.sec.229.461-229.462
The Texas Department of Health (department) proposes new sec.229.461 and 
sec.229.462, concerning the regulations to restrict the sale and distribution of 
products containing ephedrine. The Board of Health (board) has received 
information from every area of the state that products containing ephedrine have 
been misused and abused and are causing injury to users. In accordance with the 
Health and Safety Code, Chapter 483, the board has made a determination that 
products containing ephedrine should be limited to prescription only. 
Specifically, the sections cover restrictions on the sale, distribution, 
marketing, and labeling of most products containing ephedrine. Plant materials 
containing naturally-occurring concentrations of ephedrine alkaloids are 
exempted from the prescription requirement. The sections are proposed to address 
compelling, documented evidence that ephedrine-containing products are being 
abused and misused and that their use has the potential to cause harm. Since 
1993, the department has received more than 1,200 reports of persons who sought 
medical attention after experiencing adverse reactions and injury associated 
with consumption of these products. Many of the reports are calls to Texas 
Poison Control Centers from hospital emergency room personnel treating children 
following misuse or abuse of over the counter ephedrine drug products that were 
freely obtained from schoolmates, corner convenience stores, and by mail order. 
The children report taking the drug to "get high," lose weight, enhance athletic 
performance, and as "legal" substitutes for illicit drugs such as amphetamines. 
Most of the reports involve misuse and/or abuse of the products for indications 
for which the products have not been proven safe and effective. These uses 
include, but are not limited to, weight loss, stimulation, euphoria, ergogenic 
(performance enhancement) and attention deficit disorder. Several patients 
report they developed a dependence on ephedrine and that they experienced 
withdrawal symptoms without regular use. The only approved, legitimate drug use 
for ephedrine is as a decongestant and a bronchodilator for mild asthmatics. 
Because safer, more effective drugs for asthma have been available for many 
years, legitimate medical uses for ephedrine have decreased dramatically. An 
exemption is provided for certain over the counter asthma products, hemorrhoid 
creams and ephedrine-containing plant materials for which there is no evidence 
of abuse or misuse. The department convened two panels consisting of 
practitioners from various medical disciplines and scientific experts to review 
the reports and they concluded that the products were not safe for self-
medication.
The sections classify ephedrine products as not generally recognized safe and 
effective for over-the-counter use and further limit their availability to the 
prescription of a licensed practitioner. Ephedrine products not exempted are 
classified as dangerous drugs and would continue to be available for use only 
under the supervision of a licensed practitioner. 
The sections also prohibit the marketing, advertising, and labeling of 
ephedrine-containing products for indications not approved by the United States 
Food and Drug Administration in an over-the-counter monograph or new drug 
application. 
Approximately 30 states have proposed or finalized restrictions on ephedrine 
products that are more stringent than the existing federal regulations. It is 
estimated that 20 states have placed selected ephedrine products on prescription 
status, and, of that number, 12 states placed them in the schedules of 
controlled substances. 
The board held a public hearing on November 20, 1996, to determine whether there 
is compelling evidence that ephedrine has been abused by being prescribed for 
nontherapeutic purposes or by the ultimate user. The record was held open until 
May 15, 1998, for the submission of documents, studies and additional 
information from interested persons. The board has determined that ephedrine is 
unsafe for self-medication and should be limited to the prescription of a 
licensed practitioner. 
Cynthia T. Culmo, R.Ph., Director, Drugs and Medical Devices Division, has 
determined that for the first five-year-period the sections are in effect there 
will be fiscal implications as a result of enforcing or administering the 
sections as proposed since sales and possession in any manner other than by 
prescription will be illegal. These costs cannot be determined since the 
occurrences will vary in degree of complexity. There will be no fiscal 
implications to local governments. 
Ms. Culmo also has determined that for each year of the first five years the 
sections are in effect the public benefit will be a decrease in injuries 
resulting from the use, abuse, and misuse of ephedrine-containing products, 
particularly among school age children. The effect on small businesses will be 
the requirement to reformulate and relabel noncompliant products, or discontinue 
distribution of ephedrine-containing products not exempted in Texas. The 
anticipated economic cost to persons or small businesses who are required to 
comply with the sections as proposed is not known. The cost cannot be accurately 
estimated since the number of manufacturers, distributors and total revenue from 
sales of these products in Texas is not known. Relating to ephedrine drug 
products, 53 Texas applicants to the U.S. Drug Enforcement Administration for 
permits to wholesale distribute drug products containing ephedrine, 
pseudoephedrine and phenylpropanolamine as List I Chemicals, reported sales for 
the three substances combined accounted for less than 10% of total sales volume 
for 48 of the 53 firms that applied and less than 1.0% for 25 of the 53 firms. 
The number and sales volume in Texas of nonexempted food and dietary supplement 
products containing concentrated or extracted alkaloids is also not known. 
Reports of sales vary widely, but the department believes there are more than 
two hundred products with Texas annual sales of up to $100 million. The safety 
to the public would outweigh the cost to industry by greatly reducing the public 
health risks, accompanying medical expenses and lost productivity associated 
with the use, misuse, and abuse of these products. The effect on local 
employment also cannot be anticipated. A number of the products are sold by 
independent distributors. Should manufacturers decide to reformulate their 
products, there may be no effect on local employment. However, if they choose 
not to reformulate, the effect on local employment may be severe. 
Comments on the proposed amendments may be submitted to Cynthia T. Culmo, R.Ph., 
Director, Drugs and Medical Devices Division (DMDD), 1100 West 49th Street, 
Austin, Texas 78756-3182, (512) 719-0237. Public comments will be accepted for 
30 days after publication of the sections in the Texas Register. In addition, a 
public hearing on the proposed sections will be held from 9:00 a.m. to 5:00 
p.m., June 3, 1998, in the Board Room, Room M-739, Moreton Building, Texas 
Department of Health, 1100 West 49th Street, Austin, Texas 78756. Further 
information on the public hearing may be obtained from Gary Coody, R.Ph. or 
Karen Tannert, R.Ph., DMDD, at (512) 719-0237.
The new sections are proposed under Health and Safety Code, sec.483.003, which 
gives the board the authority to limit the availability of an abused drug by 
permitting its dispensing only on the prescription of a practitioner; 
sec.431.021, which prohibits the introduction or delivery into commerce of any 
food or drug that is adulterated and prohibits the dissemination of any false 
advertisement; and sec.431.241, and sec.12.001, which provide the board with 
authority to adopt rules for the performance of every duty imposed by law on the 
board, the department, and the commissioner of health.
The new sections will affect Texas Health and Safety Code, Chapter 431.

sec.229.461. Regulations to Restrict the Sale and Distribution of Products 
Containing Ephedrine.
(a) Products containing ephedrine, its salts, optical isomers or salts of 
optical isomers, are dangerous drugs as defined in the Health and Safety Code, 
Chapter 483, relating to Dangerous Drugs. 
(b) Except for subsections (c) and (d), no product containing ephedrine, its 
salts, optical isomers or salts of optical isomers shall be sold, distributed, 
introduced into commerce, manufactured, produced, packaged, exposed, offered, 
possessed or held for sale, dispensed or given away in this state except as 
dispensed upon the prescription of a licensed practitioner.
(c) The following formulations are exempt from the designation as dangerous 
drugs under subsection (a) of this section, and the dispensing restrictions 
under subsection (b) of this section: 
(1) solid dosage forms that combine active ingredients in the following ranges 
for each recommended dose: ephedrine, its salts, optical isomers or salts of 
optical isomers not to exceed 12.5 milligrams (mg) combined with at least 200 mg 
guiafenesin; ephedrine, its salts, optical isomers or salts of optical isomers 
not to exceed 25 mg combined with at least 400 mg guiafenesin; 
(2) liquid oral dosage forms that combine active ingredients in the following 
ranges for each 5 milliliter (ml) dose: dextromethorphan HBr (not more than 10 
mg), chlorpheniramine maleate (not more than 2 mg), ephedrine HCl (not more than 
5 mg), phenylephrine (not more than 5 mg), ammonium chloride (not more than 40 
mg), ipecac fluidextract (not more than 0.005 ml);
(3) anorectal preparations containing less than 5.0% ephedrine; 
(4) nasal decongestant preparations containing 0.5% or less ephedrine; and 
(5) any ephedrine-containing drug product that is marketed pursuant to an 
approved new drug application under the Federal Food, Drug, and Cosmetic Act. 
(d) Plant materials that are minimally processed (limited to drying and grinding 
the aerial portions of the plant) containing naturally-occurring ephedrine 
alkaloids are exempt from the provisions of this section. Any reformulation or 
processing of ephedrine-containing herbs and plants which increase the ephedrine 
alkaloid concentration above naturally occurring amounts shall not be exempt 
from the provisions of this section. 

sec.229.462. Restrictions on Marketing, Advertising, or Labeling of Ephedrine 
Products. 
The marketing, advertising, or labeling of any product containing ephedrine, its 
salts, optical isomers, or salts of optical isomers, for the indication of 
stimulation, alteration of consciousness, euphoria, as a "legal" substitute for 
an illicit drug, mental alertness, weight loss, appetite control, performance 
enhancement, attention deficit disorder, or any indication not approved by the 
United States Food and Drug Administration in an over-the-counter monograph or 
new drug approval, is prohibited. In determining compliance with this 
requirement the department may consider the following factors: 
(1) packaging of the drug product; 
(2) name and container labeling of the product; 
(3) manners of distribution, advertising, and promotion of the product; 
(4) verbal representations made concerning the product; and 
(5) duration, scope, and significance of abuse of the particular product. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 15, 1998.
TRD-9808006
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 458-7236

CHAPTER 295.Occupational Health
SUBCHAPTER C.Texas Asbestos Health Protection
25 TAC sec.sec.295.31-295.35, 295.37-295.56, 295.57, 295.58-295.62, 295.64, 
295.65, 295.66, 295.68-295.71, 295.73
The Texas Department of Health (department) proposes amendments to 
sec.sec.295.31-295.35, 295.37-295.56, 295.58-295.62, 295.64, 295.65, 295.68-
295.71, 295.73, and new sec.295.57 and sec.295.66 concerning licensing and 
accreditation for asbestos activities in public and commercial buildings. The 
primary purpose of the proposed amendments is to make the state rules as 
stringent as the federal Environmental Protection Agency (EPA) Model 
Accreditation Plan (MAP). In 1990, Congress enacted the Asbestos School Hazard 
Abatement Reauthorization Act (ASHARA). This law amended the Asbestos Hazard 
Emergency Response Act (AHERA) to extend training and accreditation requirements 
to certain persons performing work in public and commercial buildings. ASHARA 
also directed the EPA to revise its MAP. The revised MAP requires that persons 
working in public and commercial buildings as asbestos workers, 
contractor/supervisors, inspectors, and designers be accredited through training 
courses. The changes will make the rules as stringent as the MAP and the 
department will be able to accredit courses without requiring the training 
providers to seek approval in another state before seeking a license in Texas. 
The proposed changes are consistent with EPA language and do not impose any new 
requirements (such as licensing) on those performing asbestos related activities 
in "commercial" buildings. Other changes have been made to the rules in order to 
clarify points of confusion and to provide stronger, more effective rules to 
protect the health of the citizens of Texas. 
Section 295.31 expands the scope of the rule to include commercial buildings.
Section 295.32 adds new definitions and amends others: 
The definition of "accredited" was added and explains the basic difference 
between what is required in a public building and what is required in other 
buildings. 
The definition of "Asbestos-containing building material (ACBM)" was added.
The definition of "building owner" was changed to reflect the addition of 
commercial buildings. 
The definition of "Commercial Building" is taken from the MAP and modified only 
to identify those additional buildings that were not covered in the current 
rules. 
"Federal government owned building" and "industrial building" definitions were 
added as they are the specific buildings which were not previously included in 
the current rules. 
"Inspection", "major fiber release episode", "minor fiber release episode", 
"response action", and "small-scale, short-duration activities" are all terms 
that were taken directly from the MAP. 
Definitions of both "ACM" and "ACBM" have been added to clarify any 
misconceptions about the difference between asbestos, the mineral, and building 
materials that contain asbestos. The definition of "ACM" requires analysis of 
any distinct layer to determine whether the material in each distinct layer 
meets the definition.
A definition of "layer" is added. 
A definition for "operations and maintenance" is added. 
A definition for "plans and specifications" is added to explain, in the most 
basic terms, what is required. 
Changes have been made to the "start date" definition to be consistent with the 
National Emission Standard for Hazardous Air Pollutants (NESHAP) Changes were 
also made to the definition of the "stop date" to more accurately describe when 
an abatement is considered finished. 
All definitions will be numbered in new Texas Register format to comply with 1 
Texas Administrative Code sec.91.1 effective February 17, 1998. 
Section 295.33 is amended to eliminate federal rules that are no longer 
appropriate for purposes of the state rules. 
Section 295.34(c) has been modified to explain the differences in the 
requirements for an inspection in a public building versus a commercial building 
or facility.
Section 295.35 is amended to emphasize that all requirements for a license under 
TAHPR must be current when work is performed with that license. 
Section 295.37 is amended to be consistent with the Texas Asbestos Health 
Protection Act (TAHPA) by deleting the phrase "under a contract or hire 
agreement".
Section 295.38 is amended to add a requirement that contractor and agency 
applicants list their owners and certain stockholders. 
Section 295.39 is amended to remove the language concerning self insurance (now 
covered in Section 295.40). 
Section 295.40 is amended to include all language concerning self insurance.
Section 295.41 is amended to require that the license applicant pass the state 
licensing exam before qualifying for a license. 
Sections 295.42-295.46 are amended to update regulatory references to the old 
Occupational Safety and Health Administration (OSHA) regulations. A requirement 
to identify the responsible person for a company license applications was added. 
Section 295.47 is amended by requiring additional reviews, signature and 
approval of non-standard project designs. Changes were added to signature 
requirements for consultants performing project management with another 
consultant's specifications accepting responsibility of the contents. 
Section 295.48 is amended to describe when the consultant agency license is 
required. 
Section 295.49 is amended to more specifically describe the type of exam that is 
needed to qualify for the license. 
Section 295.50 is amended to require an apprenticeship before a inspector 
license can be granted. 
Section 295.51 is amended to change the experience requirements to become 
licensed as a management planner. 
Section 295.52 is amended to require an apprenticeship under the direct 
supervision of a licensed air monitor technician working for a licensed asbestos 
laboratory, contractor or a consultant. 
Section 295.53 is amended to specifically describe the activities a management 
planner agency is authorized to perform. 
Section 295.54 is amended to provide more options to become a licensed 
laboratory. 
Section 295.55 is amended to require a class photo for each training class, to 
require certificates to be signed by both the instructor and the director of 
training, to add currency requirements for certain instructors, to describe 
qualifications for guest speakers, and to address revocation or suspension of 
approvals related to training providers and instructors. 
Section 295.55(f)(6) and (g) are added to conform with the requirements in the 
MAP concerning the revocation or suspension of course approval of training 
providers or instructor approval and record keeping requirements for training 
providers. 
Section 295.56 is amended to require pollution liability insurance and to insure 
proper labeling of asbestos waste. 
Section 295.57 is added to require accreditation consistent with the MAP.
Section 295.58 is amended by adding more specific guidance regarding sampling 
for asbestos, project monitoring, and prohibitions. 
Section 295.59 is amended by changing ACM to ACBM, and adding a reference.
Section 295.60 is amended by adding a requirement for certain persons to certify 
non-standard project designs, new requirements for plastic sheeting, 
construction of view windows for a containment, and requirements for air 
monitoring.
Section 295.61 is amended by making changes to the fee structure for 
notifications including a reduction in the maximum fee from $10,000 to $3,000 
per notification. The responsibility to make notification is now shared by both 
the building owner and the asbestos project operator. 
Section 295.62 is amended to require training providers to maintain, for a 
minimum of 3 years, training course materials, instructor qualifications, 
examinations, accreditation certificates, and verification of certificate 
information. 
Section 295.64 is amended by adding requirements for examinations for Required 
Asbestos Training Courses. 
Section 295.65 is amended to add requirements related to examinations.
Section 295.66 is added to explain the process of deaccreditation. 
Section 295.68 is amended to require accredited persons to have their 
accreditation certificate at the worksite. 
Section 295.69 is amended by deleting the subsection relating to complaints 
regarding an asbestos supervisor. 
Section 295.70 is amended to make the failure to maintain ACM in an adequately 
wet condition a critical violation. 
Section 295.71 is amended to indicate that the Memorandum of Understanding 
between the department and the Texas Natural Resorces Conservation Commission 
(TNRCC) concerning regulation of waste disposal sites for asbestos has been 
completed and is in place. 
Section 295.73 is amended to require publication of notice of the Asbestos 
Advisory Committee meetings in the Texas Register.
Claren J. Kotrla, Director, Toxic Substances Control Division, has determined 
that for the first five-year period the sections are in effect, there will be 
fiscal implications as a result of administering the rules as proposed. The 
effect on state government will mean increased revenue to the department 
estimated to be $700,000 in FY 99, $700,000 in FY 2000, $700,000 in FY 2001, 
$700,000 in FY 2002, and $700,000 in FY 2003. It is estimated that the costs to 
the department to administer the new provisions will equal the estimated revenue 
increases. There will be no impact on local government to administer these 
changes and cost associated with asbestos removal is explained below.
Mr. Kotrla also has determined that for each year of the first five years the 
sections are in effect, the public benefits will include a reduction in the 
prevalence of asbestos containing material related diseases in the both the 
regulated community and the general public. There will be a fiscal impact on 
both small and large businesses and local goverment. Due to the changes in 
notification fees, the cost to abate non-friable ACBM will increase 
approximately 1.25%. This increase in the cost of removal for non-friable ACBM 
will diminish for projects larger than 19,200 sf or 31,200 lf due to the 
lowering of the maximum notification fee from $10,000 to $3,000. There will be 
no impact on individuals or local employment. 
Comments regarding the proposed changes may be submitted to Claren Kotrla, 
Director, Toxic Substances Control Division, Texas Department of Health, 1100 
West 49th Street, Austin, Texas 78756, (512) 834-6600. Comments will be accepted 
for 30 days following publication of this proposal in the Texas Register. In 
addition, public hearings will be held at 9:00 a.m., Tuesday, June 16, 1998, at 
the Hilton Airport Hotel, Texas Ballroom C, 611 Northwest Loop 410, San Antonio, 
Texas; 9:00 a.m., Friday, June 19, 1998, at the Hyatt Regency, Arboretum Room, 
1200 Louisiana Street, Houston, Texas; 9:00 a.m., Tuesday, June 23, 1998, at the 
Clarion Hotel, Enterprise Room 1, 1981 North Central Expressway, Richardson 
Texas; and 9:00 a.m., Friday, June 26, 1998 at the Holiday Inn, Texas Deck A, 
4300 West Business 20, Midland, Texas. Individuals needing special assistance 
should contact Todd Wingler, Chief, Asbestos Programs Branch, at (512) 834-6610, 
at least three working days prior to the meeting so that appropriate 
arrangements can be made. The hearing impaired may call T.D.D. (512) 458-7708. 
The amendments are proposed under Texas Civil Statutes, Article 4477-3a, which 
provides the Board of Health (board) with the authority to adopt rules regarding 
asbestos removal, encapsulation or enclosure, including licensing and 
regulation; Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, House 
Bill 1680 and House Bill 1826, 73rd Legislature, 1993, which amended Article 
4477-3a; and by Health and Safety Code, sec.12.001 which provides the board with 
authority to adopt rules to implement every duty imposed by law on the board, 
the department, and the commissioner of health. 
These amendments implement Texas Civil Statutes, Article 4477-3a. 

sec.295.31. General Provisions. 
(a) (No change.) 
(b) Purpose. The purpose of these sections is to establish the means of control 
and minimization of public exposure to airborne asbestos fibers, a known 
carcinogen and dangerous health hazard, by regulating asbestos disturbance 
activities in buildings that afford public access or occupancy <nl> and in 
commercial buildings<ol>. 
(c) Scope. 
(1) For the purposes of licensure and procedures in public buildings<nl>:<ol> 
[.] 
(A) Rules application. These sections apply to all buildings which are subject 
to public occupancy, or to which the general public has access, and to all 
persons disturbing, removing, encapsulating, or enclosing asbestos within public 
buildings for any purpose, including repair, renovation, dismantling, 
demolition, installations, or maintenance operations, or any other activity that 
may involve the disturbance or removal of asbestos-containing material (ACM) 
whether intentional or unintentional. Also included are the qualifications for 
licensure of persons, and requirements for compliance with these sections and 
all applicable standards of the United States Environmental Protection Agency 
and the United States Occupational Safety and Health Administration as adopted. 
(B) Exclusions. Private residences and apartment buildings with no more than 
four dwelling units are excluded from coverage by these rules. Except as 
provided in subsection (c)(2) <nl>and (c)(3)<ol> of this section, industrial or 
manufacturing facilities, in which access is controlled and limited principally 
to employees therein because of processes or functions dangerous to human health 
and safety, federal buildings and military installations are excluded from 
coverage by these rules. 
(2) For the purposes of Federal National Emission Standards for Hazardous Air 
Pollutants (NESHAP) enforcement only: sec.sec.295.32; 295.34(a), (b)(1)-(3), 
(c), and (f); 295.61; 295.67-68; 295.70; and 295.71 of this title (relating to 
Texas Asbestos Health Protection) apply to all facilities. These sections shall 
apply to the extent necessary to allow the department to adopt and enforce the 
federal NESHAP. For facilities which are not otherwise subject to this title as 
public buildings, the department will apply and enforce these sections in a 
manner consistent with the NESHAP. 
<nl>(3)<ol> <p<nl> For purposes of enforcing the Environmental Protection Agency 
(EPA) Asbestos Model Accreditation Plan (MAP) in commercial buildings, 
sec.sec.295.31, 295.32, 295.33, 295.34, 295.57, 295.64 (except (a)-(e) and (i)-
(j), 295.66 and 295.68 apply. For buildings which are not otherwise subject to 
this title as public buildings, the department will apply and enforce these 
sections in a manner consistent with the MAP.
(d)-(e) (No change.) 

sec.295.32. Definitions.
The following words and terms, when used with these sections, shall have the 
following meaning, unless the context clearly indicates otherwise.
<nl>(1)<ol> <p<nl> Accredited person - A person who has taken and passed an EPA 
approved asbestos model accreditation plan training course within the last year. 
<nl>(2)<ol> <p<nl> Adequately wet - Sufficiently mixed or penetrated with liquid 
to prevent the release of particulates. If visible emissions are observed coming 
from asbestos-containing material, then that material has not been adequately 
wetted. However, the absence of visible emissions is not sufficient evidence of 
being adequately wet. 
<nl>(3)<ol> <p<nl> Asbestos-containing building material (ACBM) - Surfacing ACM, 
thermal system insulation ACM, or miscellaneous ACM that is found in or on 
interior structural members or other parts of a public or commercial building. 
<nl>(4)<ol> Asbestos-containing material (ACM) - Materials or products that 
contain more than 1.0% of any kind or combination of asbestos, as determined by 
Environmental Protection Agency (EPA) recommended methods as listed in 40 Code 
of Federal Regulations, (CFR), Part 763, Subpart F and 40 CFR 763 Subpart E, 
Appendix A. This means any one material component of a structure <nl>or any 
layer of a material sample<ol>. 
<nl>(5)<ol> <p<nl> Asbestos reporting unit (ARU) - An asbestos reporting unit is 
160 square feet or 260 linear feet or 27 cubic feet of ACM. 
<nl>(6)<ol> Building owner - The owner of record of any public <nl>or 
commercial<ol> building or any person<nl>, such as a property manager,<ol> who 
exercises control over <nl>such<ol> [a] building to the extent that said person 
contracts for or permits renovation to or demolition of said building. <nl>A 
general contractor hired by the building owner for the purpose of performing a 
renovation or demolition cannot act as the building owner.<ol> 
<nl>(7)<ol> <p<nl> Commercial Building - The interior space of any industrial or 
federal government owned building. Interior space includes exterior hallways 
connecting buildings, porticos, and mechanical systems used to condition 
interior space. [Competent person - The individual designated as the competent 
person as required by the United States Occupational and Health Administration 
regulations in 29 CFR sec.1926.58.] 
<nl>(8)<ol> <p<nl> Contractor - A person under contract to perform a service 
with wage or income reporting and tax responsibility. 
<nl>(9)<ol> Demolition - <nl>The wrecking or removal of any load-supporting 
structural member of a public building or facility or any related asbestos 
removal, stripping, or handling operations together with any related operations 
or the intentional burning of any public building or facility.<ol> [Operations 
in which load-bearing structural members of a building are wrecked or removed.] 
<nl>(10)<ol> <p<nl> Employee- Someone over whose work an employer exercises 
direction or control and for whom the employer has wage reporting and tax 
responsibility. 
<nl>(11)<ol> <p<nl> Federal government owned building - Any building, which is 
not a school building as defined by 40 CFR 763.83, owned by the United States 
Federal Government or any other type of US military building. 
<nl>(12)<ol> Friable material - Materials that when dry can be crumbled, 
pulverized, or reduced to powder by hand pressure<nl>, and includes previously 
nonfriable material after such previously nonfriable material becomes damaged to 
the extent that, when dry, it may be crumbled, pulverized, or reduced to powder 
by hand pressure.<ol> 
<nl>(13)<ol> <p<nl> Industrial building - The interior space of any building 
where industrial or manufacturing operations or processes are conducted and to 
which access is limited principally to employees and contractors of the facility 
operator or to invited guests under controlled conditions. 
<nl>(14)<ol> <p<nl> Inspection - An activity undertaken in a school building, 
public building, or commercial building to determine the presence or location, 
or to assess the condition of, friable or non-friable asbestos-containing 
building material (ACBM) or suspected ACBM, whether by visual or physical 
examination, or by collecting samples of such material. This term includes 
reinspections of friable and non-friable known or assumed ACBM which has been 
previously identified. The term does not include the following: 
<nl>(A)<ol> <p<nl> periodic surveillance of the type described in 40 CFR 
sec.763.92(b) solely for the purpose of recording or reporting a change in the 
condition of known or assumed ACBM; 
<nl>(B)<ol> <p<nl> inspections performed by employees or agents of federal, 
state, or local government solely for the purpose of determining compliance with 
applicable statutes or regulations; or 
<nl>(C)<ol> <p<nl> visual inspections of the type described in 40 CFR 
sec.763.90(i) solely for the purpose of determining completion of response 
actions. 
<nl>(15)<ol> <p<nl> Layer - Any constituent of an asbestos bulk sample that 
exhibits different physical properties such as color or composition and can by 
readily separated from the rest of the sample with an instrument such as a 
modeler's knife. 
<nl>(16)<ol> <p<nl> Major Fiber Release Episode - Any uncontrolled or 
unintentional disturbance of ACBM which involves the falling or dislodging of 
more than 3 square or linear feet of friable ACBM. 
<nl>(17)<ol> <p<nl> Minor Fiber Release Episode - Any uncontrolled or 
unintentional disturbance of ACBM which involves the falling or dislodging of 3 
square or linear feet or less of friable ACBM.
<nl>(18)<ol> <p<nl> Nonfriable material - Material which, when dry, may not be 
crumbled, pulverized, or reduced to powder by hand pressure. 
<nl>(19)<ol> <p<nl> Operations and maintenance (O&M) - Operations and 
maintenance activities are repairs, maintenance, renovation, installation, 
replacement, or cleanup of building materials or equipment. 
<nl>(20)<ol> <p<nl> Owner or operator of a demolition or renovation activity - 
Any person who owns, leases, operates, controls, or supervises the facility 
being demolished or renovated or any person who owns, leases, operates, 
controls, or supervises the demolition or renovation operation or both. 
<nl>(21)<ol> PEL- Permissible Exposure Limit as defined by OSHA regulations 
<nl>(29 CFR sec.1926.1101)<ol> [29 CFR sec.1926.58
<nl>(22)<ol> <p<nl> Plans and specifications - Asbestos abatement description 
which includes but is not limited to architectural drawings which display the 
location of asbestos abatement activities, the location of regulated area, and a 
clear and understandable written description of the work to be performed. 
<nl>(23)<ol> <p<nl> Response action - A method, including removal, 
encapsulation, enclosure, repair, and operation and maintenance, that protects 
human health and the environment from friable ACBM. 
<nl>(24)<ol> <p<nl> Responsible person - The individual that is designated by 
the licensed Asbestos Abatement Contractor, Asbestos Operations and Maintenance 
Contractor, Asbestos Laboratory, Asbestos Consultant Agency, or Asbestos 
Management Planner Agency, as responsible for their operations and compliance 
with these rules. 
<nl>(25)<ol> <p<nl> Small-scale, short-duration activities (SSSD) - Are tasks 
limited to removal, encapsulation, or enclosure of small quantities of ACBM only 
if required in the performance of a maintenance activity or emergency and not 
intended solely as asbestos abatement. The amount of ACBM disturbed in a SSSD 
activity may not exceed amounts greater than those that can be contained in a 
single mini-enclosure or a single glove bag. Mini-enclosures shall conform 
spatially and geometrically to the localized work area in order to perform their 
intended containment function. SSSD may include such tasks as: 
<nl>(A)<ol> <p<nl> Removal of no more than three linear feet of asbestos-
containing insulation on pipes; 
<nl>(B)<ol> <p<nl> Removal of no more than 64 square feet of asbestos-containing 
insulation on beams or above ceilings;
<nl>(C)<ol> <p<nl> Replacement of an asbestos-containing gasket on a valve; 
<no<nl> (D) <p<nl> Removal or repair of no more than 64 square feet of asbestos 
containing drywall;
<nl>(E)<ol> <p<nl> Installation of electrical conduits through or proximate to 
asbestos-containing materials; and 
<nl>(F)<ol> <p<nl> Minor repairs to damaged thermal system insulation which do 
not require removal. 
<nl>(26)<ol> Start date - The dates defined as:
(A) asbestos abatement start date - The date on which the <nl> disturbance<ol> 
[removal] of asbestos begins [or any other asbestos abatement activity begins, 
such as site preparation which would break up, dislodge, or similarly disturb 
asbestos]; 
(B) demolition/renovation start date - The date on which the demolition or 
renovation process begins. 
<nl>(27)<ol> Stop date - The dates defined as:
(A) asbestos abatement [activity] stop date (completion date) - The date upon 
which [visual and/or] air monitoring clearance of asbestos abatement 
[activities] has been <nl>achieved<ol> [completed or containment materials have 
been removed]. <nl>Where air clearance is not required, such as roofing removal, 
the date upon which the removal of asbestos-containing material is 
completed.<ol> 
(B) demolition/renovation stop date - The date on which the demolition or 
renovation is complete. 
<nl>(28)<ol> <p<nl> Survey - An activity undertaken in a school building, or a 
public and commercial building to determine the presence or location, or to 
assess the condition of, friable or non-friable asbestos-containing building 
material (ACBM) or suspected ACBM, whether by visual or physical examination, or 
by collecting samples of such material. This term includes reinspections of 
friable and non-friable known or assumed ACBM which has been previously 
identified. The term does not include the following:
<nl>(A)<ol> <p<nl> periodic surveillance of the type described in 40 CFR 
sec.763.92(b) solely for the purpose of recording or reporting a change in the 
condition of known or assumed ACBM; 
<nl>(B)<ol> <p<nl> inspections performed by employees or agents of federal, 
state, or local government solely for the purpose of determining compliance with 
applicable statutes or regulations; or 
<nl>(C)<ol> <p<nl> visual inspections of the type described in 40 CFR 
sec.763.90(i) solely for the purpose of determining completion of response 
actions. 

sec.295.33. Adoption by Reference of Federal <nl> And Other<ol> Standards. 
(a) Adoption by reference. The Texas Department of Health (department) adopts by 
reference the following federal <nl>laws and regulations as hereafter 
amended<ol> [requirements] in the Code of Federal Regulations (CFR)<nl>. To the 
extent that the Department has delegated authority, these laws and regulations 
are part of the state regulations and are enforced by the department<ol> [,as 
amended]: 
(1) 40 CFR Part 61, Subpart M, titled, "National <nl>Emission Standard for 
Asbestos<ol> [Emissions Standard for Hazardous Air Pollutants]" (NESHAP), 
<nl>July 1, 1997, as amended<ol> [November 20, 1990]; 
[(2) <p<ol> 40 CFR Part 763, Subpart G, sec.sec.763.120-763.126, and Appendices 
A, C, D, and E, titled, "Asbestos Abatement Projects: Worker Protection Rule", 
February 25, 1987;] 
<nl>(2)<ol> [(3)] 40 CFR Part 763, Subpart E, [sec.sec.763.80-763.99], and 
Appendices A<nl>,<ol> [and] B, <nl> C, and D,<ol> titled,<nl> "Asbestos" July 1, 
1997, as amended<ol> ["Asbestos-Containing Materials in Schools" (AHERA rules), 
July 1, 1992]; 
[(4) <p<ol> 40 CFR Part 763, Subpart E, Appendix C, titled, "Model Accreditation 
Plan", February 3, 1994;] 
[(5) <p<ol> 40 CFR Part 763, Subpart E, Appendix B, titled, "Work Practices and 
Engineering Controls for Small-Scale, Short-Durations Operations Maintenance and 
Repair (O&M) Activities Involving ACM", July 1, 1992;] 
[(6) <p<ol> 40 CFR Part 763, Subpart E, Appendix D, titled, "Transport and 
Disposal of Asbestos Waste", July 1, 1992;] 
[(7) <p<ol> 40 CFR Part 763, Subpart F, Appendix A, Section 1, titled, 
"Polarized Light Microscopy", July 1, 1992;]
[(8) <p<ol> 29 CFR sec.1926.1101, titled, "Occupational Exposure to Asbestos, 
Tremolite, Anthophyllite, and Actinolite", October 11, 1994;] 
[(9) <p<ol> 29 CFR sec.1910.134, titled, "Occupational Health Standards for A 
Respiratory Protection Program", October 11, 1994;] 
[(10) <p<ol> 40 CFR Part 763, Subpart E, Appendix A, titled, "Transmission 
Electron Microscopy Analytical Methods", July 1, 1992;] 
[(11) <p<ol> 49 CFR Chapter 1, Part 172, Appendix A, Subchapter C, October 1, 
1992; and] 
[(12) <p<ol> 49 CFR Chapter 1, Part 172, Appendix A, Subpart H, October 1, 
1992.] 
(b) Availability. Copies of the documents in subsection (a) of this section are 
available for review at any department licensed training provider or the Texas 
Department of Health, <nl>Toxic Substances Control Division<ol> [Division of 
Occupational Health], Austin, Texas, <nl> department regional office, or local 
heath program under contract to the asbestos branch,<ol> and may be reviewed 
during normal business hours. 
(c) State versus federal standards. In certain instances the state requirements 
in the Texas Health Asbestos Protection Act and/or these sections <nl>are<ol> 
[will be] more stringent than the federal standards listed in subsection (a) of 
this section. In such cases the state requirements shall prevail. 

sec.295.34.Asbestos Management in Facilities and Public Buildings.
(a) General. Those whose jobs relate to the physical aspects of a building 
including carpenters, electricians, plumbers, telephone and maintenance 
personnel, and those who occupy such buildings, are at great risk of asbestos-
related disease unless proper training, personal protection, and/or engineering 
controls are rigorously employed. Prudent management of asbestos in buildings is 
vitally necessary for their protection. <nl>Building owners are required to 
inform all persons in writing who are to perform any type of maintenance, 
custodial, renovation, or demolition work of the presence and location of 
asbestos-containing building materials (ACBM). Building owners are required to 
abate all friable asbestos-containing materials or any asbestos-containing 
materials which may become regulated in accordance with 40 CFR Part 61, Subpart 
M during any demolition or renovation process.<ol> 
(b) (No change.) 
<nl>(c)<ol> <p<nl> Conditions requiring a mandatory asbestos inspection for 
ACBM. Prior to any renovation or dismantling within a public building, 
commercial building, or facility including preparations for partial or complete 
demolition, as required by 40 CFR, sec.61.145 Environmental Protection Agency 
(EPA), owners must have a thorough inspection performed. The work area and all 
immediately surrounding areas must be inspected and sampled as applicable prior 
to renovations or demolition. This inspection must be produced upon request by 
the Texas Department of Health (department). Once an inspection is complete, 
care must be taken to ascertain the contents of any new products installed in 
the building that would void the accuracy and validity of the survey. If an 
inspection cannot be performed before demolition or renovation is started due to 
the building being structurally unsound and unsafe to enter, all material must 
be presumed to contain asbestos and must be treated as ACBM. 
<nl>(1)<ol> <p<nl> In a public building the inspection must be performed by a 
licensed asbestos inspector. Criteria to rebut the presence of ACBM in a public 
building shall be based upon inspections which conform to accepted standards 
such as the sampling protocol specified in 40 CFR Part 763 Subpart E, commonly 
referred to as the "AHERA" rules which are the required method for schools. 
Other factors should be taken into consideration when deciding on the best 
method to determine the location, extent and condition of the ACBM in a non-
school building. Multi-story buildings may require investigation of the systems 
in the building in order to trace down all possibilities of ACBM occurrence. 
Under no circumstances will less that three samples for each homogeneous area 
per floor be collected. During the construction of a new public building, a 
licensed inspector may compile the information from material safety data sheets 
(MSDS) of all products used in the construction of the building and, finding no 
asbestos in any of those products, make a statement that no ACBM was used during 
the construction. This statement, together with copies of the MSDSs, can be used 
as an asbestos inspection. 
<nl>(2)<ol> <p<nl> In a commercial building or facility the inspection must be 
performed by an accredited inspector. 
[(c) <p<ol> Conditions requiring a mandatory asbestos survey. Prior to any 
renovation or dismantling within a public building, including preparations for 
partial or complete demolition, as required by 40 CFR, sec.61.145 Environmental 
Protection Agency (EPA), owners must have the building surveyed by a licensed 
asbestos inspector; facility owners must have the facility surveyed by an 
accredited inspector if the facility is a public or commercial building as 
defined in the Asbestos School Hazard Abatement Reauthorization Act, 1990. The 
work area and all immediately surrounding areas must be surveyed prior to 
partial renovations or demolition. This survey must be produced upon request by 
the Texas Department of Health (department).]
(d) Asbestos control and abatement. A building owner has the following options 
for managing the asbestos found in his/her buildings. 
(1)-(3) (No change.) 
(4) Building owners may conduct asbestos abatement projects, including asbestos 
O&M activities, if they obtain an asbestos abatement contractor's license, as 
set forth in sec.295.45 of this title (relating to Licensure: Asbestos Abatement 
Contractor). <nl>Any response action or maintenance activity that disturbs 
friable ACBM other than a SSSD activity must be designed by a licensed asbestos 
consultant. Any projects larger than 160 square feet or 260 linear feet must be 
designed by a licensed asbestos consultant; <ol>
(e) Prohibition. The owner of a public building and any other person who 
contracts with or otherwise permits any person without appropriate valid 
license, registration, accreditation, or approved exemption to perform any 
asbestos-related activity is subject to administrative or civil penalty under 
the Texas Health Protection Act (Act), not to exceed $10,000 a day for each 
violation<nl>, except for greater penalties allowed by law for subsequent 
violations<ol>. 
(f) Mandatory notification. Notification is required under the following 
conditions. 
(1) (No change.) 
(2) <nl>In a public building, a<ol> [A] notification to abate any amount of 
asbestos must be submitted to the Texas Department of Health (department) by the 
<nl>public<ol> building owner <nl> and/or operator.<ol> [, or] <nl>In a 
facility, a notification to abate<ol> amounts described in NESHAP <nl>must be 
submitted to the department by the facility owner and/or operator.<ol> [for the 
facility owner,] <nl>All notifications must be submitted to the department<ol> 
at least <nl>10<ol> [ten] working days (not calendar days) prior to the start 
date of the abatement project, disturbance, renovation, <nl> operations and 
maintenance (O&M)<ol>, or demolition in accordance with sec.295.61 of this title 
(relating to Operations: Notifications). [All blanks on the notifications form 
are to be completed; if not applicable it must be so stated.] 
(g) Mandatory abatement project design. <nl>A project design, with respect to 
friable ACBM, must be prepared by either a licensed consultant (for a school or 
public building) or an accredited project designer (for a commercial building) 
for all projects which involve any of the following activities:
(1) A response action other than a SSSD activity, (2) a maintenance activity 
that disturbs friable ACBM other than a SSSD activity, or (3) a response action 
for a major fiber release episode.<ol> Abatement projects which have a combined 
amount of <nl>non-friable<ol> asbestos exceeding 160 square feet of surface 
area, or 260 linear feet of pipe length, or one cubic yard of material to be 
removed from a <nl>public<ol> building shall require that the project be 
designed by a licensed asbestos consultant. <nl>The exception to this 
requirement is for floor tile removed in accordance with sec.295.36 of this 
title (relating to Licensing and Registration: Exemptions; Emergency). In a 
commercial building, non-friable material does not require a design but must be 
treated in accordance with 40 CFR Part 61, Subpart M.<ol> 
(h) (No change.) 

sec.295.35.Licensing and Registration: Conditions.
(a)-(b) (No change.) 
(c) Term and expiration. The term of all licenses, including the registration of 
asbestos workers, is one year and expires on the anniversary of the effective 
date, unless renewed. <nl>A license holder is in violation of these sections if 
the holder allows qualifications for that license (such as accreditations, 
physical or insurance requirements) to expire and practices with that 
license.<ol> 
(d)-(h) (No change.) 
(i) Examination. Each applicant for an individual license must take and pass an 
accreditation examination<nl> in accordance with sec.295.41 of this title 
(relating to Licensure; State Licensing Examination)<ol> administered by the 
department in the category for which an individual wishes to be licensed. [This 
requirement must be completed prior to applying for renewal of a license 
following the required initial examination.] For further information regarding 
the testing requirements, refer to sec.295.41 of this title [(Relating to 
Licensure: State Accreditation Examination)]. 
<nl>(j)<ol> <p<nl> Responsible person. The individual that is designated by the 
licensed Asbestos Abatement Contractor, Asbestos Operations and Maintenance 
Contractor, Asbestos Laboratory, Asbestos Consultant Agency, or Asbestos 
Management Planner Agency, as responsible for their operations and compliance 
with rules, shall not be the responsible person for another licensee with the 
same category of license. 

sec.295.37. Licensing and Registration: Conflict of Interests.
(a) Independent third-party air monitoring. Third-party area monitoring and 
project clearance monitoring for airborne concentrations of asbestos fibers 
during an abatement project shall be performed by a person under contract to the 
building owner to collect samples by and for the owner of the public building or 
facility being abated. Such persons must not be employed or subcontracted by the 
<nl>asbestos abatement<ol> contractor hired to conduct the asbestos abatement 
project, except that: 
(1)-(3) (No change.) 
(b) Licensee conflict of interest. Any person licensed according to these 
sections to perform asbestos <nl>inspections or<ol> surveys, write management 
plans, or design asbestos abatement projects [under a contract or other hire 
agreement] shall not also engage in the removal of asbestos from those buildings 
or facilities, except for subsection (c) of this section. It is a conflict of 
interest for an individual instructor to train himself/herself in order to 
qualify for a license, or for an individual to give himself/herself a physical 
in order to qualify for a license. 
(c) Municipalities exemption. Municipalities are exempt from the conflict of 
interest requirement only for the purpose of retaining a licensed person who may 
perform asbestos inspections and surveys, write management plans, design 
abatement projects and abate asbestos from the same building or facility. This 
exemption does not include air monitoring <nl>or abatement project clearance 
procedures which includes performing visual inspection and air samples for 
clearance in accordance with sec.295.58(i)(3) of this title (relating to 
Operation: General Requirements)<ol> which shall be performed by an independent 
third party <nl>who is not an employee of the municipality<ol>. 

sec.295.38. Licensing and Registration: Applications and Renewals.
(a) General requirements. Applications for a license or worker registration 
under these sections must be made on forms provided by the Texas Department of 
Health (department), shall be signed by the applicant, and must be accompanied 
by a <nl>cashier's<ol> check or money order for the amount of the license or 
renewal fee. Only applications which are complete shall be considered by the 
department; the burden of proof for all requirements for licensure rests with 
the applicant. <nl>New and renewal applications for agency licenses (Asbestos 
Abatement Contractor, Asbestos Operations and Maintenance Contractor, Asbestos 
Laboratory, Asbestos Consultant Agency, or Asbestos Management Planner Agency) 
shall include a listing of owners, partners, executive officers and those 
stockholders who have greater than 25% controlling financial interest.<ol> 
(b)-(d) (No change.) 
(e) Processing applications and renewals. 
(1) (No change.) 
(2) Reimbursement of fees. Initial application or renewal fees will be refunded 
only when the department does not process a completed application in the time 
period specified <nl>in paragraph (e)(1) of this section<ol> , or when fee 
amounts are in excess of the correct fee amount or there is a double payment. 
Otherwise, fees for applications and renewals are not eligible for refund. <nl>A 
$30 administrative fee may be deducted from refunds for double payments or 
excess fees.<ol> 
(A)-(B) (No change.) 
(3)-(4) (No change.) 
(f)-(j) (No change.) 

sec.295.39. Licensing and Registration: Out-of-state Applicants.
(a) (No change.)
(b) Applicant status. All persons residing in other states, applying for any 
category of license, must comply with all licensing requirements which would be 
imposed on a Texas resident [seeking licensure in the out-of-state person's base 
state]. 
(c)-(d) (No change.) 
(e) Required documents. To do business in Texas, an out-of-state applicant 
corporation or other business entity applicant must: 
(1)-(3) (No change.) 
(4) provide workers' compensation insurance issued by a company authorized to do 
business in Texas and written on the Texas form, or evidence of self-insurance, 
when such insurance is required by contract specification or other agreement. 
[Self-insurance is allowed for governmental agencies and for persons who meet 
the self-insurance requirements under the insurance laws of Texas and receive 
approval from the Texas Department of Insurance or Texas Workers' Compensation 
Commission. Proof of approval by the appropriate authority is required for 
nongovernmental persons.]

sec.295.40. Licensing And Registration: Insurance Requirements. 
Persons required to have insurance must obtain policies for required coverage 
<nl>and in the amounts<ol> [as] specified in these sections. <nl>Self-insurance 
is allowed for governmental agencies and for persons who meet the self-insurance 
requirements under the insurance laws of Texas and receive approval from the 
Texas Department of Insurance or Texas Workers' Compensation Commission. Proof 
of approval by the appropriate authority as required for nongovernmental persons 
must be submitted with the application. <ol> [, and in the amounts specified, 
which meet the following requirements.] <nl>Liability insurance shall include 
pollution liability for asbestos exposure. Additional requirements are as 
follows:<ol>
(1) (No change.) 
(2) The certificate of insurance must be complete, including all applicable 
<nl>coverages<ol> [coverage forms] and endorsements, and must name the Texas 
Department of Health, <nl>Toxic Substances Control Division<ol> [Division of 
Occupational Health], as a certificate holder<nl>. Each required policy shall be 
endorsed to provide the department <ol> with at least a ten day notice of 
cancellation<nl>.<ol> [; a Form #CG02051185 may be requested from the insurance 
provider and submitted with the application to the Texas Department of Health 
(department)].
(3)-(4) (No change.) 
<nl>(5)<ol> <p<nl> Attempts to avoid proper payment of required workers' 
compensation insurance by hiring temporary or leased employees who are not 
properly covered or by paying employees in such a way as to obscure the intent 
of an individual's employment will be considered a violation of these sections 
and the requirement to obtain proper insurance.

sec.295.41. Licensure: State <nl>Licensing<ol> [Accreditation] Examination. 
(a) General. The Texas Department of Health (department) shall administer an 
examination to individuals seeking <nl>a license<ol> [asbestos accreditation] 
and who have successfully completed the required training from a training 
provider licensed or approved by the department. A copy of the training 
certificate shall be submitted with the application. All individuals, except 
workers, seeking <nl>a license<ol> [accreditation ] in a specific category shall 
pass the examination for that category. For example, an individual seeking <nl>a 
license<ol> [accreditation] as an asbestos inspector must pass the department's 
inspector accreditation examination. Individuals receiving their training from 
training providers outside of Texas must complete the approved three-hour Texas 
law course prior to applying for the accreditation exam. 
(b) Testing requirements. <nl>Beginning September 1, 1998 <ol> [Beginning 
September 1, 1994,] an applicant for <nl>a license <ol> [accreditation] will be 
required to pass a state examination <nl> to qualify for the original 
license<ol>. [Individuals licensed prior to September 1, 1994, shall take and 
pass the examination prior to September 1, 1997. Failure to pass the examination 
will be cause for denial of license renewal.] The application for the 
examination and the required fee <nl> may<ol> [shall] be included with the 
initial license application form <nl>or the applicant may register for the exam 
before applying for the license<ol>. Examinations shall be based upon the 
requirements for the license category for which an individual <nl>is 
applying<ol> [has applied. The applicant shall be required to take the test 
within 60 days of applying for that license. If they fail the examination, they 
shall be required to take another examination within 30 days, as specified in 
subsection (f) of this section for re-examination guidance.] The examination 
will cover the topics included in the training course for that license category. 
Out-of-state applicants must take the test for their respective category 
following completion of the required three-hour course in Texas law. Misconduct 
or dishonesty during the examination, or an individual taking the examination 
other than the individual scheduled, will constitute grounds for the issuance of 
a failing grade and revocation or denial of a license. [Failure to pass the 
accreditation examination prior to license renewal shall constitute grounds for 
revoking or denying a license.] 
(c)-(f) (No change.) 

sec.295.42.Registration: Asbestos Abatement Workers.
(a)-(d) (No change.) 
(e) Qualifications. Applicants for registration as asbestos abatement workers 
shall provide: 
(1) (No change.) 
(2) an acceptable written opinion of a physical examination of the applicant 
within the past 12 months that was performed by a physician in accordance with 
Occupational Safety and Health Administration of the United States Department of 
Labor (OSHA) regulations in 29 Code of Federal Regulations (CFR), 
sec.<nl>1926.1101<ol> [1926.58](m), or Environmental Protection Agency (EPA) 
regulations in 40 CFR, sec.763.121(m), relating to medical surveillance. This 
opinion must be submitted on the Texas Department of Health (department) 
"Physicians Written Statement" form only, must be signed by the doctor and 
include certification of the following elements: 
(A) completion and review of the applicants standardized medical questionnaire 
and work history with special emphasis directed to the pulmonary, 
cardiovascular, and gastrointestinal systems per appendix D in sec.<nl> 
1926.1101<ol> [1926.58]; 
(B)-(D) (No change.) 
(E) a chest roentgenogram, posterior-anterior, 14x17 inches, or current film on 
file with interpretation in accordance with 29 CFR sec.<nl> 1926.110<ol>1 
[1926.58] Appendix E. (Note: According to 29 CFR sec.<nl>1926.1101<ol> 
[1926.58](M)(2)(ii)(C), it is up to the discretion of the physician whether or 
not a chest X-ray is required); and 
(F) (No change.) 
(3)-(4) (No change.) 
(f) (No change.) 

sec.295.43. Licensure: Asbestos Operations and Maintenance Contractor 
(Restricted). 
(a) (No change.) 
(b) Restrictions. 
(1)-(4) (No change.) 
(5) EPA regulatory requirements for small-scale, short duration activities 
affecting asbestos are explained in detail in 40 CFR, Part <nl>763, Appendix B 
to Subpart E<ol> [763E, Appendix B], as amended. The same regulatory 
requirements of OSHA for these activities are explained in <nl>29 CFR 
sec.1926.1101<ol> [29 CFR sec.1926.58, Appendix G]. The restricted asbestos 
activities of licensed O&M contractors, O&M supervisors, and asbestos workers 
shall be confined to the work practices and procedures therein. 
(c)-(d) (No change.) 
(e) Qualifications. Applicants for licensing as asbestos operations and 
maintenance contractors shall provide: 
(1) a certificate of training from a training provider approved by or acceptable 
to the Texas Department of Health (department), indicating successful completion 
within the past 12 months of the approved training course for asbestos abatement 
contractors and supervisors or the annual refresher training, as described in 
sec.295.64 of this title (relating to Training: Required Asbestos Training 
Courses). An applicant organization shall designate at least one individual 
<nl>as their responsible person<ol> who will comply with this training 
requirement. This person must be responsible for asbestos operations and 
compliance with all asbestos rules and regulations; 
(2)-(16) (No change.) 
(17) proof of successfully passing the department examination for asbestos 
abatement contractors and supervisors<nl>:<ol> [.]
<nl>(18)<ol> <p<nl> a copy of the wallet-size photo-identification card of the 
responsible person from the training course, as required from all trainers in 
Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: 
Approval of Training Courses). Persons submitting out-of-state training 
certificates with their applications may obtain the necessary photo-
identification when attending the mandatory course on Texas asbestos rules, as 
required in accordance with sec.295.64(h) of this title; and 
<nl>(19)<ol> <p<nl> a one-inch by one-inch photograph of the face of the 
responsible person. 
(f) Responsibilities. O&M contractors who obtain restricted licenses shall be 
responsible for: 
(1) (No change.) 
(2) complying with federal standards of operation, including EPA and OSHA 
regulations, which are adopted by reference, as follows: 
(A) OSHA regulations in 29 CFR,<nl> sec.1926.1101, titled "Asbestos" 
requirements for Class III work<ol> [sec.1926.58, Appendix G, titled "Work 
Practices and Engineering Controls for Small-Scale, Short-Duration Asbestos 
Renovation and Maintenance Activities"], or 
(B) (No change.) 
(3)-(9) (No change.) 
(g) (No change.)

sec.295.44.Licensure: Asbestos Operations and Maintenance Supervisor 
(Restricted). 
(a) Licensing requirement. Individuals employed by licensed operations and 
maintenance (O&M) or abatement contractors to directly supervise personnel and 
work practices limited to the conduct of O&M activities affecting asbestos-
containing <nl>building materials (ACBM)<ol> [(ACM)] shall be licensed as 
asbestos O&M supervisors (restricted). Such licenses are valid for a period of 
one year, and shall be renewable.
(b)-(e) (No change.) 
(f) Restrictions and prohibitions. Licensing as an asbestos O&M supervisor is 
specifically restricted, as follows. 
(1)-(2) (No change.) 
(3) The licensee shall not supervise asbestos abatement projects, which are 
larger than small scale<nl>, short duration<ol> or which have the sole purpose 
of removing <nl>ACBM<ol> [ACM], or act as a contractor. 
(4) (No change.) 

sec.295.45. Licensure: Asbestos Abatement Contractor.
(a)-(d) (No change.) 
(e) Qualifications. Applicants for licensing as asbestos abatement contractors 
shall provide: 
(1)-(17) (No change.) 
(18) copies of all citations issued; [and]
(19) proof of successfully passing the department examination for asbestos 
contractors, if required<nl>:<ol> [.] 
<nl>(20)<ol> <p<nl> a copy of the wallet-size photo-identification card of the 
responsible person from the training course, as required from all trainers in 
Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: 
Approval of Training Courses). Persons submitting out-of-state training 
certificates with their applications may obtain the necessary photo-
identification when attending the mandatory course on Texas asbestos rules, as 
required in accordance with sec.295.64(h) of this title; and 
<nl>(21)<ol> <p<nl> a one-inch by one-inch photograph of the face of the 
responsible person. 
(f) Responsibilities. The asbestos abatement contractor shall be responsible 
for: 
(1)-(6) (No change.) 
(7) standards and practices for O&M activities, as conducted [for hire] by a 
contractor, as described in sec.295.59 of this title (relating to Operations: 
Operations and Maintenance (O&M) Activities); 
(8)-(11) (No change.) 

sec.295.46. Licensure: Asbestos Abatement Supervisor.
(a)-(c) (No change.) 
(d) Qualifications. Applicants for licensing as asbestos abatement supervisors 
are required to provide: 
(1) work experience to qualify for an asbestos abatement supervisor 
license<nl>;<ol> [,] verifiable written documentation must be provided of at 
least 90 days of legally qualifiable work experience as a trained and 
<nl>registered<ol> [licensed] worker performed over a period of not less than 12 
months and within the past 24 months <nl>or<ol> [.] <nl>qualifiable<ol> 
[Qualifiable] experience <nl> which<ol> includes: 
(A)-(E) (No change.) 
(F) work performed in an administrative capacity relating to asbestos abatement 
projects such as project manager<nl>,<ol> [or advisor, or] consultant, <nl>or 
designated person<ol> may be accepted as qualifying experience<nl>;<ol> [. No 
more than 30 days may be counted as qualifiable work experience under this 
category;] 
(G)-(I) (No change.) 
(2)-(6) (No change.) 
(e)-(f) (No change.) 

sec.295.47. Licensure: Individual Asbestos Consultant.
(a) Licensing requirements. An individual must be licensed as an asbestos 
consultant to design asbestos abatement projects. <nl>A company employing an 
individual asbestos consultant<ol> [Individual consultants] may not hire an 
inspector, project manager, [or an] air monitor technician<nl>, or another 
individual asbestos consultant<ol> without obtaining an asbestos consultant 
agency license. 
(1) Asbestos abatement project design includes the inspection of public 
buildings for asbestos<nl>-<ol>containing <nl>building<ol> material 
<nl>(ACBM)<ol> [(ACM)], the evaluation and selection of appropriate asbestos 
abatement methods, project layout, the preparation of plans, specifications and 
contract documents, and the review of environmental controls, abatement 
procedures and personal protection equipment employed during the project. <nl>If 
hired to perform the asbestos project management by the building owner, the 
consultant is responsible to reasonably ensure proper procedures are used from 
the time of arrival of the abatement contractor on site through the completion 
of the removal of the containment and the departure of the contractor from the 
project site. Non-standard abatement, such as dry removal or no negative air, 
shall be reviewed and certified in writing by a Certified Industrial Hygienist 
(CIH) or a Professional Engineer (PE) and shall be approved in writing by the 
Chief of the Asbestos Programs Branch, Toxic Substances Control Division, prior 
to the start of abatement.<ol>
(2) If an asbestos abatement project includes alterations to a building's 
structure, its electrical, mechanical, safety systems, or their components, 
<nl>a licensed individual consultant or accredited project designer who is a 
licensed Professional Engineer (PE) in Texas<ol> [a registered architect or 
engineer] must prepare the appropriate plans and specifications as required by 
<nl>the Texas Engineering Practice Act, Article 3271a and the rules of the Texas 
State Board for Registration for Professional Engineers<ol> [other state laws] 
in addition to the requirement of paragraph (1) of this subsection. 
(b)-(e) (No change.) 
(f) Qualification for licensing. To qualify as an individual asbestos 
consultant, individuals shall provide: 
(1) verifiable documentation of their asbestos-related activity in conjunction 
with at least six asbestos abatement projects covering a period of at least a 
year within the past <nl>seven<ol> [five] years. All asbestos work must be 
documented as having been performed under the applicable licensed or accredited 
rules or regulations; 
(2)-(6) (No change.) 
(g) (No change.) 
(h) Responsibilities. The responsibilities of licensed asbestos consultants 
shall include the following: 
(1)-(3) (No change.) 
(4) represent the interests of the building owner during the conduct of an 
asbestos abatement project, including consultation with the abatement contractor 
personnel, requiring compliance with regulations and specifications, requiring 
remedy of infractions, providing monitoring services, maintaining progress 
records and photographs as necessary, waste disposal, <nl>designating in writing 
a project manager and specifying the manager's responsibilities and 
authority,<ol> and providing <nl>written <ol> [the opinion or] assurance <nl>to 
the building owner or operator<ol> of the final clearance of the project; and 
(5) (No change.) 
(i) Signature authority. All asbestos abatement plans and specifications must be 
signed <nl>on every page. The cover page shall also include the consultant's 
license number and license expiration date.<ol> [by a licensed asbestos 
consultant.] <nl>The plans and specifications bearing the consultant's original 
signature shall be provided to the building owner prior to the start of the 
asbestos abatement. Plans and specifications that are used by another 
consultant, or consultant agency, to monitor a project, shall be reviewed, 
deletions and/or additions made, and signed in the same manner, indicating 
acknowledgment of their adequacy and the assumption for the responsibility 
related to the content contained therein.<ol>

sec.295.48.Licensure: Asbestos Consultant Agency.
(a) Scope: Asbestos consultant agency licenses. <nl>A company, employing an 
individual asbestos consultant and one or more additional asbestos consultants, 
inspectors, project managers, or air monitor technicians must be an asbestos 
consultant agency.<ol> Consultant organizations desiring to be licensed as 
asbestos consultant agencies shall designate one or more individuals licensed as 
asbestos consultants <nl>as their responsible persons <ol>, who shall be either 
principals or employees, and who shall have responsibility for the 
organization's asbestos activity. 
(b) Authorization and conditions. A licensed asbestos consultant agency is 
specifically authorized to employ asbestos consultants, asbestos project 
managers, asbestos inspectors and management planners, and air monitoring 
technicians who are currently licensed under these sections to assist in the 
conduct and fulfillment of the agency's asbestos consultation activity, as 
necessary. As a condition of licensure, an asbestos consultant agency must 
comply with the following: 
(1) (No change.) 
(2) notify the department in writing of any additions or deletions of 
<nl>responsible<ol> [designated] individual asbestos consultants within 10 days 
of such occurrences; 
(3) (No change.) 
(4) refrain entirely from <nl>creating a conflict of interest.<ol> [engaging as 
an asbestos abatement contractor in abatement or operations and maintenance 
activities.] 
(c)-(f) (No change.) 

sec.295.49.Licensure: Asbestos Project Manager. 
(a)-(c) (No change.) 
(d) Qualifications. To qualify for a license, an applicant must provide: 
(1)-(5) (No change.) 
(6) proof of successfully passing the department examination for asbestos 
<nl>abatement contractors and project supervisors<ol> [management planner, if 
required]. 
(e) Responsibilities. <nl>To ensure these sections are complied with it is 
required that the monitor be on the project site when abatement work is being 
performed.<ol> Those responsibilities and duties that shall be assumed by the 
asbestos project manager include observance and monitoring of compliance with: 
(1)-(6) (No change.) 

sec. 295.50. Licensure: Asbestos Inspector.
(a) Licensing. An individual must be licensed as an asbestos inspector to 
conduct asbestos <nl>inspections<ol> [surveys] in public buildings. <nl>To 
perform inspections, an<ol> [An] asbestos inspector must be employed by a 
licensed asbestos consultant agency or licensed asbestos management planner 
agency. The scope of duties include the collection of bulk samples of suspected 
asbestos-containing<nl> building <ol> material <nl>(ACBM)<ol> [(ACM)]; 
determining the location and condition of <nl>ACBM<ol> [asbestos] <nl>and 
suspect ACBM <ol> in a public building; and documenting <nl>inspection<ol> 
[survey] results. <nl>This license is not required for a licensed management 
planner, however, the management planner must provide documentation of 
completion of the inspectors course or refresher when renewing a management 
planner license. <ol> 
(b)-(c) (No change.) 
(d) Qualification. To qualify for a license, an applicant must provide: 
(1)-(2) (No change.) 
(3) a physician's statement of the required physical examination done within the 
past year as described in sec.295.42(e)(2) of this title (relating to 
Registration: Asbestos Abatement Workers) and submitted on the department's 
"Physician's Written Statement" form only <nl>indicating that the applicant has 
no limitations in wearing a respirator<ol>; 
[(4) <p<ol> professional liability insurance for errors and omissions in the 
amount of at least $100,000 when doing asbestos inspection work for hire, or be 
covered under his employers policy as required by sec.295.40 of this title 
(relating to Licensing and Registration: Insurance Requirements);] 
<nl>(4)<ol> [(5)] work experience: applicants for licensing as asbestos 
inspectors are required to submit verifiable written documentation of prior work 
experience, including professional references [for subparagraphs (A) or (B) of 
this paragraph,] with their application forms <nl>which includes participation 
in at least five asbestos inspections performed under the direct supervision of 
a licensed management planner or licensed asbestos consultant.<ol> [, as 
follows:] 
[(A) <p<ol> participation in at least five asbestos surveys performed under the 
direct supervision of a licensed management planner working for a licensed 
management planner agency or licensed asbestos consultant working for a licensed 
asbestos consultant agency;] 
[(B) <p<ol> current employment with and doing work under the supervision of a 
licensed management planner agency or asbestos consultant agency;] 
<nl>(5)<ol> [(6)] a copy of the wallet-size photo-identification card from the 
training course as required from all trainers in Texas in accordance with 
sec.295.65(f)(2) of this title (relating to Training: Approval of Training 
Courses). Persons submitting out-of-state training certificates with their 
applications may obtain the necessary photo-identification when attending the 
mandatory course on Texas asbestos rules, as required in accordance with 
sec.295.64(h) of this title; 
<nl>(6)<ol> [(7)] a one-inch by one-inch photograph of the face; and 
<nl>(7)<ol> [(8)] proof of successfully passing the department examination for 
asbestos inspector, if required.
(e) (No change.) 
(f) Signature. All asbestos building surveys or inspections must be signed by 
the licensed inspectors performing the inspections <nl> and<ol> [or] the 
consultant <nl>or management planner<ol>.

sec.295.51. Licensure: <nl>Individual<ol> Asbestos Management Planner. 
(a) Licensing. A person must be licensed under these sections to develop an 
asbestos management plan, which shall include a written schedule and procedures 
to protect occupants from asbestos health hazards in a public building <nl>or 
federal government owned school building as defined in 40 CFR sec.763.83. A 
company, employing an<ol> [An] individual management planner cannot hire an 
inspector nor another management planner without becoming an asbestos management 
planner agency. <nl>A licensed management planner is also a licensed inspector 
and shall fulfill all requirements for the inspector license as listed in 
sec.295.50 of this title (relating to Licensure: Asbestos Inspector) in addition 
to the requirements for a management planner license. Only the fee for the 
management planner license will be charged to the applicant.<ol> 
(b)-(d) (No change.) 
(e) Qualification. To qualify for a license as an asbestos management planner, 
an applicant must demonstrate in a manner acceptable to the Texas Department of 
Health (department) that they meet the following applicable qualifications. The 
applicant must: 
(1)-(2) (No change.) 
(3) have participated in <nl>the preparation of<ol> at least five management 
plans, under the direction of a licensed management planner [working for a 
licensed management planner agency] or licensed asbestos consultant [working for 
a licensed asbestos consultant agency
(4)-(7) (No change.) 
(f) Responsibilities. The asbestos management planner shall be responsible for: 
(1) (No change.) 
(2) the production of drawings which show the locations of asbestos materials, 
together with notes as to the extent and the condition of this <nl>ACBM<ol> 
[ACM]; 
(3) writing an asbestos report which includes information from paragraph (2) of 
this subsection together with a proposed schedule of actions to be taken <nl>to 
manage and control<ol> [from the control of] asbestos in the subject building; 
and 
(4) (No change.) 
(g) (No change.)

sec.295.52. Licensure: Air Monitoring Technician.
(a) Licensing. An air monitoring technician (AMT) must be licensed to perform 
air monitoring services for an asbestos abatement project or related activity in 
a public building. An air monitoring technician may obtain baseline, area, 
personal, and clearance samples. For purposes of asbestos abatement 
<nl>activities<ol>, a licensed air monitoring technician shall be an employee of 
an asbestos laboratory or an asbestos consultant <nl>agency <ol> when taking 
area or clearance samples, or <nl>an employee of or under contract to<ol> an 
asbestos abatement contractor, when taking personal samples.
(b) Authority of air monitoring technicians. Air monitoring technicians may 
obtain baseline, area, personal and clearance samples, if qualified in 
accordance with subsection (e) of this section, and may perform the analysis of 
airborne fibers in the field if employed by a <nl>licensed asbestos<ol> 
laboratory. An AMT employed by an abatement contractor is limited to taking 
personal samples for compliance with Occupational Safety and Health 
Administration (OSHA) regulations (29 Code of Federal Regulations 
<nl>sec.1926.1101 <ol> [sec.1926.58] ), which must then be sent to a laboratory 
for analysis. 
(c)-(d) (No change.) 
(e) Qualifications. An applicant, in order to qualify for an air monitoring 
technician license, shall submit the following: 
(1)-(4) (No change.) 
(5) a one-inch by one-inch photograph of the face; [ and] 
(6) proof of successfully passing the department examination for air monitoring 
technician, if required <nl>; and<ol> [.]
<nl>(7)<ol> <p<nl> proof of performing air monitoring as an apprentice for 30 
days of work under the direct supervision of a licensed air monitor technician 
working for a licensed laboratory or contractor or a licensed consultant. 
(f)-(g) (No change.) 

sec.295.53. Licensure: Asbestos Management Planner Agency.
(a) Licensing. <nl>A company, employing an individual management planner and one 
or more additional management planners or inspectors must be licensed as an 
asbestos management planner agency. <ol> An applicant desiring to be an asbestos 
management planner agency shall designate one or more individuals licensed as 
asbestos management planners <nl>as their responsible persons<ol>, who shall 
have responsibility for the asbestos activity. 
(b) (No change.)
<nl>(c)<ol> <p<nl> Authorization and conditions. A licensed management planner 
agency is specifically authorized to employ asbestos management planners and 
asbestos inspectors who are currently licensed under these sections to assist in 
the conduct and fulfillment of the agency's asbestos management planning 
activity, as necessary. As a condition of licensure, an asbestos management 
planner agency must comply with the following: 
<nl>(1)<ol> <p<nl> any office, established within the state, that conducts 
asbestos management planning activities must have at least one licensed asbestos 
management planner in residence who is responsible for such activities. Offices 
that do not conduct asbestos management planning activities and do not advertise 
such services are exempt from this requirement.
<nl>(2)<ol> <p<nl> notify the department in writing of any additions or 
deletions of responsible individual asbestos management planners within 10 days 
of such occurrences; 
<nl>(3)<ol> <p<nl> refrain entirely from asbestos management planning activity 
at any office during any period without the active employment of at least one 
responsible individual licensed as an asbestos management planner at that 
location; and 
<nl>(4)<ol> <p<nl> refrain entirely from creating a conflict of interest by not 
performing as an asbestos abatement contractor doing asbestos abatement or 
operations and maintenance activities and acting as a management planner 
preparing the survey or management plans for the same public building project. 
<nl>(d)<ol> [(c)] Fee. The initial and renewal fee for a management planner 
agency is $200. 
<nl>(e)<ol> [(d)] Applications and renewals. Applications and renewals shall be 
submitted as required by sec.295.38 of this title (relating to Licensing and 
Registration: Applications and Renewals). Out-of-state applicants must comply 
with sec.295.39 of this title (relating to Licensing and Registration: Out-of-
State Applicants). 
<nl>(f)<ol> [(e)] Qualification for licensing. Applicants for licensing as an 
Asbestos Management Planner Agency shall submit the following: 
(1) professional liability insurance coverage for errors and omissions in the 
amount of $1 million to cover the asbestos management planners and inspectors in 
its employ; and 
(2) evidence of insurance by a company authorized and licensed to issue workers' 
compensation insurance in this state and written on the Texas form, or evidence 
of self-insurance under Texas law, if workers compensation is required by the 
specifications or owner; and 
(3) a certificate of good standing issued by the State Comptroller of Public 
Accounts Office for the State of Texas for a corporation or other business 
entity; and 
(4) if the applicant is situated outside the State of Texas, a certificate of 
authority issued by the Texas Secretary of State, authorizing the corporation to 
do business in this state. 
<nl>(g)<ol> [(f)] Responsibilities. A licensed asbestos management planner 
agency shall be responsible for: 
(1) employing generally accepted principles and practices in performing asbestos 
inspections and producing asbestos management plans;
(2) complying with standards of operation, as described in sec.295.58 of this 
title (relating to Operations: General Requirements); and 
(3) complying with the responsibilities for the individual licenses as listed in 
sec.295.50 of this title (relating to Licensure: Asbestos Inspector) and 
sec.295.51 of this title (relating to Licensure: Individual Asbestos Management 
Planner). 

sec.295.54. Licensure: Asbestos Laboratory. 
(a) Licensing requirement. A person must be licensed in compliance with the 
provisions of this section to provide <nl>polarized-light microscopy (PLM), 
phased-contrast microscopy ( PCM), or transmission electron microscopy (TEM)<ol> 
analysis of <nl>bulk or air<ol> samples collected in public buildings [for bulk 
asbestos or for final clearance of asbestos abatement projects]. Branch offices, 
which perform laboratory analysis, must fulfill the same equipment and 
operational standards as the main office which has been licensed, and must be 
separately licensed <nl>and accredited in accordance with subsection (d) of this 
section for the type of analysis they will be performing. All applications, 
initial and renewals, shall include a list of the executive officers and persons 
with controlling financial ownership. The license may not be transferred to 
another company which has bought the licensed laboratory. A new license must be 
applied for within 60 days of change of ownership. Laboratories which change 
their name must notify the department within 60 days of the change, send a 
processing fee of $20 and a name change application. An applicant desiring to be 
an asbestos laboratory shall designate one or more individuals as their 
responsible persons, who shall have responsibility for the asbestos 
activity.<ol> 
(b)-(c) (No change.) 
(d) Laboratory accreditation <nl>and proficiency<ol>. To be eligible for 
licensure, applicants must submit evidences of accreditation <nl> or 
proficiency<ol> [,] of at least one of the following: 
(1) accreditation by the National Voluntary Laboratory Accreditation Program 
(NVLAP) for bulk analysis by polarized-light microscopy [and/or analysis of 
airborne asbestos by transmission electron microscopy, (both required for AHERA) 
and enrollment in the NIOSH Proficiency Analytical Testing (PAT) program; or] 
<nl>(2)<ol> <p<nl> accreditation by the NVLAP for analysis of airborne asbestos 
by transmission electron microscopy;
<nl>(3)<ol> [(2)] accreditation as an industrial hygiene laboratory by the 
American Industrial Hygiene Association <nl>(AIHA) <ol> [, which includes the 
National Institute for Occupational Safety and Health (NIOSH)]<nl> and 
participation in the Proficiency Analytical Testing (PAT)<ol> [PAT] program 
<nl>for analysis of airborne asbestos by phase-contrast microscopy (PCM)<ol>; 
[or] 
<nl>(4)<ol> [(3)] proficiency according to the standards of the 
<nl>AIHA<ol>[NIOSH] PAT Program, which includes quarterly <nl>proficiency 
testing<ol> [sample tests] for airborne fibers <nl>by PCM<ol> [or bulk 
materials] and a quality assurance/quality control program <nl>as required by 
the NIOSH method 7400, revision #3, issue 2, August 1994; or<ol>[.] 
<nl>(5)<ol> <p<nl> accreditation of the individual laboratory analysts through 
the Asbestos Analyst Registry (AAR) and a quality assurance/quality control 
program as required by the NIOSH method 7400, revision #3. issue 2, August 1994. 
(e) Limitations. Limits which are placed on the type of services that an 
asbestos laboratory can perform are as follows. 
(1) (No change.) 
(2) A laboratory may analyze [clearance] samples by transmission electron 
microscopy (TEM) only if accredited by NVLAP. 
(3) A laboratory enrolled in the [NIOSH or] AIHA PAT program may perform phase-
contrast microscopy analysis under controlled laboratory conditions or under 
field conditions, if quality-control analysis is performed on at least 10% of 
the samples analyzed [ in the field]. All phase-contrast analysis shall be 
performed by an analyst who has received <nl> National Institute for 
Occupational Safety and Health (NIOSH)<ol> [NIOSH] 582 <nl>or NIOSH 582 
equivalent<ol> training. The laboratory must maintain individual records for 
each analyst <nl>as required by NIOSH 7400<ol> to document the individual 
analyst's coefficient of variation. <nl> These records must be available on site 
for review by the department.<ol>
(f) Qualifications. Applicants for licensing as an asbestos laboratory shall 
submit as applicable: 
(1) evidence of laboratory accreditation <nl>and most recently available results 
of PAT rounds for PCM and/or most recently available results of NVLAP sponsored 
proficiency tests for TEM and/or PLM<ol> in accordance with subsection (d) of 
this section; 
(2)-(5) (No change.) 

sec.295.55. Licensure: Asbestos Training Provider.
(a)-(c) (No change.) 
(d) Qualification. To qualify for a license, an applicant must demonstrate to 
the department that they meet the applicable requirements. Documentation 
required of applicants for licensing as asbestos training providers is as 
follows. 
(1)-(2) (No change.)
[(3) <p<ol> Records. Records shall be maintained, that include: a record of each 
asbestos course that is conducted, which shall include dates, location, 
instructors, trainees, etc., for a period of five years.] 
<nl>(3)<ol> [(4)] Advertising. Printed bulletins, brochures, or other 
promotional literature must specify course prerequisites for admission, the 
content of the course, and requirements for successful completion. 
<nl>(4)<ol> [(5)] Refund and cancellation policy. Each training provider must 
have a written policy concerning refunds and cancellations in both Spanish and 
English that is made available to applicants prior to acceptance of fees for 
enrollment, and shall include the procedure for notification by the trainee 
desiring to cancel. 
<nl>(5)<ol> [(6)] Information requirements. The training provider shall discuss 
and inform each prospective trainee of the requirements for the <nl>category<ol> 
[type] of license being sought, and of necessary qualifications he/she must 
have. The training provider shall refund any course-related fees a prospective 
trainee may have incurred due to a failure to provide this information to the 
student. Necessary qualifications include the following. 
(A) Individuals not eligible for employment in the United States will not be 
licensed. 
(B) Eligibility for refresher training courses is dependent on the effective 
date of the initial training. 
(C) Certain asbestos training courses require the successful completion of other 
training courses as a condition for admission. 
<nl>(6)<ol> [(7)] Maximum trainee-instructor ratio. The maximum number of 
trainees in a lecture session shall be 40. Hands-on training groups shall have 
no more than 15 trainees and must be so arranged that each trainee is given 
individual attention. 
<nl>(7)<ol> [(8)] Attendance and course completion standards. Attendance and 
course completion standards are as follows.
(A) Attendance records in asbestos training courses shall be taken at the 
beginning of each four-hour segment of course instruction. Control of exits and 
entrances shall be maintained. A master attendance record shall be maintained 
for each session. 
(B) A trainee is not eligible to complete a given course if more than 10% of the 
session has been missed, and the qualifying exam shall not be offered in such 
instances. The records of that session shall be marked to this effect. 
(C) A training provider must certify each examination taken by a trainee as to 
whether a minimum score of 70% correctly answered questions was achieved. The 
training provider shall have a written policy concerning re-examinations which 
shall apply to all such cases of failure of the initial examination. Failure of 
the re-examination means that the course will have to be repeated. 
<nl>(8)<ol> [(9)] Training facilities. Training facilities used will be those 
commonly used and accepted as classrooms or conference rooms. Classrooms must 
have restrooms available for the students. Unacceptable classrooms are rooms 
which by their arrangement or contents would readily distract students, or rooms 
open to the general public. 
<nl>(9)<ol> [(10)] Training requirements. A training provider must provide each 
course as a separate entity, as follows.
(A) Initial training courses shall not be combined with refresher courses. 
(B) Courses shall be conducted in only one language and not combined with 
courses taught in another language, i.e. English or Spanish.
(C) Basic or refresher courses shall be conducted in only one discipline and not 
be combined with courses of other disciplines, i.e. an abatement worker course 
and a contractor/supervisor course cannot be taught as a combined course. 
<nl>(10)<ol> [(11)] Methods of instruction. Standard methods of instruction are 
as follows. 
(A) At least 50% of the classroom instruction and 100% of the hands-on 
instruction will be conducted with instructors presenting the material. 
(B) Training films and video tapes may be used to enhance understanding, but 
they may not be used as a substitute for the formal class conducted by a 
certified instructor or the Model Accreditation Program required hands-on 
training. Any of these materials must support and convey the understanding of 
the subject to the student. 
<nl>(11)<ol> [(12)] Hours of operation. Classes will be conducted during 
scheduled hours as noted in subsection (e)(2) of this section. More than eight 
hours of training in a calendar day shall not be authorized. [Exceptions to this 
rule must be obtained in writing from the department in advance. A facsimile 
(FAX) may be used for emergency or unusual situations.] 
<nl>(12)<ol> [(13)] The applicant must submit the following with the 
application: 
(A) publications listed in sec.295.65(d)(3) of this title (relating to Training: 
Approval of Training Courses); 
(B) if the applicant is a Texas corporation, a certificate of good standing 
issued by the Texas State Comptroller's Office must be submitted with the 
application for licensure; and 
(C) if the applicant is a resident outside the State of Texas, a certificate of 
authority issued by the Texas Secretary of State authorizing the corporation to 
do business in the state, must be submitted with the application for licensure. 
(e) Conditions of issuance. The following conditions and agreements shall apply 
to issuance of licenses under this section. 
(1) (No change.) 
(2) The department shall be furnished a copy of all scheduled courses and shall 
be <nl>notified<ol> [advised]<nl> in writing within two hours of the scheduled 
class starting time, if the class is canceled <ol> [at least 24 hours in advance 
of any scheduled course cancellations]. <nl>Facsimiles will be accepted, but it 
is the responsibility of the training provider to follow-up with a hard copy 
bearing the responsible party's signature. <ol> Course schedules shall be 
provided to the department 14 days prior to the conduct of any course on the 
schedule. Exceptions may be made only with a complete justification being 
provided to the department and approval received. The department may consider 
variances with this rule. Requests for variances shall be submitted in writing 
to the Asbestos Programs Branch, <nl>Toxic Substances Control Division<ol> 
[Occupational Health Division]. Approval will be granted, if appropriate, in 
writing. 
(3) There shall be a description and an example of numbered certificates issued 
to students who attend the course and pass the examination. The <nl>uniquely 
numbered<ol> certificate must be in conformance with 40 CFR, Part 763, Subpart 
E, Appendix C, and must show the [social security of the individual certified. A 
uniquely numbered certificate may also be used, providing the social security 
number is shown.] <nl> school's name, address, telephone number, name of 
accredited person, discipline of the training course completed, name of 
instructor, expiration date of one year after the date upon which the person 
successfully completed the course or examination, as applicable, and a statement 
that the student passed the examination and the date it was taken. The 
certificate must include the signature of the instructor and the signature of 
the course director, principal officer, owner, or CEO. Refresher certificates 
require all of the above except the examination date.<ol> 
(4) (No change.) 
(f) <nl>Approval of course<ol> [Course] instructors <nl> and guest speakers<ol>. 
The training provider shall submit a resume of each instructor and guest speaker 
who will participate in the conduct of any asbestos training course to be 
approved by the department. Prior approval of instructors and guest speakers is 
required. The training provider will notify the department of additions and 
deletions to their instructor roster within 15 days of actual occurrence. 
<nl>(1)<ol> [(g)] Instructor qualifications. Training instructors shall be 
qualified in any one of the categories in <nl> subparagraphs<ol> [paragraphs] 
<nl>(A)-(D)<ol> [(1)-(5)] of this <nl>paragraph<ol> [subsection]. Training 
qualifications must be fully documented, and verifiable by the department. 
Instructors shall have current accreditation training from an Environmental 
Protection Agency (EPA) approved course for the discipline in which the 
instructor desires to teach. <nl>Instructors shall have current training from a 
Texas Department of Health (department) approved course for Air Monitor 
Technician (AMT) to teach the AMT course.<ol> The categories include: 
<nl>(A)<ol> [(1)] at least two years of actual hands-on experience in asbestos-
related activities (abatement or consulting) with current training accreditation 
from Environmental Protection Agency (EPA) asbestos courses for the subject 
which the instructor will teach, and a high school diploma and completion of at 
least one teacher education course in vocational or industrial teaching; 
<nl>(B)<ol> [(2)] graduation from an accredited college or university with a 
bachelor's degree in natural or physical sciences or a related field, with one 
year's hands-on experience in asbestos-related activities (abatement or 
consulting), and current accreditation in at least one EPA asbestos course; 
<nl>(C)<ol> [(3)] at least three years teaching experience in Hazmat or HazWoper 
or EPA approved asbestos courses, and completion of one or more teacher 
education courses in vocational or industrial teaching from an accredited junior 
college or university; <nl>or<ol> 
[(4) <p<ol> qualification on an individual basis of professional persons for the 
purpose of teaching their specialty, such as law, medicine, insurance, etc.; or] 
<nl>(D)<ol> [(5)] a vocational teacher with certification from the Texas 
Education Agency with one year's hands-on experience in asbestos related 
activities (abatement or consulting) and current accreditation in at least one 
EPA asbestos course. 
<nl>(2)<ol> [(h)] Professional references. Each instructor application shall 
include three professional references attesting to teaching experience and 
asbestos-related qualifications. No more than one reference will be accepted 
from an employee of the same company as the applicant. References will be 
submitted on a form provided by the department which will be completed by the 
person providing the reference and mailed directly to the department for 
inclusion with the instructor application. 
<nl>(3)<ol> <p<nl> Guest speaker qualifications. Guest speakers must be 
qualified on an individual basis of professional expertise for the purpose 
teaching their specialty, such as law, medicine, insurance, etc. 
<nl>(4)<ol> [(i)] Complete applications. The department shall not accept any 
instructor <nl>or guest speaker<ol> application until it is complete. The 
department shall reject any such application that does not contain sufficient 
references to be fully verifiable. 
<nl>(5)<ol> [(j)] Responsibilities. The asbestos training provider shall be 
responsible for: 
<nl>(A)<ol> [(1)] complying with standards of operation, as described in 
sec.295.58 of this title (relating to Operations: General Requirements); 
<nl>(B)<ol> [(2)] presenting to students all course material as outlined in 
syllabus and as represented to the department for approval; 
<nl>(C)<ol> [(3)] providing the environment, training, and testing of sufficient 
quality that the student retains the required elements of the course; 
<nl>(D)<ol> [(4)] cooperating with department personnel in the discharge of 
their official duties to conduct inspections and investigations as described in 
sec.295.68 of this title (relating to Compliance: Inspections and 
Investigations); and 
<nl>(E)<ol> [(5)] taking an aggressive approach in meeting the needs of the 
student to include providing course review in preparation for the examination 
and specialized attention to enhance comprehension.
<nl>(6)<ol> <p<nl> Revocation or suspension of approval. The department may 
revoke or suspend instructor approval if field site inspections or classroom 
audits indicate an instructor is not providing training that meets the 
requirements of the Model Accreditation Plan or these sections. Training course 
sponsors shall permit department representatives to attend, evaluate, and 
monitor any training course instructor without charge. The inspection staff is 
not required to give advance notice of their inspections.
<nl>(g)<ol> <p<nl> Record keeping Requirements for Training Providers. All 
records shall be kept in accordance with sec.295.62(b) of this title (relating 
to Operations: Record keeping). 

sec.295.56. Licensure: Asbestos Transporters.
(a)-(c) (No change.) 
(d) Qualifications. To qualify for a transporter license, an applicant must 
submit the following: 
(1)-(2) (No change.) 
(3) <nl>pollution<ol> liability insurance in the amount of $1 million as 
required by sec.295.40 (relating to Licensing and Registration: Insurance 
Requirements), when transporting asbestos<nl>-<ol>containing <nl> building<ol> 
material <nl>(ACBM)<ol> [(ACM)] for hire; 
(4)-(5) (No change.) 
(e) Responsibilities. An asbestos transporter shall: 
(1)-(5) (No change.) 
(6) train employees in compliance with OSHA regulations in 29 CFR, 
<nl>sec.1910.120(a)(1)(v)<ol> [sec.1910.120(a)(v)], in anticipation of possible 
spills of asbestos; [and] 
<nl>(7)<ol> <p<nl> insure asbestos containing waste material is properly 
labeled: and 
<nl>(8)<ol> [(7)] in Texas, deliver all asbestos-containing waste material for 
disposal to a facility from the approved list provided by the Texas Natural 
Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087. If 
transporting out-of-state, follow the regulations of the receiving state. 

sec.295.57. Accreditation: Asbestos Abatement in Commercial Buildings. 
(a) In a commercial building, unless a person is appropriately accredited as a 
worker, contractor/supervisor, designer, inspector, or project manager, the 
person may not engage in: 
(1) work, supervision, or design to carry out any of the following activities: 
(A) a response action other than a SSSD activity; 
(B) a maintenance activity that disturbs friable ACBM other than a SSSD 
activity; or 
(C) a response action for a major fiber release episode. 
(2) conducting inspections for asbestos; 
(3) project management to observe abatement activities performed by accredited 
contractors, serving as the commercial building owner's representative to ensure 
that abatement work is completed according to specification and in compliance 
with all relevant statutes and regulations. 
(b) A person must be accredited in order to perform asbestos related activities 
in commercial buildings in Texas. Licensed persons meet this requirement since 
accreditation is a prerequisite to obtaining a license under these regulations. 
(c) Accreditation is received by attending and passing the appropriate asbestos 
course, as described in sec.295.64 of this title (relating to Training: Required 
Asbestos Training Courses) offered by an asbestos training provider licensed by 
the department or one that has been approved by another state, that has the 
authority from EPA to approve courses, or that has been approved directly by 
EPA. Evidence of accreditation is shown by possession of an accreditation 
certificate or accreditation ID card of successful completion of the appropriate 
asbestos course. This documentation must be at the jobsite where the accredited 
person is working. All disciplines shall receive refresher training annually for 
reaccreditation. A person has a 12-month grace period in which to take refresher 
training once their accreditation certificate has expired. After that grace 
period, initial training must be completed again to become accredited again. 
(d) Work practices and accreditation requirements for asbestos related 
activities under this section shall be at least as stringent as applicable 
federal laws and regulations relating to the MAP and 40 CFR Part 61, Subpart M. 

sec.295.58. Operations: General Requirements.
(a) Responsibility. It is the responsibility of owners of public buildings or 
their designated agents to engage persons licensed under the provisions of these 
sections to perform any asbestos-related activity. <nl> Owners of commercial 
buildings are required to have an accredited person perform asbestos-related 
duties in accordance with the Asbestos School Hazard Reauthorization Act of 1990 
(ASHARA).<ol> 
(b)-(g) (No change.) 
(h) Sampling for asbestos. [Any licensed supervisor may obtain a bulk or wipe 
sample to determine or confirm the presence of asbestos prior to the beginning 
of an asbestos-related activity or before performing O&M activities wherever 
suspect material is encountered. (] A survey by a licensed asbestos inspector 
<nl>using the Asbestos Hazard Emergency Response Act (AHERA) protocol as a 
minimum<ol> is required <nl>to rebut or confirm the presence of ACBM<ol> for 
[actual] abatement <nl> or operations and maintenance (O&M)<ol> [)]. Only 
laboratories licensed by the State of Texas may be used to evaluate samples 
taken from within public buildings in Texas. <nl>Building material that has not 
been sampled, and is not beyond question as to asbestos content, must be treated 
as ACBM.<ol> 
(i) Project monitoring. <nl>The consultant or accredited project designer shall 
specify the protocol for monitoring the project. This will include the duties 
and responsibilities of the project manager and the air monitoring requirements. 
The consultant must specify the baseline sampling as required in 29 CFR 
sec.1926.1101(k)(4)(ii)(B). Only one cassette may be placed on a pump at a 
time.<ol> 
(1) Baseline. 
(A) The consultant shall <nl>insure that baseline samples are collected.<ol> 
[make a determination of the need to collect baseline samples. This 
determination] <nl>This requirement<ol> shall be made a part of the 
specifications for an asbestos project. Air samples for analysis by Phase-
contrast Microscopy will be collected under normal building conditions for any 
abatement activity prior to the disturbances of asbestos-containing <nl> 
building<ol> material <nl> (ACBM)<ol> (ACM) as a part of the activity. A minimum 
of three samples shall be collected on 0.8 micron mixed cellulose ester (MCE) 
filters loaded in conducting cassettes with extension cowls. Sampling and 
analysis will be in accordance with the latest edition of NIOSH 7400 protocol, 
counting rules A. The minimum sample volume will be 1,250 liters. 
(B) (No change.) 
(2) (No change.) 
(3) Clearance. 
(A) All project activities, except O&M, shall be cleared by using aggressive air 
sampling. <nl>Aggressive air sampling is the use of an air blower, such as a 
leaf blower with the force of air unaltered and operating as it comes from the 
factory, directed at all surfaces in order to cause loose asbestos fibers to 
become airborne.<ol> The maximum levels of residual fibers shall be as cited in 
subparagraph (C) of this paragraph.
(B) A visual inspection of the abatement area shall be made <nl> upon completion 
of ACBM removal but before the containment is removed<ol> to determine if the 
project has been properly conducted in accordance with the specifications and 
with applicable state and federal regulations and <nl> confirm that<ol> all 
<nl>ACBM<ol> [ACM] has been properly removed, encapsulated, or maintained. <nl> 
This inspection shall be in accordance with American Society for Testing and 
Materials (ASTM) E 1368-90, "Standard Practice for Visual Inspection of Asbestos 
Abatement Projects," except that the consultant shall perform those duties of 
the inspector as listed in paragraphs 4, 7, 9, 10. 11, 12, 13, and 14 of that 
guidance document. A final visual will be performed by the consultant, or 
project manager delegated by the consultant, once the abatement contractor has 
removed all containment and other materials from the project site.<ol> 
(C) For all projects<nl>,<ol> samples may be collected and analyzed by the 
latest edition of the NIOSH 7400 protocol, counting rules A, Phase-contrast 
Microscopy (PCM). Clearance samples shall be collected at a rate of <nl>at 
least<ol> one to less than 10 liters per minute on 0.8 micron mce filters in 
conducting cassettes with extension cowls. Minimum sample volume will be 1,250 
liters. Clearance will be achieved if no sample is reported greater than 0.01 
f/cc by the analysis report from the licensed laboratory. Asbestos Hazard 
Emergency Response Act (AHERA) protocol will be used in schools. A licensed 
consultant shall design the air monitoring scheme and may deviate from this 
subsection <nl>only if public health is maintained in accordance with all 
regulations. The consultant (project designer) shall, upon request by the 
department, provide documentation and justification to support deviations and 
must be able to demonstrate that the design meets the requirements and intent of 
the applicable regulations.<ol> [if appropriate.] 
(D) The visual inspection must be conducted by a properly licensed [or 
accredited] consultant. The consultant may delegate the visual inspection 
responsibility <nl>in writing<ol> to a <nl>licensed <ol> project manager 
considered experienced enough to properly perform this duty. 
(E) (No change.) 
(j) Posting of documents. The following documents are required to be posted 
<nl>conspicuously by licensees involved in the project to be visible at<ol> [in 
a conspicuous spot on a bulletin board at] the entrance to the regulated area 
and must not be covered by any other documents:
(1) (No change.) 
(2) copies of any violations issued <nl>as evidenced by an order from<ol> [by] 
the federal or state asbestos-regulating authorities within the preceding 12 
months from any asbestos project. 
(k) Documents required to be on-site are as follows: 
<nl>(1)<ol> <p<nl> all current licenses, registrations and accreditation 
certificates; 
<nl>(2)<ol> [(1)] EPA "Green Book" for O&M work; [and] 
<nl>(3)<ol> [(2)] appropriate publications as listed in sec.295.33 of this title 
(relating to Adoption by Reference of Federal Standards) for the asbestos 
activity which is being performed;
<nl>(4)<ol> [(3)] a copy of the "Recommended Work Practices for the Removal of 
Resilient Floor Coverings," published by the Resilient Floor Covering Institute, 
if removing floor coverings using this method. 
<nl>(l)<ol> Prohibitions. 
<nl>(1)<ol> <p<nl> Solvents with a flash point of 140 degrees Fahrenheit or 
below shall not be used within containment. 
<nl>(2)<ol> <p<nl> Disposal of improperly labeled or classified asbestos 
containing waste material as defined in 40 CFR Part 61, Subpart M is prohibited. 

sec.295.59. Operations: Operations and Maintenance (O&M) Requirements. 
(a) Restrictions. O&M activities involving asbestos-containing <nl> building<ol> 
materials <nl>(ACBM)<ol> [(ACM)] are restricted to small-scale, short-duration 
activities, according to sec.295.33(a)(5) and (9) of this title (relating to 
Adoption by Reference of Federal Standards). Asbestos O&M licensees shall not 
engage in any activity for which the primary purpose is asbestos abatement. 
(b) Work practices. Work practices shall include the following requirements. 
(1)-(3) (No change.) 
(4) Airtight barriers, as described in sec.295.60 of this title (relating to 
Operations: Abatement Practices and Procedures), shall be constructed for 
containment of asbestos fibers, or a glove bag technique may be used for removal 
or repair of <nl>ACBM<ol> [ACM] on pipes or ducts. 
(5)-(7) (No change.) 
(8) Asbestos shall be bagged and placed in containers, and disposed of in 
accordance with [requirements to be found in] sec.295.60 of this title (relating 
to Operations: Abatement Practices and Procedures) <nl> and 40 CFR Part 61, 
Subpart M<ol>. 
(9) Air clearance and visual inspections shall be performed <nl> before removing 
any mini-enclosure<ol> [as required by references listed in sec.295.33 of this 
title]. 
(10) (No change.) 

sec.295.60. Operations: Abatement Practices and Procedures.
(a) General provisions. The following general work practices are minimum 
requirements for protection of public health, and do not constitute complete or 
sufficient specifications for an asbestos abatement project. More detailed 
requirements in plans and specifications for a particular abatement project, or 
requirements that address the unusual or unique circumstances of a project, may 
take precedence over the provisions of this section. The specifications written 
for the abatement project shall also include the required air clearance 
procedures. 
(1) (No change.) 
(2) An asbestos project consultant who is licensed under sec.295.47 of this 
title (relating to Licensure: Individual Asbestos Consultant) <nl> and is a 
Professional Engineer (PE) or Certified Industrial Hygienist (CIH), if approved 
by the department,<ol> may specify work practices that vary from the provisions 
of this section as long as the work practices specified are at least as 
protective of public health, and are <nl>clearly<ol> described in the project 
notification submitted to the Texas Department of Health (department). <nl> The 
burden of proof rests with the consultant (project designer). Non-standard 
abatement, such as dry removal or no negative air, shall be reviewed and 
certified in writing by a Certified Industrial Hygienist (CIH) or a Professional 
Engineer (PE) and shall be approved in writing by the Chief of the Asbestos 
Programs Branch, Toxic Substances Control Division, prior to the start of 
abatement.<ol> 
(3)-(4) ( No change.) 
(b)-(c) (No change.) 
(d) Floor and wall preparation. Floor sheeting shall completely cover all floor 
surfaces and consist of a minimum of two layers of sheeting <nl> with at least a 
dart impact of 270 grams and tear resistance of machine direction (M.D.) 512 
grams and transverse direction (T.D.) of 2067 grams or<ol> [of] at least six-mil 
true thickness [, or equivalent]. Floor sheeting shall extend up sidewalls at 
least 12 inches and be sized to minimize <nl> the number of<ol> seams. No seams 
shall be located at wall-to-floor joints. Sealing of all floor penetrations 
against water leakage is mandatory. Wall sheeting shall completely cover all 
wall surfaces and consist of a minimum of <nl>two layers<ol> [one layer] of 
four-mil sheeting [, or equivalent]. <nl>Wall sheeting<ol> [It] shall be 
installed so as to minimize joints and shall extend beyond wall/floor joints at 
least 12 inches. No seams shall be located at wall-to-wall joints. <nl> All 
plastic sheeting will be certified by the Underwriters Laboratory (UL) as being 
fire retardant. When containment walls which exceed 260 linear feet must be 
constructed, a viewing window will be included in the wall for each 260 linear 
feet or fraction of that distance which will permit the viewing of at least 51% 
of the abatement work area. The window shall be constructed of plexiglass which 
measures approximately 18 inches by 18 inches. The bottom of the window will be 
at a reasonable viewing height from the outside floor. <ol> 
(e)-(f) (No change.) 
(g) Warning signs. Danger signs in accordance with 29 CFR <nl> 
sec.sec.1926.1101<ol> [sec.1926.58], shall be displayed, in both the Spanish and 
English languages, at all entrances to regulated areas, and on the outside of 
critical barriers. 
(h) High-efficiency particulate air (HEPA) cleaning. Except with prior written 
approval from the department, cleaning procedures shall use wet methods and HEPA 
vacuuming [ , and visual inspections shall be performed in accordance with 40 
CFR, Chapter 1, sec.763.90(i)(1). Exceptions shall be obtained by writing to the 
Texas Department of Health, Asbestos Programs Branch, Occupational Health 
Division, 1100 West 49th Street, Austin, Texas 78756]. 
(i) Containment-area ventilation. Units with HEPA filtration, and in sufficient 
number to provide a negative pressure of at least [of] 0.02 inches of water 
column differential between the containment and outside and a minimum of four 
containment air changes per hour, shall be operated continuously for the 
duration of the project. The duration of the asbestos abatement project for the 
purpose of this requirement shall be considered from the time a regulated area 
is established through the time acceptable final clean air-monitoring results 
are obtained. These units shall exhaust filtered air to the outside of the 
building wherever technically feasible.
(j) Requirements for removal. The requirements for removing <nl> ACBM<ol> [ACM] 
are that: 
(1) all <nl>ACBM<ol> [ACM] shall be <nl>adequately <ol> [thoroughly] wetted 
prior to removal or other handling; <nl> material to be bagged will be marked 
per the applicable Occupational Safety and Health Administration (OSHA) and the 
National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations 
and doubled bagged with true 6 mil thickness or may be placed in a bag that 
meets the following criteria: tear resistance of M.D. 300 grams , T.D. 2,068 
grams, and dart impact of 216 grams. Documentation from the manufacturer shall 
be on site. Any bagging shall not allow leakage nor breakage due to 
overfilling;<ol> 
(2) asbestos covered components that are going to be removed from the building 
may either be stripped in place and cleaned (and pass a visual inspection by the 
consultant or O&M supervisor as appropriate), or the <nl>ACBM<ol> [ACM] may be 
thoroughly wetted and the entire component wrapped in two layers of six-mil 
plastic <nl>or a single layer of plastic with a tear resistance of no less than 
M.D. 512 grams, T.D. of 2,068 grams, and a dart impact of no less than 297 grams 
as measured using ASTM methods D1709, D1922, and D882<ol>, labeled and sealed, 
providing that:
(A)-(C) (No change.) 
(3) <nl>ACBM<ol> [ACM] shall be removed in small sections and containerized 
while wet. At no time shall material be allowed to accumulate on the floor or 
become dry. Structural components and piping shall be thoroughly wetted prior to 
wrapping in plastic sheeting for disposal. 
(k)-(l) (No change.) 
(m) Safety requirements. The following safety requirements shall be in effect 
for an abatement project: 
(1)-(2) (No change.) 
(3) Air monitoring. Air monitoring shall include base line sampling, personal 
samples, area sampling, and clearance sampling according to 40 CFR Part 763, 
Subpart E<nl>, Appendix A(H)1-2 by phased-contrast microscopy (PCM) as a 
minimum<ol>. 

sec.295.61.Operations: Notifications. 
(a) (No change.) 
(b) Responsibility. It is the responsibility of the building owner <nl>and/or 
operator<ol> to notify the department under this section. This task [, but not 
the responsibility,] may be delegated to a licensed asbestos abatement 
contractor or consultant in writing<nl>.<ol> [, however, this does not relieve 
the] <nl>The<ol> building owner <nl> is responsible for<ol> [of responsibility 
nor] the payment of the required notification fee. In a demolition where a 
licensed abatement contractor or consultant are not required, the task may be 
delegated to the demolition contractor. <nl>The notification must be filed on 
the form specified by the department.<ol> [It is the task of the person 
designated to file the notification on the form specified by the department.] 
The notification shall have all information completed with no blocks left blank. 
<nl> The building owner, and the person to whom the task of notification has 
been delegated, are jointly and severally responsible for the accuracy and 
timeliness of the notification.<ol> 
(c) Timeliness of notification. Written notifications of asbestos abatement 
activity or demolition must be hand delivered, express mailed, or postmarked at 
least 10 working days (not calendar days) before <nl>asbestos abatement or any 
other activity begins that will disturb asbestos<ol> [the start of activities 
which may disturb asbestos]. Notifications must be delivered by United States 
Postal Service, commercial delivery service, or by hand delivery. Telephone 
facsimile (FAX) is not permitted. [The start date for asbestos activity is 
considered to be the date when operations which might disturb asbestos begin]. 
(d)-(e) (No change.) 
(f) Start-date/stop-date (completion date) requirement. In no event shall 
asbestos abatement activity, demolition, Operations & Maintenance (O&M), or 
renovation, as covered by this section, begin or be completed on a date other 
than the date contained in the written notice. Amendments to start date changes 
are to be submitted as required in subsections (d) and (e) of this section. An 
amendment is required for any stop dates which change by more than one work day 
for each week (seven calendar day period) for which the project has been 
scheduled and notification submitted. The building owner, or his/her delegated 
agent, shall provide schedule changes to the department no less than 24 hours 
prior to the change or completion of the project. <nl> Changes less than ten 
days in advance shall<ol> [Emergency notification can] be confirmed with the 
department telephonically and followed up in writing. 
(g) Consolidated notifications of small operations. Notifications involving a 
series of small, separate asbestos O&M or abatement operations (each less than 
160 square feet or 260 linear feet or <nl>27<ol> [35] cubic feet in size) may be 
combined by listing the information on a single notification form. Predict the 
combined additive amount of asbestos to be removed or stripped during a calendar 
year of January 1 through December 31. If the total amount is less than one 
asbestos reporting unit per subsection (j) of this section, and the facility is 
not a public building, a notification is not required. If the facility is a 
public building, a notification is required for any amount. The department shall 
be notified at least ten working days (not calendar days) before the end of the 
calendar year preceding the year for which notice is being given. 
(1)-(2) (No change.) 
(h)-(i) (No change.) 
(j) Asbestos notification fees. 
(1) (No change.) 
(2) Payment. An invoice for the required fee will be sent to the building owner 
after the notification has been received by the department. Fee amounts, 
address, and fund numbers are included on the form. <nl> Payment must be 
remitted in the manner instructed on the invoice.<ol> 
(3) Basis for fees. The fees shall be based on the total amount of the regulated 
asbestos-containing material <nl>(RACM)<ol> reported to be removed as defined in 
40 CFR sec.61.141 <nl>or asbestos-containing material (ACBM) to be removed as 
defined in sec.295.31(c) of this title (relating to General Provisions) and 
notified in accordance with sec.295.34(f) of this title (relating to Asbestos 
Management in Facilities and Public Buildings), and subsection (a) of this 
section.<ol> The fee shall be calculated at the rate of $25 per asbestos 
reporting unit (ARU). The number of ARUs associated with the removal activity is 
determined by dividing the number of linear feet by 260, the number of square 
feet reported by 160, and the number of cubic feet by <nl>27<ol> [35] and adding 
these individual results. The sum of this addition, minus any fraction, shall 
then be multiplied by the $25 rate to calculate the notification fee. The 
minimum fee shall be $50 <nl> administration fee<ol> per original notification 
and the maximum fee shall be <nl>$3,000<ol> [$10,000] per notification. The fee 
shall be assessed only for the amount of asbestos to be removed. If no asbestos 
is removed or if the amount of asbestos removed is less than two ARUs, only the 
minimum administrative fee shall be assessed. Annual notifications of 
maintenance activities subject to 40 CFR, Part 61, Subpart M <nl>and subsection 
(g) of this section<ol>, are included in the fee requirement. If less than the 
reported amount will be removed, a notification amendment should be provided to 
the department no later than five working days following the completion of the 
project. A refund request must be sent with the amended notification. A new 
invoice will be sent to the building owner which will reflect a new fee based 
upon the actual amount of asbestos that was removed. If the fee has been paid, 
refunds will be made, when appropriate, minus a $50 administrative fee. Revision 
of the form will require an additional fee only if the amount of reportable 
asbestos to be removed is increased.
(4) (No change.) 

sec.295.62. Operations: Record keeping.
(a) Record retention. Records and documents required by this section shall be 
retained for a period of 30 years from the date of project completion unless 
otherwise stated. <nl>Such records and documents shall be made available to the 
department upon request.<ol> Persons ceasing to do business, shall notify the 
Texas Department of Health (department) in writing within 30 days of such event. 
The department, on receipt of such notification may instruct that the records be 
surrendered and may specify a repository for such records. The persons shall 
comply with the department's instructions within 60 days. 
(b) Training providers. Licensed training providers shall <nl> comply with the 
following minimum record-keeping requirements.<ol> [establish and maintain 
attendance records pursuant to the requirements of this section for a period of 
five years, and shall make such records and documents available to the 
department upon request.] 
<nl>(1)<ol> <p<nl> Training course materials. A training provider must retain 
copies of all instructional materials used in the delivery of the classroom 
training such as student manuals, instructor notebooks and handouts. 
<nl>(2)<ol> <p<nl> Instructor qualifications. A training provider must retain 
copies of all instructors' resumes, and the documents approving each instructor 
issued by the department or EPA. Instructors must be approved by the department 
before teaching courses for accreditation purposes. A training provider must 
notify the department in advance whenever it changes course instructors. Records 
must accurately identify the instructors that taught each particular course for 
each date that a course is offered together with the course student roster. 
<nl>(3)<ol> <p<nl> Examinations. A training provider must document that each 
person who receives an accreditation certificate for an initial training course 
has achieved a passing score on the examination in accordance with sec.295.64(j) 
of this title (relating to Training: Required Asbestos Training Courses). These 
records must include a copy of the exam and clearly indicate the date upon which 
the exam was administered, the training course and discipline for which the exam 
was given, the name of the person who proctored the exam, and the name and test 
score of each person taking the exam. The topic and dates of the training course 
must correspond to those listed on that person's accreditation certificate. 
<nl>(4)<ol> <p<nl> Accreditation certificates. The training providers shall 
maintain records that document the names of all persons who have been awarded 
certificates, their certificate numbers, the disciplines for which accreditation 
was conferred, training and expiration dates, and the training location. The 
training provider shall maintain the records in a manner that allows 
verification of the required information by telephone. 
<nl>(5)<ol> <p<nl> Verification of certificate information. Training providers 
of refresher training courses for accreditation must confirm that their students 
possess valid accreditation before granting course admission. Training providers 
offering the initial management planner training course must verify that 
students have met the prerequisite of possessing valid inspector accreditation 
at the time of course admission. A valid accreditation certificate to receive 
refresher training would be one in the same course and not expired over 12 
months. 
<nl>(6)<ol> <p<nl> Records retention and access. 
<nl>(A)<ol> <p<nl> The training provider shall maintain all required records for 
a minimum of three years. The training provider, however, may find it 
advantageous to retain these records for a longer period of time. 
<nl>(B)<ol> <p<nl> The training provider must allow the department reasonable 
access to all of the records required by the MAP, and to any other records which 
may be required by the department for the approval of asbestos training 
providers or the accreditation of asbestos training courses. The department 
encourages training providers to make this information equally accessible to the 
general public. 
<nl>(C)<ol> <p<nl> If a training provider ceases to conduct training, the 
training provider shall notify the department and provide reasonable opportunity 
for the department to take possession of that providers asbestos training 
records. 
(c) Asbestos contractors. 
(1) Central location. The following records and documents shall be maintained by 
asbestos contractors at a central location at the principal place of business 
for a period of 30 years and shall be made available to the department upon 
request:
(A) records and documents required by 29 CFR sec.1910, and 29 CFR 
<nl>sec.1926.1101<ol> [sec.1926.58], as amended;
(B) (No change.) 
(C) copies of all regulatory agency correspondence including letters, notices, 
citations received and notifications made by the <nl>building owner or 
operator<ol> [contractor]; 
(D)-(G) (No change.) 
(2) On site. Records and documents shall be maintained on-site at the asbestos 
project location for the duration of the project. Records and documents with 
personal references shall be made available to all persons employed at the site 
upon request. All on-site records and documents shall be made available to the 
department upon request. The records and documents covered by this paragraph 
include: 
<nl>(A)<ol> <p<nl> all current licenses, registrations and accreditation 
certificates; 
<nl>(B)<ol> [(A)] a current copy of the work practice requirements; 
<nl>(C)<ol> [(B)] a copy of the contract or technical specifications governing 
the project or if no contract, location and description of operations and 
description of abatement procedures; 
<nl>(D)<ol> [(C)] a listing of all employees, by name, social security number 
and certificate number working on the project;
<nl>(E)<ol> [(D)] a listing of each of the contractors, sub-contractors and 
consultants on the project; 
<nl>(F)<ol> [(E)] a daily sign-in/out log which identified persons by name and 
the length of time each spent at the site;
<nl>(G)<ol> [(F)] records of all on-site air monitoring; 
<nl>(H)<ol> [(G)] a written respirator program which conforms to requirements of 
29 CFR sec.1910.134(b), as amended; 
<nl>(I)<ol> [(H)] name and address of the contractor or building owner-operator; 
<nl>(J)<ol> [(I)] name and address of project supervisor(s); 
<nl>(K)<ol> [(J)] description of personal safety practices; 
<nl>(L)<ol> [(K)] name and address of waste disposal site; 
<nl>(M)<ol> [(L)] dates of participation in the operation; and 
<nl>(N)<ol> [(M)] a roster of registered asbestos workers employed. 
(d)-(e) (No change.) 

sec.295.64. Training: Required Asbestos Training Courses.
(a) General provisions. <nl>Persons working with asbestos must be appropriately 
accredited to perform as a worker, contractor/supervisor, inspector, management 
planner, or project designer. In a commercial building, only accreditation is 
required as specified in this section. In a public building, licensing is also 
required.<ol> Applicants for licensing or renewal must submit evidence of 
fulfillment of specific training requirements acceptable to the Texas Department 
of Health (department) under these sections. Course content, hours of 
instruction, refresher training, etc., are subject to change or modification. At 
the conclusion of each training course, the instructor shall provide the student 
a copy of the registration form for the state <nl> licensing<ol> [accreditation] 
examination and a copy of the examination schedule. The training provider shall 
also assist the applicant if needed to complete the application to include 
listing any special requirements of the student, such as <nl>an accommodation 
for a disability.<ol> [the need for an oral test or a test in Spanish] . 
(1) The revisions of the Environmental Protection Agency (EPA) Model 
Accreditation Plan (MAP) reaffirm the principle that each of the accredited 
training disciplines is distinct from the others, because each reflects a 
different functional job role. <nl>Training courses for all disciplines shall be 
in accordance with the MAP.<ol> 
(2) (No change.). 
(3) Training courses shall be conducted by training providers licensed by the 
department. <nl>Persons trained<ol> [Training] within the confines of this State 
by unlicensed providers shall not be <nl> accredited or licensed<ol> [accepted] 
by the department. 
(4)-(7) (No change.) 
(b) Asbestos project designer training. The project designer training course 
shall be three days in length. Persons seeking to be licensed as an asbestos 
consultant <nl>or accredited as a project designer<ol> under these sections 
shall complete the approved project design training course as described in this 
subsection. (See also the other training required for consultants in 
sec.295.47(f)(3) of this title (relating to Licensure: Individual Consultant)). 
Successful completion of the course shall be demonstrated by achieving a score 
of at least 70% <nl>correct<ol> on the course examination. The course shall 
adequately address: 
(1)-(20) (No change.) 
(c) Contractor/supervisor training. The contractor/supervisor course consists of 
five days of training. Persons seeking to be licensed <nl> or accredited<ol> as 
an asbestos abatement contractor, asbestos abatement supervisor, project 
manager, [asbestos competent person (under Occupational Health and Safety 
Administration requirements),] or operations and maintenance (O&M) (restricted) 
<nl>contractor/<ol>supervisor, shall successfully complete this approved 
contractor/supervisor training course as described in this subsection. The 
course may be substituted for the asbestos abatement worker course; this 
substitution also applies to annual refresher training. This training shall 
include lectures, demonstrations, audio-visuals and hands-on training, including 
individual respirator fit testing, course review, and a written examination of 
100 multiple-choice questions. Each trainee must score at least 70% 
<nl>correct<ol> or better on this exam to successfully complete the course. The 
course shall adequately address: 
(1) physical characteristics of asbestos and <nl>asbestos-containing building 
material (ACBM)<ol> [(ACM)]; 
(2)-(16) (No change.) 
(d) Asbestos abatement worker training. The worker training course consists of 
four days of training. Persons seeking registration <nl> or accreditation<ol> as 
asbestos abatement workers shall successfully complete the approved training 
course, as described in this subsection. Successful completion of the 
contractor/supervisor training course shall also be acceptable as qualification 
for asbestos worker applicants. Worker training courses are required to have a 
classroom student-instructor ratio of not more than 25 to <nl>1<ol> [one] 
(25:1). The worker training course shall include lectures, demonstrations, 
hands-on training including individual respirator fit testing, course review, 
and a written examination consisting of 50 multiple-choice questions. Successful 
completion of the course shall be demonstrated by achieving a score of at least 
70% <nl>correct<ol> on the examination. The course shall adequately address: 
(1) physical characteristics of asbestos and <nl>ACBM<ol> [ACM]; 
(2)-(12) (No change.) 
(e) Asbestos inspectors. The inspector course shall consist of three days of 
training. Persons seeking to be licensed <nl>or accredited <ol> as asbestos 
inspectors shall successfully complete the approved training course as described 
in this subsection. The inspector training course shall include lectures, 
demonstrations, hands-on individual respirator fit testing, course review and a 
written examination consisting of 50 multiple choice questions. Successful 
completion of the course shall be demonstrated by achieving a score of at least 
70% <nl>correct<ol> on the examination. The course shall adequately address: 
(1)-(7) (No change.) 
(8) inspecting for friable and non-friable <nl>ACBM <ol> [ACM]; 
(9) assessing of the condition of friable <nl>ACBM<ol> [ACM]; 
(10)-(16) (No change.) 
(f) Management planners. The management planner course is two days long, and has 
as a prerequisite<nl>,<ol> the three-day asbestos inspector course. Persons 
seeking to be licensed as management planners shall successfully complete the 
training program for inspectors, as described in subsection (d) of this section, 
plus the approved asbestos management planner training course, as described in 
this subsection. The management planner course shall include lectures, 
demonstration, course review and a written examination consisting of 50 multiple 
choice questions. Successful completion of the course shall be demonstrated by 
achieving a score of at least 70% <nl>correct<ol> on the examination. The course 
shall adequately address: 
(1)-(12) (No change.) 
(g) Air monitoring technician. Persons seeking to be licensed as air monitoring 
technicians shall successfully complete an approved three-day training course as 
described in this subsection. The air-monitoring technician course shall include 
lectures, demonstrations, hands-on individual respirator fit testing, course 
review and a written examination consisting of 50 multiple choice questions. 
Successful completion of the course shall be demonstrated by achieving a score 
of at least 70% <nl>correct<ol> on the examination. The course shall adequately 
address the: 
(1)-(10) (No change.) 
(h)-(i) (No change.) 
<nl>(j)<ol> <p<nl> Examinations. 
<nl>(1)<ol> <p<nl> Each training provider shall administer a closed book 
examination to persons seeking accreditation who have completed an initial 
training course. Demonstration testing may also be included as part of the 
examination. A person seeking initial accreditation in a specific discipline 
must pass the examination for that discipline in order to receive accreditation. 
For example, a person seeking accreditation as an abatement project designer 
must pass the examination for an abatement project designer. Training providers 
may develop their own examinations or use standardized examinations developed 
for purposes of accreditation under TSCA Title II. Each examination shall 
adequately cover the topics included in the training course for that discipline. 
<nl>(2)<ol> <p<nl> The following are the requirements for examination in each 
discipline: 
<nl>(A)<ol> <p<nl> Worker: 
<nl>(i)<ol> <p<nl> 50 multiple-choice questions; and 
<nl>(ii)<ol> <p<nl> Passing score: 70% correct.
<nl>(B)<ol> <p<nl> Contractor/Supervisor: 
<nl>(i)<ol> <p<nl> 100 multiple-choice questions; and 
<nl>(ii)<ol> <p<nl> Passing score: 70% correct.
<nl>(C)<ol> <p<nl> Inspector: 
<nl>(i)<ol> <p<nl> 50 Multiple-choice questions; and 
<nl>(ii)<ol> <p<nl> Passing score: 70% correct.
<nl>(D)<ol> <p<nl> Management Planner: 
<nl>(i)<ol> <p<nl> 50 Multiple-choice questions; and 
<nl>(ii)<ol> <p<nl> Passing score: 70% correct.
<nl>(E)<ol> <p<nl> Project Designer: 
<nl>(i)<ol> <p<nl> 100 multiple-choice questions; and 
<nl>(ii)<ol> <p<nl> Passing score: 70% correct.

sec.295.65. Training: Approval of Training Courses.
(a)-(b) (No change.) 
(c) Full approval. Full approval of an asbestos training course and the training 
provider license shall be granted for a period of one year after the department 
has granted contingent approval, has had the opportunity to conduct an on-site 
observation and evaluation of the training course, its instructors and its 
facilities, and has determined that the applicant's asbestos training course 
meets the requirements set forth in these sections. <nl> Training course 
providers shall permit representatives of the department to attend, evaluate, 
and monitor any training course without charge. The department compliance 
inspection staff are not required to give advance notice of their 
inspections.<ol> 
(d) Applications. An applicant for approval of an asbestos training course must 
submit an application in writing to the department. Within 30 working days after 
receiving an application, the department shall acknowledge receipt of the 
application and notify the applicant of any deficiency in the application. The 
department will approve or deny the application only upon receipt of the 
completed application which shall contain the following information:
<nl>(1)<ol> <p<nl> Initial Training Course Approval. The following minimum 
information is required for approval of initial training courses: 
<nl>(A)<ol> [(1)] the name and address of the licensed training provider who 
will present the course, and the name and phone number of the responsible 
individual; 
<nl>(B)<ol> [(2)] the type of course for which approval is being requested; 
<nl>(C)<ol> [(3)] a detailed outline of the course curriculum including the 
amount of time allotted to each topic, the name and qualifications of the 
individual developing the instruction program for each topic, and copies of all 
written materials to be distributed to the student; 
<nl>(D)<ol> [(4)] a description of the type of equipment owned which must be 
used in all full-length courses for demonstrations and/or "hands-on" exercises, 
including but not limited to, types of respirators, negative air units, water 
spray devices, protective clothing, construction materials, high efficiency 
particulate air (HEPA) vacuum, air purifying panel, glove bags, shower unit, 
water filter assembly; 
<nl>(E)<ol> [(5)] documentation, including photos and details of assurance that 
the number of instructors, the amount of equipment, and the facilities are 
adequate to provide the students with proper training;
<nl>(F)<ol> [(6)] administration of a written multiple choice examination at the 
conclusion of the course. If copies of the exam are required by the department, 
measures to protect the confidentiality of the exam as proprietary information 
will be maintained by the department to the extent authorized by law; [and] 
<nl>(G)<ol> [(7)] <nl>acknowledgement<ol> [establishment of the fact] that the 
minimum grade which must be obtained <nl>on the exam<ol> for a trainee to 
successfully complete the course is 70% <nl>correct;<ol> [.] 
<nl>(H)<ol> <p<nl> a list of any other states that currently approve the 
training course; 
<nl>(I)<ol> <p<nl> a copy of all course materials (student manuals, instructor 
notebooks, handouts, and other course related materials); 
<nl>(J)<ol> <p<nl> a detailed statement about the development of the examination 
used in the course; 
<nl>(K)<ol> <p<nl> names and qualifications of all course instructors. 
Instructors must have academic and/or field experience in asbestos abatement; 
and 
<nl>(L)<ol> <p<nl> a description and example of the numbered certificates issued 
to students who attend the course and pass the examination. 
<nl>(2)<ol> <p<nl> Refresher Training Course Approval. The following minimum 
information is required for approval of refresher training courses: 
<nl>(A)<ol> <p<nl> the length of training in half-days or days. 
<nl>(B)<ol> <p<nl> the topics covered in the course. 
<nl>(C)<ol> <p<nl> a copy of all course materials (student manuals, instructor 
notebooks, handouts, and other course related materials). 
<nl>(D)<ol> <p<nl> the names and qualifications of all course instructors. 
Instructors must have academic and/or field experience in asbestos abatement; 
and 
<nl>(E)<ol> <p<nl> a description and an example of the numbered certificates 
issued to students who complete the refresher course and pass the examination, 
if required. 
<nl>(3)<ol> <p<nl> Withdrawal of Training Course Approval. The following 
criteria are grounds for suspending or withdrawing approval from accredited 
training programs under sec.295.69 of this title (relating to Compliance: 
Reprimand, Suspension, Revocation). At a minimum, the criteria shall include: 
<nl>(A)<ol> <p<nl> misrepresentation of the extent of a training course's 
approval by a State or EPA; 
<nl>(B)<ol> <p<nl> failure to submit required information or notifications in a 
timely manner; 
<nl>(C)<ol> <p<nl> failure to maintain requisite records; 
<nl>(D)<ol> <p<nl> falsification of accreditation records, instructor 
qualifications, or other accreditation information;
<nl>(E)<ol> <p<nl> failure to adhere to the training standards and requirements 
of the EPA MAP or State Accreditation Program;
<nl>(F)<ol> <p<nl> an approved training course instructor, or other person with 
supervisory authority over the delivery of training has been found in violation 
of other asbestos regulations administered by the department. An administrative 
order under sec.295.69 of this title or 295.70 of this title (relating to 
Compliance: Administrative Penalty) constitutes evidence of a failure to comply 
with relevant statutes or regulations; or
<nl>(G)<ol> <p<nl> submittal of false information as a part of the self-
certification required under Unit V.B. of the revised MAP. 
(e) Re-training (refresher) courses. For all disciplines except inspectors<nl>, 
management planners,<ol> and air monitoring technicians, a state accreditation 
program shall include a one-day annual refresher training course for 
reaccreditation. Refresher courses for inspectors shall be a half-day in length. 
Management planners shall attend the inspector and management planner refresher 
courses. Consultants shall attend an approved two-day annual refresher training 
course, or four separate refreshers consisting of project designer, inspector, 
management planner, and air monitoring technician. The inspector, management 
planner, and air monitoring refresher courses shall each be four hours in length 
and include: federal, state and local regulations; state-of-the-art 
developments; and review of key aspects of the initial training course. 
(f) Issuance of certificates. All training certificates shall bear the name, 
address, and telephone number of the licensed training facility and the name of 
the instructor. The training provider shall: 
(1) issue certificates <nl>that bear the school's name, address, telephone 
number, name of accredited person, discipline of the training course completed, 
name of instructor, expiration date of one year after the date upon which the 
person successfully completed the course or examination, as applicable, and a 
statement that the student passed the examination and the date it was taken. The 
certificate must include the signature of the instructor and the signature of 
the course director, principal officer, owner, or CEO. Refresher certificates 
require all of the above except the examination date <ol> [to students who 
successfully pass the training course's examination. The certificate shall 
indicate the name of the student and the course completed, the date of the 
course and examination and include the signature of the instructor
(2) (No change.) 
(3) submit the names<nl>, <ol>[and] social security numbers, [and] one inch by 
one inch <nl>photos, taken at either the beginning or the end of the course, and 
a group photo of the class taken at the end of the course,<ol> [photo, on a form 
provided by the department,] of students receiving an accreditation to the 
department within 10 days of the completion date of each course <nl>on a form 
provided by the department<ol>; and 
(4) (No change.) 
(g) (No change.) 
(h) Minimum number of instructors. Each course requiring approval according to 
the model accreditation plan shall require at least the minimum number of 
instructors for that course as specified by EPA. <nl>Only one instructor is 
required for courses with five or fewer students. In cases where a second 
instructor is required, a guest speaker can substitute for one of the required 
instructors. The person acting as the second instructor shall teach a minimum of 
two hours. Two instructors are not required for worker courses or refresher 
courses.<ol>

sec.295.66. Compliance: Deaccreditation.
(a) After notice to the accredited person of an opportunity for a hearing in 
accordance with subsection (c) of this section, the Texas Department of Health 
(department) may reprimand the accredited person or modify, suspend, suspend on 
an emergency basis, or revoke accreditation under the Texas Asbestos Health 
Protection Act. 
(b) The department may reprimand any accredited person, or may suspend or revoke 
an accreditation for: 
(1) performing work requiring accreditation at a job site without being in 
physical possession of initial and current accreditation certificates; 
(2) permitting the duplication or use of one's own accreditation certificate by 
another; 
(3) performing work for which accreditation has not been received; or 
(4) obtaining accreditation from a training provider that does not have approval 
to offer training for the particular discipline from either EPA or from a State 
that has a contractor accreditation plan at least as stringent as the EPA MAP. 
(c) The contested-case hearing provisions of the Administrative Procedure Act, 
Texas Government Code, Chapter 2001 shall apply to any enforcement action 
proposed to be taken under this section. The formal hearing procedures of the 
department in Chapter 1 of this title (relating to the Board of Health) shall 
also apply. 
(d) If an accreditation received under sec.295.57 of this title (relating to 
Accreditation: Asbestos Abatement in Commercial Buildings) has been suspended, 
the person(s) named in the suspension shall not be eligible to reapply for 
accreditation under this section for one year. 
(e) If an accreditation received under sec.295.57 of this title has been 
revoked, the person(s) named in the revocation shall not be eligible to reapply 
for accreditation under these sections for three years.

sec.295.68. Compliance: Inspections and Investigations.
(a) The Texas Department of Health (department) shall maintain the right to 
inspect or investigate the practices of any person involved with asbestos 
abatement or related activity in a facility<nl>,<ol> [or] public <nl>or 
commercial<ol> building. 
(b)-(e) (No change.) 
(f) All persons engaged in asbestos-related activities must have the department-
issued ID Card present at the worksite <nl>except those persons working in a 
commercial building which must have their accreditation certificate or card<ol>. 

sec.295.69. Compliance: Reprimand, Suspension, Revocation.
(a)-(c) (No change.) 
[(d) <p<ol> If the department receives three validated complaints against a 
licensed supervisor and finds that the supervisor has, on three separate 
occasions, violated or has permitted workers under his supervision to violate 
the Act or these sections, the department shall:] 
[(1) <p<ol> revoke the supervisor's license and issue a worker registration that 
is valid for six months;] 
[(2) <p<ol> after that period, the individual may re-apply for a supervisor's 
license; and] 
[(3) <p<ol> such revocation shall provide for a hearing according to the 
provisions of subsection (e) of this section (relating to contested case 
hearings).] 
<nl>(d)<ol> [(e)] The contested-case hearing provisions of the Administrative 
Procedure Act, Texas Government Code, Chapter 2001, shall apply to any 
enforcement action proposed to be taken under this section. The formal hearing 
procedures of the department in Chapter 1 of this title (relating to the Board 
of Health) shall also apply. 
<nl>(e)<ol> [(f)] If a license issued under these sections has been suspended, 
the person(s) named in the suspension <nl> is<ol> [are] not eligible to reapply 
for licensing under this section for one year. 
<nl>(f)<ol> [(g)] If a license issued under these sections has been revoked, the 
person(s) named in the revocation <nl> is<ol> [are] not eligible to reapply for 
licensing under these sections for three years. 

sec.295.70.Compliance: Administrative Penalty.
(a)-(c) (No change.) 
(d) Individual violations may be reduced or enhanced based on the considerations 
listed in subsection (c) of this section, or any others that justice may 
require. [A maximum reduction or enhancement of 50% per individual violation may 
be considered, based on the facts presented to the department.] 
(e) (No change.) 
(f) Violations shall be placed in one of the following severity levels. 
(1) Critical violation. Severity Level III covers violations that are most 
significant and have a direct negative impact on public health and safety. The 
base penalty for a Level III violation, first occurrence will not exceed $10,000 
per day, per violation. Examples of Level III violations include, but are not 
limited to: 
(A)-(D) (No change.) 
(E) <nl>failure to maintain material in an adequately wet condition;<ol> 
[failure to submit a notification;] 
(F)-(I) (No change.) 
(2) Serious violation. Severity Level II covers violations that are significant 
and which, if not corrected, could threaten public health and safety. The base 
penalty for Level II violations on a first occurrence will not exceed $1,000 per 
day, per violation. Examples of Level II violations include, but are not limited 
to: 
[(A) <p<ol> failure to maintain material in a wet condition;] 
<nl>(A)<ol> [(B)] working with a lapsed or suspended license; 
<nl>(B)<ol> [(C)] submitting an improper notification;
<nl>(C)<ol> [(D)] a training provider failing to conduct a training course for 
the specified time period as specified in sec.295.64 of this title (relating to 
Training: Required Asbestos Training Courses); 
(D) [(E)] training with a lapsed training provider license. If this results in a 
suspension, the organization and principals will not be allowed to be licensed 
for a period of one year; and 
(E) [(F)] failure of a licensed person to maintain current training or physical.
(3) Significant violation. Severity Level I covers violations that are of more 
than minor significance and, if left uncorrected, could lead to more serious 
circumstances. This category shall include fraud and misrepresentation. The base 
penalty for Level I violations on first occurrence will not exceed $100 per day, 
per violation. Examples of Level I violations include, but are not limited to: 
(A) no soap available in shower facilities; 
(B) inadequate storage for clothing in the "clean room"; 
(C) failure to have worker certificate on a job site; 
(D) failure of a training provider to submit information to the department 
regarding training course schedules or to notify the department of cancellations 
within the specified time periods; 
(E) failure of a training provider to submit course completion information 
within the specified time period as described in sec.295.65(f)(3) of this title 
(Training: Approval of Training Courses; and 
(F) a training provider exceeding the maximum trainee-instructor ratio. 
(g)-(i) (No change.) 

sec.295.71. National Emission Standards for Hazardous Air Pollutants (Neshap) 
Compliance.
(a)-(c) (No change.) 
(d) Disposal. The department <nl>has developed<ol> [shall develop] a memorandum 
of understanding with the Texas Natural Resource Conservation Commission (TNRCC) 
concerning the inspection of solid waste facilities that receive asbestos waste 
<nl>under sec.295.72 of this title (relating to Memorandum of Understanding 
Between Texas Natural Resources Conservation Commission and the Texas Department 
of Health for the Regulation of Asbestos).<ol> 
(e) (No change.) 

sec.295.73.Asbestos Advisory Committee.
(a)-(h) (No change.) 
(i) Meetings. The committee shall meet only as necessary to conduct committee 
business. 
(1)-(2) (No change.) 
(3) Each meeting of the committee shall be announced and conducted in accordance 
with the Open Meetings Act, Texas Government Code, Chapter 551. <nl> The meeting 
agenda, date, and place will be set for publication in the Texas Register<ol>. 
(4)-(7) (No change.) 
(j)-(p) (No change.) 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 18, 1998.
TRD-9808083
Susan K. Steeg
General Counsel
Texas Department of Health
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 458-7236

TITLE 34. PUBLIC FINANCE
PART I. Comptroller of Public Accounts
CHAPTER 3. Tax Administration
SUBCHAPTER K. Hotel Occupancy Tax
34 TAC sec.3.161
The Comptroller of Public Accounts proposes an amendment to sec.3.161, 
concerning definitions, exemptions, and exemption certificate. The purpose of 
the amendment is to replace the word "desiring" with "deserving" in the 
definition of a charitable organization to make the definition in this section 
consistent with the definitions in Franchise Tax sec.3.541 concerning 
exemptions, and State Sales and Use Tax sec.3.322 concerning exempt 
organizations
Mike Reissig, chief revenue estimator, has determined that for the first five-
year period the amendment will be in effect there will be no significant revenue 
impact on the state or local government. 
Mr. Reissig also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of adopting 
the amendment will be in providing new information regarding tax 
responsibilities. This amendment is adopted under the Tax Code, Title 2, and 
does not require a statement of fiscal implications for small businesses. There 
is no significant anticipated economic cost to individuals who are required to 
comply with the proposed amendment. 
Comments on the proposal may be submitted to Karey W. Barton, Manager, Tax 
Policy Division, P.O. Box 13528, Austin, Texas 78711. 
This amendment is proposed under the Tax Code, sec.111.002, which provides the 
comptroller with the authority to prescribe, adopt, and enforce rules relating 
to the administration and enforcement of the provisions of the Tax Code, Title 
2. 
The amendment implements the Tax Code, 156.102. 

sec.3.161. Definitions, Exemptions, and Exemption Certificate.
(a) Definitions. The following words and terms, when used in this subchapter, 
shall have the following meanings, unless the context clearly indicates 
otherwise. 
(1) Charitable or eleemosynary organization--A nonprofit organization devoting 
all or substantially all of its activities to the alleviation of poverty, 
disease, pain, and suffering by providing food, clothing, drugs, treatment, 
shelter, or psychological counseling directly to indigent or similarly <nl> 
deserving<ol> [desiring] members of society with its funds derived primarily, 
from sources other than fees or charges for its services. If the organization 
engages in any substantial activity other than the activities described in this 
section, it will not be considered as having been organized for purely public 
charity, and therefore, will not qualify for exemption under this provision. No 
part of the net earnings of the organization may inure to the benefit of any 
private party or individual other than as reasonable compensation for services 
rendered to the organization. Some examples of organizations that do not meet 
the requirements for exemption under this definition are fraternal 
organizations, lodges, fraternities, sororities, service clubs, veterans groups, 
mutual benefit or social groups, professional groups, trade or business groups, 
trade associations, medical associations, chamber of commerce, and similar 
organizations. Even though not organized for profit and performing services 
which are often charitable in nature, these types of organizations do not meet 
the requirements for exemption under this provision. 
(2)-(4) (No change.) 
(b)-(c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 14, 1998.
TRD-9807927
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 463-4062

TITLE 37. PUBLIC SAFETY AND CORRECTIONS
PART I. Texas Department of Public Saftey
CHAPTER 1.Organization and Administration
SUBCHAPTER A.Objective, Mission, and Program
37 TAC sec.1.4
The Texas Department of Public Safety proposes an amendment to sec.1.4, 
concerning personnel and employment policies. The amendment clarifies and 
updates language in the existing rule regarding the programs of the Traffic Law 
Enforcement Division. 
Tom Haas, Chief of Finance, has determined that for each year of the first five-
year period the rule is in effect, there will be no fiscal implications as a 
result of enforcing or administering the rule. There will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the rule. 
Mr. Haas also has determined that for each year of the first five years the rule 
is in effect the public benefit anticipated as a result of enforcing the rule 
will be to make the public aware of program and activity changes under the 
Traffic Law Enforcement Divisions. There is no anticipated cost to persons who 
are required to comply with the section as proposed. There are no anticipated 
economic costs to small or large businesses. 
Comments on the proposal may be submitted to Duncan R. Fox, Senior Assistant 
General Counsel, Legal Services, Texas Department of Public Safety, Box 4087, 
Austin, Texas 78773-0140, (512) 424-2890. 
The amendment is proposed pursuant to Texas Government Code, sec.411.004(3), and 
sec.411.006(4) which provides the Public Safety Commission with the authority to 
adopt rules necessary for carrying out the department's work. The director, 
subject to the approval of the Commission, shall have the authority to adopt 
rules necessary for the control of the department.
Texas Government Code, sec.411.004(3) and sec.411.006(4) are affected by this 
proposal. 

sec.1.4 Programs Under Traffic Law Enforcement Division.
(a) Highway Patrol Service. The program of the Highway Patrol Service is "Police 
Traffic Supervision and General <nl>Law Enforcement<ol>[Police Work] on Rural 
Highways." This program consists of the following major activities: 
(1) (No Change.)
(2) General <nl>Law Enforcement<ol>[police work] - primarily on rural highways: 
(A)-(C) (No Change.)
(b) License and Weight Service. The program of the License and Weight Service is 
"The Supervision of Commercial Vehicles<nl>,<ol> [and For Hire Traffic 
and]<nl>Police<ol> Traffic <nl>Supervision, <ol> and General Law Enforcement on 
Rural Highways." This program includes the following major activities: 
(1) Supervision of commercial vehicle traffic[--basic
(A) assistance to commercial vehicle owners and operators on technical matters; 
(B) supervision of motor carrier operations, and; 
(C) traffic law enforcement on commercial [and "for hire"] vehicles. 
(2) (No Change.)
(c) Drivers License Service. The program of the Drivers License Service is 
<nl>"The Licensing and Postlicense Control of Drivers, Police Traffic 
Supervision, and General Law Enforcement"<ol>[the licensing and postlicense 
control of drivers and traffic and general law enforcement]. This program 
consists of the following major activities: 
(1)-(3) (No Change.)
(d) Vehicle Inspection Service. The program of the Vehicle Inspection Service is 
"Vehicle Inspection Station Supervision<nl>,<ol> [and]<nl>Police<ol> Traffic 
<nl>Supervision,<ol> and General Law Enforcement." This program includes the 
following major activities: 
(1) Inspection station supervision[--basic]: 
(A) station qualification; 
(B) station inspection[, and]; 
(C) station control<nl>, and;<ol>[.] 
<nl>(D)<ol> <nl>supervision of emissions testing. <ol>
(2) (No Change.)
(e) Safety Education Service. The program of the Safety Education Service is 
"Public Safety Education." This program consists of the following major 
activities: 
(1) (No Change.)
(2) Public education in crime prevention and <nl>safety related<ol>[civil 
defense] matters; 
(3)-(5) (No Change.)
(f) Communications Service. The program of the Communications Service is "Police 
Communication." This program consists of the following activities: 
(1)-(2) (No Change.)
(3) Other special assistance to <nl>other departments and<ol>[departmental] 
agencies. 
(g)-(h) (No Change.)
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on May 14, 1998.
TRD-9807934
Dudley M. Thomas
Director
Texas Department of Public Safety
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 424-2890

TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART I. Texas Department of Human Services
CHAPTER 19. Nursing Facility Requirements for Licensure and
Medicaid Certification
SUBCHAPTER U. Inspections, Surveys, and Visits
40 TAC sec.19.2009
The Texas Department of Human Services (DHS) proposes an amendment to 
sec.19.2009, concerning hearings on complaints of resident neglect and abuse, 
and misappropriation of resident property in Medicaid-certified facilities, in 
its Chapter 19, Nursing Facility Requirements for Licensure and Medicaid 
Certification. DHS is modifying the appeal process provided to nurse aides 
before being listed on the Nurse Aide Registry as having abused or neglected a 
resident or having misappropriated resident property. Currently, nurse aides 
have a two-level process of appeals: the first level is a hearing before a 
hearing officer, and the second is a hearing before an administrative law judge. 
The appeals process is being modified to provide nurse aides with an opportunity 
to show compliance before DHS proposes to enter their names on the registry, 
followed by a hearing before an administrative law judge once DHS has proposed 
entering their names on the registry. The purpose of the amendment to 
sec.19.2009 is to implement a part of this change in the appeal process for 
nurse aides by clarifying that the hearing required by 42 CFR sec.488.335, to be 
provided by the state survey agency prior to referring a nurse aide for 
inclusion on the registry for abuse or neglect of a resident or misappropriation 
of resident property, is a formal hearing. Also in this issue of the Texas 
Register, DHS is proposing related policy in Chapter 94, Nurse Aides, to 
implement the rest of the changes in the nurse aides appeal process. 
Eric M. Bost, commissioner, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. Mr. Bost also 
has determined that for each year of the first five years the section is in 
effect the public benefit anticipated as a result of enforcing the section will 
be to allow DHS to resolve nurse aide cases for a proposed finding of abuse, 
neglect, or misappropriation of a resident's property in a more timely manner, 
which will ensure better protection for nursing facility residents. There will 
be no effect on small businesses, because the section has no adverse economic 
effect at all. There is no anticipated economic cost to persons who are required 
to comply with the proposed section. 
Questions about the content of this proposal may be directed to Renee Clack at 
(512) 231-5800 in DHS's Credentialing Department. Written comments on the 
proposal may be submitted to Supervisor, Rules and Handbooks Unit-216, Texas 
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register The amendment is proposed 
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.

sec.19.2009. Hearings on Complaints of Resident Neglect and Abuse, and 
Misappropriation of Resident Property in Medicaid-Certified Facilities. 
<nl>Hearings<ol> [With the following two exceptions, hearings] required by 42 
Code of Federal Regulations sec.488.335 will be conducted [by an impartial Long 
Term Care - Regulatory staff person who may hear testimony] in person or by 
telephone for the purpose of determining whether sufficient grounds exist for a 
referral of an individual to the appropriate licensure authority and the 
facility administrator. [Cases involving nurse aides will be conducted according 
to the Texas Department of Human Services' rules for informal hearings found in 
Chapter 79 of this title (relating to Legal Services). Cases involving 
medication aides and nurse aides who are also certified as medication aides will 
be conducted according to the rules for formal hearings found in the same 
chapter.] The hearings referenced in this section are not applicable to 
information provided by the <nl>Texas Department of Human Services 
<ol>[department] pursuant to 42 CFR sec.488.325(h) <nl>(referrals for 
substandard quality of care)<ol>.
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 15, 1998.
TRD-9807978
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: August 1, 1998
For further information, please call: (512) 438-3765

CHAPTER 94. Nurse Aides
40 TAC sec.94.11
The Texas Department of Human Services (DHS) proposes an amendment to sec.94.11, 
concerning registry; findings; inquiries, in its Chapter 94, Nurse Aides. The 
purpose of the amendment is to modify the appeal process provided by DHS to 
nurse aides before being listed on the Nurse Aide Registry as having abused or 
neglected a resident or having misappropriated resident property. Currently, 
nurse aides have a two- level process of appeals: the first level is a hearing 
before a hearing officer, and the second is a hearing before an administrative 
law judge. The appeals process is being modified to provide nurse aides with an 
opportunity to show compliance before DHS proposes to enter their names on the 
registry, followed by a hearing before an administrative law judge once DHS has 
proposed entering their names on the registry. 
Eric M. Bost, commissioner, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. Mr. Bost also 
has determined that for each year of the first five years the section is in 
effect the public benefit anticipated as a result of enforcing the sections will 
be to allow DHS to resolve nurse aide cases for a proposed finding of abuse, 
neglect, or misappropriation of a resident's property in a more timely manner, 
which will ensure better protection for nursing facility residents. There will 
be no effect on small businesses, because the section has no adverse economic 
impact at all. There is no anticipated economic cost to persons who are required 
to comply with the proposed section. 
Questions about the content of this proposal may be directed to Renee Clack at 
(512) 231-5800 in DHS's Credentialing Department. Written comments on the 
proposal may be submitted to Supervisor, Rules and Handbooks Unit-216, Texas 
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, 
within 30 days of publication in the Texas Register The amendment is proposed 
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. 

sec.94.11. Registry; Findings; Inquiries.
(a) The Texas Department of Human Services <nl>(DHS)<ol> [(department)] shall 
establish and maintain a registry of all individuals who qualify under 
sec.94.3(a)(2) of this title (relating to Facility Requirements). Each 
individual listed on the registry shall keep the department informed of his or 
her current address and telephone number. 
(b) Nurse aide certification expires 24 months after being added to the Nurse 
Aide Registry or after the last date of verified employment. <nl> DHS<ol> [The 
department] will remove a Nurse Aide Registry entry for which appropriate 
employment verification has not been received prior to the expiration date, 
unless a finding of abuse, neglect, or misappropriation of resident property is 
on the registry for that individual. To maintain current Nurse Aide Registry 
status, the following requirements must be met: 
(1) Facilities must submit a department form to <nl>DHS <ol>[the department] 
annually to document all nurse aides who are performing or have performed paid 
nursing or nursing-related services at the facility during the past year. 
(2) A nurse aide must submit a department form to <nl> DHS <ol>[the department] 
prior to the expiration of his certification to document that the nurse aide has 
performed paid nursing or nursing-related services, unless the aide knows 
documentation was submitted by the facility or facilities at which he was 
employed. 
(c) <nl>DHS<ol> [The department] reviews and investigates allegations of abuse, 
neglect, or misappropriation of resident property by a nurse aide employed in a 
facility. If there is a finding of an alleged act of abuse, neglect, or 
misappropriation of a resident property by a nurse aide, <nl>prior to entry of a 
finding on the Nurse Aide Registry, DHS will provide the nurse aide with an 
opportunity for an informal reconsideration and a hearing <ol>[the department 
must comply with the hearings process] as provided in 42 Code of Federal 
Regulations sec.488.335. [A nurse aide must be given written notice by the 
department of a proposed finding on an allegation and may request a hearing. The 
request must be made, in writing, within 30 days of the date the notice is 
mailed to the nurse aide. The hearing is held pursuant to the applicable 
provisions of the department's informal hearing procedures as provided in 
sec.sec.79.1001 - 79.1007 of this title (relating to Informal Hearings). The 
final hearing decision on a finding is made as provided in paragraph (3) of this 
subsection.]
[(1) A copy of the department's investigative report concerning the incident 
which is the subject of the hearing must be provided prior to the hearing by the 
hearing officer to the nurse aide, upon written request by the nurse aide. Such 
a report may be used in the preparation of the nurse aide's defense, but is 
otherwise confidential in accordance with Health and Safety Code, Chapter 242, 
Section 127, and no other use and no subsequent release is authorized.] 
[(2) If the nurse aide fails to request a hearing, to appear at the scheduled 
hearing or be represented at the scheduled hearing, the department may reach a 
finding on the allegation without a hearing.] 
[(3) The hearing officer, upon completion of the hearing, must prepare a written 
decision based solely on the evidence presented at the hearing and the statutory 
and regulatory provisions of the Omnibus Budget Reconciliation Act of 1987 as 
amended and this chapter. The decision must state the reasons for the decision.] 
<nl>(d)<ol> Informal reconsideration includes:
<nl>(1)<ol> notice of the facts or conduct alleged to warrant the proposed 
finding; and 
<nl>(2)<ol> an opportunity to show compliance with all requirements of law for 
the retention of the certificate by sending the Credentialing Department a 
written request for an informal reconsideration. The request must: 
<nl>(A)<ol> be received within ten calendar days of the date of receipt of DHS's 
notice; and 
<nl>(B)<ol> contain specific documentation refuting DHS's allegations. 
[(d) If an alleged act of abuse, neglect, or misappropriation of resident 
property by a nurse aide, who also is a permitted medication aide under Chapter 
95 of this title (relating to Medication Aides), violates the rules in this 
chapter and Chapter 95 of this title, the department must comply with the formal 
hearing procedures under sec.sec.79.1601 - 79.1614 of this title (relating to 
Formal Appeals), the Administrative Procedures Act, Title 10 of the Texas 
Government Code, sec.sec.2001.051 et seq, and sec.sec.76.101-76.106 of this 
title (relating to Criminal History Check of Employees in Facilities for Care of 
the Aged and Persons with Disabilities), if applicable. Through the formal 
hearing, determinations are made on both the certificate of nurse aide practice 
and the permit for medication aide practice.] 
<nl>(e)<ol> DHS's review will be limited to a review of documentation submitted 
by the nurse aide and information DHS used as the basis for its proposed finding 
and will not be conducted as an adversary hearing. DHS shall give the nurse aide 
a written affirmation or reversal of the proposed finding. If DHS does not 
reverse the finding, a notice of adverse action is sent to the nurse aide. 
<nl>(f)<ol> A nurse aide may request a hearing in accordance with Chapter 79, 
Subchapter Q of this title (relating to Formal Appeals), within 30 days from 
receipt of DHS's notice of adverse action. 
<nl>(1)<ol> If the nurse aide fails to request a hearing, DHS will enter the 
finding on the registry. 
<nl>(2)<ol> If the nurse aide or representative fails to appear at the scheduled 
hearing, the Administrative Law Judge may sustain DHS's finding. 
<nl>(3)<ol> If a hearing is conducted regarding the finding of an alleged act of 
abuse, neglect, or misappropriation of resident property, the nurse aide will be 
informed of the final decision within 120 days from the date the request was 
received by DHS. 
<nl>(g)<ol> If an alleged act of abuse, neglect, or misappropriation of resident 
property by a nurse aide, who also is a permitted medication aide under Chapter 
95 of this title, violates the rules in this chapter and Chapter 95 of this 
title, DHS must comply with the formal hearing procedures as required in 
subsection (f) of this section. Through the formal hearing, determinations are 
made on both the certificate of nurse aide practice and the permit for 
medication aide practice. 
<nl>(h)<ol> [(e)] <nl>DHS will<ol> [The department must] not make a finding that 
an individual has neglected a resident if the individual demonstrates that the 
neglect was caused by factors beyond the individual's control. 
<nl>(i)<ol> [(f)] The registry, the nurse aide, the administrator of the 
facility where the event occurred, and the administrator of the facility that 
currently employs the nurse aide, if different <nl> from<ol> [than] the facility 
in which the incident occurred, must be notified of the findings. 
<nl>(j)<ol> [(g)] The registry must include the documented findings involving an 
individual listed on the registry, as well as any brief statement of the 
individual disputing the findings. 
<nl>(k)<ol> [(h)] The information on the registry must be made available to the 
public. 
<nl>(l)<ol> [(i)] <nl>DHS <ol>[The department], in the case of inquiries to the 
registry, must verify if the individual is listed on the registry and must 
disclose any information concerning a finding of neglect, abuse or 
misappropriation of resident property involving an individual listed on the 
registry. <nl>DHS<ol> [It] must also disclose any statement by the individual 
related to the finding or a clear and accurate summary of such a statement. 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on May 15, 1998.
TRD-9807979
Glenn Scott
General Counsel, Legal Services
Texas Department of Human Services
Proposed date of adoption: August 1, 1998
For further information, please call: (512) 438-3765

PART II. Texas Rehabilitation Commission
CHAPTER 112. Personal Attendant Services Program
40 TAC sec.sec.112.1-112.9
The Texas Rehabilitation Commission proposes new sec.sec.112.1-112.9, concerning 
Personal Attendant Services Program. 
This chapter is being created to implement the Personal Attendant Services 
Program. 
Charles E. Harrison, Jr., Deputy Commissioner for Financial Services, has 
determined that for the first five-year period the sections are in effect, there 
will be no fiscal implications for state or local government. 
Mr. Harrison also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be implementation of the Personal Attendant Services Program. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the sections as proposed.
Comments on the proposal may be submitted to Roger Darley, Assistant General 
Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 
7300, Austin, Texas 78751. 
For further information, please contact Roger Darley, Assistant General Counsel, 
Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 7300, Austin, 
Texas 78751. 
The new sections are proposed under the Texas Human Resources Code, Title 7, 
Chapter 111, sec.111.018 and sec.111.023, which provides the Texas 
Rehabilitation Commission with the authority to promulgate rules consistent with 
Title 7, Texas Human Resources Code. 
No other statute, article, or code is affected by this proposal. 

sec.112.1. Purpose.
(a) The purpose of the Texas Rehabilitation Commission (TRC) Personal Attendant 
Services (PAS) Program is to provide long-term client managed personal 
assistance services to persons with severe disabilities who require such 
services to maintain employment. 
(b) This program is funded entirely with state funds. 

sec.112.2. Services Provided.
(a) Services available in the Texas Rehabilitation Commission (TRC) Personal 
Attendant Services (PAS) program include attendant care in the following areas: 
personal care, home management, and transportation. 
(b) Personal care includes, but is not limited to, assistance with: 
(1) transferring; 
(2) dressing and undressing; 
(3) eating; 
(4) meal preparation; 
(5) bathing; 
(6) grooming; 
(7) toileting; 
(8) health related tasks when delegated by a physician.
(c) Home management includes, but is not limited to, assistance with: 
(1) housecleaning; 
(2) laundering; 
(3) shopping; 
(4) washing dishes. 
(d) Transportation includes, but is not limited to, assistance with: 
(1) arranging for transportation; 
(2) providing assistance with transportation as needed.
(e) Services may be provided in the consumer's home and/or in the workplace. 
Services will be available based upon the individual needs assessment and 
documented in a Plan for Personal Attendant Services prepared by the contractor 
and agreed to by the client. 

sec.112.3. Eligibility. 
(a) To be eligible for the Texas Rehabilitation Commission (TRC) Personal 
Attendant Services (PAS) program, applicants must: 
(1) be working a minimum of 20 hours per week and earning a salary for a public 
or private employer for at least minimum wage, or self employed with a net 
income of at least $300 per month; and 
(2) have one or more severe disabilities; and 
(3) have a need for one or more personal attendant services due to their 
disability(ies). 
(b) An individual with a severe disability is an individual who has a physical 
or mental impairment which results in a substantial impediment to functioning 
independently in the home and community, and which results in a substantial 
impediment to employment, and who requires personal attendant services to engage 
in employment. 

sec.112.4. Contractor Responsibilities.
Personal Attendant Services (PAS) contractor responsibilities are:
(1) provide PAS services to a specific number of eligible consumers in a 
specific geographic area as outlined in their contract with Texas Rehabilitation 
Commission (TRC); 
(2) provide outreach in specific counties as outlined in the contract with TRC; 
(3) employ a qualified "program evaluator" who: 
(A) determines service eligibility; 
(B) determines that the TRC PAS program is the most appropriate alternative for 
the client; 
(C) performs an individual needs assessment to determine the service needs of 
the individual, and develops a "Plan for Personal Attendant Services" for each 
eligible consumer; 
(D) maintains a waiting list if the contractor is operating at full capacity. 
Services are provided as space becomes available and in chronological order 
according to the date eligibility was established; 
(E) determines the client's copayment; 
(F) offers the applicant a choice among three methods of paying the attendant: 
direct payment by contract agency, "block grant", or "voucher";
(G) develops an agreement between the client and the contract agency detailing 
the responsibilities of both parties; 
(H) verifies that there are standing physician orders in accordance with the 
Texas Medical Practices Act (Act) and all related state and federal statutes and 
regulations if the attendant(s) provides the client any of the health-related 
services which the Act specifies, and ensures that the contractor maintains a 
copy of the standing physician's orders in the client's file; and 
(I) negotiates with the applicant and contract agency the number of hours and 
tasks authorized. 

sec.112.5. Client Responsibilities.
The applicant/client is responsible for: 
(1) providing the contractor the names of potential attendants or choosing the 
attendant from the contractor's attendant referrals; 
(2) hiring and firing the attendant; 
(3) training the attendant in the delivery of services, using acceptable and/or 
necessary procedures; 
(4) supervising the attendant in the delivery of services or arranging for a 
friend or relative to provide direct supervision of the attendant; 
(5) paying any copayment amounts required; 
(6) obtaining standing physician's orders for any required health-related 
services specifying the delegated health care tasks, the attendant(s) to whom 
the procedures are delegated, and the patient's name; and 
(7) choosing one of three methods of payment to the attendant.

sec.112.6. Methods of Payment to the Attendant. 
(a) There are three alternative methods of payment to the attendant. 
(1) The contract agency may pay the attendant's salary and benefits directly. 
(2) The client may pay the attendant's salary from a "block grant". 
(3) The client may pay the attendant's salary through a "voucher". 
(b) The block grant payment is equal to the amount the agency would pay the 
attendant for the hours authorized plus the employer's share of Social Security. 
Under this option: 
(1) the client and the contract agency must sign an agreement detailing the 
responsibilities of both parties; and 
(2) payment of attendants who provide substitute or emergency services when 
requested by the client remains the responsibility of the contract agency. The 
cost of these services is deducted from the client's block payment.

sec.112.7. Copayment. 
(a) Basis and calculation of copayment: 
(1) The copayment amount is based on the monthly net income of both the client 
and the client's spouse. 
(2) The copayment schedule is specified in each client services contract between 
the providers and the Commission. 
(b) Net income. Net income is computed by subtracting allowable monthly 
deductions from monthly total income, after income exclusions have been applied. 
(c) Determination of Monthly Total Income. The applicant's/client's monthly 
total income is the total of the following listed in paragraphs (1)-(13) of this 
subsection: 
(1) the total earnings of the applicant/client and spouse including self 
employment; 
(2) social security and railroad retirement benefits;
(3) dividends and interest; 
(4) net income from rental of a house, store, or other property; 
(5) net income from lease of mineral rights; 
(6) income from mortgages or contracts; 
(7) public assistance or welfare payments. These payments include AFDC, SSI, and 
general assistance (cash payments from a county or city); 
(8) pensions, annuities, and irrevocable trust funds;
(9) veterans' pensions and compensation checks; 
(10) educational loans and grants; 
(11) unemployment compensation, worker's compensation and disability payments; 
(12) alimony; and 
(13) net income from the client's share of a life estate.
(d) Income exclusions. The applicant's/client's monthly total income excludes: 
(1) loans and grants such as scholarships; 
(2) in-kind income such as rent subsidies; 
(3) infrequent or irregular income if the total does not exceed $20 a month from 
all sources; and 
(4) reimbursement from an insurance company for health insurance claims. 
(e) Allowable monthly deductions. Allowable monthly deductions from the 
applicant's/client's monthly total income include the following listed in 
paragraphs (1)-(4) of this subsection: 
(1) the cost of tuition and books when the applicant/client is a student; 
(2) $93 deducted for each of the applicant/client, spouse, and each dependent 
supported by the applicant/client and spouse; 
(3) FICA withholding, and any other required deductions from wages or salaries; 
and 
(4) expenditures and savings for large disability related capital equipment such 
as vans, vehicle modifications, and power wheelchairs.

sec.112.8. Suspension or Termination of Services. 
(a) Suspension of services. 
(1) The contract agency may suspend services before the end of the period for 
which duties have been authorized. The client must be notified of the 
suspension. 
(2) Suspension may occur for one of the following reasons listed in 
subparagraphs (A)-(E) of this paragraph: 
(A) the client leaves the state or moves out of the geographical area served by 
the contract; 
(B) the client receives services through a Medicaid waiver, or other publicly 
supported source; 
(C) the client does not agree with the copayment or does not pay the copayment; 
(D) the client is repeatedly abusive to attendants or demands additional hours 
or tasks not in the service plan; or 
(E) the client is admitted to a hospital or other institution;
(3) Services must be reinstated upon resolution of the circumstances that 
initiated the service suspension. If attempts to resolve the issue are 
unsuccessful after 30 days of the date of suspension, the contract agency must 
initiate termination of services. 
(b) Termination of services. The contract agency provides the client with 
written notification that services are being terminated when:
(1) the client fails to meet eligibility criteria; 
(2) the physician's statement expires; 
(3) non-resolution of threats to the health or safety of the attendant or 
others; 
(4) the client dies; 
(5) the client enters an institution, other than a hospital, for a projected 
stay of at least 30 days; 
(6) the client is unemployed for six months; or 
(7) funding for the contract becomes unavailable. 

sec.112.9. Client Appeals. 
An applicant/client is entitled to appeal the suspension or termination of 
services, or decisions regarding determination of number of service hours. The 
applicant/client can appeal the decision of the contract agency to the Texas 
Rehabilitation Commission (TRC) Program Specialist for the Personal Attendant 
Services (PAS) program, in accordance with the provisions of Chapter 104 of this 
title (relating to Informal and Formal Appeals by Applicants/Clients of 
Decisions by a Rehabilitation Counselor or Agency Official). 
This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's legal authority to adopt. 
Filed with the Office of the Secretary of State on May 18, 1998.
TRD-9808075 
Charles Schiesser
Chief of Staff
Texas Rehabilitation Commission
Earliest possible date of adoption: June 28, 1998
For further information, please call: (512) 424-4050