ADOPTED RULES An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION PART V. General Services Commission CHAPTER 126.Surplus and Salvage Property SUBCHAPTER A.State Surplus and Salvage Property 1 TAC sec.126.3 The General Services Commission adopts amendments to sec.126.3, concerning the Disposition of Surplus and Salvage Propety to the Public, without changes to the proposed text as published in the June 12, 1998, issue of the Texas Register (23 TexReg 6107). The adoption of amendmendments to 1 T.A.C., sec.126.3 allow for expeditious implementation of the revised purchaser fee after its annual review. The adoption of amendments to 1 T.A.C., sec.126.3 will enable the General Services Commission to implement the revised purchaser fee after its annual review without amending the rules each year thereby serving the best interests of the Texas taxpayer. No comments were received regarding amendments to 1 T.A.C., section 126.3. The amendments to 1 T.A.C., section 126.3 is adopted under the Texas Government Code, Title 10, Subtitle D, Chapter 2175, sec.2175.181 and sec.2176.182, which provided the General Services Commission with the authority to promulgate rules consistent with the Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 17, 1998. TRD-9811289 Judy Ponder General Counsel General Services Commission Effective date: August 6, 1998 Proposal publication date: June 12, 1998 For further information, please call: (512) 463-3960 TITLE 7. BANKING AND SECURITIES PART VI. Credit Union Department CHAPTER 91.Chartering, Operations, Mergers, Liquidations SUBCHAPTER B.Organization Procedures 7 TAC sec.91.209 The Texas Credit Union Commission adopts amendments to sec.91.209, concerning reports and charges for late filing, with changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4447). The commission adopts the amendments to help administer the Credit Union Department's responsibility to regulate credit unions in Texas. The department is charged, generally, with the duty to regulate state-chartered credit unions to ensure safety and soundness and compliance with state or federal laws, among other purposes. To implement its duties, the department, through the Credit Union Commissioner, regularly examines the financial condition and operations of credit unions. When needed, the commissioner may require submission of a report or other document to carry out the department's regulatory duty. A credit union's failure to timely file a required report or document impedes the efficient administration of the laws regulating credit unions and causes the department to incur additional expense. Amended rule sec.91.209 will motivate timely filing of reports and other documents required by the commissioner with the assessment of a separate charge of $100 per day when the credit union fails to meet the submission deadline. In addition, if the required report or other document is not filed, the department will have the authority to conduct a supplemental examination for the purposes of completing the report or document and to assess a supplemental examination fee as prescribed in 7 TAC sec.97.113(c), which represents an additional expense being incurred as a result of the credit union's failure to submit the required report or document. The activities of the department are funded with assessments paid by credit unions and the charges and fees set forth in this section are expressly authorized under Texas Finance Code sec.15.402. One comment was received from a state-chartered credit union over its concern that a specific credit union could be required by the Department to provide a very detailed, customized report that may be impossible to complete within the deadlines set by the Department. In response, the reports and documents to which this section applies are reports and documents that are required to be completed by all state credit unions, such as call reports and Year 2000 compliance reports; or reports related to certain activities or issues that affect a group of credit unions. It was not the Department's intent to make the amended rule applicable to information requests directed to a single credit union. For clarification purposes, language was added to the subsection (a) to this effect. The amended rule is adopted under the provision of the Texas Finance Code, sec.15.402, which authorizes the commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code; and to set reasonable supervision fees, charges, and revenues to be paid by a credit union. sec.91.209. Reports and Charges for Late Filing. (a) A credit union shall prepare and forward to the Department any report or other document which the Commissioner requires and will comply with all instruction relating to submitting the report or document. For the purposes of this Section, the Commissioner's request shall be directed to all credit unions or to a group of credit unions affected by the same or similar issue, shall be in writing and must specifically advise the credit union that the provisions of this Section apply to the request. (b) If a credit union fails to file a report or provide a document within the timeframe specified in the instruction and after notice of non-receipt, the commissioner may assess a charge for the late filing of $100 per day. The credit union shall pay the late charge to the department within thirty days of the assessment. (c) If a credit union fails to file a report or provide the requested information within the specified time, the commissioner or any person designated by the commissioner may examine the books, accounts and records of the credit union, prepare the report or gather the information and charge the credit union a supplemental examination fee as prescribed in sec.97.113(c) of this title (relating to supplemental examinations). The credit union shall pay the fee to the department within thirty days of the assessment. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811395 Harold E. Feeney Commissioner Credit Union Department Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 837-9236 TITLE 16. ECONOMIC REGULATION PART I. Railroad Commission of Texas CHAPTER 3.Oil and Gas Division 16 TAC sec.3.9, sec.3.46 The Railroad Commission of Texas (commission) adopts amendments to sec.3.9 and sec.3.46, concerning disposal wells and fluid injection into productive reservoirs. The amendments are adopted without changes to the proposed text as published in the June 4, 1998, issue of the Texas Register. The commission amends both sec.3.9(a)(3) and sec.3.46(b)(1) to require submission of the statutorily prescribed fee for a disposal or injection well with the application. The commission adds the following definition for "commercial disposal well" in sec.3.9(a)(4) and sec.3.46(b)(2): "a well whose owner or operator receives compensation from others for the disposal of oil field fluids and oil and gas wastes that are wholly or partially trucked or hauled to the well, and the primary business purpose for the well is to provide these services for compensation." The commission also adds a requirement in both sec.3.9(a)(4) and sec.3.46(b)(2) that an applicant for a commercial disposal well specifically indicate on the application and in the published notice of application that it is for a commercial disposal well. The commission amends notification requirements in both sec.3.9 and sec.3.46 to clarify that affected persons required to receive notice of a disposal or injection well application include those listed in the rule. The commission also adds language to clarify that surface owner for the purpose of notification means surface owner "of record." The commission also changes the requirement for notice to adjacent offset operators, to notice to commission-designated operators of wells located within one-half mile of the proposed disposal or injection well. The commission defines "of record" as "recorded in the real property or probate records of the county in which the property is located." The commission adds sec.3.9(a)(5)(B) and sec.3.46(c)(2) to require that an applicant for a commercial disposal well permit give notice to adjoining surface tract owners. The commission also adds sec.3.9(a)(5)(C) and sec.3.46(c)(3), requiring notice to any additional class of persons that the commission or its delegate deems appropriate in connection with a particular application. The commission amends the definition of "affected person" to exclude competitors. The amendment clarifies commission policy that "affected person" does not include competitors not otherwise affected by an application. The commission adds sec.3.9(a)(6)(A)(vi) and sec.3.46(d)(1)(F). These provisions add the following basis for modifying, suspending, or terminating a permit issued under sec.3.9 or sec.3.46: "waste of oil, gas, or geothermal resources is occurring or is likely to occur as a result of the permitted operations." The commission deletes the reference to January 1, 1983, as the compliance deadline for pressure valve requirements in sec.3.9(a)(8)(B) renumbered as sec.3.9(a)(9)(B) and sec.3.46(g)(2). The provision is no longer necessary. The commission amends current mechanical integrity test requirements by striking sec.3.9(a)(11)(A) and (B) and adding sec.3.9(a)(12)(A)-(D); by striking sec.3.46(j)(1) and (2) and adding sec.3.46(j)(1)-(4); and by renumbering the remaining provisions in sec.3.9(a)(11) and sec.3.46(j). The pressure test requirements in sec.3.9(a)(12) and sec.3.46(j) are currently utilized by the commission in the administration of its pressure test program for disposal and injection wells. The commission adds sec.3.9(a)(12)(A) and sec.3.46(j)(1). These provisions provide that the purpose of mechanical integrity testing is to determine whether any leak in the well tubing, packer, or casing exists, by either conducting pressure tests or by using alternative testing methods authorized by the commission. The commission adds sec.3.9(a)(12)(B) and sec.3.46(j)(2). The provisions require that the mechanical integrity of each disposal or injection well be demonstrated in accordance with sec.3.9(a)(12)(D) and (E) or sec.3.46(j)(4) and (5) prior to initial use. Additionally, the provisions require that mechanical integrity be tested periodically thereafter in accordance with proposed sec.3.9(a)(12)(C) and sec.3.46(j)(3). The commission adds sec.3.9(a)(12)(C)(i) and sec.3.46(j)(3)(A), which incorporate requirements in the former sec.3.9(a)(11) and sec.3.46(j)(2), that each disposal or injection well be tested once every five years. The commission adds sec.3.9(a)(12)(C)(ii) and sec.3.46(j)(3)(B) to clarify that mechanical integrity testing is required after every workover of a disposal or injection well. The commission adds sec.3.9(a)(12)(C)(iii) and sec.3.46(j)(3)(C) to clarify that the five-year testing schedule is not applicable to a disposal or injection well that is completed without surface casing set and cemented through the entire interval of protected usable-quality ground water. Wells completed without surface casing set and cemented through the entire interval of protected usable- quality ground water must be tested at a greater frequency as prescribed in the disposal or injection well permit. The commission adds sec.3.9(a)(12)(C)(iv) and sec.3.46(j)(3)(D), which incorporate the former sec.3.9(a)(12)(B) and sec.3.46(j)(2). The provisions authorize the commission or its delegate to prescribe a schedule for testing and to mail notification of the schedule to operators. The schedule prescribed by the commission is not applicable to a disposal or injection well for which a disposal or injection permit has been issued when the well covered by the permit has not been drilled or converted to disposal or injection. The commission incorporates the requirements of the former sec.3.9(a)(11)(A) and sec.3.46(j)(1) in sec.3.9(a)(12)(D)(i) and sec.3.46(j)(4)(A). These provisions require that test pressure for wells equipped to dispose or inject through tubing and packer must equal the maximum authorized injection pressure or 500 psig, whichever is less, but must be at least 200 psig; and the test pressure for wells that are permitted for disposal or injection through casing must equal the maximum permitted injection pressure or 200 psig, whichever is greater. The commission adds sec.3.9(a)(12)(D)(ii) and sec.3.46(j)(4)(B) to require that test pressure stabilize within 10 percent of the required test pressure prior to commencement of the test. The commission adds sec.3.9(a)(12)(D)(iii) and sec.3.46(j)(4)(C) to require maintenance of a pressure differential of at least 200 psig between the test pressure on the tubing-casing annulus and the tubing pressure. The commission adds sec.3.9(a)(12)(D)(iv) and sec.3.46(j)(4)(D) to require that a pressure test be conducted for a duration of 30 minutes when the test medium is liquid, and 60 minutes when the test medium is air or gas. The commission adds sec.3.9(a)(12)(D)(v) and sec.3.46(j)(4)(E) to require, except in cases where the test is witnessed by the commission, that a pressure recorder be used to monitor and record the tubing-casing annulus pressure. The provisions also provide that the recorder clock can not exceed 24 hours and that the recorder scale must be set so that the test pressure is 30 to 70 percent of full scale, unless otherwise authorized by the commission or its delegate. The commission adds sec.3.9(a)(12)(D)(vi) and sec.3.46(j)(4)(F) to require that the tubing-casing annulus fluid used in a pressure test be liquid for wells that inject liquid, unless some other fluid is specifically authorized by the commission or its delegate for good cause. The provisions also require that the tubing-casing annulus fluid contain no additives that affect the sensitivity or otherwise reduce the effectiveness of a test. The commission adds sec.3.9(a)(12)(D)(vii) and sec.3.46(j)(4)(G). The provisions provide that the commission or its delegate will consider, in evaluating the results of a test, the level of pollution risk that loss of well integrity would cause. Factors that will be taken into account in assessing pollution risk include injection pressure, frequency of testing and monitoring, and whether there is sufficient casing to cover all zones containing usable-quality water. The provisions also authorize the commission to reject a pressure test after consideration of the following factors: the degree of pressure change during the test, if any; the level of risk to usable-quality water if mechanical integrity of the well is lost; and whether circumstances surrounding the administration of the test make the test inconclusive. The commission amends alternative testing provisions in sec.3.9(a)(11)(C) and sec.3.46(j)(3), renumbered as sec.3.9(a)(12)(E)(ii) and sec.3.46(j)(5)(B), to reflect current commission practice of requiring alternative tests or surveys as a permit condition. The commission amends sec.3.9(a) by deleting paragraph (14) which provides that the section takes effect on April 1, 1982. The provision is no longer necessary. The commission amends sec.3.46 by deleting subsection (m), which provides that the section takes effect on April 1, 1982. The provision is no longer necessary. The commission renumbers sec.3.46(o) as sec.3.46(k). The commission amends sec.3.46(o)(2), renumbered as sec.3.46(k)(2), to clarify that the surface owner, for the purposes of notification, means the surface owner "of record." Amendments to the provision also require notice to commission designated operators of wells located within one-half mile of the permit area. The commission renumbers sec.3.46(n) as sec.3.46(l) and sec.sec.3.46(k) and (l) as sec.sec.3.46(m) and (n). Two comments were received on the proposed amendments from the Texas Oil & Gas Association (TxOGA) and Roosth Production Company (Roosth). TxOGA commented that it fully supported the proposed changes. Roosth commented that the proposed definition of "of record," to mean recorded in the real property or probate records, is not the same as recorded in the county tax records. The comment stems from a reference to county tax records in the financial analysis discussion in the preamble to the proposed amendments. The preamble discussion addressed the requirement that a commercial disposal well applicant give notice to adjacent surface owners. But Roosth is not a commercial disposal well operator. In further discussions, the commission staff discovered that the commenter's concerns actually relate to the requirement that an applicant for a disposal or injection well give notice to the surface owner "of record" on the property where the well will be located. The current procedure used by Roosth to fulfill notice requirements is to check the tax records and call the listed party to confirm that they are the owner. The amendments to sec.3.9 and sec.3.46 do not prevent operators from identifying property owners in this manner. That is a business decision made by the operator. Instead, the amendments simply clarify the standard to which an operator will be held if notice is subsequently challenged. This means that a defective notice challenge will be upheld if a party has a recorded interest in the real property or probate records and does not receive notice of the application. The commission made no change in response to the comment because notice to surface owners of record is already required under sec.sec.3.9 and 3.46. Therefore, there are no additional costs associated with the amendments. The term "of record" was added by the commission only to provide operators more certainty in fulfilling the notice requirements. The change allows operators to rely on real property and probate records to identify surface owners, whereas under current sec.sec.3.9 and 3.46 it is not clear that a search to identify surface owners is limited to recorded interests. The following groups or associations commented on proposed amendments to sec.3.9 and sec.3.46: Texas Oil & Gas Association. The amendments to sec.3.9 and sec.3.46 are proposed under Texas Water Code, Chapter 27, which authorizes the commission to adopt and enforce rules relating to oil and gas waste disposal wells and Texas Natural Resources Code, sec.81.052, which authorizes the commission to adopt all necessary rules for governing persons and their operations under the jurisdiction of the commission under sec.81.051; sec.85.042(b), which authorizes the commission to adopt and enforce rules for the prevention of operations in the field dangerous to life or property; sec.85.201, which authorizes the commission to make and enforce rules for the conservation of oil and gas and prevention of waste of oil and gas; sec.85.202, which authorizes the commission to adopt rules to prevent waste of oil and gas in producing operations and to require wells to be operated in a manner that will prevent injury to adjoining property; and sec.91.101, which authorizes the commission to adopt rules for the prevention of pollution of surface or subsurface water associated with the disposal of oil and gas waste. Texas Water Code, Chapter 27 and Texas Natural Resources Code, sec.sec.81.052, 85.042(b), 85.201, 85.202, and 91.101 are affected by these amendments. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811142 Mary Ross McDonald Deputy General Counsel Railroad Commission of Texas Effective date: August 4, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 463-7008 16 TAC sec.3.103 The Railroad Commission of Texas adopts 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 adopted without changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5546). The commission adopts the section to implement the Texas Tax Code, sec.201.058, which was added by the 75th Legislature, Regular Session, effective September 1, 1997. The purpose of this section is to provide for certification by the commission that an operator produces and markets casinghead gas that was previously vented or flared from an oil well or oil lease pursuant to the rules of the commission. 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. The section provides an opportunity for a hearing if an operator's request for certification is administratively denied. Participation in this incentive is voluntary. Implementation of this tax incentive should result in the capture and marketing of casinghead gas which otherwise would have been released into the air without beneficial use. Texas Independent Producers & Royalty Owners Association was the only commenter. The association favors the section and suggested no changes in the proposed text. The new section is adopted 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 Tax Code, sec.201.051 and sec.201.053 are affected by this rule. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811141 Mary Ross McDonald Deputy General Counsel Railroad Commission of Texas Effective date: August 4, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-7008 PART II. Public Utility Commission of Texas CHAPTER 23.Substantive Rules SUBCHAPTER H.Telephone 16 TAC sec.23.98 The Public Utility Commission of Texas (PUC) adopts an amendment to sec.23.98, relating to Abbreviated Dialing Codes with changes to the proposed text as published in the January 30, 1998, Texas Register (23 TexReg 695). The PUC requested reply comments in the March 27, 1998, Texas Register (23 TexReg 3370). The amendment is necessary to implement the First Report and Order in 12 FCC Rcd. 5572, CC Docket Number 92-105, FCC 97-51, In the Matter of the Use of N11 Codes and Other Abbreviated Dialing Arrangements (FCC Order). The proposed amendment to sec.23.98 allows telecommunications providers to use 311 for non- emergency police and governmental services pursuant to the FCC Order. This amendment was adopted under Project Number 17264. A public hearing on the amendment was held at commission offices on March 2, 1998. Representatives from the City of Austin (Austin), the City of Plano, the City of Dallas, Sprint, Texas Statewide Telephone Cooperative, Inc. (TSTCI), the Advisory Commission on State Emergency Communications (ACSEC), AT&T Communications of the Southwest, Inc. (AT&T), GTE Southwest, Inc. (GTE), and Southwestern Bell Telephone Company, Inc. (SWBT) attended the hearing and provided comments. To the extent that these comments differ from the submitted written comments, such comments are summarized herein. The commission received comments on the proposed amendment from Austin, the Tarrant County 911 District (Tarrant), TSTCI, ACSEC, AT&T, GTE, and SWBT. Parties offered general comments and suggestions regarding the establishment of 311 services. Austin disagreed with staff's comments regarding the anticipated economic impact to communities which comply with the amendment and establish 311 service. Austin advised that sec.23.98(f)(8), which prohibits completion of 311 calls over the 911 network or the use of the 911 database, would require an investment in new hardware, a new software database, new employees, and additional and unnecessary overhead expenses. Although Austin's desire to make dual use of its 911 service network for the provision of 311 service is understandable, the commission regards the integrity of the 911 network as paramount. The 311 service networks will be a matter of choice for government entities and are intended to provide an alternative route for non-emergency calls, alleviating the congestion of the 911 network. The emergency nature of 911 services and the considerable expense and regulation the 911 network entails provide ample reason to separate the two networks. The economic impact of 311 networks is highly variable depending on a governmental entity's decisions on whether to establish a 311 network, the scope of its implementation, and whether the 311 network generates additional citizen calls or merely reroutes established calling patterns. The Federal Communications Commission (FCC) clearly indicated that the establishment of 311 networks should be left to the discretion of local government and law enforcement agencies. But the FCC also clearly indicated that the purpose of 311 is to alleviate the burden on the 911 system, not to add new tasks for the 911 system to perform. Therefore, the commission is not persuaded to modify its position that 311 services must be operated over a separate network. Tarrant noted its concerns regarding the proliferation of N-1-1 numbers and asserted that, other than Directory Assistance or Repair services, the only N-1- 1 dialing code available to the public should be 911 service. As Tarrant notes, the objective of implementing 311 may vary according to the community and it is therefore prudent to separate the 911 network from the 311 network. TSTCI stated that its main concern is protecting the integrity of the 911 network. In conjunction with this view, TSTCI was satisfied with the prohibition of the use of the 311 dialing code for commercial purposes as proposed in the amendment. ACSEC observed that the proposed amendments to the rule do not address public education for 311 services. ACSEC stated that the FCC and the commission appear to be deferring this issue to local communities and suggested that the commission may want to consider public education for 311 service usage when evaluating requests for the provision of 311. ACSEC's assessment that public awareness of the 311 service network is essential to its proper use has merit. The commission has amended the rule as published (at sec.23.98(f)(4)(D)) to require submission of a plan for public education at the time 311 service is proposed for implementation. Tarrant argued that once 311 service has been established and the public educated to its use, a discontinuance of the service would have serious consequences. Tarrant proposes a mandatory minimum contract period for the provision of 311 service and would require that discontinuance of the service should require advance public notice, equal to that employed when the service was initiated. Tarrant is correct in its assessment that the discontinuance of 311 service, once established, will produce a significant impact upon a community. To address the concerns of Tarrant, language has been added to sec.23.98(f)(13) and (14) to require the filing of a notice of termination of 311 service to adequately address Tarrant's concern and publication of the notice through the Texas Register. The commission also amended sec.23.98(f)(1) to read "...the assignment, provision and termination of 311 service." Commenters also addressed specific language in the proposed amendments which will now be reviewed in order of appearance. Parties commented on sec.23.98(f)(2)(B) which defines the term "governmental entity." SWBT asked whether departments under the control of a municipality or county should be considered governmental entities and SWBT stated that in sec.23.98(f)(2)(B) "governmental entity" should be defined. The commission considered SWBT's concern in the development of the amendment. However, the term "governmental entity" allows greater flexibility and the notice requirements of the amendment address the disadvantage of using a broad definition. Through notice, surrounding governments and other entities will be afforded the opportunity to voice any concerns or prevent duplicative networks. Therefore, the commission declines to adopt SWBT's suggestion. The commission also deleted the date reference to the statute so that the rule will not have to be amended every time the statute is amended. Parties commented on sec.23.98(f)(2)(C) which defines "911 System." Austin stated that sec.771.001 of the Texas Health & Safety Code does not define "911 system." Austin suggested that the proposed rule, at sec.23.98(f)(2)(C), include the definition: "911 system means a system of processing 911 calls," such as the definition proposed for "311 system." The commission notes this suggestion but instead replaces "sec.771.001" with "sec.772.001" of the Texas Health and Safety Code thereby addressing Austin's concern. The commission also made the additional change of deleting the date reference to the statute so that the rule will not have to be amended every time the statute is amended. Parties commented on sec.23.98(f)(2)(E) which defines "311 answering point." AT&T suggested that certain provisions of sec.23.98(f)(2)(E) should be clarified, such as the definition of the "311 answering point". AT&T stated sec.23.98(f)(2)(E)(i) was unduly restrictive in limiting the 311 answering point to normal business hours and suggested that the language "at a minimum" be inserted. GTE also suggested revision of sec.23.98(f)(2)(E)(i) and proposed language to read "is operated at a minimum during normal business hours;" to accommodate a period greater than normal business hours. Austin also suggested the language "(i) is operated, at a minimum, during normal business hours" to allow governmental entities the option of providing 311 services beyond normal business hours. The commission finds these suggestions reasonable so to provide greater flexibility the language at sec.23.98(f)(2)(E)(i) is revised to read, "is operated, at a minimum, during normal business hours." Finally, Tarrant asserted that 911 service is busier after "normal" business hours and, because 311 service is meant to alleviate congestion on the 911 network by re-directing non-emergency calls to appropriate agencies, Tarrant recommended that 311 services should be operated on a 24 hour seven day basis. The commission believes the definition of the 311 answering point is adequate and declines to adopt Tarrant's suggestion. With respect to sec.23.98(f)(2)(E)(ii), AT&T stated it believes 311 calls may be directly routed to the government service-provider (in its example, a police officer walking a beat). AT&T proposed the deletion of (E)(iii) because it is unduly restrictive in that it discourages more innovative approaches to answering 311 calls. AT&T suggested modifying the provision to read: "(iii) is the first point of reception by a governmental entity of a 311 call or the CTU's switch, if that switch then reroutes calls to governmental entities intended to be reached by citizens dialing 311." It is not the commission's intent to discourage innovation; however, the commission is not persuaded by AT&T's argument regarding the incorporation of language which offers the CTU switch as an alternative to the center controlled by the governmental entity. Should governmental entities in the future desire specific alternatives for the handling of 311 calls, the commission will consider such proposals for further amendment of the rule. Therefore the commission rejects AT&T's request. Parties commented on sec.23.98(f)(2)(G) which defines "311 service request." AT&T discussed its concern that sec.23.98(f)(2)(G)'s definition of a "311 service request" does not specifically address what constitutes the initial communication for 311 service. AT&T suggested that a six-month timeframe triggered by a written request be included in the proposed amendment and offered the following language; "311 service request means the written request from a governmental entity to a certificated telecommunications utility requesting the provision of 311 service." AT&T's suggestions appear to clarify the initiation of the six month time frame for implementation of 311 service. Therefore sec.23.98(f)(2)(G) is modified to incorporate the language suggested by AT&T In addition, the commission amended the rule further to define the ambiguous phrases in AT&T's proposal. SWBT argued that governmental entities should be required to make a binding request in order for the provider to avoid expenses and time when attempting to comply with the six-month deadline. The commission rejects SWBT's suggestion. Parties commented on sec.23.98(f)(4)(C) which sets forth the requirements of a certificated telecommunications utility's (CTU) application to provide 311 service. Parties disagreed as to whether charges should be allowed for use of 311 service. SWBT agreed with sec.23.98(f)(4)(C)'s restriction that no governmental entity should be allowed to charge a fee for using the 311 system. Despite its support for the restriction, SWBT suggests clarification indicating that a 311 call placed from a pay telephone will still require the calling party to pay a local call charge. Austin strongly disagreed with sec.23.98(f)(4)(C)'s restriction and stated that such a prohibition regarding fees for 311 service will require payment for the 311 system out of an already strained budget. Austin did not suggest charging citizens for using 311 but stated that if the proposed amendment's restriction on use of the 911 network for 311 services stands, then 311 services must be purchased at an additional cost to taxpayers. The commission is not persuaded that it is in the public interest to incorporate 311 services into the existing 911 network. Although Austin's point regarding additional costs for implementing 311 service may be true, implementation of a 311 service system is simply an option to be considered by governmental entities; it is not a requirement. The goal of 311 implementation is the alleviation of unnecessary traffic on the 911 network. If 311 calls are handled in addition to the existing 911 traffic over the same facilities and by the same staff, the objective of implementing a 311 service network has been thwarted. Because the 311 network will direct non-emergency calls to appropriate governmental agencies, the imposition of a per use fee appears inappropriate. SWBT is correct that 311 calls may incur a charge when made from pay telephones unless a municipality makes alternative arrangements within its jurisdiction or future legislation states otherwise. Parties commented on sec.23.98(f)(5)(A) which sets forth the requirement that CTUs file a copy of the text of the CTUs' proposed notice to the public. SWBT suggested that the provider file notice only after a signed contract or letter of intent is received. Clarification appears necessary to avoid unnecessary expenditures by the parties. The intention of this section is the avoidance of last minute intervention in the 311 service implementation process. Without proper and timely notice, parties are at risk of preparing a complex and costly implementation plan for a 311 system which may be in conflict with another governmental entity's plans. Thus, the commission will base notice on the written receipt of the 311 service request. Accordingly, the commission rejects SWBT's modification. Parties commented on sec.23.98(f)(7) which concerns how a 311 service request starts the six-month deadline by which "...any necessary steps to complete 311 calls..." are taken pursuant to the FCC Order. AT&T suggested that sec.23.98(f)(7), regarding the trigger of the 6-month deadline, be modified so that the 311 service request "shall start" the six- month time limit. AT&T's modification language is, "(7) A 311 service request shall start the six-month time limit to 'take any steps necessary to complete 311 calls.'" GTE also suggested modification of sec.23.98(f)(7) to allow adequate time for the tasks necessary to implement 311 service. GTE's suggested modification is, "(7) A 311 service request begins when the commission approves the customer application to provide 311 service and starts the six-month time limit to 'take any necessary steps to complete 311 calls' as required by the Federal Communications Commission's Order, In the Matter of the Use of N11 Codes and Other Abbreviated Dialing Arrangements, CC Docket Number 92-105, FCC 97-51, 12 F.C.C.R. 5572 (February 19, 1997)." Similarly, SWBT recommended that the six- month period referenced in sec.23.98(f)(7) should begin on the date the binding request was executed. Again, clarification of the starting point for the six month time limit appears necessary and the commission believes AT&T's suggested language is most appropriate, therefore sec.23.98(f)(7) is so modified. The PUC rejects GTE's suggestion of tying the six-month period to commission approval because it could lead to attempts to "game" the regulatory approval process to delay a CTU's provision of 311 service. Parties commented on sec.23.98(f)(8) which sets forth the prohibition of completing 311 calls over the 911 network or use of 911 databases. AT&T suggested that sec.23.98(f)(8) be modified so that information in the 911 database may be copied into the 311 database. AT&T recommended this modification because incumbent local exchange carriers may not want to provide a copy of the 911 information. Further, AT&T stated that to the extent a governmental entity is required to be compensated for a copy of the information in the 911 database, compensation to the ILEC should be limited to the 911 database keeper's cost to make a copy of the information, i.e., the cost of producing electronic tapes or other media. To these ends, AT&T proposed the following language: "The 311 network shall not be completed over the 911 network or use the 911 database. Upon written request from a governmental entity, a copy of information contained in the 911 database will be provided to provide 311 service. The copy will be provided in electronic form and compensation for the copy will be no more than the cost of producing the copy in electronic form." SWBT supported the exclusion of 311 calls from the 911 network and database. However, SWBT expressed its concern that should the 911 administration move the 911 network from existing, dedicated facilities to the public switched telephone network, this would result in 911 calls being completed using portions of the 311 network, which would be a violation of the proposed rule. ACSEC also supported the restriction against use of the 911 network and database to provision 311 stating that use of the same network would create problems for routing of emergency calls. In addition, ACSEC noted that use of the 911 database for 311 calls could create customer privacy and competitive neutrality concerns. ACSEC asserted however, that the potential for tort liability should discourage improper use of the 911 network and database for 311 purposes. Consistent with its earlier positions, Austin proposed changing sec.23.98(f)(8) so that 311 calls may be completed over the 911 network and use the 911 database. Austin identified certain needs and requirements for effective use of 311 including 1) rapid, efficient response to all calls, both 911 & 311, 2) calls answered by trained professional call takers, 3) call taker access to Automatic Location Identification (ALI) and Automatic Number Identification (ANI) information, 4) use of existing 911 database accuracy, 5) selective routing to the proper jurisdiction, and 6) one button transfer from 911 to 311 and/or 311 to 911. Austin argued its intelligent 911 network contains a Automatic Call Distributor (ACD) so any negative impacts to the 911 system by using it for 311 will be easily addressed. Austin stated that the ACD would assign the highest priority to 911 calls and a lower priority to 311 calls, so 911 calls will be processed first. Austin also said that its intelligent 911 system will give an automatic message to 311 callers when the call volume reaches a certain level. Austin said the message would be to hang up and dial 911 if an emergency, or if not, to call back later or leave a message to be returned by a call taker. In addition, in its reply comments, Austin proposed that sec.23.98(f)(8) should read: "311 calls shall be completed over a network that is separate from a dedicated 911 network, but the following uses of a 911 system for 311 public safety calls, specifically law enforcement, fire, and emergency medical services, are not prohibited: (i) use of a common automatic call distribution system (ACDS); and (ii) appropriate use of a 911 network and 911 database if such use does not degrade 911 emergency service and has the prior approval of the 911 entity and, if applicable, the Advisory Commission on State Emergency Communications." Austin also proposed this language without reference to transferring calls because a 911 prioritized call system could be established in which a pre-specified call volume would trigger a conversion of 311 calls so that 311 callers would receive a recorded message until the 911 call volume decreased. Austin said such use would not involve the actual transfer of a call, but would establish a prioritized call system in which 911 calls would receive priority over 311 calls at all times. If the 311 service network was envisioned for emergency use, many of the parties' concerns would be valid; however, given the non-emergency nature of 311 these concerns diminish in importance. It is conceivable that a citizen may dial 311 in error when seeking 911 service, particularly if public education is not adequately addressed. However, parties calling 311 are ideally seeking to report situations requiring the attention of a governmental agency (i.e., traffic blockage, noise complaints, animal or tree removal, etc.). Such calls need not be recorded or dispatched in the same way as the emergency calls for which 911 service is intended. Although the commission appreciates the complexity of telecommunications devices employed for the identification and routing of calling parties, it is not convinced that the 311 service network when implemented requires such support. To address SWBT's concerns, when and if 911 is ready to migrate to the public switched network, the commission does not intend for this provision to prohibit such a migration. Lastly, the commission generally rejects the suggestions of AT&T and Austin because the commission is not persuaded by their arguments. Specifically, the commission rejects Austin's argument because even with an ACD or ACDS, a 911 system can only have a finite number of lines. It is possible that such a system will reach its capacity by receiving both 911 and 311 calls. This could lead to emergency 911 calls going unanswered due to call takers answering non-emergency 311 calls. Parties commented on sec.23.98(f)(10) which sets forth when a CTU must have a ten-digit number for 311 caller anonymity when the 311 answering point uses ANI, ALI, or other equivalent non-blockable information-gather feature. AT&T noted with regard to sec.23.98(f)(10) that the use of a 10 digit number will be the rule, not the exception given recent commission actions regarding NPA relief in Dallas and Houston. Therefore, AT&T proposed the commission require use of a 10- digit number, rather than a seven-digit one. AT&T also suggested governmental entities be allowed to block ALI information for unlisted numbers so that names and address data will not be visible to operators or dispatchers. AT&T stated that using ANI information for routing calls is a standard procedure and should not be deemed an invasion of privacy. SWBT said that sec.23.98(f)(10) was unclear. SWBT said it interpreted this section to mean that the telecommunications provider will maintain the ability of a 311 caller to block the Caller ID information. SWBT said if this is not the intent, it wanted clarification. SWBT stated that if information on a 311 call is blocked, then the ANI/ALI information will not be passed on, if necessary. For sec.23.98(f)(10), ACSEC wanted to reflect the legal and technical differences in Caller ID type service, ANI and ALI. ACSEC suggested 311 calls be subject to Calling Line Identification (CLID) which is blockable, instead of true ANI that is not subject to call blocking. ACSEC stated that the CLID number could still be used to query the ALI database by a Public Safety Answering Point (PSAP) in a true emergency. ACSEC stated that the references to ALI and ANI may be misinterpreted to mean that the commission is approving the "general" use of ANI and ALI by CTUs for all 311 calls instead of Caller ID services. ACSEC proposed modifications to the language to clarify the commission's intent on the use of Caller ID services. For sec.23.98(f)(10), Austin proposed, in its reply comments, the following language: "When a certified telecommunications utility or a 311 system uses Caller Identification (Caller ID) Services or other equivalent feature for the provision of 311 service, applicable customer privacy protection and call- blocking requirements shall apply; however, in governmental entities in which the governing body has restricted use of the 311 system to public safety purposes (law enforcement, emergency medical response, and fire), the customer privacy protections and call- blocking requirements applicable to 911 calls shall also apply to 311 calls made for such public safety purposes, to the extent such protections and requirements are technologically available." Austin argued that the proposed language is better because it clarifies any confusion as to whether a non-urgent 311 call for law enforcement, emergency medical or fire fighter responses qualify as an "emergency." Austin stated it hoped to establish a 311 system solely for non-urgent public safety calls and for this reason wished to offer Austinites a 311 service that is a subset of the current 911 system. Austin argued that if a 311 call became an "emergency" during the course of the call, the public safety agency would need to quickly obtain the caller's address in order to respond appropriately. Austin believed that current technology can not override a blocked call for 311 calls. Austin urged nonetheless that the proposed rule should not foreclose the possibility of using such technology when and if it becomes available. For increased clarity of purpose, the commission has rewritten this subsection to show that the subsection is designed to preserve the privacy of users of 311. AT&T is correct in noting that it is inappropriate to mandate use of a seven- digit number for anonymity due to number conservation and portability efforts. But instead of mandating a ten-digit number as AT&T suggested, the commission is requiring certificated telecommunication utilities to use a "non- abbreviated phone number" to preserve anonymity. Consequently, the commission refuses to follow AT&T's suggestion about a ten-digit number. The differences in ALI, ANI and Caller ID drove the way the commission drafted this subsection. To further highlight those differences, the commission inserts the word "non-blockable" into this subsection to differentiate when an alternative phone number is required. The commission has determined that only when a 311 caller's identity cannot remain anonymous due to the employed technology must a non- abbreviated phone number also be employed. The commission has addressed the issue of privacy as related to a 311 call by allowing the option of dialing a standard non- abbreviated number which permits a calling party to prevent receipt of its number identification. This will not address the user's privacy if the call is made from a pay telephone or from a line which has not elected blocking of its calling information. In those instances where a ten digit number will be required, it was not the commission's intention to prevent use of the ten digit number to achieve the caller's privacy. The commission also accepts part of ACSEC's modification and states that the amendment language should not be construed as a blanket approval of using ANI and ALI for 311 calls. The commission rejects Austin's proposed modification. The commission adds the following language to the end of the parenthetical clause in sec.23.98(f)(12)(B), "...and their potential frequency of access to the governmental agencies wishing to use the 311 service)." All comments, including any not specifically referenced herein, were fully considered by the commission. In adopting this section, the commission makes other minor modifications for the purpose of clarifying its intent. This amendment is adopted under the Public Utility Regulatory Act, Texas Utilities Code Annotated sec.14.002 and sec.14.052 (Vernon 1998) (PURA) which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and specifically, sec.52.001, which requires that the commission to formulate and apply rules to protect the public interest due to federal administrative actions. Cross Index to Statutes: Public Utility Regulatory Act sec.14.002, sec.14.052, and sec.52.001. sec.23.98. Abbreviated Dialing Codes. (a) The following abbreviated dialing codes may be used in Texas: (1) 311 - Non-Emergency Governmental Service; (2) 411 - (A) Directory Assistance; and (B) Directory Assistance Call Completion. (3) 611 - Repair Service; (4) 711 -Telecommunications Relay Service; (5) 811 - Business Office; and (6) 911 - Emergency Service. (b) The following N11 dialing codes are not assigned for use in Texas: (1) 211; and (2) 511. (c)-(d) (No change.) (e) The following limitations apply to a CTU's use of N11 dialing codes for internal business and testing purposes: (1) use may not interfere with the assignment of such numbers by the FCC and the North American Numbering Plan (NANP); and (2) (No change.) (f) 311 Service. (1) Scope and Purpose. This subsection applies to the assignment, provision, and termination of 311 service. Through this subsection, the commission strives to strengthen the 911 system by alleviating congestion on the 911 system through the establishment of a framework for governmental entities to implement a 311 system for non-emergency police and other governmental services. (2) Definitions. The following words and terms, when used in this subsection, shall have the following meanings, unless the context clearly indicates otherwise. (A) Certificated telecommunications utility - The meaning assigned by sec.23.3 of this title (relating to Definitions). (B) Governmental entity - Any county, municipality, emergency communication district, regional planning commission, appraisal district, or any other subdivision or district that provides, participates in the provision of, or has authority to provide fire-fighting, law enforcement, ambulance, medical, 911, or other emergency service as defined in Tex. Health & Safety Code sec.771.001, as may be subsequently amended. (C) 911 system - A system of processing emergency 911 calls, as defined in Tex. Health & Safety Code sec.772.001, as may be subsequently amended. (D) Selective routing - The feature provided with 311 service by which 311 calls are automatically routed to the 311 answering point for serving the place from which the call originates. (E) 311 answering point - A communications facility that: (i) is operated, at a minimum, during normal business hours; (ii) is assigned the responsibility to receive 311 calls and, as appropriate, to dispatch the non-emergency police or other governmental services, or to transfer or relay 311 calls to the governmental entity; (iii) is the first point of reception by a governmental entity of a 311 call; and (iv) serves the jurisdictions in which it is located or other participating jurisdictions. (F) 311 service - A telecommunications service provided by a certificated telecommunications provider through which the end user of a public telephone system has the ability to reach non-emergency police and other governmental services by dialing the digits 3-1-1. 311 service must contain the selective routing feature or other equivalent state-of-the-art feature. (G) 311 service request - A written request from a governmental entity to a certificated telecommunications utility requesting the provision of 311 Service. A 311 service request must: (i) be in writing; (ii) contain an outline of the program the governmental entity will pursue to adequately educate the public on the 311 Service; (iii) contain an outline from the governmental entity for implementation of 311 service; (iv) contain a description of the likely source of funding for the 311 service (i.e., from general revenues, special appropriations, etc.); and (v) contain a listing of the specific departments or agencies of the governmental entity that will actually provide the non-emergency police and other governmental services. (H) 311 system - A system of processing 311 calls. (3) A certificated telecommunications utility must have a commission-approved application to provide 311 service. (4) Requirements of application by certificated telecommunications utility. (A) Applications, tariffs, and notices filed under this subsection shall be written in plain language, shall contain sufficient detail to give customers, governmental entities, and other affected parties adequate notice of the filing, and shall conform to the requirements of sec.23.26 of this title (relating to New & Experimental Services) or sec.23.27 of this title (relating to Rate- Setting Flexibility for Services Subject to Significant Competitive Challenges), whichever is applicable. (B) A copy of the text of the proposed notice to notify the public of the request for 311 service and the filing of an application for regulatory approval of the certificated telecommunications utility's provision of 311 service. (C) No application for 311 service allowing the governmental entity to charge its citizens a fee on a per-call or per-use basis for using the 311 system shall be approved. (D) All applications for 311 service shall include the governmental entity's plan to educate its populace about the use of 311 at the inception of 311 service and its plan to educate its populace at the termination of the governmental entity's provision of 311 service. (5) Notice. The presiding officer shall determine the appropriate level of notice to be provided and may require additional notice to the public. (A) The certificated telecommunications utility shall file with the commission a copy of the text of the proposed notice to notify the public of the request for 311 service and the filing of an application for regulatory approval of the certificated telecommunications utility's provision of 311 service. This copy of the proposed notice shall be filed with the commission not later than 10 days after the certificated telecommunications utility receives the 311 service request; and (B) The proposed notice shall include the identity of the governmental entity, the geographic area to be affected if the new 311 service is approved, and the following language: "Persons who wish to comment on this application should notify the commission by (specified date, 30 days after notice is published in the Texas Register). Requests for further information should be mailed to the Public Utility Commission of Texas, P.O. Box 13326, Austin, Texas 78711-3326, or you may call the Public Utility Commission's Office of Customer Protection at (512) 936-7120. Hearing-and speech-impaired individuals with text telephones (TTY) may contact the commission at (512) 936-7136." (6) A certificated telecommunications utility may provide 311 service only to governmental entities. (7) A 311 service request shall start the six-month deadline to "take any necessary steps to complete 311 calls" as required by the Federal Communications Commission's Order In the Matter of the Use of N11 Codes and Other Abbreviated Dialing Arrangements, CC Docket No. 92-105, FCC 97-51, 12 F.C.C.R. 5572 (February 19, 1997). (8) 311 calls shall not be completed over the 911 network or use the 911 database. (9) The 311 network shall not be used for commercial advertisements. (10) To preserve the privacy of callers who wish to use the governmental entity's non- emergency service anonymously, a certificated telecommunications utility which uses Automatic Number Identification (ANI) service, Automatic Location Identification (ALI) service or other equivalent non-blockable information- gathering feature for the provision of 311 service must establish a non-abbreviated phone number that will access the same non-emergency police and governmental services as the 311 service while honoring callers' call- and line- blocking preference. When publicizing the availability of the 311 service, the governmental entity must inform the public if its 311 service has caller or number identification features, and must publicize the availability of the non- abbreviated phone number that offers the same service with caller anonymity. When a certificated telecommunications utility uses Caller Identification (Caller ID) services or other equivalent feature to provide 311 service, relevant provisions of the commission's substantive rules and of the Public Utility Regulatory Act apply. (11) The commission shall have the authority to limit the use of 311 abbreviated dialing codes to applications that are found to be in the public interest. (12) The commission shall have the authority to decide which governmental entity shall provide 311 service when there are conflicting requests for concurrent 311 service for the same geographic area, to the extent that negotiations between or among the affected governmental entities fail. The commission shall consider the following factors in determining conflicting requests for 311 service: (A) the nature of the service(s), including but not limited to the proposed public education portion, to be provided by the governmental entity; and (B) the potential magnitude of use of the requested 311 service (i.e., the number of residents served by the governmental entity and their potential frequency of access to the governmental agencies wishing to use the 311 service). (13) When termination of 311 service is desired, the certificated telecommunications utility shall file a notice of termination with the commission that contains: (A) proposed notice to the affected area of the termination of 311 service; and (B) the program to educate the affected public of the termination of 311 service. (14) The commission, after receiving the certificated telecommunications utility's proposed notice of termination of 311 service and approving the proposed notice through an administrative review, will cause the approved notice to be published in the Texas Register. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 16, 1998. TRD-9811246 Rhonda Dempsey Rules Coordinator Public Utility Commission of Texas Effective date: August 5, 1998 Proposal publication date: January 30, 1998 For further information, please call: (512) 936-7308 PART IX. Texas Lottery Commission CHAPTER 401.Administration of State Lottery Act 16 TAC sec.401.369 The Texas Lottery Commission adopts an amendment to section 16 TAC sec.401.369, concerning retailer sales incentive, without changes to the proposed text as published in the April 24, 1998, issue of the Texas Register(23 TexReg 3977). The amendment is intended to allow a lottery retailer who has undergone a business reorganization but retained 100% of the principals in the business to be eligible for the reduction of the on-line service charge from $20 to $10. Under the State Lottery Act, there is no authority to transfer a license. A lottery retailer who undergoes a business reorganization to the extent that a new entity is created must apply for a new lottery sales agent's license. Under the rule as currently written, the new licensee, regardless of whether 100% of the principals remain the same, would be required to pay an on-line service charge of $20. The Commission, in adopting new rule 16 TAC sec.401.369, intended to recognize that a licensee who has a history of good standing with the agency did not pose a credit risk to the agency. This amendment continues the agency's intention by expressly providing that in the event of a new license being issued because of a business reorganization which retained 100% of the principals, the new licensee would be eligible for the reduction in the on-line fee charge. However, pursuant to the provisions of the State Lottery Act, a separate license is required for each location at which tickets are sold and a person who desires to operate more than one location to sell tickets must submit a separate application for each location. Consistent with the provisions of the State Lottery Act, this rule and its amendments thereto are intended to ensure that each licensed location has its own history of good standing. The amendment allows a lottery retailer who has undergone a business reorganization to the extent a new license is required but has retained 100% of the principals in the business to be eligible for the reduction of the on-line service charge from $20 to $10. The following interested groups or associations presented either written comments and/or oral comments: the Texas Association of Lottery Retailers, M.S. Management Corporation, and Cliff's Check Cashing. The following is a summary of the comments received. Following each comment is the Commission's response. Comment: Two of the commenters believe the amendment to the rule should be applied retroactively. One of these commenters bases its opinion on the assertion that its business was reorganized "at the suggestion of the administrative department of the Texas Lottery" and, due to this reorganization, the company will not enjoy the benefit of a reduction in its weekly on-line service charge. Another commenter also recently reorganized its business under a different ownership type and, while not alleging the business reorganization was done at the suggestion of the Lottery Commission, feels the rule should be applied retroactively to all retailers with "outstanding records" like theirs. Response: Applying the amended rule retroactively would have a negative impact on revenue to the State and, due to the large number of applications processed in the Licensing section of the Commission, the high volume of "change-of- ownership" transactions that take place in the retailer community, and the limitations of Commission resources, the Commission does not have the ability to retroactively research all previous retailer "change-of-ownership" transactions to determine if they fit within the "100% of the principals retained" criteria. Further, the Commission believes the effective date of the rule amendment provides a bright line for implementation. No change was made as a result of this comment. Comment: One commenter believes the amendment to the rule should be applied to new locations licensed under an entity owning existing locations that qualify for the reduced on-line service charge. Response: According to Texas Government Code sec.401.151(d), a separate license is required for each location at which lottery tickets are to be sold. Applicant information submitted for each location is considered on its own merit. Each additional location licensed under the same ownership structure is considered unique and is evaluated separately, including the issue date of the license. No change was made as a result of this comment. The amendments are adopted under Texas Government Code, sec.466.015 which gives the Texas Lottery Commission authority to adopt rules necessary to administer the State Lottery Act and to adopt rules governing the establishment and operation of the lottery and Texas Government Code, sec.467.102 which authorizes the Texas Lottery Commission to adopt rules for the enforcement and administration of Texas Government Code, Chapter 467 and the laws under the Commission's jurisdiction. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 13, 1998. TRD-9811072 Kimberly L. Kiplin General Counsel Texas Lottery Commission Effective date: August 2, 1998 Proposal publication date: April 24, 1998 For further information, please call: (512) 344-5113 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) adopts 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). Section 33.20 is being adopted with changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5549). Sections 33.5, 33.10, 33.25, 33.30, 33.40, 33.55, and 33.60 are being adopted without changes to the proposed text. 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 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 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. The following changes have been made to the rules since they were published as proposed. In sec.33.20(e)(4), the phrase "approving all contracts and selection of" has been changed to read "approving the selection of, and all contracts with". A similar change was also made to sec.33.20(e)(5). These changes were made to improve clarity of language. No comments were received regarding the adoption of the amendments. The amendments are adopted 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. 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. (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) An investment manager is a person, firm, corporation, bank, or insurance company the SBOE retains to manage a portion of the PSF assets under specified guidelines. (2) A custodian is an organization, normally a bank, the SBOE retains to safekeep, and provide accurate and timely reports of, PSF assets. (3) A consultant is a person or firm the SBOE retains to advise the PSF based on professional expertise. (4) Investment counsel is a person or firm retained under criteria specified in the PSF Investment Procedures Manual to advise PSF investment staff and the SBOE Committee on School Finance/Permanent School Fund within the policy framework established by the SBOE. Counsel may advise PSF internal managers regarding various issues, including: selecting companies in different industries; specific stock or corporate bond issues or other investment instruments; and timing of purchases and sales. Counsel advises on the economic and market environment and asset allocation and provides PSF investment staff direction on diversifying investments between asset classes and among respective industries. (5) A performance measurement consultant is a person or firm retained to provide the SBOE Committee on School Finance/Permanent School Fund an analysis of the PSF portfolio performance. The outside portfolio performance measurement service firm shall perform the analysis on a quarterly or as-needed basis. Quarterly reports shall be distributed to each member of the SBOE Committee on School Finance/Permanent School Fund, and a representative of the firm shall be available as necessary to brief the committee. (6) 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. 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. (7) The SBOE may retain independent external auditors to review the PSF accounts annually or on an as-needed basis. 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. (c) The SBOE shall meet on a regular or as-needed basis to conduct the affairs of the PSF. (d) In case of emergency or urgent public necessity, the SBOE Committee on School Finance/Permanent School Fund or the SBOE, as appropriate, may hold an emergency meeting under the Texas Government Code, sec.551.045. (e) The SBOE shall have the following exclusive duties: (1) determining the strategic asset allocation mix between asset classes based on the attending economic conditions and the PSF goals and objectives; (2) ratifying the investment transactions pertaining to the purchase, sale, or reinvestment of fixed income, equity, or cash securities by all internal and external managers for the current reporting period; (3) appointing members to the SBOE Investment Advisory Committee; (4) approving the selection of, and all contracts with, external professional investment managers, financial advisors, financial consultants, or other external professionals employed to help the SBOE invest the PSF; (5) approving the selection of, and the performance measurement contract with, 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) setting policies, objectives, and guidelines for investing PSF assets; and (7) representing the PSF to the state. (f) The SBOE may establish committees to administer the affairs of the PSF. The duties and responsibilities of any committee established shall be specified in the PSF Investment Procedures Manual. (g) The PSF shall have an executive administrator, with a staff to be adjusted as necessary, who functions directly with the SBOE through the SBOE Committee on School Finance/Permanent School Fund concerning investment matters, and who functions as part of the internal operation under the commissioner of education. At all times, the PSF executive administrator and staff shall invest PSF assets as directed by the SBOE according to the Texas Constitution and all other applicable Texas statutes, as amended, and SBOE rules governing the operation of the PSF. The PSF staff shall: (1) administer the PSF according to SBOE goals and objectives; (2) execute all directives, policies, and procedures from the SBOE and the SBOE Committee on School Finance/Permanent School Fund; (3) keep records and provide a continuous and accurate accounting of all PSF transactions, revenues, and expenses and provide reports on the status of the PSF portfolio; (4) advise any officials, investment firms, or other interested parties about the powers, limitations, and prohibitions regarding PSF investments that have been placed on the SBOE or PSF investment staff by statutes, attorney general opinions and court decisions, or by SBOE policies and operating procedures; (5) continuously research all internally managed securities held by the PSF and report to the SBOE Committee on School Finance/Permanent School Fund and the SBOE any information requested, including reports and statistics on the PSF, for the purpose of administering the PSF; (6) establish and maintain a procedures manual that implements this section to be approved by the SBOE; (7) make recommendations regarding investment and policy matters to the SBOE Committee on School Finance/Permanent School Fund and the SBOE; and (8) establish and maintain accounting policies and internal control procedures concerning all receipts, disbursements and investments of the PSF, according to the procedures adopted by the SBOE. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811407 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-9701 CHAPTER 61.School Districts SUBCHAPTER AA.Commissioner's Rules Division 2. School Finance 19 TAC sec.61.1011 The Texas Education Agency (TEA) adopts new sec.61.1011, concerning Public Education Grant (PEG) supplemental payments, without changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (22TexReg 5916). The Texas Education Code (TEC), sec.29.203(b), as added by House Bill 318, 75th Texas Legislature, 1997, directs the commissioner to establish rules for the calculation of additional state aid for certain school districts that educate students under the PEG program. The PEG program was created by Senate Bill 1, 74th Texas Legislature, 1995, and allows students assigned to certain campuses to attend school in a district other than that of the student's residence. Originally, students were eligible if they were assigned to a campus that had been rated low-performing in any three of the preceding years, or if they were assigned to a campus that, in all three previous years, had at least 50 percent of the students not performing satisfactorily on state assessment instruments. House Bill 318, 75th Texas Legislature, 1997, amended the eligibility criteria by allowing students to attend school in another district if they were assigned to a campus that had been rated low-performing in any of the three preceding years, or if they were assigned to a campus that, in two of the three previous years, had at least 50 percent of the students not performing satisfactorily on state assessment instruments. House Bill 318, 75th Texas Legislature, 1997, also simplified the funding mechanism by creating an entitlement to the district educating a student under the PEG program equal to the adjusted basic allotment multiplied by a weight of 0.1. However, for certain school districts, this new funding mechanism will not generate the same amount of state assistance that it would for most school districts. House Bill 318, 75th Texas Legislature, 1997, authorizes additional state assistance for districts whose wealth per student is greater than the guaranteed wealth level (currently $210,000 per student) but less than the equalized wealth level (currently $280,000 per student). Districts with property wealth in this range are ineligible for state assistance under the guaranteed yield program (Tier 2). No changes were made to the rule since it was published as proposed. No public comments were received regarding the adoption of the new section. The new section is adopted under Texas Education Code, sec.29.203(b), as added by House Bill 318, 75th Texas Legislature, 1997, which authorizes the commissioner of education to establish rules for the calculation of additional state aid for certain school districts that educate students under the PEG program. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811408 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: June 5, 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) adopts an amendment to sec.66.107, concerning instructional materials, without changes to the proposed text as published in the May 29, 1998, issue of the Texas Register(23 TexReg 5552). 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 adopted amendment would require school districts and open- enrollment charter schools to return surplus textbooks to the state textbook depository for redistribution. The adopted amendment also prohibits districts and open-enrollment charter schools from inflating enrollments and ordering textbooks in excess of the actual needs. Under the adopted 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 adopted 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. Since the amendment was proposed, changes to fiscal impact estimates have been calculated. Total savings for the state are estimated to be $15 million in fiscal year 1999 and $10 million in fiscal years 2000 through 2002. These estimates will be the result requiring more stringent ordering processes on the part of school districts and by implementing a return policy for surplus textbooks that can be redistributed by the state. School districts that were not subject to a membership audit returned approximately $15 million worth of surplus materials this year. This can be compared to the $5 million worth of materials returned last year, prior to districts' knowledge of the adopted amendment to rule. No changes were made to the rule since it was published as proposed. The following comments were received regarding adoption of this amendment. Comment. An officer of TCAT commented that the agency should notify all school districts when materials become surplus. Agency Response. The agency provides inventory reports to the school districts twice a year. These reports list each textbook title that was purchased for the district by the state. Within the next year, districts will be able to access their current inventories online. Districts maintain enrollment counts throughout the school year. By comparing the district's inventory and enrollments, districts should be able to determine which materials are surplus. In addition, the agency has no data to verify enrollments throughout the school year without asking schools to submit class rosters each time they order textbooks. Most districts feel that this requirement would place a hardship on the schools. Comment. A superintendent commented that the amendment will increase costs at the local district level. Districts will have to develop new computer programs to provide enrollment data and documentation. Agency Response. Districts currently update enrollments throughout the school year when additional textbooks are needed. It is assumed that most districts already use computer-generated reports from their enrollment databases. Comment. A superintendent commented that the estimate of $750,000 in surplus textbooks from 101 small school districts equates to only 10 textbooks per subject per district. Agency Response. The agency recognizes that the results of the audits of 101 school districts may appear to be insignificant and that the sample used in the audits represents only 10 percent of school districts in Texas. If the same 10 textbook per district surplus argument is employed for projection purposes across the state, however, the problem becomes a 10,000 textbook surplus that represents approximately $7.5 million. The adopted amendment would address school districts that are not using surplus textbooks and withhold them from state use by not returning them. The agency also recognizes that not all school districts have intentional surpluses; school districts will never be asked to return textbooks that are used for instruction. Comment. A superintendent commented that the TEA seems to believe that PEIMS fall snapshot data can provide enrollment data for ordering textbooks. Agency Response. The agency eliminated the Annual Membership Report form in 1996 because districts were required to submit data that were often duplicated. Data submitted in the PEIMS database are used for the April textbook order unless districts report that the PEIMS data are inaccurate or not appropriate. Districts are given every opportunity to update their enrollments as needed throughout the school year. Comment. TEC, sec.31.103, outlines how textbooks are ordered based on a district's maximum enrollment plus ten percent. PEIMS data are not a factor according to the law. Agency Response. TEC, sec.31.103, requires districts to report maximum attendance to the commissioner of education by April 25. Attendance is not the same as enrollment. TEC, sec.31.103, states that requisitions for textbooks for the following year are based on maximum attendance reports plus an additional 10 percent. The law does not provide that the additional 10 percent be given throughout the next school year. Current agency procedures allow districts an additional 10 percent for growth throughout the school year. Comment. A superintendent commented that the use of PEIMS data does not reflect the district's textbook needs throughout the school year. Agency Response. PEIMS data are used only for the April textbook orders for the following school year. Districts may update their enrollments throughout the school year when additional textbooks are needed. Comment. A superintendent commented that there is cause for concern with the TEA definition of "a timely manner." The district cannot return surplus materials prior to the middle of October in a given year. Agency Response. Districts are currently requested to return surplus textbooks each year between October 1 and December 15. Membership audits will be conducted in January and February. If the district has inadvertently ordered more textbooks than it needed for that school year, ample time for the return of those materials is provided. The majority of surplus textbooks found in last year's audits had been in the districts for several years. The amendment is adopted 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811409 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-9701 CHAPTER 97. Planning and Accreditation SUBCHAPTER BB. Memoranda of Understanding 19 TAC sec.97.1011, sec.97.1012 The Texas Education Agency (TEA) adopts new sec.97.1011 and sec.97.1012, concerning memoranda of understanding, without changes to the proposed text as published in the June 5, 1998, issue of the Texas Register (23 TexReg 5917). Section 97.1011 provides for a memorandum of understanding (MOU) with the Texas School for the Deaf related to accreditation and Public Education Information Management System (PEIMS) data reporting, authorized under Texas Education Code (TEC), sec.29.315, as added by Senate Bill 1918, 75th Texas Legislature, 1997. Section 97.1012 provides for a memorandum of understanding with the Texas School for the Blind and Visually Impaired related to PEIMS data reporting, authorized under TEC, sec.30.005, as added by Senate Bill 1919, 75th Texas Legislature, 1997. Adopted new 19 TAC sec.97.1011 establishes the method for developing and reevaluating a set of quality of learning indicators at the Texas School for the Deaf and the process for the TEA to conduct and report on an annual evaluation of the school's performance on the indicators. The new section also provides for the school's board to publish, discuss, and disseminate an annual report describing the educational performance of the school; the process for the TEA to assign an accreditation status to the school, to reevaluate the status on an annual basis, and, if necessary, to make on-site accreditation investigations; and the type of information the school shall be required to provide through PEIMS. TEA staff held a series of meetings with representatives from the Texas School for the Deaf to draft and refine language in the MOU. Adopted new 19 TAC sec.97.1012 establishes the method for developing and reevaluating a set of quality of learning indicators at the Texas School for the Blind and Visually Impaired. The new section also provides for the process for the TEA to conduct and report on an annual evaluation of the school's performance on the indicators; the requirements for the school's board to publish, discuss, and disseminate an annual report describing the educational performance of the school; and the type of information the school shall be required to provide through PEIMS. TEA staff held a series of meetings with representatives from the Texas School for the Blind and Visually Impaired to draft and refine language in the MOU. No comments were received regarding the adoption of the new sections. The new sections are adopted under the Texas Education Code, sec.29.315, as added by Senate Bill 1918, 75th Texas Legislature, 1997, which authorizes the commissioner of education to adopt by rule a memorandum of understanding jointly developed and agreed upon by the Texas Education Agency and the Texas School for the Deaf; and Texas Education Code, sec.30.005, as added by Senate Bill 1919, 75th Texas Legislature, 1997, which authorizes the commissioner of education to adopt by rule a memorandum of understanding jointly developed and agreed upon by the Texas Education Agency and the Texas School for the Blind and Visually Impaired. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811410 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: June 5, 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) adopts new sec.109.25, concerning the reporting and auditing system for the state compensatory education program, with changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5553). 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. The TEA is also adopting an amendment to 19 TAC sec.109.41, which is filed in a separate submission. Section 109.41 adopts by reference the "Financial Accountability System Resource Guide." The adopted amendment to the "Resource Guide" includes changes in financial accounting rules relating to the state compensatory education program. These changes are reflected in new modules one and nine of the "Resource Guide." Adopted new module nine of the " Resource Guide" describes the reporting and auditing system required by Senate Bill 1873. The effective date for adopted new 19 TAC sec.109.25 is September 1, 1998. Implementation during Fiscal Year 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. The following change has been made to the new section since published as proposed. Language has been changed in sec.109.25(f)(2) to clarify what action will be taken when a school district responds with an appropriate corrective action plan. No comments were received regarding the adoption of the new section. The new section is adopted 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. 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 TEA shall rescind the financial penalty and release the amount of the penalty to the school district. (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 adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811411 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-9701 SUBCHAPTER C. Adoptions by Reference 19 TAC sec.109.41 The Texas Education Agency (TEA) adopts an amendment to sec.109.41, concerning the "Financial Accountability System Resource Guide," without changes to the proposed text as published in the April 17, 1998, issue of the Texas Register (23 TexReg 3791). The section adopts by reference the "Financial Accountability System Resource Guide" as the TEA's official rule. The "Resource Guide" describes rules for financial accounting such as financial reporting; budgeting; purchasing; auditing; site-based decision making; data collection and reporting; and management. Public school districts use the "Resource Guide" to meet the accounting, auditing, budgeting, and reporting requirements as set forth in the Texas Education Code and other state statutes relating to public school finance. The "Resource Guide" is available at www.tea.state.tx.us/school.finance on the TEA website. The adopted amendment to sec.109.41 changes the date from "January 1998" to "September 1998" to reflect the effective date of the adopted amendments to the "Financial Accountability System Resource Guide." Under sec.109.41(b), the commissioner of education shall amend the "Financial Accountability System Resource Guide," adopting it by reference, as needed. Adopted amendments to the "Resource Guide" include changes in financial accounting rules relating to the state compensatory education program. These changes will be reflected in adopted new module nine of the "Resource Guide." Module one of the "Resource Guide" also contains amendments that include applicable text from adopted new module nine. New module nine describes an auditing system that involves risk assessment and desk audit processes. New module nine of the "Resource Guide" also provides guidelines to school districts regarding the use of the compensatory education allotment to supplement the regular education program. The effective date for adopted new module nine of the "Resource Guide" is the fiscal year beginning September 1, 1998. Implementation during the first fiscal year will be on a hold-harmless basis, providing a transitional year for implementing the new financial accounting requirements for the state compensatory education allotment. On July 10, 1998, the State Board of Education approved new 19 TAC sec.109.25, State Compensatory Education Program Reporting and Auditing System, for adoption. New 19 TAC sec.109.25 provides for systems that monitor appropriate use of state compensatory education allotment funds by school districts. New sec.109.25 is filed in a separate submission. House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, establishes a four-year sunset review cycle for all state agency rules. The TEA is also conducting a review of 19 TAC Chapter 109, Subchapter C, Adoptions By Reference, in accordance with Rider 167. The TEA does find sufficient reason for the rule to continue to exist and amends the rule as indicated. No comments were received regarding the adoption of the amendment. The amendment is adopted under the Texas Education Code, sec.sec.7.102(b)(33), 42.152, 44.007, and 44.008, which authorizes the State Board of Education to adopt rules relating to school district budgets and audits of school district fiscal accounts, and House Bill 1, General Appropriations Act, 75th Texas Legislature, Article IX, Rider 167, which establishes a four-year sunset review cycle for all state agency rules. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811412 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: May 29, 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) adopts an amendment to sec.157.41, concerning certification criteria for independent hearing examiners, with changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5554). The section establishes the certification criteria for independent hearing examiners. The adopted 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 adopted 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. Based on public comments, the following changes have been made to the rule since published as proposed. In sec.157.41(k)(1), language was added that specifies certification as a hearing examiner is effective on a yearly basis only and does not confer any expectation of recertification in subsequent years. Language was added to sec.157.41(k)(2) to provide an opportunity for a certified hearing examiner to respond to a complaint. Language specifying that the decision of the commissioner is final and unappealable was added to sec.157.41(k)(3). The following public comments have been received regarding adoption of the amendment. Comment. On behalf of 15 independent hearing examiners, an individual submitted written comments requesting specific procedures regarding the complaint process to be included in the recertification provisions of 19 TAC sec.157.41(k). Agency Response. In response to this comment, a provision was inserted in 19 TAC sec.157.41(k)(2) specifically permitting a response from the certified hearing examiner. Overall, the specificity of the procedures suggested by the individual would deny the agency flexibility in considering the complaint and the response in a timely, legally appropriate manner. Therefore, no further changes were made. Comment. The State Office of Administrative Hearings (SOAH) suggested more specificity in delineating which types of civil trial advocacy courses would meet the requirement in 19 TAC sec.157.41(f). Agency Response. The agency disagrees with this comment. No change was made as the current language allows for flexibility in continuing legal education course work. Comment. SOAH observed that the current rule could limit the commissioner's ability to deny certification except when an attorney files a written complaint. Agency Response. The agency agrees with this comment. The provision regarding the lack of an expectation of recertification was added to 19 TAC sec.157.41(k)(1). Comment. SOAH questioned whether a certified hearing examiner would be able to respond to a complaint. Agency Response. The agency agrees with this comment. The provision allowing for a complaint response from the certified hearing examiner was added to 19 TAC sec.157.41(k)(2). Comment. SOAH suggested that additional language clarifying the factors set forth in 19 TAC sec.157.41(k) be added. Agency Response. The agency disagrees with this comment. No change was made because the clarifications were redundant of the original rule provisions. Comment. SOAH suggested that the standard of "accuracy and appropriateness of procedural and evidentiary rulings" is too vague and would encourage spurious complaints from attorneys and further suggests including the appellate review standards from Texas Government Code, Chapter 2001, Administrative Procedures Act. Agency Response. The agency disagrees with this comment. This change was not made, as the determinations will be based upon an objective review of the record. Further, the working group members indicated a reluctance to file a complaint against a certified hearing examiner except in an instance of gross incompetence. Comment. SOAH suggested that any appeal rights should be clarified. Agency Response. The agency agrees with this comment. Language concerning the lack of an appeal from the commissioner's decision was added to 19 TAC sec.157.41(k)(3). Comment. An individual representing school districts of varying sizes commented in support of the amendment to the continuing legal education requirement which would specifically require training in civil trial advocacy and the portion of the rule establishing that the commissioner's decision with regard to recertification is final and not appealable. Comment. An individual representing school districts of varying sizes commented that the commissioner of education be given authority to decline to recertify an examiner without receiving a complaint from a participating attorney. Agency Response. The agency agrees with this comment and has inserted a provision in sec.157.41(k)(1) that there is no expectation of recertification. Comment. An individual representing school districts of varying sizes commented that the phrase "accuracy and appropriateness of procedural and evidentiary rulings" in sec.157.41(k)(2)(B) was vague. Agency Response. The agency disagrees with this comment. The review standard of "accuracy and appropriateness of procedural and evidentiary rulings" is based upon an objective review of the record; further, the working group indicated that attorneys would be reluctant to file a complaint except in the case of gross incompetence and that this standard was appropriate. Comment. The Texas Association of School Administrators filed a written comment supporting the additional changes that were made to sec.157.41 in response to SOAH's comments. The amendment is adopted 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. sec.157.41. Certification Criteria for Independent Hearing Examiners. (a) License required. An individual who is certified as an independent hearing examiner, hereafter referred to as a "certified examiner," must be licensed to practice law in the State of Texas. (b) Representations prohibited. A certified examiner, and the law firm with which the examiner is associated, must not serve as an agent or representative of: (1) a school district; (2) a teacher in any dispute with a school district; or (3) an organization of school employees, school administrators, or school boards. (c) Moral character. A certified examiner must: (1) possess good moral character; and (2) not have been convicted, given probation (whether through deferred adjudication or otherwise), or fined for: (A) a felony; (B) a crime of moral turpitude; or (C) a crime that directly relates to the duties of an independent hearing examiner in a public school setting. (d) Status as a licensed attorney. A certified examiner must: (1) currently be a member in good standing of the State Bar of Texas; (2) within the last five years, not have had the examiner's bar license: (A) reprimanded, either privately or publicly; (B) suspended, either probated or otherwise; or (C) revoked; (3) have been licensed to practice law in the State of Texas or any other state for at least five years prior to application; and (4) have engaged in the actual practice of law on a full-time basis, as defined by the Texas Board of Legal Specialization, for at least five years. (e) Experience. During the three years immediately preceding certification, a certified examiner must have devoted a minimum of 50% of the examiner's time practicing law in some combination of the following areas, with a total of at least one-tenth or 10% of the examiner's practice involving substantial responsibility for taking part in a contested evidentiary proceeding convened pursuant to law in which the examiner personally propounded and/or defended against questions put to a witness under oath while serving as an advocate, a hearing officer, or a presiding judicial officer: (1) civil litigation; (2) administrative law; (3) school law; or (4) labor law. (f) Continuing education. During each year of certification, a certified hearing examiner must receive credit for ten hours of continuing legal education, with three hours in the area of school law and seven hours in the area of civil trial advocacy, during the period January 1 to December 31 of each year of certification. (g) Sworn application. In order to be certified as an independent hearing examiner, an applicant must submit a sworn application to the commissioner of education. The application shall contain the following acknowledgments, waivers, and releases. (1) The applicant agrees to authorize appropriate institutions to furnish relevant documents and information necessary in the investigation of the application, including information regarding grievances maintained by the State Bar of Texas. (2) If selected as a certified examiner, the applicant has the continuing duty to disclose grievance matters under subsection (d)(2) of this section at any time during the certification period. Failure to report these matters constitutes grounds for rejecting an application or removal as a certified examiner. (3) If selected as a certified examiner, the applicant has the continuing duty to disclose criminal matters under subsection (d)(2) of this section at any time during the certification period. Failure to report these matters constitutes grounds for rejecting an application or removal as a certified examiner. (h) Assurances as to position requirements. In the sworn application, the applicant must: (1) demonstrate that the applicant currently maintains an office or offices within the State of Texas; (2) designate the office locations from which the applicant will accept appointments; (3) demonstrate that the applicant provides telephone messaging and facsimile services during regular business hours; (4) demonstrate that the applicant possesses a personal computer capable of producing text in the format specified by the commissioner; (5) agree to attend meetings of independent hearing examiners in Austin, Texas, at the examiner's expense; and (6) agree to comply with all reporting and procedural requirements established by the commissioner. (i) Voluntary evaluations. The commissioner may solicit voluntary evaluations from parties to a case regarding their observations of the independent hearings process. (j) Insufficient examiners in a region. In the event that insufficient numbers of examiners are certified for any geographic region of the state, the commissioner may assign a certified hearing examiner whose office is within reasonable proximity to the school district. (k) Annual recertification. (1) Certification expires on December 31 of each calendar year. All examiners seeking recertification shall reapply on a date specified by the commissioner. Certification as a hearing examiner is effective on a yearly basis only and does not confer any expectation of recertification in subsequent years. (2) Upon written complaint by an attorney who has participated in a hearing and a response from the certified hearing examiner, 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: (A) timeliness; (B) accuracy and appropriateness of procedural and evidentiary rulings; or (C) decorum or control. (3) The commissioner's decision in regard to recertification is final and not appealable. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811413 Criss Cloudt Associate Commissioner, Policy Planning and Research Texas Education Agency Effective date: September 1, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 463-9701 TITLE 22. EXAMINING BOARDS PART XXXVI. Council on Sex Offender Treatment CHAPTER 810.Council on Sex Offender Treatment SUBCHAPTER A.Sex Offender Treatment Provider Registry 22 TAC sec.sec.810.1-810.9 The Council on Sex Offender Treatment (council) adopts new sec.sec.810.1-810.9, 810.31-810.34, 810.61-810.64, and 810.91-810.92 concerning the registration and regulation of sex offender treatment providers. Sections 810.2 - 810.5, 810.8, 810.9, 810.62-810.64; and 810.92 are adopted with changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4506). Sections 810.1, 810.6, 810.7, 810.31-810.34, 810.61, and 810.91, are adopted without changes, and therefore the sections will not be republished. The new sections implement Texas Civil Statues, Article 4413(51) House Bill (HB) 2699, 75th Legislature, 1997, which transferred the administration and enforcement required, to the Texas Department of Health (department) effective September 1, 1997. Section 17 of this bill transfers all funds, property, records, and employees to the department as of September 1, 1997. The rules repealed in 40 Texas Administrative Code (TAC), Chapters 510-513, are hereby adopted as amended in 22 TAC Chapter 810. Specifically, the sections cover introduction; definitions; registry criteria; registry renewal; fees; application availability; documentation of experience and training; revocation, denial or non-renewal of registration; complaints, disciplinary actions, administrative hearing and judicial review; access to criminal history records; records; destruction of criminal history records; frequency of criminal background checks; introduction to standards of practice; council assertions; assessment and evaluation concerns; issues to be addressed in treatment; code of professional ethics; and code of ethics. The department is making the following minor changes due to staff comments to clarify the intent and improve the accuracy of the section. Change: Concerning sec.810.4(1)-(8), catchlines were added at the beginning of each paragraph to clarify subject. Change: The word "phallometric" was changed to "Phallometric" in sec.810.62(b)(23), (26), (28), (29); 810.64(11); and 810.92(d)(5) and (11). The following comments were received concerning the proposed sections. Following each comment is the council's response and any resulting changes. Comment: A commenter stated that they were in support of the rules as proposed and urged increased monitoring of sex offender treatment programs, including the mandatory licensing of any individual who provided mental health treatment for sex offenders. Response: The council acknowledges the concerns of the commenter. No changes were made as a result of the comments. The registration of sex offender treatment providers is voluntary. There is no current statutory authority for the council to regulate all providers; this would require new legislation. Comment: Regarding sec.810.2(8)(D), a comment was received stating that the definition of sex offender was too broad when a person "who experiences or evidences a paraphilia disorder" is included. The commenter explained that labeling such a person was unnecessarily onerous and punitive, and that persons with object fetishism and transvestic fetishism were not a threat to others. Response: The council agrees and disagrees. The language is statutory. The council agrees with the concern and has added language to clarify the definition. Comment: Regarding sec.810.3(1)(A), a comment was received suggesting that the term, "licensed psychological associate" had been omitted in error. Response: The council disagrees. No changes were made to the rules as a result of the comment. The term "licensed psychological associate" was intentionally not included in the list of licensed professionals who qualify to be registered as sex offender treatment providers. The council has determined that the applicant should have a full or unrestricted license in order to qualify as a registered sex offender treatment provider (RSOTP). A psychological associate may register as an associate sex offender treatment provider (ASOTP) under sec.810.3(2)(A). A psychological associate cannot practice without supervision; thus, an associate should not be eligible for an RSOTP. An associate continues to be eligible for an ASOTP registration. Comment: A commenter stated that in sec.sec.810.3(1)(B)(i) and 810.3(1)(B)(ii), the rule was unclear if RSOTP's were required to have both 1000 hours of clinical experience and 40 hours of documented continuing education to qualify for registration. Response: The council agrees and replaced "or" with "and" in sec.810.3(1)(B)(i). Comment: A commenter suggested that the registry criteria in sec.810.3(1)(B)(ii) be expanded to include sexual assault issues and/or victim training. Response: The council agrees and added language as a result of the comment. Comment: A commenter suggested that the language in sec.810.3(1)(D)(i) be consistent throughout the rules. Response: The council agrees. Changes were made in sec.810.3(1)(D)(i) and 810.3(2)(D)(i) changing "a" to "any." Comment: Comments were received concerning sec.810.3(1)(D)(i). "This section should be eliminated or revised to avoid an inherent inconsistency. Another section of the rules, sec.810.61(b), states Sexual deviance is not considered to be a disease that can be cured,' yet sec.810.3(1)(D)(i) accounts for sufficient evidence of rehabilitation to allow a convicted sexual offender (or one receiving deferred adjudication) to become an RSOTP. Without unambiguous definition of rehabilitation' this section appears to set a potentially dangerous precedent of allowing sex offenders who cannot be cured to become providers." Response: The council acknowledges the concern that the appearance of an ambiguity exists. No changes were made to the rules as a result of the comments. The disciplinary process requires careful, cautious, and compassionate consideration of each individual's circumstances. The council believes that the wording as stated allows the council and executive director to require that persons in such a situation demonstrate evidence of rehabilitation. Comment: Regarding sec.810.3(1)(F), a comment was received noting that a return had been incorrectly inserted between the word "subparagraph" and (A). Response: The council agrees and has corrected the typographical error. Comment: Regarding sec.810.3(2)(A), a comment was received stating that the list of licensed professionals who qualify to be ASOTPs should include a psychiatrist. Response: The council agrees and has added the word "psychiatrist". Comment: Regarding sec.810.3(2)(A) a comment was received requesting that the list of eligible persons for the ASOTP be expanded to include licensed marriage and family therapist-clinical associate, licensed professional counselor- clinical associate and provisionally licensed psychologist. Response: The council agrees and has added wording accordingly to include these persons as eligible for ASOTP registration. Comment: Regarding sec.810.3(2)(B)(ii), a commenter suggested that this clause be eliminated or clarified, as it was incongruent with sec.810.3(3)(B). Response: The council agrees and has added language to sec.810.3(2)(B)(ii). Comment: A commenter suggested that the language in sec.810.3(2)(D)(i) be clarified as to what type of felony conviction should be considered. Response: The council agrees and added language "in accordance with paragraph (3)(B) of this subsection" and deleted "at least monthly" as a result of the comment. Comment: A commenter stated that in sec.810.3(2)(F) the word "license" was missing. Response: The council agrees and added language "license or certification" as a result of the comment. Comment: A commenter stated that clarification is needed in sec.810.3(3)(A) on what type of documentation is required to be provided annually to the council during the renewal period. Response: The council agrees and has deleted and added language as a result of the comment. The supervising RSOTP and ASOTP will be required to submit a form which will be provided by the council. Comment: A commenter stated that the language in sec.810.3(3)(C) is vague regarding the desired format for submitting names of the ASOTP's that RSOTP's have supervised. Response: The council agrees and has deleted and added language as a result of the comment. The supervising RSOTP and ASOTP will be required to submit a form to the council which will be provided by the council. Comment: Regarding sec.sec.810.3(1)(A) and 810.4, a commenter asked if a registry applicant or a renewal applicant could hold a primary license that was expired, not renewed or in inactive status. Response: The council clarified that a registry applicant's or renewal applicant's primary license must be current and active. Language was added to sec.sec.810.3(1)(A) and 810.4 as a result of the comment. Comment: A commenter stated that in sec.810.3(4), it was unclear if a copy of a registration certificate may be displayed at locations where sex offender treatment is provided. Response: The council agrees and added language listed in sec.810.3(4)(B) as a result of the comment clarifying that a registrant shall not display a registration certificate which has been reproduced or is expired, suspended, or revoked. Comment: A commenter stated that sec.810.3(4) does not state who is the property owner of the registration certificate issued by the council. Response: The council agrees and added language to sec.810.3(4)(C) as a result of the comment. Comment: A commenter inquired as to what would be contained on the registration certificate. Response: The council clarified by adding language to sec.810.3(4)(A). Comment: A commenter questioned whether assessment of a late fee in sec.810.4(4) was optional or mandatory. Response: The council agrees and has changed the word, "may" to "shall" as a result of the comment. Comment: In sec.801.4 regarding Registry Renewal a commenter pointed out that there were no procedures for granting a continuing education extension, which might be helpful due to continuing education (CE) requirements changing from a two year cycle to an annual cycle. Response: The council agrees and has added language in sec.810.4(9), (10), and (11) for CE extension. Comment: Regarding sec.810.4(1), a commentor recommended that the current requirement of 24 hours of CE every two years be retained. The commenter acknowledged that the overall number of hours did not change and that the annual requirement was easier to track under the proposed rules. The commenter was concerned that those who attend a two day conference would earn more than 12 hours and would not receive full credit for those hours if the council adopted the annual requirement as proposed. Response: The council agrees with the concern but did not accept the comment for rule change. The annual requirement is necessary to protect the public and emphasizes the "continuing" nature of the requirement for competency. If the biennial requirement was retained, it would be possible for providers to go as long as 46 months without CE. Under the annual requirement as proposed, a provider could go as long as 22 months without CE. The fact that providers attend a two-day session for up to 16 hours and cannot carry-over the four hours to the next annual renewal period is insufficient reason to modify the rules as proposed. Comment: A commenter suggested that the continuing education for registry renewal in sec.810.4(7) be expanded to include sexual assault issues and/or victim training. Response: The council agrees and added language as a result of the comment. Comment: In sec.810.4 a commenter stated it was confusing as to when continuing education documentation for renewal must be submitted; the rule should clearly specify the fiscal year. Response: The council agrees and added a definition for "fiscal year" to sec.810.2(9) and "by the end of every fiscal year" to sec.810.4(1) as a result of the comment. The fiscal year is September 1 through August 31. Comment: A commenter suggested that clarification as to what type of "investigation" would be completed under sec.810.5(2). Response: The council agrees and added language as a result of the comment; "investigation" was replaced with "checks." Comment: Regarding sec.810.5(2), a commenter stated that the cost of random investigations should be shared equally by all providers, rather than the individuals selected for a random investigation. Response: The council disagrees and does not accept the comment for a rule change. The rule as proposed reflects only a change from the existing section to state that the fees shall be determined by the agencies conducting the background check. The previous rule stated that the fee would not exceed $23 for the background check. Under both rules, the fees must be paid by the RSOTP or the ASOTP. Comment: Regarding sec.810.7, a commenter remarked that the word "training" had been misspelled. Response: The council agrees and has corrected the spelling of "training" in the first sentence. Comment: Regarding sec.810.8(2) a commenter asked would there be grounds for revocation, denial or non-renewal of registration if a registrant's primary license had not been renewed or was inactive. Response: The council agrees and added language as a result of the comment. A primary license that had not been renewed or was inactive would be grounds for revocation, denial or non-renewal of registration. Comment: A commenter stated that sec.810.9 should establish the responsibilities of the registrant in responding to a complaint. Response: The council agrees and added a new subsection (c). The lettering in subsequent subsections has been changed accordingly as a result of the comment. Comment: A commenter inquired if in sec.810.9, a registrant's certification was revoked, would notice be given to holders of the registry to prevent referring clients to that individual. Response: The council agrees that notification is important. Disciplinary information will be available on the web site in the near future. No changes were made to the rules based on the comment. Comment: Regarding sec.810.9, a commenter inquired if complainants would be identified to the registrant. Response: Complaint information may be obtained through the Texas Open Records Act, including the identity of the complainant. No changes were made to the rules based on the comment. Comment: A commenter suggested that sec.810.9(c) be changed allowing the executive director's designee to act on a complaint. Response: The council agrees and added language to renumbered sec.810.9(b)(2) as a result of the comment. Comment: Concerning sec.810.9(c)(2), a commenter recommended that notification by phone or in person be added. Response: The council agrees and has added new language to renumbered sec.810.9(b)(2)(B). Comment: A commenter suggested that only a record of all witnesses contacted in relation to a complaint needed to be included in sec.810.9(g)(4). Response: The council agrees and deleted the word "persons" and added "witnesses" as a result of the comment. Comment: A commenter suggested that catch titles are needed throughout sec.810.9. Response: The council agrees and added catch titles in sec.810.9(a) through (g). Comment: A commenter stated that it was unclear as to when and how a certificate should be returned to the council in sec.810.9(i)(5). Response: The council agrees and added language as a result of the comment. Comment: A commenter supported the rules and the establishment of professional guidelines for the practice of sex offender treatment in sec.sec.810.61-810.64. The commenter recommended caution in attempting to "legislate" the treatment process. Response: The council appreciates the support. The rulemaking is a result of the council's efforts to carry out its statutory duties under Texas Civil Statutes, Article 4413(51), sec.8(1). The council intends to set standards for treatment of sex offenders that must be met by offender treatment providers and to assist offenders, victims, law enforcement, judiciary, providers, and others in understanding the phenomenon of sexual offense, sexual offenders and sex offender treatment. Comment: A commenter stated that it was unclear in sec.810.62(b)(28) and (30), sec.810.63(b)(9) and sec.810.92(c)(6), if permission or consent can be verbal or if it must be in writing. Response: The council agrees and added "written consent" to sec.810.62(28) and (30), sec.810.63(b)(9) and sec.810.92(c)(6) as a result of the comment. Comment: Regarding sec.810.63(e)(3), a commenter raised questions and concerns about the rule requiring that "arrangement for using a standardized approved auditory (taped or read) version of the test instrument should be made," if the client's reading level is insufficient. The commenter suggested "these factors be an issue of ethical practice and not restrictively legislated." The commenter suggested adding language, "to the extent that such versions are available." Response: The council agrees with comments and has added the language accordingly. Comment: A commenter recommended that in sec.810.92(g)(1)(B) that only earned degrees from an accredited college or university be allowed in public information and advertising. Response: The council agrees and added language as a result of the comment. Comment: A commenter requested that sec.810.92(e)(1) be clarified so that a distinction be made between offering treatment services and forensic services. Response: The council agrees with the comment and has added the word "treatment" as a result of the comment. The comments on the proposed rules received by the department during the comment period were submitted by the ADAPT Counseling, Psychological Assessment Treatment and Training, Professional Psychological Services, P.C., Professional Associates Counseling & Consultation center and by department staff. The commenters were neither for nor against the rules in their entirety; however, they raised questions, offered comments for clarification purposes, and suggested clarifying language concerning specific provisions in the rules. The new sections are adopted under Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act and sec.8 provides the council with the authority to adopt rules concerning the registration requirements and procedures for sex offender treatment providers on the registry. sec.810.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: (1) Act - Texas Civil Statutes, Article 4413(51). (2) Board - The Texas Board of Health. (3) Council - The Council on Sex Offender Treatment. (4) Department - The Texas Department of Health. (5) Registrant - A person who is listed in the registry. (6) Registry - A database maintained by the council that contains the names of persons who have met the council's criteria in the treatment of sex offenders and who provide mental health or medical services for the rehabilitation of sex offenders. (7) Rehabilitation Service - A mental health treatment or medical intervention program designed to treat or remedy a sex offender's mental or medical problem that may relate or contribute to the sex offender's criminal or paraphiliac problem. (8) Sex Offender - A person who: (A) is convicted of committing or adjudicated to have committed a sex crime under the laws of a state or under federal law, including a conviction of a sex crime under the uniform code of military justice; (B) is awarded deferred adjudication for a sex crime under the laws of a state or under federal law; (C) admits to having violated the law of a state or federal law with regard to sexual conduct; or (D) experiences or evidences a paraphiliac disorder as defined by the current version of the Diagnostic and Statistical Manual (DSM), as published by the American Psychiatric Association Press, including any subsequent revision of the manual, which may place a person at risk for the violation of sex offender laws. (9) Fiscal year- September 1 through August 31. sec.810.3. Registry Criteria. The council maintains a database of registrants whose experience in the rehabilitation of sex offenders may vary. The council shall recognize the experience and training of treatment providers in either one of two categories. These may be "Registered Sex Offender Provider" or "Affiliate Sex Offender Treatment Provider." (1) Registered Sex Offender Treatment Provider (RSOTP). The council may waive any prerequisite to registration for an applicant after receiving the applicant's credentials and determining that the applicant holds a valid registration from another state that has registration requirements substantially equivalent to those of this state. To be eligible as a RSOTP, the applicant must meet all of the following criteria: (A) be licensed or certified to practice as a physician, psychiatrist, psychologist, licensed professional counselor, licensed marriage and family therapist, licensed master social worker-advanced clinical practitioner, or advanced nurse practitioner recognized as a psychiatric clinical nurse specialist or psychiatric mental health nurse practitioner, and who provides mental health or medical services for the rehabilitation of sex offenders. The license status must be current and active. (B) satisfy the experience and training required below: (i) possess a minimum of 1000 hours of clinical experience in the areas of assessment and treatment of sex offenders, obtained within a consecutive seven- year period, and provide two reference letters from professionals who know of the applicant's clinical work in sex offender treatment; and (ii) possess a minimum of 40 hours of documented continuing education training, as defined in sec.810.7 of this title (relating to Documentation of Experience and Training), obtained within three years prior to application date, in the specific area of sex offender treatment and evaluation. Of the initial 40 hours training required, 30 hours or 75% must be in sex offender rehabilitation training. Ten hours or 25% must be in sexual assault issues and/or sexual assault victim related training; (C) submit a complete and accurate description of their treatment program on a form provided by the council; (D) comply with the following. Persons making initial application or renewing their eligibility for the registry: (i) must not have been convicted of any felony, or of any misdemeanor involving a sex offense, nor have received deferred adjudication for a sex offense, unless sufficient evidence of rehabilitation has been established as determined by the council; (ii) must not have had licensure revoked, canceled, suspended, or placed on probationary status by any professional licensing body, unless sufficient evidence of rehabilitation has been established as determined by the council; (iii) must not have been determined by any professional licensing body to have engaged in unprofessional or unethical conduct, unless sufficient evidence of rehabilitation has been established as determined by the council; (iv) must not have been determined by the council to have engaged in deceit or fraud in connection with the delivery of services or documentation of registry requirements or registry eligibility; (v) must submit themselves to a criminal history background check. An applicant may be required to submit a complete set of fingerprints with the application documents, or other information necessary to conduct a criminal history background check to be submitted to the Texas Department of Public Safety or to another law enforcement agency. If fingerprints are requested, the fingerprints must be taken by a peace officer or a person authorized by the council and must be placed on a form prescribed by the Texas Department of Public Safety; and (vi) must not have violated any rule adopted by the council; (E) submit an application fee defined in sec.810.5 of this title (relating to Fees); (F) submit a copy of his or her professional license, as set out in subparagraph (A) of this paragraph, indicating the applicant is current and in good standing; (G) sign the application form(s) and attest to the accuracy of the application before a notary public; and (H) complete the process within 90 days of the application's receipt in the council office. (2) Affiliate Sex Offender Treatment Provider (ASOTP). To be eligible as an ASOTP, the applicant must meet all of the following criteria: (A) be licensed or certified to practice as a physician, psychiatrist, psychologist, psychological associate, licensed professional counselor, licensed marriage and family therapist, licensed master social worker, advanced nurse practitioner, licensed marriage and family therapist associate, licensed professional counselor intern, provisionally licensed psychologist, recognized as a psychiatric clinical nurse specialist or psychiatric mental health nurse practitioner, who provides mental health or medical services for the rehabilitation of sex offenders; (B) satisfy the experience and training required below: (i) possess a minimum of 250 hours of clinical experience in the areas of assessment and treatment of sex offenders, provide two reference letters from professionals who know of the applicant's clinical work in sex offender treatment; (ii) be supervised by an RSOTP in accordance with paragraph (3)(B) of this subsection until RSOTP status is reached; and (iii) possess a minimum of 40 hours of documented continuing education training, as defined in sec.810.7 of this title, obtained within three years prior to application date, in the specific area of sex offender treatment and evaluation. Of the initial 40 hours training required, 30 hours or 75% must be in sex offender rehabilitation training. Ten hours or 25% must be in sexual assault issues and/or sexual assault victim related training; (C) submit a complete and accurate description of their treatment program on a form provided by the council; (D) comply with the following. Persons making initial application or renewing their eligibility for the registry: (i) must not have been convicted of any felony, or of any misdemeanor involving a sex offense, nor have received deferred adjudication for a sex offense, unless sufficient evidence of rehabilitation has been established as determined by the council; (ii) must not have had licensure revoked, canceled, suspended, or placed on probationary status by any professional licensing body, unless sufficient evidence of rehabilitation has been established as determined by the council; (iii) must not have been determined by any professional licensing body to have engaged in unprofessional or unethical conduct, unless sufficient evidence of rehabilitation has been established as determined by the council; (iv) must not have been determined by the council to have engaged in deceit or fraud in connection with the delivery of services or documentation of registry requirements of registry eligibility; (v) must submit themselves to a criminal history background check. An applicant may be required to submit a complete set of fingerprints with the application documents, or other information necessary to conduct a criminal history background check to be submitted to the Texas Department of Public Safety or to another law enforcement agency. If fingerprints are requested, the fingerprints must be taken by a peace officer or a person authorized by the council and must be placed on a form prescribed by the Texas Department of Public Safety; and (vi) must not have violated any rule adopted by the council; (E) submit an application fee defined in sec.810.5 of this title; (F) submit a copy of his or her professional license or certification as set out in subparagraph (A) of this paragraph, indicating the applicant is current and in good standing; (G) sign the application form(s) and attest to the accuracy of the application in the presence of a notary public; and (H) complete the process within 90 days of the application's receipt in the council office. (3) Supervision. All ASOTP's providing any sex offender treatment must be supervised. Supervision will include the following. (A) An ASOTP providing any sex offender treatment is required to be under the supervision of a RSOTP. The ASOTP must provide a notarized copy of supervision documentation annually, to the council during the renewal period. (B) The ASOTP must receive face-to-face supervision at least one hour per month, or if providing more than 20 hours of direct clinical sex offender treatment per month, the ASOTP must receive one hour of supervision per every 20 hours of sex offender treatment provided. (C) The supervising RSOTP must submit annual documentation to the council at the time of their renewal; the documentation will contain the name of the ASOTP's that have been supervised during the year. The supervising RSOTP will be required to use a form provided by the council. (4) Registration Certificates. Upon successful completion of the application or renewal process, registrants will receive an official certificate from the council. This certificate must be displayed at all locations where sex offender treatment is provided. Duplicate certificates may be obtained for this purpose. (A) The Council of Sex Offender Treatment Providers (Council) shall prepare and provide to each registrant a certificate which contains the registrants name and certificate number. (B) A registrant shall not display a registration certificate which has been reproduced or is expired, suspended, or revoked. (C) Any certificate issued by the council remains the property of the council and must be surrendered to the council upon demand. (D) The address and telephone number of the council must also be displayed at all locations where sex offender treatment for the purpose of directing complaints against the registrant to the council. (5) Application processing. The council shall comply with the following procedures in processing applications for a license. (A) The following times shall apply from a completed application receipt and acceptance date for filing or until the date a written notice is issued stating the application is deficient and additional specific information is required. A written notice of application approval may be sent instead of the notice of acceptance of a complete application. The times are as follows: (i) letter of acceptance of application for registry renewal - 30 days; and (ii) letter of initial application deficiency - 30 days. (B) The following times shall apply from the receipt of the last item necessary to complete the application until the date of issuance of written notice approving or denying the application. The times for denial include notification of the proposed decision and of the opportunity, if required, to show compliance with the law and of the opportunity for a formal hearing. The times are as follows: (i) approval of application- 42 days; and (ii) letter of denial of license or registration - 90 days. (6) Refund processing. The council shall comply with the following procedures in processing refunds of fees paid to the council. In the event an application is not processed in the times stated in paragraph (5)(A) of this section. (A) The applicant has the right to request reimbursement of all fees paid in that particular application process. Application for reimbursement shall be made to the executive director. If the executive director does not agree that the time has been violated or finds that good cause existed for exceeding the time, the request will be denied. (B) Good cause for exceeding the time is considered to exist if the number of applications for registration or renewal exceeds by 15% or more, the applications processed in the same calendar quarter of the preceding year; another public or private entity relied upon by the council in the application process caused the delay; or any other condition exists giving the council good cause for exceeding the time. (C) If the executive director denies a request for reimbursement under subparagraph (A) of this paragraph the applicant may appeal to the council for a timely resolution of any dispute arising from a violation of the times. The applicant shall give written notice to the council at the address of the council that he or she requests full reimbursement of all fees paid because his or her application was not processed within the applicable time. The executive director shall submit a written report of the facts related to the processing of the application and of any good cause for exceeding the applicable time. The council shall provide written notice of the decision to the applicant and the executive director. The council shall decide an appeal in favor of the applicant, if the applicable time was exceeded and good cause was not established. If the council decides the appeal in favor of the applicant, full reimbursement of all fees paid in that particular application process shall be made. (D) The times for contested cases related to the denial of registration or renewal are not included with the times listed in paragraphs (5)(A) and (5)(B) of this subsection. The time for conducting a contested case hearing runs from the date the council receives a written hearing request until the council's decision is final and appealable. A hearing may be completed within three to nine months, but may be shorter or longer depending on the particular circumstances of the hearing, the workload of the department and the scheduling of council meetings. sec.810.4.Registry Renewal. In order to maintain eligibility for the registry, the primary license of each renewal must be current and active. All renewal applicants must comply with the following: (1) Number of continuing education hours. All renewal applicants must submit by the end of every fiscal year, a minimum of 12 hours of continuing education documentation in sex offender treatment of which three hours may be in sexual assault victim related training, beginning September 1999. (2) Renewal forms. All renewal applicants must submit renewal forms provided by the council and renewal fees defined in sec.810.5 of this title (relating to Fees). (3) Registration certificate expiration. All registration certificates expire September 30, no matter the date of initial registration. (4) Renewal application postmark date. All renewal applications must be postmarked by September 1 or a late fee shall be assessed. (5) Continuing education activities. Continuing education activities shall be instructor-directed activities such as conferences, symposia, seminars and workshops and must be accepted or approved for continuing education credits by the licensing agencies regulating professionals listed in sec.810.3 of this title (relating to Registry Criteria). (6) Home or self-directed study courses. No home or self-directed study courses will be considered for continuing education hours. (7) Presentation of continuing education. All renewal applicants may count a maximum of four hours per renewal period for the presentation of continuing education training, lectures, or courses in the specific area of sex offender treatment and evaluation, sexual assault issues and/or victim training. (8) Carrying over continuing education hours. No hours may be carried over from one renewal period to another renewal period. (9) Continuing education extension. (A) A registrant who has failed to complete the requirements for continuing education (CE) may be granted a 90-day extension by the executive director. (B) The request for an extension of the CE period must be made in writing and must be postmarked prior to September 30. (C) If an extension is needed a late fee equal to one-half of the renewal fee stated in sec.810.5(4) will be assessed. (D) The next CE period shall begin the day after the CE has been satisfied. (E) Credit earned during the extension period cannot be applied toward the next CE period. (F) A person who fails to complete the CE requirements during the extension or who does not request an extension holds an expired registration and may not use the RSOTP or ASOTP credential or certificate. (10) Completion of continuing education after extension. A registration may be renewed upon completion of the required CE within the given extension period, submission of the registration form, and payment of the applicable late renewal fee. (11) Failure to complete continuing education. A person who fails to complete CE requirements for renewal and failed to request an extension to the CE period may not renew the registration. The person may obtain a new registration by complying with the current requirements and procedures for obtaining a license. sec.810.5. Fees. The council has established the following registration fees. (1) All applicants must submit a non-refundable application fee of $200 and meet the following requirements for consideration and inclusion in the registry: (A) return the completed, signed and notarized application form provided by the council; (B) submit the registration fee in the form of a check or money order; and (C) submit, within 90 calendar days, any documentation required to complete the application if requested by the council, or a new application and registration fee must be submitted. (2) Additional fees will be charged for Federal Bureau of Investigations and Texas Department of Public Safety criminal background checks. Fees shall be determined by those agencies conducting the investigation. (3) Renewal forms and information will be mailed to each registrant at least 60 days prior to registration expiration and sent to the registrant's last address of record with the council. (4) To renew, an RSOTP or an ASOTP must submit an annual renewal fee of $100 and meet the following requirements. (A) A person who is otherwise eligible to renew a registration may renew an unexpired registration by paying the required registration fee to the council on or before the expiration date of the registration. (B) If a registration has been expired for 90 days or less, the late renewal fee is $150. (C) If a registration has been expired for longer than 90 days but less than one year, the reinstatement fee is $200. sec.810.8.Revocation, Denial or Non-Renewal of Registration. The council shall have the right to revoke a registration, refuse to accept a registration, and/or refuse to renew a registration upon proof that the treatment provider has: (1) been convicted of any felony or a misdemeanor involving a sexual offense, or has ever received deferred adjudication for a sexual offense, unless sufficient evidence of rehabilitation has been established as determined by the council; (2) had licensure placed on inactive status, not renewed, revoked, canceled, suspended, or placed on probationary status by any professional licensing body, unless sufficient evidence of rehabilitation has been established as determined by the council; (3) been determined by any professional licensing body to have engaged in unprofessional or unethical conduct, unless sufficient evidence of rehabilitation has been established as determined by the council; (4) been determined by the council to have engaged in deceit or fraud in connection with the delivery of services, supervision, or documentation of registry requirements or registry eligibility; (5) violated the Act or any rule adopted by the council; (6) been prohibited from renewal by the Education Code, sec.57.491 (relating to Loan Default Ground for Non-renewal of Professional or Occupational License); or (7) been prohibited from renewal by a court order or attorney general's order issued pursuant to the Family Code, Chapter 232 (relating to Suspension of License for Failure to Pay Child Support). sec.810.9. Complaints, Disciplinary Actions, Administrative Hearing and Judicial Review. (a) Reporting a complaint. A person wishing to report an alleged violation of the Act or this chapter by a registrant or other person shall notify the executive director. The initial notification may be in writing, by fax, or by personal visit to the council office. (b) Review of complaint. (1) The executive director will review the complaint for violations of the Act or any rule adopted by the council. (2) If it is determined that a violation of the Act or these sections may have occurred, the executive director or executive director's designee will: (A) refer complaint to registrant's primary licensing agency within 60 days; (B) notify the registrant or other person in writing, by phone or in person that a complaint has been filed; and (C) notify the complainant in writing of receipt of the complaint. (c) Responsibilities of registrant. (1) A registrant shall cooperate with the council by furnishing required documents or information and by responding to a request for information or a subpoena issued by the council or its authorized representative. (2) A registrant shall comply with any order issued by the council relating to the registrant. A licensee shall not interfere with a council investigation by the willful misrepresentation of facts to the board or its authorized representative or by the use of threats or harassment against any person. (3) The subject of the complaint will be notified of the allegations either in writing, by phone or in person by the executive director or designee to the case and will be required to provide a sworn response to the allegations within two weeks of that notice. (4) Failure to respond to the allegation within the two week period is evidence of failure to cooperate with the investigation and subject to disciplinary action. (d) Actions by the council. The council is authorized to revoke, suspend or refuse to renew a registration, place on probation a person whose registration has been suspended, or reprimand a registrant for a violation of the Act, or a rule of the council. (e) Probation of a suspension. If the suspension is probated, the council is authorized by sec.13C(a)(1)-(3) of the Act to impose certain requirements and limitations on a person. (f) Disciplinary action on primary license. If any professional license of the registrant is revoked or suspended, the council shall propose revocation of registration. (g) Complaint information. The council shall keep information about each complaint filed with the council. The information shall include: (1) the date the complaint is received; (2) the name of the complainant; (3) the subject matter of the complaint; (4) a record of all witnesses contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and (6) for a complaint for which the council took no action, an explanation of the reason the complaint was closed without action. (h) Formal hearing. (1) The formal hearing shall be conducted according to the provisions of the Administrative Procedure Act and this chapter. The parties to a hearing shall be the applicant or registrant and the executive director. The formal hearing shall be held in Travis County, Texas unless otherwise determined by the Administrative Law Judge (ALJ) or upon agreement of the parties. (2) Prior to institution of formal proceedings to revoke or suspend a registrant, the executive director shall give written notice to the registrant by certified mail, return receipt requested, of the facts or conduct alleged to warrant revocation or suspension, and the person shall be given the opportunity, as described in the notice, to show compliance with all requirements of the Act and this chapter. (3) To initiate formal hearing procedures, the executive director shall give the registrant written notice of the opportunity for hearing. The notice shall state the basis for the proposed action. Within 10 days after receipt of the notice, the registrant must give written notice to the executive director that he or she either waives the hearing or wants the hearing. Receipt of the notice is deemed to occur on the 10th day after the notice is mailed to the registrant's last reported address unless another date of receipt is reflected on a U.S. Postal Service return receipt. (A) If the registrant fails to request a hearing, the registrant is deemed to have waived the hearing, and a default order may be entered. (B) If the registrant requests a hearing within 10 days afte rreceiving the notice of opportunity for hearing, the executive director shall initiate formal hearing procedures in accordance with this section. (i) Final action. (1) If the council suspends a registration, the suspension remains in effect for the period of suspension ordered, or until the executive director or the council determines that the reasons for suspension no longer exist. The registrant whose registration has been suspended is responsible for securing and providing to the executive director such evidence, as may be required by the council, that the reasons for the suspension no longer exist. The executive director or the council shall investigate prior to making a determination. (2) During the time of suspension, the former registrant shall return all registration certificates to the council. (3) If a suspension overlaps a renewal period, the former registrant shall comply with the normal renewal procedures in these sections. The council may not renew the certificate until the executive director or the council determines that the reasons for suspension have been removed. (4) A person whose application is denied or whose registration certificate is revoked is ineligible to apply for registration under this Act for one year from the date of the denial or revocation. (5) Upon revocation or non-renewal, the former registrant shall return all certificates issued to the registrant by the council. The certificate(s) shall be returned to the council by certified mail, hand-delivered, or by a delivery service, within 30 days of request. (j) Appeal of a decision. A person may appeal a final decision of the council to exclude or remove the person from the registry by filing a petition for judicial review in the manner provided by the Government Code, Chapter 268, Article 1, sec.2001.176. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on 20, 1998. TRD-9811424 Collier M. Cole, Ph.D. Chairperson Council on Sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 SUBCHAPTER B.Criminal Background Check Security 22 TAC sec.sec.810.31-810.34 The new sections are adopted under Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act and sec.8 provides the council with the authority to adopt rules concerning the registration requirements and procedures for sex offender treatment providers on the registry. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811425 Collier M. Cole, Ph.D. Chairperson Council on sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 SUBCHAPTER C.Standards of Practice 22 TAC sec.sec.810.61-810.64 The new sections are adopted under Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act and sec.8 provides the council with the authority to adopt rules concerning the registration requirements and procedures for sex offender treatment providers on the registry. sec.810.62. Council Assertions. (a) Registrants shall: (1) be committed to community protection and safety; (2) not discriminate against clients with regard to race, religion, gender preference, or disability; (3) treat clients with dignity and respect, regardless of the nature of their crimes or conduct; (4) be knowledgeable of legal statutes and scientific data relevant to this area of specialized practice; (5) perform professional duties with the highest level of integrity, maintaining confidentiality within the scope of statutory responsibilities; (6) insure that the client fully understands the scope and limits of confidentiality in the context of his or her particular situation; (7) refrain from using professional relationships to further their personal, religious, political, or economic interest other than accepting customary professional fees; (8) not engage in sexual relationships with clients (sex between a mental health services provider and a client is a second degree felony in Texas); (9) fully inform clients in advance of fees for services; (10) refrain from knowingly providing treatment services to a client who is in treatment with another professional without initial consultation with the current registrant; (11) make appropriate referrals when the registrant is not qualified or is otherwise unable to offer services to a client; (12) insure that colleagues are qualified by training and experience before making a referral to them; (13) when withdrawing services, minimize possible adverse effects on the client and the community by continuing treatment until the client has been admitted elsewhere; (14) take into account the legal/civil rights of the clients, including the right to refuse treatment; (15) make no claims regarding the efficacy of treatment that exceed what can be reasonable expected and supported by empirical literature; (16) avoid drawing conclusions or rendering opinions that exceed the present level of knowledge in the field or the expertise of the evaluator; (17) attempt to resolve with the clinician and/or report to the appropriate licensing or regulatory authority unethical, incompetent, and dishonorable treatment or evaluation practices; and (18) display the address and telephone number of the council in all sites where sex offender treatment services are provided for the purpose of directing complaints to the council. (b) Registrants assert that: (1) community safety takes precedence over any conflicting consideration, and ultimately, is in the best interests of the offender and society; (2) inappropriate or unethical treatment damages the credibility of all treatment and presents an unnecessary risk to the community; (3) registrants shall have no history of criminal or sexually deviant acts; (4) criminal investigation, prosecution, and court orders for treatment may be components of effective intervention; (5) where practical, registrants should actively involve community supervision officers, child protective services workers, and victim therapists in case management; (6) a voluntary client accepted for treatment should be held to the same standards of compliance as are mandated sex offenders; (7) it is imprudent to release an untreated sex offender without providing offense-specific evaluation and treatment or specialized supervision; (8) without external pressure many sex offenders will not follow through in treatment. Internal motivation improves the prognosis, but is not a guarantee of success; (9) comprehensive assessment of the sex offender must precede treatment and includes issues addressed in sec.810.63 of this title (relating to Assessment and Evaluation Concerns); (10) sex offenders require comprehensive, long term, offense-specific treatment. Currently, cognitive-behavioral approaches that utilize sex offender peer groups may be the most effective and best evaluated methods of treatment. Self-help groups, drug intervention, or time limited treatment should be used only as adjuncts to more comprehensive treatment. For some sex offenders, incarceration without treatment may increase the risk of recidivism; (11) a written individualized treatment plan that identifies the issues, intervention strategies, and goals of treatment shall be prepared for each sex offender. Treatment plans should be reassessed periodically; (12) the treatment plan may include behavioral contracts which outline specific expectations of the sex offender, his/her family, and the sex offender's support systems. These contracts should include provisions to avert high risk situations. These contracts should be reassessed periodically; (13) progress, or lack thereof, should be clearly documented in treatment records. Specific achievements, failed assignments and rule violations should be recorded. This information should be provided to the appropriate supervising officer in the justice system; (14) progress in treatment must be based on specific, measurable objectives, observable changes, and demonstrated ability to apply changes in relevant situations. For most sex offenders, progress requires changes in the sex offender's behavior, attitudes, social and sexual functioning, cognitive processes, and arousal patterns. These changes should demonstrate increased understanding by the offender of his own deviant behavior, sensitization to the effects on a victim, and ability to seek and apply help; (15) when a sex offender has made the changes required in treatment, there should be a gradual and commensurate decline of intervention, support, and supervision following an offense-specific treatment program. Ongoing support to maintain changes made in treatment is necessary and aftercare and monitoring are desirable; (16) there will be instances when the registrant should refuse to treat a sex offender because essential ancillary resources do not exist to provide the necessary levels of intervention or safeguards; (17) the registrant has an ethical obligation to refer the client to a more comprehensive treatment program and/or to the judicial system, when the registrant determines that a sex offender is not making the changes necessary to reduce his/her risk to the community; (18) failure on the part of clients to abide by their treatment plans and/or contracts should result in referral back to the supervising officer in the justice system; (19) a registrant may decide to decline further involvement with a client who refuses to address any critical aspect of treatment; (20) registrants need to immediately notify the appropriate authority when a client drops out of court-ordered treatment; (21) most sex offenders enter the criminal justice system with varying degrees of denial regarding their behavior. Overcoming denial is a gradual process achieved in treatment. The existence of some degree of denial should not preclude an offender entering treatment, although the degree of denial should be a factor in identifying the most appropriate form and location of treatment; (22) sex offender treatment is unlikely to be effective unless the sex offender admits his/her behavior. Community based treatment may not be appropriate for sex offenders who continue to demonstrate complete denial after a trial period of treatment; (23) registrants should not rely exclusively on self report by the sex offender to assess progress or compliance with treatment requirements and/or probation or parole orders. Registrants should rely on multiple sources of information regarding the sex offender's behavior and when possible utilize physiological methods such as polygraph, Phallometric, and other research based physiological measurements; (24) physiological measures should not replace other forms of monitoring but may improve accuracy when combined with active surveillance, collateral verifications, and self-report. Phallometric assessment in Texas must be conducted by an order and under the supervision of a physician. Polygraph examinations should only be conducted by licensed examiners that meet the "Recommended Guidelines for the Clinical Polygraph Examinations of Sex Offenders" as developed by the Joint Polygraph Committee on Offender Testing (JPCOT); (25) polygraph can be effective in encouraging disclosure of prior events and adherence to rules. This procedure should never be the only method used to determine factual information; (26) Phallometric methods cannot be used to prove an individual did or did not, or will or will not commit a sexual offense. However, they can be useful in identifying sexual preferences and changes in preferences over time; (27) informed, voluntary consent should always be obtained prior to engaging clients in aversive conditioning; (28) if Phallometric assessment or aversive therapies are used with persons 15 years of age or younger, consent for such assessment and therapy should be obtained from the juvenile sex offender and written consent for such assessment and therapy should be obtained from the juvenile sex offender's parents, and the procedures should be reviewed by a multi-disciplinary professional or institutional advisory group. This is intended to insure that individuals not intimately involved in the treatment of the patient have input regarding the appropriateness of such methods consistent with the developmental level of the child; (29) individuals under age thirteen should not undergo Phallometric assessment or aversive therapies except in rare cases which must be approved by a multi- disciplinary advisory group; (30) in cases of intellectually handicapped sex offenders who are unable to give written consent, an interdisciplinary review and parental written consent are the ways to obtain permission to proceed with treatment; (31) removal of an intrafamilial sex offender against children from a residence in which children reside (instead of the children) is the preferred option; (32) treatment referrals should be offered to the non-offending spouse and children in cases where a parent has been removed and to the family where a juvenile sex offender has been removed; (33) if the sex offender has a history of sexual arousal to or reported fantasies of sexual contact with children, he or she should be restricted from having access to children. Supervised visits may be considered if: (A) it is determined that sufficient safeguards exist; (B) the sex offender has demonstrated control over his or her deviant arousal; (C) it does not impede the sex offender's progress in treatment; and (D) court mandated conditions do not prohibit such contact; (34) there is evidence to support family participation in the treatment of sex offender. Where feasible and appropriate, spouses and other family members should be included. Victims or vulnerable children should be excluded until such time as joint therapy is determined to be appropriate; (35) the registrant should make every effort to collaborate with the victim's therapist in making decisions regarding communication, visits and reunification. Registrants should be supportive of the victim's wishes regarding contact with the offender. Contact should be arranged in a manner that places child/victim safety first. When assessing child safety, both psychological and physical well- being should be considered. The registrant shall insure that custodial parents or guardians of the children have been consulted prior to authorizing contact and that contact is in accordance with Court directives; and (36) if reunification is deemed appropriate, the process should be closely supervised. There must be provisions for monitoring behavior and reporting rule violations. Victim comfort and safety should be assessed on a continuing basis. The registrant should recognize that supervision during visits with children is critical for those whose crimes are against children, or who have demonstrated the potential to abuse children. Caution should be taken when selecting and preparing visitation supervisors. sec.810.63. Assessment and Evaluation Concerns. (a) The evaluation focuses on both the risks and needs of the sex offender, as well as identifying factors from social and sexual history which may contribute to sexual deviance. Evaluations provide the basis for the development of comprehensive treatment plans and should provide recommendations regarding the intensity of intervention, specific treatment protocol needed, amenability to treatment, as well as the identified risk the sex offender presents to the community. There is no known set of personality characteristics that can differentiate the sex offender from the non-sex offender. Psychological profiles cannot be used to prove or disprove an individual's propensity to act in a sexually deviant manner. (b) The following standards were largely adapted from a publication of the Association for the Treatment of Sexual Abusers entitled, Ethical Standards and Principles for the Management of Sexual Abusers, Revised 1997. Evaluations shall precede treatment. In preparing evaluations of sex offenders, registrants are expected to: (1) be fair and impartial, providing objective and accurate data; (2) respond only to referral questions that fall within the evaluator's expertise and present level of knowledge; (3) be respectful of the client's right to be informed of the reasons for the evaluation and the interpretation of data, as well as the basis for recommendations and conclusions; (4) be aware of the client's legal status; (5) be mindful of the limitations of client's self-report and make all possible efforts to verify the information provided by the client; (6) use evaluative procedures and techniques sufficient to respond to the presenting issues, as well as to provide appropriate substantiation for the resulting conclusions and recommendations; (7) acknowledge if an evaluation consisted of only a review of data, with no client contact, and clarify the impact that limited information has on the reliability and validity of the resulting report; (8) provide informed consent, releases and/or limit of confidentiality documents in written form and employ verbal explanations for non-readers; (9) if the client is a juvenile or incapable of giving written consent for any other reason, obtain written consent for testing, evaluation and information exchange from the appropriate guardian. Assent from the individual being evaluated should be obtained whenever possible; (10) thoroughly review written documentation and collateral interviews. This involves gathering and reviewing information from all available and relevant sources, including: (A) criminal investigation records; (B) child protection service investigations; (C) previous evaluations and treatment progress reports; (D) mental health records and assessments; (E) medical records; (F) correctional system reports; (G) probations/parole reports; (H) offense statements from sex offender; and (I) offense statements from victim; (11) whenever possible, interview the client's significant other and/or family of origin; (12) cautiously interpret evaluation conducted without collateral information; (13) list and acknowledge in a written report evaluation procedure summaries, conclusions, recommendations, and all collateral reports and interviews; (14) re-interviews of victims should not be used for the purpose of gathering information during the sex offender's evaluation; and (15) keep the sex offender and victim interview and evaluation processes separate. If that is not possible, the evaluator must be extremely vigilant to avoid bias. (c) The evaluation procedures may include: (1) clinical review; (2) paper/pencil testing; (3) intellectual assessment; and (4) physiological assessments. (d) Information gathered in the evaluation process includes, but is not limited to: (1) intellectual and cognitive functioning; (2) mental status; (3) medical history of head injuries, physical abnormalities, enuresis, encopresis, current use of medication, allergies, accidents, operations, and major medical illnesses; (4) self-destructive behaviors, self mutilation and suicide attempts; (5) psychopathology and personality characteristics; (6) family history; (7) history of victimization; physical, emotional and/or sexual; (8) education and occupation history; (9) criminal history, both sexual and non-sexual; (10) history of violence and aggression including use of weapons; (11) interpersonal relationships, both past and current; (12) cognitive distortions; (13) social competence; (14) impulse control; (15) substance abuse; (16) denial, minimization and inability to accept responsibility; (17) sexual behavior, including sexual development, adolescent sexuality and experimentation, dating history, intimate sexual contacts, gender identity issues, adult sexual practices, masturbatory practices, sexual dysfunction, fantasy content, and sexual functioning; and (18) sexually deviant behavior, including description of offense behaviors, number of victims, gender and age of victims, frequency and duration of abusive sexual contact, victim selection, access, and grooming behaviors, use of threats, coercion or bribes to maintain victim silence, degree of force used before, during and/or after offense, and sexual arousal patterns. (e) Registrants will subscribe to the following tenets regarding client assessment. (1) The comprehensive assessment of the client's sexually deviant behavior is specific to the evaluation of the sex offender. (2) It is important to be sensitive to the individual's cognitive functioning, including reading and writing capabilities, prior to arranging the battery of testing instruments. (3) If a client cannot read at the level necessary to comprehend the test questions, arrangements for using a standardized approved auditory (taped or read) version of the test instrument should be made, to the extent such versions are available. (4) The clinical interview must incorporate sufficient discussion necessary to augment, clarify and explore the information obtained from the review of collateral materials (and interviews), as well as the other components of the evaluation (testing results, etc.). (5) It is important to note the degree of similarity or disparity between the abuser and the victim's statements. (6) The client's explanations for false allegations should be documented. (7) Assessment of treatment needs should identify strengths and weaknesses in the individual's sociosexual functioning for the purpose of directing treatment efforts to the appropriate areas. (8) Both community safety and the degree to which a sex offender is capable and willing to manage risk should be considered when generating recommendations. (9) A thorough evaluation should be completed prior to a sex offender being accepted into a community based treatment program. (A) If a significant amount of time has lapsed between the completions of the evaluation and when the individual applies for acceptance into a treatment program, an evaluation update is required. (B) The intent of the update should not be to duplicate the original evaluation, but to gather current data upon which the original treatment plan can either be confirmed or amended. (10) A sex offender treatment provider should never recommend an inadequate treatment program or level of risk management because existing resources limit or preclude adequate or appropriate services. sec.810.64.Issues To Be Addressed In Treatment. (a) During the decade preceding 1995, the field of sex offender evaluation and treatment has undergone many changes. Research and clinical reports have begun to demonstrate that a number of treatment methods may be effective in reducing some forms of sexual deviance. (b) Although existing data are inadequate to determine which type of treatment is the most effective for which type of sex offender, the following treatment methods generally are accepted as those most important to the effective treatment of sexual deviancy. (1) Arousal Control. Control of deviant arousal, fantasies, and urges is a priority with most sex offenders. Fantasy and sexual arousal to fantasy are precursors to deviant sexual behavior. It should be assumed that most offenders have gained sexual pleasure from their specific form of deviance. Arousal control methods do not eliminate but only help control arousal. It is therefore necessary that clients learn to apply these techniques in everyday situations, without reliance on a special apparatus. Arousal control may require periodic "booster" sessions for the remainder of the client's life. Effective arousal control must also include methods to control spontaneous deviant fantasies and to minimize contact with stimulating objects or persons. Arousal control should proceed from the most effective methods for reducing arousal to less effective methods. To document changes in arousal control, physiological measurement is essential. Multiple measures over time are required to determine change reliability. (2) Cognitive Therapy. Cognitive distortions are thoughts and attitudes that allow offenders to justify, rationalize, and minimize the impact of their deviant behavior. Cognitive distortions allow the offender to overcome prohibitions and progress from fantasy to behavior. These distorted thoughts provide the sex offender with an excuse to engage in deviant sexual behavior, and serve to reduce guilt and responsibility. Cognitive therapy strives to identify, assess, and modify cognition's that promote sexual deviance. Cognitive therapy is considered a vital component of treatment. (3) Relapse Prevention. Current knowledge of deviant sexual behavior suggests that there is a series of behaviors, emotions, and cognition's that is identifiable and which precede deviant sexual behavior in a predictable manner. The ability to accurately identify these maladaptive behaviors is a primary goal for every offender in treatment. Autobiographies, offense reports, interviews and cognitive-behavioral chains are used to identify antecedents to offending. The ability to intervene can be enhanced by training primary partners and other support persons to recognize maladaptive behaviors and to encourage application of proper coping behaviors. (4) Victim Empathy. Although there is no clear evidence to suggest that all sex offenders can gain true empathy for victims of abuse, a universal goal of treatment is to learn to understand and value others. Highlighting the consequences of victimization helps sensitize the offender to the harm he or she has done. The use of analogous experiences has been shown to be effective especially with adolescents. (5) Biomedical Approaches. Intervention with psychopharmacological agents is useful in select cases. Antiandrogens such as depo-provera act by reducing testosterone and may be helpful in controlling arousal and libido when these factors are undermining progress in therapy or increasing the risk of re- offending before significant progress can be made in the cognitive aspects of therapy. Antidepressants and medications targeting obsessive compulsive symptoms are also useful in some individuals where those symptoms play a role in the overall psychodynamic picture. Likely candidates are those who are predatory, violent, have had prior treatment failures, and report an inability to control deviant sexual arousal. Use of these agents should never be the only method of treatment. (6) Increasing Social Competence. Sex offenders often have deficits in basic social and interpersonal skills. They may lack the ability to develop and sustain reciprocal friendships. Many sex offenders are poor problem-solvers, lack assertiveness, and do not adequately manage anger or stress. One goal of treatment is to improve the offender's ability to deal effectively with social situations and develop meaningful relationships with others. (7) Improving Primary Relationships. Failure to develop and maintain a reciprocal, living sexual relationship with an adult partner may lead one to seek out alternative sexual outlets. Identifying specific sexual dysfunctions, sex therapy, and training in dating skills and erotic techniques may be necessary to develop a functional lifestyle. Failure to involve the current partners in therapy often leads to the same stresses and failure in the relationship that precipitated the sexual deviancy. (8) Couples/Family Therapy. To facilitate transition of the sex offender's partner into therapy a variety of treatment modalities are recommended. Individual therapy, non-offending spouses groups, and/or parents of victims groups prepare the partner for the issues and methods involved in sex offender treatment. Marital therapy or couples group therapy focused on sexual offending is essential in cases where a sex offender is to return home. If an offender is to eventually to live in a home where victims or children reside, a predetermined integration sequence should be followed which addresses role and boundary issues. This should include close supervision and a variety of safeguards for the protection of children. (9) Support Systems. Involvement of close friends and family in therapy provides the offender with a milieu in which support is available. Part of the transition to follow-up is a reduction in group and individual therapy. To compensate for this loss of support and surveillance, the support system should assist the offender in avoiding and coping with antecedents to sexual deviance. The support system should include individuals from the offender's daily life (i.e., family, friends, co-workers, church members, and extended family). (10) Comorbid Diagnosis. In some sex offenders there are sufficient signs and symptoms to merit an additional diagnosis by DSM IV criteria. These diagnoses can be anywhere in the entire spectrum of psychiatric disease. The most common are alcohol abuse, substance abuse and affective disorders. Treating an alcohol or substance problem should not be assumed to make sex offender treatment unnecessary. Occasionally, the delusions and hallucinations of schizophrenia will be associated with the individual committing sexual offenses. The comorbid diagnoses should be treated with the appropriate therapies concomitantly with the treatment for sex offending behavior except in the case of schizophrenia where the antipsychotic therapy would obviously take precedence. (11) Follow-up Treatment. A therapeutic regime that includes follow-up significantly increases the likelihood that gains made during treatment will be maintained. In order for new habits and skills to be reinforced and to monitor compliance with treatment contracts, follow-up treatment should involve periodic "booster" sessions to reinforce and assess maintenance of positive gains made during treatment. This can be facilitated by involving the support group, and using polygraph and Phallometric assessment. Input from support group members, polygraph examinations, and Phallometric assessments may serve to deter future offenses or alert therapists to problems. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811426 Collier M. Cole, Ph.D. Chairperson Council on sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 SUBCHAPTER D.Code of Professional Ethics 22 TAC sec.sec.810.91-810.92 The new sections are adopted under Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act and sec.8 provides the council with the authority to adopt rules concerning the registration requirements and procedures for sex offender treatment providers on the registry. sec.810.92. Code Of Ethics. (a) Professional Conduct. (1) Each registrant will provide professional service to anyone, regardless of race, religion, sex, political affiliation, social or economic status, or choice of life style. A registrant will not allow personal feelings related to a client's alleged or actual crimes or behavior to interfere with professional judgment and objectivity. When a registrant cannot offer service to a client for any reason, he or she will make a proper referral. Registrants are encouraged to devote a portion of their time to work for which there is little or no financial return. (2) Each registrant will refrain from using his or her professional relationship, related to the assessment or treatment of a client, to further personal, religious, political or economic interests, other than customary professional fees. (3) The proper conduct of each registrant is a personal matter to the same degree as it is with any other individual, except when such conduct compromises the fulfillment of professional responsibilities or reduces the public trust in this specialty area. Consequently, registrants are sensitive to predominant community standards and the potential impact that either conformity to, or deviation from these standards can have on the perception of their own performance, as well as that of their colleagues. (4) Each registrant has an obligation to engage in continuing education and professional growth including active participation in meetings and affairs or relevant professional affiliations. (5) Each registrant will refrain from diagnosing, treating or advising on problems outside the recognized boundaries of his/her competence. (b) Client Relationships. (1) Each registrant, offers dignified and reasonable support to a client, and does not exaggerate the efficacy of his or her service. (2) When engaged in private practice, each registrant recognizes the importance pertaining to financial matters with clientele. Arrangements for payments are to be settled at the beginning of an assessment or a therapeutic relationship. (3) Each registrant shall avoid dual relationships with clientele. These may impair professional judgment or pose a risk of exploiting the client. Examples of dual relationships include, but are not limited to, the following: treatment of family members, close friends, employees, supervisors, or supervisees. (4) Sexual harassment or intimacy with clients is unethical. Sexual behavior between a registrant and a client constitutes a felony offense in Texas. (5) A registrant shall not withdraw services to clients in a precipitous manner. Each member shall give careful consideration to all factors in the situation and take care to minimize possible adverse effects on the client. (6) Each registrant who anticipates termination or disruption of service to clients shall notify the clients promptly and provide for transfer, referral, or continuation of service in keeping with the client's needs and preferences. (7) Each registrant who serves the clients of a colleague during a temporary absence or emergency will serve those clients with the same consideration of that afforded any client. (8) In their professional role, registrants will avoid any action which will violate or diminish the legal and civil rights of clients or others who may be affected by their actions. (c) Confidentiality. (1) Registrants will keep records on each client, storing them in such a way as to ensure their safety and confidentiality in accordance with the highest professional and legal standards. (2) Each registrant is responsible for informing clients of the limits of confidentiality. Clients should be informed of any circumstances which may trigger an exception to the agreed upon confidentiality. (3) Registrants in criminal justice settings, or elsewhere, should inform all parties with whom they are working of the level of confidentiality which applies. They should clarify any circumstances which would constitute exceptions to confidentiality, in advance of the service being rendered. Each registrant should make clear to the client any "conflict of interests" or dual-client relationships which affect his/her current relationship with a client. (4) Written permission and informed consent shall be granted by the client before any data may be divulged to other parties. (5) When responding to an inquiry for information and when a written release by the client is obtained, written and oral reports should present data germane to the purpose of the inquiry. Every effort should be made to avoid undue invasion of privacy for the client or other related person. (6) As noted above, information is not communicated to others without the written consent of the client unless the following circumstances occur. (A) There exists a clear and immediate danger to the person from the client. (B) There is an obligation to comply with specific statutes requiring reports of suspected abuse to authorities. Each registrant is responsible for becoming fully aware of all statutes which pertain to the conduct of his or her professional practice. (d) Assessments. (1) Registrants make every effort possible to promote the client's non-offending behavior while at the same time, acting in the best interest of the client, so long as others are not placed at identifiable risk. They guard against the misuse of assessment data. They respect their client's rights to know the results, the interpretations made, and the basis for the conclusions and recommendations drawn from such assessments. They endeavor to ensure that the assessment and reports they provide are used appropriately by others as well. Reports are written in such a way to communicate clearly to the recipient of the report. (2) Unless the client agrees to an exception in advance, each registrant respects the right of the client to have a complete explanation, in language which the client is able to understand, of the nature and purpose of the methodologies, and any foreseeable (side) effects of the assessment. (3) Each registrant will obtain voluntary informed consent, in written form, from a client prior to conducting a physiological assessment or engaging in treatment. In cases where a question exists regarding the appropriateness of administering a test to a particular client, the registrant shall seek expert guidance from a competent medical and/or psychological authority prior to testing. (4) In court-ordered evaluations, the client should be informed of his rights as a client, including his rights of confidentiality. (5) The responsible use of assessment measures is of paramount concern and a serious responsibility of each registrant. Assessments regarding a person's degree of sexual dangerousness, suitability for treatment, or other forensic referral questions shall not be determined solely on the basis of a Phallometric assessment. Rather, such data must be properly integrated within a comprehensive assessment, the components of which are determined by a person who has specific training and expertise in making such assessments. (6) An assessment should not be used to confirm or deny whether an event or crime has taken place. (7) In reporting assessment results, registrants indicate any reservations that might exist regarding validity or reliability because of the circumstances of the assessment or the absence of comparative norms for the person being tested. Each registrant endeavors to ensure that assessment results and interpretations are not misunderstood or misused by others. Proper qualifications will be made with regard to prediction and "generalizability of data" issues, in order to not mislead the consumer of the report. (8) Since it is not within the professional competence of registrants to offer conclusions on matters of law, unless they are trained to do so, they should resist pressure to offer such conclusions (e.g., while it would be appropriate to address an issue regarding the probability of a client committing certain criminal acts within a certain period of time, it would be inappropriate to state that "an individual is too dangerous to be released"). (9) Each registrant should be very cautious in offering predictions of criminal behavior for use in imprisoning or releasing individuals. If a registrant decided that it is appropriate, on the basis of a thorough evaluation in a given case, to offer a prediction of criminal behavior, he or she should specify clearly: (A) the acts being predicted; (B) the estimated probability that these acts will occur during a given period of time; and (C) the facts and data on which these predictive judgments are based. (10) Each registrant should be thoroughly familiar with the assessment or treatment procedures and data used by another registrant before providing any public comment or testimony pertaining to the validity, reliability, or accuracy of such information. (11) Each registrant will safeguard sexual arousal assessment testing and treatment materials. Each registrant will recognize the sensitivity of this material and use it only for the purpose for which it is intended in a controlled Phallometric laboratory assessment. Registrants will not make such materials available to persons who lack proper training and credentials, or who would misinterpret or improperly use such stimulus materials. (e) Professional Relationships. (1) Each registrant will refrain from knowingly offering treatment services to a client who is in treatment with another professional without initially consulting with the professionals involved. (2) Each registrant will act with proper regard for the needs, special competencies, and perspectives of not only colleagues who treat sex offenders but other professionals as well. (3) Each registrant is encouraged to affiliate with professional groups, clinics, or agencies operating in the assessment and treatment of sex offenders. Similarly, interdisciplinary contact and cooperation is encouraged. (f) Research and Publications. (1) Each registrant is obligated to protect the welfare of his or her research subjects. Provisions of the "human subjects experimental policy" shall prevail as specified by the United States Department of Health, Education and Welfare guidelines. (2) Each registrant will carefully evaluate the ethical implications of possible research and has full responsibility to ensure that ethical practices are enforced in conducting such research. (3) The practice of informed consent person prevails. The research participant shall have full freedom to decline to participate in or withdraw from the research at any time without any prejudicial consequences. (4) The research subject shall be protected from physical and mental discomfort, harm, and danger that may result from research procedures to the greatest degree possible. (5) Publication credit is assigned to those who have contributed to a publication in proportion to their contribution, and in accordance with customary publication practices. (g) Public Information and Advertising. All professional presentations to the public will be governed by the following standards on public information and advertising. (1) General Principles: The practice of assessment and treatment of the sex offender exists for the public welfare. Therefore, it is appropriate for registrants to inform the public of the availability of services. However, much needs to be done to educate the public as to the services available from qualified persons who engage in the assessment and treatment of sex offenders. Therefore, registrants have a responsibility to the public to engage in appropriate informational activities and avoid misrepresentation or misleading statements in keeping with the following general principles and specific regulations: selection of a registrant by a prospective client should be made on an informed basis. Advice and recommendations of third parties, such as community corrections officers, attorneys, physicians, other professionals, relatives or friends, as well as responses to restrained publicity, may be helpful. Advertisements and public communications, whether in directories, announcement cards, newspapers or on radio or television, should be formulated to convey accurate information which is necessary to make an appropriate selection. Self-praising and testimonials should be avoided. Information that may be helpful in some situations would include the following: (A) office information such as name, including a group name and names of professional associates, address, telephone number, credit card acceptability, languages spoken and written, and office hours; (B) only earned degrees from an accredited college or university, state licensure and/or other certification, professional certification or affiliation; (C) description of practice, including the statement that a practice is limited to the assessment or treatment of sex offenders (if appropriate); and (D) professional fee information. (2) The proper motivation for community publicity by members who are engaged in the assessment and treatment of sex offenders lies in the need to inform the public of the availability of competent professionals. The public benefit derived from advertising depends upon the usefulness and accuracy of the information provided to the community to which it is directed. (3) The regulation of public statements by registrants is rooted in the public interest. Public statements through which a registrant seeks business by use of extravagant or brash statements or appeals to fears could mislead or harm the lay person. Furthermore, public communications that would produce unrealistic expectations in particular cases and would bring about a lack of confidence in the profession, would be harmful to the community. The therapist-client relationship is personal and unique and should not be established as the result of pressures, deception or exploitation of the vulnerability of clients. (4) The name under which a registrant conducts his or her practice may be a factor in the selection process. Use of a name or credentials which could mislead referral sources or lay persons is improper. Likewise, a registrant should not hold oneself out as being a partner or associate of any agency or firm if he is, in fact, not acting in that capacity (e.g., a person engaged in private practice who is also employed at a state hospital should make it clear to a prospective client in private practice that he is not acting on behalf of a state hospital). (5) In order to avoid the possibility of misleading persons with whom he or she deals, a registrant should be scrupulous in the representation of his or her professional background, training and status. Each registrant must indicate, if it is accurate, any limitations in his or her practice (e.g., an ASOTP should specify that he/she must operate under the supervision of a RSOTP). (6) Registrants shall not represent their affiliation with any organization or agency in a manner which falsely implies sponsorship or certification by that organization. (7) Registrants shall not knowingly make a representation about his or her ability, background, or experience, or about that of a partner or associate, or about a fee or any other aspect of a proposed professional engagement that is false, fraudulent, misleading, or deceptive. A false, fraudulent, misleading, or deceptive statement or claim is defined as a statement or claim which: (A) contains a material misrepresentation of fact; (B) omits any material or statement of fact which is necessary to make the statement, in light of all circumstances, not misleading; or (C) is intended or likely to create an unjustified expectation concerning the registrant, or services. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811427 Collier M. Cole, Ph.D. Chairperson Council on sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 TITLE 25. HEALTH SERVICES PART I. Texas Department of Health CHAPTER 1. Texas Board of Health SUBCHAPTER S. Requests for Providing Public Information The Texas Department of Health (department) adopts the repeal of sec.sec.1.251- 1.255 and new sec.1.251, concerning procedures for handling requests for public information, without changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4178), and therefore the sections will not be republished. Specifically the new section describes how the department will handle requests for public information under the Public Information Act, Government Code, Chapter 552 (Act). The repeal is necessary because some of the existing language is replaced by or clarified in new sec.1.251 and other existing language has been moved into the department's written policy on charges for records under the Act. Until September 1, 1997, sec.552.2611 of the Act required that charges for public records by a state agency be specified in rules. That section was repealed by Acts 1997, 75th Legislature (House Bill 951); therefore, the department's rules on charges are no longer required and charges may be addressed adequately through department policy. The new section complies with Acts 1997, 75th Legislature, (House Bill 951), which amended the Government Code, Chapter 552 relating to costs of copies when responding to requests for public information. The section allows the department to honor verbal requests for public information under special circumstances. The section requires that the program handling the request have the records ready for inspection or copies duplicated within 10 business days after the date the department received the request. It explains the compulsory actions to be taken if the program is unable to meet this requirement. It explains that the department has set forth in its operating procedure the terms under which it requires a deposit and prepayment for public information requested. The section establishes that when prepayment is required, that failure of the requestor to pay the costs of the copies within the time limitation set by the program is deemed a withdrawal of the request for information. No public comments were received on the proposed repeal of sec.sec.1.251-1.255 and proposed new sec.1.251. 25 TAC sec.sec.1.251-1.255 The repeal is adopted under the Public Information Act, Government Code, Chapter 552, relating to requests for public information and the Health and Safety Code, sec.12.001, which provides the Board of Health (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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811400 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 9, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 25 TAC sec.1.251 The new section is adopted under the Public Information Act, Government Code, Chapter 552, relating to requests for public information and the Health and Safety Code, sec.12.001, which provides the Board of Health (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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811399 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 9, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 CHAPTER 91. Cancer The Texas Department of Health (department) adopts the repeal of sec.sec.91.1 - 91.7 and new sec.sec.91.1 - 91.14, concerning reporting of cancer and other precancerous or tumorous disease incidence data to the department or its authorized representatives. Sections 91.1 - 91.5, 91.7 - 91.9, 91.11, and 91.13 are adopted with changes to the proposed text as published in the February 20, 1998, issue of the Texas Register (23 TexReg 1467). Sections 91.6, 91.10, 91.12, and 91.14 and the repealed sec.sec.91.1-91.7 are adopted without changes, and therefore the sections will not be republished. The repeal is necessary to delete obsolete requirements and provisions. The new sections are needed to implement Health and Safety Code, Chapter 82 (the Cancer Incidence Reporting Act) and to meet requirements of a grant funded by the United States Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) which provides for the support of a statewide population-based cancer registry that meets standards for completeness, timeliness, and quality of cancer registry data. Enforcement of these sections will result in the availability of timely, statewide cancer incidence data for use in cancer prevention and control efforts in the State. The department is making the following changes due to staff comments and to verbal comments from the same organizations which submitted written comments, to clarify the intent and improve the accuracy of the section. Change: Concerning sec.91.1, the department deleted the word "to" in reference to participation in the national program of cancer registries. Change: Concerning sec.91.1, the department added "these sections" and deleted "this section". Change: Concerning sec.91.2, in the definition of Quality control, the department replaced the word "control" with "assurance" in reference to quality assurance of information. Change: Concerning sec.sec.91.4(b)(2)(C) and 91.11(b), the department replaced the word "control with "assurance" in reference to quality assurance of information. Change: Concerning sec.91.3 and sec.91.8(a), the department changed the section title from "Who Shall Report" to "Who Reports". Change: Concerning deletion of sec.91.3(g), the department divided this into subsection (e) to clarify who shall report and who should report which now reads "All hospitals, cancer treatment centers and clinical laboratories providing diagnosis or treatment services to patients with cancer shall grant the department or its authorized representative access to all records which would identify cases of cancer or would establish characteristics of the cancer, treatment of cancer, or medical status of any identified cancer patient."; and subsection (f) which now reads "All physicians, ambulatory surgical centers, outpatient clinics, nursing homes, hospices, and other facilities, individuals or agencies providing diagnosis or treatment services to patients with cancer should grant the department or its authorized representative access to all records which would identify cases of cancer or would establish characteristics of the cancer, treatment or medical status of any identified cancer patient." Change: Concerning sec.91.5, the department changed "are to" to "shall" and added a sentence which clarifies timely reporting. Change: Concerning sec.91.5(b), the department changed "should" to "shall" for consistency within sections. Change: Concerning sec.91.7, the department combined subsections (a) and (b) into (a) and added the phrase "designated to receive data from" for clarification of "where to report" forms. Subsection (c) was changed to subsection (b). Change: Concerning sec.91.9, the department moved the phrase "ambulatory surgery center" and changed the word "surgery" to read "surgical" to be consistent with the definition for ambulatory surgical centers. The following comments were received concerning the proposed sections. Following each comment is the department's response and any resulting changes. Comment: Concerning sec.91.3, one commenter questioned the department's authority to require the reporting of required cancer data from ambulatory surgical centers, physicians or other health professionals. The commenter suggested that the department delete the reporting requirements for these professionals and facilities. Response: The department agrees with the commenter in that Texas Health and Safety Code sec.82.008 only specifies that each hospital, cancer treatment center and clinical laboratory shall report and has modified sec.91.3(c) to change "shall" report to "should" report, deleted "ambulatory surgical center" from sec.91.3(a) and added "each ambulatory surgical center" to sec.91.3(c). For completeness of cancer data, the department strongly recommends the reporting of cancer information by ambulatory surgical centers, physicians or other health professionals for patients that are not diagnosed or treated elsewhere. Comment: Concerning sec.91.3(e) and (f), two commenters noted that the department could assess reporting costs, late fees, legal and other associated enforcement costs against hospitals, facilities and individuals failing to report the required data but questioned the department's statutory authority to assess penalties and to award attorney's fees and costs, noting that the current law and rules contain a reimbursement provision for reporting of data based on the availability of funds. One commenter stated "the current rules provide a positive mechanism for assuring compliance, where the proposed rules provide a punitive method for collecting cancer data." This commenter further stated that the proposed rules represent an abrupt change from a reimbursed, voluntary reporting system to a mandatory reporting system with a cost-recovery method to access cancer information from facilities failing to report. One of the commenters stated "If the legislature's appropriations to the registry are inadequate, the department should apply the federal grant funds it receives to cover the remaining costs of data collection." Response: The department agrees in part and disagrees in part with the commenters. Health and Safety Code Chapter 82 and sec.91.4 of the current rules do provide for a reasonable amount for compensation to facilities for data collection and reporting, within the limits of funds appropriated expressly for that purpose. Since September, 1987, no such funds have been appropriated for this data collection and reporting. The department disagrees with the commenter regarding the department's statutory authority to recover costs for collection of unreported data and the assessment of fees. sec.sec.12.031-12.032 provide the Texas Board of Health with the authority to charge fees for public health services. A fee is not punitive and only cost is recovered. In addition, although the legal provision existed to reimburse facilities for reporting, upon the availability of funds, the reporting system was mandated by the Cancer Incidence Reporting Act (Chapter 82) and is not a voluntary system. In reference to applying federal grant funds for data collection, the monies awarded by the CDC are designated for enhancement of the registry infrastructure and not for on-going data collection. No changes were made in the proposed rules as a result of these comments. Comment: Concerning sec.91.3, one commenter stated "the department should coordinate its reporting requirements with those of the American College of Surgeons (ACoS) to facilitate the reporting process for hospitals, cancer treatment centers and clinical laboratories. Response: The department agrees in part and disagrees in part. We do coordinate reporting to the extent possible, however; not all reporting facilities are ACoS accredited. We will continue to work with ACoS, the Commission on Cancer and providers to assure complete reporting. No changes were made as a result of this comment. Comment: Concerning sec.91.3, one commenter stated that the impact of the extensive data collection has been seriously underestimated and that the real burden will fall on Texas physicians, clinical laboratories and hospitals as a result of these rules. Response: The department agrees in part with the commenter. Physicians are not required to report under changes made to the proposed rules. The legislature has determined that reporting is mandatory for hospitals, cancer treatment centers and clinical laboratories without provision of funds for reimbursement. No additional changes were made as a result of this comment. Comment: Concerning sec.91.4, one commenter stated that she was "unclear as to what the department hopes to gain above and beyond the ICD-9-CM coding system which was created for statistical purposes." Response: The department disagrees with the commenter. For the purposes of the Cancer Registry, the ICD-9-CM codes are insufficient and additional information is needed to adequately classify a cancer case. No changes were made in the proposed rules as a result of this comment. Comment: Concerning sec.91.3, three commenters stated that the number of people and/or institutions required to report is overly broad and will result in multiple and repeated reporting from consecutive providers of care. One commenter stated that "the department should revise the proposed amendments to determine a single responsible party for the one-time reporting of cancer cases". Response: The department disagrees with the commenters. It is impossible to identify a single source for reporting because significant unique pieces of cancer information are received from each reporter. These pieces of information are combined to make a complete cancer case. No changes were made in the proposed rules as a result of these comments. Comment: Concerning sec.91.4, three commenters stated that the amount of information proposed to be collected is too extensive. One of the commenters stated that the collection of text documentation to support coded information for morphology, primary site, stage and treatment and collection of four data items (reason for no surgery, reason for no radiation therapy; reason for no chemotherapy; and reason for no hormonal therapy) would be difficult to ascertain and code and double the amount of time currently required to code a medical record. This commenter stated that for larger institutions where data quality is an integral part of daily operations, the collection and submission of text data fails to improve or validate quality. Another commenter stated that for the reporting of patient race, Spanish ethnicity and birthplace, many hospitals, clinical laboratories and cancer treatment centers currently do not collect this information from patients or would feel uncomfortable doing so. This commenter stated that these data elements should be deleted or in the alternative reported "to the extent such information is available from the medical record." Response: The department agrees with the commenters and has amended sec.91.4(b)(1)(B), (E) and (F) of the final rules. Comment: Concerning sec.91.4, two commenters stated that with the mandatory reporting of the designated data fields, additional staff must be devoted to cancer data reporting. One of the commenters stated that "these costs will easily exceed the $7 per case reported and 30 minute reporting times, resulting in massive financial and administrative burden on Texas health care providers and facilities". Response: The department agrees in part and disagrees in part with the commenters. Section 91.4 was changed to reduce the number of required reportable data items. In reference to cost, these estimates were derived from our own experience and represent what the department felt was reasonable. Comment: Concerning sec.91.8, two commenters stated that compliance and notification issues may not be sufficiently addressed in the proposed rules. Particular concerns of these commenters were: the steps to be followed if a provider fails to submit data; whether the provider will be given an opportunity to comply prior to the department collecting the data; the amount of time for notification prior to the department's arrival; the process and time frame for the department to review the provider's medical records; and, if approved, how the department intends to notify providers of the new rules. Response: The department agrees with the commenters and to address these issues has changed the existing sec.91.8 to become subsection (a), added sec.91.8(b), changed sec.91.3(e) and (f) and moved them to become sec.91.8(c) and (d), respectively. Providers who shall report will be notified of the new rules by mail and the rules will be posted on the Cancer Registry's website. Comment: Concerning sec.91.10, two commenters expressed concerns about protecting patient confidentiality. These comments included what steps will be taken by the department to protect patient confidentiality and how new federal recommendations regarding confidentiality of individually identifiable health information will affect these data. Response: The department disagrees with the commenters. Federal standards on the confidentiality of medical records are not yet final. However, the department believes the protections now afforded the registry data is adequate. No changes were made as a result of these comments. The comments on the proposed rules were submitted by six groups: the Texas Hospital Association, the Texas Medical Association, Baylor Health Care System, M. D. Anderson Cancer Center, Physician Reliance Network and Summit Hospital. The commenters were generally in favor of the proposed rules but requested a delay in their adoption to allow for further discussion of sections of concern. The department staff met with representatives of the commenters and discussed on several occasions the rules via telephone and telephone conference calls. Comments were also submitted by, and minor errors corrected by the department's staff. SUBCHAPTER A. Cancer Registry 25 TAC sec.sec.91.1-91.7 The repeal is adopted under Health and Safety Code sec.82.006 which provides the department with the authority to adopt rules necessary to implement Chapter 82 (Cancer Registry); sec.81.004 which provides the Texas Board of Health (board) with the authority to administer Chapter 81 for protecting the public's health and preventing the introduction of disease in the state; sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 17, 1998. TRD-9811337 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 6, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 458-7236 25 TAC sec.sec.91.1-91.14 The new sections are adopted under Health and Safety Code sec.82.006 which provides the department with the authority to adopt rules necessary to implement Chapter 82 (Cancer Registry); sec.81.004 which provides the Texas Board of Health with the authority to administer Chapter 81 for protecting the public's health and preventing the introduction of disease in the state; sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health; and sec.sec.12.031-12.032 which provides the Texas Board of Health with the authority to charge fees for public health services. sec.91.1. Purpose. These sections implement the Texas Cancer Incidence Reporting Act, Health and Safety Code, Chapter 82, which authorizes the Texas Board of Health to adopt rules concerning the reporting of cases of precancerous and tumorous diseases and cancer for the recognition, prevention, cure, or control of those diseases, and facilitate participation in the national program of cancer registries established by 42 United States Code sec.sec.280e to 280e-4. Nothing in these sections shall preempt the authority of facilities or individuals providing diagnostic or treatment services to patients with cancer to maintain their own facility based tumor registries. sec.91.2. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. (1) Act - The Texas Cancer Incidence Reporting Act, Texas Health and Safety Code, Chapter 82. (2) Ambulatory surgical center - A facility licensed under the Texas Health and Safety Code, Chapter 243. (3) Board - Texas Board of Health. (4) Cancer - Includes a large group of diseases characterized by uncontrolled growth and spread of abnormal cells; any condition of tumors having the properties of anaplasia, invasion, and metastasis; a cellular tumor the natural course of which is fatal; and malignant neoplasm. (5) Cancer reporting handbook - The division's manual for cancer reporters which documents reporting procedures and format. (6) Cancer treatment center - A special health facility devoted to the study, prevention, diagnosis, and treatment of neoplastic and allied diseases. (7) Clinical laboratory - An accredited facility in which tests are performed identifying findings of anatomical changes; and specimens are interpreted and pathological diagnoses are made. (8) Department - Texas Department of Health. (9) Division - Cancer Registry Division. (10) Health care provider - A physician, hospital, outpatient clinic, nursing home and all other facilities, individuals, or agencies providing diagnostic or treatment services to patients with cancer. (11) Health professional - An individual whose vocation or profession is directly or indirectly related to the maintenance of the health of another individual and duties that require a specified amount of formal education and may require a special examination, certification, or license or membership in a regional or national association. (12) Hospital - A general or special hospital licensed under Health and Safety Code, Chapter 241 (Texas Hospital Licensing Law); The University of Texas System Cancer Center. (13) Personal data - Information that includes items which may identify an individual. (14) Physician - A person licensed by the Texas State Board of Medical Examiners to practice medicine in Texas. (15) Precancerous disease - Abnormality of development and organization of adult cells; a condition of early cancer, without invasion of neighboring tissue. (16) Quality assurance - Operational procedures by which the accuracy, completeness, and timeliness of the information reported to the department can be determined and verified. (17) Regional cancer registry - The organization authorized to receive and collect cancer data for a designated area of the state and which maintains the system by which the collected information is reported to the department. (18) Regional director - The physician who is the chief administrative officer of a public health region and is designated by the department under the Local Public Health Reorganization Act, Health and Safety Code, sec.121.007. (19) Report - Information that is to be provided to the department; the notification to the appropriate authority of the occupancy of a specific cancer or tumorous disease in a person, including all information required to be provided to the department. (20) Statistical data - Aggregate presentation of individual records on cancer cases excluding patient identifying information. (21) Texas Cancer Registry - The cancer incidence reporting system administered by the Cancer Registry Division. (22) Tumorous disease - A new growth of tissue in which the multiplication of cells is uncontrolled and progressive, also called neoplasm; a swelling, enlargement, or abnormal mass, either benign or malignant, which performs no useful functions. sec.91.3. Who Reports. (a) Each hospital or cancer treatment center shall report to the department, by methods specified in sec.sec.91.4-91.7 of this title (relating to Cancer Registry) required data from each medical record in its custody or under its control of cases of cancer or those precancerous or tumorous diseases specified by the board in sec.91.4 of this title (relating to What to Report). (b) Each clinical laboratory shall report to the department, by methods specified in sec.91.6 of this title (relating to How to Report) required data from each medical record in its custody or under its control of cases of cancer or those precancerous or tumorous disease specified by the board in sec.91.4 of this title, except for cases reported or to be reported by subsection (a) of this section. (c) Each ambulatory surgical center, physician or other health professional should report to the department, by methods specified in sec.91.6 of this title, required data from each medical record in his or her custody or under his or her control of cases of cancer or those precancerous or tumorous diseases specified by the board in sec.91.4 of this title, except for cases reported or to be reported by subsection (a) of this section. (d) The department will furnish on request to each health care provider within the state requisite forms to be completed on all cancer cases. (e) All hospitals, cancer treatment centers, and clinical laboratories providing diagnosis or treatment services to patients with cancer shall grant the department or its authorized representative access to all records which would identify cases of cancer or would establish characteristics of the cancer, treatment of cancer, or medical status of any identified cancer patient. (f) All physicians, ambulatory surgical centers, outpatient clinics, nursing homes, hospices, and other facilities, individuals or agencies providing diagnosis or treatment services to patients with cancer should grant the department or its authorized representative access to all records which would identify cases of cancer or would establish characteristics of the cancer, treatment or medical status of any identified cancer patient. sec.91.4. What to Report. (a) Reportable conditions. (1) Cases of cancer or those precancerous or tumorous diseases to be reported to the division are as follows: (A) all neoplasms with a behavior code of two or three in the most current edition of the International Classification on Diseases for Oncology (ICD-O) with the exception of those designated by the division as non-reportable in the cancer reporting handbook; (B) all benign and borderline neoplasms of the brain and central nervous system; (C) cystadenomas of borderline malignancy of ovary (ICDO-2 codes C56.9 and M83801); (D) hydatiform mole, malignant (ICDO-2 codes C58.9 and M91001); and (E) any neoplasm specified malignant. (2) Codes and taxa of the International Classification of Diseases, Ninth Revision, Clinical Modification which correspond to the division's reportable list are specified in the cancer reporting handbook. (b) Reportable information. (1) The data required to be produced or furnished shall include, but not be limited to: (A) name, address, zip code, and county of residence; (B) date of birth, sex, race and Spanish ethnicity, and birthplace, to the extent such information is available from the medical record; (C) information on industrial or occupational history, to the extent such information is available from the medical record; (D) diagnosis including the cancer site, cell type, tumor grade and size, stage of disease, date of diagnosis, and diagnostic confirmation method; (E) first course of cancer-related treatment, including dates and types of procedures; and (F) text information to support cancer diagnosis, stage and treatment codes, to be provided by facilities without a documented data quality program such as one approved by the American College of Surgeons. (2) Each report shall: (A) be legible and contain all data items required in subsection (b)(1) of this section relating to reporting requirements and complete documentation; (B) be in a format prescribed by the division; (C) meet all quality assurance standards utilized by the division; (D) in the case of individuals who have more than one form of cancer, be submitted separately for each primary cancer or precancerous or tumorous disease diagnosed; (E) be submitted to the division electronically, or manually if electronic means are unavailable; and (F) be transported by secure means at all times to protect the confidentiality of the data. sec.91.5. When to Report. (a) All reports of cases shall be submitted to the department within six months of initial diagnosis or admission at their facility for the diagnosis or treatment of cancer. The following reporting timelines may be followed in lieu of the six months standard: reports for 1996 and 1997 cases may be submitted up to 24 months after initial diagnosis or admission; reports for 1998 and 1999 cases may be submitted up to 18 months after initial diagnosis or admission; reports for year 2000 cases may be submitted up to 12 months after initial diagnosis or admission. Beginning with cases diagnosed in year 2001, all reports must be submitted within six months. (b) Data shall be submitted at least quarterly; monthly submissions are recommended. sec.91.7. Where to Report. (a) Forms. (1) All counties shall be assigned to a designated regional cancer registry of a public health region. Completed forms shall be submitted to the regional director or his designee at the public health region designated to receive data from where the person with cancer or precancerous or tumorous disease is diagnosed or treated. (2) A map and list of public health regions, and the addresses of respective regional directors are available from the Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3199. (b) All electronic data reports should be submitted to the central office of the division to the Cancer Registry Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199. sec.91.8. Compliance. (a) A cancer reporter in accordance with sec.91.3(a)-(b) of this title (relating to Who Reports) is considered compliant if he/she meets sec.91.4(a)(1) and (b) of this title (relating to What to Report), sec.91.5 of this title (relating to When to Report), and sec.91.6 of this title (relating to How to Report). (b) A non-compliant reporter will be notified in writing as to his/her non- compliant status within 30 days following the end of the departmental designated quarter and will be given an opportunity to take corrective action within 60 days from the date of the notification letter. A second notification letter will be sent 30 days after the date of the original notification letter if no corrective action has been taken. (c) If a cancer reporter is non-compliant and takes no corrective action within 60 days of the original notification letter, the department or its authorized representative may access the information from the hospital, cancer treatment center or clinical laboratory and report it in the appropriate format. In these cases, the hospital, cancer treatment center or clinical laboratory shall reimburse the department or the authorized representative for its cost to access and report the information. The hospital, cancer treatment center or clinical laboratory shall be notified at least two weeks in advance before arrival for collection of the information. (d) Any hospital, cancer treatment center or clinical laboratory which is required to reimburse the department or its authorized representative for the cost to access and report the information pursuant to subsection (c) of this section shall provide payment to the department or its authorized representative within 60 days of the day this payment is demanded. In the event any hospital, cancer treatment center or clinical laboratory fails to make payment to the department or its authorized representative within 60 days of the day the payment is demanded, the department or its authorized representative may, at its discretion, assess a late fee not to exceed one and one-half percent per month of the outstanding balance. Further, in the event that the representative takes legal action to recover costs and any associated fees, and the department or its authorized representative receives a judgement in its favor, the hospital, cancer treatment center or clinical laboratory shall also reimburse the department or its authorized representative for any additional cost incurred to pursue the legal action. Late fees and payment made to the department by hospitals, cancer treatment centers or clinical laboratories pursuant to this subdivision shall be considered as reimbursement of the additional costs incurred by the department. sec.91.9. Immunity from Liability. The following persons subject to this chapter that act in compliance with this chapter are not civilly or criminally liable for furnishing the information required under this chapter: a hospital, clinical laboratory, or cancer treatment center; or a ambulatory surgical center, physician or other health care provider. Staff of the division that disclose confidential data in the course of their job duties are not civilly or criminally liable for furnishing the information required. sec.91.11. Quality Assurance. (a) The department shall cooperate and consult with participating health care facilities so that such facilities may provide timely, complete and accurate data. The department will provide: (1) reporting training, on-site case-finding studies, and reabstracting studies; (2) quality assurance reports to assure the computerized data utilized for statistical information and data compilation is correct; and (3) educational information available from the department morbidity and mortality statistics. (b) The regional cancer registry shall maintain a system of quality assurance in accordance with procedures approved by the department. sec.91.13. Requests and Release of Personal Cancer Data. (a) Requests for data. (1) Requests for personal cancer data shall be in writing and directed to: Texas Department of Health, Committee for Requests for Personal Data, Bureau of Vital Statistics, 1100 West 49th Street, Austin, Texas 78756-3199. (2) Written requests for personal data shall include the following information and assurances: (A) name and address of the agency, institution, or firm sponsoring the project; (B) name, degree(s), title, address, and telephone number of the person who will direct the project; (C) name and address of the agency, institution, or firm funding the project (if other than that shown in subparagraph (A) of this paragraph); (D) names, degree(s) and titles of other persons who will have supervisory responsibilities in the project; (E) specific purpose of the project and a statement of why the disclosure of this information is deemed necessary to accomplish this purpose; (F) type of data needed and for what years (e.g., cervical cancer incidence, El Paso County, 1990-1995); (G) action planned; (H) results expected; (I) assurances that the following conditions regarding the release of the requested data shall be met: (i) the data shall be treated as strictly confidential; (ii) the data shall not be used for any purpose other than that specifically set forth in this subsection and shall not be used for any secondary purpose; (iii) the data shall not be made available to any other individual agency, institution, or firm; (iv) no follow back of any type shall be made to any individual, institution, or agency without written authorization by the Texas Department of Health; (v) any data released by a project shall be restricted to aggregate data and shall not identify any individual or institution; (vi) the Texas Department of Health shall be given credit as the source of the data; (vii) a copy of the results of the project shall be furnished to the Texas Department of Health; and (viii) if electronic media are provided, such media, after serving the purpose set forth in this subsection, shall be erased unless specific authority is requested and granted for their retention and future use; (J) name and address of person(s) to whom data and billing are to be sent must be provided; and (K) the release must be signed by the appropriate administrative officer of the sponsoring agency, institution, or firm. (b) Release of data. (1) The division may provide reports containing personal data back to the respective reporting health care provider from records previously submitted to the division from each respective reporting entity for the purposes of case management and administrative studies. These reports will not be released to any other entity. (2) The division may release personal data to other bureaus of the department, provided that the disclosure is required or authorized by law. All communications of this nature shall be clearly labeled "Confidential" and will follow established departmental internal protocols and procedures. (3) The division may release personal data to the department's Cancer Registry Program personnel headquartered in public health regions or public health departments to facilitate the collection, editing, and analysis of cancer registry data for the respective geographic area. All communications of this nature shall be clearly labeled "Confidential" and will follow established departmental internal protocols and procedures. (4) The division may release personal cancer data to state, federal, local, and other public agencies and organizations in accordance with the standard guidelines for release of personal data as outlined in subsection (a) of this section. (5) The division may release personal cancer data to private agencies, organizations, and associations in accordance with the standard guidelines for release of personal data as outlined in subsection (a) of this section. (6) The division may release personal cancer data to any other individual or entities for reasons deemed necessary by the board to carry out the intent of the Cancer Incidence Reporting Act (Health and Safety Code, Chapter 82) and in accordance with the standard guidelines for release of personal data as outlined in subsection (a) of this section. (7) A person who submits a valid authorization for release of cancer data shall have access to review or obtain copies of the information described in the authorization for release. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 17, 1998. TRD-9811338 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 6, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 458-7236 CHAPTER 103. Injury Prevention and Control 25 TAC sec.sec.103.1-103.4, 103.7, 103.8 The Texas Department of Health (department) adopts amendments to sec.sec.103.1 - 103.4 and 103.7 - 103.8 concerning the reporting and control of traumatic brain injuries. Section 103.4 is adopted with changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 Tex Reg 4179), as a result of comments received during the 30 day comment period. Sections 103.1- 103.3 and 103.7-103.8 are adopted without changes, and therefore the sections will not be republished. These amendments implement Chapter 893 of the 75th Legislature, including traumatic brain injuries as reportable injuries to the department. The amended sections cover purpose; definitions; list of reportable conditions; reporting requirements; confidential nature of case reporting; and investigations. Specifically, the amendment to sec.103.1 adds traumatic brain injuries on the list of reportable conditions. The amendment to sec.103.2 adds three new definitions (health care entity, state trauma registry, and traumatic brain injury) and amends one other (spinal cord injury). The amendment to sec.103.3 adds traumatic brain injuries to the list of reportable conditions and specifies what the reports of injuries may include. The amendment to sec.103.4 clarifies the reporting requirements by specifying how submersion, spinal cord and brain injuries are to be reported, by whom, and how often; adds acute or post acute rehabilitation facilities as sentinels for spinal cord and brain injuries; adds language requiring hospitals to report admitted cases of spinal cord and brain injuries to the State Trauma Registry; adds language regarding the department to provide summary data to local and regional health departments; and adds language allowing the department to contact hospitals and rehabilitation facilities regarding suspected cases of reportable injuries. The amendment to sec.103.7 strengthens the confidential nature of case reporting to include all information and records related to injuries. The amendment to sec.103.8 adds language that provides for joint investigations of spinal cord injuries and/or brain injuries with the Texas Rehabilitation Commission and Texas Traumatic Brain Injury Advisory Board. The department is making the following minor changes due to staff comments to clarify the intent and improve the accuracy of the section. Change: Concerning sec.103.4(e)(5), new language "an acute or post-acute" was added to clarify the type of rehabilitation facilities required to report. Change: Concerning sec.103.4(f), new language "acute or post-acute" was added to clarify the type of rehabilitation facilities required to report. Change: Concerning sec.103.4(j), new language " acute or post-acute" was added to clarify the type of rehabilitation facilities required to report. The following comments were received concerning the proposed sections. Following each comment is the department's response and any resulting change(s). COMMENT: Concerning sec.103.3, one commenter did not support the inclusion of patient identifiers in the data set. RESPONSE: The department responds that the proposed rules do not require the reporting of patient identifiers (i.e., patient's name, address, occupation, and employer) for traumatic brain injury reports sent to the Trauma Registry. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including "patient's social security number" as a required data element for traumatic brain injury reporting. RESPONSE: The department disagrees with the commenters. The patient's social security number is not needed to determine the scope and magnitude of traumatic brain injuries in the state. There is concern among hospitals about releasing confidential patient identifiers and this concern will result in lowered reporting coverage. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including "patient's occupation" as a required data element for traumatic brain injury reporting. RESPONSE: The department disagrees with the commenters. Hospitals cannot easily obtain the patient's occupation and adding this data element will result in lowered reporting coverage. The proposed data elements include information on payor and place of injury which can be used to determine work-relatedness. In addition, ambulance data concerning work-relatedness is collected by the department. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including "address of injury" as a required data element for traumatic brain injury reporting. RESPONSE: The department disagrees with the commenters. The proposed data elements include county of injury. In addition, ambulance data concerning zip code of injury is collected by the department. The department could conduct an epidemiological investigation to determine specific locations of injuries if warranted. Adding this data element will result in lowered reporting coverage. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including "work- relatedness" as a required data element for traumatic brain injury reporting. RESPONSE: The department disagrees with the commenters. The proposed data elements already include information on payor and place of injury which can be used to determine work-relatedness. In addition, ambulance data concerning work- relatedness is collected by the department. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested making the following change to the "discharge disposition" data element for traumatic brain injury reporting: "If the discharge is to "Home", add as sub-elements: self care (include address); requires non-skilled assistance (family members, etc.) (include address); requires home health services and/or outpatient rehabilitation (include address)." RESPONSE: The department responds that the proposed data set includes whether patient's disposition at discharge is self-care or dependant. The department agrees that gathering more detailed disposition data would be useful. However, the department disagrees that data elements should be added at this time because it would delay data collection and reporting. The department disagrees with requiring the reporting of patient address, family member names, family member addresses, and home health services/rehabilitation address since these data elements are not needed for public health surveillance and prevention purposes. Reporting compliance for these data elements would be low due to hospitals' concerns about releasing confidential patient identifiers. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested the following to be added as required data elements for traumatic brain injury reporting: the presence or absence of intracranial lesion; presence or absence of skull fracture; presence or absence of neurological abnormalities, presence or absence of amnesia; and whether the brain injury was closed head, open head-non- penetrating, or open head-penetrating. RESPONSE: The department responds that information on skull fracture, intracranial lesion, and open or closed head injury, would be captured through the proposed ICD-9-CM codes for reporting traumatic brain injuries. In addition, penetrating head injuries would be captured through the proposed collection of external cause of injury information (e.g., E-Codes for suicide or homicide attempt by firearm or cutting and piercing instrument). The Centers for Disease Control and Prevention suggests a medical chart review for a sample of these cases to determine the reliability and validity of the assigned ICD-9-CM and E Codes. The department disagrees with collecting data concerning neurological abnormalities or amnesia because these new data elements would require hospitals to hire, train, and pay for the personnel needed to abstract these data and this would lead to reduced reporting coverage. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including whether the injury was related to the use of alcohol or drugs as required data elements for traumatic brain injury reporting. RESPONSE: The department responds that the proposed data elements already include whether the alcohol level was tested and the alcohol level. Furthermore, the proposed collection of diagnostic codes would capture cases with drug dependence or nondependent drug use. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including the license number, name, and address of nursing homes and residential facilities where patients have been discharged as required data elements for traumatic brain injury reporting. RESPONSE: The department disagrees. The license number, name, and address of nursing homes and residential facilities are not needed for public health surveillance or prevention purposes. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, one commenter requested including whether intracranial monitoring was conducted, the method of monitoring, the intracranial pressure (ICP) levels, and methods used to control the ICP level as required data elements for traumatic brain injury reporting. RESPONSE: The department responds that the proposed data elements already include data concerning procedures that will capture whether intracranial monitoring was conducted. The department disagrees with adding data elements to require the reporting of method of monitoring, ICP levels, and methods used to control the ICP level. The understanding of intracranial hypertension, its causes and significance continue to be researched. Therefore, the utility of collecting this data for public health surveillance has not been shown. As research develops, special investigations of a sample of patients receiving intracranial monitoring can be conducted. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, two commenters requested including the use of safety equipment as a required data element for traumatic brain injury reporting. RESPONSE: The department responds that the proposed data set already includes this information. No change was made as a result of this comment. COMMENT: Concerning sec.103.3, one commenter stated that hospitals do not currently collect and report on traumatic brain injuries. The commenter requested delaying the adoption of the proposed rules and recommended a phase-in period for reporting. RESPONSE: The department disagrees with the commenter. On August 31, 1996, all hospitals were mandated to electronically report data for major trauma patients to the department as described in Chapter 773 of the Health and Safety Code. Currently, more than 200 hospitals electronically report major trauma patient data to the department. No change was made as a result of this comment. COMMENT: Concerning sec.103.4(e)(4), two commenters requested to add the words "or treats" to a hospital that admits a patient with a traumatic brain injury' as reportable. RESPONSE: The department disagrees. There is currently not a mechanism in place for the reporting of emergency department data. The creation of such a mechanism would require hospitals to hire, train, and pay for the personnel needed to abstract data and result in reduced reporting coverage. No change was made as a result of this comment. Commenters were: an individual trauma surgeon in favor of the rule amendments; Memorial Hermann Healthcare System supports the rule amendments; Texas Trauma Coordinators Forum supports the rules with the exception of reporting patient identifiers; Texas Traumatic Brain Injury Advisory Board was generally in favor of the rules, but requested adding new data elements and expanding the scope of traumatic brain injury reporting to include emergency rooms; Brain Injury Association of Texas was generally in favor of the rules, but requested adding new data elements and expanding the scope of traumatic brain injury reporting to include emergency rooms; the Texas Hospital Association requested a more flexible reporting process, a phase-in period, and requested a delay in the adoption of the rule. The amendments are adopted under the Health and Safety Code, sec.92.002, which requires the board to adopt rules necessary to implement the reporting of injuries; and sec.12.001 which allows the board to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.103.4. Reporting Requirements. (a) The following persons or their designees shall report in writing within ten working days all newly diagnosed cases or suspected cases of submersion injuries to the local health authority, or where there is no local health authority, the regional health authority: (1) a physician who diagnoses or treats a reportable injury or a suspected case of a reportable injury; (2)-(3) (No change.) (b) The reporting physician, medical examiner, or justice of the peace shall make the submersion report in writing on a form or forms prescribed by the Texas Department of Health (department). (c) A local health authority or regional health authority shall transmit any reports of submersion injuries to the Bureau of Epidemiology, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3180, on a weekly basis. (d) Transmission of submersion reports shall be made by mail, courier, or electronic transfer. (1)-(2) (No change.) (e) The following entities or their designees shall report all newly diagnosed cases or suspected cases of spinal cord injuries and traumatic brain injuries to the department: (1) a physician who diagnoses or treats a spinal cord injury or a traumatic brain injury or a suspected case of a spinal cord injury or a traumatic brain injury; (2) a medical examiner; (3) justice of the peace; (4) a hospital that admits a patient with a spinal cord injury or a traumatic brain injury or a suspected case of a spinal cord injury or a traumatic brain injury; or (5) an acute or post - acute rehabilitation facility that admits or treats a patient with a spinal cord injury or a traumatic brain injury or a suspected case of a spinal cord injury or a traumatic brain injury. (f) The reporting physician, medical examiner, justice of the peace, or acute or post - acute rehabilitation facility shall make the spinal cord injury report or the traumatic brain injury report (excluding reports of traumatic brain injuries caused by anoxia due to near drowning) in writing on a form or forms prescribed by the department within ten working days. A physician shall be exempt from reporting if a hospital admitted the patient and fulfilled the reporting requirements as stated in subsection (g) of this section. (g) The reporting hospital shall report the spinal cord injury or the traumatic brain injury (excluding traumatic brain injuries caused by anoxia due to near drowning) through electronic transmission via modem to the department's State Trauma Registry on at least a quarterly basis as described in Chapter 773 of the Health and Safety Code. (h) All entities listed in subsection (e)(1)-(5) of this section shall report a traumatic brain injury caused by anoxia due to near drowning as a submersion injury in the manner described in subsections (a)-(d) of this section. (i) The department shall provide annual summary data to the local and regional health authorities. (j) The department may contact a medical examiner, justice of the peace, physician, hospital, or acute or post - acute rehabilitation facility attending a person with a case or suspected case of a reportable injury. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811401 Susan K. Steeg General Counsel Texas Department of Health Effective date: October 1, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 CHAPTER 169. Zoonosis Control SUBCHAPTER C. Training of Animal Shelter Personnel 25 TAC sec.sec.169.61-169.65 The Texas Department of Health (department) adopts amendments to sec.sec.169.61- 169.65 concerning the training of animal shelter personnel, without changes to the proposed text published in the May 1, 1998, issue of the Texas Register (23 TexReg 4181), and therefore the sections will not be republished. Specifically, the sections cover the purpose of the sections, definitions, types of courses, prerequisites for course attendance, and course content. The amendments define the terms "satisfactory completion," and "animal control officer (ACO) course," delete definitions either for clarification or because they were already provided in the associated statute, describe the basic, advanced, and administrative ACO courses, modify the prerequisites for course attendance, and list the content of courses. No comments were received concerning the proposed rules during the comment period. The amendments are adopted under the Texas Health and Safety Code, Chapter 823, "Animal Shelters," sec.823.004, which provides the Texas Board of Health (board) with the authority to prescribe standards for training animal shelter personnel in animal health and disease control, humane care and treatment of animals, control of animals in an animal shelter, and transportation of animals; and sec.12.001, which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811419 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 9, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 CHAPTER 181. Vital Statistics SUBCHAPTER A. Miscellaneous Provisions 25 TAC sec.181.9, sec.181.9 The Texas Department of Health (department) adopts amendments to sec.181.8 and sec.181.9 concerning supplemental birth certificates and access to paternity files without changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4183), and therefore the sections will not be republished. The sections are amended to revise and eliminate the word "legitimation" since the statutes no longer use this word and update rule language concerning creation of a supplemental certificate of birth based on paternity determination. In addition, the rule directs the Bureau of Vital Statistics to notify the Office of the Attorney General, the Title IV-D agency for the State of Texas, of any supplemental birth records based on paternity. No comments were received during the comment period on the proposed amendment. The amendments are adopted under the Health and Safety Code, sec.191.003, which provides the Board of Health (board) with the authority to adopt necessary rules for collecting, recording, transcribing, compiling, and preserving vital statistics; sec.192.006 which provides that supplemental birth certificates shall be prepared and filed in accordance with board rules; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811416 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 9, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 SUBCHAPTER B. Vital Records 25 TAC sec.181.30 The Texas Department of Health (department) adopts new sec.181.30 concerning instructions and requirements for filing amendments to medical certification of certificate of death with a local registrar before submission to the department without changes to the proposed text as published in the May 1, 1998 issue of the Texas Register (23 TexReg 4183), and therefore the new section will not be republished. The new rule provides the instructions and requirements for filing amendments with a local registrar. In addition, the rule incorporates the time limit for the local registrar to forward the properly filed medical amendment to the state registrar within ten days of filing. This will aid in getting the medical amendment filed timely. The new rule will allow the decedent's family members and funeral homes the ability to purchase amended certified copies of death certificates used in the application for insurance benefits, settlement of pension claims, and transfer of title of real and personal property. The following comments were received concerning the proposed rule. Comment: A commenter strongly recommended that the medical amendment be filed with the local registrar to speed up the process of getting copies of amended certificates. Response: The department agrees with the commenter. Comment: Concerning the procedure, a commenter asked if the current form would be revised and about the correct procedure for issuing the amended copy including additional fee if applicable. The answers to these questions were verbally communicated to the commenter. As a result of this communication, the commenter recommended this procedure. Response: The department will revise the form to include the local registrar's file number, file date and signature of local registrar. The department agrees with the commenter especially since no additional fees are applicable. The first comment received from Forest Park Funeral Home, Houston, Texas was strongly in favor of the rule. The second commenter, Joy Streater, Local Registrar, Comal County was in favor of the rule after receiving a verbal explanation of the procedural process. The new section is adopted under authority of the Health and Safety Code, sec.191.003, which provides the Board of Health (board) with authority to adopt necessary rules for collecting, recording, transcribing, compiling, and preserving vital statistics, and sec.191.028 which provides for filing amendments to certificates; and sec.12.001 which provides the board with the authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811418 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 9, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 CHAPTER 289. Radiation Control SUBCHAPTER E. Registration 25 TAC sec.289.230 The Texas Department of Health (department) adopts an amendment to sec.289.230 concerning accreditation and certification of mammography systems, with changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4184), as a result of comments received during the 30-day comment period. The amendment to sec.289.230 incorporates changes to requirements on state certification, inspections, and violations as the result of House Bill 1534, 75th Texas Legislature, and new requirements to enable the department to become an accreditation body in accordance with the federal Mammography Quality Standards Act (MQSA). The revision includes new definitions supporting accreditation and accreditation fees. The amendment will give registrants an option of obtaining accreditation through the state instead of the American College of Radiology (ACR). Requirements for technologists and continuing education requirements for medical physicists performing surveys on mammography equipment to comply with federal standards have been added. Other minor grammatical changes were made to the section. The department is making the following changes due to staff comments to clarify the intent and improve the accuracy of the section. Change: Concerning sec.289.230(b)(1), the department changed "accrediting" to "accreditation" to be consistent with the United States Food and Drug Administration (FDA) rules. Change: Concerning sec.289.230(b)(3), the department deleted the definition of "Agency" because it currently exists in sec.289.201 of this title and registrants who must comply with this section are also required to comply with sec.289.201 of this title. Change: Concerning sec.289.230(b)(9), the department deleted the definition of "Certificate of Registration" because it currently exists in sec.289.201 of this title and registrants who must comply with this section are also required to comply with sec.289.201 of this title. Change: Concerning sec.289.230(b)(18), the department changed "which" to "that" for correct grammar. Change is reflected in renumbered sec.289.230(b)(16). Change: Concerning sec.289.230(b)(27)(F), the department changed "adopted by" to "of" for consistency with other sections of this title. Change is reflected in renumbered sec.289.230(b)(25)(F). Change: Concerning sec.289.230(b)(36), the department deleted the definition of "Physician" because it currently exists in sec.289.201 of this title and registrants who must comply with this section are also required to comply with sec.289.201 of this title. Change: Concerning sec.289.230(b)(38)(D), the department changed "over" to "more than" to clarify the intent of the rule. Change is reflected in renumbered sec.289.230(b)(35)(D). Change: Concerning sec.289.230(b)(38)(E), the department changed "over" to "more than" to clarify the intent of the rule. Change is reflected in renumbered sec.289.230(b)(35)(E). Change: Concerning sec.289.230(b), due to the deletion of sec.289.230(b)(3), (9), and (36), the department renumbered subsequent paragraphs and the figure reference. Change is reflected in sec.289.230(b)(3)-(42) and Figure: 25 TAC sec.289.230(b)(31). Change: Concerning sec.289.230(c), the department added language to exempt mammography registrants from radiation protection program requirements. Change is reflected in sec.289.230(c)(5). Change: Concerning sec.289.230(c)(3), the department added the word "facility's" to clarify the specific operating and safety procedures intended. Change: Concerning sec.289.230(d)(1)(B), the department added the word "otherwise" in the second sentence for clarification. In addition, in the fourth sentence, the words "has shown to be in tolerance, and" were deleted and replaced with "meets the requirements of clause (i) of this subparagraph" to more clearly state the intent of the requirement. The fourth sentence was also divided into two sentences for easier reading. Change: Concerning sec.289.230(d)(1)(D)(iii), the department changed "transferred" to "forwarded" to be grammatically consistent with language in the first sentence of this clause and the word "will" was replaced with "shall" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(d)(2)(A)(iii), the department changed "interpretation of" to "interpreting" to be grammatically consistent with language in this subclause. Change: Concerning sec.289.230(d)(2)(A)(iii)(I), the department added the words " as a qualified interpreting physician" to clarify the intent of the requirement. Change: Concerning sec.289.230(d)(2)(A)(iv)(I), the department changed "interpretation of" to "interpreting" to be grammatically consistent with language in this subclause. Change: Concerning sec.289.230(d)(2)(A)(iv)(II), the department changed "participation" to "participating" to be grammatically consistent with language in this subclause. Change: Concerning sec.289.230(d)(2)(B), the department added language to clarify that operators of equipment who were qualified prior to August 10, 1998, in accordance with this section, meet the new requirements. Change: Concerning sec.289.230(d)(2)(C), the department replaced the words "these regulations" with "this section" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(d)(3)(C)(i), the department added the words "(excluding personnel)" to clarify that a survey of personnel qualifications is not the medical physicist's responsibility. Change: Concerning sec.289.230(d)(7), the department deleted the last sentence to reflect the addition of sec.289.230(c)(5). Change: Concerning sec.289.230(d)(8), the department changed the word "limitation" to "limits" to reflect appropriate terminology. Change: Concerning sec.289.230(e)(1)(A), the department replaced the word "must" with "shall" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(e)(1)(C), the department replaced the word "must" with "shall" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(f)(3), in the last sentence, the department replaced the word "accrediting" with "accreditation" to be consistent with language in the definition of "accreditation body". Change: Concerning sec.289.230(i)(3)(B), in the second sentence, the department replaced the words "the regulations must" with "this section shall" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(i)(3)(C), in the second sentence, the department replaced the words "the regulations must" with "this section shall" and, in the fourth sentence, the words "will be required to" were replaced with "shall" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(o)(4), the department replaced the word "chapter" with "section" and "section" with "chapter" to reflect the intent of the paragraph. Change: Concerning sec.289.230(o)(5), the department replaced the word "must" with "shall" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(o)(7)(A), the department replaced the word "department's" with "agency's" for consistency with the rest of the section and with other sections of this title. Change: Concerning sec.289.230(p)(1), the department replaced the word "must" with "shall" for consistency with the rest of the section and with other sections of this title and also changed "accrediting" to "accreditation" to be consistent with language in the definition of "accreditation body". Change: Concerning sec.289.230(p)(2), the department added the words "in accordance with" for clarification. Change: Concerning sec.289.230(q)(3), the department added "mailed or" after "payments may be" in the second sentence for clarification. The department also deleted "or mailed to the Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas" from the end of the second sentence to avoid repeated language. Change: Concerning sec.289.230(w)(2), twice the department replaced the word "registrant" with "accredited facility" to reflect the intent of the accreditation requirements. Change: Concerning sec.289.230(y), the department replaced the word "publish" with "post" for clarification and the words "Mammography Accreditation Program of the Bureau of Radiation Control:" were deleted because they were redundant. The following comments were received concerning the proposed section. Following each comment is the department's response and any resulting change(s). Comment: Concerning the proposed preamble, the commenter indicated that the fiscal impact is somewhat overstated as the ACR shows the most active units at any one facility in Texas is six instead of ten. Response: The department acknowledges the comments. A range of one to ten machines was used in the fiscal note to give registrants who may wish to increase the number of authorized units in the future an idea of the financial impact. No change was made as a result of the comments. Comment: Concerning sec.289.230(b)(16), one commenter indicated that there are inconsistencies and conflicts with how the terms "facilities" and "mammography system" are defined. The commenter further indicates that the definition of "mammography system" includes the radiological technologist and the physician and questioned what criteria the medical physicist is using to calculate personnel performance? The commenter suggested that the personnel requirements would be better defined under "mammography facility" and not "mammography system" to be consistent with MQSA. Response: The department acknowledges the comments. The department has incorporated the definition of "facility" as defined in 21 Code of Federal Regulations (CFR) sec.900.2(q) and "mammography system" is defined in the state mammography certification act. The department did clarify that physicist duties do not include a survey of technologists and physicians. Change is reflected in sec.289.230(d)(3)(C)(i). Comment: Concerning sec.289.230(b)(39), one commenter indicated that the definition of source-to-image receptor distance (SID) is the United States Food and Drug Administration (FDA) definition and the commenter stated this is not the way it is applied in mammography. The commenter stated that in mammography, the SID is measured along a line that is perpendicular to the plane of the image receptor and passes through the focal spot and this line does not go to the center of the input surface of the image receptor. The commenter further stated that he had asked the FDA to consider the above and they declined. The commenter suggested that the state of Texas take the lead in defining a mammographic SID. Response: The department acknowledges the commenter's concerns. While applied differently for mammography, the FDA definition will be used for consistency. No change was made as a result of the comments. Comment: Concerning sec.289.230(b)(42), one commenter recommended concluding this definition after the word "radiographs," since the use of a technique chart is not limited to the manual mode. The commenter further stated that the MQSA final rules, 21 CFR sec.900.12(e)(5)(i), make reference to the use of a technique chart in connection with automatic exposure control (AEC), as it does in sec.289.230(c)(3). Response: The department agrees with the commenter and concluded the definition after the word "radiograph." Change is reflected in sec.289.230(b)(39). Comment: Concerning sec.289.230(d)(1)(B)(i), one commenter stated that the requirement to check the densitometer every 12 months is an additional requirement over MQSA and indicated that this needs to be clarified. The commenter questioned whether this means to verify the densitometer with a known density object or strip or have it sent out to be calibrated. The commenter further indicated that if this means sending the densitometer out for calibration, facility quality control would be impacted. Response: The department acknowledges the comment. This is an additional state requirement that has been in place since the inception of the rules in 1994. Facilities have an option of using a test strip, sending out the densitometer and getting a replacement, or having a physicist calibrate the unit. No change was made as a result of the comments. Comment: Concerning sec.289.230(d)(3)(E), one commenter stated the requirement for retaining the physicist's survey for seven years is unnecessary and excessive and will not lead to higher quality mammography. The commenter recommended that annual surveys be retained for only two years. Response: The department acknowledges the comments. The state mammography certification act specifies the retention period for the physicist's surveys. No change was made as a result of the comments. Comment: Concerning sec.289.230(d)(4)(C)(ii), one commenter indicated that the requirements for self-referral mammography do not specify how "private physicians" accept self-referral patients. The commenter further stated that facilities who accept self-referred patients should have a written procedure for referral to private physicians who agree to accept these patients. Response: The department disagrees with the commenter. The method in which a private physician accepts self-referral patients is within the purview of medical practice and not within the scope of the Texas Radiation Control Act. No change was made as a result of the comment. Comment: Concerning sec.289.230(d)(9), one commenter disagreed that a technique chart should be required for automatic exposure control (AEC)-only systems, as such systems are still likely to have at least a density control selector. The commenter further indicated that the AEC is likely to determine only the tube charge (mAs) or exposure time. The operator may still be required to select kVp, anode track, and beam filter as well as density control selection. Response: The department agrees with the commenter and deleted the wording "except for systems that have only automatic exposure control" at the end of the first sentence of the subparagraph. Comment: Concerning sec.289.230(e)(1)(H), one commenter suggested that there not be any upper limits on half value layer (HVL) established by regulation. The commenter further stated that if the department wants to impose such limits, both the upper limit on HVL and the upper limit on thickness of the selective filtration should be included. Response: The department disagrees with the commenter. The only upper limit established in this subparagraph is for xerography and there are no units registered in the state at this time; however, the department expresses that this requirement will be kept in the event that someone acquires one. No change was made as a result of the comments. Comment: Concerning sec.289.230(e)(1)(J), one commenter disagreed with allowing a plus or minus tolerance for the alignment of the chest wall edge of the compression paddle and the chest wall edge of the image receptor. The commenter stated it is undesirable to have the compression paddle appear in the image. The commenter suggested that there should be a one-way tolerance, zero extension into the image, and 1.0% of SID beyond the chest wall edge of the image receptor. Response: The department agrees with the commenter and deleted the wording "must be aligned with the chest wall edge of the image receptor to within plus or minus 1.0% of the SID with the compression paddle placed 6 cm above the patient support device." The department replaced this language to better describe the intent of the rule. Comment: Concerning sec.289.230(e)(1)(L)(i), one commenter expressed concern about phantom specifications being contained in the rules, since the phantom specifications are likely to change with time. The commenter strongly recommended that some administrative approval process be used instead. Response: The department agrees with the commenter. However, this revision addresses state certification issues and accreditation issues. This comment relates to MQSA requirements that will be addressed in a subsequent revision of this section that will incorporate changes to the MQSA rules. No change was made as a result of the comment. Comment: Concerning sec.289.230(e)(1)(L)(ii), several commenters expressed concern about the limitation on density difference of 0.40 as their density difference (DD) has varied with different types of film and different kVp from 0.39 to 0.50. One commenter stated concern about specifying density difference in rule and suggested that either the word "about" be retained or the value of the density difference be deleted entirely. Response: The department agrees with the commenters and has deleted the wording "should be 0.40 with control limits of plus or minus 0.05 for a 4 mm thick disc," and inserted language for clarification. Comment: Concerning sec.289.230(e)(1)(L)(ii), one commenter indicated that the ACR is currently revising its standards so that the optical density of the film should be greater than 1.40. The commenter suggested that these rules reflect a similar change since the mammography community believes that improved image quality is obtained at higher densities. Response: The department disagrees with the commenter. The MQSA final rules that will be addressed in a subsequent revision of this section state that the standard is "at least 1.20." No change was made as a result of the comment. Comment: Concerning sec.289.230(e)(1)(N), one commenter stated that "ma" should be "mA." Response: The department agrees and made the correction to the subparagraph. Comment: Concerning sec.289.230(e)(2)(A), one commenter recommended that subparagraph (A) be deleted as the ACR believes that failure to use a grid is unacceptable technique. Response: The department disagrees with the commenter as there are occasional situations in which film screen examinations without grids are appropriate. No change was made as a result of the comments. Comment: Concerning sec.289.230(f)(3), one commenter indicated that there is a problem in the application of the definition of "mammography system" and recommended that the definition be revised and clarified to be consistent with MQSA. Response: The department acknowledges the comments. "Mammography system" is defined in the state mammography certification act. No change was made as a result of the comments. Comment: Concerning sec.289.230(f)(6), one commenter indicated that this paragraph on stereotactic systems is unnecessarily complex and suggested that it be clarified. The commenter questioned what is meant by "unique mammographic imaging modality" and further questioned if this means any modality other than screen/film? The commenter strongly recommended that the department issue separate regulations pertaining to stereotactic and new modalities, such as digital mammography, since the FDA has not to date implemented regulations. The commenter indicated that proceeding with regulations in this area could have a number of side effects not foreseen by the department in these proposed regulations. Response: The department agrees partially with the commenter that the section is complex. "Unique mammographic imaging modality" means any modality other than screen/film or xerography. Xerography is delineated in sec.289.230(c)(2). The department disagrees that separate rules should be issued for stereotactic and new modalities. At the request of our registrants, the department developed these regulations in 1994 because the FDA had not and has not to date implemented regulations on stereotactic units. In the first sentence, the department replaced "mammographic" with "x-ray" and added "for mammography" after "imaging modalities" for clarification. Comment: Concerning sec.289.230(i)(3)(C), one commenter indicated that the requirements in the second sentence of this subsection will be impossible to comply with since no compliance standards are likely to be in place for new units under clinical trial evaluations. The commenter further stated that depending on how differently the unit operates, the physicist may have considerable difficulty deciding how to survey. Response: The department acknowledges the comments. A physicist is allowed some flexibility and discretion on reports on mammography machines in clinical trial evaluations. No change was made as a result of the comments. Comment: Concerning sec.289.230(k), one commenter recommended adding an item requiring that women be notified how they can receive their mammography films if a facility terminates operation. Response: The department acknowledges the comments. There are some situations (bankruptcy) when notification may not be possible. The department will address this issue in the subsequent revision of this section. No change was made as a result of the comments. Comment: Concerning sec.289.230(o)(7), one commenter recommended the term "may" be retained instead of "should." The commenter further stated that there may be reasons why the agency would not require registrants to notify mammography patients. The commenter stated the provision is overly restrictive and would likely result in unnecessary notifications. Response: The department acknowledges the comments. The language on notification of patients is required by the state Mammography Certification Act for Severity Level I violations. No change was made as a result of the comments. Comment: Concerning sec.289.230(q)(4), one commenter stated that there is no fee for reevaluation of phantom images by the ACR. The commenter suggested that this be added. Response: The department acknowledges the comment; however, this issue will be addressed in the subsequent revision of this section. No change was made as a result of the comment. Comment: Concerning sec.289.230(u)(3), one commenter stated that only allowing facilities 30 days prior to the expiration of accreditation to reapply could present significant problems in terms of turnaround. The commenter further stated that the ACR encourages facilities to apply for renewal six months prior to their expiration date. The commenter also stated that since the department plans to have the ACR review clinical and phantom images, an extended time should be considered. Response: The department disagrees with the commenter. The rule does not prohibit an applicant from submitting an application for renewal of accreditation earlier than 30 days. The department encouraged applicants to submit such renewal as early as possible. No change was made as a result of the comment. Comment: Concerning sec.289.230(z)(1), one commenter indicated it is not necessary to list each of the topics included in mammography training. The commenter stated that there are topics not listed that are clearly related but should be included in this subject listing. The commenter suggested restating the first sentence to read: "Recommended subjects in mammography training should include, but not be limited, to the following:" The commenter further suggested discussing these issues with the FDA as they once considered listing subjects and subsequently abandoned it. Response: The department agrees partially with the commenter and added the suggested language in sec.289.230(z)(1). The department disagrees that the subjects should not be listed and will be addressed in the subsequent revision of this section. Commenters included representatives from General Electric Medical Systems and the American College of Radiology. The commenters were generally favorable of the rule as proposed; however, the commenters had questions or specific concerns, and offered suggestions for changes to the proposal as discussed in the summary of comments. The amendment is adopted under the Health and Safety Code, Chapter 401, which provides the Texas Board of Health (board) with authority to adopt rules and guidelines relating to the control of radiation; and sec.12.001, which authorizes the board rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.289.230. Certification of Mammography Systems. (a) Purpose and scope. (1) This section provides for the certification of mammography systems and the accreditation of mammography facilities. No person shall use x-ray producing machines for mammography of humans except as authorized in a state certification of mammography systems issued by the agency in accordance with the requirements of this section and in a certificate issued by the United States Food and Drug Administration (FDA). (2) (No change.) (3) In addition to the requirements of this section, all registrants are subject to the requirements of sec.289.112 of this title (relating to Hearing and Enforcement Procedures), sec.289.201 of this title (relating to General Provisions), sec.289.202 of this title (relating to Standards for Protection Against Radiation), sec.289.203 of this title (relating to Notices, Instructions, and Reports to Workers; Inspections), sec.289.204 of this title (relating to Fees for Certificates of Registration, Radioactive Material(s) Licenses, Emergency Planning and Implementation, and Other Regulatory Services), and sec.289.226 of this title (relating to Registration of Radiation Machine Use and Services). (b) Definitions. The following words and terms, when used in this section, shall have the following meaning unless the context clearly indicates otherwise. (1) Accreditation - An official approval of a mammography facility by an accreditation body. (2) Accreditation body - An entity that has been approved by the FDA under 42 United States Code sec.263b(e)(1)(A) to accredit mammography facilities. (3) Automatic exposure control (AEC) - A device that automatically controls one or more technique factors in order to obtain at preselected locations a required quantity of radiation. (4) Average glandular dose - The value in millirad (mrad) or milligray (mGy) for a given breast or phantom thickness that estimates the average absorbed dose to the glandular tissue extrapolated from free air exposures and based on fixed filter thickness and target material. (5) Beam-limiting device - A device that provides a means to restrict the dimensions of the x-ray field. (6) Calibration of instruments - The comparative response or reading of an instrument relative to a series of known radiation values over the range of the instrument. (7) Calibration of machines - The measurement and specification of absorbed dose to a medium, or exposure in air, at a defined point in a radiation beam. (8) Certification of mammography systems (state certification) - A form of permission given by the agency to an applicant who has met the requirements for mammography system certification set out in the Act and this chapter. (9) Contact hour - 50 minutes of attendance and/or participation in instructor- directed activities. (10) Continuing education - Acquiring contact hours by attendance and/or participation in lectures, conferences, or seminars; or participation in self- study programs. (11) Control panel - That part of the radiation machine control upon which are mounted the switches, knobs, push buttons, and other hardware necessary for manually setting the technique factors. (12) Dedicated mammographic equipment - Equipment that has been specifically designed and manufactured for mammography. (13) Equipment (See definition for x-ray equipment). (14) Facility - A hospital, outpatient department, clinic, radiology practice, mobile unit, an office of a physician, or other person that conducts breast cancer screening or diagnosis through mammography activities, including any or all of the following: (A) the operation of equipment to produce a mammogram; (B) processing of film; (C) initial interpretation of the mammogram; or (D) maintaining the viewing conditions for that interpretation. (15) Formal training - Attendance and participation in instructor-directed activities. This does not include self-study programs. (16) Half-value layer (HVL) - The thickness of a specified material that attenuates the beam of radiation to an extent such that the exposure rate is reduced to one-half of its original value. In this definition, the contribution of all scattered radiation, other than any that might be present initially in the beam concerned, is deemed to be excluded. (17) Interpreting physician - A physician who interprets mammographic images and who meets the requirements of subsection (d)(2)(A) of this section. (18) Image receptor - Any device, such as a fluorescent screen or radiographic film, that transforms incident x-ray photons either into a visible image or into another form that can be made into a visible image by further transformations. (19) kV - Kilovolt. (20) kVp - Kilovolt peak. (21) mA - Milliampere. (22) Mammogram - A radiographic image produced through mammography. (23) Mammographic phantom - A test object used to simulate radiographic characteristics of compressed breast tissue and containing components that radiographically model aspects of breast disease and cancer. The phantom shall be approved or accepted by the FDA. (24) Mammography - The use of x-radiation to produce an image of the breast on film, paper, or digital display that may be used to detect the presence of pathological conditions of the breast. (25) Mammography system - A system that includes the following: (A) an x-ray unit used as a source of radiation in producing images of breast tissue; (B) an imaging system used for the formation of a latent image of breast tissue; (C) an imaging processing device for changing a latent image of breast tissue to a visual image that can be used for diagnostic purposes; (D) a viewing device used for the visual evaluation of an image of breast tissue if the image is produced in interpreting visual data captured on an image receptor; (E) a medical radiological technologist who performs a mammography; and (F) a physician who engages in, and who meets the requirements of this section relating to the reading, evaluation, and interpretation of mammograms. (26) mAs - Milliampere-second. (27) Medical physicist - A person meeting the qualifications for a medical physicist specified in subsection (d)(2)(C) of this section. (28) Medical radiological technologist - An individual specifically trained in the use of radiographic equipment and the positioning of patients for radiographic examinations and who meets the requirements in subsection (d)(2)(B) of this section. (29) Mobile services - The utilization of radiation machines in temporary locations for limited time periods. The radiation machines may be fixed inside a mobile van or transported to temporary locations. (30) Mobile x-ray equipment (See definition for x-ray equipment). (31) Optical density (OD) - A measure of the percentage of incident light transmitted through a developed film and defined by the equation. Figure: 25 TAC sec.289.230(b)(31) (32) Patient - Any individual who undergoes clinical evaluation in a mammography facility, regardless of whether the person is referred by a physician or is self-referred. (33) Phantom image - A radiographic image of a phantom. (34) Self-referral mammography - The use of x-radiation to test asymptomatic women for the detection of diseases of the breasts when such tests are not specifically and individually ordered by a licensed physician. (35) Severity Level I Violation - Examples of a severity level I violation include but are not limited to the following: (A) unqualified interpreting physician; (B) unqualified mammography operator; (C) unqualified medical physicist; (D) failing phantom images for more than three months; (E) failure to perform processor quality control for more than two months; (F) failure to have a quality control program in place and being performed; and (G) operating with a denied accreditation certificate. (36) Source-to-image receptor distance (SID) - The distance from the source to the center of the input surface of the image receptor. (37) Survey - An on-site physics consultation and evaluation of a mammography system performed by a medical physicist. (38) Technical aspects of mammography - In relation to continuing education, some or all of the following subjects must be included: (A) anatomy and physiology of the female breast; (B) mammographic positioning; (C) technical factors used in mammography; (D) mammographic film evaluation and critique; (E) breast pathology; or (F) mammographic quality assurance procedures. (39) Technique chart - A chart that provides all necessary generator control settings and geometry needed to make clinical radiographs. (40) X-ray equipment - An x-ray system, subsystem, or component thereof. Types of x-ray equipment are as follows: (A) mobile x-ray equipment - x-ray equipment mounted on a permanent base with wheels and/or casters for moving while completely assembled; (B) stationary x-ray equipment - x-ray equipment that is installed in a fixed location. (41) X-ray field - That area of the intersection of the useful beam and any one of the set of planes parallel to and including the plane of the image receptor, whose perimeter is the locus of points at which the exposure rate is one-fourth of the maximum in the intersection. (42) X-ray tube - Any electron tube that is designed to be used primarily for the production of x rays. (c) Exemptions. (1) Mammography machines or cabinet x-ray units used exclusively for examination of breast biopsy specimens are exempt from the requirements of this section. These units are required to meet applicable provisions of sec.289.226 of this title and sec.289.227 of this title (relating to Use of Radiation Machines in the Healing Arts and Veterinary Medicine). (2) Xerography systems not used for detection of diseases of the breast are exempt from the requirements of this section. These units are required to meet applicable provisions of sec.289.226 of this title and sec.289.227 of this title. (3) Mammography systems not meeting the AEC requirements of subsection (e)(1)(G) of this section are exempt from this requirement if changes in the facility's technique chart reflect the density settings required to maintain the film density to within plus or minus 0.3 OD when the AEC is utilized. This change shall be addressed in the facility's operating and safety procedures. (4) Mammography systems used exclusively for invasive interventions for localization or biopsy procedures or other unique mammographic imaging modalities are exempt from the requirements of this section except for those listed in subsection (f)(6) of this section. (5) All mammography registrants are exempt from the radiation protection program requirements of sec.289.202(e) of this title. (d) Operational controls for mammographic equipment. (1) Quality assurance. (A) Quality assurance program. Each registrant shall have a written, ongoing quality assurance program specific to mammographic imaging covering all components of the diagnostic x-ray imaging system to ensure consistently high- quality images while minimizing patient exposure. Responsibilities under this requirement include the following: (i)-(iv) (No change.) (B) Quality control. The registrant shall ensure that the following quality control items are performed at least as often as the frequency specified when mammographic equipment is initially installed, replaced, or reassembled after moving. When the results of tests performed in accordance with this subparagraph and subparagraph (C) of this paragraph do not meet the required acceptance criteria, corrective action shall begin within 30 days following the check and completed no longer than 90 days from commencement, unless otherwise authorized by the agency. Clinical images of mammographic examinations shall not be processed using a processor that deviates from the requirements of clause (i) of this subparagraph. A processor, other than the one commonly in use, may be used temporarily provided that the backup processor has been tested according to clause (i) of this subparagraph and meets the requirements of clause (i) of this subparagraph. A phantom image from the mammography system shall be acquired and run in the backup processor and evaluated for acceptable quality according to clause (iv) of this subparagraph, prior to the first patient exposure. Records of the quality control checks, including any correction or repair, shall be maintained for a minimum of two years for inspection by the agency. Films that result from the performance of quality control tests shall be maintained for a minimum of 12 months. (i) Processor performance shall be evaluated by sensitometric and densitometric means and by developer temperature daily, or on each day of use for mammography, and the results recorded before the first patient exposure. The calibration of the densitometer must be checked every 12 months. Film processors utilized for mammography shall be adjusted to and operated at the specifications recommended by the mammographic film manufacturer, or at other settings such that the sensitometric performance is at least equivalent. For any registrant performing mammography and using film processors at multiple locations, such as a mobile service, each processor shall be subject to the requirements of this clause. Corrective action shall be taken in the event of the following: (I) deviations exceeding plus or minus 0.15 in OD from established operating levels occur for readings of mid-density and DD on the sensitometric control charts; and/or (II) (No change.) (ii)-(xvi) (No change.) (C) Additional quality control requirements. When deviations are found, corrections or repairs shall be made in accordance with subparagraph (B) of this paragraph. (i)-(iii) (No change.) (D) Retention of clinical images. A registrant shall maintain and make available to a patient of the facility any original mammograms performed at the facility until the earlier of either: (i) the fifth anniversary of the mammography; (ii) the tenth anniversary of the mammography, if an additional mammogram of the same patient is not performed by the facility; or (iii) at the request of the patient, the date the patient's medical records are forwarded to another medical institution, to a physician of the patient, or to the patient. If the medical records are permanently forwarded, this institution or physician shall maintain and become responsible for the original film until the fifth or tenth anniversary as specified in clauses (i) and (ii) of this subparagraph. (E) Interpretation of clinical images. Each facility shall prepare a written report of the results of any mammography examination. Such report shall be completed as soon as reasonably possible and shall be: (i) signed by the interpreting physician or signed by electronic signature by the interpreting physician; (ii) maintained in the mammography patient's medical record in accordance with clauses (i) and (iii) of this subparagraph. A facility is not required to maintain copies of the lay person summary; and (iii) provided as follows: (I) to the mammography patient's physician(s); (II) if the mammography patient's physician is not available, the report shall be sent directly to the mammography patient and shall include a summary written in language easily understood by a lay person; or (III) if the patient is self-referred, such report shall comply with the provisions of paragraph (4) of this subsection. (F) Follow-up on interpretation of clinical images. Each facility shall establish procedures for reviewing outcome data from all mammography performed, including follow-up on the disposition of positive mammograms and correlation of surgical biopsy results with mammogram reports. (G) Processing of mammographic images. Each registrant shall utilize the same processor for clinical mammographic and mammographic phantom images. Clinical images shall be processed within an interval not to exceed 24 hours from the time the first clinical image is taken. (i) Each clinical image shall be marked by a film flasher device, lead marker, or printed label in a non-critical area on the film. The information shall include, but is not limited to, facility name, patient's name, and the date of the film. (ii) Information shall also be maintained for each clinical image by utilizing a label on each film, recording on the film jacket, or maintaining a log or other means. The information shall include, but is not limited to, compressed breast thickness or degree of compression, and kVp. (iii) Facilities utilizing batch processing shall: (I) use a container to transport clinical images that will protect the film from exposure to light and radiation; (II) maintain a log to include each patient name and unique identification number, date and time of the first exam of each batch, and date and time of batch development. (H) Xerography. Processing equipment for xerography shall be evaluated daily on each day of use before the first mammography patient exposure. Processing and maintenance of equipment shall be performed in accordance with manufacturer's recommendations. Xerography systems shall comply with all the requirements for mammography in this subsection and in subsection (e) of this section except for the following: subparagraphs (B)(i)-(iii), (vi), (viii), and (ix); (C)(ii) and (iii); and (G) of this paragraph. (2) Personnel qualifications. (A) Interpreting physician. Each physician interpreting mammograms shall: (i) hold a current Texas license issued by the Texas State Board of Medical Examiners and be certified by the American Board of Radiology, the American Osteopathic Board of Radiology, or one of the other bodies approved by the FDA to certify interpreting physicians or have equivalent formal training and experience; (ii) have had 40 hours of documented continuing medical education credits in mammography. (Continuing education credits shall be approved by the Accreditation Council for Continuing Medical Education or the Committee on Continuing Medical Education of the American Osteopathic Association.) Forty hours specifically devoted to mammography during residency will be accepted if documented in writing by the radiologist, and if the residency program has been approved by the Accreditation Council for Graduate Medical Education or the Council on Postdoctoral Training of the American Osteopathic Association; (iii) have initial experience six months preceding application in reading and interpreting mammograms from the examinations of: (I) at least 240 mammography patients as a qualified interpreting physician; or (II) at least 240 mammography patients under the direct supervision of a qualified interpreting physician; and (iv) have the following continuing experience: (I) reading and interpreting mammograms from the examination of an average of at least 40 mammography patients per month over 24 months; and (II) participating in education programs, either by teaching or completing an average of at least five continuing medical education credits in mammography per year at intervals not to exceed three years. (B) Operators of equipment. The x-ray mammographic machines shall be operated by an individual currently certified as a medical radiologic technologist under Texas Civil Statutes, Article 4512m and who has completed a minimum of 40 hours of formal mammographic training as outlined in subsection (z)(1) of this section or an individual who qualified as an operator of equipment prior to August 10, 1998. Medical radiologic technologists shall accumulate an average of at least five continuing education hours per year in the technical aspects of mammography at intervals not to exceed three years. (C) Medical physicist. The person evaluating the performance of mammographic systems in accordance with this section shall hold a current Texas license under the Medical Physics Practice Act, Article 4512n, in diagnostic radiological physics. The person must also be registered with the agency in accordance with sec.289.226(e) of this title and the Texas Radiation Control Act unless exempted by sec.289.226(b)(6) of this title. The person must participate in education programs, either by teaching or completing an average of at least five continuing medical education credits in mammography per year at intervals not to exceed three years. (3) Personnel responsibilities. (A) Supervising physician responsibilities shall include the following: (i)-(iv) (No change.) (v) to select a technologist to perform the quality control tests; (vi) to review the technologists' quality control test results at least every three months, or more frequently if consistency has not yet been achieved; and (vii) to review the physicists' results annually or more frequently when needed. (B) Equipment operators' responsibilities shall include performing and recording the results of the following tests or tasks at the frequency indicated. The facility may assign the responsibility for individual tasks within the quality assurance program to a quality control technologist. (i)-(xi) (No change.) (C) Medical physicists' responsibilities include the following: (i) conducting an annual on-site mammography survey of the entire mammography system (excluding personnel) while the medical physicist is physically present, to include performance of the following: (I) alignment of beam limiting device in accordance with subsection (e)(1)(D) of this section; (II) evaluation of focal spot performance in accordance with subsection (e)(1)(E) of this section; (III) kVp accuracy in accordance with subsection (e)(1)(F) of this section; (IV) beam quality assessment (HVL measurement) in accordance with subsection (e)(1)(H) of this section; (V) AEC performance in accordance with subsection (e)(1)(G) of this section; (VI) uniformity of screen speed; (VII) average glandular dose in accordance with subsection (e)(2) of this section; (VIII) output reproducibility, mA and mAs linearity in accordance with subsection (e)(1)(N) of this section; (IX) image quality evaluation in accordance with subsection (e)(1)(L) of this section; (X) artifact evaluation; and (ii) performing a survey that verifies that the mammographic unit meets the equipment standards in subsection (e)(1) of this section and the average glandular dose meets the requirements of subsection (e)(2) of this section on equipment that is initially installed, replaced, or reassembled after moving; and (iii) verifying the average glandular dose within 60 days of replacement in accordance with subsection (e)(2) of this section on mammographic units that have had a tube or tube insert replaced. (D) The medical physicist shall provide the following to the facility: (i) a written report of the results of the tests listed in subparagraph (C) of this paragraph; (ii) written recommendations for corrective actions according to the test results; and (iii) a review of the test results with the supervising physician or his/her designee and the technologist(s) performing the quality control. (E) Records of the survey listed in subparagraph (C)(i) of this paragraph shall be maintained by the facility for seven years. (4) Self-referral mammography. Any person proposing to conduct a self-referral mammography program shall not initiate such a program without prior approval of the agency. When requesting such approval, that person shall submit the following information: (A)-(B) (No change.) (C) written procedures to include methods of: (i) advising individuals of the results of the self-referral mammography procedure and any further medical needs indicated. If a report is sent to the mammography patient, it shall include a summary written in language easily understood by a lay person; (ii) advising private physicians of the results of the self-referral mammography procedure and any further medical needs indicated; (iii) follow-up to confirm that mammography patients with positive findings and mammography patients needing repeat exams have received proper notification; and (iv) follow-up to confirm that practitioners have received proper notification of patients with positive findings needing repeat exams; and (D) (No change.) (5) Records required to be kept with units authorized for mobile services. (A) In addition to the requirements of sec.289.203(b) of this title, copies of the following shall be kept with units authorized for mobile services: (i)-(iii) (No change.) (iv) current sec.289.112 of this title, sec.289.201 of this title, sec.289.202 of this title, sec.289.203 of this title, sec.289.226 of this title, and sec.289.230 of this title. (v) copy of certification of mammography system; (vi) certification of inspection or notice of failure from last inspection if applicable; and (vii) copy of mammography facility accreditation. (B) (No change.) (6) Records required at authorized use locations. Copies of the following shall be kept at authorized use locations: (A) operating and safety procedures in accordance with paragraph (7) of this subsection; (B) quality assurance program in accordance with paragraph (1) of this subsection; (C) credentials for interpreting physicians operating at that location in accordance with paragraph (2)(A) of this subsection; (D) credentials for medical radiologic technologists operating at that location in accordance with paragraph (2)(B) of this subsection; (E) quality control records in accordance with paragraph (1) of this subsection; (F) training and continuing education records for interpreting physicians and medical radiologic technologists operating at that location in accordance with paragraph (2)(A) and (B) of this subsection; (G) current physicist annual survey of the mammography system; (H) current sec.289.112 of this title, sec.289.201 of this title, sec.289.202 of this title, sec.289.203 of this title, sec.289.204 of this title, sec.289.226 of this title, and sec.289.230 of this title; (I) copy of certification of mammography system; (J) certification of inspection or notification of failure if applicable; (K) records of receipts, transfers, and disposal in accordance with paragraph (10) of this subsection; (L) calibration, maintenance, and modification records in accordance with paragraph (13) of this subsection; and (M) copy of mammography facility accreditation. (7) Operating and safety procedures. Each registrant shall have and implement written operating and safety procedures that shall be made available to each individual operating x-ray equipment, including any restrictions of the operating technique required for the safe operation of the particular x-ray system. These procedures shall include a quality assurance program in accordance with paragraph (1) of this subsection. (8) Occupational dose limits and personnel monitoring. Except as otherwise exempted, all individuals who are associated with the operation of a radiation machine are subject to the occupational dose requirements of sec.289.202 (f), (j), (l), and (m) of this title regarding dose limits to individuals and the personnel monitoring requirements of sec.289.202(q) of this title. (9) Technique Chart. A chart or manual shall be provided or electronically displayed in the vicinity of the control panel of each machine that specifies technique factors to be utilized versus patient's anatomical size. The technique chart shall be used by all operators. (10)-(13) (No change.) (e) Mammographic x-ray systems. (1) Equipment standards. Only x-ray systems meeting the following standards shall be used: (A) System design. The equipment shall have been specifically designed and manufactured for mammography in accordance with 21 Code of Federal Regulations (CFR) 1010.2, 1020.30, and 1020.31. (B) (No change.) (C) Target/Filter. The x-ray system shall have the capability of providing kVp/target/filter combinations compatible with image receptor systems meeting the requirements of subparagraph (B) of this paragraph. (D) (No change.) (E) Evaluation of focal spot performance: Focal spot performance shall be evaluated by measuring both parallel and perpendicular to the anode-cathode axis and determining whether they are in compliance with manufacturer-provided and National Electrical Manufacturers Association specifications. Focal spot performance also may be evaluated by determining limiting resolution by using a high-contrast resolution pattern. All focal spot dimensions shall be measured. (F) Accuracy of kVp. The actual kVp shall meet manufacturer's specifications or in the absence of manufacturer's specifications shall be within plus or minus 5.0% of the indicated kVp. (G) Automatic exposure control performance. Figure: 25 TAC sec.289.230(e)(1)(G) (H) Beam quality. When used with screen-film image receptors, and the contribution to filtration made by the compression device is included, the HVL shall be greater than or equal to kVp/100 + 0.03 (in units of millimeters (mm) of aluminum (Al) but less than kVp/100 + C (mm of Al)where C = 0.12 mm Al for molybdenum/molybdenum, C = 0.19 mm Al for molybdenum/rhodium, and C = 0.22 mm Al for rhodium/rhodium. Facilities with mammographic units with anode/filter combinations that do not meet the requirements of this paragraph may request an exemption. The exemption request should include manufacturer's specifications for HVL for the specific anode/filter combination. For xeroradiography, the HVL of the useful beam with the compression device in place shall be at least 1.0 and not greater than 1.6 mm aluminum equivalent, tested at the kVp used under clinical conditions. (I) (No change.) (J) Compression. The x-ray system shall be capable of compressing the breast with a force of at least 25 pounds and shall be capable of maintaining this compression for at least 15 seconds. For systems with automatic compression, the maximum force applied without manual assistance shall not exceed 40 pounds; and the chest wall edge of the compression paddle shall not extend beyond the chest wall edge of the image receptor by more than 1.0% of the SID when tested with the compression paddle placed above the breast support surface at a distance equivalent to standard breast thickness. The shadow of the vertical edge of the compression paddle shall not be visible on the image. (K) Screen-film contact. Cassettes shall not be used for mammography if one or more large areas (greater than 1 square centimeter (cm2)) of poor contact can be seen in a 40 mesh test. (L) Image quality. (i) The mammographic x-ray imaging system shall be capable of producing images of the mammographic phantom in which the following objects are visualized: (I) the four largest fibers with thicknesses of: 1.56 mm, 1.12 mm, 0.89 mm, and 0.75 mm. (II) the three largest speck groups with diameters of: 0.54 mm, 0.40 mm, and 0.32 mm; and (III) the three largest masses with thicknesses of: 2.0 mm, 1.0 mm, and 0.75 mm; (ii) The optical density of the film should be greater than 1.20 with control limits of plus or minus 0.20; while the density difference between the background of the phantom and an added test object, used to assess image contrast, shall be measured and shall not vary by more than plus or minus 0.05 from the established operating level. (iii) (No change.) (M) Technique settings. The technique settings used for subparagraph (L) of this paragraph and paragraph (2) of this subsection shall be those used by the facility for its clinical images of a 50% adipose/50% glandular 4.0 to 4.5 cm compressed breast, utilizing the processor used for patient films. (N) Output reproducibility. Output reproducibility and mA or mAs linearity shall comply with the following: (i) Exposure reproducibility. Figure: 25 TAC sec.289.230(e)(1)(N)(i) (ii) Linearity. Figure: 25 TAC sec.289.230(e)(1)(N)(ii) (2) Dose. The average glandular dose for one craniocaudal view of a 4.0 to 4.5 cm (1.8 inch) compressed breast, composed of 50% adipose/50% glandular tissue, shall not exceed the following values: (A) 100 mrad (1 (mGy)) for film/screen systems without grid; (B) 300 mrad (3 (mGy)) for film/screen systems with grid; and (C) 400 mrad (4 (mGy)) for xeroradiographic systems. (f) Certification requirements. In addition to the requirements of sec.289.226(c) and if applicable, (g) of this title, each applicant shall comply with the following. (1)-(2) (No change.) (3) An applicant for certification must obtain a certification on each mammography system that is used by the applicant or the applicant's agent (for the purposes of the requirements of this paragraph, the word "used" refers to the entity other than the technologist that directs the application of radiation to humans). An application for mammography system certification may contain information on multiple mammography x-ray units. Each x-ray unit must be identified by referring to the machine's manufacturer, model number, and serial number of the control panel. An applicant or applicant's agent shall provide proof of current accreditation by an accreditation body approved by the FDA on forms prescribed by the agency or submit an application for accreditation in accordance with subsection (p) of this section. (4) The applicant shall be qualified by reason of training and experience to use the mammographic machines for the purpose requested in accordance with this chapter in such a manner as to minimize danger to public health and safety. (5) Each applicant shall submit documentation of the following: (A) (No change.) (B) personnel qualifications, including dates of licensure or certification, in accordance with subsection (d)(2) of this section; (C) model and serial number of each mammographic unit control panel; (D) evidence of the following by a physicist holding a current Texas license under the Medical Physics Practice Act, Article 4512n with a specialty in Diagnostic Radiological Physics: (i)-(ii) (No change.) (E) self-referral program information in accordance with subsection (d)(4) of this section, if the facility offers self-referral mammography. (6) An applicant for certification of mammography stereotactic systems or other unique x-ray imaging modalities for mammography shall comply with subsections (d)(1)(A), (B)(xi)-(xiv), and (xvi); (2)(B) and (C); (3)(A)-(C), as applicable; (5) and (6) as applicable; (7)-(13); (e)(1)(E)-(H), and (N); (f) except for the accreditation requirements of FDA in (f)(3); (g)-(i) as applicable; (j)-(n); (o)(2)-(8); and (z)(1) and (2) of this section as applicable. The purpose and scope of this section and the definitions in subsection (b) of this section also apply to certification of these systems. (7) (No change.) (8) Notwithstanding the provisions of sec.289.204 of this title, reimbursement of application fees may be granted in the following manner: (A)-(B) (No change.) (C) If the request for full reimbursement authorized by subparagraph (A) of this paragraph is denied, the applicant may then request a hearing by appeal to the Commissioner of Health for a resolution of the dispute. The appeal will be processed in accordance with Formal Hearing Procedures, sec.sec.1.21-1.34 of this title (relating to the Texas Board of Health). (g) Issuance of certification of mammography systems. Issuance of certification of mammography systems shall be in accordance with sec.289.226(k) of this title. (h) Specific terms and conditions of certification of mammography systems. Specific terms and conditions of certification of mammography systems shall be in accordance with sec.289.226(l) of this title. (i) Responsibilities of registrant. (1) In addition to the requirements of sec.289.226(m)(2) and (4)-(7) of this title, a registrant shall notify the agency in writing prior to any changes that would render the information contained in the application or the certification of mammography systems inaccurate. These include but are not limited to the following: (A)-(B) (No change.) (C) mammographic x-ray units. (2) (No change.) (3) The following criteria applies to new, replacement, or loaner units and units used for clinical trial evaluations. (A) A facility with an existing certification of mammography system may begin using a new or replacement unit before receiving an updated certification if the paperwork regarding the unit has been submitted to the agency with a licensed medical physicists's report verifying compliance of the new unit with the regulations. The physicist's report is required prior to using the unit on patients. (B) Loaner units may be used on patients for 60 days without adding the unit to the certification. A licensed medical physicist's report verifying compliance of the loaner unit with this section shall be completed prior to use on patients. The results of the survey must be submitted to the agency with a cover letter indicating period of use. (C) Units involved in clinical trial evaluations may be used on patients for 60 days without adding the unit to an existing certification. A licensed medical physicist's report verifying compliance of the loaner unit with this section shall be completed prior to use on patients. The results of the survey must be submitted to the agency with a cover letter indicating period of use. If the use period will exceed 60 days, the facility shall add the unit to their certification and a prorated fee will be assessed. (D) No fees will be assessed for loaner units or evaluation periods of 60 days or less. (E) Loaner units or units involved in clinical trial evaluations are exempt from the inspection requirement in subsection (o)(1) of this section. (4) Records of training and experience and all other records required by this section shall be maintained for review in accordance with subsection (z)(2) of this section. (j) Expiration of certification of mammography systems. (1) Except as provided by subsection (l) of this section, each certification of mammography systems expires at the end of the day in the month and year stated on the certificate of registration on the expiration date specified. Expiration of the certification of mammography systems does not relieve the registrant of the requirements of this chapter. (2) If a registrant does not submit an application for renewal of the certification of mammography systems under subsection (l) of this section, as applicable, the registrant shall on or before the expiration date specified in the certification of mammography systems: (A) terminate use of all radiation machines; (B) submit a record of the disposition of the x-ray units; and (C) pay any outstanding fees in accordance with sec.289.204 of this title. (k) Termination of certification of mammography systems. When a registrant decides to terminate all activities involving radiation machines authorized under the certification of mammography systems, the registrant shall: (1) notify the agency immediately; (2) request termination of the certification of mammography systems in writing; (3) submit a record of the disposition of the x-ray units; and (4) pay any outstanding fees in accordance with sec.289.204 of this title. (l) Renewal of certification of mammography systems. (1) Application for renewal of certification shall be filed in accordance with this subsection and sec.289.226(c) and (g) of this title, as applicable. (2) If a registrant files an application in proper form at least 30 days before the existing certification expires, such existing certification shall not expire until the application status has been determined by the agency. (3) A certification for a mammographic unit is valid for three years from the date of issuance unless the certification of the facility is revoked prior to such deadlines. This is effective for certificates issued after September 1, 1997. (A) If a registrant fails to renew the certification by the required date, the registrant may renew the certification on payment of the annual fee and a late fee. If the certification is not renewed before the 181st day after the date on which the certification expired, the registrant must apply for an original certification under this section. (B) A mammography system may not be used after the expiration date of the certification unless the holder of the expired certification has made a timely and sufficient application for renewal of the certificate as provided in this subsection and sec.289.226(c) and (g) of this title, as applicable. (m) Modification and revocation of certification of mammography systems. Modification and revocation of certification of mammography systems shall be in accordance with sec.289.226(q) of this title. (n) Reciprocal recognition of out-of-state certificates of registration. Mammographic x-ray units will not be granted reciprocal recognition and must comply with the requirements of this section. (o) Inspections. In addition to the requirements of sec.289.201(e) of this title, the following applies to inspections of mammography systems. (1) The agency shall inspect each mammography system that receives a certification in accordance with this chapter not later than the 60th day after the date the certification is issued. (2) The agency shall inspect, at least once annually, each mammography system that receives a certification. (3) To protect the public health, the agency may conduct more frequent inspections than required by this subsection. (4) The agency shall make reasonable attempts to coordinate inspections in this section with other inspections required in accordance with this chapter for the facility where the mammography system is used. (5) After each satisfactory inspection, the agency shall issue a certificate of inspection for each mammography system inspected. The certificate of inspection shall be posted at a conspicuous place on or near the place where the mammography system is used. The certificate of inspection shall include the following: (A) specific identification of the mammography system inspected; (B) the name and address of the facility where the mammography system was used at the time of the inspection; and (C) the date of the inspection. (6) Any Severity Level I violation found by the agency constitutes grounds for posting notice of failure of the mammography system to satisfy agency requirements. (A) Notification of such failure shall be posted: (i) on the mammography x-ray unit at a conspicuous place if the violation is machine-related; or (ii) near the place where the mammography system practices if the violation is personnel-related; and (iii) in a sufficient number of places to permit the patient to observe the notice. (B) The notice of failure shall remain posted until the facility is authorized to remove it by the agency. A facility may post documentation of corrections of the violations submitted to the agency along with the notice of failure until approval to remove the notice of failure is received from the agency. (7) The agency shall require registrants to notify patients on whom the facility performed a mammography during the 30 days preceding the date of the inspection that revealed the failure. The facility shall: (A) inform the patient that the mammography system failed to satisfy the agency's certification standards; (B) recommend that the patient have another mammogram performed at a facility with a certified mammography system; and (C) list the three facilities closest to the original testing facility that have a certified mammography system. (8) In addition to the requirements of paragraph (7) of this subsection, the agency may require a facility to notify a patient of any other failure of the facility's mammography system to meet the agency's certification standards. (9) The patient notification shall include the following: (A) explanation of the mammography system failure to the patient; and (B) the potential consequences to the mammography patient. (10) The registrant shall maintain a record of the mammography patients notified in accordance with paragraphs (7) and (8) of this subsection for inspection by the agency. The records shall include the name and address of each mammography patient notified, date of notification, and a copy of the text sent to the individual. (p) Accreditation of mammography facilities. (1) All mammography facilities shall be accredited by an authorized FDA accreditation body. All facilities applying for and receiving accreditation through the agency shall comply with sec.289.112 of this title, sec.289.201(c), (h)-(j), and (l)-(n) of this title, sec.289.203 of this title, subsections (b), (c)(1)-(3), (d)(1)-(3) and (7)-(13), and (e)(1) and (2) of this section. (2) In order to be accredited by the agency, the applicant shall submit an application for accreditation on forms and in accordance with accompanying instructions prescribed by the agency. (A) Each application must be signed by a licensed physician. (B) The agency may at any time after the filing of the original application, require further statements in order to enable the agency to determine whether the accreditation document should be issued, denied, modified, or revoked. (C) Applications and documents submitted to the agency may be made available for public inspection except that the agency may withhold any document or part thereof from public inspection in accordance with sec.289.201(n) of this title. (D) Each application for accreditation shall be accompanied by the fee prescribed in subsection (q) of this section. (E) Each applicant shall submit documentation of the following: (i) quality assurance program in accordance with subsection (d)(1) of this section; (ii) personnel qualifications, training, and experience in accordance with subsection (d)(2) of this section; (iii) model and serial number of each mammographic unit control panel; (iv) procedures on clinical image interpretation, patient notification, and patient data tracking; and (v) evidence of the following by a physicist holding a current Texas license under the Medical Physics Practice Act, Article 4512n with a specialty in Diagnostic Radiological Physics: (I) each unit meets the equipment standards in subsection (e)(1) of this section; and (II) the average glandular dose for one craniocaudal view for each unit does not exceed the appropriate values in subsection (e)(2) of this section. (F) Upon notification by the agency, each applicant shall directly submit the following to the American College of Radiology (ACR) in accordance with their procedures: (i) clinical images; (ii) phantom images; and (iii) processor data. (q) Fees for accreditation of mammography facilities. (1) Each application for accreditation of a mammography facility shall be accompanied by a nonrefundable fee. No application will be accepted for filing or processed prior to payment of the full amount specified. (2) A nonrefundable fee in accordance with paragraph (4) of this subsection shall be paid every three years for each accredited mammography unit. The fee shall be paid in full on or before the expiration date of the accreditation document if the facility wishes to remain accredited with the agency. (3) Fee payments shall be in cash or by check or money order made payable to the Texas Department of Health. The payments may be mailed or made by personal delivery to the Bureau of Radiation Control, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3189. (4) Fees for accreditation of mammography facilities are as follows. (A) The accreditation fee for the first mammography unit is $720. (B) The accreditation fee for each additional mammography unit is $345. (C) The fee for reevaluation of clinical images is $220 per unit. (r) Issuance of accreditation of a mammography facility. An accreditation document will be issued when the mammography facility meets the requirements of subsection (p) of this section and becomes accredited by the agency. In order for an accreditation to be issued, the agency must be notified by the ACR that the applicant met the criteria for clinical images, phantom images, and processor quality control. (s) Specific terms and conditions of accreditation of mammography facilities. (1) Each accreditation document issued in accordance with this section shall be subject to the applicable provisions of the Act, now or hereafter in effect, and to the applicable requirements and orders of the agency. (2) No accreditation document issued by the agency under this section shall be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, to any person. (t) Responsibilities of an accredited facility. A facility shall notify the agency at least annually of any changes that would render the information contained in the application inaccurate. (u) Expiration and renewal of accreditation of mammography facilities. (1) The accreditation shall expire on the date specified on the accreditation document. (2) Application for renewal of accreditation shall be filed in accordance with subsection (p) of this section and subsection (q) of this section. (3) If a registrant files an application in proper form at least 30 days before the existing accreditation expires, such existing accreditation shall not expire until the application status has been determined by the agency. (4) Accreditation for a mammographic facility is valid for three years from the date of issuance, unless accreditation of the facility is revoked prior to such deadline. (5) Issuance of renewal of accreditation shall be in accordance with subsection (r) of this section. (v) Denial of accreditation of mammography facilities. (1) Any application for accreditation may be denied by the agency when the applicant fails to meet established criterion for accreditation or fails to respond to requests for information. Agency action on an application will be abandoned due to lack of response by the applicant. Abandonment of such actions does not provide an opportunity for a hearing; however, the applicant retains the right to resubmit the application at any time. (2) Before the agency denies an application for accreditation, the agency shall give notice by personal service or by certified mail, return receipt requested, of the intent to deny, the facts warranting the denial, and afford the applicant an opportunity for a hearing. If no request for a hearing is received by the director of the Radiation Control Program within 30 days of personal service or the date of mailing, the agency may proceed to deny. The applicant shall have the burden of proof showing cause why the application should not be denied. (w) Modification and revocation of accreditation of mammography facilities. (1) Any accreditation document may be revoked, suspended, or modified, in whole or in part, for any of the following: (A) any material false statement in the application or any statement of fact required under provisions of the Act; (B) conditions revealed by such application or statement of fact or any report, record, or inspection, or other means that would warrant the agency to refuse to grant an accreditation document on an original application; or (C) violation of, or failure to observe any of the terms and conditions of the Act, this chapter, or of the accreditation document, or order of the agency. (2) Except in cases of willfulness or those in which the public health, interest or safety requires otherwise, no accreditation document shall be modified, suspended, or revoked unless, prior to the institution of proceedings therefore, facts or conduct that may warrant such action shall have been called to the attention of the accredited facility in writing and the accredited facility shall have been afforded an opportunity to demonstrate or achieve compliance with all lawful requirements. (x) On-site facility visit. Each accredited facility shall: (1) afford the agency, at all reasonable times, opportunity to audit the facility where mammography equipment or associated equipment is used or stored; and (2) make available to the agency for inspection, upon reasonable notice, records maintained in accordance with this chapter. (y) Complaints. Each facility shall post the following address where complaints may be filed with the Texas Department of Health, Bureau of Radiation Control, Mammography Accreditation Program, 1100 West 49th Street, Austin, Texas 78756- 3189. (z) Appendices. (1) Subjects to be included in mammography training shall include, but not be limited, to the following: (A) anatomy and physiology of the female breast that shall include: (i) mammary glands; (ii) external anatomy; (iii) retromammary space; (iv) central portion; (v) cooper's ligament; (vi) vessels, nerves, lymphatics; and (vii) breast tissue: (I) fibro-glandular; (II) fibro-fatty; (III) fatty; and (IV) lactating; (B) mammography positioning that shall include actual positioning of patients and/or models as follows: (i) craniocaudal; (ii) mediolateral oblique; (iii) supplemental; (iv) magnification; (v) errors in positioning; (vi) postoperative breast and the augmented breast; (vii) breast localization and specimen radiography; and (viii) use of compression; (C) technical factors; (D) film evaluation and critique; (E) pathology; and (F) quality assurance program. (2) Time requirements for record keeping shall be in accordance with the following chart. Figure: 25 TAC sec.289.230(z)(2) This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811422 Susan K. Steeg General Counsel Texas Department of Health Effective date: August 9, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE PART I. Texas Department of Insurance CHAPTER 3. Life, Accident and Health Insurance and Annuities SUBCHAPTER D. Indeterminate Premium Reduction Policies 28 TAC sec.3.309 The Texas Department of Insurance adopts an amendment to sec.3.309, concerning minimum reserve requirements for indeterminate premium reduction policies. The amendment is adopted with changes to the proposed text as published in the January 23, 1998, issue of the Texas Register (23 TexReg 507). A public hearing on the amendment was held on April 22, 1998. The amendment provides alternatives to the existing calculation described in sec.3.309(a)and(b) for determining the minimum reserves required for the life insurance products described in sec.3.301 of this title (Relating to Indeterminate Premium Reduction Policies). One of the new alternatives provide that an insurer that has issued these products may provide the department an annual actuarial opinion specific to these products in addition to the actuarial opinion required by Insurance Code, Article 3.28, sec.2A. The other alternative provides that an insurer may calculate the reserves on these products in accordance with Subchapter NN, Valuation of Life Insurance Policies, which is published elsewhere in this issue of the Texas Register as an adopted new regulation. These methods can be used for those policies issued before January 1, 2000. On or after that date, the products must comply with Subchapter NN. The effective date for Subchapter NN was proposed as December 31, 1998. In response to comments the effective date was changed to January 1, 2000. Section 3.309(d) has been changed to reflect the change in the effective date of Subchapter NN. The reserves for those policies issued on or after that date would be subject to Subchapter NN. Issuers of these products may use any of the methods described in sec.3.309 in their 1998 annual statement and subsequent financial statements filed with the department. The adopted section provides insurers three options for determining minimum reserve requirements. Insurers can continue to calculate the minimum reserve requirements under sec.3.309(a)and(b), or it can use the gross premium valuation in sec.3.309(c)(1), or it can comply with the provisions of Chapter 3, Subchapter NN, Valuation of Life Insurance Policies of this title. The commenters supported the adoption of a gross premium valuation. Comments on Chapter 3, Subchapter NN of this title may be found elsewhere in this issue of the Texas Register. The effective date of Subchapter NN was changed to January 1, 2000, and the amendment to this section reflects that change. American National Insurance Company, First Colony Life Insurance Company, Texas Association of Life & Health Insurers commented for the section. There were no comments against the section. The amendment is adopted under the Insurance Code, Articles 3.28 and 1.03A. Article 3.28 authorizes the commissioner to adopt mortality tables and methods consistent with Article 3.28. Article 1.03A provides the commissioner with the authorization to adopt rules and regulations for the conduct and execution of the duties and functions by the department only as authorized by a statute. sec.3.309. Minimum Reserves. (a) The minimum reserve basis stated in the Insurance Code, Article 3.28, requires modified net premiums that are a "uniform percentage of the respective collected premiums." The same contract premiums at the same durations are used in the reserve computation as are used in the minimum cash value computation. The reserve must never be less than the cash value, if any, in the policy. (b) Deficiency reserves are required to be calculated using guaranteed premiums. Thus, maximum guaranteed premiums specified in the policy are used in the calculation except that any lower guaranteed premiums must be used for the periods guaranteed. As in other type policies, negative terminal reserves are not permitted; and net premiums for the earlier policy years shall be increased, if necessary, to produce a terminal reserve of zero at the end of such policy years. Any increased net premiums shall be used as the valuation net premiums for purposes of Insurance Code, Article 3.28, sec.10. (c) As an alternative to calculating deficiency reserves under subsection (b) of this section, reserves may be calculated pursuant to paragraphs (1) or (2) of this subsection. (1) Calculate reserves pursuant to Insurance Code, Article 3.28, supported by an actuarial certification of reserve adequacy by an appointed actuary based on an appropriate gross premium valuations; or (2) Calculate the reserves in compliance with Chapter 3, Subchapter NN of this title (relating to Valuation of Life Insurance Policies). (d) For policies issued on or after January 1, 2000, and subject to this section, reserves for those policies shall be calculated in accordance with the provisions of Chapter 3, Subchapter NN of this title (relating to Valuation of Life Insurance Policies). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811405 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: August 9, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-6327 SUBCHAPTER NN. Valuation of Life Insurance Policies 28 TAC sec.sec.3.14001-3.14008 The Commissioner of Insurance adopts new Subchapter NN, sec.sec.3.14001-3.14008 concerning the valuation of life insurance policies. Sections 3.14006-3.14008 are adopted with changes to the proposed text as published in the January 23, 1998, issue of the Texas Register (23 TexReg 509). A public hearing on the subchapter was held on April 22, 1998. Sections 3.14001-3.14005 are adopted without changes and will not be republished. The new subchapter is necessary to effectively address reserve requirements for insurers and to provide a minimum reserve method for non-level premium products consistent with the principles of the Standard Valuation Law (SVL), Insurance Code, Article 3.28. The subchapter will promote consistency in reserving for the products subject to this subchapter, the use of updated mortality standards, and the long term solvency of insurers. A number of insurers interpret the SVL to allow the calculation of negative terminal reserves for many of the indeterminate premium products in the market today. Negative reserves do not provide for benefits as they come due under SVL assumptions. Although these insurers override the calculation to set up non-negative reserves, such reserves are still inadequate and appropriate deficiency reserves are not established to support these non-negative reserves. Section 3.14006 was changed to correct the typographical error in subsection (b)(2) and (3) where the paragraphs referred to "subsection (b) of this section." That is changed to "subsection (b) of sec.3.14005." Section 3.14007 was changed in response to a comment that pointed out that the third sentence in subsection (a)(5) did not exclude the select mortality factors defined in sec.3.14005(b)(1)(B),(C), and (D) in the calculation of one-year premium valuations. Section 3.14007 was also changed to correct a typographical error in subsection (b) which referred to sec.3.14004(b). Since there is no subsection(b), it is deleted in the adopted section. Section 3.14008 was changed in response to comments by making the effective date of the subchapter January 1, 2000. Subchapter NN will apply to all life insurance policies, with or without nonforfeiture values, with certain exceptions and conditions. The purpose of the regulation is to adopt tables of select mortality factors; and, rules for their use; rules concerning a minimum standard for the valuation of plans with nonlevel premiums or benefits, and rules concerning a minimum standard for the valuation of plans with secondary guarantees. The method for calculating basic reserves defined in the adopted subchapter will constitute the commissioners' reserve valuation method for policies to which this subchapter applies. The effective date is January 1, 2000, in order to provide affected insurers time to prepare for these new requirements and seek uniform adoption of similar regulations among the states. Section 3.14001 describes the purpose of Subchapter NN. Section 3.14002 contains six tables of base select mortality factors that were adopted by the NAIC on March 12, 1995, in connection with the adoption by the NAIC of the model regulation for the valuation of life insurance policies. Section 3.14003 describes the applicability of Subchapter NN. Section 3.14004 contains definitions of certain terms used in the subchapter. Section 3.14005 describes the general calculation requirements for basic reserves and premium deficiency reserves. Section 3.14006 describes the calculation of minimum valuation standard for policies with guaranteed nonlevel premiums or guaranteed nonlevel benefits (other than universal life policies). Section 3.14007 describes the calculation of the minimum valuation standard for flexible premium and fixed premium universal life insurance policies that contain provisions resulting in the ability of a policyowner to keep a policy in force over a secondary guarantee period of more than five years. Section 3.14008 states the date, January 1, 2000, when insurers must comply with the provisions of Subchapter NN for life insurance policies issued on or after that date. The type of products most affected by the regulation are those where the guaranteed maximum premiums after an initial period of years are much higher than the guaranteed low premiums during the initial period of years. The guaranteed maximum premiums for the product described in the preceding sentence are approximately ten to fifteen times higher in later years than the initial guaranteed premium. These products are referred to as "Indeterminate Premium Reduction Policies". Insurers with these products that hold reserves only to provide for the expected cost of insurance in the current year may experience an increase in reserves as a result of this regulation. This increase will vary by such factors as the length of the initial period of years (as referenced previously), reserve method, reserve interest rate, the amount of increase of the guaranteed maximum premiums, issue age, length of the benefit period, and the degree of selection in the risks covered. Anticipated ranges of the increase in reserves for these products based on the length of the initial guarantee period are as follows: 1) Immaterial increase where the initial period is less than five years; 2) An increase of two-five times where the initial period is ten years; and 3) An increase of approximately ten times where the initial period is 20 years. These ranges assume that the insurer is currently providing reserves for only the anticipated cost of insurance in the current year. The department assumes that the ranges set out above are the highest levels that could occur at some point in the coverage period, and particular results may vary. Increasing reserves to the required levels would then extend a similar level of reserve conservatism to these products as is already required of other life products which should promote greater solvency protection to both the insurer and the public. For insurers who experience the anticipated ranges of reserve increases listed above, the range of increases in the price of these products is estimated to be as follows: 1) Immaterial price increase where the initial period is less than five years; 2) An approximate 7% price increase where the initial period is ten years; and 3) An approximate 20% price increase where the initial period is 20 years. Such price increases would only be anticipated if an insurer (subject to the assumptions mentioned previously) funds any reserve increase solely out of premiums rather than other sources, and would also depend on whether the insurer chooses to continue to offer the particular product as presently designed, or decides to make modifications to its policy forms. Costs to the insurer given any increase in reserves would be the cost of funds required to be in reserves versus available for other uses. The impact of the cost, as with any increase in liabilities, depends on the opportunities for use of funds available to an insurer. The public benefit served by the change is the establishment of reasonable reserve conservatism to promote solvency and the provision for similar reserve conservatism for indeterminate premium products as that required of other products. The result therefore is a leveling of the competitive position of various term life products. The numerous other products where such reserve conservatism is currently required are anticipated to generally experience a lower but still reasonable amount of reserve conservatism due to the use of improved mortality tables that this regulation will provide in the calculation of reserves. This reduction of reserves may result in lower prices for these other products. As stated previously, this regulation will result in the same level of acceptable required reserve conservatism to be extended to all products to which this regulation applies, which will promote solvency benefits to both the insurer and the public. In addition, this regulation will promote reasonable competition across the various product lines which is a benefit to the insurer in having similar reserve standards and is expected to be a benefit to the public in lower prices for many products. COMMENT: Several commenters objected to the proposed effective date of December 31, 1998. Most of them recommended that the subchapter become effective when the states with 51% of the U.S. population adopted a similar regulation. They said this approach would accomplish nationwide uniformity on this matter, an important goal for insurers writing indeterminate premium products in numerous states. Other commenters said the December 31, 1998, effective date would place Texas domiciled insurers at a competitive disadvantage with insurers in other states that have not adopted similar reserving standards. RESPONSE: The department changed the effective date to January 1, 2000, in response to these comments. The department recognizes the value of nationwide uniformity in reserving standards, however, the recommendation that the subchapter be effective when states with 51% of the U.S. population adopt similar standards is considered too subjective to meet the requirement of Government Code, sec.2001.036 for the effective date of rules. The department also recognizes that domestic companies will be at a competitive disadvantage with insurers in other states that do not have similar reserving standards, therefore, the change in the effective date is intended to allow more states to adopt similar regulations. COMMENT: One commenter recommended that a long term solution to appropriate term reserves be developed by the American Academy of Actuaries and for states to continue to follow the current Standard Valuation Law in the interim. RESPONSE: The department is aware that the American Academy of Actuaries is working to develop significant changes to the Standard Valuation Law, however, this effort is in the initial drafting stages and the completion date is not known. The department will follow this effort and will consider recommendation to the legislature when completed. COMMENT: One commenter recommended that the current actuarial opinion and memorandum regulation be modified to provide an additional actuarial opinion based on a gross premium valuation analysis instead of adopting this subchapter. RESPONSE: The department disagrees with the recommendation. Such an additional opinion cannot substitute as a method required by the Standard Valuation Law for the calculation of minimum reserves. Such an opinion and gross premium valuation analysis can only be used to increase reserves over the minimum reserves required by the Standard Valuation Law. COMMENT: One commenter recommended that the mortality in this subchapter should be considered in the legislative process as opposed to being adopted through rule. RESPONSE: The legislature has delegated to the commissioner the necessary authority to adopt these mortality tables which have also been adopted by the NAIC. COMMENT: One commenter recommended that the mortality tables in sec.3.14006(f)(4) be identical to those permitted under proposed sec.3.14005(b)(1)(A)-(D). RESPONSE: The department disagrees with this recommendation. The tables in sec.3.14006(f)(4) are intended to be used for an optional simplified calculation for both basic reserves and deficiency reserves. The tables provide for a minimum floor of reserve conservatism given the simplification allowed. Note that the insurer can still elect to follow the standard basic and deficiency reserve calculations using the tables provided for in sec.3.14005. COMMENT: One commenter recommended that the mortality tables proposed under sec.3.14006(g)(2) be identical to those in proposed sec.3.14005(a)(1)-(4). The commenter adds that there is no logical justification for allowing use of the proposed sec.3.14005 tables for policies with guarantees greater than one year while disallowing them for one-year policies. RESPONSE: The department disagrees with the recommendation. The mortality tables currently provided are used as a test to determine whether the exemption in sec.3.14006(g) can be allowed. The level of mortality used for this test is conservative to allow the exemption of the unitary reserve calculation. If exempted, then unitary basic reserves and unitary deficiency reserves need not be calculated. However, segmented basic reserves and segmented deficiency reserves would be calculated and would be allowed to use the mortality tables afforded to other basic and deficiency reserve calculations in this subchapter which includes those mortality tables in sec.3.14005. COMMENT: A commenter recommended adoption of this subchapter as early as practical with the proposed effective date of December 31, 1998. The commenter provided support which included mention of the opinion of the American Academy of Actuaries that this subchapter is consistent with the Standard Valuation Law, the concern that companies will continue to manipulate the guaranteed premiums in order to produce illogical and insufficient reserves without this subchapter, and concerns for company solvency without this subchapter. The commenter added that their company holds reserves required by this subchapter. RESPONSE: The department acknowledges and agrees that these comments support adoption. COMMENT: A commenter recommended that Texas consider an alternate proposal which is currently being developed to address the level of mortality in this subchapter and the resulting level of deficiency reserves which are believed to be excessive. The methodology for this alternate proposal would be based on this subchapter and the mortality would be some multiple of an accepted table which is thought to produce reserves that would be acceptable for tax purposes. RESPONSE: The department is open to consider any alternate proposal or any reasonable modification of this subchapter which provides for a reserve method that meets the requirements of the Standard Valuation Law. The department understands the arguments that the mortality in this subchapter may be too conservative for a number of risks underwritten today and is open to consider proposals with respect to such mortality. The department also understands the industry desire for uniform reserving requirements across states and therefore any such alternate proposal would need to have a reasonable expectation of uniform adoption. Until an alternate proposal is developed, department believes that Subchapter NN is the best available reserve method for uniform adoption by the states. COMMENT: Two commenters said that this subchapter does not include expense levels, commission levels, lapse rates, and reinsurance costs in the reserve calculation. RESPONSE: The department notes that this subchapter provides a method for minimum reserves in compliance with the Standard Valuation Law. A minimum reserve method does not specifically provide for these factors in the reserve calculation. Rather, one reserve expense component is calculated which is intended to cover all expenses with the exception of lapse rates. Lapse rates are not allowed by the Standard Valuation Law in the minimum reserve method to lower reserves. The department notes further that such factors, however, are allowed to be considered in the Standard Valuation Law by the appointed actuary to perform testing which, in the appointed actuary's opinion, may increase the minimum reserve in the aggregate over the reserves produced by the minimum reserve method. COMMENT: Several commenters opposed adoption of this subchapter and cited that adoption of this subchapter will either cause prices to increase for the consumers or will cause changes in the design of term products that consumers do not want. RESPONSE: The department and the NAIC thoroughly considered the possible effects of the subchapter, and the NAIC model act on which the subchapter is based, on the applicable products and their costs. The department believes that the sound financial practices established by the subchapter take precedence over the concerns expressed by the commenters. COMMENT: Several commenters said that the subchapter's deficiency reserve exemption, for products with initial premium guarantees of five years or less, is inappropriate. RESPONSE: The department disagrees. For initial guarantee periods of five years or less the deficiency reserves are considered to be minimal, thus posing a reduced risk to the solvency of an insurer. By exempting products with an initial premium guarantee of five years or less, the subchapter will not affect those products. COMMENT: Several commenters cited that the subchapter contains mortality that is too conservative and produces reserves that are too high. RESPONSE: Insurance Code, Article 3.28, requires that the NAIC adopt mortality rates before they can be considered for adoption by the commissioner. The department is aware that the mortality in the subchapter is considered by many to be too conservative, however, it is the only mortality that has been adopted by the NAIC. COMMENT: Several commenters criticized the complexity of the subchapter and speculated that the subchapter will cause insolvencies. RESPONSE: The subchapter is complex as a result of the subject it addresses. The department adopts the subchapter for the purpose of preventing insolvencies in the future by assuring conservative reserve practices. Since the subchapter only applies to policies issued on or after the effective date, the reserve requirements will be applied only to those new policies, not any existing policies, hence the subchapter will not cause insolvencies and instead will promote solvency. COMMENT: A commenter recommended that the third sentence in sec.3.14007(a)(5) should be changed to include references to sec.3.14005(a)(2),(3)and (4) to mirror the NAIC model regulation. RESPONSE: The department inadvertently omitted the reference and agrees with the comment. Section 3.14007(a)(5), third sentence, is changed to read as follows: The select mortality factors defined in sec.3.14005(a)(2),(3) and (4) and sec.3.14005(b)(1)(B),(C) and (D) of this title (relating to General Calculation Requirements for Basic Reserves and Premium Deficiency Reserves) may not be used to calculate the one-year valuation premiums. Commenters generally supported adoption of Subchapter NN, however, they urged that the subchapter be effective in uniformity with other states. These commenters were the American Academy of Actuaries, American Council of Life Insurance, American General Life Insurance Company, American National Insurance Company, C.N.A., Northwestern Mutual Life Insurance Company, Occidental Life Insurance Company, Southwestern Life Insurance Company, Texas Association of Life & Health Insurers, The Equitable Life Assurance Society, and USAA Life Insurance Company. Commenting against the subchapter were Compulife Softwear Inc., First Colony Life Insurance Company, Hawkins & Associates and National Alliance of Life Companies. The new sections are adopted under the Insurance Code, Articles 3.28 and 1.03A. Article 3.28 authorizes the commissioner of insurance to adopt mortality tables adopted by the National Association of Insurance Commissioners and modifications to those mortality tables and methods consistent with Article 3.28. Article 1.03A provides the commissioner with the authority to adopt rules and regulations for the conduct and execution of the duties and functions of the department only as authorized by a statute. sec.3.14006. Calculation of Minimum Valuation Standard for Policies with Guaranteed Nonlevel Premiums or Guaranteed Nonlevel Benefits (Other than Universal Life Policies). (a) Basic Reserves. Basic reserves shall be calculated as the greater of the segmented reserves and the unitary reserves. Both the segmented reserves and the unitary reserves for any policy must use the same valuation mortality table and selection factors. At the option of the insurer, in calculating segmented reserves and net premiums, either one of the two adjustments described in paragraphs (1) or (2) of this subsection may be made. (1) An insurer may use the adjustments described in this paragraph. (A) Treat the unitary reserve, if greater than zero, applicable at the end of each segment as a pure endowment; and (B) subtract the unitary reserve, if greater than zero, applicable at the beginning of each segment from the present value of guaranteed life insurance and endowment benefits for each segment. (2) An insurer may use the adjustments described in this paragraph. (A) Treat the guaranteed cash surrender value, if greater than zero, applicable at the end of each segment as a pure endowment; and (B) subtract the guaranteed cash surrender value, if greater than zero, applicable at the beginning of each segment from the present value of guaranteed life insurance and endowment benefits for each segment. (b) Deficiency Reserves. (1) The deficiency reserve at any duration shall be calculated: (A) on a unitary basis if the corresponding basic reserve determined by subsection (a) of this section is unitary; (B) on a segmented basis if the corresponding basic reserve determined by subsection (a) of this section is segmented; or (C) on the segmented basis if the corresponding basic reserve determined by subsection (a) of this section is equal to both the segmented reserve and the unitary reserve. (2) This subsection shall apply to any policy for which the guaranteed gross premium at any duration is less than the corresponding modified net premium calculated by the method used in determining the basic reserves, but using the minimum valuation standards of mortality specified in sec.3.14005(b) of this title (Relating to General Calculation Requirements for basic Reserves and Premium Deficiency Reserves) and rate of interest. (3) Deficiency reserves, if any, shall be calculated for each policy as the excess if greater than zero, for the current and all remaining periods, of the quantity A over the basic reserve, where A is obtained as indicated in sec.3.14005(b) of this title (Relating to General Calculation Requirements for basic Reserves and Premium Deficiency Reserves). (4) For deficiency reserves determined on a segmented basis, the quantity A is determined using segment lengths equal to those determined for segmented basic reserves. (c) Minimum Value. Basic reserves may not be less than the tabular cost of insurance for the balance of the policy year, if mean reserves are used. Basic reserves may not be less than the tabular cost of insurance for the balance of the current modal period or to the paid-to-date, if later, but not beyond the next policy anniversary, if mid-terminal reserves are used. The tabular cost of insurance must use the same valuation mortality table, select mortality factor and interest rates as that used for the calculation of both the segmented and the unitary reserves. In no case may total reserves (including basic reserves, deficiency reserves and any reserves held for supplemental benefits that would expire upon contract termination) be less than the amount that the policyowner would receive (including the cash surrender value of the supplemental benefits, if any, referred to above), exclusive of any deduction for policy loans, upon termination of the policy. (d) Unusual Pattern of Guaranteed Cash Surrender Values. (1) For any policy with an unusual pattern of guaranteed cash surrender values, the reserves actually held prior to the first unusual guaranteed cash surrender value shall not be less than the reserves calculated by treating the first unusual guaranteed cash surrender value as a pure endowment and treating the policy as an n year policy providing term insurance plus a pure endowment equal to the unusual cash surrender value, where n is the number of years from the date of issue to the date the unusual cash surrender value is scheduled. (2) The reserves actually held subsequent to any unusual guaranteed cash surrender value shall not be less than the reserves calculated by treating the policy as an n year policy providing term insurance plus a pure endowment equal to the next unusual guaranteed cash surrender value, and treating any unusual guaranteed cash surrender value at the end of the prior segment as a net single premium, where: (A) n is the number of years from the date of the last unusual guaranteed cash surrender value prior to the valuation date to the earlier of: (i) the date of the next unusual guaranteed cash surrender value, if any, that is scheduled after the valuation date; or (ii) the mandatory expiration date of the policy; and (B) the net premium for a given year during the n year period is equal to the product of the net to gross ratio and the respective gross premium; and (C) the net to gross ratio is equal to clause (i) of this paragraph divided by clause (ii) of this paragraph as follows: (i) the present value, at the beginning of the n year period, of death benefits payable during the n year period plus the present value, at the beginning of the n year period, of the next unusual guaranteed cash surrender value, if any, minus the amount of the last unusual guaranteed cash surrender value, if any, scheduled at the beginning of the n year period; (ii) the present value, at the beginning of the n year period, of the scheduled gross premiums payable during the n year period. (3) For purposes of this subsection, a policy is considered to have an unusual pattern of guaranteed cash surrender values if any future guaranteed cash surrender value exceeds the prior year's guaranteed cash surrender value by more than the sum of: (A) 110% of the scheduled gross premium for that year; (B) 110% of one year's accrued interest on the sum of the prior year's guaranteed cash surrender value and the scheduled gross premium using the nonforfeiture interest rate used for calculating policy guaranteed cash surrender values; and (C) 5% of the first policy year surrender charge, if any. (e) Optional Exemption for Yearly Renewable Term (YRT) Reinsurance. At the option of the company, the following approach for reserves on YRT reinsurance may be used: (1) Calculate the valuation net premium for each future policy year as the tabular cost of insurance for that future year. (2) Basic reserves shall never be less than the tabular cost of insurance for the appropriate period, as defined in subsection (c) of this section. (3) Deficiency reserves. (A) For each policy year, calculate the excess, if greater than zero, of the valuation net premium over the respective maximum guaranteed gross premium. (B) Deficiency reserves shall never be less than the sum of the present values, at the date of valuation, of the excesses determined in accordance with subparagraph (A) of this paragraph. (4) For purposes of this subsection, the calculations use the maximum valuation interest rate and the 1980 CSO mortality tables with or without ten-year select mortality factors, or any other table adopted after the effective date of this regulation by the NAIC and promulgated by regulation by the commissioner for this purpose. (5) A reinsurance agreement shall be considered YRT reinsurance for purposes of this subsection if: (A) the reinsurance premium rates (on both the initial current premium scale and the guaranteed maximum premium scale) for any given year are independent of both the premium rates and the plan of the original policy; and (B) only the mortality risk is reinsured. (f) Optional Exemption for Attained-Age-Based Yearly Renewable Term Life Insurance Policies. At the option of the company, the approach described in paragraphs (1) and (2) of this subsection for reserves for attained-age-based YRT life insurance policies may be used. (1) Calculate the valuation net premium for each future policy year as the tabular cost of insurance for that future year. (2) Basic reserves shall never be less than the tabular cost of insurance for the appropriate period, as defined in subsection (c) of this section. (3) Deficiency reserves. (A) For each policy year, calculate the excess, if greater than zero, of the valuation net premium over the respective maximum guaranteed gross premium. (B) Deficiency reserves shall never be less than the sum of the present values, at the date of valuation, of the excesses determined in accordance with subparagraph (A) of this paragraph. (4) For purposes of this subsection, the calculations use the maximum valuation interest rate and the 1980 CSO valuation tables with or without ten-year select mortality factors, or any other table adopted after the effective date of this regulation by the NAIC and promulgated by regulation by the commissioner for this purpose. (5) A policy shall be considered an attained-age-based YRT life insurance policy for purposes of this subsection if: (A) the premium rates (on both the initial current premium scale and the guaranteed maximum premium scale) are based upon the attained age of the insured such that the rate for any given policy at a given attained age of the insured is independent of the year the policy was issued; and (B) the premium rates (on both the initial current premium scale and the guaranteed maximum premium scale) are the same as the premium rates for policies covering all insureds of the same sex, risk class, plan of insurance and attained age. (6) For policies that become attained-age-based YRT policies after an initial period of coverage, the approach of this subsection may be used after the initial period if: (A) the initial period is constant for all insureds of the same sex, risk class and plan of insurance; or (B) the initial period runs to a common attained age for all insureds of the same sex, risk class and plan of insurance; and (C) after the initial period of coverage, the policy meets the conditions of paragraph (5) of this subsection. (7) If this election is made, this approach must be applied in determining reserves for all attained-age-based YRT life insurance policies issued on or after the effective date of this subchapter. (g) Exemption from Unitary Reserves for Certain n-Year Renewable Term Life Insurance Polices. Unitary basic reserves and unitary deficiency reserves need not be calculated for a policy if the conditions described in paragraphs (1)-(3) of this subsection are met. (1) The policy consists of a series of n-year periods, including the first period and all renewal periods, where n is the same for each period, and for each n-year period, the premium rates on both the initial current premium scale and the guaranteed maximum premium scale are level; (2) the guaranteed gross premiums in all n-year periods are not less than the corresponding net premiums based upon the 1980 CSO Table with or without the ten-year select mortality factors; and (3) there are no cash surrender values in any policy year. (h) Exemption from Unitary Reserves for Certain Juvenile Policies. Unitary basic reserves and unitary deficiency reserves need not be calculated for a policy if the conditions described in paragraphs (1) - (3) of this subsection are met, based upon the initial current premium scale at issue. (1) At issue, the insured is age twenty-four or younger; (2) until the insured reaches the end of the juvenile period, which must occur at or before age twenty-five, the gross premiums and death benefits are level, and there are no cash surrender values; and (3) after the end of the juvenile period, gross premiums are level for the remainder of the premium paying period, and death benefits are level for the remainder of the life of the policy. sec.3.14007. Calculation of Minimum Valuation Standard for Flexible Premium and Fixed Premium Universal Life Insurance Policies That Contain Provisions Resulting in the Ability of a Policyowner to Keep a Policy in Force Over a Secondary Guarantee Period of More Than Five Years. (a) General. (1) Policies with a secondary guarantee include: (A) a policy with a guarantee that the policy will remain in force at the original schedule of benefits over a period exceeding five years, subject only to the payment of specified premiums; (B) a policy in which the minimum premium at any future duration beyond the end of the fifth policy year is less than the corresponding one year valuation premium, calculated using the maximum valuation interest rate and the 1980 CSO valuation tables with or without ten-year select mortality factors, or any other table adopted after the effective date of this regulation by the NAIC and promulgated by regulation by the commissioner for this purpose; or (C) a policy with any combination of paragraphs (A) and (B) of this paragraph. (2) A secondary guarantee period is the longest period for which the policy is guaranteed to remain in force subject only to a secondary guarantee. Secondary guarantees that are unilaterally extended by the insurer after issue shall be considered to have been made at issue. Reserves described in subsections (b) and (c) of this section must be recalculated from issue to reflect the extensions. (3) Specified premiums mean the premiums specified in the policy, the payment of which guarantees that the policy will remain in force at the original schedule of benefits, but which otherwise would be insufficient to keep the policy in force in the absence of the guarantee if maximum mortality and expense charges and minimum interest credits were made and any applicable surrender charges were assessed. (4) For purposes of this section, the minimum premium for any policy year is the premium that, when paid into a policy with a zero account value at the beginning of the policy year, produces a zero account value at the end of the policy year. The minimum premium calculation must use the policy cost factors (including mortality charges, loads and expense charges) and the interest crediting rate, which are all guaranteed at issue. (5) The one-year valuation premium means the net one-year premium based upon the original schedule of benefits for a given policy year. The one-year valuation premiums for all policy years are calculated at issue. The select mortality factors defined in sec.sec.3.14005(a)(2),(3) and (4) and 3.14005(b)(1)(B), (C), and (D) of this title (relating to General Calculation Requirements for Basic Reserves and Premium Deficiency Reserves) may not be used to calculate the one- year valuation premiums. (b) Basic Reserves for the Secondary Guarantees. Basic reserves for the secondary guarantees shall be the segmented reserves for the secondary guarantee period. In calculating the segments and the segmented reserves, the gross premiums shall be set equal to the specified premiums, if any, or otherwise to the minimum premiums, that keep the policy in force and the segments will be determined according to the contract segmentation method as defined in sec.3.14004 of this title (relating to Definitions). (c) Deficiency Reserves for the Secondary Guarantees. Deficiency reserves, if any, for the secondary guarantees shall be calculated for the secondary guarantee period in the same manner as described in sec.3.14006(b) of this title (Calculation of Minimum Valuation Standard for Policies with Guaranteed Nonlevel Premiums or Guaranteed Nonlevel Benefits (Other Than Universal Life Policies) with gross premiums set equal to the specified premiums, if any, or otherwise to the minimum premiums that keep the policy in force. (d) Minimum Reserves. The minimum reserves during the secondary guarantee period are the greater of: (1) The basic reserves for the secondary guarantee plus the deficiency reserve, if any, for the secondary guarantees; or (2) The minimum reserves required by other rules or subchapters governing universal life plans. sec.3.14008. Effective Date. This subchapter is effective January 1, 2000. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811404 Lynda H. Nesenholtz General Counsel and Chief Clerk Texas Department of Insurance Effective date: August 9, 1998 Proposal publication date: January 23, 1998 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY PART I. Texas Natural Resource Conservation Commission CHAPTER 106.Exemptions From Permitting SUBCHAPTER I.Manufacturing 30 TAC sec.106.226 The Texas Natural Resource Conservation Commission (commission) adopts new sec.106.226, concerning Paints, Varnishes, Ink, and Other Coating Manufacturing and sec.106.375, concerning Aqueous Solutions for Electrolytic and Electroless Processes; and amendments to sec.106.351, concerning Salt Water Disposal (Petroleum), sec.106.435, concerning Classic or Antique Automobile Restoration Facility, and sec.106.477, concerning Anhydrous Ammonia Storage. The commission also adopts the repeal of the existing sec.106.226 and sec.106.375. Section 106.351 and new sec.106.226 and sec.106.375 are adopted with changes to the proposed text as published in the February 20, 1998, issue of the Texas Register (23 TexReg 1508). The remaining sections are adopted without changes and will not be republished. EXPLANATION OF ADOPTED RULES The new sec.106.226 and sec.106.375 have been restructured and reorganized for easier understanding and use. The new sec.106.226 restricts emissions through limits on raw material use rather than stating emission limits, and prohibits the use, under exemption, of the heavy metals strontium and cobalt in concentrations of more than 0.1% by weight. These metals, used to add color to paints and inks, are added to the existing list of heavy metals within the section which already have percentage weight restrictions. Heavy metals can be toxic with sufficient concentration or exposure. To be protective of human health, use of the metals in concentrations above 0.1% would require a detailed review of the facility's operation, and should not be eligible for an exemption from permitting. The commission has also added recordkeeping requirements to aid enforcement. The adopted amendment to sec.106.351 requires that new salt water disposal facilities register with the commission using the PI-7 form unless the facility processes the water without exposing it to the atmosphere or processes 540,000 gallons or less of salt water per day. This registration will notify the commission that users of the exemption could exceed the 25-ton per year emission limit of volatile organic compounds (VOCs) established for exempted facilities. The registration should also indicate when the hydrogen sulfide emission limits contained in 30 TAC sec.112.31, concerning Allowable Emissions-Residential, Business, or Commercial Property and sec.112.32, concerning Allowable Emissions- Other Property might be exceeded. Registration of the larger facilities will allow the commission to better track and inventory emissions. The new sec.106.375 was revised to reduce the risk of potentially harmful exposure to heavy metals and hydrochloric acid (HCl). To prevent emissions of chromium, the new section clarifies the existing prohibition on the use of chromic acid in solutions that are caused to bubble or mist. This restriction is placed because chromium is a heavy metal with exposure limits that would need a more thorough analysis than that allowed by an exemption from permitting. The commission would add new language to the section requiring that emissions from certain authorized operations be vented through a vertical stack to provide good dispersion. A further restriction is placed on the concentrations, temperature, and partial pressure of HCl used in aqueous solutions to reduce emissions of HCl vapor. These restrictions are adopted to reduce the risk of human health effects from operations authorized under the section. The amendment to sec.106.435 is purely administrative and changes a reference from the Texas Traffic Laws to the Texas Transportation Code, recognizing recent changes in the Texas Civil Statutes. The amendment to sec.106.477 adds clarification that the restrictions in the section apply to permanent ammonia storage tanks and nurse tanks to help prevent nuisances. This section is primarily applied to agricultural operations, and the nurse tanks are those carried to the field and used to inject ammonia into the soil to increase nitrogen levels. The amendments require that connectors, valves, and hoses be maintained leak-free and that any necessary venting of gas be conducted through water, so that the gas is placed into solution and not released to the atmosphere. These restrictions are adopted to protect human health and prevent nuisances. FINAL REGULATORY IMPACT ANALYSIS The new sec.106.226, concerning Paints, Varnishes, Ink, and Other Coating Manufacturing, restricts emissions through limitations on material use and has been reorganized. These changes should make the exemption easier to use. The revisions restrict the use of selected heavy metals as pigmentation in paints and inks to 0.1% by weight. This limitation generally reflects current operating practice, and industry work groups agree with the commission that the reorganized section will not have a significant economic effect. This revised section will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The new sec.106.375, concerning Aqueous Solutions for Electrolytic and Electroless Processes, allows the same metal plating operations as the repealed section it is replacing. The revisions place operational restrictions that are intended to limit emissions of HCl mist and clarify the existing prohibition against emissions of chromium and should not require significant capital expenses for compliance. The new section requires fume venting through a four- foot vertical stack, and the commission estimates the cost of stack installation to be approximately $300 per foot. This revised section will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The amendment to sec.106.435, concerning Classic or Antique Automobile Restoration Facility, is administrative to correct a cross-reference and has no substantial effect. The amendment to sec.106.351, concerning Salt Water Disposal (Petroleum), requires registration of new salt water disposal facilities with the commission using the PI-7 form unless the facility processes the water without exposing it to the atmosphere or processes 540,000 gallons or less of salt water per day. This amendment requires registration only and should have no economic effect. These two amendments will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. The amendment to sec.106.477, concerning Anhydrous Ammonia Storage, clarifies which restrictions of the exemption apply to permanent and nurse tanks and which apply to permanent tanks only. The commission believes that this clarification should have little substantial effect on users of the exemption. This amendment will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This adoption does not exceed a standard set by federal law and is not specifically required by state law. Exemptions from permitting are not addressed in federal law. This adoption falls within the commission's authority under Texas Health and Safety Code, sec.382.057, to establish conditions to allow an exemption from permitting. This adoption does not exceed the requirements of a delegation agreement or contract between the state and federal government as there is no agreement or contract between the commission and the federal government concerning standard exemptions. These rules are adopted under a specific state law. The commission has the statutory authority to adopt rules concerning exemptions from permitting under Texas Health and Safety Code, sec.382.057. TAKINGS IMPACT ASSESSMENT The new sec.106.226, concerning Paints, Varnishes, Ink, and Other Coating Manufacturing, restricts emissions through limitations on material use and has been reorganized. These changes should make the exemption easier to use. The revisions restrict the use of selected heavy metals as pigmentation in paints and inks to 0.1% by weight. This limitation generally reflects current operating practice, and industry work groups agree with the commission that the reorganized section will not have a significant economic effect and should not increase regulatory, or private property burden. This adoption is in response to a real and substantial threat to public health and safety, is designed to significantly advance the health and safety purpose, and does not impose a greater burden than is necessary to achieve the health and safety purpose. The new sec.106.375, concerning Aqueous Solutions for Electrolytic and Electroless Processes, allows the same metal plating operations as the repealed section it is replacing. The revision restricts how certain metal plating operations are conducted with the purpose of limiting emissions of HCl mist and clarifies the existing prohibition against emissions of chromium. The commission does not anticipate that the revised section would cause a significant expense of capital for compliance. The section requires that aqueous solution tanks be operated under specific conditions to qualify for the exemption. Compliance with the restrictions may impose additional operational costs for those facilities wishing to operate under the exemption. Facilities that cannot meet the restrictions and could not use the exemption would be faced with the cost of obtaining a construction permit. The new section requires fume venting through a four-foot vertical stack, and the commission estimates the cost of stack installation to be approximately $300 per foot. These amendments do not apply to existing facilities. The revisions are adopted to address a real and substantial threat to public health and safety, are designed to significantly advance the health and safety purpose, and do not impose a greater burden than is necessary to achieve the health and safety purpose. The amendment to sec.106.435, concerning Classic or Antique Automobile Restoration Facility, is administrative to correct a cross-reference and has no substantial effect. The amendment to sec.106.351, concerning Salt Water Disposal (Petroleum), requires registration of new salt water disposal facilities with the commission using the PI-7 form unless the facility processes the water without exposing it to the atmosphere or processes 540,000 gallons or less of salt water per day. The registration is the only requirement added to this exemption. This amendment therefore does not impose a physical invasion or require a dedication or exaction of private real property. The amendment to sec.106.477, concerning Anhydrous Ammonia Storage, clarifies which restrictions of the exemption apply to permanent and nurse tanks and which apply to permanent tanks only. The commission believes that this clarification should have little substantial effect on users of the exemption. This amendment requires that the condition of connectors and valves used on ammonia tanks be secure and leak-free. This does not impose a physical invasion or require a dedication or exaction of private real property. COASTAL MANAGEMENT PLAN The commission has determined that this rulemaking action relates to an action or actions subject to the Texas Coastal Management Program (CMP) in accordance with the Coastal Coordination Act of 1991, as amended (Texas Natural Resources Code, sec.sec.33.201 et seq.), and the commission's rules in 30 TAC Chapter 281, Subchapter B, concerning Consistency with the Texas Coastal Management Program. As required by 31 TAC sec.505.11(b)(2) and 30 TAC sec.281.45(a)(3) relating to actions and rules subject to the CMP, commission rules governing air pollutant emissions must be consistent with the applicable goals and policies of the CMP. The commission has reviewed this rulemaking action for consistency with the CMP goals and policies in accordance with the rules of the Coastal Coordination Council, and has determined that this rulemaking action is consistent with the applicable CMP goal 31 TAC sec.501.12(1) by protecting and preserving the quality and values of coastal natural resource areas. This action is consistent with 31 TAC sec.501.14(q), which requires the commission to protect air quality in coastal areas. These amendments will not authorize any increase in air emissions. HEARING AND COMMENTERS The commission conducted a public hearing concerning these adoptions on March 16, 1998, in Austin, and did not receive any oral testimony. The commission received written comments from Bracewell and Patterson representing the Houston Chronicle (Chronicle); Curtis, Mallet-Prevost, Colt, and Mosle (CMCM); the United States Environmental Protection Agency (EPA); Kaspar Electroplating Corporation (Kaspar), Lockheed Martin Tactical Aircraft Systems (Lockheed); and the Railroad Commission of Texas (RRC). The Chronicle commented that the new sec.106.226 appears to contain an overlap with sec.106.418, regarding printing operations. The commenter stated that it is apparent that sec.106.226 was not intended to authorize on-site ink mixing at printing facilities and that these operations are part of the normal printing processes which can already be authorized by sec.106.418. It requested that the commission clarify this distinction either in the final sec.106.226, or in the explanatory comments accompanying the rule. The commission agrees with the interpretation. The respective sections apply to distinct and separate operations. Section 106.226 is only intended to authorize facilities that manufacture paints, inks, and similar material. Section 106.418 is intended to authorize certain types of printing facilities and the incidental processes necessary to operate these facilities, such as final ink preparation and loading into the facility. The commission received a request for clarification that the material use limitations in the proposed sec.106.226(1)(A) and (B) apply only to coating manufacturing operations at a site. The commenters believed that without clarification, the limitations could be mistakenly applied to unrelated materials at facilities totally unrelated to coating manufacturing which might be located at the same site. For example, they argued that the staff probably did not intend to limit, by this exemption, the amount of inert powdered materials, such as clay, which are added to a water filtration system as a binding agent, especially if the water filtration facility was entirely unrelated to the coating manufacturing facility. The commission intended that the material use restriction only apply to the exempted coating operation and has added the clarifying language to sec.106.226(1)(A) and (B). Kaspar and Lockheed commented that the use of chromic acid in electroless processes does not result in the air emission of chromium unless the solution is bubbled, misted, or agitated, and that the blanket prohibition on the use of chromic acid should be removed. They also commented that the term "alodining" is a proprietary process, and if the proposed wording to the exemption is adopted it would only allow one manufacturer's product. They suggested the term "chromate conversion coating process." The commission agrees that emissions of chromium or any other heavy metal are insignificant in electroless processes and any process where the aqueous solution does not bubble or mist. The commission recognizes that there may be steps in those processes which do not cause bubbling or misting and has included language allowing the use of chromic acid where the solution is not bubbled, misted, or similarly agitated. The commission agrees with the commenters about the use of the term "alodining" and has made the change in the rule language to include all chromate conversion coating processes. Kaspar commented that sec.106.375(1)(a) apparently includes electroplating in the term "electrodeposition." Furthermore, Kaspar commented that "electrodeposition" does not ordinarily translate to include electroplating. Therefore, the commenter suggested adding the word "electroplating" to paragraph (1)(A). The commission intended to include electroplating, other than chromium electroplating, as a process which is authorized by this exemption, and did, in fact, assume that electrodeposition could include electroplating. For clarification and given the limitation on the use of chromic acid, the commission has inserted the word "electroplating" as one of the operations authorized under sec.106.375. Kaspar commented that chromium should be added to sec.106.375 as a metal authorized for plating or stripping from any substrate, since the EPA has found that decorative chrome plating emissions can be effectively controlled by fume suppressants. The commenter stated that cadmium, which is authorized, is more insidious and toxic than chromium. Similarly, it suggested that the wording in sec.106.375(2)(C) be changed to clarify that aqueous solutions of chromic or HCl baths only are restricted for use in an enclosed building. The commission agrees that properly controlled, small decorative chromium electroplating facilities are insignificant sources of emissions, and sec.106.376 specifically authorizes decorative chromium electroplating facilities. The commission disagrees that emissions of cadmium authorized by this exemption would necessarily be more toxic than chromic acid or chromate emissions. Based on data concerning health, odor, nuisance potential, vegetation damage, or corrosion, commission toxicologists consider cadmium and chromium identical in their potential for effects. Furthermore, the plating efficiency of chromium electroplating is significantly lower than the efficiencies of other plating processes, including cadmium, resulting in significantly higher chromium emission rates. Consequently, the commission disagrees with the suggested changes, which would have the effect of authorizing all chromium electroplating under this exemption from permitting, regardless of size or conditions. The commission does not believe an exemption from permitting to be an adequate regulatory tool for all chromium plating operations. Section 106.375 specifically does not authorize the use of chromic acid in any electrodeposition and electroplating process. The commission intends that emissions from HCl tanks and from any agitated aqueous solutions containing chromic acid must be contained within an enclosed building and exhausted through a vertical stack or controlled with a fume suppressant. The commission has added language to sec.106.375(2) that clarifies that intent. CMCM commented that the temperature and concentration limits on HCl in sec.106.375(2) do not reflect current operating conditions in the industry. To provide a wider range of operation, the commenter suggested an upper limit on HCl partial pressure of 0.59 millimeters of mercury (mmHg), which is the partial pressure of HCl at 100 degrees Fahrenheit and 19% concentration. The commission agrees that emission rates are directly related to the partial pressure of the pollutant gas and that an HCl concentration of 0.59 mmHg roughly corresponds to an HCl concentration of 19% at a temperature of 100 degrees Fahrenheit. The commission has determined that a partial pressure for HCl above that corresponding with this concentration and temperature would cause emissions in an amount requiring a more detailed engineering and toxicological review to determine whether or not the emissions are harmful to human health and would not be eligible to claim exemption from permitting under this section. The commission wants to provide as much operational flexibility as possible for insignificant emissions and has modified the requirements of this section to add the option allowing a range of temperature and concentration of HCl, provided that the acid remains at or below a partial pressure of 0.5 mmHg. It is the commission's understanding that partial pressure is most commonly determined by process operators by finding the pressure on a graph or table that corresponds to a specific temperature and solution concentration. The graphs and tables are based on a logarithmic curve which is difficult to read or interpolate to an accuracy beyond 0.1 mmHg. To allow for a margin of error in reading the graphs and interpolating tables, the commission is fixing the regulated limit at 0.5 mmHg so that a slight error will still result in a good chance of the partial pressure remaining at or below 0.59 mmHg. The commission is also requiring that records demonstrating compliance with the added option be kept and retained for the most recent 24-month period. Lockheed commented that the requirements for either ventilation or use of a fume suppressant should apply only to the processes listed in sec.106.375(1)(A). The argument for this is that a simple soap and water solution might be used in the processes included in sec.106.375(1)(B). Lockheed also commented that the current sec.106.375(2)(C) is redundant and confusing. Specifically, the commenter found the wording "aqueous solutions shall be used in an enclosed building" followed by "if the doors and windows...are open for ventilation" to be confusing. It stated that ventilation requirements are often controlled by the Occupational Safety and Health Administration and that doors will always be opening and closing for access, and questioned how the commission would determine if the opening was for ventilation. The commission agrees that the proposal might require ventilation or a fume suppressant for processes, or steps in processes, where the aqueous solution is harmless and control requirements would be unnecessary or ineffective. The commission believes that, other than HCl, there are insignificant emissions from other commonly used aqueous solutions in which bubbling or misting does not occur due to electrical current, air agitation, or other factors. Section 106.375(2) has been modified to remove unnecessary control from harmless operations and to clarify what operations will require control. EPA commented that Texas had never submitted the base regulation for the initial adoption of the standard exemption list as a revision to the state implementation plan (SIP). EPA also requested that the commission include a basis for each provision and condition of the new or revised section and that meeting the operation and production limits of the sections will result in emissions less than the 25-ton per-year emission threshold that qualifies a source for exemption from permitting. EPA also stated that this submittal should include assurances that emissions will not interfere with achieving or with the maintenance of air quality standards. EPA concluded its remarks by stating that several sections lacked appropriate monitoring and recordkeeping requirements and specifically mentioned sec.sec.106.226, 106.351, and 106.375. The current list of standard exemptions was compiled after ongoing evaluations by the commission of the effect of a source category on air quality, and they were determined to be insignificant under specified restrictions. The evaluation was based on engineering review, experience with similar or identical sources, and inspections of source operations. In recent years, the commission has reevaluated the exemptions applied to larger facilities or facilities using substances that are potentially harmful with the intent of ensuring that the exemption is protective of human health. This reevaluation was based, in part, on computer dispersion modeling and has resulted in the commission proposing modifications to exemptions applied to operations using heavy metals, ammonia, and other potentially harmful substances. The overall result of the evaluations is that the exemptions remain protective of human health and are not significant contributors to air quality deterioration. The commission has not submitted standard exemptions as SIP revisions since the creation of Chapter 106 in mid-1996. Because the exemptions are used by insignificant sources, the commission desires that monitoring and recordkeeping imposed on these sources remain at a minimum. The commission also believes that it has a state new source review (NSR) program that is equivalently enforceable with federal programs. The standard exemptions are part of that NSR program. The commission believes that it is important that the protectiveness review of standard exemptions continue, and that the result of that review be incorporated into the exemptions. The commission is committed to resolving the issue of the respective roles of the state and federal permitting programs, but believes that this resolution should occur in a separate, non-rulemaking action. This will prevent any delay in amending remaining standard exemptions under protectiveness review. The RRC commented that the definition of "facility" in 30 TAC sec.116.10 is very general and does not clearly identify the specific facilities covered by the exemption. The RRC interprets "facility" to mean a single injection well and associated flow lines. In accordance with this interpretation, the commenter believes that the amendment to sec.106.351 will have minimal impact because only two RRC-permitted facilities currently in existence exceed the 540,000 gallons per day limitation. The RRC contends that if the commission interprets the term "facility" as used in sec.106.351 to mean something other than a single injection well and associated flow lines, a more precise definition must be promulgated and published for comment. The definition of facility used in this exemption is contained in the Texas Clean Air Act (TCAA), sec.382.003. That definition states that a facility means a discrete or identifiable structure, device, item, equipment, or enclosure that constitutes or contains a stationary source. Further, a "source" is defined in the TCAA as the point of origin of air contaminants. The RRC interpretation of the term "facility" is consistent with the commission's application of the term. The registration of facilities as required by this amendment is not an attempt to reinterpret the term, but is a method of determining when the salt water throughput at a site approaches or exceeds 540,000 gallons per day. Through dispersion modeling, the commission has determined that salt water disposal sites (which may contain several facilities) handling 540,000 gallons of containing water per day with the highest concentration of VOC expected will readily meet the emission limitations in 30 TAC sec.106.4, concerning Requirements for Exemption from Permitting. This section establishes the threshold determining if a source is significant. New facilities opened at existing sites where salt water disposal facilities are currently operating could bring that site closer to the emissions level where the site could be considered not only significant, but a major source under Title V of the Federal Clean Air Act Amendments. The commission requires registration information to track and analyze these potential major sources, many of which are located near or within the Houston and Beaumont ozone nonattainment areas. Sites emitting 25 tons per year of VOC would be considered "major" in these areas. Twenty-five tons per year is also the significant source threshold in sec.106.4. Because sec.106.351 may authorize several facilities commonly found at a salt water disposal site, such as tanks, open air ponds, and piping, the commission concurs that the intent of the exemption must be clarified. The commission has revised the text of the exemption to clarify that the registration provision pertains to all facilities at a saltwater disposal plant site when authorization is sought under this exemption. It should be noted that the registration requirement is not retroactive and will only affect facilities seeking authorization under this exemption upon adoption of the amended rule language. The RRC commented on the 1/4-mile limitation that is contained in this exemption and others involved in oil and gas processes which handle sour gas. Sour gas is defined as a natural gas containing more than 1.5 grains of hydrogen sulfide or more than 30 grains of total sulfur per 100 cubic feet. The RRC stated that it specifically regulates sour gas facilities for protection of the public in the event of a release through its rules in 16 TAC sec.3.36, concerning Oil, Gas, or Geothermal Resource Operation in Hydrogen Sulfide Areas, and that sec.3.36 adequately addresses acute public health and safety issues related to releases from sour gas facilities. The RRC contends that if the 1/4-mile limitation is meant to address acute public health and safety concerns, the commission should defer to sec.3.36 and delete the 1/4-mile limit from this and other exemptions. The RRC relayed that staff members from the commission and RRC met and discussed this issue last year and agreed that it would be appropriate to revisit the need for the 1/4-mile limit when exemptions were proposed for amendment. The commenter requested clarification on the basis for the limitation if the 1/4- mile limit is not meant to address acute public health and safety concerns. The 1/4-mile setback distance contained in this section for any new facility processing salt water which emits a sour gas is not meant to address acute public health and safety issues. Instead, it is intended to reduce the possibility of nuisance conditions due to emissions from new facilities which handle sour gas. The 1/4-mile setback has been in the exemption since 1986 and has served as an appropriate distance to mitigate odor complaints commonly associated with hydrogen sulfide and other sulfur compounds. The commission agrees that sec.3.36 adequately addresses acute public health and safety issues primarily by limiting public access to operating wells, but the section cannot adequately substitute for the commission's 1/4-mile setback. The RRC commented that the relationship between the 540,000-gallon limit on salt water delivery and the corresponding air emissions is not clear. The RRC requested that this relationship be more fully developed. Salt water with volatile organic compounds (VOCs) in solution will release a fraction of that VOC to the atmosphere as it comes out of solution. Dispersion air modeling predicts that a typical salt water disposal site handling less than 540,000 gallons per calendar day of saltwater containing the highest contaminant concentrations expected will readily meet the emission limits established in 30 TAC sec.106.4 and will be protective of human health and the environment. The 540,000-gallon limit serves as a cut-off for when registration of the exemption is required with the commission. This limit was placed in the exemption so that the smaller salt water disposal facilities which handle lesser amounts of salt water, as well as those that have fully enclosed delivery and storage operations, would not need to provide notice to the commission. STATUTORY AUTHORITY The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the commission to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811192 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 STATUTORY AUTHORITY The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the Texas Natural Resource Conservation Commission (commission) to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. sec.106.226. Paints, Varnishes, Ink, and Other Coating Manufacturing (Previously SE 125). Coating manufacturing operations including raw material storage, weighing, mixing, milling, grinding, thinning, and packaging are exempt, provided the conditions of this section are met. Coating manufacturing is defined as combining ingredients that are manufactured off-site to make paints, varnishes, sealants, stains, adhesives, inks, pigments, maskants, and paint strippers, etc. Resin manufacturing is not exempt under this section. (1) Materials usage shall not exceed the following rates: (A) 345,000 gallons per year of solvent for all operations at a coating manufacturing site; and (B) 200,000 pounds of dry powder per year for all operations at a coating manufacturing site. (2) Operations involving powders which contain more than 0.1% by weight of chromium, cadmium, asbestos, lead, arsenic, cobalt, or strontium are not authorized by this section. (3) The following conditions must be met to prevent and control emissions. (A) There shall be no visible emissions from any emission point. (B) Bags or sacks of dry powders shall be opened within an enclosed bag slitter or within an enclosed area. (C) Material transfer, storage operations, or other similar operations shall be conducted in enclosed or covered containers which are opened only as necessary for transfer of ingredients. (D) Mixing, milling, packaging, and filling operations shall be conducted under a hood or within an enclosure designed to capture emissions, which shall then be vented externally or through a carbon adsorption system. (E) Operations which involve dry powders or pigments shall be vented through a filter. (F) Any spills of dry powders or solvents shall be cleaned up promptly in a manner designed to control emissions. (G) Waste materials shall be stored in covered containers and disposed of properly. (4) Emissions from any operation which are vented externally shall be exhausted using forced air through a stack with an unobstructed vertical discharge. The stack must be, at a minimum, four feet above the peak of the roofline. (5) The owner or operator of the facility shall keep records of all liquid and solid material usage rates on a monthly basis to demonstrate compliance with paragraph (1) of this section. The usage data shall be maintained for the most recent 24-month period. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811193 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER O.Oil and Gas 30 TAC sec.106.351 STATUTORY AUTHORITY The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the Texas Natural Resource Conservation Commission (commission) to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. sec.106.351. Salt Water Disposal (Petroleum) (Previously SE 65). Salt water disposal facilities used to handle aqueous liquid wastes from petroleum production operations and water injection facilities are exempt, provided that the following conditions of this section are met. (1)-(3) (No change.) (4) Before construction of the facility begins under this section, registration of the exemption shall be submitted to the commission's Office of Air Quality in Austin using Form PI-7, unless one of the following exceptions applies: (A) all delivery of salt water to the site takes place through enclosed hoses or lines, and all storage and handling of salt water takes place in enclosed conduits, vessels, and storage, so that the salt water is not exposed to the atmosphere; or (B) delivery of salt water from outside a site to all facilities at a site in any calendar day does not exceed 540,000 gallons. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811194 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER P.Plant Operations 30 TAC sec.106.375 STATUTORY AUTHORITY The repeal is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the Texas Natural Resource Conservation Commission (commission) to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811195 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 STATUTORY AUTHORITY The new section is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the Texas Natural Resource Conservation Commission (commission) to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. sec.106.375. Aqueous Solutions for Electrolytic and Electroless Processes (Previously SE 41). Equipment using aqueous solutions is exempt, providing the conditions of this section are met. (1) This section authorizes the following operations: (A) anodizing, chromate conversion coating processes, electroplating, electrodeposition, electroless plating, electrolytic polishing, and electrolytic stripping, as follows. (i) For plating onto or stripping from any basis substrate, only brass, bronze, cadmium, copper, iron, lead, nickel, tin, zinc, and precious metals may be used. (ii) Chromic acid shall not be used in any step of a process which involves electrical current, air agitation, or any other factor which causes the chromic acid to bubble or mist. (B) cleaning, electroless stripping, etching, or other surface preparation and finishing, not including chemical milling or electrolytic metal recovery and reclaiming systems. (2) Operating conditions. (A) Hydrochloric acid tank operating conditions shall not exceed: (i) a temperature of 100 degrees Fahrenheit and a hydrochloric acid concentration of 19.0% by solution weight; or (ii) a partial pressure of 0.5 millimeters of mercury. (B) Hydrochloric acid in any state, and any aqueous solution which bubbles or mists due to electrical current, air agitation, or any other factor shall be used in an enclosed building. If the doors and windows of the building are open for any reason other than temporarily for access, emissions shall either be: (i) captured and exhausted using forced air through a stack with an unobstructed minimum vertical discharge of four feet above the peak of the roofline; or (ii) controlled with a fume suppressant. (3) If a facility cannot comply with the hydrochloric acid temperature and concentration limits in paragraph (2)(A)(i) of this section, then to demonstrate compliance with paragraph (2)(A)(ii) of this section, the maximum hydrochloric acid temperature and concentration for each tank shall be recorded daily. At least once per month, the recorded data shall be converted to partial pressure. All data shall be maintained for the most recent 24-month period. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811196 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER S.Surface Coating 30 TAC sec.106.435 STATUTORY AUTHORITY The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the Texas Natural Resource Conservation Commission (commission) to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811197 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 SUBCHAPTER U.Tanks, Storage, and Loading 30 TAC sec.106.477 STATUTORY AUTHORITY The amendment is adopted under the Texas Health and Safety Code, the Texas Clean Air Act (TCAA), sec.sec.382.012, 382.017, and 382.057. Section 382.012 requires the Texas Natural Resource Conservation Commission (commission) to prepare and develop a general, comprehensive plan for the proper control of the state's air. Section 382.017 authorizes the commission to adopt rules consistent with the policy and purposes of the TCAA, while sec.382.057 authorizes the commission by rule to exempt certain facilities or changes to facilities from the requirements of sec.382.0518 if such facilities or changes will not make a significant contribution of air contaminants to the atmosphere. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811198 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Effective date: August 4, 1998 Proposal publication date: February 20, 1998 For further information, please call: (512) 239-1966 TITLE 31. NATURAL RESOURCES AND CONSERVATION PART X. Texas Water Development Board CHAPTER 368.Flood Mitigation Assistance Program 31 TAC sec.sec.368.1-368.11 The Texas Water Development Board adopts new sec.sec.368.1-368.11, comprising new 31 TAC Chapter 368, concerning the Flood Mitigation Assistance Program. Section 368.4 is adopted with changes to the proposed text as published in the June 5, 1998 issue of the Texas Register (23 TexReg 5944). Sections 368.1-368.3 and sec.sec.368.5-368.11 are adopted without changes and will not be republished. The new sections are adopted to govern the board's administration of grants for planning and projects under the Flood Mitigation Assistance program administered nationally by the Federal Emergency Management Agency. Section 368.1 provides definitions of terms in the Chapter. The adopted definitions are consistent with existing statutory definitions and usage. The definition of "board" follows the definition of Texas Water Development Board in Texas Water Code, sec.6.001(1). The definition of "Executive Administrator" follows that of Texas Water Code, sec.6.001(2). Authorization of the delegation of duties is allowed by Texas Water Code, sec.6.183. This definition recognizes that many ministerial duties are performed by the staff of the Executive Administrator, who is the administrative head of the board. The definition of "FEMA" follows the definition of Federal Emergency Management Agency as created in Executive Order No. 12148 (1979). The definition of "FMA" follows the definition of Flood Mitigation Assistance program in 44 CFR sec.4104(c). The definition of "NFIP" follows the definition of National Flood Insurance Program in 42 U.S.C. sec.4011. The definition of "community" follows that of 42 U.S.C. sec.4104c(k). Section 368.2 explains that the board has been named by Governor Bush as the State of Texas' point of contact for the FMA program and defines the scope of this subchapter as governing the board's responsibilities in administering the FMA program. Section 368.3 defines the purpose of the FMA program. The defined purpose is consistent with the purpose defined by the federal government in 42 U.S.C. sec.sec.4104c, 4104d. The purpose of the FMA program is to assist state and local governments in funding projects that will reduce or eliminate the long- term risk of flood damage to buildings, manufactured homes, and other structures that are insured or are insurable under the NFIP. The FMA program also has the purpose of providing funding for planning projects that will reduce or eliminate the long-term risk of flood damage and to fund technical assistance to FMA program applicants. Section 368.4 describes the method by which the board will solicit and accept FMA grant applications. Pursuant to FEMA rules, each state is only eligible for a certain sum of FMA grant money each fiscal year. In order to grant the money to the most deserving projects, FEMA requires each state to develop grant application procedures and procedures for notifying communities of grant fund availability. Section 368.4 has been adopted with changes based on a comment received to allow the board to more fully utilize the available federal monies each fiscal year and to effectively prioritize the applications. As adopted, sec.368.4 describes how the board will notify communities of available FMA grant monies and provide a date by which applications must be sent. If an insufficient number of applications are received by the published deadline, the board may accept applications that are past the deadline date or republish the notice with a new deadline in order to have a sufficient number of applications to utilize the grant money available for that fiscal year and to have a sufficient number of applications to effectively use federal funds. Section 368.5 provides eligibility criteria. For planning grants, only communities which are not on probation or not suspended under the National Flood Insurance Program are eligible. Pursuant to federal regulations, grants will not be made to develop new or improved floodplain maps. A community is eligible for project grants if it is not on probation or suspended under NFIP, and if it has received FEMA approval of its flood mitigation plan. The section specifies that projects are eligible for planning grants only if they are: cost effective; in conformance with various federal requirements including Floodplain Management and Protection of Wetlands, environmental considerations, and floodplain management regulations; and located physically in a participating NFIP community. This section parallels the eligibility requirements promulgated by FEMA and found at 44 CFR Part 78. Section 368.6 specifies the components for flood mitigation plans, which follow the federal regulations at 44 CFR sec.78.5. The section requires that flood mitigation plans include several elements. The plans must have a description of the planning process and public involvement in that process, a description of the existing flood hazards and an identification of the flood risks, including estimates of the number and type of structures at risk, what properties are at risk for repetitive losses, and the extent of flood depth and damage potential. The section also requires the flood mitigation plans to include the applicants' floodplain management goals, an identification and evaluation of cost-effective and technically feasible mitigation actions considered, a presentation of the strategy for reducing flood risks and continued compliance with the NFIP, procedures for ensuring implementation, procedures for reviewing progress and procedures for recommending revisions to the plan. Lastly, the section requires flood mitigation plans to have documentation of formal plan adoption by the legal entity submitting the plan. The section specifies that the executive administrator will forward submitted flood mitigation plans to the FEMA regional director for approval as required by FEMA regulations. Section 368.7 specifies the types of projects eligible for FMA funding. This section is based upon the requirements found in 44 CFR sec.78.12. FEMA and consequently the board will only approve applications for grant funds for the following types of projects: acquisition of insured structures and real property and easements restricting property use; relocation of insured structures; demolition and removal of insured structures; elevation of insured structures; other activities to bring insured structures into floodplain management compliance; minor physical flood mitigation projects; and beach nourishment activities. This section follows the FEMA guidelines on eligible projects, found in 44 CFR Part 78. Section 368.8 provides for the board to approve and finance planning grants from the board's research and planning fund using the procedures and criteria in Chapter 368. It provides criteria for evaluating and awarding planning grants to include the greatest flood risk to be addressed by the plan, demonstrated interest and commitment to mitigation, highest rate of NFIP participation, legal authority to plan for and control flooding, and the effect of planning on overall flooding. The section specifies that planning grant work must be completed within three years of contract execution, a requirement of the FEMA program. The board must evaluate each application for compliance with FEMA's rules found in 44 CFR Part 78. FEMA will only allocate $300,000 in planning funds per year for Texas. Of this money, it only allows a maximum of $50,000 to be given to a single community at one time and such a grant can only be made once every five years. Due to the limited funds for planning, the board must evaluate plans and approve only those plans that meet the federal requirements. The criteria are designed further to target those communities most in need of the funds based on flood risk and those communities most likely to pursue projects based on their commitment to mitigation. The rate of NFIP participation is evaluated because one goal of the FMA program is to reduce repetitive loss under NFIP. The criteria rank applications highest which most strongly support the goals of the FMA program. Section 368.9 provides procedures for project grant evaluation by the executive administrator and the board, and for forwarding grant award recommendations to FEMA. Criteria for evaluating the project grant awards include: the extent the project reduces future NFIP claims; projects which benefit areas with the greatest flood risk; projects with the highest cost/benefit ratio; projects which benefit the greatest number of NFIP-insured structures; the extent the project results in a long-term flooding solution and requires minimum maintenance; whether the project affects structures in an identified floodway or floodplain; the extent to which the sponsor is providing greater than the required 25% cost share; whether the applicant or community participates in the Community Rating System; and the multi-objective nature of project. As with sec.368.8, FEMA restricts the amount of funds available. No community can receive more than $3,300,000. Due to the limited funds for projects, the board must evaluate the applications and prioritize for FEMA only those applications that meet the federal requirements. This rule, therefor, follows 44 CFR Part 78. The criteria are designed to target areas with greatest flood risk, to reduce repetitive loss under NFIP, to evaluate the effectiveness of projects, and to weigh the local contributions. The criteria rank applications highest which most strongly support the goals of the FMA program. Section 368.10(a) provides for a required 25% local cost share, of which not more than one-half may be in-kind services. This is a reiteration of 44 CFR sec.78.13(a). Subsections (b) and (c) describe the limitations imposed by federal regulation on the total amount of grant funds available. 44 CFR Part 78 restricts planning grants to $50,000, with a community being eligible for a planning grant nor more than once every five years and project grants are limited to $3.3 million per community per five-year period, with a total to all communities in the state of not to exceed $20 million. Section 368.11 provides terms and conditions for contracts including meeting applicable federal requirements. FEMA requires grantees to comply with 44 CFR Parts 13 and 14 once grants are made. One comment was received in writing by the board. The Harris County Flood Control District made a comment requesting a change to sec.368.4 so that communities would know they could submit applications at any time and not just when the board has published notice that funds are available. To effect this, the district recommended that sec.368.4 be modified to state that unsolicited applications would be accepted at any time. The board has made a change to the rule based upon this comment, but not to the extent recommended by the Harris County Flood Control District. Due to the board's responsibility, as point of contact for the FMA program, of prioritizing applications for FEMA's review, applications must be compared to each other. If applications come in at any time, the board will not be able to effectively prioritize them for FEMA and limited federal grant money will not be used in the most effective manner. The board did change the rule, though, to allow for acceptance of applications that are received after a published deadline if the number of applications received before the deadline is too few to allow effective utilization of available funds. The board also amended the rule to state that it may republish notice of available funds with a new deadline in order to obtain a satisfactory number of applications. The new sections are adopted under the authority granted in: Texas Water Code, sec.6.101 and Texas Water Code, Chapter 15, Subchapter F, which require the board to adopt rules necessary to carry out the powers and duties of the board and for administration of the research and planning fund and under Texas Government Code, Chapter 742 which provides for state coordination of local applications for federal funds. sec. 368.4. Grant Applications and Notice. (a) As funds become available through FEMA, the executive administrator will publish notice in the Texas Register requesting applications from eligible communities for planning grants and/or project grants. Applicants shall submit application(s) in the form and in the numbers prescribed by the executive administrator. Applicants for planning grants shall provide notice of their grant applications in the manner required by sec.368.8 of this title (relating to Notice Requirements). The executive administrator may request additional information needed to evaluate the application, and may return any incomplete applications. (b) Applications received by the deadline published in the Texas Register will be evaluated as described in this chapter. If there is an insufficient number of applications to allow effective utilization of federal funds, the board may republish notice and set a new deadline for applications or accept applications past the original deadline. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 17, 1998. TRD-9811294 Suzanne Schwartz General Counsel Texas Water Development Board Effective date: August 6, 1998 Proposal publication date: June 5, 1998 For further information, please call: (512) 463-7981 TITLE 34. PUBLIC FINANCE PART I. Comptroller of Public Accounts CHAPTER 3. Tax Administration SUBCHAPTER B. Natural Gas Production Tax 34 TAC sec.3.21 The Comptroller of Public Accounts adopts an amendment to sec.3.21, concerning exemption or tax reduction for high-cost natural gas, without changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4234). This section is being amended pursuant to Senate Bill 862, 75th Legislature, 1997, which amended the application filing requirements for the high-cost gas well exemption or tax reduction. The bill also requires an adjustment to the amount of the exemption or reduction if an application is filed after the deadline. No comments were received regarding adoption of the amendment. This amendment is adopted 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, sec.201.057. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811120 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: August 4, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 463-4062 SUBCHAPTER EE. Boat and Motor Sales and Use Tax 34 TAC sec.3.741 The Comptroller of Public Accounts adopts an amendment to sec.3.741, concerning imposition and collection of tax, with changes to the proposed text as published in the May 1, 1998, issue of the Texas Register (23 TexReg 4236). House Bills 966 and 2542, 75th Legislature, 1997, amended the Parks and Wildlife Code, sec.31.003(1), effective September 1, 1997, to include in the definition of boat, all boats not more than 65 feet in length. The Tax Code references the Parks and Wildlife Code in defining a boat taxable under Chapter 160. No comments were received regarding adoption of the amendment. A grammatical error in paragraph (b)(1) was corrected. This amendment is adopted 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, sec.160.001. sec.3.741. Imposition and Collection of Tax. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Accessories - Nonessential tangible personal property attached to a boat for the convenience or comfort of the operator or passengers. For purpose of this rule, the term "accessories" includes, but is not limited to, radios, mirrors, transom-mounted ladders, electric trolling motors, and depth finders. (2) Dealer - A person or entity engaged in the business of buying, selling, or exchanging boats or boat motors at an established or permanent place of business in this state. At each such place of business a sign must be conspicuously displayed showing the name of the dealership so that it may be located by the public, and sufficient space must be maintained for an office, service area, and display of boats and boat motors. (3) Department - The Texas Parks and Wildlife Department. (4) Manufacturer - A person or entity engaged in the business of manufacturing new and unused boats and boat motors for the purpose of sale or trade. (5) Retail sale - Any sale of a boat or boat motor other than a sale in which the dealer or manufacturer acquires the boat or boatmotor for the exclusive purpose of resale. Dealers and manufacturers, as defined, are the only persons or entities that may acquire a boat or boat motor for resale. (6) Tax assessor-collector - Any of the county tax assessors-collectors in the State of Texas. (7) Taxable boat - Any watercraft, other than a seaplane on water, not more than 65 feet in length. This includes federally documented boats, motorboats, sailboats, jet skis, and boats designed to accommodate an outboard motor. Excluded from this definition are canoes, kayaks, rowboats, inflatable rafts, or other watercraft designed to be propelled by paddle, oar, or pole. These excluded watercraft are taxed under Limited Sales, Excise and Use Tax, unless some other exemption applies. (8) Taxable motor - Any self-contained internal combustion propulsion system of any horsepower, excluding fuel supply, used to propel a watercraft, that is detachable from the boat. Electric boat motors are excluded. (9) Total consideration - The amount paid or to be paid for a taxable boat or boat motor, including all accessories attached at the time of or before the sale. This amount includes the costs of transportation before the sale and any manufacturer's or importer's excise tax imposed by the United States government. This amount does not include any separately stated finance charges, service charges, or other interest charges. Also excluded from total consideration will be the value of a taxable boat or boat motor taken by the seller as all or part of the consideration for the sale of the boat or boat motor. No other tangible, intangible, or real property will be excluded from total consideration. Also excluded from total consideration are charges for transportation of the boat or boat motor after the sale. (10) Use - Any storage or other exercise of rights of ownership in this state by any person or entity, excluding the storage, display, or holding of a boat or boat motor exclusively for sale by a dealer or manufacturer, as defined in this subsection. (b) General principles. (1) The purchase of a taxable boat and boat motor and all accessories attached thereto at the time of sale is subject to the boat and boat motor sales and use tax (Tax Code, Chapter 160). The purchase of a taxable boat or boat motor for purposes of rental is subject to Tax Code, Chapter 160. (2) The purchase of accessories for a boat and boat motor attached after the time of sale of the boat or boat motor is subject to the limited sales, excise, and use tax (Tax Code, Chapter 151). The rental of a taxable boat or boat motor is subject to Tax Code, Chapter 151. (3) The purchase of tangible personal property is subject to the limited sales, excise, and use tax, if no item can be identified as a boat or boat motor even if the combination of items of tangible personal property becomes a boat or boat motor. If items of tangible personal property are combined to produce a boat or boat motor, the initial titling or registration of the boat or boat motor in the name of the person who produced the boat or boat motor is not subject to the provisions of the boat and boat motor sales and use tax. If, however, the boat or boat motor is titled or registered in any other person's name, the transfer is subject to the provisions of the boat and boat motor sales and use tax. (4) Safety equipment required by the Parks and Wildlife Code, sec.sec.31.064- 31.071, including life preservers and fire extinguishers, purchased with a taxable boat or boat motor are considered to be attached to the boat or boat motor and subject to the provisions of the boat and boat motor sales and use tax. (c) Imposition of the tax. (1) A sales tax is imposed on each retail sale of a taxable boat or boat motor in this state. The tax is the obligation of and shall be paid by the purchaser of the taxable boat or boat motor. (2) The tax rate is 6.25% of total consideration paid or to be paid. (d) Payment of the tax. (1) After the completion of the seller, donor, or trader's affidavit for the sale of a boat or boat motor, if the seller collects the tax from the purchaser, the seller must remit the tax to either a county tax assessor-collector or to the department within 20 working days from the date the taxable boat or boat motor is delivered to the purchaser. (2) After the completion of the seller, donor, or trader's affidavit for the sale of a boat or boat motor, the seller may give the original affidavit to the purchaser. The purchaser is then required to remit the tax to either a county tax assessor-collector or to the department within 20 working days from the date the taxable boat or boat motor is delivered to the purchaser. (3) The payment of the boat or boat motor use tax is the responsibility of the user and is due within 20 working days after the date that the taxable boat or boat motor is brought into this state. (e) Purchase of accessories/components for resale. (1) Items combined into a boat or boat motor. A resale certificate as provided for in the Limited Sales, Excise, and Use Tax Act may be used in purchasing tangible personal property to be combined into a boat or boat motor held for sale in the purchaser's regular course of business. This includes all accessories that are included in a single sales price for the accessory, boat, and boat motor. These accessories include water skis and tow ropes. The lump-sum sales price will be subject to the boat and boat motor sales and use tax. (2) Accessories purchased to be attached to a boat or boat motor that is not subject to the boat and boat motor sales and use tax (boats over 65 feet in length), are subject to the limited sales, excise, and use tax. See also sec.3.285 of this title (relating to Resale Certificate; Sales for Resale), sec.3.294 of this title (relating to Rental and Lease of Tangible Personal Property), and sec.3.297 of this title (relating to Carriers). This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811122 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: August 4, 1998 Proposal publication date: May 1, 1998 For further information, please call: (512) 463-4062 TITLE 37. PUBLIC SAFETY AND CORRECTIONS PART I. Texas Department of Public Safety CHAPTER 1. Organization and Administration SUBCHAPTER A. Objective, Mission, and Program 37 TAC sec.1.4 The Texas Department of Public Safety adopts an amendment to sec.1.4, concerning personnel and employment policies, without changes to the proposed text as published in the May 29, 1998, issue of the Texas Register (23 TexReg 5642). The justification for this section will be to make the public aware of program and activity changes under the Traffic Law Enforcement Division. The amendment clarifies and updates language in the existing rule regarding the programs of the Traffic Law Enforcement Division. No comments were received regarding adoption of the amendment. The amendment is adopted 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. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811186 Dudley M. Thomas Director Texas Department of Public Safety Effective date: August 4, 1998 Proposal publication date: May 29, 1998 For further information, please call: (512) 424-2890 CHAPTER 3. Traffic Law Enforcement SUBCHAPTER B. Enforcement Action 37 TAC sec.sec.3.22-3.24 The Texas Department of Public Safety adopts amendments to sec.sec.3.22 - 3.24, concerning Enforcement Action, without changes to the proposed text as published in the May 22, 1998, issue of the Texas Register (23 TexReg 5330). The justification for the sections will be clarification of department policy. Amendment to sec.3.22(a) omits unnecessary language regarding a written warning. Amendment to sec.3.23(b)(2) adds residence address and date of birth as required information which must be furnished by a violator. Amendment to sec.3.24 reflects the nonsubstantive changes in statute from Texas Civil Statutes to Texas Transportation Code. No comments were received regarding adoption of the amendments. The amendments are adopted pursuant to Texas Government Code, sec.411.006(4), which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811188 Dudley M. Thomas Director Texas Department of Public Safety Effective date: August 4, 1998 Proposal publication date: May 22, 1998 For further information, please call: (512) 424-2890 SUBCHAPTER F. Texas Registered Vehicles Not Requiring Inspection 37 TAC sec.3.91 The Texas Department of Public Safety adopts an amendment to sec.3.91, concerning NATO Agreement Vehicle Inspection Exemptions, without changes to the proposed text as published in the May 22, 1998, issue of the Texas Register (23 TexReg 5331). The justification for this section will be to exempt motor vehicles imported into the United States from a foreign country by members of a military force or civilian component that is a party to the NATO Agreement of 1953 from the Texas vehicle inspection requirements. The amendment to subsection (b) updates the NATO member countries. No comments were received regarding adoption of the amendment. The amendment is adopted pursuant to Texas Transportation Code, sec.548.002 which authorizes the department to adopt rules to administer and enforce this chapter. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811187 Dudley M. Thomas Director Texas Department of Public Safety Effective date: August 4, 1998 Proposal publication date: May 22, 1998 For further information, please call: (512) 424-2890 CHAPTER 19. Breath Alcohol Testing Regulations SUBCHAPTER A. Breath Alcohol Testing Regulations 37 TAC sec.sec.19.1-19.5, 19.7 The Texas Department of Public Safety adopts amendments to sec.sec.19.1 - 19.5, and sec.19.7, concerning breath alcohol testing regulations. Sections 19.3, 19.4, and 19.7 are adopted with changes to the proposed text as published in the April 24, 1998, issue of the Texas Register (23 TexReg 4046). Sections 19.1, 19.2, and 19.5 are adopted without changes and will not be republished. The justification for the amendments will be clarification in the state courts as to the interpretation of these regulations concerning contested cases of driving while intoxicated, other statutory related cases, and compliance with legislative changes. The amendments include the renumbering of paragraphs and subsections in order to delete and add language and further alphabetize the sections relating to the explanation of terms and actions. The amendments are necessary due to technological advances in instrumentation software and hardware. The amendments also bring the regulations into compliance with statutory changes that were effected during the 74th Legislature, 1995, which moved the Driving While Intoxicated (DWI) laws from Texas Civil Statutes to the Texas Transportation Code and recodified these laws. sec.19.3(h) is amended to change the word "verifying" to "concerning." This one word change is intended to eliminate the possible misinterpretation that these regulations would require the technical supervisor to verify (confirm by oath) certification of techniques, methods and programs even if those techniques, etc., weren't in compliance with our requirements for certification. In sec.19.4(b)(3) a minor editorial change to the text is made by inserting a space after the word "of" and before "certification," and inserting a space after the word "inactivated" and before "in." In sec.19.7(k) "plus or minus 0.01gms/210 Liters" is changed for consistency to read "plus or minus 0.01g/210 Liters." A summary of the comments received and the department's responses are as follows: COMMENT: In sec.19.3(h), the word "verifying" should be changed to "concerning" in order to eliminate any possible misinterpretation that the technical supervisor would have to verify the results whether they were accurate or not because the regulations require it. RESPONSE: The department agrees with the commentator and has changed the word "verifying" to "concerning." COMMENT: A comment was received that in sec.19.7(k) the abbreviation for grams should be "g" and not "gms" as published. RESPONSE: The department agrees with the commentator and has changed the abbreviation for consistency. The amendments are adopted pursuant to Texas Transportation Code, sec.724.003, which authorizes the department and the State Office of Administrative Hearings to adopt rules to administer this chapter; and Texas Transportation Code, sec.724.016. sec.19.3. Certification of Techniques, Methods, and Programs. (a) All breath alcohol testing techniques, methods, and programs to be used for evidential purposes must have the approval of and be certified by the scientific director. (b) Prior to initiating a breath alcohol testing program, an agency or laboratory shall submit an application to the scientific director for approval. The application shall show the brand and/or model of the instrument and reference sample device to be used and contain a resume of the technique to be followed. An on-site inspection shall be made by the scientific director or a designated representative to assure compliance with the provisions of the application. An agency applying for certification of a breath alcohol testing program must agree to: (1) conduct such analyses only for the purposes stated in subsection (c)(8) of this section; (2) allow access for inspection under subsection (d) of this section; and (3) comply with subsection (f) of this section. (c) All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to, the following: (1) a period during which an operator is required to remain in the presence of the subject. An operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth. Direct observation is no longer necessary to ensure the validity or accuracy of the test result; (2) the breath alcohol testing instrument and reference sample device must be operated by either a certified operator or technical supervisor and only certified personnel will have access to the instrument; (3) the use of a system blank analysis in conjunction with the testing of each subject; (4) the analysis of a reference sample, prepared by the technical supervisor or a designee of the scientific director, such as headspace gas from a mixture of water and a known weight of alcohol at a known temperature, the results of which must agree with the reference sample predicted value within plus or minus 0.01g/210L, or such limits as set by the scientific director. This reference analysis shall be performed in conjunction with subject analyses; (5) all analytical results shall be expressed in grams of alcohol per 210 liters of breath (g/210L); (6) maintenance of any specified records designated by the scientific director; (7) supervision of certified operators and testing techniques by a technical supervisor meeting the qualifications set forth in sec.19.5 of this title (relating to Technical Supervisor); (8) designation that the instrumentation will be used only: (A) for testing subjects that are suspected of violating any statute or rule that defines intoxication in terms of alcohol concentration; and (B) in compliance with sec.19.4(b), (c), and (e) of this title (relating to Operator Certification). (d) The scientific director or a designated representative may at any time make an inspection of the approved breath alcohol testing agency to insure compliance with these regulations. (e) Upon proof of compliance with subsections (a)-(c) of this section, certification will be issued by the scientific director. Issuance of a certificate to the certified program shall be evidence that the program possesses certified instruments and approved reference sample devices as stated in sec.19.7(d) of this title (relating to Explanation of Terms and Actions). (f) Certification of any breath alcohol testing program is contingent upon the applying agency's agreement to conform and abide by any directives, orders, or policies issued or to be issued by the scientific director regarding any aspect of the breath alcohol testing program; this shall include, but not be limited to, the following: (1) program administration; (2) reports; (3) records and forms; (4) site location and security; (5) public information and demonstrations of certified breath alcohol testing instruments; (6) methods of operations and testing techniques; (7) instruments and reference sample devices; (8) purposes for which testing is conducted; (9) operators and technical supervision of operators. (g) Certification of a breath alcohol testing program may be denied or withdrawn by the scientific director if, based on information obtained by the scientific director, a designated representative of the scientific director, or a technical supervisor, the certified agency or laboratory fails to meet all criteria stated in this section. (h) Technical supervisors, when required, shall provide expert testimony concerning the certification of techniques, methods, and programs under their supervision in accordance with sec.19.7(y)(7) of this title (relating to Explanation of Terms and Actions). sec.19.4. Operator Certification. (a) Initial certification. (1) In order to apply for certification as an operator of a breath alcohol testing instrument, an applicant must successfully complete a course of instruction approved by the scientific director which must include as a minimum the following: (A) three hours of instruction on the effects of alcohol on the human body; (B) three hours of instruction on the operational principles of the selected breath alcohol testing instrument to be used. This instruction shall include: (i) a functional description of the testing method; and (ii) a detailed operational description of the method with demonstrations. (C) five hours of instruction on Texas legal aspects of breath alcohol testing; (D) three hours of instruction on supplemental information which is to include nomenclature appropriate to the field of breath alcohol testing; (E) 10 hours of laboratory participation using appropriate equipment. Laboratory practice will include the analysis of reference alcohol samples, as stated in sec.19.3(c)(4) of this title (relating to Certification of Techniques, Methods and Programs), as well as the analysis of breath samples from actual drinking subjects and completion of all required records and reports needed for documentation; (F) time spent on required examinations (approximately two hours) will be considered part of the course. (G) if an operator is certified to operate a specific brand and/or model of equipment and is required to be certified on an additional brand and/or model of equipment, the scientific director may waive portions of paragraph (1)(A) through (F) of this subsection and require only that instruction needed to acquaint the applicant with proper operation of the new brand and/or model of equipment. (2) Prior to initial certification as an operator of a breath alcohol testing instrument, an applicant must satisfactorily complete examinations, to be prepared and given by the scientific director or a designated representative, which shall include the following: (A) a written examination which shall cover the academic or lecture material presented in the course of instruction; (B) a practical examination that shall encompass actual operation of the instrument and reference sample device on which the operator is to be certified. The examination will consist of analyzing reference samples and obtaining results on all samples within limits as set by the scientific director, plus proper completion of all required records and/or reports. If the correct value is not obtained within the prescribed limits on all of the samples and/or there is an error on any of the required records and/or reports, then the operator will be given a second set of test samples. If the correct value is not obtained on all of the second test samples within the prescribed limits and/or there is an error on any of the required records or reports the applicant has failed the examination; (C) failure of the initial written and/or practical examination will cause the applicant to be ineligible for reexamination for a period of 30 days. A subsequent failure will require that the candidate attend and satisfactorily complete the basic course of instruction for certification of a breath testing operator. (3) Prior to certification an applicant must establish proof of participation in a breath testing program that meets the requirements set forth in sec.19.3 of this title (relating to Certification of Techniques, Methods, and Programs) and has been approved by the scientific director. (4) Persons who have been convicted of a felony, theft, or a crime of moral turpitude shall not be eligible to become a certified operator. (5) Upon successful completion of the requirements for initial certification, the scientific director will issue the individual an operator's certificate valid for a period of time designated by the scientific director or until the next examination for renewal unless inactivated, suspended, or revoked. (b) Renewal of current certification. The operator is required to renew certification prior to its expiration date. The minimum requirement for renewal of operator certification will be: (1) An annual demonstration by the operator of competence to perform satisfactory reference analyses as stated in sec.l9.3(c)(4) of this title (relating to Certification of Techniques, Methods, and Programs). The practical examination as stated in subsection (a)(2)(B) of this section will be conducted under the supervision of a technical supervisor. The operator will be evaluated on the basis of ability to: (A) use proper techniques; (B) obtain proper instrument results pursuant to sec.19.3(c)(4) of this title (relating to Certification of Techniques, Methods, and Programs); and (C) follow established procedures including, but not limited to, the operation of the instrument and reference sample device and the proper reporting procedures for analysis results. (2) the satisfactory biennial completion of a course of instruction at least four hours in duration, the contents of which should include, but not be limited to, topics such as: (A) a brief review of the theory and operation of the breath alcohol test equipment; (B) a detailed review of the breath alcohol analysis and reporting procedures; (C) a discussion of procedural updates resulting from recent court decisions and legislation; (D) a discussion of current problems in the field of breath alcohol testing; (E) a written examination on the material presented in the renewal course and during the basic course of instruction. (3) Renewal of certification will be denied and current certification will be inactivated in accordance with subsection (d) of this section when the operator: (A) fails to follow established procedures; (B) uses other than proper technique; (C) fails the practical examination; or (D) fails the written examination. (4) An operator who fails renewal will be given the reason for failure and is not eligible to be reexamined for a period of 30 days. A subsequent failure will require that the candidate attend and satisfactorily complete the basic course of instruction for certification of a breath testing operator. (5) Upon successful completion of the requirements for renewal of certification, the scientific director will issue the individual an operator's certificate valid for a period of time designated by the scientific director or until next renewal unless inactivated, suspended, or revoked. (c) Proficiency requirements. (1) The scientific director or a designated representative or the operator's technical supervisor may at any time require an operator to demonstrate proficiency and ability to properly operate the breath alcohol testing instrument and reference sample device. (2) It is the responsibility of the individual operator to maintain proficiency. (3) Failure to pass a proficiency test as defined in sec.19.7(1) of this title (relating to Explanation of Terms and Actions) will result in the operator's certification being suspended for 30 days. (d) Certification inactivation, suspension and revocation. (1) Inactivation of certification will be utilized for administrative program control pursuant to sec.19.7(g) of this title (relating to Explanation of Terms and Actions). (2) Suspension of certification shall be administered in accordance with sec.19.7(w) of this title (relating to Explanation of Terms and Actions). A technical supervisor may suspend the certification of any operator under the supervision of that technical supervisor and recommend further action to the scientific director for malfeasance or noncompliance with any provisions of these regulations or when in the technical supervisor's judgment the operator's performance is unreliable or the operator is incompetent. (A) The technical supervisor shall immediately notify the scientific director in writing of any such suspension and furnish a copy of such notice to the suspended operator and the operator's appropriate supervisor or department head. The suspended operator shall not be permitted to operate the instrument until such time as certification has been restored pursuant to subsection (e) of this section. (B) Upon receipt of the notification of suspension, the scientific director shall immediately initiate an inquiry culminating in sustaining the suspension, revoking certification, or setting aside the suspension. (3) Revocation of certification shall be administered in accordance with sec.19.7(s) of this title (relating to Explanation of Terms and Actions). Certification shall be revoked by the scientific director pursuant to subsection (d)(2)(B) of this section when the operator intentionally or purposefully disregards or violates these regulations, commits a violation of law relating to breath testing, or falsely or deceitfully obtains certification. An operator whose certification has been revoked shall not be eligible for examination for certification again within 12 months of the date of revocation or such other time as determined by the scientific director. (4) An operator whose certification has been suspended or revoked may appeal such action in writing to the director, Texas Department of Public Safety, who will determine if the action of the scientific director will be affirmed or set aside. The director may reinstate certification under such conditions as deemed necessary and notify the scientific director in writing. (e) Recertification. (1) Certification that has been inactivated, suspended, or revoked must be regained before evidential analyses can be administered. It will be the responsibility of the inactivated, suspended, or revoked operator to notify the scientific director in writing of such intent. This notification shall be submitted in close proximity to the completion of any mandatory waiting period imposed under certification cancellation. Recertification shall take place pursuant to the following: (A) Recertification after voluntary inactivation (and the period of inactivation is less than six months) will be pursuant to subsection (a)(2)(B) of this section. (B) Recertification after voluntary inactivation (and the period of inactivation is more than six months) or for failure to attend annual renewal will be pursuant to subsection (a)(2) of this section. (C) Recertification after inactivation for failure of the renewal examination and/or examinations will be pursuant to subsection (b) of this section. (D) Recertification after suspension or revocation will be in accordance with subsection (a)(2)(A) and (B) of this section. (2) An operator who fails either examination required in paragraph (1)(A) through (D) of this subsection is guided by subsection (a)(2)(C) of this section for further examination. (f) Certificate. The issuance of a certificate to the breath test operator shall be evidence that the operator has met the requirements for initial certification and/or renewal of certification. (g) Verification. The technical supervisor, when required, shall provide testimony in accordance with sec.19.7(y)(7) of this title (relating to Explanation of Terms and Actions) verifying all aspects of certification of operators within an assigned area. sec.19.7. Explanation of Terms and Actions. (a) Alcohol. As used in these regulations alcohol refers to ethyl alcohol (sometimes referred to as grain alcohol or ethanol). (b) Breath alcohol test (breath alcohol analysis). Refers to the actual analysis of a specimen of the subject's breath to determine the alcohol concentrations thereof. Analyses must be performed by certified individuals on certified instruments which are supervised by a certified technical supervisor in accordance with provisions stated in these regulations. (c) Certification. (1) Certification refers to meeting and maintaining the requirements set forth in these regulations. Under the provisions of these regulations, certification is granted to: (A) operators; (B) technical supervisors; (C) breath alcohol test instruments; (D) techniques, methods and programs (breath alcohol test programs, agencies); and (E) courses of instruction. (2) Certification is granted only by the scientific director when minimum requirements of certification have been met. All breath alcohol testing for evidential purposes must be performed under certification in order to be admissible for court purposes. (3) Certificates are issued to operators, technical supervisors, breath alcohol test instruments, courses of instruction and breath alcohol test programs. Certificates are not issued for reference sample devices. (d) Certified breath alcohol testing program (techniques and methods). Refers to any breath alcohol testing program meeting and maintaining the provisions stated in sec.19.3 of this title (relating to Certification of Techniques, Methods, and Programs). This certification is referred to as a total breath alcohol testing program, or total local program. Usually a total testing program refers to an agency or laboratory which meets the minimum requirements of having a certified breath alcohol testing instrument, approved reference sample device, certified technical supervisor, certified operators, and techniques, methods, and programs which have been inspected and certified by the scientific director. In order to obtain certification as a total program, the applying agency or laboratory should first contact the office of the scientific director to determine the criteria and regulations regarding certification. After original contact, the applying agency, laboratory, or school will be given an application with instructions setting forth the necessary requirements for certification. When all requirements for certification are met, including the acquisition of certified personnel, the scientific director will make an on-site inspection prior to the issuance of certification. Issuance of a certificate shall be evidence that the agency, laboratory, or school possesses certified instruments and approved reference sample devices. (e) Certified course of instruction. Refers to any school, college, agency, institution, or laboratory which meets the requirements stated in sec.19.6 of this title (relating to Certification of Courses of Instructions) for certification of courses of training. Operator schools will be certified for instruction on specific instrument(s). Applications for school certification must be approved by the scientific director prior to the school's commencement. Certification of operators successfully completing a certified school can only be made by the office of the scientific director through the administration of appropriate examinations. The scientific director has the authority to limit enrollment of any school or deny individual enrollment if, in the opinion of the scientific director, such enrollment would not be in the best interest of the scientific integrity of the breath alcohol test program; for example, if enrollment in a certified operator school would produce more operators than could be supervised by the number of available technical supervisors. (f) Certified operator. Certified operator refers to an individual who has successfully completed the requirements stated in these regulations and has received certification from the scientific director to operate a specific instrument(s). Operator certification is contingent upon compliance with all provisions stated in sec.19.4 of this title (relating to Operator Certification). (g) Inactivation. (1) Inactivation refers to the voluntary or temporary discontinuance of certification. Unless specifically stated otherwise, this loss of certification will be an administrative program control as opposed to suspension or revocation for violation of these regulations or for unreliability or incompetence. Inactivation may be initiated by anyone having authority to suspend or revoke, by the certified operator in case of voluntary surrender of certification, or by the technical supervisor in case of voluntary surrender of technical supervisor certification. In questionable cases, the decision to accept inactivation or invoke suspension or revocation will be determined by the scientific director. Recertification of an inactivated certificate will require a written request from the applicant to the scientific director and successful completion of the requirements outlined in sec.19.4(e) of this title (relating to Operator Certification) for recertification and/or other requirements determined by the scientific director. Inactivation will be used in, but not limited to, the following situations: (A) an operator or technical supervisor transfers to a position where certification as a breath test operator or technical supervisor is no longer needed; (B) an operator temporarily becomes physically incapable to perform tests for either medical or administrative reasons; (C) an operator fails to renew current certification and reverts to an inactive status; (D) an operator terminates employment under which certification was acquired and new employment does not require certification as an operator, or the new location of the operator cannot be ascertained; or (E) a technical supervisor resigns from an approved or certified program, or is no longer supervising a certified program. (2) Inactivation will not be considered by the office of the scientific director as a disciplinary action. It is for administrative program control to safeguard the scientific integrity of the breath alcohol test program. (h) Instruments. Instruments are defined as the device(s) which measure or quantitate the breath alcohol concentration pursuant to sec.19.1 of this title (relating to Instrument Certification). Certification of instruments is only in conjunction with breath alcohol analysis for evidential purposes as stated in Texas Transportation Code, sec.724. Approval of breath alcohol test instruments will be made by brand and/or model by the scientific director. (i) Office of the scientific director. Refers to the scientific director or his staff. (j) Practice test. Practice test refers to a properly conducted reference analysis by the operator on a certified breath alcohol test instrument using an approved reference sample device. Analyses must be conducted in accordance with provisions stated in sec.19.3(c)(4) of this title (relating to Certification of Techniques, Methods, and Programs). (k) Predicted value. The predicted value refers to the known value of the reference sample. It is the result, within plus or minus 0.01g/210 Liters, which should be obtained in analyzing the reference sample. (l) Proficiency test. A test administered by, and in the presence of, a technical supervisor to establish and/or ascertain the competency of an operator to obtain valid results on breath testing instrumentation. (m) Public information and demonstration. Public information and demonstration refers to public demonstrations of certified evidential breath testing equipment. Certified evidential instruments should not ordinarily be used for public information programs and/or demonstrations. To utilize the equipment in this manner could violate the scientific integrity and validity of the analytical result in evidential subject analyses. When necessary, public information programs and demonstrations of certified equipment should only be performed by a certified technical supervisor. (n) Recertification. Recertification refers to the renewal of lost certification; for example, certification loss by inactivation, suspension, or revocation. Unless provided for by specific provision in these regulations, application for recertification requires a written request from the applicant to the scientific director. Upon receipt of the request, the applicant will be advised of the necessary procedure to regain certification. Recertification requires the successful completion of requirements stated in sec.19.4(e) of this title (relating to Operator Certification) and/or additional requirements as stated by the scientific director. (o) Reference Sample Device (simulator). A device that contains and delivers a temperature controlled headspace alcohol/water gas sample to a breath testing instrument, a device that artificially simulates the alveolar breath of a human being. (p) Renewal of current certification. Renewal of current certification is referred to as certification renewal. Renewal of certification refers to the continuance of active certification by meeting the requirements stated in sec.19.4(b) of this title (relating to Operator Certification). Operator certificates have an expiration date and in order to be kept current require renewal. Failure or inability to renew current certification will result in inactivation or suspension. It is the responsibility of the certificate holder to renew certification. The scientific director, through the technical supervisor, will make available opportunities for certification renewal on a mass basis but cannot accept responsibility for individual renewal. (q) Reports and records. Reports and records refer to all documents and reports required in breath alcohol testing. The scientific director, through the technical supervisor, supervises all reports and records of analyses conducted and/or documents relating to instruments and reference sample devices. Each specific brand and/or model of instrument requires specific records and forms which are explained in detail in the basic course of instruction for the specific instrument and which should be approved by the scientific director. Certification of a breath alcohol test program requires the completion and proper filing of certain documents relating to arrest. The scientific director, through the technical supervisor, is responsible to see that such documents are completed and filed but does not supervise these documents in regard to content. In addition to any forms, records, or documents required in the breath alcohol test program, the scientific director may require additional specific reports from the technical supervisors or other reports and records in regard to certifications and compliance with program regulations. (r) Revisions. The changes which are adopted with the revision of these regulations apply only to breath tests that are done after the date of this revision. Previous revisions of these regulations are not nullified and nothing herein should be construed as limiting or canceling the effect of old regulations on tests done under these previous regulations. (s) Revocation. (1) Revocation is an action taken only by the scientific director. To regain certification after revocation requires a written request from the applicant to the office of the scientific director and successful completion of the requirements for certification and/or recertification and/or any additional requirements determined by the scientific director. Revocation invalidates any current program, course of instruction, instrument, operator, or technical supervisor certification issued to the revoked entity for the period of revocation and until recertification. Unless provided for by specific provision in these regulations revocation will apply in cases such as, but not limited to, the following: (A) a certified instrument that is found to be unreliable, inaccurate, or unserviceable, and continued use of which, in the opinion of the scientific director, would not maintain the scientific integrity of the breath alcohol test program; (B) a certified breath alcohol test program, or course of instruction which can no longer maintain the provisions of these regulations; or (C) an operator or technical supervisor certificate not in compliance with the provisions stated in these regulations or when continuance of such certification in the opinion of the scientific director would not uphold the scientific integrity of the breath alcohol test program. (2) Revocation will not be considered by the scientific director as a disciplinary action. Revocation will be for the purpose of enforcing these regulations and maintaining the scientific integrity of the breath alcohol test program. (t) Scientific director. Denotes the title of the individual responsible for the implementation, administration, and enforcement of the Texas breath alcohol testing regulations. For the purpose of these regulations it shall also denote those as specified in sec.19.1(a) of this title (relating to Instrument Certification). (u) Security. Refers to the safeguard of certified instruments at testing locations. Only certified operators, technical supervisors, and individuals defined in sec.19.3(c)(2) of this title (relating to Certification of Techniques, Methods, and Programs) shall have access to certified breath alcohol testing instruments. The technical supervisor has the responsibility and authority to maintain security at all times. (v) Site location. Refers to the physical site where the breath alcohol testing instrument and reference sample device is located, and where testing is conducted pursuant to sec.19.3(b) of this title (relating to Certification of Techniques, Methods, and Programs). Relocation of certified breath alcohol test equipment requires the approval of the technical supervisor(s) and documentation of this fact. The technical supervisor has the authority to approve the site with regards to technical acceptability for breath alcohol testing and pursuant to subsection (u) of this section. (w) Suspension. Suspension refers to the immediate cancellation of certification. A suspension can be initiated by the scientific director, technical supervisor, or designated representative of the scientific director. Prior to appeal to the director of the Department of Public Safety, suspensions may be set aside or sustained only after investigation by the scientific director. The minimum period of suspension as determined by the scientific director will be for a period of time not less than 30 days. The technical supervisor or a designated representative of the scientific director may recommend a specific period of suspension to the scientific director. Usually, suspensions will be immediate action taken by the suspending authority when there is reason to believe that unreliable or incompetent operations have occurred or there has been some violation of these regulations. Due to the immediate nature and the procedure for appeal, the individual initiating the suspension shall not be required to confer, consult, or obtain permission or approval from anyone prior to the initiation of the suspension. However, all suspensions must be consistent with procedures outlined in these regulations. A suspension invalidates any certification issued to the suspended entity for a period of suspension until recertification. To regain certification after the period of suspension requires a written request from the applicant to the scientific director. Upon receipt of the written request, the applicant will be advised of the necessary steps to be taken in order to regain certification. Suspension will not be considered by the scientific director as a disciplinary action but shall be for the purpose of maintaining the scientific integrity of the breath alcohol test program and upholding these regulations. (x) System blank analysis (Sample Chamber Purge). An analysis of ambient air, free of alcohol and other interfering substances, that yields a result of 0.00. (y) Technical supervisor and technical supervision. This term refers to an individual meeting the minimum requirements set forth in sec.19.5 of this title (relating to Technical Supervisor Certification) and certified by the scientific director. Technical supervisor certification, like operator certification, is limited to specific instrumentation. Technical supervisors have the responsibility and the authority to inactivate, suspend, or recommend revocation of any certification under their supervision. Inactivation, suspension, or recommended revocation by the technical supervisor will not be considered a disciplinary action, but a means to enforce these regulations and safeguard the scientific integrity of the breath alcohol testing program. Certification as a technical supervisor does not in itself imply disciplinary control or administrative in-line supervision over certified operators. However, technical supervisors must exercise complete technical supervisory authority over all operators in their assigned areas in all matters pertaining to breath alcohol testing and in enforcement of all provisions stated in these regulations. Certification of the technical supervisor and the program in which the technical supervisor operates is contingent upon the technical supervisor's ability to communicate directly with the office of the scientific director in accordance with the provisions stated in these regulations and by directives issued by the scientific director. The primary function of the technical supervisor is to provide the technical, administrative, and supervisory expertise in safeguarding the scientific integrity of the breath alcohol testing program and to assure the breath alcohol testing program's acceptability for evidential purposes. The technical supervisor, in matters pertaining to breath alcohol testing, is the field agent of the scientific director. Supervision by the technical supervisor in accordance with the provisions stated in these regulations shall include, but not be limited to: (1) supervision of certified operators in performance of breath alcohol test operations, including the proper completion of forms and records, and operator's compliance with the provisions stated in these regulations; (2) supervision of data gathered for initial certification and/or approval of individual instruments and reference sample devices in an assigned area; (3) supervision of techniques of testing, maintaining scientific integrity and upholding these regulations as they apply to the certification of a total testing program; (4) selection and supervision of a testing location as it applies to security and technical suitability for testing; (5) supervision of compliance with the policy of public information and/or demonstrations of breath alcohol testing instruments and equipment; (6) all technical, administrative, and regulatory aspects of breath alcohol testing within a designated area; and (7) expert testimony by direct testimony or by written affidavit concerning all aspects of breath alcohol testing within an assigned area. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811189 Dudley M. Thomas Director Texas Department of Public Safety Effective date: August 4, 1998 Proposal publication date: April 24, 1998 For further information, please call: (512) 424-2890 CHAPTER 27. Crime Records SUBCHAPTER G. Texas Help End Auto Theft 37 TAC sec.27.81-27.89 The Texas Department of Public Safety adopts new sec.sec.27.81 - 27.89, concerning the Texas Help End Auto Theft (H.E.A.T.) Program, without changes to the proposed text as published in the June 12, 1998, issue of the Texas Register (23 TexReg 6146). The justification for the sections will be to deter auto theft. The new sections are necessary for the implementation and maintenance of the Texas H.E.A.T. Program under the Automobile Theft Prevention Authority (Authority) established under the authority of Texas Civil Statutes, Article 4413(37). This act of the 72nd Texas Legislature intends to reduce auto theft in the State of Texas. The new sections set forth procedures for a statewide automobile registration program to be administered by the Texas DPS. The goal of the Texas H.E.A.T. Program is to help reduce auto theft in the State of Texas. As such, this program will primarily be a deterrent to auto theft rather than an apprehension tool. The DPS under the direction of the Authority has developed a statewide vehicle registration program known as the Texas H.E.A.T. Program. Under the Texas H.E.A.T. Program, law enforcement officers are authorized to stop vehicles which are registered in the program when observed on public streets anywhere in Texas between the hours of 1:00 a.m. and 5:00 a.m., according to the registration signed voluntarily by the vehicle owner, to determine whether the vehicle is being operated by the owner or with the owner's permission. Vehicle owners participating in this program may also voluntarily extend authority to peace officers to stop a registered vehicle that crosses or is about to cross an international border directly from the state of Texas. No comments were received regarding adoption of the new sections. The new sections are adopted pursuant to Texas Civil Statutes, Article 4413(37), sec.9, and Texas Government Code, sec.411.006(4) which authorizes the director to adopt rules, subject to commission approval, considered necessary for the control of the department. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 15, 1998. TRD-9811190 Dudley M. Thomas Director Texas Department of Public Safety Effective date: August 4, 1998 Proposal publication date: June 12, 1998 For further information, please call: (512) 424-2890 TITLE 40. SOCIAL SERVICES AND ASSISTANCE PART I. Texas Department of Human Services CHAPTER 6. Disaster Assistance Program SUBCHAPTER B. Eligibility Criteria for Individual and Family Grants 40 TAC sec.6.101 The Texas Department of Human Services (DHS) adopts an amendment to sec.6.101, concerning eligibility criteria, in its Chapter 6, Disaster Assistance Program. The purpose of the amendment is to comply with Federal Emergency Management Agency (FEMA) Response and Recovery Directorate No. 4430.140 C, Policy on Verification of Citizenship, Qualified Alien Status and Eligibility for Disaster Assistance. In July of 1995, the U.S. Congress passed a law directing FEMA to prohibit providing any funds to persons not lawfully present in the United States. FEMA interprets this to mean that it is required to check lawful presence in the United States before it can provide non-emergency assistance to an individual. This law impacts the FEMA Disaster Housing Program and, effective February 28, 1998, the Individual and Family Grant Program (IFGP). The amendment will function by enabling the IFGP to comply with the intent of the July 1995 law passed by the U.S. Congress prohibiting the provision of federal funds to any person not lawfully present in the United States. The amendment is adopted under the Human Resources Code, Title 2, Chapter 22, which authorizes the department to administer public assistance programs. The amendment implements the Human Resources Code, sec.sec.22.001-22.030. The adopted amendment is adopted to be effective February 28, 1998, to comply with federal requirements. sec.6.101. Eligibility Criteria. (a)-(c) (No change.) (d) A victim must sign a declaration that attests to his being a United States citizen, a non-citizen national, or a qualified alien in the United States. The signor is also to provide FEMA or the state inspector with a form of identification to confirm his identity. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 13, 1998. TRD-9811046 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: February 28, 1998 For further information, please call: (512) 438-3765 CHAPTER 48.Community Care for Aged and Disabled SUBCHAPTER F. In-Home and Family Support Program 40 TAC sec.48.2702, sec.48.2703 The Texas Department of Human Services (DHS) adopts amendments to sec.48.2702 and sec.48.2703, without changes to the proposed text published in the June 12, 1998, issue of the Texas Register (23 TexReg 6154). The justification for the amendment to sec.48.2702 is to delete the requirement that waiting list applicants be contacted annually and to begin the processing time for new applications from the date of the home visit rather than the date of assignment from the waiting list. The justification for the amendment to sec.47.2703 is to replace the copayment table with a detailed description of the method of copayment assessment. The amendment to sec.48.2702 will function by providing the presumption of continued interest in the program for all waiting list applicants and to "start the clock" for application processing at the same time for all applicants, thereby allowing all the same amount of time to furnish eligibility information. The amendment to sec.48.2703 will function by ensuring stability of the rule regarding copayment assessment, rather than annual revision. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. The amendments implement sec.sec.22.001-22.030 and 35.001-35.012 of the Human Resources Code. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 17, 1998. TRD-9811273 Glenn Scott General Counsel, Legal Services Texas Department of Human Services Effective date: August 15, 1998 Proposal publication date: June 12, 1998 For further information, please call: (512) 438-3765 PART XVI. Council on Sex Offender CHAPTER 510.Sex Offender Treatment Provider Registry 40 TAC sec.sec.510.1-510.9 The Council on Sex Offender Treatment (council) adopts the repeal of sec.sec.510.1-510.9, concerning the sex offender treatment provider registry without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4549). Specifically, the sections cover definitions; registry criteria; registry renewal; fees; application availability; documentation of experience and training; revoke, refuse, or refuse to renew a registry listing; judicial review of exclusion from registry; and registry inclusion based on pre-existing status. House Bill (HB) 2699, 75th Legislature, 1997, transferred the administration and enforcement required by the council (Texas Civil Statutes, Article 4413(51)), to the Texas Department of Health (department) effective September 1, 1997. Section 17 of this bill transferred all funds, property, records, and employees to the department as of September 1, 1997. The rules repealed in 40 Texas Administrative Code (TAC) Chapter 510 are adopted in 22 TAC Chapter 810, sec.sec.810.1-810.9. The rules are adopted in 22 TAC Chapter 810 in order to be regrouped with other boards administratively attached to the department and are renumbered under one chapter instead of four chapters. No comments on the adopted repeal were received. The repeal is adopted under the Act, Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act and sec.8 provides the council with the authority to adopt rules concerning the registration requirements and procedures for sex offender treatment providers on the registry. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811428 Collier M. Cole, Ph.D. Chairperson Council on sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 CHAPTER 511.Criminal Background Check Security 40 TAC sec.sec.511.1-511.4 The Council on Sex Offender Treatment (council) adopts the repeal of sec.sec.511.1-511.4, concerning the criminal background check security without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4549). Specifically, the sections cover access to criminal history records; destruction of criminal history records; records of the council; and frequency of criminal background checks. House Bill (HB) 2699, 75th Legislature, 1997, transferred the administration and enforcement required by the council (Texas Civil Statutes, Article 4413(51)), to the Texas Department of Health (department) effective September 1, 1997. Section 17 of this bill transferred all funds, property, records, and employees to the department as of September 1, 1997. The rules repealed in 40 Texas Administrative Code (TAC) Chapter 511 are adopted in 22 TAC Chapter 810, sec.sec.810.31-810.34. The rules are adopted in 22 TAC Chapter 810 in order to be regrouped with other boards administratively attached to the department and are renumbered under one chapter instead of four chapters. No comments on the proposed repeal were received. The repeal is adopted under the Act, Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act and sec.16(f) provides the council with the authority to adopt rules to collect and destroy information concerning criminal backgrounds. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811429 Collier M. Cole, Ph.D. Chairperson Council on sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 CHAPTER 512.Standards of Practice 40 TAC sec.sec.512.1-512.3 The Council on Sex Offender Treatment (council) adopts the repeal of sec.sec.512.1-512.3, concerning the standards of practice without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4550). Specifically, the sections cover the purpose of the council; council's assertions; and issues to be addressed in treatment. House Bill (HB) 2699, 75th Legislature, 1997, transferred the administration and enforcement required by the council (Texas Civil Statutes, Article 4413(51)), to the Texas Department of Health (department) effective September 1, 1997. Section 17 of this bill transferred all funds, property, records, and employees to the department as of September 1, 1997. The rules repealed in 40 Texas Administrative Code (TAC) Chapter 512 are adopted in 22 TAC Chapter 810, sec.sec.810.61-810.63. The rules are adopted in 22 TAC Chapter 810 in order to be regrouped with other boards administratively attached to the department and are renumbered under one chapter instead of four chapters. No comments on the proposed repeal were received. The repeal is proposed under the Act, Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811430 Collier M. Cole, Ph.D. Chairperson Council on Sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 CHAPTER 513.Code of Professional Ethics 40 TAC sec.sec.513.1-513.2 The Council on Sex Offender Treatment (council) adopts the repeal of sec.sec.513.1-513.2, concerning the professional code of ethics without changes to the proposed text as published in the May 8, 1998, issue of the Texas Register (23 TexReg 4551). Specifically, the sections require that the providers will establish and maintain the highest level of professional standards related to the assessment and treatment of sex offenders. House Bill (HB) 2699, 75th Legislature, 1997, transferred the administration and enforcement required by the council (Texas Civil Statutes, Article 4413(51)), to the Texas Department of Health (department) effective September 1, 1997. Section 17 of this bill transferred all funds, property, records, and employees to the department as of September 1, 1997. The rules repealed in 40 Texas Administrative Code (TAC) Chapter 513 are adopted in 22 TAC Chapter 810, sec.sec.810.91-810.92. The rules are adopted in 22 TAC Chapter 810 in order to be regrouped with other boards administratively attached to the department and are renumbered under one chapter instead of four chapters. No comments on the proposed repeal were received. The repeal is adopted under the Act, Texas Civil Statutes, Article 4413(51). Section 2(b) provides the council with the authority to adopt rules consistent with the Act. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811431 Collier M. Cole, Ph.D. Chairperson Council on Sex Offender Treatment Effective date: August 9, 1998 Proposal publication date: May 8, 1998 For further information, please call: (512) 458-7236 PART XX. Texas Workforce Commission CHAPTER 800. General Administration SUBCHAPTER B. Allocation and Funding 40 TAC sec.800.51 The Texas Workforce Commission (Commission) adopts an amendment to sec.800.51, concerning the allocation of funds to local workforce development areas without changes to the proposed text as published in the May 22, 1998, issue of the Texas Register (23 TexReg 5390). The adopted text will not be republished here. The purpose of the amendment is to allow the Commission to locate other allocation and funding rules within Subchapter B that relate to allocations to various entities. No comments were received on the proposed amendment. The amendment is adopted under the authority of the Texas Labor Code, sec.sec.301.001 and 302.062, which provides the Commission the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Commission programs. This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Filed with the Office of the Secretary of State on July 20, 1998. TRD-9811361 J. Randel Hill General Counsel Texas Workforce Commission Effective date: August 9, 1998 Proposal publication date: May 22, 1998 For further information, please call: (512) 463-8812