ISSUE OFJune 25, 1991" Volume 16, Number 48, June 25, 1991 Pages 3379-3524 Emergency Sections State Depository Board 3391-Collateral Transactions Proposed Sections State Board of Registration for Professional Engineers 3393-Practice and Procedure Texas Optometry Board 3393-Therapeutic Optometry Comptroller of Public Accounts 3395-Tax Administration State Depository Board 3396-Collateral Transactions Texas Employment Commission 3396-Unemployment Insurance Adopted Sections Texas Department of Agriculture 3397-Agricultural and Environmental Sciences Division Texas Workers' Compensation Commission 3397-Dispute Resolution-Benefit Contested Case Hearing 3399-Qualifications for Representatives Texas Parks and Wildlife Department 3399-Fisheries and Wildlife Texas Water Commission 3400-Texas Surface Water Quality Standards Texas Department of Human Services 3525-Intermediate Care Facilities for the Mentally Retarded (ICFS-MR) State Board of Insurance 3544-Notification Pursuant to the Texas Insurance Code, Chapter 5, Subchapter L Open Meetings 3547-Texas Department of Agriculture 3547-Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons 3547-Employees Retirement System of Texas 3547-Texas Employment Commission 3547-Office of the Governor Criminal Justice Division 3547-Texas Growth Fund 3547-State Board of Insurance 3548-Public Utility Commission of Texas 3548-Texas National Research Laboratory Commission 3548-State Securities Board 3548-Teacher Retirement System of Texas 3548-University of Houston System 3548-Texas Veterans Commission 3548-Texas Board of Veterinary Medical Examiners 3548-Texas Water Commission 3548-Regional Meetings In Addition Texas Department of Aviation 3551-Consultant Contract Award Comptroller of Public Accounts 3551-Electronic Filing of Tax Returns Texas Department of Criminal Justice-Pardons and Paroles 3551-Request for Proposal Employees Retirement System of Texas 3551-Consultant Contract Award Texas Department of Human Services 3552-Public Notice Texas Department of Mental Health and Mental Retardation 3552-Notice of Public Hearing Nortex Regional Planning Commission 3552-Request for Proposal Texas Public Finance Authority 3553-Request for Proposal for Accounting Services Public Utility Commission of Texas 3553-Notice of Application to Amend Certificate of Convenience and Necessity 3553-Notice of Petition for Waiver of Substantive Rules 23.11 and 23.12 Texas Water Commission 3553-Notice of Closure Guidance Documents CONTENTS CONTINUED INSIDE ISSUE OFJune 25, 1991" Volume 16, Number 48, June 25, 1991 Pages 3525-3553 Texas Department of Human Services 3525-Intermediate Care Facilities for the Mentally Retarded (ICFS-MR) State Board of Insurance 3544-Notification Pursuant to the Texas Insurance Code, Chapter 5, Subchapter L Open Meetings 3547-Texas Department of Agriculture 3547-Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons 3547-Employees Retirement System of Texas 3547-Texas Employment Commission 3547-Office of the Governor Criminal Justice Division 3547-Texas Growth Fund 3547-State Board of Insurance 3548-Public Utility Commission of Texas 3548-Texas National Research Laboratory Commission 3548-State Securities Board 3548-Teacher Retirement System of Texas 3548-University of Houston System 3548-Texas Veterans Commission 3548-Texas Board of Veterinary Medical Examiners 3548-Texas Water Commission 3548-Regional Meetings In Addition Texas Department of Aviation 3551-Consultant Contract Award Comptroller of Public Accounts 3551-Electronic Filing of Tax Returns Texas Department of Criminal Justice-Pardons and Paroles 3551-Request for Proposal Employees Retirement System of Texas 3551-Consultant Contract Award Texas Department of Human Services 3552-Public Notice Texas Department of Mental Health and Mental Retardation 3552-Notice of Public Hearing Nortex Regional Planning Commission 3552-Request for Proposal Texas Public Finance Authority 3553-Request for Proposal for Accounting Services Public Utility Commission of Texas 3553-Notice of Application to Amend Certificate of Convenience and Necessity 3553-Notice of Petition for Waiver of Substantive Rules 23.11 and 23.12 Texas Water Commission 3553-Notice of Closure Guidance Documents CONTENTS CONTINUED INSIDE ISSUE OFJune 25, 1991" TAC Titles Affected TAC Titles Affected-June The following is a list of the administrative rules that have been published this month. TITLE 1. ADMINISTRATION Part XIII. Texas Incentive and Productivity Commission 1 TAC sec.sec.273.1, 273.7, 273.9, 273.15--3295, 3295 1 TAC sec.289.1--3299 1 TAC sec.sec.291.1, 291.3, 291.5--3300, 3299 1 TAC sec.295.1--3300 1 TAC sec.sec.297.1, 297.3, 297.5--3300 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture 4 TAC sec.7.10--3033 4 TAC sec.9.19--3397 TITLE 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation 16 TAC sec.60.69--3345 16 TAC sec.69.52--3345 16 TAC sec.75.20, sec.75.40--3345 Part VI. Texas Motor Vehicle Commission 16 TAC sec.101.13--3253 16 TAC sec.101.13, sec.101.15--3253 TITLE 19. EDUCATION Part I. Texas Higher Education Coordinating Board 19 TAC sec.sec.5.370-5.376--3253 19 TAC sec.sec.12.21-12.24--3254 19 TAC sec.sec.12.41-12.51--3254 19 TAC sec.sec.12.71-12.76--3254 19 TAC sec.sec.21.21-21.35--3254 19 TAC sec.sec.21.21-21.39--3254 19 TAC sec.21.55, sec.21.56--3257 Part II. Texas Education Agency 19 TAC sec.69.1, sec.69.2--3035 19 TAC sec.sec.69.10-69.23--3035 19 TAC sec.69.101--3035 19 TAC sec.sec.69.121-69.129--3035 19 TAC sec.75.141--3035 19 TAC sec.sec.75.311-75.320--3036 19 TAC sec.sec.77.21-77.26--3036 19 TAC sec.77.331--3036 19 TAC sec.sec.77.351-77.366, 77.372--3036 19 TAC sec.sec.77.391-77.396--3036 19 TAC sec.77.431--3036 19 TAC sec.77.451, sec.77.453--3037 19 TAC sec.sec.77.471-77.480--3037 19 TAC sec.sec.78.1-78.4--3038 19 TAC sec.sec.78.1-78.5--3037 19 TAC sec.78.10--3038 19 TAC sec.sec.78.21-78.25--3027 19 TAC sec.78.41--3037 19 TAC sec.sec.78.61-78.64--3037 19 TAC sec.78.70--3037 19 TAC sec.89.1--3038 19 TAC sec.sec.89.1-89.16--3040 19 TAC sec.89.21, sec.89.22--3039 19 TAC sec.89.31--3039 19 TAC sec.89.41, sec.89.42--3045 19 TAC sec.89.51, sec.89.52--3046 19 TAC sec.sec.89.51-89.56--3039 19 TAC sec.sec.89.71-89.84--3046 19 TAC sec.sec.89.71-89.90--3039 19 TAC sec.sec.89.111-89.120--3039, 3046 19 TAC sec.sec.89.131--3039 19 TAC sec.89.201, sec.89.203--3039, 3046 19 TAC sec.sec.89.211-89.224, 89.226-89.229, 89.231-89.240, 89.242--3046 19 TAC sec.sec.89.211-89.246--3039 19 TAC sec.sec.89.250, 89.252-89.254, 89256, 89.258 28>3055 19 TAC sec.sec.89.250-89.259--3040 19 TAC sec.sec.89.291-89.296--3040 19 TAC sec.89.331--3055 19 TAC sec.sec.89.331-89.334--3040 19 TAC sec.109.61--3055 19 TAC sec.185.1--3056 19 TAC sec.185.15--3337 19 TAC sec.sec.185.10-185.23--3056 19 TAC sec.185.101--3064 19 TAC sec.sec.185.121-185.129--3064 TITLE 22. EXAMINING BOARDS Part I. Texas Board of Architectural Examiners 22 TAC sec.3.144--3077 Part VI. Texas State Board of Registration for Professional Engineers 22 TAC sec.131.134--3346 22 TAC sec.131.151--3393 22 TAC sec.131.171--3393 Part VII. Texas Board of Examiners in the Fitting and Dispensing of Hearing Aids 22 TAC sec.145.1--3351 Part XI. Board of Nurse Examiners 22 TAC sec.211.5--3175 22 TAC sec.213.12, sec.213.16--3191 22 TAC sec.213.12, sec.213.22--3301 22 TAC sec.215.17--3191 22 TAC sec.217.1, sec.217.15--3191 22 TAC sec.217.10--3175 22 TAC sec.218.9--3175 22 TAC sec.222.1-222.4--3195 22 TAC sec.221.1-221.8--3194 22 TAC sec.221.1-221.10--3195 22 TAC sec.sec.280.1-280.6 28>3393 Part XV. Texas State Board of Pharmacy 22 TAC sec.291.36--3107 Part XXIII. Texas Real Estate Commission 22 TAC sec.535.17--3025 22 TAC sec.535.51--3077 22 TAC sec.535.71, 535.72--3078 22 TAC sec.535.91--3025 22 TAC sec.535.92--3080 22 TAC sec.535.122--3080 22 TAC sec.539.81--3026 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health 25 TAC sec.1.4--3105, 3124 25 TAC sec.1.5--3124 25 TAC sec.31.3--3125 25 TAC sec.97.22--3176 TITLE 28. INSURANCE Part I. State Board of Insurance 28 TAC sec.7.28, sec.7.30--3305 28 TAC sec.7.59--3305 28 TAC sec.7.91--3257 28 TAC sec.7.1009--3351 28 TAC sec.9.11--3105 28 TAC sec.9.31--3301 28 TAC sec.11.802-11.807--3258 28 TAC sec.11.803, sec.11.804--3258 28 TAC sec.sec.19.1001-19.1012--3337 28 TAC sec.27.414--3352 28 TAC sec.25.715--3081, 3351 Part II. Texas Workers' Compensation Commission 28 TAC sec.42.110--3026, 3033 28 TAC sec.42.111--3173 28 TAC sec.110.103--3296, 3302 28 TAC sec.126.7--3137 28 TAC sec.133.107--3349 28 TAC sec.134.400--3028, 3033 28 TAC sec.134.600--3029 28 TAC sec.142.19--3397 28 TAC sec.150.3--3399 28 TAC sec.sec.170.1, 170.2, 170.3--3030 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department 31 TAC sec.53.8, sec.53.10--3138 31 TAC sec.59.2, sec.59.3--3140 31 TAC sec.59.6--3126 31 TAC sec.65.72--3126 31 TAC sec.65.702--3399 Part III. Texas Air Control Board 31 TAC sec.101.1--3128 31 TAC sec.112.6, sec.112.20--3128 Part IX. Texas Water Commission 31 TAC sec.334.481, sec.334.482--3352 31 TAC sec.sec.307.2-307.10--3400, 3410 Part X. Texas Water Development Board 31 TAC sec.355.1--3239 31 TAC sec.sec.355.1-355.11--3239 31 TAC sec.sec.355.10-355.19--3241 31 TAC sec.sec.355.31-355.40--3241 31 TAC sec.sec.355.51-355.61--3241 31 TAC sec.sec.355.70-355.77--3242 31 TAC sec.sec.355.70-355.80--3242 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts 34 TAC sec.1.42--3179 34 TAC sec.3.9--3023, 3296, 3302 34 TAC sec.3.196--3395 34 TAC sec.3.285--3244 34 TAC sec.3.295--3195 34 TAC sec.3.297--3251 34 TAC sec.3.313--3195 34 TAC sec.3.692--3235 34 TAC sec.3.693--3235 Part VII. State Property Tax Board 34 TAC sec.sec.165.73-165.78--3135 34 TAC sec.171.1-- State Depository Board 34 TAC sec.171.1--3391, 3396 Part IX. Texas Bond Review Board 34 TAC sec.181.11--3196 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part I. Texas Department of Public Safety 37 TAC sec.1.231--3129 Part III. Texas Youth Commission 37 TAC sec.81.7--3353 Part VI. Texas Department of Criminal Justice 37 TAC sec.152.3--3179 Part IX. Texas Commission on Jail Standards 37 TAC sec.271.3--3141 37 TAC sec.273.5--3105 37 TAC sec.283.1--3141 37 TAC sec.297.9--3130 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services 40 TAC sec.4.1006--3186 40 TAC sec.sec.10.3411, 10.3412, 10.3414, 10.3415, 10.3424, 10.3433, 10.3453, 10.3454--3247 40 TAC sec.10.3456--3248 40 TAC sec.10.3458--3346 40 TAC sec.sec.10.3460-10.3465--3248 40 TAC sec.14.204-- 40 TAC sec.15.435--3354 40 TAC sec.15.460--3354 40 TAC sec.15.466--3354 40 TAC sec.15.501--3355, 3355 40 TAC sec.24.102--3033 40 TAC sec.24.301--3142 40 TAC sec.sec.27.101, 27.103, 27.105--3526 40 TAC sec.sec.27.101-27.109--3526 40 TAC sec.sec.27.201, 27.205, 27.207, 27.209, 27.211, 27.213, 27.215, 27.217--3527 40 TAC sec.27.301--3530 40 TAC sec.sec.27.301, 27.303, 27.305, 27.307, 27.309 28>3530 40 TAC sec.sec.27.401, 27.403., 27.405, 27.407, 27.409, 27.411, 27.413, 27.415, 27.417, 27.419, 27.421--3531 40 TAC sec.sec.27.501, 27.503, 27.505, 27.507, 27.509, 27.511, 27.513, 27.515, 27.517, 27.519, 27.521, 27.523, 27.525, 27.527, 27.529, 27.531--3533 40 TAC sec.sec.27.601, 27.603, 27.605, 27.607--3535 40 TAC sec.sec.27.701, 27.703, 27.705, 27.707, 27.709, 27.711, 27.713, 72.715, 27.717--3539 40 TAC sec.sec.27.801, 27.803, 27.805, 27.807, 27.811, 27.813, 27.815, 27.817, 27.819, 27.821, 27.823, 27.825, 27.827, 27.829, 27.831, 27.833, 27.835, 27.837, 27.839, 27.841, 27.843, 27.845, 27.847, 27.849, 27.851, 27.853, 27.855, 27.857, 27.859, 27.861, 27.863--3540 40 TAC sec.sec.27.1501, 27.1503, 27.1505, 27.1507, 27.1509, 27.1511, 27.1513, 27.1515, 27.1517, 27.1519, 27.1521, 27.1523, 27.1525, 27.1527, 27.1529, 27.1531, 27.1533, 27.1535, 27.1537, 27.1539, 27.1541, 27.1543, 27.1545, 27.1547, 27.1549, 27.1551, 27.1553, 27.1555, 27.1557, 27.1559, 27.1561, 27.1563--3541 40 TAC sec.sec.27.1801-27.1805--3541 40 TAC sec.sec.27.2301-27.2303--3541 40 TAC sec.27.2403, sec.27.2405--3541 40 TAC sec.sec.27.2501-27.2507--3541 40 TAC sec.sec.27.2601-27.2604--3541 40 TAC sec.sec.27.2701-27.2704--3541 40 TAC sec.sec.27.2901-27.2917--3542 40 TAC sec.sec.27.3001-27.3011--3542 40 TAC sec.sec.27.3101-27.3106--3542 40 TAC sec.sec.27.3201-27.3221--3542 40 TAC sec.sec.27.3301-27.3303--3542 40 TAC sec.sec.27.3401-27.3406--3542 40 TAC sec.27.3501, sec.27.3502--3542 40 TAC sec.sec.27.3601-27.3609--3542 40 TAC sec.sec.27.3701-27.3704--3543 40 TAC sec.sec.27.3801-27.3804--3543 40 TAC sec.sec.27.3901-27.3904--3543 40 TAC sec.sec.27.4001-27.4003--3543 40 TAC sec.27.4101, sec.27.4102--3543 40 TAC sec.sec.27.4201-27.4203--3543 40 TAC sec.27.4301, sec.27.4302--3543 40 TAC sec.sec.27.4401-27.4403--3543 40 TAC sec.sec.27.4501-27.4506--3543 40 TAC sec.sec.27.4601-27.4608--3544 40 TAC sec.sec.27.4701-27.4704--3544 40 TAC sec.sec.27.4801-27.4804--3544 40 TAC sec.27.9801--3544 40 TAC sec.29.610--3189 40 TAC sec.47.6901--3186 40 TAC sec.48.2501--3031 40 TAC sec.48.2906--3197 40 TAC sec.48.3904--3347 40 TAC sec.48.9808--3197 40 TAC sec.sec.49.1601-49.1603--3131 40 TAC sec.49.1765--3355, 3355 40 TAC sec.85.1404--3259 Part VII. Texas Committee on Purchases of Products and Services of Blind and Severely Diabled Persons 40 TAC sec.sec.189.2, 189.3, 189.5, 189.10--3259 Part IX. Texas Department on Aging 40 TAC sec.sec.259.2-259.4, 259.6, 259.7--3032 40 TAC sec.sec.261.1, 261.3, 261.5, 261.9, 261.13--3347 Part X. Texas Employment Commission 40 TAC sec.301.16--3396 TITLE 43. TRANSPORTATION Part I. State Department of Highways and Public Transportation 43 TAC sec.sec.11.1-11.3--3197 43 TAC sec.sec.11.80-11.90--3197 43 TAC sec.13.8--3259 43 TAC sec.sec.21.150--3236, 3251 43 TAC sec.sec.25.802, 25.806, 25.807--3260 Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 34. PUBLIC FINANCE Part VIII. State Depository Board Chapter 171. Collateral Transactions 34 TAC sec.171.1 The State Depository Board adopts on an emergency basis an amendment to sec.171.1, concerning collateral transactions. The amendment to subsection (a) is adopted on an emergency basis to include certain types of mortgage-backed securities and portions of Small Business Administration loans which are guaranteed by the United States Government as acceptable collateral for state deposits. The emergency adoption of the amendment to the section will enhance the public benefit by increasing the number and types of acceptable security collateral for state deposits. The amendment is adopted on an emergency basis under the Texas Government Code, sec.404.013, which provides the State Depository Board with the authority to adopt and enforce rules governing the establishment and conduct of state depositories, the handling of funds in the depositories, and the investment of state funds that the public interest requires. sec.171.1. Deposit of Acceptable Security Collateral. (a) Acceptable security collateral. The state treasurer shall approve all acceptable securities offered as collateral for state funds. Acceptable securities shall include those securities with fixed, stated rates and shall include acceptable mortgage-backed securities with declining principal balances
    [that do not contain provisions for principal reductions]. The following securities are hereby deemed acceptable by the State Depository Board as collateral for state funds: (1) United States Treasury obligations; (2) Federal National Mortgage Association discount notes and primary debt instruments or debentures and mortgage-backed securities with a remaining maturity of 15 years or less
      [, but not mortgage-backed securities]; (3) Government National Mortgage Association securities; (4) Federal Home Loan Mortgage Corporation mortgage-backed securities with a remaining maturity of 15 years or less; (5) collateralized mortgage obligations issued by any of the federal agencies set forth in paragraphs (2)-(4) of this subsection with a remaining maturity of 10 years or less; (6) Small Business Administration Loans, the portions of which are guaranteed by the United States Government, and were originated in and serviced by Texas banks and savings and loan institutions for businesses domiciled in the State of Texas. The total amount of Small Business Administration loans pledged as collateral may not exceed $1 million in total market value (remaining principal balance multiplied by the market price) or 25% of the market value of the total amount of pledged securities, whichever is greater; (7)
        [(3)] Federal Home Loan Bank system consolidated bonds and discount notes issued in book-entry form; (8)
          [(4)] Federal Farm Credit Banks Consolidated Systemwide Bonds and discount notes issued in book-entry form; (9)
            [(5)] new public housing authority bonds and preliminary loan notes issued under the Housing Act of 1937, sec.22, as amended if: (A) the annual contribution contract has been entered into between the housing authority and the Federal Housing Administration; and (B) the United States government has fully guaranteed the principal and interest of the annual contributions contract; (10)
              [(6)] State of Texas bonds issued by the various state agencies and four-year educational institutions of the State of Texas; (11)
                [(7)] bonds issued by political subdivisions of the State of Texas. By way of illustration, and not limitation, the governmental entities include independent school districts, incorporated cities, certain road districts, certain municipal water and/or utility districts, hospital districts (excluding health facility bonds), and water and air pollution control districts, as well as junior college revenue bonds; (12)
                  [(8)] industrial development bonds which carry the tax exempt status of a political subdivision of the State of Texas and have received a credit rating of not less than AA or its equivalent by a nationally recognized investment rating firm. (b)-(e) (No change.) Issued in Austin, Texas, on June 17, 1991. TRD-9107211 Anne L. Schwartz General Counsel Texas Depository Board Effective date: June 18, 1991 Expiration date: October 16, 1991 For further information, please call: (512) 463-5971 Proposed Sections Before an agency may permanently adopt a new or amended section, or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before any action may be taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive sections, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part VI. State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Professional Conduct and Ethics 22 TAC sec.131.151 The Texas State Board of Registration for Professional Engineers proposes an amendment to sec.131.151, concerning professional responsibility. The section is being expanded to clarify functions where the practice of engineering is involved for which the professional engineer will be held responsible. Charles E. Nemir, P.E., executive director, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Nemir also has determined that for each year of the first five years the section as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be a clearer interpretation of the engineering services that the engineering profession provides for the public. There will be no effect on small businesses as a result of enforcing the section. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.151. Professional Responsibility.
                    The engineer shall not prepare, complete, revise, alter,
                      sign, or seal any designs, plans, specifications, reports, analyses,
                        or orders, or in any manner participate in any engineering practice, judgment, or decisions which, when measured by generally accepted engineering standards or procedures, may result in any utility,
                          structure, building,
                            machine, equipment,
                              process, product, [or] device, work, or project
                                endangering the property,
                                  lives, safety, health, or welfare of the general public. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 18, 1991. TRD-9107223 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: August 1, 1991 For further information, please call: (512) 440-7723 Complaints 22 TAC sec.131.171 The Texas Board of Registration for Professional Engineers proposes an amendment to sec.131.171, concerning complaints. The amendment clarifies that the board is not responsible for proving the basis of a complaint made against a registrant. Charles E. Nemir, P.E., executive director, has determined that for the first five-year period the proposed section will be in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Nemir also has determined that for each year of the first five years the section as proposed is in effect, the public benefit anticipated as a result of enforcing the section will be the understanding that the board is not responsible for proving the basis of a complaint when there is no proof or probable cause to rely upon and accept as a bona fide complaint. There will be no effect on small businesses as a result of enforcing the section. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Charles E. Nemir, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a), which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. sec.131.171 General. (a) Complaints alleging violations of the Act or board rules must be made in good faith and be
                                    accompanied by sufficient information or factual evidence to establish probable cause. The board is not responsible for proving the basis of a complaint. (b)-(e) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 18, 1991. TRD-9107224 Charles E. Nemir, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: August 1, 1991 For further information, please call: (512) 440-7723 Part XIV. Texas Optometry Board Chapter 280. Therapeutic Optometry 22 TAC sec.sec.280.1-280.6 The Texas Optometry Board proposes new sec.sec.280.1-280.6, concerning therapeutic optometry authorized by Senate Bill 774, 72nd Legislature. The rules set forth the specific requirements for certification as a therapeutic optometrist, establishing the required education, the application and certification processes, and the certification examination, as well as establishing procedures for an advisory committee authorized under the legislation. These rules are necessary in order to implement the changes to the Texas Optometry Act (Texas Civil Statutes, Article 4552) which become effective on September 1, 1991. Lois Ewald, executive director, has determined that for the first five-year period the sections are in effect there will be fiscal implications for state government as a result of enforcing or administering the sections. The effect on state government for the first five-year period the sections are in effect is as follows. The costs are indicated as follows; costs are passed on to licensees only. The estimated additional cost will be $36,684 for fiscal year (fy) 1992; $17,745 for fy 1993; $14,538 for fy 1994; $12,963 for fy 1995; and $12,963 for fy 1996. The estimated increase in revenue (excess revenue over expenditures) will be $27,316 for fy 1992; $22,255 for fy 1993; $13,462 for fy 1994; and $17, 037 for fys 1995 and 1996. There will be no fiscal implications for local government. Ms. Ewald also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be that optometrists, once certified as therapeutic optometrists, will be able to better care for their patients within the scope of optometry; the public will be assured that only those optometrists meeting the educational requirements and successfully passing the certification examination will be certified as therapeutic optometrists. There will be no effect on small businesses. The anticipated economic cost to persons who are required to comply with the sections as proposed will be the cost to optometrists will be an application fee, certification fee, and an examination fee to a testing entity. The agency is unable to determine the cost, as it will be based on the number of optometrists who wish to seek certification. Comments on the proposal may be submitted to Lois Ewald, Executive Director, Texas Optometry Board, 9101 Burnet Road, Suite 214, Austin, Texas 78758. The new sections are proposed under Texas Civil Statutes, Article 4552, sec.2. 14, which provide the Texas Optometry Board with the authority to promulgate procedural and substantive rules. sec.280.1. Application for Certification. (a) To be certified to administer and prescribe ophthalmic devices, over-the-counter oral medications, and topical ocular pharmaceutical agents, other than antiviral agents and antiglaucoma agents, for the purpose of diagnosing and treating visual defects, abnormal conditions and diseases of the human eye and adnexa, and to be able to remove superficial foreign matter and eyelashes from the external eye or adnexa, a licensed optometrist must submit a completed application on forms provided by the Texas Optometry Board (board). After September 1, 1992, all applicants for initial licensure in Texas must be licensed as therapeutic optometrists in order to practice optometry in Texas. (b) A licensed optometrist who is not certified as a therapeutic optometrist may only use topical ocular pharmaceutical agents for the purpose of ascertaining and measuring the powers of vision of the human eye, examining and diagnosing visual defects, abnormal conditions, and diseases of the human eye and adnexa, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. (c) An application for certification must be completed by the applicant, signed and notarized, and forwarded to the board along with an application fee of $55. Proof of the required education as set forth in sec.280.2 of this title (relating to Required Education) must accompany the application form. (d) Once the board has approved the application and required education, and has received successful examination results, the optometrist will be notified, and a certification fee of $25 must be submitted prior to the issuance of the certificate to practice as a therapeutic optometrist. The certificate must be displayed along with the initial license in a conspicuous place in the principal office where the optometrist practices. (e) Designation of authority as a certified therapeutic optometrist will appear along with the optometrist's license number in the format of four license numbers with the letter "T". Such designation must appear whenever the license number is required under board statutes or board rules. (f) In the event the original certification is lost or destroyed, the board may, in its discretion, issue a duplicate certificate; the person entitled thereto must make written application to the board for a duplicate, under affidavit setting forth that such certificate was lost or destroyed, and the circumstances under which loss or destruction occurred. Should the original subsequently be found, it must be forwarded immediately to the board and not used by the person to whom issued originally or by any other person. A fee of $10 must be submitted to the board along with the affidavit for the duplicate issue. (g) Successful completion of a board approved examination testing knowledge of general and ocular pharmacology and related pathology with particular emphasis on the topical application of pharmaceutical agents shall be required, as defined in s280.3 of this title (relating to Certified Therapeutic Optometrist Examination). sec.280.2. Required Education. (a) In order to demonstrate compliance in regard to therapeutic optometry, successful completion of at least 144 classroom hours of board approved post graduate course work and clinical training in general and ocular pharmacology and related pathology conducted by an accredited institution which has facilities for both didactic and clinical instruction is required. The applicant must provide documentation of successful completion of course work from the institution. (b) Optometrists licensed by the board by virtue of possessing a doctor of optometry degree will be considered to have on file with the Texas Optometry Board a minimum of 70 classroom hours in pharmacology and related pathology. The remainder of 74 classroom hours must be obtained in course work and clinical training in general and ocular pharmacology with a minimum of 20 hours in applied clinical skills, in accordance with the requirements of subsection (a) of this section. (c) In order to assure that therapeutic optometrists are current and proficient in up-to-date therapeutic knowledge and techniques, optometrists having been graduated prior to September 1, 1987, shall obtain a minimum of 74 classroom hours in post-graduate courses of general and ocular pharmacology. Optometrists graduated after September 1, 1987, shall be considered as having met the educational requirements. (d) To be acceptable, courses of classroom hours must receive prior approval by the board, upon recommendation of the Therapeutic Education committee. Any courses taken subsequent to September 1, 1987, and prior to September 1, 1991, may be submitted for consideration of approval by the board. Approved courses may be given only by accredited colleges and schools of optometry. sec.280.3. Certified Therapeutic Optometrist Examination. (a) The certified therapeutic optometrist examination shall be the treatment and management of ocular disease examination (TMOD) administered by the National Board of Examiners in Optometry under contract with the International Association of Boards of Examiners in Optometry. Inasmuch as the inception date of the TMOD was April of 1985, a passing score from any TMOD test administered subsequent to that date will be accepted. (b) Application and appropriate fees required for that examination shall be made directly by the applicant with the testing entity. (c) The applicant is responsible for having the certified test results forwarded to the Texas Optometry board upon successful completion. A pass/fail grade will be sufficient. (d) Any applicant who has failed the TMOD may submit to a reexamination under the guidelines of the testing entity. The filing of a new application and payment of a new application fee will be required to be filed with the Texas Optometry Board. sec.280.4. Utilization of Pharmaceutical Agents. (a) To determine the list of pharmaceutical agents to be used by a therapeutic optometrist, the board shall seek the assistance of a five-member technical advisory committee. The five-member technical advisory committee will be consulted as the need arises, but shall meet at least on an annual basis in order to update the list of pharmaceutical agents. A majority of the committee shall constitute a quorum for the transaction of business. A majority of the quorum may act. Final determination of the list will be that of the Texas Optometry Board. (b) In accordance with the Texas Optometry Act (Act), sec.1.03(f), the five-member advisory committee shall be composed of the following: (1) one optometrist or therapeutic optometrist licensed and practicing in this state, appointed by members of the Texas Optometry Board by majority vote; (2) one faculty member of a college of optometry at a state institution of higher education, appointed by the members of the Texas Optometry Board by majority vote; (3) one physician licensed and practicing in this state whose practice is limited to ophthalmology, appointed by the Texas State Board of Medical Examiners; (4) one faculty member at a state medical institution of higher education with expertise in pharmacology, appointed by the Texas State Board of Medical Examiners; and (5) one pharmacist licensed and practicing pharmacy in this state, appointed by the Texas State Board of Pharmacy. (c) Expenses incurred by the technical advisory committee shall be paid by the Texas Optometry Board and shall include actual costs of meals and lodging, not to exceed the amount payable to a member of the Texas Optometry Board, and actual transportation costs. No per diem or any other allowances will be paid. (d) As provided in the Act, sec.1.03(b), the following is applicable concerning the use of topical steroids. (1) If a therapeutic optometrist utilizes topical steroids of a strength of 1.0% concentration to treat a condition and the condition has not in the professional judgment days of the initial topical steroids application, the therapeutic optometrist shall consult with an ophthalmologist and the ophthalmologist shall then establish the treatment regimen. (2) Of a therapeutic optometrist utilizes topical steroids of a strength of less than 1.0% concentration to treat a condition and the condition has not in the professional judgment of the therapeutic optometrist substantially improved within 14 days of the initial topical steroid application, the therapeutic optometrist shall consult with an ophthalmologist and the ophthalmologist shall then establish the treatment regimen. (e) Use by therapeutic optometrist of pharmaceutical agents not authorized under this section shall constitute a violation under the Act, sec.4. 04. sec.280.5. Prescriptions Written for Pharmaceutical Agents by the Therapeutic Optometrists. (a) A certified therapeutic optometrist may prescribe a drug authorized by the Texas Optometry Act, sec.1.02 and sec.1.03. (b) As specified in the Texas Pharmacy Act (Texas Civil Statutes, Article 4542a-1,) written prescriptions shall be on a form which contains two signature lines of equal prominence, side by side, at the bottom of the form. Under either signature line shall be printed clearly the words "product selection permitted," and under the other signature line shall be printed clearly the words "dispense as written." A therapeutic optometrist shall communicate dispensing instructions to a pharmacist by signing on the appropriate line. If the therapeutic optometrist does not clearly indicate that the prescription drug shall be dispensed as ordered, the pharmacies may substitute a generically equivalent drug product in compliance with the Texas Pharmacy Act. (c) All prescriptions shall contain the following information: (1) the date of issuance; (2) the name and address of the patient for whom the drug is prescribed; (3) the name, strength, and quantity of the drug, medicine, or device prescribed; (4) the directions for use of the drug, medicine, or device prescribed; (5) the name and address of the therapeutic optometrist; (6) the written signature of the prescribing therapeutic optometrist; and (7) the license number of the prescribing therapeutic optometrist including the certified therapeutic designation. (d) The prescribing therapeutic optometrist issuing oral prescription drug orders shall furnish the same information required for a written prescription, except for the written signature. If the therapeutic optometrist does not clearly indicate that the prescription drug shall be dispensed as ordered, the pharmacist may substitute a generically equivalent drug product in compliance with the Texas Pharmacy Act. (e) A therapeutic optometrist may charge a reasonable fee for drugs administered within the optometric office, but a therapeutic optometrist shall not charge for any drugs supplied to the patient as take-home medication. Any drug supplied by a therapeutic optometrist other than an over-the-counter drug shall be labeled in compliance with the following information in compliance with the Texas Dangerous Drug Act (Health and Safety Code, Chapter 483), and shall contain the following: (1) the name, address, and telephone number of the therapeutic optometrist; (2) the date of dispensing; (3) the name of the patient; (4) the name and strength of the drug; and (5) the directions for use. (f) At least annually, the Texas Optometry Board shall provide to the Texas State Board of Pharmacy a list of the topical ocular pharmaceutical agents which may be prescribed by therapeutic optometrists. sec.280.6. Advertising by Therapeutic Optometrists.
                                      All advertising must be in compliance with the Texas Optometry Act, sec.5.09. Any advertising regarding services to be provided by a therapeutic optometrist must not be false, deceptive, or misleading and must state "Certified as a Therapeutic Optometrist by the Texas Optometry Board." This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 17, 1991. TRD-9107218 Lois Ewald Executive Director Texas Optometry Board Proposed date of adoption: July 26, 1991 For further information, please call: (512) 835-1938 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter L. Motor Fuels Tax 34 TAC sec.3.196 The Comptroller of Public Accounts proposed an amendment to sec.3.196, concerning reports, due dates, bonding requirements, and qualifications for annual filers. The amendment allows permitted interstate truckers, who have elected to file annual reports and file the annual reports after the due date, to request a retroactive change to file reports on a quarterly basis. The amendment requires the filing of the quarterly reports. Tom Plaut, chief revenue estimator, has determined that for the first five-year period the proposed section will be in effect there will be no significant revenue impact on the state or local government. This section is adopted under the Tax Code, Title 2, and does not require a statement of fiscal implications for small businesses. Mr. Plaut also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be in providing new information regarding tax responsibilities. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Lucy Glover, Manager, Tax Administration Division, P.O. Box 13528, Austin, Texas 78711. The amendment is proposed under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. sec.3.196. Reports, Due Dates, Bonding Requirements, and Qualifications for Annual Filers. (a) (No change.) (b) Due dates. (1) (No change) (2) Annual filers may receive a refund for credit gallons accrued during quarterly periods whose due date is not more than one year before the date the annual report was filed
                                        [The report must be filed by the due date in order for an annual filer to receive a refund for credit gallons accrued during the previous year]. (A) If the report is filed by the due date, a request for refund must be made on annual report. (B) If the annual report is not filed by the due date, quarterly reports for the periods within one year must be filed with the request. The quarterly reports filed shall be assigned the same postmark date as the annual report. (c)-(d) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 17, 1991. TRD-9107134 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Earliest possible date of adoption: July 26, 1991 For further information, please call: (512) 463-4028 Part VIII. State Depository Board Chapter 171. Collateral Transactions 34 TAC sec.171.1 (Editor's Note: The State Depository Board proposes for permanent adoption the amended section it adopts on an emergency basis in this issue. The text of the amended section is in the Emergency Rules section of this issue.) The State Depository Board proposes an amendment to sec.171.1, concerning depositing, exchanging, and withdrawing security collateral for state deposits. The purpose of the amendment is to remove the restriction against residential financing securities as acceptable collateral, to include certain mortgage-backed securities as acceptable collateral, and to remove the requirement that bonds issued by political subdivisions must be tax exempt in order to be acceptable collateral. John Bell, director of cash flow forecasting, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Bell also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be less restrictive requirements for acceptable security collateral for state deposits. There will be no effect on small businesses. There is no anticipated economic costs to persons who are required to comply with the section is proposed. Comments on the proposal may be submitted to Anne L. Schwartz, General Counsel, Texas State Treasury Department, 111 East 17th Street, Austin, Texas 78711, (512) 463-5971. The amendment is proposed under the Texas Government Code, sec.404.013, which provides the State Depository Board with the authority to adopt and enforce rules governing the establishment and conduct of state depositories, the handling of funds in the depositories, and the investment of state funds that the public interest requires. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 17, 1991. TRD-9107210 Anne L. Schwartz General Counsel Texas Depository Board Earliest possible date of adoption: July 26, 1991 For further information, please call: (512) 463-5971 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part X. Texas Employment Commission Chapter 301. Unemployment Insurance 40 TAC sec.301.16 The Texas Employment Commission proposes an amendment to sec.301.16 concerning reopenings of hearings before the Appeal Tribunal. J. Ferris Duhon, legal counsel, has determined that there will not be fiscal implications as a result of enforcing or administering the section. Mr. Ferris also has determined that for each year of the first five years the section as proposed is in effect, the public benefit anticipated as a result of enforcing the section as proposed will be clarification to the parties involved of the circumstances under which a party is or is not entitled to request reopening of a hearing before an Appeal Tribunal. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Carolyn Calhoon, Office of Special Counsel, Texas Employment Commission Building, 101 East 15th Street, Room 660, Austin, Texas 78778, (512) 463-2291. The amendment is proposed under Texas Civil Statutes, Article 5221b, which provide the Texas Employment Commission with the authority to adopt, amend, or rescind such rules as it deems necessary for the effective administration of this Act. sec.301.16. Appeals to Appeal Tribunals from Determinations on Entitlement to Benefits.
                                          Appeals with respect to entitlement to benefits shall be in accordance with the terms of this section and of sec.301.17 of this title (relating to Appeals to the Commission from Decisions on Entitlement to Benefits) and sec.301.18 of this title (relating to General Rules for Both Appeal Stages). As used in this section and sec.301.17 of this title (relating to Appeals to the Commission from Decisions on Entitlement to Benefits) and sec.301. 18 of this title (relating to General Rules for Both Appeal Stages), "party" means an individual or organization entitled to receive a copy of the determination made by the examiner under the terms of the Act, sec.6(b). (1)-(4) (No change.) (5) Reopening of hearing before appeal tribunal. (A) (No change.) (B) Any party to the appeal who fails to appear at a hearing may within 14 days from the date the decision is mailed, petition for a new hearing before the appeal tribunal. Such petition shall be granted if it appears to the appeal tribunal that the petitioner has shown good cause for his failure to appear at the hearing. In the event that an appeal to the commission is filed before the filing of the petition for rehearing by the appeal tribunal, such appeal shall be referred to the commission for review. For purposes of this subsection, the term "appear" shall mean a personal appearance by party or representative who actually participates in the proceedings. Mere submission of written documents, whether sworn or unsworn, shall not constitute an appearance. (6) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on June 18, 1991. TRD-9107234 Carolyn Calhoon Administrative Technician IV Texas Employment Commission Earliest possible date of adoption: July 26, 1991 For further information, please call: (512) 463-2291 Adopted Sections 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 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 9. Agricultural and Environmental Sciences Division Miscellaneous Fees 4 TAC sec.9.19 The Texas Department of Agriculture (department) adopts an amendment to sec.9.19, concerning fee for phytosanitary certification inspection, with changes to the proposed text as published in the March 19, 1991, issue of the Texas Register (16 TexReg 1603). The amendment is adopted to allow the department to recover some of its costs of conducting phytosanitary growing season inspections and administering the Phytosanitary Certification Program. Subsection (b) is adopted with changes. Paragraph (3) of subsection (b) is added to clarify that the department will not require a growing season inspection or payment of the growing season inspection fee for fields which have been certified by the department for genetic identity. The department will instead use the information provided in the genetic identity certification report to issue a phytosanitary certificate on those fields. The amendment provides for the collection by the department of a $25 per field fee for the performance of a growing season inspection and issuance of a phytosanitary growing season inspection certificate on fields which have not been certified by the department for genetic identity. The amendment also deletes the existing requirement that the department maintain suspense balance accounts for issuance of phytosanitary certificates. Many comments were received by individuals and seed companies objecting to the charging of a phytosanitary growing season inspection certificate fee for fields which have been certified for genetic identity by the department. The department had not intended for fields already certified for genetic identity to be covered by the amendment and has added new language as subsection (b)(3) to clarify that such fields are exempted from the fee and inspection requirements of subsection (b). A commenter opposing adoption of the section as proposed was the Texas Seed Trade Association. The amendment is adopted under the Texas Agricultural Code (Vernon 1982), sec.12.021, which provides the Texas Department of Agriculture with the authority to collect a fee for the issuance of a phytosanitary certificate required by foreign countries or other states for agricultural products exported from this state. sec.9.19. Fees for Issuance of Phytosanitary Certificate, Phytosanitary Growing Season Inspection Certificate. (a) Phytosanitary certificates. The department shall collect an inspection fee of $25 for the issuance of a phytosanitary certificate required by other states or foreign countries for agricultural products exported from this state. (b) Phytosanitary growing season inspection certificate. (1) The department shall perform a growing season inspection and issue a phytosanitary growing season inspection certificate, upon the request of a producer, for the purpose of obtaining a phytosanitary certificate from the department of from the United States Department of Agriculture. (2) The department shall collect a fee of $25 per field for the performance of a growing season inspection and the issuance of a phytosanitary growing season inspection certificate. (3) A growing season inspection and issuance of a phytosanitary growing season inspection certificate shall not be required for fields which have been certified for genetic identity by the department. (4) An application for growing season inspection accompanied by field location map shall be submitted to the department no later than 40 days after planting. The department shall supply the proper forms for the application and map. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107219 Dolores Alvarado Hibbs Director of Hearings Texas Department of Agriculture Effective date: July 9, 1991 Proposal publication date: March 19, 1991 For further information, please call: (512) 463-7583 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 142. Dispute Resolution-Benefit Contested Case Hearing 28 TAC sec.142.19 The Texas Workers' Compensation Commission adopts new sec.142.19, concerning form interrogatories to be used in contested case hearings that involve issues relating to workers' compensation benefits, without changes to the proposed text as published in the March 12, 1991, issue of the Texas Register (16 TexReg 1502). The section is adopted with changes to the form interrogatories adopted by reference and with changes to the instructions to the form interrogatories. The new section adopts by reference two form interrogatories: claimant's interrogatories carrier; and carrier's interrogatories to claimant. The section provides instructions to both the claimant and the carrier, on the respective interrogatories set applicable to each, and also lists applicable definitions, as used in the section, including the definitions of Act, carrier, claimant, claim injury, commission, expert witness, person, rule, and statement. Each set sets forth 11 specific prepared interrogatories, and the instructions that the asking party (either carrier or claimant) mark the questions it wishes the other to answer. Each interrogatory set also provides space for the party to include five other questions of his or her own. A certificate of service must be signed and sent with the answers, as well as an affidavit declaring that the answers are true, correct, and complete. Both interrogatory sets require the date of the alleged injury. The interrogatories also inquire into the issues in dispute, allow for each party to list additional issues that may differ from those set forth in the benefit review officer's report, and, if a benefit review conference has not been held, the interrogatories request a listing of the issues in dispute, along with the party's position on each. In addition to general questions included in both sets of interrogatories, the claimant's interrogatory to the carrier inquires whether any statement that concerns the issues in dispute has been obtained from the claimant (or from any other individual) and whether photographs, videotapes, or motion pictures of the claimant have been taken since the date of injury, by anyone acting at the request of, or on behalf of, the carrier. The claimant's interrogatory also asks about any statutory liens against the claimant's benefits and whether requests to reimburse voluntary payments by the employer have been filed with the carrier. The claimant's interrogatory asks for the identity of anyone who has knowledge of the relevant facts related to the issues in dispute, and asks if the carrier knows of any documents relevant to the disputed issues, and if so, the source, nature, and location of each such document. The carrier's interrogatory to the claimant asks about how the claim injury occurred, the nature and extent of the claim injury, and asks the claimant about any prior receipt of workers' compensation benefits. The carrier's interrogatory asks the claimant whether the claimant has filed a lawsuit for the claim injury, as well as the county and court where the suit has been filed. The carrier's interrogatory asks the claimant to identify any person whom the claimant knows to have knowledge of the relevant facts related to the issues in dispute, as well as the source, the nature, and the location of every document which the claimant knows of which is relevant to the issues in dispute. Concerning the claimant's interrogatories to carrier, one commenter suggested that the instructions be amended by added language stating that the interrogatories have the force and effect of being continuous and ongoing in nature and that any occurrence that changes a previously-given answer must be corrected and forwarded to the claimant within a reasonable time, but in no event less than seven days prior to any hearing in which that information may be introduced on behalf of the carrier. The commission agrees with the suggestion that clarifying language should be added, but disagrees that a time limit should be imposed. The commission modifies the instructions by adding the following language: "To the CARRIER: Please answer these interrogatories to the best of your knowledge. These interrogatories have the force and effect of being continuous and ongoing in nature. Any occurrence that changes a previously-given answer (e.g., newly-discovered witness, new medical information, etc.) must be corrected and forwarded to the claimant within a reasonable time before the hearing, or, if not possible, brought to the hearing. A party who fails to disclose information known to that party or documents which are in existence and in the possession, custody, or control of that party at the time when disclosure is required by this section may not introduce such evidence at any subsequent proceeding before the commission or in court on the claim unless good cause is shown for not having disclosed such information or documents. Texas Civil Statutes, Article 8308-6.33." Concerning the claimant's interrogatories to carrier, Interrogatory #1, several commenters suggested that the interrogatory be amended to delete requests for information related to irrelevant information which would invade the privacy of the individual responding. The commission agrees with the suggestion that the interrogatory be modified and deletes the following language: "individual answering these interrogatories by stating his or her full name; address; telephone number; date and place of birth; social security number; relationship to the carrier; and any other names by which he or she may be or have been know." The commission replaces the deleted language with the following language: "individual(s) answering these interrogatories by stating his/her/their full name, business address, business phone number, and relationship to the carrier." Concerning the claimant's interrogatories to carrier, Interrogatory #6, one commenter suggested that the scope of the interrogatory be broadened by deleting the language: "pertaining to the issues presently in dispute." The commission disagrees with the suggestion, stating that the scope of Interrogatory #6 should be limited to the issues presently in dispute. Concerning the claimant's interrogatories to carrier, Interrogatory #7, one commenter suggested that the interrogatory be amended to delete the request for information as to the name and address of the individual who presently has custody of each statement. The commission disagrees with the suggestion, noting that the claimant needs to know the name and address of the individual who presently has custody of each statement. Concerning the claimant's interrogatories to carrier, Interrogatory #8, one commenter suggested that the interrogatory be modified on the basis that photographs, videotapes, and motion pictures are protected from discovery by the privilege for any attorney's work product privilege since the attorney directs the carrier's investigation. The same commenter stated that discovery of these materials should not be permitted because the surprise element is needed to trap deceitful claimants. The commission disagrees with the suggestion that Interrogatory #8 be modified, noting that the photographs, videotapes, and motion pictures are generally discoverable and an attorney who wishes to protect them under the exception for attorney work product should take affirmative action to assert the privilege. Concerning the claimant's interrogatories to carrier, Interrogator #10, several commenters suggested that the interrogatory be modified on the basis that is overly broad. The commission agrees with the suggestion that Interrogatory #10 be modified and deletes the following language: "and address of every individual who has knowledge of the issues in dispute." The commission replaces the deleted language with the following language: "...address, and phone number of: (a)each individual whom the carrier knows to have knowledge of the relevant facts related to the issue(s) in dispute; and (b) each individual from whom the carrier plans to submit testimony in its behalf." One commenter also suggested that the Interrogatory #10 be modified by adding a statement that failure to identify witnesses will result in their being barred from testifying. The commission disagrees with this suggestion, noting that the instructions have already been modified to include a warning. Concerning the claimants' interrogatories to carrier Interrogatory #11, several commenters suggested that the interrogatory be modified on the basis that is overly broad and vague. The commission agrees with the suggestion that Interrogatory #11 be modified and deletes the following language: "every document relating to the issue(s) in dispute." The commission replaces the deleted language with the following language: (a) every document the carrier knows of which is relevant to the issue(s) in the dispute; and (b) every document which the carrier intends to introduce into evidence." One commenter also suggested that Interrogatory #11 be modified by adding a statement that failure to identify documents will result in their being inadmissible as evidence. The commission disagrees with this suggestion, noting that the instructions have already been modified to include a warning. Concerning the carrier's interrogatories to claimant, one commenter suggested that the instructions be amended by adding language stating that the interrogatories have the force and effect of being continuous and ongoing in nature and that any occurrence that changes a previously-given answer must be corrected and forwarded to the carrier within a reasonable time, but in no event less than seven days prior to any hearing in which that information may be introduced on behalf of the carrier. The commission agrees with the suggestion that clarifying language should be added, but disagrees that a time limit should be imposed. The commission modifies the instruction by adding the following language: "To the CLAIMANT: Please answer these interrogatories to the best of your knowledge. These interrogatories have the force and effect of being continuous and ongoing in nature. Any occurrence that changes a previously-given answer (e.g., newly-discovered witness, new medical information, etc.) must be corrected and forwarded to the carrier within a reasonable time before the hearing, or, if not possible, brought to the hearing. A party who fails to disclose information known to that party or documents which are in existence and in the possession, custody, or control of that party at the time when disclosure is required by this section may not introduce such evidence at any subsequent proceeding before the commission or in court on the claim unless good cause is shown for not having disclosed such information or documents. Texas Civil Statutes, Article 8308-6.33." Concerning the carrier's interrogatories to claimant, Interrogatory #1, one commenter suggested that the interrogatory be modified by requesting information as to the claimant's wage rate and hours "presently working" per week. The commission disagrees with the suggestion, noting that this information is not needed in every case and would be better asked as one of the five open interrogatories. Concerning the carrier's interrogatories to claimant, Interrogatory #6, one commenter suggested that the word "claim" be replaced with the word "claimed." The commission disagrees with this suggestion noting that the words "claim injury" are used together as a term which is defined in the definitions section. Concerning the carrier's interrogatories to claimant, Interrogatory #7, one commenter suggested that the interrogatory be modified by inserting the word "all" after the word "including." The commission agrees that the Interrogatory #7 should be modified and for purposes of clarification, replaces the word "the" after the word "including" with the word "all." Concerning the carrier's interrogatories to claimant, Interrogatory #8, one commenter suggested that the interrogatory be rewritten so as not to limit the requested information to paid claims. The commission disagrees with the suggested modification, noting that the carrier may only seek contribution for earlier compensable claims. Two other commenters suggested that Interrogatory #8 be rewritten to request the name of the employer for whom the claimant was working at the time of any prior injury or illness for which workers' compensation benefits were received. The commission agrees with the commenters' suggestion and deletes the following language from Interrogatory #8: "received workers' compensation benefits for one or more other injuries or illnesses, whether in Texas or elsewhere, please list the date(s) of injury, the state(s) or other jurisdiction in which benefits were paid, the claim number(s), and the impairment rating(s) you received, if any." The commission replaces the deleted language with the following language: "previously received workers' compensation benefits, please list the geographical locations, the employers, and the approximate dates of the injuries or illnesses." Concerning the carrier's interrogatories to claimant, Interrogatory #9, one commenter suggested that the interrogatory be rewritten to include the words "or entity" after the word "person." The commission disagrees with the suggestion, noting that the word "person," as defined in the definitions section, includes entities. The commission, on its own motion, for purposes of clarification, deleted the following language from Interrogatory #9: "..., or intend to file, a claim or lawsuit against any person for the claim injury, please state the person's name, and address, and the grounds for the claim or lawsuit." The commission replaces the deleted language with the following language: "a lawsuit for the claim injury, please state the county and court where the suit has been filed." Concerning the carrier's interrogatories to claimant, Interrogatory #10, several commenters suggested that the interrogatory be modified on the basis that is overly broad. The commission agrees with the suggestion that Interrogatory #10 be modified and deletes the following language: "and address of every individual who has knowledge of the issue(s) in dispute." The commission replaces the deleted language with the following language: "..., address, and phone number of: (a) each individual whom you know to have knowledge of the relevant facts related to the issue(s) in dispute; and (b) each individual from whom you plan to submit testimony on your behalf." One commenter suggested that Interrogatory #10 be modified by adding a statement that failure to identify witnesses will result in their being barred from testifying. The commission disagrees with this suggestion, noting that the instructions have already been modified to include a warning. Concerning the carrier's interrogatories to claimant, Interrogatory #11, several commenters suggested that the interrogatory be modified on the basis that is overly broad and vague. The commission agrees with the suggestion that Interrogatory #11 be modified and deletes the following language: "every document relating to the issue(s) in dispute." The commission replaces the deleted language with the following language: ": (a) every document you know of which is relevant to the issue(s) in dispute; and (b) every document which you intend to introduce into evidence." One commenter also suggested that Interrogatory #11 be modified by adding a statement that failure to identify documents will result in their being inadmissible as evidence. The commission disagrees with this suggestion, noting that the instructions have already been modified to include a warning. Comments against the proposed section were received from the Alliance of American Insurers, Wayne R. Luck and Associates, Wausau Insurance Companies, and Boggess, Davis & Mabel. No comments specifically in favor of the proposed section were received. The section is adopted under Texas Civil Statutes, Article 8308, sec.2.09(a), which provide the Texas Workers' Compensation Commission with the authority to adopt rules as necessary for the implementation and enforcement of this Act; and Article 8308, sec.6.33(b), which authorize the commission to prescribe by rule standard form sets of interrogatories to elicit information from claimants and insurance carriers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 18, 1991. TRD-9107247 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Effective date: July 9, 1991 Proposal publication date: March 12, 1991 For further information, please call: (512) 440-3973 Chapter 150. Qualifications for Representatives 28 TAC sec.150.3 The Texas Workers' Compensation Commission adopts new sec.150.3, concerning the procedure for authorization of certain persons who will represent parties in workers' compensation matters pending before the Texas Workers' Compensation Commission, without changes to the proposed text as published in the April 23, 1991, issue of the Texas Register (16 TexReg 2273). New sec.150.3 is necessary as it applies to representatives as defined in the Texas Workers' Compensation Act, Article 8303-1.03(40). The section provides that an insurance adjuster who desires to represent an insurance carrier (as an adjuster) must hold a license to do so from the State Board of Insurance, and must provide the commission with written authorization from the carrier to act as its representative. The authorization is not required if the adjuster is an employee of the carrier. If a person seeks representative status as an attorney, that person must comply with sec.150.2(a) of this title (relating to Qualification and Authorization of Attorney to Practice Before the Commission). Finally, the new section provides that a person who is not an adjuster or attorney, who wishes to act as a representative for a party, must file either a power of attorney, or a written authorization from a claimant, which will serve to allow that person access to otherwise confidential records. Such a representative may not directly or indirectly seek a fee from a claimant. The new section provides that a representative that does not comply with a provision of the Act or a commission rule may be subject to administrative penalties, including suspension of the right to practice before the commission. The only comment received against the section as proposed, specifically, was against subsection (a)(1). Commenter stated that "rule is burdensome and redundant" because independent, licensed adjusters would not be representing a carrier unless "authorized to do so." The commission disagrees. The rule, as proposed, requires many representatives to show express authorization to act. Requirement for "non-employee" adjusters will allow the commission to clearly trade the responsibility for adjusting claims for specific companies, and to monitor, promptly, any changes in adjusters made by the carrier. Comment against the rule as proposed was received from F.A. Richard & Associates. No comment specifically in favor of the rule as proposed was received. The new section is adopted under Texas Civil Statutes, Article 8308-2.09(a), which authorizes the commission to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act, Article 8303-1.01 et seq; and Article 8303-2.09(e), which authorizes the commission to establish qualifications for representatives and to adopt rules establishing procedures for authorization of those representatives. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107199 Susan M. Kelley General Counsel Texas Workers' Compensation Commission Effective date: July 8, 1991 Proposal publication date: April 23, 1991 For further information, please call: (512) 440-3973 TITLE 31. NATIONAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 65. Fisheries and Wildlife Subchapter U. Type II Wildlife Management Area-Public Hunting Lands 31 TAC sec.sec.65.702-75.705 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held May 23, 1991, adopts amendments to 31 TAC sec.sec.65.702, 65.703, 65. 704, and 65.705 concerning Type II Wildlife Management Area-Public Hunting Lands Proclamation, without changes to the proposed text as published in the April 16, 1991, issue of the Texas Register (16 TexReg 2211). The sections adopted permit additional public hunting and recreational opportunity based upon studies and investigations. The amendments as adopted were necessary to provide new definitions, clarify rules, restrict certain activities considered hazardous, restrict harvest of javelina, expand hunting opportunity, and prohibit holders of a Limited Type II permit to possess firearms and archery equipment. The amendments permit the taking of wildlife resources on Type II Wildlife Management Areas consistent with their population levels and to provide equitable hunting opportunity. Comments concerning the proposed rules were received in the form of letters and telephone calls. Commentors stated: general approval of the Type II program, preferred the delayed deer season on selected units, preferred that deer season on all units open simultaneously, proposed dog proof enclosures where fox and coyote could be hunted by houndsmen, too much logging, lack of game species and habitat for game species, regulations more restrictive for Type II units than for adjacent units are unfair, and Type II permit be a stamp, attachable to back of hunting license. No groups or organizations spoke for or against the rules, all comments received were from individuals. The amendments are adopted under the Texas Parks and Wildlife Code, Chapter 81, Subchapter E, which provides the Texas Parks and Wildlife Commission with authority to regulate seasons, numbers, means, methods, and conditions for taking wildlife resources on wildlife management areas. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 18, 1991. TRD-9107231 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: September 1, 1991 Proposal publication date: April 16, 1991 For further information, please call: 1-800-792-1112, ext. 4770 or (512) 389-4770 Part IX. Texas Water Commission Chapter 307. Texas Surface Water Quality Standards 31 TAC sec.sec.307.2-307.10 The Texas Water Commission (TWC or commission) adopts the repeals of sec.sec.307.2-307.10 and new 307.2-307.10, concerning Texas surface water quality standards. New sections 307.2-307.10 are adopted with changes to the proposed text as published in the December 25, 1990, issue of the Texas Register (15 TexReg 7495). Section 307.7 is adopted without changes and will not be republished. The Texas Water Commission has the sole and exclusive authority to establish and revise water quality standards for the State of Texas. These standards are established and reviewed on a periodic basis pursuant to the Texas Water Code, sec.26.023, as amended, and the Federal Water Pollution Control Act, sec.303(c), as amended. The previous statewide surface water quality standards were adopted by the Texas Water Commission on April 7, 1988, and subsequently approved by the United States Environmental Protection Agency (EPA) on June 29, 1988. The proposed revisions to the standards as published in the December 25, 1990, issue of the Texas Register (15 TexReg 7495) included editorial revisions and substantive changes. Editorial revisions were needed to improve clarity and include grammatical corrections, revisions of wording, and renumbering of subsections, as necessary. Substantive changes were needed to incorporate new information on toxic materials and improved data incorporate new information on toxic materials and improved data on waters in the state, and to respond as warranted to directives from EPA. The proposed amendments will comply with the provisions of the Federal Water Pollution Control Act, as last amended in 1987 (33 United States Code 1251 et seq). Most of the proposed changes were substantive. In sec.307.2, which concerns the description of the standards, the applicability of the standards to waters in the state (including wetlands) was clearly specified. Also in sec.307.2, requirements for site-specific standards amendments were consolidated, provisions for a temporary variance were specified, and the application of interim and final permit limits was explained. Definitions were added in sec.307.3 for terms such as harmonic mean flow, industrial cooling impoundments, minimum analytical level, method detection limit, Standard Methods for the Examination of Water and Wastewater, standards implementation procedures, sustainable fishery, surface water in the state, and wetlands; and additional clarification was added to existing definitions, e.g., chronic toxicity, marine waters, and total suspended solids. The definition of intermittent streams was revised so that an intermittent stream with perennial pools was still considered intermittent. This change was proposed to avoid confusion and will not affect the standards for perennial pools in sec.307.4, which concerns general criteria. In sec.307.4, which concerns general criteria, the narrative provisions for nutrients were revised to include watershed rules as a means of nutrient control in order to more clearly express current policies of the Texas Water Commission. In addition, narrative provisions for dissolved minerals were added. Narrative criteria for oil and grease were expanded to address toxicity effects. Aquatic life uses and criteria for dissolved oxygen in perennial and intermittent unclassified waters were consolidated into the new sec.307.4(h). The presumptive aquatic life use of perennial unclassified waters was raised from limited to intermediate in order to better reflect recent data on the typical water quality of small perennial streams. In sec.307.6 which concerns antidegradation, the term "significant degradation" was changed to "degradation" since the concept of degradation already implies significance. Numerous substantive changes were proposed for sec.307.6 which concerns toxic materials. In sec.307.6(b), the general provisions for human health protection were simplified and a narrative provision was added to more explicitly protect wildlife, livestock, and domestic animals from toxicity in waters in the state. The factors which justify a site-specific aquatic life toxic criterion were consolidated and moved to new sec.307.6(c)(11). In response to additional data on the toxicity and occurrence of particular substances in state waters, aquatic life toxic criteria were added in Table 1 for aluminum, carbaryl, diazinon, phenanthrene, tributyltin, and 2,4,5 trichlorophenol; and the aquatic life criteria for copper, mercury, selenium, and silver were revised. The previous mercury criteria, which were based on human health concerns, were moved to new sec.307.6(d), which concerns specific numerical human health criteria. References to practical quantitation levels were changed to minimum analytical levels and provisions for using minimum analytical levels in permits were described in sec.307.8(c), which concerns the application of standards. General requirements for toxicity identification evaluations and toxicity reduction evaluations were added in sec.307.6(e)(2), in order to more clearly state commission procedures and policy. New sec.307.6(d) was added which establishes numerical human health criteria for approximately 61 potentially toxic materials. The criteria were designed to prevent contamination of drinking water and fish tissue so as to ensure they are safe for long-term human consumption, in response to public concerns, United States Environmental Protection Agency directives, and the recent availability of data and procedures which facilitate the derivation and application of numerical human health criteria. Criteria were defined in sec.307.6(d)(2), derivation procedures are listed in sec.307.6(d)(3), and the criteria were listed in new Table 3. Additional provisions related to human health protection in other sections included: the specification of conditions under which human health toxic criteria apply in sec.307.8, which concerns the application of standards; and the sampling protocol for determining attainment of human health criteria in sec.307.9, which concerns standards attainment. Several proposed revisions to sec.307.6 addressed the application of zones of initial dilution (ZIDs) in response to public concerns. The emphasis on allowing standards exemptions in mixing zones and ZIDs was deleted from the general toxicity provisions in sec.307.6(b), although mixing zones and ZIDs were still applied as in the previous standards in sec.307.8(b), which concerns the application of standards. Lethality to aquatic organisms which move through a ZID was prohibited in sec.307.6(c)(7) which concerns specific numerical aquatic life criteria, and in sec.307.6(e)(1) which concerns total toxicity. For additional protection against lethality in ZIDs, a provision was added to sec.307. 6(e)(2) which requires dischargers to test for and preclude short-term lethality in the discharge effluent--as indicated by mortality exceeding 50% of test organisms after 24 hours. Maximum allowable sizes of ZIDs were specified in sec.307.8(b), which concerns the application of standards. In sec.307.7, which concerns site-specific uses and criteria, references to federal drinking water regulations were changed to cite state drinking water regulations. In sec.307.9, which concerns standards attainment, the averaging period for measurements of chloride, sulfate, and total dissolved solids was specified as one year. In sec.307.10, which contains the appendices, new Appendix D was added which specifies designated aquatic life uses and dissolved oxygen criteria for approximately 63 waterbodies which were assessed in response to discharge permit actions. Appendix D was developed so as to make the results of recent use determinations more publicly available. Numerous changes were made in Appendix A, which concerns water uses and numerical criteria for classified waterbodies, and in Appendix C, which concerns segment descriptions, in response to new information on water quality conditions and/or new analyses to determine attainable uses. A definition to distinguish saltwater from freshwater segments was added to the cover page of Appendix A. Segment 0805 of the Trinity River, which was previously designated for limited aquatic life use, was redefined and divided into two new segments--new segment 0805 and new segment 0841. New segment 0841 (the upstream segment) was designated for intermediate aquatic life use, and new segment 0805 (the downstream segment) is designated for high aquatic life use. As in the previous standards, lower criteria for segments 0805 and 0841 apply at headwater flows in Fort Worth less than 80 cubic feet per second. Criteria for chlorides, sulfate, and total dissolved solids in Lake Lavon (Segment 0821) were raised slightly to account for new sources of water to the reservoir. Chronic numerical criteria for aquatic life protection were explicitly applied to the Houston Ship Channel (Segments 1006 and 1007). The aquatic life use for Buffalo Bayou Tidal (Segment 1013) was elevated from none to intermediate. The aquatic life use for Dickinson Bayou Above Tidal (Segment 1104) was lowered from high to intermediate, the aquatic life use for the Brazos River below Possum Kingdom (Segment 1206) was lowered from exceptional to high, and the aquatic life use for the Nolan River (Segment 1227) was lowered from high to intermediate. A footnote was added in Appendix A concerning the mainstem segments of the Colorado River--from Segment 1412 to the downstream end of Segment 1402. This footnote specifies that when ambient concentrations of total dissolved solids, sulfates, or chlorides exceed listed criteria for these segments, then the applicable instream criteria for any permitted discharge are the ambient concentrations in the river upstream of the discharge point. This footnote is meant to account for the temporarily increased concentations of these substances which was caused by washout of saline water in Natural Dam Lake on the upper Colorado River. The following new segments were added: Upper Prairie Dog Town Fork of the Red River (Segment 0229), Hillebrandt Bayou (Segment 0704), Greens Bayou Above Tidal (Segment 1016), White Oak Bayou Above Tidal (Segment 1017), and O.H. Ivie Reservoir (Segment 1433). Changes to segment boundaries, as defined in Appendix C, were proposed for Segments 0207, 0804, 0805, 0806, 1013, 1014, 1245, 1410, 1421, and 1426. In addition to the cost estimates presented following, the Texas Water Commission also reviewed the scope and benefits of the major proposed revisions to the water quality standards. The proposed numerical human health criteria were designed to prevent contamination of surface drinking water supplies, fish, and shellfish, so as to ensure they are safe for human consumption. The 61 criteria for drinking water protection included all 25 primary MCL drinking water standards for toxic materials as established by the Texas Department of Health in addition to 36 other potentially toxic substances. The proposed criteria for drinking water protection applied to over 8,500 miles of classified rivers and 1,473,000 acres of classified reservoirs. Over 990 public drinking water supply systems in the state utilize surface waters--either exclusively or in conjunction with ground water, and the population served by these systems was estimated to exceed 10,000,000. The primary purpose for the human health drinking water protection criteria was protective rather than restorative, since the treated drinking water testing coordinated by the Texas Department of Health has shown an extremely high rate of compliance with primary MCL drinking water standards. Human health criteria designed to prevent contamination of fish so as to ensure they are safe for human consumption applied to more than 8,300 miles of classified rivers; 1,500,000 acres of classified lakes and reservoirs; and 1,990 square miles of bays and estuaries. The number of people participating in recreational fishing in Texas was estimated as 3.2 million for freshwater fishing and 1.6 million for saltwater fishing in Fiscal Year 1987. The estimated value of fish-related goods and services was $2.8 billion for freshwater and $1. 9 billion for saltwater. In addition, the commercial landings of saltwater fish and shellfish along the Texas coast for 1987 were valued at $200,889,200. (Estimates of fishing participation and economic value are developed by the Texas Parks and Wildlife Department, published in the 1990-1991 Texas Almanac.) The principal purpose for the fish consumption criteria was also protective rather than restorative, but isolated incidents of fish tissue contamination have resulted in fishing advisories or bans in Town Lake (500 acres) in the Colorado River Basin, a portion of the Trinity River (62 miles), the lower Brazos River (23 miles), the Neches River near Beaumont (30 miles), the Houston Ship Channel and adjacent waters (60 square miles), and parts of Lavaca Bay, Chocolate Bay, and Cox Bay (58 square miles). All toxic substances contributing to fishing advisories or bans were addressed by the proposed numerical criteria for human health. The aquatic life criteria for six additional toxic substances applied to approximately 80,000 miles of streams and rivers, 3 million acres of lakes and reservoirs, and 1,990 square miles of bays and estuaries. Recent data indicated that these six substances are a potential concern to aquatic life in some areas of the state, and the new criteria were proposed as a precautionary measure. The proposed provision to test and preclude short-term lethality in discharge effluents was intended to establish a consistent, minimum baseline of toxicity control in the immediate area of discharges. Specifically, this provision was designed to provide more direct evidence that instream lethality is prevented in the zones of initial dilution of approximately 210 domestic discharges and 200 industrial discharges. The provision to raise the minimum presumed aquatic life use of unclassified perennial streams from limited to intermediate would provide additional assurance that aquatic life uses will be protected. Over the past three years, the Texas Water Commission and discharge permit applicants have already made a substantial data collection effort to more accurately determine and maintain aquatic life uses in areas of unclassified streams that are potentially impacted by discharges. The presumption of intermediate aquatic life applied to an estimated 15,000 miles of unclassified, perennial waters. An analysis of the recent studies performed at a large number of existing and proposed discharge sites indicates that 9,900 miles of perennial unclassified streams now attain or should attain intermediate or higher aquatic life uses, and these 9,900 stream miles are potentially affected by 290 permitted domestic discharges statewide. The total potential zone where dissolved oxygen is impacted by these 290 discharges was estimated to be approximately 390 stream miles. Typical biological differences in limited versus intermediate aquatic life uses are described in the Texas Water Commission document entitled "Criteria for Assessing Aquatic Life Uses," which is a supplement to the standards implementation procedures in the continuing planning process. As an example, in streams of moderate size (third and fourth order) the average number of fish species expected is 0 to four for limited quality streams and five to nine for intermediate quality streams. The relative number of fish in a standardized sample is less than or equal to 50 in limited quality streams, and 51 to 124 in intermediate quality streams. The proposed revisions for standards for the Trinity River (Segment 0805) included substantial elevations in dissolved oxygen criteria. The existing criteria for 101 river miles were raised from 1.0 mg/l to 3.5 mg/l at lower flows (less than 80 cubic feet per second in Fort Worth) and from 3.0 mg/l to 5. 0 mg/l at higher flows. For 27 river miles (new Segment 0841), existing criteria were raised from 1.0 mg/l to 2.5 mg/l at lower flows and from 3.0 mg/l to 4.0 mg/l at higher flows. The upstream and downstream ends of existing Segment 0805, which contain 28 stream miles, were moved to adjacent segments and elevated to a dissolved oxygen criterion of 5.0 mg/l at all stream flows above 7Q2 critical low flows. The purpose of these changes was to maintain and enhance the substantial improvements in water quality and aquatic biota in the river that have been achieved over the past 15 years. The improvement in fish populations since 1972 is documented in a 1989 Texas Parks and Wildlife Report entitled "Water Quality and Fish Assemblages in the Trinity River, Texas, between Fort Worth and Lake Livingston." The proposed designation of Buffalo Bayou Tidal (Segment 1013) for an intermediate aquatic life use established protection from chronic toxicity, and elevated the dissolved oxygen criterion from 2.0 mg/l to 3.0 mg/l for the four river miles contained in this segment. The use attainability analysis conducted by the Texas Water Commission indicated that the intermediate aquatic life use should be reasonably attainable. The addition of chronic toxicity protection was also proposed for the Houston Ship Channel (Segments 1006 and 1007), which consists of 20 mainstem miles plus 26 miles of tidal tributaries. The purpose of this change was to provide maximum protection from toxic substances to this major tidal watercourse, although data analysis indicated that attainable dissolved oxygen concentrations in parts of the Houston Ship Channel are too low to justify designation of an aquatic life use. The lowering of designated aquatic life use categories in three segments affected a total of 132 river miles. The previously designated uses for these segments have been demonstrated infeasible by recent use attainability analyses, but all three of these segments retained an aquatic life use designation of at least intermediate. In the preamble to the proposed standards published in the December 25, 1990, issue of the Texas Register (15 TexReg 7495), an estimate was presented of the fiscal implications as a result of compliance with or enforcement of the proposed revisions for the first five-year period they are in effect. The effect on state government would be an increase in cost of approximately $28,300 per year for additional effluent compliance monitoring and instream monitoring in support of new toxic criteria. The implementation of human health criteria and six new aquatic life toxic criteria would require additional monitoring by discharge permittees in support of permit applications, and as an ongoing condition in some permits. The total cost of monitoring was estimated to be $108, 700 per year for domestic dischargers (including local governments) and $213,300 per year for industrial dischargers. Approximately 3.0% of major domestic dischargers (which is equal to 10 permittees) and 60% of industrial dischargers (which is equal to 46 permittees) were projected to need improved treatment or waste reduction to meet human health criteria over the next five years. These costs would be site-specific and determined by the individual circumstances for a particular discharge facility and could not be estimated at this time. The proposed biomonitoring requirement to test for lethality in undiluted discharge effluents was estimated to cost a combined total of $232,000 for all domestic dischargers (including local governments) and $660,000 for all industrial dischargers over a five-year period. Approximately 4.4% of major domestic dischargers (which is equal to 14 permittees) and 9.0% of major and significant minor industrial dischargers (which is equal to 23 permittees) were projected to require a toxicity identification evaluation and toxicity reduction evaluation as a result of this additional biomonitoring for undiluted effluent toxicity. Total costs for these toxicity evaluations over five years was estimated as $4,900,000 for domestic or municipal dischargers and $8,050,000 for industrial dischargers. As a statewide average, these costs represented $3,000 per year for every major domestic or municipal discharge facility and $6,310 per year for every major or significant minor industrial discharge facility. Subsequent costs for treatment and/or waste reduction must be determined on a case-by-case basis for specific facilities. The proposed elevation of unclassified perennial waters from limited to intermediate quality aquatic life use would primarily impact domestic dischargers. An estimated 150 domestic facilities discharge to perennial, unclassified streams which have only limited aquatic life uses in the areas affected by the discharges. Of these estimated 150 dischargers to perennial limited-quality streams, approximately 25 (17%) would require more stringent treatment to meet intermediate quality criteria. The cost of studies funded by domestic discharge permittees in order to obtain site-specific standards for a limited aquatic life use at 25 locations was projected to be $400,000 over a five-year period. The application of site-specific standards was economically important, since otherwise the estimated total additional costs of meeting intermediate aquatic life criteria at these 25 locations would be $85,800,000 in treatment facility construction costs and $3,880,000 in annual operating costs. The addition of chronic aquatic life criteria to the Houston Ship Channel (Segments 1006 and 1007) would require more expensive chronic effluent toxicity biomonitoring instead of acute biomonitoring. Projected total additional costs to conduct chronic biomonitoring were estimated as $55,000 for domestic dischargers and $354,900 for industrial dischargers over a five-year period. Costs of any resulting toxicity identification and reduction evaluations, and any additional waste treatment to meet chronic biomonitoring provisions and chronic numerical toxic criteria could not be estimated from available data. Costs associated with the proposed standards changes for the Trinity River (Segment 0805) and Buffalo Bayou Tidal (Segment 1013) were not identified. Major domestic dischargers to these waters generally already have stringent final treatment limits or have been projected to require advanced treatment for other reasons--such as requirements to meet dissolved oxygen criteria in tributary streams to these segments. Any additional treatment needed to meet the proposed dissolved oxygen criteria for these segments would depend upon the results of future wasteload evaluations. The sections as proposed would have impacts on small businesses. Additional costs of proposed standards revisions to small businesses served by affected domestic treatment facilities would be commensurate with the rate policies of the individual domestic discharge permittees and their recovery of additional operational costs. In addition, any new restrictions on toxicity or allowable concentrations of toxic substances could also indirectly affect small discharges to domestic treatment systems, through the imposition of more stringent requirements in local pretreatment programs. The effects of pretreatment requirements or other effluent limitations would vary with the specific business and the nature of its discharges and the costs to small businesses of meeting these requirements compared to those for large businesses would depend on site-specific conditions. It was also provided in the preamble that for each year of the first five years these sections would be in effect the public benefit anticipated as a result of enforcing and administering these sections would be improvements in: regulation of permitted wastewater discharges, quality of the surface water resources of the state, protection of public drinking water supplies and aquatic life, and compliance with the provisions of the Texas Water Code and the regulations of the Texas Water Commission. The costs to persons represented by these sections would be similar to those for small businesses. Those persons served by municipal discharge facilities could indirectly face increased service rates from local governments or operators of domestic treatment facilities which must recover increased costs of compliance from their customers. A public hearing on the proposed standards (sec.sec.307.2-307.10) was conducted by the commission on February 26, 1991, in Austin. Over 30 oral presentations were made at the hearing, and the following organizations were represented (several individuals commented, but will not be listed here): Upper Trinity Basin Water Quality Compact; We Care Austin; City of Houston; North Central Texas Council of Governments; Davis Mountains Trans Pecos Heritage Association; City of Austin; United States Environmental Protection Agency-Region VI; Texas Municipal League; Texas Association of Metropolitan Sewerage Agencies; GF Touding; Sierra Club-Houston; Clean Water Action; Espey Huston and Associates; Texas Chemical Council; Sierra Club-Lone Star Chapter; Sportsmen and Conservationists of Texas; Trinity Improvement Association; Central Power and Light Company; City of Tyler; Riverside Landowners Protection Coalition; City of Greenville; Texas Forestry Association; Texas Parks and Wildlife Department; Texas Water Conservation Association; Environmental Defense Fund; Houston Lighting and Power Company. Over 70 sets of written comments were received on the proposed standards from the following organizations: Acme Brick; Aluminum Company of America; McGinnis, Lockridge and Kilgore; Central Power and Light Company; City of Austin; City of Duncanville; City of Gilmer; City of Greenville; City of Henderson; City of Houston; City of Jacksonville; City of Nacogdoches; City of Rusk; City of San Antonio; City of Tyler; Clean Water Action-Texas; Davis Mountains Trans Pecos Heritage Association; Dow Chemical Company; Electric Reliability Council of Texas; Environmental Defense Fund; Mr. John Fox; Gaines Properties; Galveston Bay Foundation; Gulf Coast Waste Disposal Authority; Espey Huston and Associates; Lower Colorado River Authority; Mobil Oil Corporation; Morris, Tinsley and Snowden; Blackburn and Carter; Motorola, Inc.; National Marine Fisheries Service; North Central Texas Council of Governments; North Texas Municipal Water District; Presidio Valley Farms Inc.; Riverside and Landowners Protection Coalition, Inc.; Sierra Club - Lone Star Chapter; Sportsmen and Conservationists of Texas; Southwestern Public Service Company; Texas Municipal League; Texas Association of Metropolitan Sewerage Agencies; Texas Chemical Council; Texas Farm Bureau; Texas Forestry Association; Texas Instruments; Texas Municipal Utilities Association; Texas Parks and Wildlife Department; Texas Water Conservation Association; Texas Water Development Board; Texas Wildlife Association; The Texas Utilities Electric Company, Houston Lighting & Power Company, West Texas Utilities Company, Central Power & Light Company and Southwestern Electric Power Company (utilities); Trinity Improvement Association; United States Environmental Protection Agency; United States Fish and Wildlife Service; Upper Trinity Basin Water Quality Compact; We Care Austin. Subsequent to the closing of the hearing record but prior to final action by the commissioners, the commission received correspondence from over 55 cities and several other entities such as public service boards, special districts, river authorities and associations which supported all or some of the Texas Municipal League's position regarding changes to the aquatic life use presumption for unclassified perennial streams, whole effluent toxicity, acute lethality limits, and wetlands. The commission responds to these matters in the following paragraphs addressing specific sections of the standards. Numerous commenters expressed general concerns about the standard setting process rather than specific items in the proposed sections. A large group of commenters contended that the cost/benefit analysis contained in the preamble to the proposed standards is inadequate. The group acknowledges the difficulties of developing these costs and urges the commission to ensure that economic impacts and water quality benefits are developed as an integral part of subsequent standards. In addition, some commenters support the establishment of a peer review committee to review basic data and technical information used to develop subsequent standards. Conversely, other commenters urged the commission to exercise care in utilizing cost/benefit analysis since they assert that the Clean Water Act does not provide for cost considerations except in the regulations pertaining to a use attainability analysis. Another commenter stated that $16-$17 billion are spent each year on recreational activities which are directly or indirectly related to water quality. The commission responds that extra efforts to provide cost estimates have been conducted as discussed in the preamble of the proposed standards published in the December 25, 1990, issue of the Texas Register; however, in some cases, particularly with respect to standards for toxic substances, the available data has not been sufficient for a thorough analysis of potential economic and environmental impacts. The commission also responds that cost/benefit analyses will be used in a judicious manner. The commission further responds that the draft standards were made available for review to major parties at least six months prior to publication and that this in effect constituted a peer review. The establishment of a more formal peer review committee may be considered for standards revisions in the future. One group of commenters stated that the standards contained language that was too broad and ambiguous, would require landowners to control quality of rain water runoff, and would infringe on private property rights. One of these commenters saw no need for regulations such as the water quality standards. Several other commenters stated that the standards were clear, concise, and well developed. Some commenters suggested that additional language was needed to make the standards applicable to nonpoint source pollution. The commission does not offer a response regarding the clarity of the standards as the proposed rule speaks for itself. As for the necessity of the standards, Texas Civil Statutes, the Water Code, sec.26.023, expressly states that the commission shall set water quality standards for the water in the state. The water quality standards also apply to nonpoint sources as expressly stated in sec.307.4(a), relating to application of general criteria, sec.307.5(a), relating to the application of the antidegradation policy, and sec.307.7(a) relating to site-specific uses and criteria. Some commenters stated that references to "existing uses" throughout the standards should be or should include "attainable uses." The commission agrees with this comment except for references in sec.307.5, relating to antidegradation which specifically protect existing uses. In sec.sec.307.4(e), 307.4(g)(3), 307.4(h), 307.4(k), 307.6(c)(10), 307.6(d)(10), and 307.6(e)(2)(E), attainable uses are substituted for or added to references to existing uses. One commenter suggested that the commission review the present method of setting salinity criteria prior to the next triennial revision and not revise each segment's salinity criteria based on the prior three years' data. This commenter also suggested that the commission consider developing salinity criteria based on potential impacts on human health, aquatic habitat, or other uses. The commission responds that salinity criteria, as such, are not contained in the standards and it is assumed that the comment pertains to the dissolved minerals criteria as represented by total dissolved solids, chlorides, and sulfates. It should be pointed out that these criteria are developed from the period of record data for each segment. Because the data period of record may not be very long for some segments and there is large temporal variability of these constituents, especially in the more arid portions of the state, the criteria may need to be adjusted from time to time as the data base enlarges to account for this variability. The criteria are not adjusted to account for elevated levels of these constituents for the prior three years' worth of data. The commission may also evaluate other methods to develop criteria for these parameters in future standards. One commenter recommended revising sec.307.1, relating to the general policy statement, to include a goal of improvement of water quality. The commission responds that the wording in this section is taken directly from Texas Civil Statutes, the Water Code, sec.26.003. Another commenter believes that regardless of what standard is set, actual goals cannot be achieved until solutions are found for matters such as nonpoint source pollution, the legal aspects of declaring a river swimmable, protecting the rights of landowners who control access to rivers, and other health matters. One commenter stated that signs should be posted where fishable/swimmable standards are not being met to inform the public of the risks. The commission responds that measures addressing nonpoint source pollution have been taken in other programs conducted by the commission. Regarding contact recreation designation, sec.307.7(b)(1) contains language stating that a contact recreation use designation does not guarantee that water so designated is completely free of disease causing organisms. Expanding or clarifying rights of landowners controlling access to rivers would necessarily require legislation. The Texas Department of Health addresses public health concerns by issuing advisories, when appropriate, for waters with known toxic or other health related problems regarding the consumption of aquatic life. Several comments were received regarding issues that are broader than just the water quality standards or did not actually pertain to the standards. These comments included matters such as using incentives in lieu of or in addition to the traditional methods of achieving water quality goals, considering the possible effects of nonpoint source pollution when reviewing municipal utility districts for creation or bonding authority, developing rules addressing review and approval of municipal pollution control and abatement programs, not relying on discharger self-reporting data, not announcing facility inspections, requiring mandatory fines, awarding portions of fines to citizens for monitoring and reporting, and developing rules to protect private property rights from trespass, condemnation, and state and federal regulation. The commission responds that these comments pertaining to other program areas may be considered in those programs as appropriate. As stated previously, regulations pertaining to expanding or modifying property rights would be outside the scope of these rules. A variety of comments addressed the proposed changes in s307.2, which concerns the applicability of the standards and procedures for site-specific standards modifications. Several commenters supported the explicit applicability of the standards to wetlands in sec.307.2(b), and the related addition of a definition of "surface water in the state" and "wetland" in the definitions in sec.307.3. Other commenters were concerned that these definitions were too broad and inclusive. The commission responds that these terms are defined in the Texas Water Code in Chapter 11 and Chapter 26, and the definitions in the standards should conform to the Code. To ensure consistency, the entire definition of "wetland" in the Texas Water Code is added to the proposed definition of "wetland" in sec.307.3 of the standards-as suggested by several commenters. The commission staff will make every effort to reasonably develop and apply water quality standards within the context of these definitions. On the proposed procedures for site-specific standards in sec.307.2(d)(3), two commenters stated that any such procedures should be specifically required to protect "attainable uses," rather than "existing uses," as proposed. The commission agrees with this change, and the term "existing water-quality related uses" is changed to "reasonably-attainable water-quality related uses" in the adopted rule. Some commenters were not certain that a site-specific modification would constitute a standards rule amendment which should require a use-attainability analysis and specific EPA approval. In response the commission staff explicitly adds these requirements for a site-specific modification. Several commenters strongly objected to the provisions for a temporary variance in sec.307.2(d)(3) and recommended deletion of these provisions. The commission notes that the temporary variance is very limited in scope, and at most, provides a permitted discharger an additional interim compliance schedule of up to three years to develop a site-specific standards modification. For clarification, a sentence has been added to sec.307.2(d)(4) stating that a temporary variance is only applicable to an existing permitted discharge facility. The requirements for obtaining and operating under a temporary variance are rigorous and involve substantial public notice and opportunity for hearing; and a standards rule change approved by EPA is then required to complete the site-specific standards modification. The new requirements for a site-specific standards modification and temporary variance are needed for three reasons: As more and more numerical criteria are adopted in the standards on a broad statewide basis, the application of site-specific modifications is necessary to fairly apply these criteria; Experience with previous efforts by permittees to develop site-specific standards modifications has demonstrated that the additional time provided by a temporary variance is a realistic need; Defined procedures are needed to ensure that the application of site-specific factors (which were included in the previous standards) is consistent, publicly noticed, and in conformance with State and EPA policy and regulations. Several commenters stated that the procedures for obtaining a temporary variance are too cumbersome, but the commission responds that these procedures are needed to ensure sufficient opportunity for public comment, and to ensure that temporary variances are only utilized when appropriate and necessary. Several commenters requested that final permit limits based on existing water quality standards be omitted from a permit with an approved temporary variance to develop site-specific standards, since those final limits could be irrevocable because of EPA's antibacksliding provisions. The commission responds that the imposition of final permit limits which will meet existing standards is a major component of the state's water-quality based permitting program. Our current understanding of EPA regulations and policy indicates that the final permit limits of state and national pollutant discharge elimination system (NPDES) permits can be amended to fit new site-specific standards as long as the permittee is still in the interim phase of the permit. Additional review of the temporary variance procedure may be needed if EPA policy changes in the future. In response to other comments, the proposed wording which requires EPA approval of every temporary variance is changed to limit the requirement for EPA approval to EPA permits under the NPDES. EPA approval will be necessary for any resulting site-specific standards modifications. A number of suggestions were made for changing the definitions in sec.307.3. One commenter requested that the definition of ambient should not be based on conditions "unaffected or not influenced by the activities of man," since even relatively remote areas are affected to some degree. The commission agrees with this general observation, but the definition as stated has been reasonably applied to exclude insignificant effects due to human activities, and no change is made to the definition at this time. Another commenter requested that the definition of critical low-flow be changed to apply to an occurrence frequency of once in 10 years rather than once in two years. The commission responds that the two-year occurrence frequency is more appropriate for the southwestern United States region, where the vast majority of streams are characterized by frequent periods of very low flows. In response to a request to specify the method of calculating critical low-flows, the commission will review these calculations for inclusion in the standards implementation procedures or other publicly available document. One commenter objected to the proposed deletion of that part of the definition of intermittent stream which indicated in the previous standards that streams with perennial pools which create significant aquatic life uses are not intermittent." The commission responds that this change was proposed only to make this definition closer to typical textbook definitions of intermittent and to avoid redundancy. The protection afforded to perennial pools in sec.307.4(h)(2) remains the same as in the previous standards. Several commenters stated that the definition of sustainable fisheries is not appropriate to determine whether or not human health toxic criteria should apply, and concern was expressed that this definition might also incorrectly affect the applicability of aquatic life criteria. In response, the proposed definition of sustainable fishery is deleted from s307.3, and the revised definition of this term is included only in sec.307.6 to avoid confusion. In support of these changes in sec.307.6, a definition of stream order is added to the definitions in sec.307.3. The comments and commission responses about the definitions of surface waters in the state and wetlands were addressed in the previous discussion of sec.307.2 concerning the applicability of the standards. Two commenters requested that definitions of lethality be added to sec.307.3, but the commission responds that this term is defined in other sections as needed to fit specific applications such as in total toxicity tests. Several commenters suggested that a definition be included for effluent dominated streams, so that different standards could be applied to such streams. The commission responds that the range of applicable site-specific uses and criteria in the standards is sufficiently broad to allow reasonable standards implementation without this additional category. Numerous comments were received on sec.307.4, which establishes general criteria for waters in the state. One commenter requested that sec.307.4(a) be reworded to limit the applicability of general criteria to "substances ...proven to be pollutants" rather than "substances attributed to ...the activities of man. " A large number of related comments contained a variety of additional definitions and qualifications on the broad applicability of the aesthetic parameters in sec.307.4(b). The commission responds that the proposed wording in sec.307.4(a) and sec.307.4(b) is unchanged from the previous standards, and the applicability of particular criteria is defined as needed throughout the section. The commission also notes, however, that the broad, qualitative requirements of sec.307.4(b) must be reasonably applied to avoid unrealistic attempts to regulate trivial and insignificant exceedances. Several commenters supported the additional qualitative commitments to address nutrient parameters in sec.307.4(e), but most of these commenters also requested initiation of specific watershed rules in specific areas of the state- particularly in the Central Texas region. The commission concurs, and additional evaluation of nutrient impacts and potential controls will be conducted with the involvement of interested parties. One commenter asked that the term "excessive growth of aquatic vegetation" in sec.307.4(e) be defined, but the commission responds that qualitative and quantitative specifications for this term will be evaluated on a site-specific basis. Several commenters suggested that salinity criteria should be established for bays and estuaries. The commission responds that any such criteria should be established after the completion of ongoing multi-agency studies of salinity requirements for Texas bays and estuaries. This same approach was also suggested by a commenter. Whether or not the water quality standards are the appropriate regulatory framework for establishing coastal salinity requirements, which are dependent on freshwater inflows, is also unresolved at the present time. Large numbers of comments addressed the proposed elevation of the presumed aquatic life use and associated dissolved oxygen criteria for perennial waters in sec.307. 4(h). Some commenters favored the proposed elevation to intermediate aquatic life for perennial waters, but these same commenters usually recommended that minimum uses for perennial waters be further elevated to high quality aquatic life. Other commenters recommended that minimum presumed criteria appropriate to particular regions of the state be adopted. Several commenters, however, stated that this proposed elevation of the minimum aquatic life use will be unfairly burdensome to dischargers to small, unclassified streams. Upon further consideration, the commission decided to adopt a high aquatic life use in order to assure protection for these waters and in order to maintain compliance with the provisions of the federal Clean Water Act for perennial waters in sec.307.4(h) (1). Language has also been added to the effect that the United States EPA provide a written commitment to the State of Texas by September 10, 1991, which makes clear that the process that will be used to evaluate and approve or disapprove any receiving water assessment that is submitted for the purpose of rebutting that presumption will be streamlined so that permit applicants will not be burdened with undue expense. If this commitment is not received then the presumed aquatic life use will be intermediate as originally proposed. Concurrently, the commission will continue to develop and designate standards for additional streams to reduce the number of unclassified waters. Also in sec.307.4(h)(1), the term "perennial waters" has been changed to explicitly refer to "perennial streams, rivers, lakes, bays, estuaries, and other appropriate perennial waters." This change is made to preclude applying the presumed aquatic life use for perennial waters to wetlands such as swamps and marshes until additional data can be obtained. One commenter suggested that the temporary variance procedures in sec.307.2(d)(4) should not be applicable to aquatic life uses and dissolved oxygen criteria, since sufficient information to support aquatic life use designations should be routinely obtained during permit actions. The commission responds that the rigorous procedures required to develop a site-specific standard in sec.307.2(d)(3) may sometimes require more time than is available in the permit issuing process, and there is no reason to restrict the applicability of a valid temporary variance procedure. Several commenters requested that aquatic life uses and dissolved oxygen criteria be developed on a regional basis. The commission agrees, and the results of ongoing studies of water quality of small streams in different ecoregions of the state will be incorporated in future standards revisions where appropriate. One commenter stated that the presumption of high quality aquatic life uses for lakes and reservoirs with an area of at least 50 surface acres was based on an arbitrary size. The commission agrees that additional data is needed on appropriate aquatic life uses in small impoundments. This provision is reasonable for this revision of the standards, however, and small impoundments which are affected by permit actions will continue to be individually evaluated. Several commenters requested or suggested definitions of perennial pools in intermittent streams, since perennial pools which create significant aquatic life uses have different presumed minimum standards than intermittent streams in sec.307.4(h)(2). The commission agrees that the determination of whether perennial pools exist should be more objective, and the commission staff has initiated an evaluation of more quantitative measures for possible inclusion in the standards implementation procedures. One commenter indicated that the presumed uses and criteria for intermittent streams and perennial pools in sec.307.4(h)(2) are too low. The commission responds that these presumptions are appropriate, since the criteria are meant to be applied at critical low-flow conditions, and higher criteria are seasonally applicable if higher aquatic life uses occur during periods of higher streamflow. Another commenter requested that intermittent streams be excluded from the standards. The commission responds that some degree of protection of intermittent streams is necessary-with the understanding that criteria and implementation procedures must be reasonable. Shortcomings in using fecal coliform bacteria as criteria in sec.307.4(i) were noted by several commenters. The commission agrees that fecal coliform are imperfect indicators of fecal pollution, but a substantially better substitute is not available. A review of the provisions for applying fecal coliform criteria in sec.307.7(b) and sec.307.9 may be needed for the next revision of the standards. One commenter requested that the procedures for assessing aquatic life uses, as referred to in sec.307. 4(i), be included in the standards or adopted in some other public document. The commission responds that these procedures are too lengthy for the standards rule, but they will be considered for inclusion or attachment in the standards implementation procedures and the continuing planning process document. Comments were also received on sec.307.5 concerning antidegradation policy and procedures. One commenter suggested that the requirement to "maintain water quality sufficient to protect existing uses" be changed to "maintain and protect water quality...." The commission responds that the general purpose of the antidegradation section is to ensure protection of existing water quality, but certainly the improvement of water quality and achievement of higher attainable uses is a major overall goal of the water quality standards. Several commenters objected to the allowance of any degradation to high quality waters in sec.307. 5(b)(2), even if economically and socially justified. The commission responds that the antidegradation policy, as required by EPA, is designed to examine closely the need for any degradation-even in cases where all applicable numerical criteria are not violated. Several commenters suggested that the proposed change of "significant degradation" to "degradation" should be reconsidered. The commission responds that the term "degradation" is still defined to exclude de minimis impacts, and the word "significant" is deleted to avoid further confusion about the definition. Other commenters suggested various water bodies, such as coastal preserves, state wildlife management areas, etc., which should be included as "outstanding national resource waters" in sec.307.5(b) (3). In addition, these commenters requested an explanation of the process to identify "outstanding national resource waters" and suggested that a list of such waters be established. The commission responds that outstanding national resource waters may be designated by action of the Texas Legislature; or by the commission in response to public request. Specific waterbodies identified as outstanding national resource waters will be listed in sec.307.5 as part of the Texas Surface Water Quality Standards. One commenter suggested that the term "significant degradation" in sec.307.5(c)(4) be changed to "degradation" for consistency with sec.307.5(b)(2), and this change is made as suggested. Two commenters requested that socio-economic criteria which would justify degradation be defined. The commission staff is developing additional guidelines for the kinds of information to be considered in evaluating socio-economic justification, but a quantitative measure for determining whether degradation is justified is not feasible at the present time. The largest number of comments were received on the proposed revisions to sec.307.6 concerning toxic materials. One commenter recommended that standards provisions for toxic materials should be sufficiently flexible to apply fairly to discharges of steam electric generating stations, since these discharges have effluent that consists primarily of once-through cooling water or blowdown from cooling towers. The commission agrees that the permitting procedures for these discharges should reasonably apply the water quality standards, but no changes to the proposed standards are considered necessary to facilitate fair and environmentally protective permit procedures. One commenter suggested that the general prohibitions for toxicity to aquatic life in sec.307.6(b) should apply only to indigenous aquatic life. The staff responds that this would be difficult to justify, since such aquatic organisms as striped bass might or might not be considered indigenous to freshwater reservoirs in Texas. There were many comments in support of the proposed additions to the aquatic life criteria in Table 1 in sec.307.6(c), but a number of commenters suggested that the proposed aquatic life criteria for aluminum, diazinon, carbaryl, and 2,4,5 trichlorophenol be deleted, since these are not listed as priority pollutants and some municipal dischargers may violate water quality standards with no effective means of control or treatment. The commission is also concerned about the potential impacts of these new criteria, and the validity of the criteria and their applicability to Texas waters was again reviewed. This review indicated that the proposed chronic criterion for aluminum is exceeded by ambient, unimpacted concentrations in several areas of this state. The proposed chronic criterion for aluminum is therefore deleted for the present time, but the acute criterion is adopted as proposed. With respect to diazinon, the commission does not adopt the proposed criteria in sec.307.6(c), Table 1, pending further study on the occurrence, impacts, and options for controlling this common household pesticide. Except for these changes, the proposed additional criteria are adopted, since there is a sufficient amount of toxicity data to support these criteria and since there is a reasonable potential for the substances added to Table 1 in sec.307.6(c) to impact waterbodies in Texas. Similar requested re-analysis of proposed changes in the existing aquatic life criteria for other substances in Table 1 indicated that the proposed marine chronic criterion for mercury should be raised from 0.9 to 1.1 micrograms per liter; and the proposed silver chronic criteria should be raised from 0.12 to 0. 49 micrograms per liter in freshwater (as in the existing water quality standards), and from 0.84 to 0.92 micrograms per liter in saltwater. These changes are therefore incorporated into the adopted rule. One commenter requested that the freshwater chronic criterion for chlordane should be raised to 0.17 micrograms per liter, since the existing criterion of 0.0043 was originally based on maintaining edibility of fish tissue. The commission responds that this is a technically valid argument, but since chlordane is now a banned pesticide, and since chlordane accumulation in fish tissue is causing problems in several areas in Texas, the commission has decided to keep the lower number in effect for now. One commenter recommended that such banned pesticides as DDT, aldrin, and chlordane should have an allowable concentration of 0. The commission certainly agrees that this is an appropriate long-term goal, but the low water-quality based numbers in the standards now will normally be violated at typical detection limits for these substances, and the existing criteria for these banned substances are sufficient. One commenter suggested that new data on selenium may indicate that the aquatic life criteria for selenium should be lowered. The commission responds that this may be appropriate for future standards revisions, when additional information on selenium toxicity is available. One commenter was concerned that the proposed elevation of the marine acute copper criterion was not sufficiently protective of oysters in Texas bays. To alleviate these concerns, an additional footnote has been added to Table 1 which indicates that in designated oyster waters an acute marine copper criterion of 4.37 micrograms per liter applies outside of the mixing zones of permitted discharges and specified mixing zones for copper will not encompass oyster reefs containing live oysters. Several commenters requested that aquatic life criteria be added for chlorine and ammonia. The commission responds that ammonia and chlorine toxicity will continue to be addressed by total toxicity testing requirements. Some commenters also requested that criteria for oil and grease be included. The commission responds that there is no valid overall criterion for generic oil and grease based on toxicity, although many of the typical constituents of oil and grease do have numerical criteria in the water quality standards. The commission does, however, routinely require an effluent limit for oil and grease in discharge permits in order to meet the aesthetic restrictions on oil and grease in sec.307.4(b)(7). One commenter suggested that free ions also be used for aquatic life criteria for all metals, instead of only for silver. The commission responds that this approach may also eventually prove to be valid for some of the metals, but consideration of this suggestion will depend on additional information and on whether the free ion criterion for silver proves effective. One commenter requested that the method of measurement be included with the criteria in Table 1 in sec.307.6(c)(1), and also with the human health criteria in Table 3 sec.307.6(d)(1). The commission responds that a list of these methods would be more appropriate for the standards implementation procedures, and this will be considered in the upcoming revision of that document. Concerning sec.307.6(c)(2), one commenter objected to the exclusion of data for organisms not found in Texas when aquatic life criteria were calculated. The commission responds that the statistical assumptions recommended by EPA are used for these calculations, and these assumptions provide ample assurance that the omission of any species not found in Texas does not result in an inappropriate elevation of criteria. This commenter also stated that criteria must be based on tests conducted over three life cycles of organisms. The commission responds that the available EPA criteria documents are based on seven day tests for chronic toxic criteria, and insufficient information exists for calculating long-term criteria on any other basis. In regard to sec.307.6(c)(6), several commenters objected to basing the aquatic life criteria for metals on dissolved concentrations, rather than on total concentrations of metals. The commission responds that the use of dissolved metals is in accordance with the laboratory testing procedures used for criteria development, and this provision is in accordance with the recommendations of the toxic advisory committee for the 1987/1988 standards revisions. Conversely, another commenter suggested that dissolved concentrations should be used for many of the aquatic life criteria in Table 1 for non-metals. The commission responds that while the use of dissolved criteria may eventually prove to be reasonable for some of the non-metals, there is still insufficient information available to effectively measure the dissolved portion or estimate dissolved/total ratios based on other parameters. In sec.307. 6(c)(7), several commenters supported the allowance of zones of initial dilutions at discharge points where acute toxic criteria could be exceeded, but other commenters continue to object to the use zones of initial dilution at all. The commission responds that the new requirement in sec.307.6(e)(2)(B) for toxicity testing in undiluted discharge effluents, and the new restriction in sec.307.8(b)(2) on the size of zones of initial dilution, provide adequate assurance that the aquatic organisms will not be adversely affected. Also concerning sec.307.6(c)(7), one commenter suggested that acute numerical toxic criteria, rather than chronic criteria, be applied to waters with limited aquatic life uses. The commission responds that the relative toxic sensitivities of biota characteristic of limited aquatic life uses do not appear to be sufficiently distinct to justify this approach statewide, although site-specific criteria may eventually be justified with additional data. One commenter requested that "new information" be included as a factor which may justify a site specific standards amendment, and this provision is added in sec.307.6(c)(10) (H). Another commenter suggested that the background concentration of toxic substances in a groundwater drinking water source, which is subsequently discharged, should also be listed in sec.307.6(c)(10) as a reason for a site-specific standard. The commission responds that some of the other factors listed in sec.307.6(c)(10) are more appropriately applied as justification for a site-specific standard in this instance. One commenter stated that no site- specific standards for toxic materials should be allowed at all. The commission responds that the fair use of statewide numerical standards for toxics should include a provision for developing site-specific criteria, although the requirements for justifying and obtaining approval of a site-specific standard are rigorous. One commenter suggested that the economic justification of a site-specific criterion in sec.307.6(c)(10)(F) can only be used in conjunction with a use-attainability analysis. The commission responds that the development and approval of a site-specific criterion does require a use-attainability analysis. Another commenter stated that the development of site-specific factors should include data on aquatic biota, toxicity, and water quality. The commission agrees that this information will generally be needed for a site-specific standard, but a list of the kinds of data required is not necessary in the standards rule. One commenter noted that prohibition of a discharge should be considered as an option if no technology exists to adequately reduce a toxic substance in a discharge. The commission agrees, and although no change is needed to the proposed rule in response, the economic considerations in sec.307.6(c)(10)(F) should not be construed as a mechanism to allow a discharge which would preclude a reasonably attainable water quality use. Numerous commenters expressed general support for the proposed addition of sec.307.6(d) concerning numerical toxic criteria to protect human health. One commenter recommended that only substances listed as priority pollutants by EPA should have numerical human health criteria in Table 3 of sec.307.6(d)(1). The commission responds that other substances of concern are also appropriate for inclusion-particularly those substances which are routinely screened under hazardous waste regulations. One commenter suggested that the commission include human health toxic criteria for the following additional substances: 1,1, 2-trichloroethane; 1,1,2,2-tetrachloroethane; 2,4-dinitrotoluene; beryllium; thallium; and phenanthrene. The commission responds that these additions are inappropriate at the present time. There is inadequate toxicity data available to develop an adequate human health standard for most of these substances, and further data analysis has indicated that there are no known sources or occurrences of these substances in Texas which would require permit limits or other controls to meet such standards. Another commenter suggested that the new federal drinking water maximum contaminant levels for selenium and chromium should replace criteria for these two substances in Table 3 which are based on maximum contaminant levels. The commission agrees that criteria will be updated as needed based on new information, but this change is not appropriate until the revised maximum contaminant levels are adopted in the Texas Department of Health drinking water regulations. One commenter suggested that maximum contaminant levels should not be substituted for higher calculated criteria in Table 3 if the risk level posed by the maximum contaminant limit concentration is insignificant. The commission responds that statewide concern for drinking water quality indicates that a direct approach to assure "across-the- board" protection of drinking water in surface waters is needed, and the imposition of maximum contaminant levels instream is a part of this approach. Site-specific modifications in accordance with sec.307.2(d) may be considered as long as protection of drinking water supplies is clearly demonstrated. One commenter supported the use of toxic equivalency factors for various forms of dioxin. Several other commenters provided documentation to indicate that the use of these factors to incorporate nine other forms of dioxin was not scientifically valid; and criteria should only be established for 2,3,7,8 TCDD-or at least for only two or three of the other dioxin forms (congeners). The commission agrees that significant uncertainty exists concerning the toxicity of some of these dioxin congeners. Upon further consideration, the commission has decided not to adopt criteria for 2,3,7,8-HpCDD; OCDD; 2,3,7,8-HpCDF; and OCDF. This change is made because the available toxicity data on these forms of dioxin is marginal, and because the seven forms of dioxin which are of primary human health concern will remain in the standards. The available documentation which summarizes the measured toxicity for the other dioxin congeners is sufficient, however, to utilize toxic equivalence factors to preclude the potential for non-carcinogenic effects from these congeners. The criteria proposed for dioxin in Table 3 are in the appropriate concentration range for this purpose. The available data indicates that these dioxin congeners are potential contaminants in fish tissue in Texas waters, and should therefore be addressed in the water quality standards. Some of the same commenters also objected that a bioconcentration factor of 5,000 was too high for several of the dioxin congeners, and the calculated toxic equivalency factor for these congeners was therefore too high. The commission responds that although the bioconcentration factors for different congeners vary, the available information is insufficient to justify assigning different bioconcentration factors to each congener. The assumed value of 5,000 falls within the range of estimated bioconcentration factors for most of the congeners listed in Table 3. Commenters also indicated that the use of the EPA multi-stage linear model is incorrect for deriving criteria for dioxin, which should be treated as having a threshold concentration below which no toxicity occurs. The commission acknowledges that the scientific data regarding cancer risks from dioxin is inconclusive. Although the linear multi-stage model was used to derive the criteria for dioxin in Table 3, the resulting criteria concentrations approach the range where potential non-carcinogenic effects on reproductive and immunological systems become a concern. Other commenters recommended that the criteria for dioxin should be much more stringent and several lower concentrations were suggested. Several documents were submitted by one commenter as part of the record which related to this recommendation. The commission responds that the resulting dioxin criteria were calculated using the same assumptions as for other human health criteria, and these comments and responses will be addressed in subsequent discussion on sec.307.6(d)(3). Several commenters stated that the bioconcentration factors and toxicity level assumed for mercury are only applicable to methylmercury and should not be applied to an overall criterion for mercury-as in Table 3. The commission responds that while not all of the mercury in fish tissue or in water is generally in the form of methylmercury, the proportion of methylmercury to total mercury in fish tissue can be relatively high, and data is insufficient to estimate this proportion. Therefore at this time the human health criteria for mercury will apply to all forms of mercury. Several commenters supported the cancer risk level of 1:100, 000 in sec.307.6(d)(3)(B), but a number of other commenters strongly recommended that a risk level of 1:1,000,000 should be used. The commission responds that the selection of a risk level upon which to establish human health criteria is a difficult decision. Although the federal EPA guideline criteria are normally expressed in terms of a 1:1,000,000 risk level, EPA has indicated that the allowable risk level in state standards can range from 1:10,000 to 1:10,000,000 or even lower. The EPA drinking water criteria have been adopted based upon a variety of different risk levels. Other states which have adopted risk-based standards have generally used a risk level of 1:100,000 or 1:1,000,000. The procedures used to calculate and implement the criteria employ several safeguards which indicate that the actual risk from a particular carcinogen will be substantially less than the expressed risk level. These safeguards include the following: the multistage linear model assumes that any non-zero concentration of a carcinogen involves some degree of cancer risk; the criteria are set based on the assumption that all of the fish consumed have concentrations of a particular carcinogen that would result in the specified risk level, while in actuality the permitting procedures of the commission are designed so that pollutant concentrations should be substantially below the criteria in the vast majority of waters in the state; permitting procedures also generally assume that little or no transformation of a carcinogen to less toxic forms occurs in the aquatic environment, even though these kinds of processes are typical in natural aquatic systems. Based on these safeguards, the commission has determined that a risk level of 1:100,000 is a reasonable assumption for the adopted criteria to protect human health. Several commenters stated that the fish consumption rates assumed in sec.307.6(d)(3)(C) should be higher. The commission responds that the rates used for the adopted human health criteria are based on available data for the southwestern United States, and the resulting values are higher than the consumption rates assumed by EPA for national guidance criteria. Another commenter suggested that the fish consumption rates should be more site-specific. The commission responds that data is generally unavailable to apply site-specific rates, but this can be considered in the development of a site-specific standard as indicated in sec.307. 6(d)(10)(H). One commenter indicated that the assumed drinking water consumption rate of two liters per person per day should be raised to four liters per person per day in sec.307.6(d)(3)(D). The commission responds that the rate of two liters per day is the EPA assumption, and available data supports this value. Concerning sec.307.6(d)(3)(E), one commenter suggested that estimates of cancer potency to humans should not be based on laboratory experiments on rats, and another commenter requested that the commission use the ratio of surface areas, rather than the ratios of body volume, to convert data on rats and other small animals to human cancer potency. The commission responds that the use of animal data is the only feasible way to estimate carcinogenicity of many of the toxic substances of concern-despite the uncertainty, the most recent scientific data available to the commission staff supports the use of ratios of body volume to apply this data to humans. One commenter requested that the lipid concentrations assumed for fish in sec.307.6(d)(3)(F) should be based on Texas fish, but the commission responds that such data is currently inadequate for this adjustment and the EPA national guideline concentration is used in the human health criteria calculations in Table 3. Concerning sec.307.6(d)(5), one commenter suggested that human health criteria should be applicable to streamflows above 7Q2 critical flow conditions, rather than at streamflows above harmonic mean flows. The commission responds that the use of harmonic mean flows are more appropriate when the long-term average concentration of a toxic substance is the primary concern-as with human health criteria. Harmonic mean streamflows are also recommended by EPA for this purpose. Several commenters stated that in sec.307.6(d)(5), the applicability of human health criteria to protect fish consumption was too limited, and that streams with 7Q2 flows of less than three cubic feet per second. After additional review of the available data, the commission agrees. In sec.307.6(d)(5) the definition of "sustainable fisheries" is changed to include a broader range of streams and other waters. Human health criteria are now applied to perennial streams of third order and greater; all designated segments; lakes and reservoirs greater than or equal to 150 acre feet and/or 50 surface acres; and all bays, estuaries, and tidal rivers. A new sec.307. 6(d)(6) is added which protects waters with an aquatic life use (but no sustainable fishery) as "incidental fisheries," and incidental fisheries are assigned human health criteria 10 times higher than those listed in Table 3. One commenter requests that a definition be provided for "temporary short-term events" which might justify different human health criteria. In response, the commission deletes the second sentence in s307.6(d)(7) which states that human health criteria may be adjusted if applied to temporary, short-term events, and in its place adopts a sentence which indicates that attainment measures for human health criteria are addressed in sec.307.9. Several commenters suggested that in sec.307.6(d)(9) criteria for metals should be applied as total recoverable concentrations rather than as dissolved concentrations. The commission agrees to this change for mercury, since it is highly bioaccumulative. Human health criteria for the other metals, which do not bioaccumulate as readily, are adopted in the form of dissolved concentrations. A variety of comments were received on the site-specific factors in sec.307.6(d)(10) which may be considered in applying human health criteria. These comments and the commission responses are generally the same as previously discussed for the application of site-specific factors for aquatic life toxic criteria in s307. 6(c)(10). One commenter requested that "new information" be included as a factor which may justify a site specific standards amendment to human health toxic criteria, and this provision is added as sec.307.6(d)(10)(H). The remainder of sec.307.6(d)(10) is adopted as proposed. One commenter suggested that the preclusion of chronic total toxicity in (e)(1) should only apply to waters with high or exceptional quality aquatic life uses. The commission responds that the designation of aquatic life uses cannot necessarily be correlated to susceptibility of the biota that are characteristic of a particular aquatic life category, and therefore there is no adequate technical support for this suggestion. One commenter suggested that the explicit provisions for conducting whole effluent toxicity testing in sec.307.6(e)(2) should be removed from the water quality standards and placed in one of the commission's rules on discharge permit requirements. This commenter's concern was that EPA permitting regulations mandate whole effluent toxicity limits in permits if such explicit provisions for toxicity testing are contained in a state's water quality standards. The commission responds that the water quality standards are an appropriate vehicle for biomonitoring provisions, and recent communications with EPA Region VI have indicated that the possible imposition of whole effluent toxicity limits in permits will not be affected by which state rule contains the biomonitoring provisions. In addition, this change would be outside the scope of the proposed standards revisions. Several commenters stated that the proposed additional short-term lethality testing provisions for undiluted effluent were unnecessary and not appropriate for the water quality standards rule. The commission responds that this provision is needed to ensure that short-term lethal toxicity does not occur in the zone of initial dilution, and the analysis of cost of the testing to permittees indicated that the expense of such testing would not be excessive. Several commenters requested that the time period specified for conducting short-term lethality testing should be based on time-of-travel in the zone of initial dilution and a provision should be included to allow for site-specific determination of this time period. The commission responds that site-specific time periods might be theoretically acceptable, but the complications of this approach create excessive difficulty for actual application. The 24-hour time period specified for short-term lethality testing is therefore adopted as proposed. One commenter suggested changing the wording in sec.307.6(e)(2)(E) so that the consideration of additional factors which might be used to set discharge limits based on total toxicity would be optional rather than mandatory. This change was made as suggested in the adopted rule. Other commenters requested that additional factors be added to sec.307.6(e)(2)(E) to consider: technological and economic limits of effluent treatability; and new or newly assessed information. The commission responds that these factors are more appropriately considered as part of the toxicity reduction evaluation procedures in the Standards Implementation Procedures. In sec.307.7, concerning site-specific uses and criteria, one commenter requested that the statement "activities of man" in sec.307.7(a) be specifically defined. The commission responds that the statement applies to man-induced nonpoint source pollution. The activities include agricultural and silvicultural practices, urban runoff, construction activities, and other activities of man which usually cannot be identified as an end of pipe or point source discharge. In sec.307.7(b)(2)(A)(ii), two commenters believe that aquifer protection designation should apply only to segments which actually recharge the Edwards Aquifer, and not to segments which are just capable of recharging the aquifer. The commission responds that as stated in the remainder of the paragraph, the principal purpose of designating a segment for aquifer protection is to protect the quality of water infiltrating into and recharging the Edwards Aquifer. In regard to sec.307.7(b)(3)(A) (Table 4), one commenter states that the oxygen requirements for limited aquatic life use are too low. The commission responds that use attainability analyses have demonstrated that these oxygen requirements do protect limited aquatic life uses and that the use subcategory and criteria have been previously approved by EPA. Another commenter stated that dissolved oxygen criteria for the exceptional aquatic life use subcategory may be too low based on data contained in the Texas Water Development Board coastal data system and that it may be appropriate to reevaluate the data for the mean criterion. The same commenter also believes that the footnote referring to diel fluctuations may diminish the applicability of the minimum dissolved oxygen criterion. The commission points out that water quality criteria are not usually based on ambient values of a particular parameter, but rather minimum, maximum, or average values, as appropriate, to protect a use under critical conditions. For instance, the solubility of oxygen in seawater at 30 Celsius is 6.1 mg/l; at 35 Celsius the solubility of oxygen is approximately 5.7 mg/l. Therefore, elevating the dissolved oxygen criteria to 6.0 mg/l would mean that seawater would have to average over 100 oxygen saturation to attain the criteria at 35 Celsius. The commission considers this to be an unrealistic requirement. With regard to the footnote concerning diel fluctuations, the commission does not believe that allowing for site specific differences due to natural conditions will diminish the effectiveness of the minimum dissolved oxygen criteria. In sec.307.8(a), concerning application of standards under low-flow conditions, one commenter expressed opposition to the suspension of certain standards below specified flow conditions. Another commenter stated that the use of 7Q2 flows is flawed because of lack of data or flows, especially in the western portion of the state. Several commenters expressed support of these provisions. The commission responds that the application of standards at and above 7Q2 flows provide an appropriate level of water quality protection for a state in which so many streams have very low or zero flows at 7Q2 conditions. Also, the use of harmonic mean flows for human health protection is consistent with the lifetime exposure methodology used in developing the criteria. Clerical errors relating to paragraph references have been corrected in sec.307.8(a)(1)(E), (F), and (G). In sec.307.8(b), concerning mixing zones, several commenters supported these provisions; however, some expressed concerns that some flexibility concerning the size of the ZID should be maintained. Two commenters were opposed to the use of ZIDs. One commenter suggested that mixing zone dimensions should also be included in the standards and another stated that mixing zones should not be authorized over special aquatic sites such as marshes, seagrasses and oyster reefs. Some commenters recommended specific sizes for human health criteria mixing zones or that the dimensions be specified. The commission responds that the determination of mixing zone sizes (including consideration of the ecological sensitivity of the discharge site) for aquatic life criteria are included in the procedures to implement the standards. The procedures are being modified to include the determination of human health criteria mixing zones. With regard to ZIDs, the commission responds that ZIDs are allowable under EPA guidance, and the language in sec.307.8(b)(2) effectively limits ZIDs to a small portion of the mixing zone. One commenter was concerned that the use of a baseline 7Q2 of 0.1 cfs (when 7Q2 flows are smaller) could result in ZIDs that are larger than the intended 25% flow volume as stated in sec.307.8(b)(2)(A). The commission responds that the 7Q2 flows listed in sec.307.10 Appendix B are only guidelines and that actual 7Q2 flows will be used to develop permit limits. Clerical errors relating to paragraph references in sec.307.8(b)(2)(E), (F), and (G) have been corrected. In sec.307.8(c), concerning minimum analytical levels, several commenters support the provisions but some of these commenters point out that the minimum analytical levels listed in the standards implementation procedures are not achievable in all matrices. The commission agrees with this assertion and points out that procedures to develop facility specific minimum analytical levels are contained in the standards implementation procedures. Several commenters requested that a provision be added exempting discharges of once through cooling water from numeric aquatic life and human health criteria provided that there is no unacceptable addition of pollutants. The commission responds that such an across the board exemption would be inappropriate and that site-specific remedies are provided for in the standards. In sec.307.9, concerning the determination of standards attainment, numerous commenters suggested that the collection of a sample at any depth for the determination of numeric human health attainment is inconsistent with the methodology, e.g. long-term average exposure, used to calculate these criteria as specified in sec.307.6(d)(3). The commission agrees with these comments and sec.307.9(b)(3) has been revised to state that human health criteria are applicable to the average concentrations from the surface to the bottom. In sec.307.9(b)(2), one commenter stated that samples from the hypolimnion of thermally stratified reservoirs should also be used in determining standards attainment and two commenters suggested that dredged areas of bays should not be exempted when considering standards attainment. The commission responds that selected parameters in bottom waters are sampled at many of the commission's monitoring stations around the state, but the use of these samples to determine standards attainment is not generally feasible, particularly with respect to dissolved oxygen. It should be noted that these waters are not exempted for determining attainment of numeric toxic criteria. In sec.307.9(c)(3), concerning toxicity, a few commenters stated that only standard test organisms be used in bioassays. The commission responds that, in general, standard test organisms are specified for biomonitoring as discussed in the standards implementation procedures; however, flexibility must be maintained in the event that natural conditions preclude the use of one or more of the standard test species. In sec.307.9(d)(1), concerning sampling periodicity and evaluation for chloride, sulfate and total dissolved solids, a few commenters suggested that flow criteria for sample collection should also be specified to make the data meaningful. The commission responds that samples collected over a range of flow conditions actually provide data that is more representative of natural conditions. Numerous comments were received pertaining to classified segments contained in sec.307.10-Appendix A, concerning segment standards. One of the major revisions proposed by the commission was with regard to Segment 0805-Upper Trinity River/Lower West Fork Trinity River. The proposed revisions were based upon an use attainability analysis (UAA) conducted by the commission with assistance from the Texas Department of Parks and Wildlife and subsequent analyses. The revisions include assigning portions of both the lower and upper reaches of the segment to their respective adjacent segment which have high aquatic life uses; dividing Segment 0805 into two new segments and raising the aquatic life use from limited to high for new Segment 0805-Upper Trinity River and from limited to intermediate for new Segment 0841-Lower West Fork Trinity River; and increasing the dissolved oxygen criterion below flows of 80 cfs from 1.0 mg/l to 3.5 mg/l and 2.5 mg/l for new Segment 0805 and new Segment 0841, respectively. For flows of 80 cfs and above, the dissolved oxygen criteria for the designated aquatic life use apply. One group of commenters support the upgrade in uses; however, several of these are opposed to using lower dissolved oxygen criteria below flows of 80 cfs and maintain that 7Q10 flows should be used. Another group is opposed to the high aquatic life use designation for Segment 0805 and state that the use should be set at intermediate aquatic life. These commenters also state that the UAA should be revised accordingly and should include the addition of a cost/benefit analysis. Most of this group support the dissolved oxygen criteria as proposed. The commission responds that the proposed revisions represent a logical step toward to reflect existing biotic integrity provided by the recent use attainability analysis. Future information on water quality in the river and additional waste load evaluations will eventually facilitate a re-assessment of the appropriate designated uses, dissolved oxygen criteria, and flow conditions at which the standards apply. Based on existing information, the revisions are considered reasonable from both socio-economic and water quality standpoints at the present time. One commenter disagrees with the commission proposal to apply chronic numerical criteria and chronic total toxicity requirements to Segments 1006 and 1007 of the Houston Ship Channel since these segments do not have designated aquatic life uses. This commenter states that the imposition of these requirements will cost taxpayers hundreds of thousands of dollars for chronic biomonitoring and perhaps millions of dollars for conducting chronic marine toxicity reduction evaluations. The commenter also states that the commission has not provided justification for this requirement or an estimate of benefits expected. Three commenters support the added chronic toxicity requirements as being protective of downstream uses. Two of these commenters suggest that limited aquatic life uses should be assigned to Segments 1006 and 1007. One of these commenters states that human health criteria should also apply. The commission responds that the primary reason for adding chronic toxicity requirements to Segments 1006 and 1007 is to afford increased protection of uses in downstream segments including Galveston Bay. This revision is justified due to the numerous large industrial and municipal discharges to these segments. A secondary benefit is that incidental aquatic life uses within the segments will also be afforded greater protection; however, a review of dissolved oxygen concentrations in these segments does not indicate support for designating aquatic life uses. Also, a new aquatic life subcategory would have to be established as there is no limited aquatic life use for saltwater and this would require more extensive data than is available at this time. The establishment of a new aquatic life subcategory would also require the opportunity for public review and comment. Human health criteria will apply as previously discussed under the modified revision for the definition of sustainable fishery. An economic impact analysis of requiring chronic biomonitoring for Segments 1006 and 1007 was included in the preamble to the proposed water quality standards as published in the December 25, 1990, issue of the Texas Register . Numerous comments were received regarding Segment 1248-San Gabriel/North Fork San Gabriel River. Although somewhat varied, the essence of the comments focused on allegations that the uses of the segment were not being maintained and that a point source discharge is responsible for the condition. Suggested remedies by the commenters include the imposition of no discharge requirements for point sources; more stringent effluent requirements including nutrient limits or even drinking water quality limits; or the establishment of nutrient standards for the segment. The commission responds that there is no hard data, e.g. low dissolved oxygen, fish kills, or excessive fecal coliform counts, that indicate the designated uses are not being maintained. However, there is data that indicates there may be a potential problem due to nutrient enrichment of the water that may be manifested as excessive algae growth in the river. In this regard, the commission proposes to conduct further investigations and analyses which may lead to remedies afforded under Section 307.4(e), relating to nutrient parameters. Several commenters took note of the proposed temporary revision for the Colorado River mainstem (from Segment 1412 downstream to Segment 1402, inclusive) making numeric criteria for dissolved minerals equal to ambient concentrations when such concentrations exceed listed numeric criteria. All of the commenters acknowledged the need for some sort of criteria exception due to the transitory nature of the elevated salinity water moving through the system. The focus of most comments was that even with the proposed exception, reasonable pretreatment limits for dissolved minerals could not be established. One commenter agreed with the proposed revision as presented. After further review of the methodology used in calculating pretreatment limits, the commission responds that the proposed revision will allow the establishment of reasonable pretreatment limits. One commenter expressed concerns about elevated salinity levels in Segment 2307-Rio Grande Below Riverside Diversion Dam. This commenter believes that the elevated salinity levels make the water unsuitable for irrigation and suggested that upstream agricultural practices, e.g., the installation of tile field drainage to leach salt from croplands, and municipal discharges may be adding to the problem. The commission responds that return flows from irrigated croplands often have higher salinities, due to evapotranspiration and soil leaching, than the water used for irrigation purposes, especially in areas in west Texas. Natural conditions such as exposed or near surface saltbeds, seeps, and springs may also contribute to elevated salinity levels. In elevated salinity waters such as the Rio Grande, municipal discharges usually tend to lower concentrations of dissolved minerals. A review of the data for this river segment indicates that elevated salinities occur persistently throughout the period of record (1973-1990); however, statistical analyses do not reveal that an increasing trend toward higher salinities exists. Another commenter requested that the commission create a classified segment by splitting off the lower portion of Segment 2311-Upper Pecos River from above the confluence of Independence Creek to the boundary of Segment 2310-Lower Pecos River. The new segment would have the same designated uses as Segment 2311 except that lower dissolved minerals criteria would apply due to dilution effects of Independence Creek. The commission responds that while this suggestion may have merit, the available data for the lower portion of the segment only cover about three years, with the majority of the salinity data concentrated over one 48-hour period. The commission proposes to keep this suggestion under advisement as additional data are collected. The same commenter also recommended that Independence Creek be made a classified segment with designated uses of exceptional aquatic life and contact recreation. The commission responds again that this suggestion may have merit; however, since this creek is included in the commission ecoregion study, the nature of the classification for this stream should await final disposition of said study. In sec.307.10, Appendix B, concerning low-flow criteria, three commenters recommended that harmonic mean flows also be included in addition to the seven-day two-year low flow values listed. The commission responds that since the listed flows in Appendix B are just guidelines, as specifically revised, harmonic mean flows will be developed and published separately from the standards and may be included in future revisions to the standards. In sec.307.10, Appendix D, concerning site-specific receiving water assessments, several commenters supported the addition of this new appendix which defines uses for certain unclassified streams due to anticipated or completed regulatory actions by the commission. However, one commenter stated that Linnville Bayou should be added to the assessed streams. The commission responds that Linnville Bayou was inadvertently left off the list and that the stream will be added during the next revision to the standards to allow for public comment. Another commenter disagrees with the use and perennial stream status assigned to South Mesquite Creek in Segment 0819. Their major criticisms were that the receiving water assessment had been conducted at high flows, biotic indices were not calculated on the fish sample and that benthic macroinvertebrates were not collected. Data collected by the commenter indicated that flows for over one week were less than 0.1 cfs and thus the stream is intermittent by the definition in sec.307.3(a)20). For these reasons, the commenter recommends that the stream use assessment be changed to intermittent with limited aquatic life uses or be removed from the standards to allow further study. The commission agrees that the receiving water assessment was collected at higher than samples and support an intermediate aquatic life use. Since the development of the proposed standards, additional information indicates that the stream is probably intermittent with perennial pools. Because the receiving water assessment was conducted during flows higher than critical conditions and the resultant use assessment may not reflect critical low flow conditions, the commission has decided to remove South Mesquite Creek from Appendix D and conduct further evaluations of the stream. The results of these evaluations will be considered in future revisions to the standards. The repeals are adopted under the Texas Water Code, sec.26.023, which provides the Texas Water Commission with the authority to make rules setting water quality standards for all water in the state; and under the Texas Water Code, sec.5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of this state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 18, 1991. TRD-9107255 Jim Haley Director, Legal Division Texas Water Commission Effective date: July 10, 1991 Proposal publication date: December 25, 1991 For further information, please call: (512) 463-8069 31 TAC sec.sec.307.2-307.10 The new sections are adopted under the Texas Water Code, s26.023, which provides the Texas Water Commission with the authority to make rules setting water quality standards for all water in the state; and under the Texas Water Code, sec.5.103, which authorizes the commission to adopt any rules necessary to carry out its powers and duties under the Water Code and other laws of this state. sec.307.2. Description of Standards. (a) Contents of the Texas Surface Water Quality Standards. (1) Section 307.1 of this title (relating to General Policy Statement) contains the general standards policy of the commission. (2) This section lists the major sections of the standards, defines basin classification categories, and describes justifications for standards modifications. (3) Section 307.3 of this title (relating to Definitions and Abbreviations) defines terms and abbreviations used in the standards. (4) Section 307.4 of this title (relating to General Criteria) lists the general criteria, which are applicable to all surface waters of the state unless specifically excepted in sec.307.8 of this title (relating to Application of Standards) or sec.307.9 of this title (relating to Determination of Standards Attainment). (5) Section 307.5 of this title (relating to Antidegradation) describes the antidegradation policy and implementation procedures. (6) Section 307.6 of this title (relating to Toxic Materials) establishes criteria and control procedures for specific toxic substances and total toxicity. (7) Section 307.7 of this title (relating to Site-specific Uses and Criteria) defines appropriate water uses and supporting criteria for site- specific standards. (8) Section 307.8 of this title (relating to Application of Standards) sets forth conditions under which portions of the standards do not apply--such as in mixing zones or below critical low-flows. (9) Section 307.9 of this title (relating to Determination of Standards Attainment) describes sampling and analytical procedures to determine standards attainment. (10) Section 307.10 of this title (relating to Appendices A-D) lists site-specific standards and supporting information for each classified segment. Specific appendices are as follows: (A) Appendix A-Water Uses and Numerical Criteria; (B) Appendix B-Low Flow Criteria; (C) Appendix C-Segment Descriptions; (D) Appendix D-Site-specific Receiving Water Assessments. (b) Applicability. The Texas Surface Water Quality Standards apply to surface waters in the state--including wetlands during periods of surface inundation. (c) Classification of surface waters. The major surface waters of the state are classified as segments for purposes of water quality management and designation of site-specific standards. Classified segments are aggregated by basin, and basins are categorized as follows: (1) river basin waters. Surface inland waters comprising the major rivers, their tributaries, including listed impounded waters, and the tidal portion of rivers to the extent that they are confined in channels; (2) coastal basin waters. Surface inland waters, including listed impounded waters but exclusive of paragraph (1) of this subsection, discharging, flowing, or otherwise communicating with bays or the gulf, including the tidal portion of streams to the extent that they are confined in channels; (3) bay waters. All tidal waters, exclusive of those included in river basin waters, coastal basin waters, and gulf waters; (4) gulf waters. Waters which are not included in or do not form a part of any bay or estuary but which are a part of the open waters of the Gulf of Mexico to the limit of the state's jurisdiction. (d) Modification of standards. (1) The commission reserves the right to amend these standards following the completion of special studies. (2) Any errors in water quality standards resulting from clerical errors or errors in data may be corrected by the commission through amendment of the affected standards. Water quality standards not affected by such clerical errors or errors in data remain valid until changed by the commission. (3) The narrative provisions, designated uses, and numerical criteria of the Texas Surface Water Quality Standards may be amended for a specific waterbody to account for local conditions. A site-specific standard is an explicit amendment to this chapter (relating to the Texas Surface Water Quality Standards), and adoption of a site-specific standard requires the procedures for public notice and hearing established under the Texas Water Code, sec.26.024 and sec.26.025. An amendment which establishes a site-specific standard will require a use-attainability analysis which demonstrates that reasonably attainable water-quality related uses will be protected. Upon adoption by the commission and approval by the United States Environmental Protection Agency, site-specific amendments to the standards will be listed in sec.307.10 of this title (relating to Appendices A-D). (4) When preliminary evidence indicates that a site-specific standards amendment is appropriate, the commission may allow a temporary variance to the water quality standards. A temporary variance is only applicable to an existing permitted discharge facility. A permittee may apply for a temporary variance prior to or during the permit application process. The temporary variance request shall be included in the public notice for the permit application and the request may be considered in any public hearing on the permit application. The temporary variance must have the approval of the United States Environmental Protection Agency and the Texas Water Commission before issuance of a final permit. The permit shall contain interim limits based upon the variance approval, and final limits based upon existing water quality standards. A variance shall not exceed a time period of three years. If the commission adopts the proposed site-specific standard prior to the expiration of the variance period, then the permit may be amended to meet the revised water quality standards. If the commission does not adopt the proposed site-specific standard prior to the expiration of the variance period, then the final effluent limits based on existing water quality standards will remain in effect, but the permit may be amended to include a permit schedule to meet standards in accordance with subsection of this title section. (5) Factors which may justify the development of site-specific standards are described in this sec.307. 4 of this title (relating to General Criteria), sec.307.6 of this title (relating to Toxic Materials), sec.307.7 of this title (relating to Site-specific Uses and Criteria), and sec.307.8 of this title (relating to Application of Standards). (e) Implementation procedures. Provisions for implementing the water quality standards are described in a document entitled "Implementation of the Texas Water Commission Standards via Permitting," which is included in the continuing planning process document of the commission. (f) Permit schedules to meet standards. Upon permit amendment or permit renewal, the commission may establish interim discharge limits to allow a permittee time to modify effluent quality in order to attain final effluent limits. The duration of any interim limit may not be longer than three years from the effective date of the permit issuance. sec.307.3. Definitions and Abbreviations. (a) Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Acute toxicity-Toxicity which exerts short-term lethal impacts on representative, sensitive organisms. The duration of exposure applicable to acute toxicity is normally 96 hours or less (direct thermal impacts are excluded from definitions of toxicity). Pages Texas Surface Water Quality Standards (2) Ambient-The natural conditions that would be expected to occur in waters unaffected or not influenced by the activities of man. (3) Best management practice-A practice or combination of practices determined to be the most practicable means of preventing or reducing, to a level compatible with water quality goals, the amount of pollution generated by nonpoint sources. (4) Bioaccumulative toxic-A toxic substance which has a tendency to accumulate in organisms. (5) Chronic toxicity-Toxicity which exerts sublethal negative effects such as growth impairment and reduced reproduction, or which exerts lethality after long-term exposure, on representative, sensitive organisms. The duration of process and procedures for making water quality decisions required by the Clean Water Act, sec.303(e) (33 United States Code 1313). (6) Commission-The Texas Water Commission. (7) Contact recreation-Recreational activities involving a significant risk of ingestion of water, including wading by children, swimming, water skiing, diving, and surfing. (8) Continuing planning process-A document that describes the state's planning and management process and procedures for making water quality decisions required by the Clean Water Act, sec.303(e) (33 United States Code 1313) . (9) Criteria-Water quality conditions which are to be met in order to support and protect desired uses. (10) Critical low-flow-Low-flow condition (e.g., 7Q2 flow) below which some standards do not apply. The impacts of permitted discharges are analyzed at critical low-flow. (11) Discharge permit-A permit issued by the state to discharge effluent into waters of the state. (12) EC50-The concentration of a toxicant that produces sub-lethal impacts on 50% of the organisms tested in a specified time period. (13) Effluent-Wastewater discharged from any point source prior to entering a water body. (14) Epilimnion-The upper mixed layer of a lake (including impoundments, ponds, and reservoirs). (15) Fecal coliform-That portion of the coliform bacteria group which is present in the intestinal tracts and feces of warm-blooded animals. (16) Freshwaters-Inland waters which exhibit no measurable elevation changes due to normal tides. (17) Halocline-A vertical gradient in salinity under conditions of density stratification that is usually recognized as the point where salinity exhibits the greatest difference in the vertical direction. (18) Harmonic mean flow-A measure of mean flow in a water course which is calculated by summing the reciprocals of the individual flow measurements, dividing this sum by the number of measurements, and then calculating the reciprocal of the resulting number. (19) Industrial cooling impoundments-An impoundment which is owned or operated by, or in conjunction with, the water rights permittee, and which is designed and constructed for the primary purpose of reducing the temperature and removing heat from an industrial effluent. (20) Intermittent stream-A stream which has a period of zero flow for at least one week during most years. Where flow records are available, a stream with a 7Q2 flow of less than 0.1 ft3/s is considered intermittent. (21) LC50-The concentration of a toxicant that is lethal (fatal) to 50% of the organisms tested in a specified time period. (22) Marine waters-Waters which have measurable elevation changes due to normal tides. Marine waters are considered to be saltwater for purposes of standards application. In the absence of tidal information, marine waters are generally considered to be waters which typically have salinities of two parts per thousand or greater in a significant portion of the water column. (23) Method detection limit-The minimum concentration of a substance that can be detected in the matrix of concern with a 99% confidence level that the substance is present. The method detection limit (MDL) is estimated in accordance with 40 Code of Federal Regulations 136, Appendix B. (24) Minimum analytical level-The lowest concentration at which a particular substance can be quantitatively measured with a defined precision level, using approved analytical methods. The minimum analytical level is not the published method detection limit for an EPA-approved analytical method, which is based on single laboratory analysis of the substance in reagent (distilled) water. The minimum analytical level is based on analyses of the analyte in the matrix of concern (i.e., wastewater effluents). The commission will establish general minimum analytical levels that will be applicable when information on matrix-specific minimum analytical levels is unavailable. (25) Mixing zone-The area contiguous to a discharge where mixing with receiving waters takes place and which may not meet certain criteria applicable to the receiving water. (26) Noncontact recreation-Recreational pursuits not involving a significant risk of water ingestion, including fishing, commercial and recreational boating, and limited body contact incidental to shoreline activity. (27) Nonpersistent toxic-A toxic substance that readily degrades in the aquatic environment, exhibits a half-life of less than 96 hours, and does not have a tendency to accumulate in organisms. (28) Oyster waters-Waters producing edible species of clams, oysters, or mussels. (29) Persistent toxic-A toxic substance that is not readily degraded and exhibits a half-life of 96 hours or more in an aquatic environment. (30) Salinity-The total dissolved solids in water after all carbonates have been converted to oxides, all bromide and iodide have been replaced by chloride, and all organic matter has been oxidized. For most purposes, salinity is considered equivalent to total dissolved salt content. Salinity is normally expressed in parts per thousand. (31) Settleable solids-The volume or weight of material which will settle out of a water sample in a specified period of time. (32) Seven-day, two-year low flow-The lowest flow that occurs for seven consecutive days during a two-year period as statistically determined from historical data. It is the flow used for determining the allowable discharge load to a stream. (33) Shellfish-Clams, oysters, mussels, crabs, crayfish, lobsters, and shrimp. (34) "Standard Methods for the Examination of Water and Wastewater"-A document describing sampling and analytical procedures, which is published by the American Public Health Association, American Water Works Association, and Water Pollution Control Federation. The most recent edition of this document is to be followed whenever its use is specified by these rules. (35) Standards-The designation of water bodies for desirable uses and the narrative and numerical criteria deemed necessary to protect those uses. (36) Standards implementation procedures-Procedures entitled "Implementation of the Texas Water Commission Standards via Permitting," which are included in the continuing planning process document of the commission. (37) Stream order-A classification of stream size, where the smallest, unbranched tributaries of a drainage basin are designated first order streams. Where two first order streams join a second order stream is formed, and where two second order streams join a third order stream is formed, etc. For purposes of water quality standards application, stream order is determined from USGS topographic maps with a scale of 1:24,000. (38) Surface water in the state-Lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or subject to the jurisdiction of the state; except that waters in treatment systems which are authorized by state or federal law, regulation, or permit, and which are created for the purpose of waste treatment are not considered to be waters in the state. (39) Total dissolved solids-The amount of material (inorganic salts and small amounts of organic material) dissolved in water and commonly expressed as a concentration in terms of milligrams per liter. The term is equivalent to the term filterable residue, as used in the publication entitled, "Standard Methods for the Examination of Water and Wastewater." (40) Total suspended solids-Total suspended matter in water, which is commonly expressed as a concentration in terms of milligrams per liter. The term is equivalent to nonfilterable residue, as used in the publication entitled, "Standard Methods for the Examination of Water and Wastewater." (41) Total toxicity-Toxicity as determined by exposing aquatic organisms to samples or dilutions of instream water or treated effluent. Also referred to as whole-effluent toxicity. (42) Toxicity-The occurrence of lethal or sublethal adverse effects on representative, sensitive organisms due to exposure to toxic materials. Adverse effects caused by conditions of temperature, dissolved oxygen, or nontoxic dissolved substances are excluded from the definition of toxicity. (43) Toxicity biomonitoring-The determination of total toxicity. Documents which describe procedures for toxicity biomonitoring are cited in sec.307.6 of this title (relating to Toxic Materials). (44) Water quality management program-The commission's overall program for attaining and maintaining water quality consistent with state standards, as authorized under the Texas Water Code, the Texas Administrative Code, and the Clean Water Act, sec. s106, 205(j), 208, 303(e), and 314 (33 United States Code 1251 et seq). (45) Wetland-An area (including a swamp, marsh, bog, prairie pothole, or similar area) having a predominance of hydric soils that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support and that under normal circumstances supports the growth and regeneration of hydrophytic vegetation. The term "hydric soil" means soil that, in its undrained condition, is saturated, flooded, or ponded long enough during a growing season to develop an anaerobic condition that supports the growth and regeneration of hydrophytic vegetation. The term "hydrophytic vegetation" means a plant growing in: water or a substrate that is at least periodically deficient in oxygen during a growing season as a result of excessive water content. The term "wetland" does not include irrigated acreage used as farmland; a man-made wetland of less than one acre; or a man-made wetland not constructed with wetland creation as a stated objective, including, but not limited to, an impoundment made for the purpose of soil and water conservation which has been approved or requested by soil and water conservation districts. (46) Zone of initial dilution-The small area at the immediate point of discharge where initial dilution with receiving waters occurs, and which may not meet certain criteria applicable to the receiving water. A zone of initial dilution is substantially smaller than a mixing zone. (b) Abbreviations. The following abbreviations apply to this chapter. (1) AP-aquifer protection. (2) BMP-best management practices. (3) AS-agricultural water supply. (4) CFR-Code of Federal Regulations. (5) CR-contact recreation. (6) CPP-continuing planning process. (7) DO-dissolved oxygen. (8) E-exceptional quality aquatic habitat. (9) EPA-United States Environmental Protection Agency. (10) F-degree(s) Fahrenheit. (11) ft3/s-cubic feet per second. (12) H-high quality aquatic habitat. (13) I-intermediate quality aquatic habitat. (14) IS-industrial water supply. (15) L-limited quality aquatic habitat. (16) mg/l-milligrams per liter. (17) ml-milliliter. (18) N-navigation. (19) NCR-noncontact recreation. (20) NPDES-National pollutant discharge elimination system, as set out in the Clean Water Act, sec.402 (33 United States Code 1342). (21) 0-Oyster waters. (22) PS-public water supply. (23) 7Q2-seven-day, two-year lowflow. (24) TDS-total dissolved solids. (25) USFDA-United States Food and Drug Administration (26) USGS-United States Geological Survey. (27) WQM-water quality management. sec.307.4. General Criteria. (a) Application. The general criteria set forth in this section apply to surface water in the state and specifically apply to substances attributed to waste discharges or the activities of man. General criteria do not apply to those instances in which surface water, as a result of natural phenomena, exhibit characteristics beyond the limits established by this section. General criteria are superseded by specific exemptions stated in this section or in sec.307.8 of this title (relating to the Application of Standards), or by site-specific water quality standards for classified segments. Provisions of the general criteria remain in effect in mixing zones or below critical low-flow conditions unless specifically exempted in sec.307.8 of this title (relating to the Application of Standards). (b) Aesthetic parameters. (1) Concentrations of taste and odor producing substances shall not interfere with the production of potable water by reasonable water treatment methods, impart unpalatable flavor to food fish including shellfish, result in offensive odors arising from the waters, or otherwise interfere with the reasonable use of the water in the state. (2) Surface water shall be essentially free of floating debris and suspended solids that are conducive to producing adverse responses in aquatic organisms or putrescible sludge deposits or sediment layers which adversely affect benthic biota or any lawful uses. (3) Surface waters shall be essentially free of settleable solids conducive to changes in flow characteristics of stream channels or the untimely filling of reservoirs, lakes, and bays. (4) Surface waters shall be maintained in an aesthetically attractive condition. (5) Waste discharges shall not cause substantial and persistent changes from ambient conditions of turbidity or color. (6) There shall be no foaming or frothing of a persistent nature. (7) Surface waters shall be maintained so that oil, grease, or related residue will not produce a visible film of oil or globules of grease on the surface or coat the banks or bottoms of the watercourse; or cause toxicity to man, aquatic life, or terrestrial life in accordance with sec.307.4(d) of this title (relating to toxic parameters). (c) Radiological parameters. Radioactive materials shall not be discharged in excess of the amount regulated by 25 TAC sec.sec.289.111-289.126 (relating to Texas Regulations for Control of Radiation). (d) Toxic parameters. Surface waters will not be toxic to man from ingestion of water, consumption of aquatic organisms, or contact with the skin, or to terrestrial or aquatic life. Additional standards requirements for toxic materials are specified in sec.307.6 of this title (relating to Toxic Materials). (e) Nutrient parameters. Nutrients from permitted discharges or other controllable sources shall not cause excessive growth of aquatic vegetation which impairs an existing, attainable, or designated use. Site-specific nutrient criteria, nutrient permit limitations, and/or separate rules to control nutrients in individual watersheds will be established where appropriate after notice and opportunity for public participation and proper hearing. (f) Temperature. Consistent with sec.307.1 of this title (relating to General Policy Statement) and in accordance with state water rights permits, temperature in industrial cooling lake impoundments and all other surface water in the state shall be maintained so as to not interfere with the reasonable use of such waters. Numerical temperature criteria have not been specifically established for industrial cooling lake impoundments, which in most areas of the state contribute to water conservation and water quality objectives. With the exception of industrial cooling impoundments, temperature elevations due to discharges of treated domestic (sanitary) effluent, and designated mixing zones, the following temperature criteria, expressed as a maximum temperature differential (rise over ambient) are established: freshwater streams-5 Fahrenheit; freshwater lakes and impoundments -3 Fahrenheit; tidal river reaches, bay, and gulf waters -4 Fahrenheit in fall, winter, and spring, and 1. 5 Fahrenheit in summer (June, July, and August). Additional temperature criteria (expressed as maximum temperatures) for classified segments are specified in Appendix A of sec.307.10 of this title (relating to Appendices A-D). (g) Salinity. (1) Estuarine salinity criteria have not been established, despite the recognition that proper salinity gradient maintenance is important for the continuation of balanced and desirable populations of estuarine dependent marine life, because weather is the dominant factor influencing salinity gradients. (2) Absence of numerical salinity criteria shall not preclude evaluations and regulatory actions based on estuarine salinity, and careful consideration will be given to all activities which may detrimentally affect salinity gradients in estuarine waters. (3) Concentrations of dissolved minerals such as chlorides, sulfates, and total dissolved solids will be maintained so that attainable uses will not be impaired. (h) Dissolved oxygen and aquatic life uses. (1) Dissolved oxygen criteria for unclassified waters with aquatic life uses will be sufficient to support appropriate aquatic life use categories, in accordance with sec.307.7 of this title (relating to Site-specific Uses and Criteria). Except for perennial pools in intermittent streams, those perennial streams, rivers, lakes, bays, estuaries, and other appropriate perennial waters which are not specifically listed in Appendix A or D of sec.307.10 are presumed to have a high quality aquatic life use and corresponding dissolved oxygen criteria. This standard is subject to the United States EPA giving the State of Texas a written commitment by September 10, 1991, that makes clear that the process that will be used to evaluate and approve or disapprove any water quality assessment that is submitted for the purpose of rebutting that presumption at a particular location will be streamlined so that permit applicants will not be burdened with undue expense and the commission agrees that the process to which EPA commits itself will not be unduly burdensome for permit applicants; and if EPA fails to commit to a process which would not be unduly burdensome to permit applicants in this time frame, then the presumption established by this subsection is that except for perennial pools in intermittent streams, those perennial streams, rivers, lakes, bays, estuaries, and other appropriate perennial waters which are not specifically listed in Appendix A or D of sec.307.10 are presumed to have an intermediate quality aquatic life use and corresponding dissolved oxygen criteria. In addition, perennial unclassified lakes and reservoirs with a persistent minimum size of at least 50 surface acres are presumed to have a high quality aquatic life use and corresponding dissolved oxygen criteria. Higher uses will be maintained where they occur. (2) Intermittent streams which are not specifically listed in Appendix A or D of sec.307.10 will maintain a 24-hour dissolved oxygen mean of 2.0 mg/l and an absolute minimum dissolved oxygen concentration of 1.5 mg/l. For intermittent streams with seasonal aquatic life uses, dissolved oxygen concentrations commensurate with the aquatic life uses will be maintained during the seasons in which the aquatic life uses occur. Unclassified intermittent streams with significant aquatic life uses created by perennial pools are presumed to have a limited quality aquatic life use and corresponding dissolved oxygen criteria. Higher uses will be maintained where they are attainable. (i) Bacteria. A fecal coliform criterion of not more than 200 bacteria per 100 ml shall apply to all water bodies not specifically listed in Appendix A of sec.307.10. Application of this criterion shall be in accordance with sec.307.7(b)(1). (j) Antidegradation. Nothing in this section shall be construed or otherwise utilized to supersede the requirements of sec.307.5 of this title (relating to Antidegradation). (k) Assessment of unclassified waters. Waters which are not specifically listed in Appendices A or D of sec.307.10 are designated for the specific uses that are attainable or characteristic of those waters. Upon administrative or regulatory action by the commission which affects a particular unclassified water body, the characteristics of the affected water body will be reviewed to determine which aquatic life uses are appropriate. Additional uses so determined shall be indicated in public notices for discharge applications. Uses which are not applicable throughout the year in a particular unclassified water body will be assigned and protected for the seasons in which such uses are attainable. Initial determinations of use shall be considered preliminary, and in no way preclude redeterminations of use in public hearings conducted by the commission under the provisions of the Texas Water Code. For unclassified waters where the presumed minimum uses or criteria specified in this section are inappropriate, site-specific standards may be developed in accordance with s307.2(d) of this title (relating to Modification of Standards). Uses and criteria will be assigned in accordance with this section and with sec.307.7(3). Procedures for assigning uses and criteria are described in the standards implementation procedures. sec.307.5. Antidegradation. (a) Application. The antidegradation policy and implementation procedures set forth in this section shall apply to actions before the commission when such actions would increase pollutant loads to the water in the state. Such actions include permit actions, waste load evaluations, and any other miscellaneous actions, such as those related to man-induced nonpoint sources of pollution, which may impact the water in the state. (b) Antidegradation policy. In accordance with the Texas Water Code, sec.26.003, it is the policy of the commission that: (1) water quality sufficient to protect existing uses will be maintained. Categories of existing uses are the same as for designated uses, as defined in sec.307.7 of this title (relating to Site-specific Uses and Criteria); (2) no activities subject to regulatory action which would cause degradation of waters which exceed fishable/swimmable quality will be allowed unless it can be shown to the commission's satisfaction that the lowering of water quality is necessary for important economic or social development. Degradation is defined as a lowering of water quality to more than a de minimis extent, but not to the extent that an existing use is impaired. Water quality sufficient to protect existing uses will be maintained. Fishable/swimmable waters are defined as waters which have quality sufficient to support propagation of indigenous fish, shellfish, and wildlife and recreation in and on the water; (3) outstanding national resource waters are defined as high quality waters within or adjacent to national parks and wildlife refuges, state parks, wild and scenic rivers designated by law, and other designated areas of exceptional recreational or ecological significance. The quality of outstanding national resource waters will be maintained and protected; (4) the commission will not authorize or approve any waste discharge that will result in the quality of any water being lowered below water quality standards without complying with federal and state laws applicable to water quality standards amendment;. (5) anyone discharging wastewater which would constitute a new source of pollution or an increased source of pollution from any industrial, public, or private project or development will be required to provide a level of wastewater treatment consistent with the provisions of the Texas Water Code and the Clean Water Act (33 United States Code 1251 et seq). As necessary, cost-effective and reasonable best management practices established through the Texas water quality management program shall be achieved for nonpoint sources of pollution; (6) application of antidegradation provisions shall not preclude the commission from establishing modified thermal discharge limitations consistent with the Clean Water Act, sec.316(a) (33 United States Code 1326). (c) Antidegradation implementation procedures. (1) The commission staff will review any wastewater discharge permit application or amendment in accordance with permitting procedures described in the continuing planning process. This review will include a preliminary determination of the existing uses of the receiving water. These existing uses will be maintained and protected. (2) For proposed permit applications or amendments to discharge into waters exceeding fishable/swimmable quality, the commission staff will preliminarily determine if the discharge is expected to cause a degradation of water quality. (3) All pollutants which could cause degradation of waters which exceed fishable/swimmable quality will be considered in the evaluation of waste discharge permits. For dissolved oxygen, analyses of degradation will utilize the same critical conditions as are used for permit reviews and waste load evaluations. For other parameters, appropriate conditions may vary. Conditions for determining degradation will be commensurate with conditions for determining existing uses. The highest water quality sustained since November 28, 1975 (in accordance with EPA Standards Regulation 40 Code of Federal Regulations Part 131) define baseline conditions for determinations of degradation. (4) When degradation of waters exceeding fishable/swimmable quality is anticipated, a statement that the antidegradation policy will be pertinent to the permit action will be included in the public notice for the said permit application or amendment. If no degradation is anticipated, the public notice will so state. The determination of existing use and the probability of degradation are issues upon which evidence can be introduced in permit hearings. (5) Interested parties will be given the opportunity to provide comments and additional information concerning the determination of existing uses, anticipated impacts of the discharge, baseline conditions, and necessity of the discharge for important economic or social development if degradation of water quality is expected. The commissioners will decide after full satisfaction of the intergovernmental coordination and public participation provisions of the continuing planning process if the economic or social development is important enough to allow the degradation. (6) Waste load evaluations conducted by the commission will adhere to the provisions of the antidegradation policy. If the waste load evaluation indicates that degradation of waters exceeding fishable/swimmable quality is expected, the public hearing notice will so state. The commission will not approve any waste load evaluation that would allow degradation of waters exceeding fishable/swimmable quality unless and until it has been demonstrated to the commission that the recommended lower water quality is necessary for important economic or social development. Permits which are consistent with an approved waste load evaluation under this antidegradation policy will not be separately subjected to the antidegradation provisions of this section unless the discharge may cause impacts on the receiving water which were not addressed by the waste load evaluation. (7) Additional implementation procedures for the antidegradation policy are described in the continuing planning process document. sec.307.6. Toxic Materials. (a) Application. Standards and procedures set forth in this section shall be applied in accordance with sec.307. 8 of this title (relating to Application of Standards) and sec.307.9 of this title (relating to Determination of Standards Attainment). (b) General provisions. (1) Water in the state shall not be acutely toxic to aquatic life in accordance with sec.307.8. (2) Water in the state with designated or existing aquatic life uses shall not be chronically toxic to aquatic life, in accordance with sec.307.8. (3) Water in the state shall be maintained to preclude adverse toxic effects on human health resulting from contact recreation, consumption of aquatic organisms, consumption of drinking water, or any combination of the three. Waters in the state with sustainable fisheries and/or public drinking water supply uses will not exceed applicable human health toxic criteria, in accordance with sec.307.6(d) of this title (relating to Specific Human Health Criteria) and sec.307.8. (4) Water in the state shall be maintained to preclude adverse toxic effects on aquatic and terrestrial wildlife, livestock, or domestic animals, resulting from contact, consumption of aquatic organisms, consumption of water, or any combination of the three. (c) Specific numerical aquatic life criteria. (1) Numerical criteria are established in the following table (Table 1) for those specific toxic substances for which adequate toxicity information is available, and which have the potential for exerting adverse impacts on water in the state. (2) Numerical criteria are based on ambient water quality criteria documents published by EPA. EPA guidance criteria have been appropriately recalculated to eliminate the effects of toxicity data for aquatic organisms which are not known to occur in Texas, in accordance with procedures in the EPA guidance document entitled "Guidelines for Deriving Site-specific Water Quality Criteria." [graphic] (3) Specific numerical acute aquatic life criteria are applied as 24-hour averages, and specific numerical chronic aquatic life criteria are applied as seven-day averages. (4) Ammonia and chlorine toxicity will be addressed by total toxicity biomonitoring requirements in subsection (d) of this section. (5) Numerical criteria for additional toxic materials will be adopted by the commission as appropriate. (6) Specific numerical aquatic life criteria for metals and metalloids in Table 1 apply to dissolved concentrations, which can be estimated by filtration of samples prior to analysis, or by converting from total recoverable measurements in accordance with procedures approved by the commission--such as in the latest revision of the EPA document, "Water Quality Assessment: A Screening Procedure for Toxic and Conventional Pollutants in Surface and Ground Water" (revised 1985) (EPA/600/6-85/002a and b). Specific numerical aquatic life criteria for nonmetallic substances in Table 1 apply to total recoverable concentrations. (7) Specific numerical acute criteria for toxic substances are applicable to all waters in the state except for small zones of initial dilution (ZIDs) at discharge points. Acute criteria may be exceeded within a ZID, but there shall be no lethality to aquatic organisms which move through a ZID, and the sizes of ZIDs are limited in accordance with sec.307.8. Specific numerical chronic criteria are applicable to all waters in the state with designated or existing aquatic life uses, except inside mixing zones and below critical low-flow conditions, in accordance with sec.307.8. (8) For toxic materials for which specific numerical criteria are not listed in Table 1, the following provisions shall be applied in accordance with the application procedures of specific numerical criteria, as established in this section and in sec.307.8. (A) Concentrations of non-persistent toxic materials shall not exceed concentrations which are chronically toxic (as determined from appropriate chronic toxicity data or calculated as 0.1 of LC50 values) to representative, sensitive aquatic organisms. (B) Concentrations of persistent toxic materials that do not bioaccumulate shall not exceed concentrations which are chronically toxic (as determined from appropriate chronic toxicity data or calculated as 0.05 of LC50 values) to representative, sensitive aquatic organisms. (C) Concentrations of toxic materials that bioaccumulate shall not exceed concentrations that are chronically toxic (as determined from appropriate chronic toxicity data or calculated as 0.01 of LC50 values) to representative, sensitive aquatic organisms. (9) For toxic substances where the relationship of toxicity is defined as a function of pH or hardness, numerical criteria are presented as an equation based on this relationship. Appropriate pH or hardness values for such criteria are listed for each basin in the following table (Table 2). The indicated pH and hardness values for each basin will be assumed unless appropriate site-specific hardness and pH values are determined from available data. [graphic] (10) Additional site-specific factors may indicate that the numerical criteria listed in Table 1 are inappropriate for a particular water body. These factors are applied as a site-specific standards modification in accordance with sec.307.2(d) of this title (relating to Modification of Standards). The application of a site-specific standard must not impair an existing, attainable, or designated use. Factors which may justify a temporary variance or site-specific standards amendment include the following: (A) ambient concentrations of specific toxics of concern in receiving waters, sediment, and/or indigenous biota; (B) persistence and degradation rate of specific toxic materials; (C) synergistic, additive, or antagonistic interactions of toxic substances with other toxic or nontoxic materials; (D) measurements of total effluent toxicity; (E) indigenous aquatic organisms, which may have different responses to particular toxic materials; (F) technological or economic limits of treatability for specific toxic materials; (G) bioavailability of specific toxic substances of concern; and (H) new information concerning the toxicity of a particular substance. (d) Specific numerical human health criteria. (1) Numerical human health criteria are established in Table 3. [graphic] (2) The following are categories of human health criteria: (A) concentration criteria in freshwaters to prevent contamination of drinking water, fish, and other aquatic life to ensure that they are safe for human consumption. These criteria apply to freshwaters which are designated or used for public drinking water supplies (column A in Table 3); (B) concentration criteria in freshwaters to prevent contamination of drinking water, fish, and other aquatic life to ensure that they are safe for human consumption. These criteria apply to freshwater which have sustainable fisheries, and which are not designated or used for public water supply (column B in Table 3); (C) concentration criteria in marine waters to prevent contamination of fish and other aquatic life to ensure that they are safe for human health consumption. These criteria apply to marine waters which have sustainable fisheries, (Column C in Table 3). (3) Specific assumptions and procedures are as follows (except where noted in Table 3). (A) Criteria were derived from information on toxicity in EPA's integrated risk information systems (IRIS) for both cancer potency slopes (ql*) and reference doses for non-carcinogens (Rfd) as of May 1, 1990. (B) For known or suspected carcinogens (Types A, B, B2, or C in IRIS), an incremental cancer risk level of 10-5 (1 in 100,000) was used to derive criteria. (C) Consumption rates of fish and shellfish were estimated as 10 grams per person per day for people living inland, and 15 grams per person per day for people living near the coast. (D) Drinking water consumption rates were estimated as 2.0 liters per person per day. (E) The ratio of average body weights was used to convert data on laboratory test animals to human scale. When the weight of test animals was not specified, the average weights were considered to be 0.35 kilograms for rats, 0.03 kilograms for mice, and 70 kilograms for humans. (F) Bioconcentration factors were obtained from the quantitative structure activity relationships database (EPA) and corrected to an average lipid concentration in fish tissue of 3.0%. (G) Numerical human health criteria were derived in accordance with the general procedures and calculations in the EPA guidance documents entitled "Technical Support Document for Water Quality-based Toxics Control" (revised 1990); and "Guidance Manual for Assessing Human Health Risks from Chemically Contaminated Fish and Shellfish" (1988). (H) If a calculated criterion to prevent contamination of drinking water and fish to ensure they are safe for human consumption (column A in Table 3) was greater than the applicable maximum contaminant level in 25 TAC Chapter 337 (relating to Drinking Water Standards), then the maximum contaminant level was used as the criterion. (I) If the concentration of a substance in fish tissue used for these calculations was greater than the applicable United States Food and Drug Administration action level for edible fish and shellfish tissue, then the acceptable concentration in fish tissue was lowered to the action level for calculation of criteria. (4) Human health criteria for additional toxic materials will be adopted by the commission as appropriate. (5) Specific human health concentration criteria for water are applicable to waters in the state which have sustainable fisheries, and/or designation or use as a public drinking water supply, except within mixing zones and below harmonic mean stream flows, in accordance with sec.307.8. The following waters are considered to have sustainable fisheries: (A) all designated segments listed in Appendix A of s307.10 of this title (relating to Appendices A-D), unless specifically exempted; (B) perennial streams and rivers with a stream order of three or greater, as defined in sec.307.3 of this title (relating to Definitions and Abbreviations); (C) lakes and reservoirs greater than or equal to 150 acre feet and/or 50 surface acres; (D) all bays, estuaries, and tidal rivers; (E) any other waters which potentially have sufficient fish production or fishing activity to create a significant long-term human consumption of fish. (6) Waters which are not considered to have a sustainable fishery, but which have an aquatic life use, will be considered to have an incidental fishery. Consumption rates assumed for incidental fishery waters are 1.0 grams per person per day for inland waters, and 1.5 grams per person per day for marine waters. Numerical criteria applicable to incidental fishery waters are therefore 10 times the criteria listed in columns B and C of Table 3. (7) Specific human health criteria are applied as long term average exposure criteria designed to protect populations over a life time (70 years). Attainment measures for human health are addressed in sec.307.9. (8) For toxic materials of concern for which specific human health criteria are not listed in Table 3, the commission may develop acceptable instream concentrations and discharge permit limits in accordance with the provisions of this section. (9) Numerical human health criteria are expressed as total recoverable concentrations for nonmetals and for mercury, and as dissolved concentrations for other metals and metalloids. (10) Additional site-specific factors may indicate that the numerical human health criteria listed in Table 3 are inappropriate for a particular water body. These factors are applied as a site-specific standards modification in accordance with sec.307.2(d). The application of site-specific criteria shall not impair an existing, attainable, or designated use or affect human health. Factors which may justify a temporary variance or site-specific standards amendment include the following: (A) ambient concentrations of specific toxics of concern in receiving waters, sediment, and/or indigenous biota; (B) persistence and degradation rate of specific toxic materials; (C) synergistic or antagonistic interactions of toxic substances with other toxic or nontoxic materials; (D) technological or economic limits of treatability for specific toxic materials; (E) bioavailability of specific toxic substances of concern; (F) local water chemistry and other site-specific conditions which may alter the bioconcentration, bioaccumulation or toxicity of specific toxic substances; (G) site-specific differences in the bioaccumulation responses of indigenous, edible aquatic organisms to specific toxic materials; (H) local differences in consumption patterns of fish and shellfish or drinking water, but only if any changes in assumed consumption rates will be protective of the local population that frequently consumes fish, shellfish, or drinking water from a particular water body. (I) new information concerning the toxicity of a particular substance. (e) Total toxicity. (1) Total (whole-effluent) toxicity of permitted discharges, as determined from biomonitoring of effluent samples at appropriate dilutions, will be sufficiently controlled to preclude acute total toxicity in all water in the state with the exception of small zones of initial dilution at discharge points (ZIDs). Acute total toxicity levels may be exceeded in a ZID, but there shall be no lethality to aquatic organisms which move through a ZID, and the sizes of ZIDs are limited in accordance with sec.307.8. Chronic total toxicity, as determined from biomonitoring of effluent samples, will be precluded in all water in the state with existing or designated aquatic life uses except in mixing zones and at flows less than critical low-flows, in accordance with sec.307.8. (2) General provisions for controlling total toxicity. (A) Dischargers which have significant potential for exerting toxicity in receiving waters will be required to conduct whole effluent toxicity biomonitoring at appropriate dilutions. (B) In addition to the other requirements of this section, the effluent of discharges to waters in the state shall not be acutely lethal to representative species of aquatic life, as demonstrated by effluent toxicity tests. Toxicity testing for this purpose shall be conducted on samples of 100% effluent, and the criterion for lethality shall be mortality of 50% or more of the test organisms after 24 hours of exposure. These observations for lethality may be conducted during either acute or chronic toxicity tests, which are described in the standards implementation procedures. (C) The latest revisions of the following EPA publications provide methods for appropriate biomonitoring procedures: "Methods for Measuring the Acute Toxicity of Effluents to Freshwater and Marine Organisms," "Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms," "Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms," and the "Technical Support Document for Water Quality-based Toxics Control." The use of other procedures approved by the commission is also acceptable. Toxicity tests must be conducted using representative, sensitive aquatic organisms as approved by the commission, and any such testing must adequately determine if toxicity standards are being attained. (D) If toxicity biomonitoring results indicate that a discharge is exceeding the restrictions on total toxicity in this section, then the permittee shall conduct a toxicity identification evaluation/toxicity reduction evaluation in accordance with permitting procedures of the commission. As a result of a toxicity reduction evaluation, additional effluent limits, including toxicity limits, may be established in the permit. (E) Discharge permit limits based on total toxicity may be established in consideration of other factors, but the application of such factors shall not result in impairment of an existing, attainable, or designated use. These factors are applied as a site-specific standards modification in accordance with sec.307.2(d). A demonstration that uses are protected may consist of additional effluent toxicity testing, instream monitoring requirements, and/or other necessary information as determined by the commission. Factors which may be considered in establishing discharge permit limits include the following: (i) ambient toxicity of receiving waters; (ii) persistence and degradation rate of principal toxic materials which are contributing to the total toxicity of the discharge; (iii) site-specific variables which may alter the impact of toxicity in the discharge; and (iv) indigenous aquatic organisms, which may have different levels of tolerance than the species used for total toxicity testing. sec.307.8. Application of Standards. (a) Low-flow conditions. (1) The following standards do not apply below seven-day, two-year low flows: (A) site-specific criteria, as defined in sec.307.7 of this title (relating to Site-specific Criteria and Uses) and listed for each classified segment in Appendix A of sec.307.10 of this title (relating to Appendices A-D); (B) numerical chronic criteria for toxic materials as established in sec.307.6 of this title (relating to Toxic Materials); (C) total chronic toxicity restrictions as established in sec.307.6 of this title; (D) maximum temperature differentials as established in sec.307.4(f) of this title (relating to General Criteria); (E) dissolved oxygen criteria for unclassified waters, as established in sec.307.4(h)(1); (F) dissolved oxygen criteria for intermittent streams, as established in sec.307.4(h)(2); and (G) fecal coliform criteria for unclassified waters, as established in sec.307.4(i) of this title (relating to General Criteria). (2) Numerical acute criteria for toxic materials and preclusion of total acute toxicity as established in sec.307.6 are applicable at all flow conditions. (3) Low-flow criteria in Appendix B of sec.307.10 are solely for the purpose of defining the flow conditions under which water quality standards apply to a given water body. Low-flow criteria listed in Appendix B of sec.307.10 are not for the purpose of regulating flows in water bodies in any manner or requiring that minimum flows be maintained in classified segments. (4) Low-flow criteria defined in this section and listed in Appendix B of sec.307. 10 apply only to river basin and coastal basin waters. They do not apply to bay or gulf waters or reservoirs or estuaries. (5) Seven-day, two-year low flows (7Q2) in Appendix B of sec.307.10 were calculated from historical United States Geological Survey (USGS) daily streamflow records where available. Where a USGS flow station was not located at a commission monitoring station, the low-flow condition was interpolated/ extrapolated from the nearest comparable USGS stations. The low-flow criterion was set at 0.1 of one cubic foot per second (ft3/s) when the calculated 7Q2 was equal to or less than 0.1 of one ft3/s. (6) Flow values will be periodically recomputed to reflect alterations in the hydrologic characteristics of a segment, including reservoir construction, climatological trends, and other phenomena. (7) The general criteria are applicable at all flow conditions except as specified in this section or in sec.307.4. (8) Specific human health criteria for concentrations in water to prevent contamination of fish and shellfish so as to ensure safety for human consumption, as established in s307. 6 do not apply at stream flows below the harmonic mean flow. (b) Mixing zones. A reasonable mixing zone will be allowed at the discharge point of permitted discharges into surface water in the state, in accordance with the following provisions. (1) The following portions of the standards do not apply within mixing zones: (A) site-specific criteria, as defined in sec.307.7 and listed for each classified segment in Appendix A of sec.307.10; (B) numerical chronic aquatic life criteria for toxic materials as established in sec.307.6; (C) total chronic toxicity restrictions as established in sec.307.6; (D) maximum temperature differentials as established in sec.307.4(f); (E) dissolved oxygen criteria for unclassified waters, as established in sec.307.4(h)(1); (F) dissolved oxygen criteria for intermittent streams, as established in sec.307. 4(h)(2); (G) fecal coliform criteria for unclassified waters, as established in sec.307.4(i); and (H) specific human health criteria for concentrations in water to prevent contamination of drinking water, fish, and shellfish so as to ensure safety for human consumption, as established in sec.307. 6. (2) Numerical acute aquatic life criteria for toxic materials and preclusion of total acute toxicity as established in sec.307.6 are applicable in mixing zones. Acute criteria and acute total toxicity levels may be exceeded in small zones of initial dilution (ZIDs) at discharge points, but there shall be no lethality to aquatic organisms which move through a ZID. ZIDs shall not exceed the following sizes: (A) 60 feet downstream and 20 feet upstream from a discharge point in a stream and river, and in addition, ZIDs in streams and rivers shall not encompass more than 25 of the volume of stream flow at or above seven-day, two-year low flow conditions; (B) a 25-foot radius in all directions (or equivalent volume or area for diffuser systems) from a discharge point in a lake or reservoir; (C) a 50-foot radius in all directions (or equivalent volume or area for diffuser systems) from a discharge point in a bay, tidal river, or estuary. (3) Provisions of the general criteria in sec.307.4 remain in effect in mixing zones unless specifically exempted in this section. (4) Water quality standards do not apply to treated effluents at the immediate point of discharge prior to any contact with either ambient waters or a dry streambed. However, effluent total toxicity requirements may be specified to preclude short-term lethality near discharge points, or to preclude acute and chronic instream toxicity. (5) Where a mixing zone is defined in a valid commission and/or national pollutant discharge elimination system (NPDES) permit, the mixing zone defined in the permit will apply. (6) Mixing zones shall not preclude passage of free-swimming or drifting aquatic organisms to the extent that aquatic life use is significantly affected, in accordance with guidelines specified in the standards implementation procedures. (7) Mixing zones will not overlap unless it can be demonstrated that no applicable standards will be violated in the area of overlap. Existing and designated uses will not be impaired by the combined impact of a series of contiguous mixing zones. (8) Mixing zones will not encompass an intake for a domestic drinking water supply. Thermal mixing zones are excepted from this provision unless elevated temperatures adversely affect drinking water treatment. (9) Mixing zones will be individually specified for all permitted domestic discharges with a permitted monthly average flow equal to or exceeding one million gallons per day and for all permitted industrial discharges to water in the state (excepting discharges which consist entirely of stormwater runoff). For domestic discharges with permitted monthly average flows less than one million gallons per day, a small mixing zone will be assumed in accordance with guidelines for mixing zone sizes specified in the standards implementation procedures document; and the commission may require specified mixing zones as appropriate. (10) The size of mixing zones for human health criteria may vary from the size of mixing zones for aquatic life criteria. (c) Minimum analytical levels. The specified definition of permit compliance for a specific toxic material will not be lower than established minimum analytical levels, unless that toxic material is of particular concern in the receiving waters, or unless an effluent specific method detection limit has been developed in accordance with 40 Code of Federal Regulation, Part 136. Minimum analytical levels are listed in the standards implementation procedures. sec.307.9. Determination of Standards Attainment. (a) Sampling locations. (1) Representative samples to determine standards attainment will be collected at locations approved by the commission. To ensure comparability with past sampling data, samples will be collected at established monitoring stations. Monitoring stations may be established or discontinued by the commission. (2) Field investigation samples may be collected at points not established or approved as standards attainment sampling locations at the discretion of the commission. (b) Collection and preservation of water samples. (1) To ensure that representative samples are collected and to minimize alterations prior to analysis, collection and preservation of attainment determination samples will be in accordance with procedures set forth in the most recently published edition of the book entitled "Standard Methods for the Examination of Water and Wastewater," the most recent version of the quality assurance program plan for the commission, or other reliable procedures acceptable to the commission. (2) Bacterial and temperature determinations will be conducted on samples or measurements taken within one foot of the surface. Depth collection procedures for chloride, sulfate, total dissolved solids, dissolved oxygen, and pH to determine standards attainment may vary depending on the water body being sampled. (A) Non-tidal flowing streams. In flowing streams, a profile should be obtained to determine if the water column is uniformly mixed. Samples shall be collected one foot below the water surface in streams exhibiting a vertically mixed water column. A depth-integrated sample shall be used to determine attainment in unmixed streams. Where depth is less than 1.5 feet, the collection depth shall be one-third of the water depth measured from the water surface. (B) Impoundments. Representative samples shall be collected from the entire water column in the absence of thermal stratification. Collection of representative samples shall be confined to the epilimnion when an impound- ment is thermally stratified. (C) Bays. A depth-integrated (vertical composite) sample shall be collected from the surface to the natural bottom. Dredged areas shall not be considered part of the natural bottom. (D) Tidal streams. A surface to bottom profile of DO, pH, conductivity, and temperature shall be obtained in all cases. Under conditions of density stratification, a composite sample collected from the mixed surface layer shall be used to determine standards attainment. (3) Numerical aquatic life criteria for toxic materials are applicable to water samples collected at any depth. Numerical human health criteria are applicable to the average concentration from the surface to the bottom. (c) Sample analysis. (1) Numerical values. Numerical values in the water quality standards shall be determined by analytical procedures recommended in the most recently published edition of the book entitled "Standard Methods for the Examination of Water and Wastewater," the quality assurance program plan for the commission, or other reliable methods acceptable to the commission. (2) Radioactivity. Measurements will be made on filtered samples to determine radioactivity associated with dissolved minerals. (3) Toxicity. Bioassay techniques will be selected as testing situations dictate but will generally be conducted using representative sensitive organisms in accordance with sec.307.6 of this title (relating to Toxic Materials). (4) Bacteria. Bacteriological levels shall be deter- mined by either multiple-tube fermentation or membrane filter techniques. (d) Sampling periodicity and evaluation. (1) Chloride, sulfate, total dissolved solids. Standards attainment determinations shall be based on the average of measurements taken on at least four different dates within one year. Results from all monitoring stations within the segment will be averaged to allow for reasonable parametric gradients. TDS determinations may be based on conductivity observations. (2) Radioactivity. The impact of radioactive discharges on the surface waters in Texas will be evaluated utilizing information developed by the sanitary engineering research laboratory at the University of Texas and presented in the June 30, 1960, report entitled, "Report on Radioactivity-Levels in Surface Waters-1958-1960." (3) Bacteria. Standards attainment for fecal coliform bacteria will be determined as described in sec.307.7(b)(1) of this title (relating to Site-specific Uses and Criteria). (4) Toxic materials. Specific numerical acute toxic criteria are applied as 24-hour averages, and specific numerical chronic toxic criteria are applied as seven-day averages. Human health criteria are applied as long term average exposure criteria designed to protect populations over a life time of 70 years. Standards attainment for human health criteria will be based on the average of a minimum of four samples collected over at least a one-year period. (5) Temperature and pH. Standards attainment will be evaluated for measurements or samples taken at a single point in time. (6) Dissolved oxygen. (A) Criteria for daily (24-hour) average concentrations will be compared to a time-weighted average of measurements taken over a 24-hour period. (B) Criteria for minimum concentrations will be compared to individual measurements taken at night (from sunset until two hours after sunrise). sec.307.10. Appendices A-D. The following appendices are integral components of this chapter: Texas Surface Water Quality Standards: Appendix A-Segment Standards, Appendix B-Low-Flow Criteria, Appendix C-Segment Descriptions, Appendix D-Site-specific Receiving Water Assessments. APPENDIX A. WATER USES AND NUMERICAL CRITERIA. The following table identifies the water uses and supporting numerical criteria for each of the state's classified segments. The table is ordered by basin with the segment number and segment name given for each classified segment. Dissolved oxygen criteria in Appendix A are listed as 24-hour means. Absolute minimums and seasonal criteria are listed in sec.307.7 (relating to Site-specific Uses and Criteria). Dissolved oxygen criteria of 2.0 mg/l in this appendix are allowed a daily variation down to 1.5 mg/l for no more than 8 hours per 24-hour period. Dissolved oxygen criteria of 1.0 mg/l in this appendix will be considered minimum values at any time. Fecal coliform criteria of 200 per 100 ml are applied as specified in sec.307. 7(b)(1)(A) (relating to Site-specific Uses and Criteria). Fecal coliform criteria of 2,000 per 100 ml are applied as specified in sec.307.7(b)(1)(B) (relating to Site-specific Uses and Criteria). Saltwater segments are those which are specifically titled as "tidal" in the segment name, plus all bays and estuaries. [graphics] APPENDIX C. SEGMENT DESCRIPTIONS. The following descriptions define the geographic extent of the state's classified segments. Boundaries of bay and estuary segments have not been precisely defined; however, the approximate boundaries are illustrated in the commission publication, Segment Identification Maps for Texas River and Coastal Basins. [graphics] This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 18, 1991. TRD-9107256 Jim Haley Director, Legal Division Texas Water Commission Effective date: July 10, 1991 Proposal publication date: December 25, 1990 For further information, please call: (512) 463-8069 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 27. Intermediate Care Facility for Mentally Retarded The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.27. 101-27.109, 27.301, 27.1501, 27.1503, 27.1505, 27.1507, 27.1509, 27.1511, 27. 1513, 27.1515, 27.1517, 27.1519, 27.1521, 27.1523, 27.1525, 27.1527, 27.1529, 27. 1531, 27.1533, 27.1535, 27.1537, 27.1539, 27.1541, 27.1543, 27.1545, 27.1547, 27. 1549, 27.1551, 27.1553, 27.1555, 27.1557, 27.1559, 27.1561, 27.1563, 27.1801-27. 1805, 27.2301-27.2303, 27.2403, 27.2405, 27.2501-27.2507, 27.2601-27.2604, 27. 2701-27.2704, 27.2801, 27.2901-27.2917, 27.3001-27.3011, 27.3101-27.3106, 27. 3201-27.3221, 27.3301-27.3303, 27.3401-27.3406, 27.3501, 27.3502, 27.3601-27. 3609, 27.3701-27.3704, 27.3801-27.3804, 27.3901-27.3904, 27.4001-27.4003, 27. 4101, 27.4102, 27.4201-27.4203, 27.4301, 27.4302, 27.4401-27.4403, 27.4501-27. 4506, 27.4601-27.4608, 27.4701-27.4704, 27.4801-27.4804, and 27.9801. DHS adopts these repeals without changes to the proposed text as published in the February 8, 1991, issue of the Texas Register (16 TexReg 714). DHS also adopts new sec.sec.27.101, 27.103, 27.105, 27.201, 27.205, 27.207, 27. 209, 27.211, 27.213, 27.215, 27.217, 27.301, 27.303, 27.305, 27.307, 27.309, 27. 401, 27.403, 27.405, 27.407, 27.409, 27.411, 27.413, 27.415, 27.417, 27.419, 27. 421, 27.501, 27.503, 27.505, 27.507, 27.509, 27.511, 27.513, 27.515, 27.517, 27. 519, 27.521, 27.523, 27.525, 27.527, 27.529, 27.531, 27,601, 27.603, 27.605, 27. 607, 27.701, 27.703, 27.705, 27.707, 27.709, 27.711, 27.713, 27.715, 27.717, 27. 801, 27.803, 27.805, 27.807, 27.809, 27.811, 27.813, 27.815, 27.817, 27.819, 27. 821, 27.823, 27.825, 27.827, 27.829, 27.831, 27.833, 27.835, 27.837, 27.839, 27. 841, 27.843, 27.845, 27.847, 27.849, 27.851, 27.853, 27.855, 27.857, 27.859, 27. 861, and 27.863. New sec.sec.27.101, 27.103, 27.201, 27.205, 27.207, 27.217, 27. 301, 27.303, 27.305, 27.307, 27.411, 27.413, 27.513, 27.517, 27.519, 27.529, 27, 601, 27.603, 27.605, 27.607, 27.707, and 27.831 are adopted with changes to the proposed text as published in the February 8, 1991, issue of the Texas Register (16 TexReg 714). New sec. s27.105, 27.209, 27.211, 27.213, 27.215, 27.309, 27.401, 27.403, 27.405, 27.407, 27.409, 27.415, 27.417, 27.419, 27.421, 27.501, 27.503, 27.505, 27.507, 27.509, 27.511, 27.515, 27.521, 27.523, 27.525, 27.527, 27.531, 27.701, 27.703, 27.705, 27.709, 27.711, 27.713, 27.715, 27.717, 27.801, 27.803, 27.805, 27.807, 27.809, 27.811, 27.813, 27.815, 27.817, 27.819, 27.821, 27.823, 27.825, 27.827, 27.829, 27.833, 27.835, 27.837, 27.839, 27.841, 27.843, 27.845, 27.847, 27.849, 27.851, 27.853, 27.855, 27.857, 27.859, 27.861, and 27.863 are adopted without changes and will not be republished. The purpose for the repeals and new sections for the ICF-MR program is to: eliminate current standards for provider participation in the ICF-MR program and to adopt new standards concerning Conditions of Participation for Intermediate Care Facilities for the Mentally Retarded which were adopted June 3, 1988, in the Federal Register (Vol. 53, No. 107); and develop a set of standards for provider participation in the ICF-MR program which simplifies program requirements, results in material which is suitable to a provider manual used by all interested parties, and ensures continued provision of quality services to eligible individuals. The new chapter incorporates the following federal and state rules and regulations that DHS has determined are critical to service delivery: the Conditions of Participation for Intermediate Care Facilities for the Mentally Retarded, Part 483, Subpart D, sec.sec.483.400 through 483.480. Joint Agency Policy Interpretations (JAPI's) for the state standards for participation in the ICF/MR program, as follows. Out-patient services/23-hour observation, of August 18, 1986. Integration of Educational Services and ICF/MR Services, of October 6, 1986. Definition of "trust fund," "witness," and "receipt," of April 7, 1987. Vendor Payments for ICF/MR Recipients Who Are Away from the Facility for Special Activities, of September 30, 1985. Use of Individual Medication Containers by ICF/MR Residents Who Are Self-medicating, of March 27, 1984, as required by the Texas Department of Health. The Texas Department of Health memorandum concerning the technique of venipuncture insertion of the nasogastric tube and gastrostomy tube by licensed vocational nurses, of July 15, 1983. Current state standards for participation governing provisions required by ICF/MR facilities for contracting, vendor payments, reimbursement, client eligibility and review, trust funds, general service delivery, health care, and recordkeeping systems which were either not affected by the June 3, 1988, federal regulations or which DHS deems as necessary to retain. Current state standards which exceed federal requirements but are necessary to ensure continued compliance with existing state regulations and continued delivery of quality services to individuals eligible for Medicaid assistance. During the comment period, DHS received comments from the Texas Association of Private Residential Resources, the Texas Health Care Association, the State Committee of Examiners for Speech-Language Pathology and Audiology, the Texas Department of Mental Health and Mental Retardation, the State Board of Vocational Nurse Examiners, three private providers, and one parent of an individual in an ICF-MR. Comment-Three commenters expressed support for the revised and reformat-ted body of standards. Response-DHS appreciates these comments. Comment-One commenter noted that the federal regulations (adopted by reference in these rules) specify that professional program staff must be licensed, certified, or registered, as applicable in the state in which he or she is practicing. The commenter pointed out that Texas requires that individ-uals practicing as Speech-Language Pathologists and/or audiologists be licensed. Response-DHS acknowledges this comment. Since this comment relates to the federal regulations and requests no specific revision to state regulations, no changes have been made. Comment-One commenter disagreed with DHS's practice of extending a vendor hold to all related parties when DHS is denied access to pertinent records. Response-DHS believes this provision is needed to ensure access to records. Vendor hold is preferred to contract termination in cases in which providers are reluctant to permit access. Comment-One commenter disagreed with DHS's treatment of depreciation expenses and its application of the Deficit Reduction Act of 1984 (DEFRA) adjustments. The commenter recommended that DHS use a uniform fair rental fixed capital asset reimbursement methodology. Response-The current reimbursement methodology does not penalize providers with lease agreements prior to July 18, 1984, because a uniform statewide rate by level of care is paid. DHS is currently considering implementing a use fee provision in the ICF-MR reimbursement methodology. Comment-One commenter recommended that expenses for vocational training and expenses for medical services not provided to Medicaid recipients be made allowable costs. Response-Federal regulations found at 42 Code of Federal Regulations sec.441. 13(b) expressly forbid the use of Medicaid funds for vocational services. However, this federal section is undergoing revision. DHS will monitor these regulations and make appropriate changes as needed. Medicaid can only reimburse providers for medical services that are provided to Medicaid clients. Comment-One commenter disagreed with DHS's use of line item caps in the administration and facility cost centers. The commenter stated that the requirements of the Deficit Reduction Act of 1984 (DEFRA) already capped costs in this area and recommended that sec.27.411(a)(2)(c) be deleted. Response-DHS believes the 90th percentile caps are needed to control extreme costs. DEFRA limits only apply to those facilities which have been sold since July 18, 1984, and occupancy adjustments only apply to those facilities with low occupancy. Comment-One commenter disagreed with the use of the term "incentive factor" at sec.27.413(c)(2). The commenter disagreed that the incentive factor should be flexible and recommended the deletion of this section. Response-The lattitude in the range of the incentive factor results from requests by the DHS Board. DHS believes that "incentive factor" is an appro-priate term for the 1.07 figure. Comment-One commenter objected to the regulations found at sec.27.519 concerning therapeutic visits. The commenter recommended that under some circumstances, up to five days should be allowed for a therapeutic visit and that extended therapeutic visit days that are unused in one year should be available for use the following year. The commenter also recommended changes to the language concerning bed hold charges. Response-DHS disagrees with this comment. It should be noted that the provisions concerning therapeutic leave are governed by a State Medicaid Plan amendment which was approved by the Health Care Financing Administration. The purpose of the regulations concerning therapeutic visits is to set a reasonable length of time for which Medicaid payments will be made for an unoccupied bed. The current regulations provide for an unlimited number of three-day visits and one extended visit per year. Additional regulations found in sec.27.519 address voluntary bed hold agreements. These agreements may be made when a client wishes to be gone longer than a therapeutic leave period. DHS believes that the regulations in this section represent a reasonable balance between the individual's visitation or vacation plans and a responsible use of public funds. Comment-One commenter recommended that in sec.27.529(b), the term "psycho-logical review" be changed to "behavioral" in order to be consistent with federal regulations. Response-Federal regulations found at 42 Code of Federal Regulations sec.456. 370 expressly require a preadmission psychological evaluation. Accord-ingly, DHS has made no change to this section. Comment-One commenter requested that the language in sec.27.529(c) be clarified regarding the physician's certification of the need for ICF-MR services. Response-DHS agrees with this comment and has reworded this section. Comment-One commenter recommended that because of safety concerns razors and razor blades be deleted from the list of items that the facility is required to furnish clients. Response-DHS disagrees with this comment since it appears to assume that all clients are not capable of shaving themselves with a razor. There are clients in ICFs-MR who can safely shave with a razor or who can be taught to do so. Decisions regarding a client's shaving needs should be made based on an individual basis. Comment-One commenter recommended that "cosmetic haircuts" be added to the list of items that can be paid for with the client's personal funds. Response-Professional barber services are an allowable charge to a client's personal funds, as described at sec.27.603(c)(13). No change has been made to this section. Comment-One commenter recommended that a factor be included in the reim-bursement methodology that would allow Level V and Level VI clients to choose some of their own recreational activities that require staff transport and supervision. Response-The regulations regarding the use of personal funds stipulate that independently chosen activities that are away from the facility and that are provided without on-duty staff may be charged to the client's personal funds. The effect of the regulations is that activities which require the presence of facility staff are the financial responsibility of the facility. Costs incurred by the facility in providing recreational activities are an allowable cost and are reimbursed in the Medicaid vendor rate. In regard to the choice of activities, clients should be involved in selecting activities regardless of how they are funded. DHS is making no change to this section at this time. However, proposed federal regulations may shortly require revision of this section, and this comment will be reconsidered at that time. Comment-Three commenters recommended against the use of a cancelled check as an acceptable receipt for the expenditure of client funds. Response-DHS agrees with the comment and has changed sec.27.605(a)(1) accordingly. Comment-One commenter recommended that DHS use a less complicated system of accounting for expenditures by clients in Level of Care I facilities. Response-The accounting requirements have not fundamentally changed from the previous requirements. DHS directs the commenter to sec.27.605(d)(5)(A) which stipulates that a written receipt is not required for amounts withdrawn by the client. No changes have been made to this section. Comment-One commenter stated that the requirements at sec.27.707(b)(4) concerning the convening of the interdisciplinary team after a temporary release from the facility unduly burden the team and discourage weekend home visits. Response-The team is not required to convene following a therapeutic visit (up to three days). The definition of temporary release does not include therapeutic visits that are within the allowed length of time. Comment-One commenter recommended that sec.27.707(c)(3) be amended to allow for the use of a psychiatrist and that the term "human rights committee" be changed to "specially constituted committee." Response-DHS agrees with this comment and has reworded the section. Comment-One commenter supported the requirements concerning a licensed vocational nurse's (LVN's) practice of the techniques of venipuncture or insertion of the naso-gastric or gastronomy tube and recommended that these duties be described in the job description. Response-DHS concurs with this comment but does not agree that the regulation need to extend to the LVN's job description. Comment-One commenter recommended changes to the language at sec.27.807 to reflect that choice between dental providers may be limited in rural areas. Response-DHS recognizes that this may be the case, but the regulation accommodates this fact in that it only requires freedom of choice among participating providers. Comment-Two commenters disagreed with the lack of coverage in the ICF-MR Dental program for periodontal surgery. Response-Covered services for the ICF-MR dental program are defined by DHS through DHS's insuring agent, the National Heritage Insurance Company. DHS will consider this comment and will investigate the possibility of extending coverage for such treatment. It should be pointed out that necessary dental treatment that is not covered by the ICF-MR dental program is the responsibil-ity of the ICF-MR and the costs for such treatment can be reported on the facility's cost report. In addition to changes described in the comments/response section, DHS has made a number of miscellaneous editorial clarifications resulting from DHS staff review of the proposed rules. Subchapter B. Criteria for ICF-MR Care 40 TAC sec.sec.27.101-27.109 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991 TRD-9107158 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter A. General Requirements 40 TAC sec.sec.27.101, 27.103, 27.105 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.101. Service Qualifications for Intermediate Care Facilities for the Mentally Retarded (ICFs-MR). ICF-MR services consist of services in an institution for individuals with mental retardation or a related condition when: (1) the primary purpose of the institution is to provide health and rehabilitative services for individuals with mental retardation or persons with related conditions, as defined in sec.27.503 of this title (relating to Definitions for Level-of-care Criteria); (2) the institution meets all the standards and requirements for an ICF-MR specified in this chapter; and (3) the Medicaid client for whom payment is requested is receiving active treatment as specified in 42 Code of Federal Regulations sec.435.1009. sec.27.103. Compliance with Federal and State Standards for Participation. (a) The Texas Department of Human Services (DHS) adopts by reference federal regulations governing conditions of participation for intermediate care facilities for the mentally retarded (ICFs-MR) as specified in Federal Register Document 88-12250, Volume 53, Number 107, Pages 20488-20505, which constitutes 42 Code of Federal Regulations (CFR), Part 483, Subpart D, sec.sec.483.400-483.480, as published in the June 3, 1988, issue of the Federal Register with a mandated effective date of October 3, 1988. (b) To participate in the Title XIX Texas Medical Assistance Program, each ICF-MR must comply with all applicable federal and state standards for participation, including the federal standards for participation, including the federal standards specified in subsection (a) of this section and including requirements set forth in this chapter that are additional to or more restrictive than the federal standards specified in subsection (a) of this section. (c) In addition to complying with the requirements of this chapter, the facility must meet all applicable provisions of other United States Department of Health and Human Services regulations, including, but not limited to, those pertaining to nondiscrimination on the basis of race, color, or national origin in 45 CFR, Part 80, nondiscrimination on the basis of handicap in 45 CFR, Part 84, nondiscrimination on the basis of age in 45 CFR, Part 91, protection of human subjects of research in 45 CFR, Part 46, and fraud and abuse in 42 CFR, Part 455. Although these regulations are not considered federal conditions for participation in themselves, their violation may result in the termination or suspension of, or the refusal to grant or continue, federal financial assistance. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107188 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter B. Contracting Requirements 40 TAC sec.sec.27.201, 27.205, 27.207. 27.209, 27.211, 27.213, 27. 215, 27.217 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.201. Participation Requirements. (a) To participate in the Title XIX Texas Medical Assistance Program and receive state and federal reimbursements for services to eligible in-dividuals, intermediate care facilities for the mentally retarded (ICFs-MR) must satisfy the following conditions. (1) The facility must have an approved application on file with the ICF-MR section of the Texas Department of Mental Health and Mental Retardation (TDMHMR) to participate as an ICF-MR in the Title XIX Texas Medical Assistance Program, as specified in sec.27.203 of this title (relating to New Facility Applications). (2) The Texas Department of Health (TDH) must have furnished the Texas Department of Human Services (DHS) with a valid certification for the facility. (3) The facility's owner or authorized representative must have a written contract with DHS to provide services to eligible individuals. (4) When applicable, the facility must be currently licensed under TDH's minimum licensing standards for facilities serving the mentally retarded, as specified in 25 TAC sec.sec.145.211-145.218 and sec.sec.145.231-145.244. (5) The facility must have specified in its application to TDMHMR the level of care the facility offers, as provided in sec.sec.27.509, 27.511, 27.513, and sec.27.515 of this title (relating to ICF-MR I Level-of-care Criteria, ICF-MRV Level-of-care Criteria, ICF-MR VI Level-of-care Criteria, and ICF-MR VIII Level-of-care Criteria). (6) Each individual for whom the facility requests vendor payment must have a valid level of care that matches the level of care of the facility and must be financially eligible for Medicaid. (b) Each facility must comply with federal and state standards for participation on an ongoing basis as stated in its contract. To continue participating, facilities must immediately correct deficiencies affecting the health and safety of clients. Failure to correct deficiencies under the contract or under federal or state standards within specified time periods is cause for immediate suspension of vendor payments and may result in contract suspension, cancellation, or other actions including, but not limited to: (1) requesting payment of valid audit exceptions; and (2) requiring contract compliance by a specified date. (c) No participating facility may engage in any of the following restrictive practices: (1) requiring an individual to make a will designating the facility as alegatee or devisee; (2) requiring an individual to assign life insurance to the facility; (3) requiring an individual to transfer property to the facility; (4) requiring an individual to pay a lump-sum entrance fee or make any other payment or concession to the facility beyond DHS's recognized rates for room, board, and care; (5) restricting an individual, his guardian, or any other responsible party in the use of the individual's personal needs allowance; (6) prohibiting an individual from leaving the facility at will except as provided by state law; (7) preventing an individual from applying for Medicaid for a specified period of time; (8) withholding services from an individual solely because the individual has refused to accept a particular dosage of medication or a particular method of administering it; (9) denying appropriate care to an individual because of his race, religion, color, national origin, sex, age, handicap, marital status, or source of payment; and (10) preventing a terminally ill adult from exercising his right to reject life-sustaining procedures. sec.27.205. Disclosure of Information about the Provider. (a) Each intermediate care facility for the mentally retarded (ICF-MR) must supply the Texas Department of Mental Health and Mental Retardation (TDMHMR) with information regarding the facility's status as a legal entity and its ownership, governance, management, and business transactions, as required in subsections (b)-(g) of this section. Failure to provide this information renders the provider ineligible to contract with the Texas Department of Human Services (DHS) to provide services, as specified in sec.69.261 of this title (relating to Application for Enrollment). (b) Each facility must supply TDMHMR with the following information about its ownership and control: (1) the name of each person who directly or indirectly owns an interest of 5.0% or more in the facility; (2) the name of each owner of all or part of any property, assets, mortgage, deed of trust, note, or other obligation secured by the facility; (3) the name of each officer and director, if the facility is organized as a corporation; (4) the name of each partner, if the facility is organized as a partnership, and a copy of the partnership agreement, excluding the dollar amounts of the partners' capital contributions; and (5) the name of any and every director, officer, agent, or managing employee who has been convicted of a criminal offense related to his involvement in programs established or operated under Titles XVIII, XIX, or XX of the Social Security Act. DHS may refuse to enter into or may cancel any agreement with a provider that fails to disclose the information required in this paragraph, or that has a director, officer, agent, or managing employee who has been convicted of an offense specified in this paragraph, as provided in sec.69.261 of this title (relating to Application for Enrollment). (c) If the provider is a for-profit corporation, the provider must supply TDMHMR with a copy of the following material: (1) the certificate of incorporation, if the provider is incorporated in Texas; (2) the certificate of authority to do business in Texas, if the provider is incorporated out of state; (3) a resolution from the board of directors authorizing a specific person or officer to sign contracts between DHS and the corporation; (4) the management contract for the facility, if applicable; (5) a statement by the president and secretary of the corporation that no stockholder owns, directly or beneficially, 5.0% or more of the corporate stock, if applicable; and (6) a copy of the certificate of good standing issued by the state comptroller's office. (d) If the provider is a not-for-profit corporation, the provider must supply TDMHMR with a copy of the following material: (1) the certificate of incorporation, if the provider is incorporated in Texas; (2) the certificate of authority to do business in Texas if the provider is incorporated out of state; (3) a resolution from the board of directors authorizing a specific person or officer to sign contracts between DHS and the corporation; (4) the management contract for the facility, if applicable; and (5) an exemption certificate from the state comptroller's office stating no tax due. (e) Providers other than those described in subsections (c) and (d) of this section must supply TDMHMR with a copy of the following material: (1) the charter or other legal basis for operating as a public entity; (2) the management contract for the facility, if applicable; (3) the organization's bylaws, if applicable; and (4) all other information that TDMHMR requires to determine the legal status of the entity that owns the facility. (f) Within 35 days after the date of a written request from TDMHMR, providers must supply TDMHMR with complete information about the following business transactions and parties to business transactions: (1) the ownership of a subcontractor with whom the facility has conducted business transactions totaling more than $25,000 during the previous 12 months; and (2) all business transactions during the previous five years between the facility and all subcontractors or wholly owned suppliers. (g) Providers must promptly report to TDMHMR all changes affecting the information and reporting requirements specified in subsections (a)-(f) of this section. Failure to report these changes may result in contract termination, suspension, or other actions by DHS including, but not limited to, withholding of vendor funds. When DHS withholds vendor funds for failure to report information required in this section, the department denies payment throughout the period beginning on the day after the date the information was due and ending on the day before the date that TDMHMR receives the required information. sec.27.207. Duration of the Contract. The Texas Department of Human Services (DHS) enters only into time-limited contracts with intermediate care facilities for the mentally retarded (ICFs-MR). The term of DHS contracts with ICFs-MR cannot extend beyond one year. Five types of contracts are permitted: (1) a 12-month agreement if there are no deficiencies; (2) an agreement for the length of time required to correct deficiencies, plus 60 days, but not exceeding 12 months; (3) a 12-month agreement subject to automatic cancellation 60 days after the final scheduled date for correction of deficiencies, unless the Texas Department of Health (TDH) determines and notifies DHS that all required corrections have been satisfactorily completed; (4) a probationary contract of 30 days; and (5) a contract for a specified period, as determined by TDH. sec.27.217. Sanction Provisions for Violations of Title XIX ICF-MR Contractual Agreements. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Direct or immediate adverse effect-A situation in which a significant, unfavorable risk or source of danger exists. Direct or immediate adverse effect does not include remote or minimal risk or effect. (2) Immediate jeopardy-A situation in which a facility's noncompliance with one or more standards for participation poses a serious threat to the health and safety of an individual(s) residing in the facility, making immediate corrective action necessary. (3) New admission-The admission of an individual who has never been previously admitted to the facility or who, if previously admitted, was discharged or voluntarily left the facility. New admissions do not include: (A) individuals who lived in the facility before the effective date of denial of payment for new admissions, even if the individuals become eligible for Medicaid after that date; and (B) individuals who, after a temporary absence from the facility for a therapeutic visit or extended therapeutic visit as described in sec.27.519 of this title (relating to Payment for Absences from the Facility), are readmitted to beds reserved for them. (b) The Texas Department of Human Services (DHS) takes the following action(s) when a Title XIX contracted facility fails to meet the requirements specified in this chapter, as cited in writing by the Texas Department of Health (TDH), which is the state survey agency. (1) When TDH notifies DHS in writing that TDH is terminating the facility's certification because cited deficiencies pose immediate jeopardy to the health and safety of the clients, DHS: (A) does not offer a compliance period; (B) imposes an immediate vendor hold on state Medicaid payments to the facility; and (C) cancels the facility's contract. DHS normally makes no payment for services provided by the facility after the effective date of TDH's termination of the facility's certification. However, in certain instances, DHS may continue payments for as many as 30 days after the date that DHS cancels or fails to renew the provider contract. Specifically, DHS may continue payments if TDH notifies DHS in writing that: (i) the facility is making reasonable efforts to transfer its clients to another facility or into alternate care, and (ii) additional time is needed to effect an orderly transfer of the facility's clients. (2) When TDH recommends a vendor hold on state Medicaid payments to the facility and notifies DHS in writing that cited deficiencies do not pose immediate jeopardy, but do constitute health or safety hazards that have a direct or immediate adverse effect on the facility's residents' health, safety, security, or training as outlined in their individualized plans of care, DHS takes the following actions. (A) DHS imposes an immediate vendor hold on state Medicaid payments to the facility. (B) If the cited deficiencies are not corrected within 60 days from the date that TDH finds the facility in noncompliance after an on-site visit, DHS cancels the facility's contract for breach of contract. If the facility appeals an adverse action by DHS and the adverse action is sustained by a contract appeals committee or judicial proceeding, the effective date of the contract cancellation is the date specified in the notice of contract cancellation. Except as otherwise provided in this paragraph, DHS makes no payment for services provided by the facility after the effective date of the facility's contract termination. In certain instances, DHS may continue payments for as many as 30 days after the date that DHS terminates or fails to renew the provider contract. Specifically, DHS may continue payments if TDH notifies DHS in writing that: (i) the facility is making reasonable efforts to transfer its residents to another facility or into alternate care; and (ii) additional time is needed to effect an orderly transfer of the facility's residents. (C) When DHS cancels a facility's contract as specified in this paragraph, the department may enter into a probationary contract with the facility, as specified in sec.27.207(a)(4) of this title (relating to Duration of the Contract). DHS may enter into this contract only after TDH conducts a non-site, follow-up visit and notifies DHS that: (i) all previously cited deficiencies have been corrected; (ii) no other deficiencies have been found that pose immediate jeopardy to the clients; and (iii) no other deficiencies have been found that constitute health or safety hazards or that relate to the provision of training as outlined in the clients' individualized plans of care. (D) After the probationary contract period, DHS may enter into a nonprobationary contract as specified in sec.27.207(a)(1), (2), (3), or (5) of this title (relating to Duration of the Contract). DHS may enter into this contract only after TDH conducts an on-site, follow-up visit and notifies DHS that: (i) no deficiencies have been found that pose immediate jeopardy to the clients; and (ii) no deficiencies have been found that constitute health or safety hazards or that relate to the provision of training as outlined in the clients' individualized plans of care. (3) If a facility is placed on vendor hold three times in any 18-month period for deficiencies in client care, as specified in subsection (b)(1) and(2) of this section, DHS takes the following actions. (A) DHS cancels the facility's contract for breach of contract. If the facility appeals an adverse action by DHS and the adverse action is sustained by a contract appeals committee or judicial proceeding, the effective date of the contract cancellation is the date specified in the notice of contract cancellation. Except as otherwise provided in this paragraph, DHS makes no payment for services provided by the facility after the effective date of the facility's contract termination. In certain instances, DHS may continue payments for as many as 30 days after the date that DHS terminates or fails to renew the provider contract. Specifically, DHS may continue payments if TDH notifies DHS in writing that: (i) the facility is making reasonable efforts to transfer its clients to another facility or into alternate care, and (ii) additional time is needed to effect an orderly transfer of the clients; (B) When DHS cancels a facility's contract as specified in this paragraph, the department may enter into a probationary contract with the facility, as specified in sec.27.207(a)(4) of this title (relating to Duration of the Contract). DHS may enter into this contract only after TDH conducts a non-site, follow-up visit and notifies DHS that: (i) all previously cited deficiencies have been corrected; (ii) no other deficiencies have been found that pose immediate jeopardy to the clients; and (iii) no other deficiencies have been found that constitute health or safety hazards or that relate to the provision of training as outlined in the clients'individualized plans of care. (C) After the probationary contract period, DHS may enter into a nonprobationary contract as specified in sec.27.207(a)(1), (2), (3), or (5) ofthis title (relating to Duration of the Contract). DHS may enter into this contract only after TDH conducts an on-site, follow-up visit and notifies DHS that: (i) no deficiencies have been found that pose immediate jeopardy to the clients; and (ii) no deficiencies have been found that constitute health or safety hazards or that relate to the provision of training as outlined in the clients' individualized plans of care. (c) DHS takes the following action(s) when a Title XIX contracted facility fails to meet applicable agency rules or contractual provisions that are not specified in this chapter, as cited in writing by DHS or TDH. (1) TDH citations result in the following actions. (A) At its discretion, TDH may grant the facility a compliance period of no more than 30 days to correct cited deficiencies. If TDH finds on a follow-up visit that the cited deficiencies have not been corrected, but the facility has made substantial progress towards correcting them, TDH may extend the compliance period for a maximum of 15 days. No more than one compliance extension can be granted. (B) If the cited deficiencies are not corrected within the compliance period, DHS imposes a vendor hold on state Medicaid payments to the facility. (C) If the cited deficiencies are not corrected within 60 days after the date the facility is placed on vendor hold, DHS cancels the facility's contract for breach of contract. If the facility appeals an adverse action by DHS and the adverse action is sustained by a contract appeals committee or judicial proceeding, the effective date of the contract cancellation is the date specified in the notice of contract cancellation. Except as otherwise provided in this paragraph, DHS makes no payment for services provided by the facility after the effective date of the facility's contract termination. In certain instances, DHS may continue payments for as many as 30 days from the date that DHS terminates or fails to renew the provider contract. Specifically, DHS may continue payments if TDH notifies DHS in writing or DHS determines that: (i) the facility is making reasonable efforts to transfer clients to another facility or into alternate care; and (ii) additional time is needed to effect an orderly transfer of the clients. (2) DHS administrative citations result in the following actions. (A) At its discretion, DHS may grant the facility a compliance period of no more than 30 days to correct deficiencies cited by DHS. If DHS determines during the compliance period that the cited deficiencies have not been corrected, but the facility has made substantial progress towards correcting them, DHS may extend the compliance period for a maximum of 15 days. No more than one compliance extension can be granted. (B) If the deficiencies cited by DHS are not corrected within the compliance period, DHS imposes a vendor hold on state Medicaid payments to the facility. (C) If the cited deficiencies are not corrected within 60 days after the date the facility is placed on vendor hold, DHS cancels the facility's contract for breach of contract. If the facility appeals an adverse action by DHS and the adverse action is sustained by a contract appeals committee or judicial proceeding, the effective date of the contract cancellation is the date specified in the notice of contract cancellation. Except as otherwise provided in this paragraph, DHS makes no payment for services provided by the facility after the effective date of the facility's contract termination. In certain instances, DHS may continue payments for as many as 30 days from the date that DHS terminates or fails to renew the provider contract. Specifically, DHS may continue payments if TDH notifies DHS in writing or DHS determines that: (i) the facility is making reasonable efforts to transfer clients to another facility or into alternate care; and (ii) additional time is needed to effect an orderly transfer of the clients. (d) The facility must not charge Title XIX clients, their families, guardians, or other responsible parties to recoup vendor payments not received because of the imposition of sanctions against the facility. The facility is entitled to collect only the applied income established in the individual's payment plan. (e) If a facility charges a Title XIX client, any member of his family, or any other party in order to supplement DHS payments or to secure payment for services that DHS disallows, DHS is entitled to cancel the facility's existing contract or to deny its application to participate in the Title XIX Texas Medical Assistance program, unless the department's policies and regulations explicitly permit the charge(s) in question. (f) State statutes and Title XIX ICF-MR contracts secure providers' rights to appeal when DHS proposes to suspend their vendor payments or cancel their contracts. An aggrieved provider must send a written request for an appeals hearing within 15 calendar days after receiving a DHS letter that notifies the provider of a proposed adverse action. The facility must send the request for a hearing to the Associate Commissioner for Legal Services, Texas Department of Human Services, P. O. Box 149030, Austin, Texas 78714-9030. Appeals hearings are held in Austin. (g) No provider may make an appeal to DHS's administrative law judge unless the department's interpretations of the contract or the ICF-MR standards for participation have caused an adverse action for the provider. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107189 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter D. Federal Regulations 40 TAC sec.27.301 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107159 Nancy Murphy Liaison, Policy and Document Support Section Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter C. Vendor Payments 40 TAC sec.sec.27.301, 27.303, 27.305, 27.307, 27.309 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.301. Eligibility Period for Vendor Payments. (a) The Texas Department of Human Services (DHS) makes vendor payments only for periods of time in which all of the following conditions are met: (1) the Texas Department of Mental Health and Mental Retardation (TDMHMR) has approved the facility's application to participate in the Title XIX Texas Medical Assistance Program; (2) the Texas Department of Health (TDH) has licensed, if applicable, and certified the facility for operation; (3) the facility has a signed contract with DHS to provide services to eligible Title XIX recipients; and (4) TDH has determined that the facility is in compliance with federal and state standards for participation. (b) TDH determines the effective date of eligibility for participation. sec.27.303. Applied Income and the Daily Reimbursement Rate. (a) DHS calculates the daily reimbursement rate for each Title XIX client by: (1) multiplying the established daily rate for the individual's level of care (LOC) times the number of days in the month; (2) subtracting the individual's applied income for the month; and (3) dividing the result by the number of days in the month. (b) DHS does not reimburse a facility for an individual's care unless the individual has a valid LOC that matches the LOC classification of the facility or of the distinct part of the facility in which the individual resides. (c) The facility is entitled to collect from the individual only the monthly amount of applied income specified on the individual's payment plan. (d) When an individual's payment plan requires correction or revision, the facility contacts DHS to request a plan change. The facility must not collect an increased amount of applied income from the individual unless and until DHS changes the payment plan. (e) If an individual does not have a payment plan, the facility contacts DHS to determine how much applied income the individual must pay. If DHS subsequently determines that the individual's correct payment amount is lower than initially specified, the facility must immediately return the amount overpaid and notify DHS of the refund. (f) No facility may collect a sum of Medicaid and applied income payments that exceeds the vendor rate. A violation of this requirement is also a violation of Public Law 95-142, which makes solicitation of supplementation a felony punishable by a fine of up to $25,000 or imprisonment for up to five years or both. DHS regional staff must report all apparent violations of this requirement. If an investigation verifies an apparent violation, DHS is entitled to withhold vendor payments, terminate or suspend the contract, take other contract actions, and/or refer the matter to a court of law. sec.27.305. Special Provisions Regarding Reduced, Denied, and Incorrect Vendor Payments. (a) If the Texas Department of Human Services (DHS) inadvertently makes vendor payments for services performed during a period in which a facility is not participating in the Title XIX Texas Medical Assistance Program, the facility must refund the inadvertent payments to DHS. (b) Providers of Title XIX services must not charge or penalize Medicaid clients, their family members, or their representatives for any claim that DHS denies or reduces as a result of the provider's failure to comply with department rules, regulations, or procedures. sec.27.307. Full Payment and Contributions. (a) Participating providers must accept as payment in full the amounts paid under the Texas Department of Human Services (DHS) fee structure for ICF-MR services. (b) Each facility must inform its Medicaid clients and their families in writing that their right to ICF-MR services is not contingent on contributions. The facility must give written notice of this policy to each client and to each client's family representative or other responsible party. (c) If a client, family member, or guardian makes a free-will contribution to a facility, the facility must execute a dated statement for signature by both the contributor and the facility's administrator. The statement must specify that the facility's services are not predicated on contributions and the donor's gift is a free-will contribution. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107190 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter D. Reimbursement Methodology 40 TAC sec.sec.27.401, 27.403, 27.405, 27.407, 27.409, 27.411, 27.413, 27.415, 27.417, 27. 419, 27.421 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. D. Reimbursement Methodology. sec.27.411. Cost Finding Methodology. (a) Exclusion of and adjustments to certain reported expenses. Providers must eliminate unallowable expenses from the cost report. (1) DHS excludes from the rate base any unallowable expenses included in the cost report and makes adjustments to expenses reported by providers to ensure that the rate base reflects costs that: (A) are reasonable and necessary for the provision of client care; (B) represent economic and efficient use of resources; and (C) are consistent with federal and state Medicaid regulations. (2) When there is reasonable doubt about the accuracy or allowability of a significant part of the information reported, DHS may eliminate individual cost reports from the rate base. These adjustments include, but are not necessarily limited to, the following. (A) Revenue offsets. DHS offsets against reported expenses certain types of nonoperating revenues, after reasonable allowances for overhead costs. Types of revenues offset against costs include: income from beauty and barber shop operations, prior year overpayments, vending machine proceeds, gift shop receipts, and payment for meals by employees and guests. Interest income is used to offset working capital interest expense, not to exceed total interest costs. An exception is interest income from funded depreciation accounts or qualified pension funds, which is not treated as a revenue offset item. For facilities reporting central office overhead expenses, interest income is offset against interest expenses before the allocation of central office costs to individual ICFs-MR. (B) Fixed capital asset costs. DHS defines a historical base for fixed capital asset costs, which consists of allowable buildings depreciation, mortgage interest, and buildings rental and lease expense. The initial values constituting the starting point of the historical base are the allowable amounts of fixed capital asset costs as of July 18, 1984, as determined from pertinent cost report data. For newly constructed facilities contracted after July 18, 1984, and for others where historical cost information is not available from DHS records, fixed capital asset expenses are based on the historical cost to the first Medicaid provider of record after July 18, 1984. Annual increases in fixed capital asset costs to be included in the rate base are limited consistent with current Medicaid regulations, the Deficit Reduction Act of 1984, and the Consolidated Omnibus Reconciliation Act of 1985 in the following manner. (i) Increases in building depreciation and rental or lease expense for buildings rented or leased from a related party are allowed when facilities undergo changes in ownership, and are limited to the lesser of: (I) the current expense reported by the provider; or (II) the previous allowable expense from the historical base adjusted by a capital asset inflation index as specified in sec.24.301 of this title (relating to Determination of Inflation Indices). (ii) If capital assets have undergone ownership changes since the previous reporting period, an increase in mortgage interest expense included in the rate base is limited to the lesser of: (I) the actual mortgage interest expense incurred by the new owner of record during the current cost reporting period; or (II) an amount based on allowable buildings depreciation and an appropriate index of interest rates pertaining to the year of sale. DHS determines an interest rate index appropriate for this purpose as specified in sec.24.301 of this title (relating to Determination of Inflation Indices). (iii) Increases in rental or lease expense on buildings not rented or leased from related parties are limited to the lesser of: (I) the current expense reported by the provider; or (II) the allowable expense from the historical base adjusted by a capital asset inflation index as specified in sec.24.301 of this title (relating to Determination of Inflation Indices). (C) Limits on other facility and administration costs. To ensure that the results of DHS's cost analyses accurately reflect the costs that an economic and efficient provider must incur, DHS may place upper limits or caps on expenses for specific line items and categories of line items included in the rate base for the administration and facility cost centers. DHS sets upper limits at the 90th percentile in the array of all costs per unit of service or total annualized cost, as appropriate, for a specific line item or category of line item, as reported by all contracted facilities, unless otherwise specified. The specific line items and categories of line items that are subject to the 90th percentile cap are: (i) total buildings and equipment rental or lease expense; (ii) total other rental or lease expense for transportation, departmental, and other equipment; (iii) building depreciation; (iv) building equipment depreciation; (v) departmental equipment depreciation; (vi) leasehold improvement amortization; (vii) other amortization; (viii) total interest expense; (ix) total insurance for buildings and equipment; (x) facility-administrator salary, wages, and/or benefits, with the cap based on an array of nonrelated-party administrator salaries, wages, and/or benefits; (xi) assistant administrator salary, wages, and/or benefits, with the cap based on an array of nonrelated-party assistant administrator salaries, wages, and/or benefits; (xii) facility-owner, partner, or stockholder salaries, wages, and/or benefits (when the owner, partner, or stockholder is not the facility administrator or assistant administrator), with the cap based on an array of nonrelated-party administrator salaries, wages, and/or benefits; (xiii) other administrative expenses including the cost of professional and facility malpractice insurance, advertising expenses, travel and seminar expenses, association dues, other dues, professional service fees, management consultant fees, interest expense on working capital, management fees, other fees, and miscellaneous office expenses; and (xiv) total central-office overhead expenses or individual central-office line items. Individual line-item caps are based on an array of all corresponding line items. (D) Occupancy adjustments. DHS adjusts the facility and administration costs of providers with occupancy rates below a target occupancy rate. The target occupancy rate is the lower of: (i) 85%; or (ii) the overall average occupancy rate by class of provider for contracted beds included in the rate base during the cost reporting periods included in the base. (E) Cost projections. As specified in sec.24.301 of this title (relating to Determination of Inflation Indices), DHS projects certain expenses in the rate base to normalize or standardize the reporting period and to account for cost inflation between reporting periods and the period to which the prospective rate applies. (b) Cost determination by class of provider. "Class of provider" incorporates references to large and small facilities: large facilities are those with more than six Medicaid-contracted beds; small facilities are those with six or fewer Medicaid-contracted beds. For rate determination purposes, DHS establishes four classes of ICF-MR providers: (1) large ICF-MR V, and large ICF-MR VI community-based providers; (2) ICF-MR I, small ICF-MR V, and small ICF-MR VI community-based providers; (3) state schools; and (4) ICF-MR VIII community based providers. (c) Cost determination by cost centers for large ICF-MR V, and large ICF-MR VI community-based providers. DHS combines adjusted expenses from the rate base into the following cost centers for large ICF-MR V, and large ICF-MR VI community-based providers. (1) Resident care cost center. The resident care cost center includes all direct resident care expenses: nursing care; and consultant, social service, activity, training, laundry and housekeeping expenses. (2) All other cost center. This composite cost center combines: (A) dietary costs, consisting of food, food service, and dietary consultant expenses; (B) facility costs, consisting of expenses to operate and maintain buildings, equipment, and capital necessary to provide client care; and (C) administration costs, consisting of administrative salaries, supplies, and interest on working capital loans. (d) Cost determination by cost centers for ICF-MR I, small ICF-MR V, and small ICF-MR VI community-based providers. DHS combines adjusted expenses from the rate base into the following cost centers for ICF-MR I, small ICF-MR V, and small ICF-MR VI community-based providers. (1) Labor cost center. The labor cost center includes all staff salaries and wages for persons working at the facility, regardless of the function of those staff, central office salaries and wages, and all consultant and contracted expenses. (2) All other cost center. The all other cost center is comprised of all expenses not included in the labor cost center. (e) Cost determination by cost centers for state schools. DHS combines adjusted expenses from the rate base into the following cost centers for state schools. (1) Resident care cost center. The resident care cost center includes all direct care expenses: nursing care; and consultant, social service, activity, training, laundry, and housekeeping expenses. (2) Dietary care cost center. The dietary care cost center includes food, food service, and dietary consultant expenses. (3) Facility cost center. The facility cost center includes expenses to operate and maintain the buildings, equipment, and capital necessary to provide resident care. (4) Administration cost center. The administration cost center includes administrative salaries, supplies, and interest on working capital loans. (5) Comprehensive medical cost center. The comprehensive medical cost center includes medical expenses for services provided directly to state school residents. Since these services are not provided directly to community-based residents by ICF-MR providers, reimbursement for this cost center is limited to those state schools providing comprehensive medical care. sec.27.413. Rate Setting Methodology. (a) Classes of providers. Reimbursement rates are determined separately by level of care within each of the four classes of ICF-MR providers. (b) Classes of service. A separate set of reimbursement rates corresponding to classes of service is determined within each provider class. The classes of service for state schools are ICF-MR I, ICF-MR V, and ICF-MR VI. The classes of service for community-based providers are ICF-MR I, large ICF-MR V facilities, small ICF-MR V facilities, large ICF-MR VI facilities, small ICF-MR VI facilities, and small ICF-MR VIII facilities. Large facilities are those with more than six Medicaid-contracted beds. Small facilities are those with six or fewer Medicaid-contracted beds. (c) Rate determination. The Texas Board of Human Services determines general reimbursement rates for medical assistance programs for Medicaid recipients under the provisions of Chapter 24 of this title (relating to Reimbursement Methodology). The Texas Board of Human Services determines particular reimbursement rates for each class of ICF-MR provider by class of service based on consideration of DHS staff recommendations. To develop a separate set of reimbursement rate recommendations for each class of service within each provider class, DHS staff apply the following procedures. (1) For each class of service, a cost component for each cost center is calculated at the adjusted per diem expense corresponding to the provider delivering the median day of service. (In calculating the median day of service, days of service delivered by each provider included in the rate base are summed cumulatively in the order which corresponds to the array of adjusted per diem costs, from lowest to highest.) (2) The cost component for each cost center is multiplied by an incentive factor, and the resulting rate components are summed by class of service to calculate the recommended total reimbursement rates. The Texas Board of Human Services determines the incentive factor based on consideration of staff recommendations and input from interested parties. The incentive factor must not exceed 1.07. (d) Experimental class. DHS may define experimental classes of service to be used in research and demonstration projects on new reimbursement methods. Demonstration or pilot projects based on experimental classes may be implemented on a statewide basis or may be limited to a specific region of the state or to a selected group of providers. Reimbursement for an experimental class is not implemented, however, unless the Texas Board of Human Services and the Health Care Financing Administration (HCFA) approve the experimental methodology. (e) Exception to the reimbursement rate determined by the Texas Board of Human Services. The reimbursement rate set by the Texas Board of Human Services for each reimbursement class is lowered to the provider's customary charge if the provider's customary charge is less than the Medicaid reimbursement rate for the same services. Customary charge is defined in this case as the average rate charged to non-Medicaid clients for the same services. (f) Supplemental reimbursement rate determination. The reimbursement rate for community based ICF-MR VI individuals whose needs require a significantly greater than normal amount of care is supplemented on an individual client basis when the appropriate score is indicated for all of the six criteria on the level-of-care assessment form. (1) The client must meet all of the following six criteria on the level-of-care assessment form: [graphic] (2) The department determines the appropriate amount of supplemental reimbursement in the following manner. (A) The estimated time required by the class of direct care personnel is derived from appropriate and applicable time studies to determine the delivery cost for the supplemental ICF-MR VI rate. Each time estimate is multiplied by a projected hourly wage rate and by class personnel, including a factor for payroll, taxes and benefit expenses. The employee compensation costs are estimated from DHS Medicaid provider cost reports and wage-and-hour survey data. (B) The portion of the ICF-MR VI class rate which covers employee compensation costs for direct care personnel is determined. (C) The amount of the ICF-MR VI supplemental reimbursement rate is determined by calculating the difference between the amounts in subparagraphs (A) and (B) of this paragraph. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107191 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter E. Eligibility and Review 40 TAC sec.sec.27. 501, 27.503, 27.505, 27.507, 27.509, 27.511, 27.513, 27.515, 27.517, 27.519, 27. 521, 27.523, 27.525, 27.527, 27.529, 27.531 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.513. ICF-MR VI Level-of-care Criteria. The individual eligible for the ICF-MR VI Program requires extensive supervision and assistance in the completion of self-help activities. The individual requires a highly structured environment with ongoing supervision. The individual may also have medical needs requiring close supervision and nursing intervention. Training is necessary in basic self-help skills, sensory-motor development, compliance with daily routines and group activities, and socially appropriate behaviors. Maladaptive behaviors often are present and require active programmatic intervention. (1) Intellectual functioning. The individual functions in the severe to profound range of mental retardation as evidenced by a full scale I.Q. score of 39 or below obtained by formal assessment. If the individual has a sensory or motor handicap where a specialty standardized intelligence test or a certain portion of a standardized intelligence test is appropriate, then that score must be reported as the I.Q. score for compliance with this criterion. If an I.Q. score cannot be obtained for a severely or profoundly retarded individual, a social composite score (S.C.) obtained on the Vineland Adaptive Behavior Scale or other professionally accepted scale must be submitted. Documentation must be available that an assessment of intelligence with a standardized intelligence test was attempted. (2) Adaptive behavior level. The individual exhibits extreme deficits in adaptive behavior with an adaptive behavior level of III or IV obtained by formal assessment. (3) Health status. The individual's health status does not interfere with participation in the active treatment program. The individual may require close daily supervision and nursing intervention. The individual, however, must be able medically to be out of the bedroom/bedroom area for active treatment during waking hours. (4) Ambulation status. The individual may be ambulatory, mobile nonambulatory, or nonmobile. sec.27.517. Retroactive Level-of-care Determination. Private-pay individuals living in Medicaid-certified ICF-MR facilities who do not receive SSI cash benefits may be eligible for "three-months prior" vendor payments. To ensure that vendor payments begin on the date that an individual's financial resources are exhausted, the potential recipient must have a valid level of care and the ICF-MR facility staff should maintain his records in compliance with the Medicaid utilization review (UR) requirements. (1) To be in compliance with UR requirements, potential recipients' records must be maintained and reviewed as follows. (A) Facility staff must conduct an interdisciplinary team evaluation before the applicant's admission to the Medicaid program. The team, which consists of health-care professionals and includes a qualified mental retardation professional (QMRP), must make a comprehensive medical, social, and psychological evaluation of the applicant's need for ICF-MR services. If the evaluation indicates the applicant's needs could be met by alternative services, facility staff must document this fact in the applicant's record and must document attempts to locate the services. Facility staff must comply with 42 Code of Federal Regulations, sec.456.370 and sec.456.371. (B) The potential client must have a current individual program plan. The physician's certification of need for ICF-MR services must be dated no more than 30 days before the date that the facility administrator learned about the resident's application for Medicaid assistance, or before authorization for vendor payment. (C) The physician's recertification must be obtained as described in sec.27.529 of this title (relating to Preadmission and Admission Process). (2) If an individual is found to be otherwise eligible for vendor payments for all or part of the three months prior to the date of his application for Medicaid assistance, facility staff may use either of the options described in subparagraphs (A) and (B) of this paragraph to ensure that the individual has a valid level of care. (A) When the facility administrator or QMRP learns about an individual's need for Medicaid assistance, facility staff submit a level-of-care (LOC) assessment form to the TDH MR program unit requesting a preadmission LOC evaluation. For individuals who are assigned a Level I, V, or VI LOC, the preadmission LOC must be updated every 30 days until the resident's financial eligibility is established. For individuals who are assigned a Level-of-care VIII, the preadmission must be updated every 90 days. (B) If an individual's preadmission LOC has not been maintained as described in subparagraph (A) of this paragraph, and Texas Department of Human Services (DHS) Medicaid-eligibility staff notify the facility about an applicant's potential eligibility for all or part of the three-month-prior coverage, facility staff must review the applicant's records to ensure that they meet the UR requirements and submit a LOC assessment form for the retroactive period. Facility staff must ensure that the form: (i) indicates potential eligibility for Medicaid; (ii) clearly identifies, in the form's comment section, the applicable retroactive period(s) for which payment is requested; and (iii) includes, in the form's comment section, a statement of certification that the applicant required ICF-MR services during the applicable period(s). (3) If an applicant meets all other eligibility criteria for three-months-prior coverage, DHS makes retroactive vendor payments according to: (A) The assigned LOC on the preadmission LOC assessment submitted by the facility as described in paragraph (2)(A) of this subsection; or (B) The assigned LOC for the period indicated on the second LOC assessment form submitted by the facility as described in paragraph (2)(B) of this subsection. (4) DHS makes retroactive vendor payments for only those months during which physician's certification, individual program plan, and level-of-care requirements are met. The TDH MR program staff verifies, during the first inspection-of-care visit to the facility after establishment of any retroactive level of care, that the applicant's record includes the physician's certification, recertification, and individual program plans, and that the plans were reviewed as required during the applicable period(s). (5) The effective date of the new level of care for the retroactive period of eligibility is the first day of the earliest month in which the applicant qualified for a level of care. sec.27.519. Payment for Absences from the Facility. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Day. A 24-hour period extending from midnight to midnight. For counting days of absence from a facility, the first day is the first 24-hour period beginning at midnight after the individual's departure. (2) Extended therapeutic visit. An individual's absence from a facility for as many as 10 consecutive days for therapeutic purposes. (3) Therapeutic visit. An individual's absence from a facility for as many as three consecutive days for therapeutic purposes. (b) The Texas Department of Human Services (DHS) makes vendor payments for ICF-MR clients who are absent from a facility for therapeutic or extended therapeutic visits when the following criteria are met. (1) The individual program plan must provide for therapeutic or extended therapeutic visits or both. (2) The individual's qualified mental retardation professional (QMRP) must authorize and document each therapeutic and extended therapeutic visit, subject to the approval of the physician. (3) Each individual is permitted an unlimited number of therapeutic visits per calendar year. However, if a particular therapeutic visit exceeds the three-day limit, the facility must submit a discharge form effective on the fourth day of absence. (4) Each individual is permitted one extended therapeutic visit per calendar year. The individual, a responsible member of his family, or another responsible party must document in writing the specific days selected for an extended therapeutic visit. When an extended therapeutic visit begins during one calendar year and extends into the next, the absence constitutes the individual's extended therapeutic visit for the calendar year in which the visit begins. If an extended therapeutic visit exceeds the 10-day limit, the facility must submit a discharge form effective on the 11th day of absence. (5) Facility staff must be available to the individual during therapeutic and extended therapeutic visits, even if all the residents are away from the facility at the same time. (6) The facility must maintain a record of each therapeutic and extended therapeutic visit and must ensure that these records are available to DHS for review. The facility's records must include statistics regarding the number of visits for which vendor payments have not been made. When DHS audits the facility, it reviews the facility's documentation of therapeutic and extended therapeutic visits and verifies the facility's compliance with the provisions of this subsection. (c) DHS does not make vendor payments when a Title XIX client is absent from a facility for: (1) an inpatient hospitalization; (2) a therapeutic visit that exceeds three consecutive days; (3) an extended therapeutic visit that exceeds 10 consecutive days; or (4) an unauthorized departure. (d) An individual or the party responsible for an individual may voluntarily enter into a written agreement with a facility to hold a bed during a temporary absence from the facility. The written agreement must be signed and dated by the facility administrator or QMRP and by the individual or his responsible party each time a bed is held. The facility may charge the recipient to hold the bed as long as the amount charged does not exceed DHS's daily vendor rate for the recipient's level of care at the time he leaves the facility. When DHS audits the facility, it reviews the facility's bed-hold charges to ensure that: (1) the facility documents each bed-hold charge in the individual's financial record at the time the bed is held; and (2) the facility complies with sec.27.605 of this title (relating to Protection of Funds) whenever it makes a bed-hold charge against the individual's personal funds account at the facility. (e) When an individual is absent from a facility for special activities such as the Special Olympics and camping trips, DHS makes vendor payments if: (1) the need for the special activity is documented in the Individual program plan (IPP) as part of the IPP training; (2) enough facility personnel are present at the special activity to meet the staff requirements for direct care specified in 42 Code of Federal Regulations, sec.483.430(d)(2); and (3) the facility continues to incur the usual costs for caring for the individual, including, but not limited to, costs for meals, lodging, staff, supervision, and administration of medication; and (4) the facility continues to provide the active treatment program specified in the IPP. sec.27.529. Preadmission and Admission Process. (a) The Texas Department of Health (TDH) performs preadmission and admission level-of-care assessments when it receives notification that a Medicaid applicant or client has requested vendor assistance for care in a contracted facility. An ICF-MR I, ICF-MR V, and ICF-MR VI preadmission level-of-care assessment is valid for 30 days or until the individual assessed is admitted to an ICF-MR facility, whichever is sooner. An ICF-MR/RC VIII preadmission level-of-care assessment is valid for 90 days or until the individual assessed is admitted to an ICF-MR/RC facility, whichever is sooner. An admission level-of-care assessment is valid for 180 days after the date of admission. (b) Before an individual's admission, an interdisciplinary team of health care professionals, including a QMRP, must conduct a comprehensive medical, nutritional, social, and psychological review of the individual's status and need for ICF-MR care. If the evaluation indicates that the individual's needs could be met by alternative services, facility staff must enter this fact in the individual's record and document attempts to locate the services. (c) A physician must certify that each applicant or Medicaid client needs ICF-MR services at the time of admission to the Medicaid program and every six months thereafter. This certification is documented on the level-of-care assessment form for each individual. DHS processes only those level-of-care assessment forms that include physicians' signatures. This physician certification is part of each individual's record and is reviewed annually as part of the inspection-of-care process. Facility staff must ensure that the recertification states: "I hereby certify that this individual continues to require ICF-MR care." This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107192 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter F. Personal Finances and Funds 40 TAC sec.sec.27.601, 27.603, 27.605, 27.607 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.601. Personal Funds. (a) The facility must have written policies and procedures that protect the financial interests of each person. (b) If large sums of money accrue to an individual, the facility must ensure that its policies and procedures provide for appropriate protection of these funds and for counseling the individual about their use. (c) The facility must permit each individual to possess and use money in normal ways, or ensure that he learns to do so to the extent of his abilities. (d) The facility must maintain a current, written financial record for each Medicaid client. On request, the facility must make the financial record available to the individual, his guardian, his representative payee, or the person legally responsible for him or his finances. The facility must ensure that the financial record includes written receipts for all: (1) personal possessions and funds received by or deposited with the facility on his behalf; and (2) disbursements made to or on behalf of the individual. (e) The facility is responsible for meeting the needs of its clients. The facility must accept the Texas Department of Human Services' (DHS's) vendor payment as payment in full for providing the care and services that the clients need. (f) The facility must furnish its clients with basic personal items and supplies. These items include, but are not limited to: (1) toothbrush; (2) toothpaste; (3) shampoo; (4) shaving cream; (5) razors; (6) facial tissues; (7) razor blades; (8) sanitary napkins; (9) comb or hair brush; (10) soap; (11) body lotion; (12) clothing, if unavailable from another source; and (13) school supplies, if unavailable from another source. (g) If a client prefers to use a specific type or brand of a personal need item instead of the item that the facility furnishes under the provisions of subsection (f) of this section, the individual may use his personal funds to purchase the item. Each personal need item that an individual purchases is reserved for his sole use, regardless of how the individual makes the purchase. The facility must ensure that each such item is kept in an individual container or package which is labeled with the person's name. However, the facility is not responsible for labeling personal need items that have been brought into the facility without being reported to the management. (h) The facility must have written policies and procedures for the purchase of items and services with the individual's personal funds. At a minimum, the facility must ensure that these policies and procedures include the following elements: (1) appropriate participation by the individual, his guardian, or the responsible party in the selection of the items or services purchased; (2) a system for ensuring that all purchases are either necessary to meet individual needs or to respond to a direct request by the individual, the guardian, or the responsible party; (3) a method of procurement that ensures that items and services are purchased at a reasonable cost to the individual and at a cost comparable to the costs of similar items and services generally available in the community; and (4) assurances that personal funds are not used to purchase items and services that are available through Medicaid, Medicare, or other public assistance programs. (i) Appropriate uses of an individual's personal funds include, but are not limited to, the following expenditures: (1) soft drinks; (2) personal clothing; (3) a personal television or stereo; (4) an allowance of spending money; and (5) transportation for home visits. sec.27.603. Expenditures of Personal Funds. (a) Individuals' personal funds must not be expended for services, supplies, or equipment that are allowable costs to the facility as specified in sec.27.405 and sec.27.407 of this title (relating to Allowable and Unallowable Costs and to List of Allowable Costs) or that are otherwise reimbursed by Medicaid. (b) Items and services that are the responsibility of the facility and that must not be charged to the individual's personal funds include, but are not limited to: (1) personal need items, including diapers, as specified in sec.27.601(f) of this title (relating to Personal Funds); (2) noncosmetic dental services including, but not limited to, initial and annual comprehensive intra- and extra-oral examinations, prescribed dental treatments and follow-up visits, dentures, braces, crowns, toothbrushes, mouthwash, floss, disclosing solution, and other dental supplies; (3) transportation expenses to program, recreation, and health care services, including sheltered workshop programs; (4) banking charges when individuals' personal fund accounts are pooled; (5) prescriptions not covered by other Medicaid services; (6) prescribed laboratory services not covered by other Medicaid services; (7) repairs to and maintenance of the facility's physical plant; (8) meals, snacks, special diets, and sack lunches; (9) behavioral reinforcers used in behavior modification programs, including, but not limited to, candy, cigarettes, soft drinks, cereal, coffee, toys, and magazines; (10) purchase, repair, and maintenance of specialized equipment and adaptive devices not covered by other Medicaid services; (11) prescribed medical equipment and supplies not covered by other Medicaid services, including, but not limited to, nasogastric tubes, feeding pumps, catheters, sheepskins, and egg crate pads; (12) medical services and therapies not covered by other Medicaid services, including, but not limited to, initial and annual physical exams, physical therapy, occupational therapy, and nutritional, speech, audiological, psychological, social, and medical evaluations; (13) recreational evaluation services and general recreational activities for the facility population whether provided at the facility or in the community; (14) all training and habilitation services, including, but not limited to, vocational training, sheltered workshop services, and day activity center services, whether provided in-house or through contractual arrangements; (15) eye exams; (16) eyeglasses not covered by other Medicaid services, except for the difference between the Medicaid payment and the actual cost of the eyeglasses when the individual requests a specific style or feature not provided by the facility or Medicaid; (17) laundering of personal clothing; (18) hygienic haircuts, shaves, and shampoos; and (19) special activities, including, but not limited to, meals, lodging, staff supervision, registrations, and tickets. (c) Individuals' personal funds may be expended for the following items and services: (1) personal need items when the individual requests a specific type or brand other than the one furnished by the facility; (2) clothing; (3) cosmetic dental procedures; (4) public transportation when the individual is travelling on his own initiative without staff supervision, and public transportation to and from home visits; (5) banking charges if the individual's personal funds are in an individual account; (6) prescribed over-the-counter medications when the individual wants another brand or type than the one furnished by the facility; (7) damages or replacement at cost of other person's personal property after approval by the facility's specially constituted committee; (8) snacks or meals when the individual chooses items other than those provided by the planned menu; (9) an allowance disbursed to the individual in accordance with the facility's policies and procedures as long as access to the individual's personal funds is not restricted without the written consent of the individual or his legal guardian; (10) recreational activities that are away from the facility and that are independently chosen by the individual, or activities that the individual elects which are not part of the facility's general recreation program and which are provided without on-duty staff; (11) the difference between the Medicaid payment and the actual cost for eyeglasses when the individual requests a specific style or feature other than the one furnished by the facility or Medicaid; (12) dry cleaning of the individual's personal clothing; (13) professional barber and cosmetology services including, but not limited to, styling, hair setting, permanent waves, hair color treatments, hair rollers, hair spray, cosmetics, and perfume; (14) bed reservation fees as long as the individual, his legal guardian, or other responsible party gives written consent and as long as the charge does not exceed the daily Medicaid vendor rate; and (15) school supplies, school fees, and other educational expenses. sec.27.605. Protection of Funds. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Receipt-A cash register tape or seller's sales statement which shows the following: (A) the client's name; (B) the date the receipt was written or created; (C) the amount of money spent; (D) the specific item(s) purchased; (E) the name of the seller; and (F) the client's signature. (2) Witness-A third party who is present at a financial transaction and who attests to its having taken place. No person who is responsible for client trust funds or who supervises anyone responsible for such funds may act as witness to a financial transaction that involves a client's personal funds. (3) Trust fund accounts-All accounts in the facility's control or safekeeping that contain the personal funds of clients. This definition includes a client's personal banking account if the facility's staff or consultants in any way help the client to use it. (b) At the time of admission, the facility must provide to each client, his guardian, and/or other legally responsible parties a written statement that meets the following specifications: (1) the statement lists all of the facility's services and charges, distinguishing between services included in the facility's basic rate and services excluded from the basic rate which, if used, are charged to the individual; (2) the statement indicates that the individual is under no obligation to deposit funds with the facility; (3) the statement explains the individual's right to decide how his personal funds are to be handled. The explanation must include the following options, and the facility must document which options the individual or the responsible party selects. (A) The individual may receive, retain, and manage personal funds himself or have a legal guardian receive, retain, and manage such funds on his behalf. (B) The individual or the guardian may have the Social Security Administration appoint a representative payee for receipt of the individual's federal benefits, if any. (C) The individual or the guardian may designate, in writing, another person to manage the individual's personal funds (except for his federal benefits when a representative payee has been appointed). (D) The facility must hold, safeguard, and account for the individual's personal funds upon receipt of the written authorization of the individual, the guardian, or other legally responsible party; (4) the statement explains that the cost to the facility for handling an individual's personal funds is included in the facility's basic rate; (5) the statement indicates that the facility must have the written permission of the individual or the individual's legal guardian to handle the individual's personal funds; (6) the statement declares that the facility is required to notify the Department of Human Services' (DHS's) regional Medicaid eligibility worker if the individual: (A) becomes incapable of managing his personal funds himself; (B) has no representative payee; and (C) has no responsible party to manage his personal funds on his behalf. (c) The facility must provide updated lists of services and charges whenever they change during the individual's stay. (d) The facility must maintain a separate, current, written record of all financial transactions involving an individual's personal funds held in the facility's trust. The facility must keep this record according to the generally accepted accounting principles of the American Institute of Certified Public Accountants. At a minimum, the record must include the following information: (1) the individual's name; (2) identification of the individual's guardian, representative payee, and all other responsible parties, as applicable; (3) the date of the individual's admission to the facility; (4) all earned interest; and (5) the date and amount of each deposit and withdrawal, the name of the person accepting the withdrawn funds, and the balance after each transaction. Except as noted in this paragraph, the record must also include a written receipt for the expenditure of each withdrawal. This receipt must be signed by the individual and/or a witness. A witnessed receipt must show the witness's relationship to the individual. A written receipt is not required in any of the following circumstances: (A) a written request for a specific amount to be withdrawn is submitted by the client, by his guardian or other responsible party, or by an individual who has the client's written authorization and is not employed by the facility; (B) the withdrawn funds are used to make purchases from vending machines; or (C) the expenditure is $1.00 or less. (e) Unless DHS has given prior written approval, it does not accept alternate types of documentation, including affidavits, to verify expenditures of individuals' personal funds or to demonstrate compliance with the requirements in this subchapter regarding individuals' personal funds. (f) When a facility holds an individual's personal funds in trust, it must provide a written statement to the individual, guardian, representative payee, or other responsible party upon receipt of a verbal or written request. In addition to reporting on funds that the facility has deposited in an account on the individual's behalf, the statement must report on any of the individual's funds that the facility holds in a petty cash account. At a minimum, the statement must include the following information: (1) the identification number and location of all accounts in which the individual's personal funds have been deposited; (2) the balance in each account at the beginning of the statement period; (3) all deposits and withdrawals; (4) all interest earned; and (5) the ending balance in each account. (g) The facility must keep funds received from clients for holding, safeguarding, and accounting separate from the facility's funds. The separate account for these funds must be identified "Trustee (Name of Facility), Clients' Trust Fund Account." The facility may commingle the trust funds of Medicaid clients and private-pay clients. If these trust funds are commingled, the facility must provide, on request, the following information to DHS, the Texas Department of Health (TDH), the Texas Attorney General's Medicaid Fraud Control Unit, and the United States Department of Health and Human Services. (1) For each private-pay client whose funds are commingled, the facility must provide a copy of a release form that the client, his guardian, or other responsible party has signed and dated. The facility must obtain each client's signed release form upon his admission or within 30 days of the effective date of the adoption of this subsection. The release form must require the facility to maintain trust fund records for private-pay clients in the same way that it maintains such records for Medicaid clients. The form must also include a provision permitting the agencies referenced in this subsection to inspect the private-pay client's trust fund records. (2) The facility must provide legible copies of the trust fund records of private-pay clients whose funds are commingled. (h) The facility must observe the following policies regarding types of trust fund accounts and distribution of interest. (1) The facility may keep a client's money in an account or petty cash fund that does not bear interest. (2) The facility may deposit a client's money in an interest-bearing account. (3) The facility may either keep a separate trust fund account for each client or pool the funds it holds for clients in a single account. If the facility pools client trust funds in a single account, the account must individually identify each client's funds. Each client trust fund account must clearly indicate that the facility has no ownership interest in the funds. Each account must be insured under federal or state law. (4) The facility must distribute all interest earned on a pooled account in one of the following two ways, at its own discretion: (A) the facility prorates interest to each client on an actual interest-earned basis; or (B) the facility prorates interest to each client on the basis of the average monthly balance for the quarter of proration. (i) The facility must observe the following policies with regard to banking charges on trust fund accounts. (1) Charges for checks, deposit slips, and banking services for pooled checking accounts are the facility's responsibility and must not be charged to the client, his guardian, family, or other responsible party. The facility may include these charges, however, as allowable costs in its cost report to DHS. (2) Because individual checking accounts promote the dignity and independence of clients and exist for their personal use, charges for checks, deposit slips, and banking services may be deducted from these accounts. (3) The facility must not charge the client, his guardian, family, or other responsible party for its administrative expenses in handling either individual or pooled client trust fund accounts. However, the facility may include its handling expenses as allowable costs in its cost report to DHS. (4) If the facility invests client funds in saving accounts, certificates of deposit, or in other situations in which the funds accrue interest or other benefits, the facility must distribute the interest or other benefits to each participating client on an equitable basis by depositing the investment income in the clients' pooled or individual checking accounts, as appropriate. (j) The facility must return to the client, his guardian, or other legally responsible party the full balance of the client's personal funds within 30 days of the client's request or of his discharge or transfer. The facility must observe this policy regarding individual access to trust funds whether the client's funds are held in the facility or outside it. (k) If a facility's ownership changes, the previous owner must transfer to the new owner all client trust fund bank balances and all client trust funds held in the facility, along with a complete list of the clients and their current balances. For auditing purposes, the previous owner must get and keep a receipt from the new owner for the transfer of these funds. (l) When an individual dies, the facility must make a good faith effort to locate the individual's guardian or other responsible party or the heir to the individual's estate. Within 45 days after the individual's death, the facility must clear the individual's account according to the following procedures. (1) To hold the deceased individual's money in trust, the facility must either establish a new trust fund account or deposit the money in an already existing trust fund account. (2) After DHS verifies that the deceased individual's money is on hand and held in trust, the facility gives DHS a notarized affidavit that presents the following information: (A) the individual's name; (B) the amount of money being held; (C) documentation of the facility's efforts to locate the individual's guardian, other responsible party, or heir(s); (D) a statement acknowledging that the money being held is solely the property of the deceased individual's estate; and (E) a statement that the facility will hold the money in trust either until the guardian, other responsible party, or legal heirs are located or until the money escheats to the state. DHS reviews the trust account each time the facility is audited. DHS considers the account cleared upon receipt of the affidavit specified in this paragraph. (3) If a facility decides not to hold a deceased individual's money in trust, the facility must send it to the Texas Department of Human Services, Fiscal Division, E-411, P.O. Box 149030, Austin, Texas 78714-9030, at any time before the money escheats to the state. The facility must identify the money as escheatable funds and must include with it a notarized affidavit that contains the information required in paragraph (2)(A)-(C) of this subsection. sec.27.607. Refunds. (a) The facility must refund all private payments it receives for periods covered by Medicaid, including retroactive periods of Medicaid coverage, whenever: (1) the facility has accepted the Medicaid vendor payment; or (2) the Texas Department of Human Services (DHS) has notified the facility about an individual's eligibility for Medicaid, and the individual, his guardian, or another responsible party makes an oral or written request for a refund for the period that Medicaid covers. (b) The facility must make the refund within 30 days of receiving DHS's vendor payment for the covered period. (c) When the facility becomes aware of the need for a refund as indicated in subsection (a) of this section, facility staff must write to the individual, his guardian, or other responsible party to notify him about his right to a refund and the amount due. The written notification must include a statement to be signed by the individual or his responsible party to acknowledge receipt of the notification. Facility staff must file the signed acknowledgment in the individual's financial record. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107193 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter G. Additional Facility Responsibilities 40 TAC sec.sec.27.701, 27.703, 27.705, 27.707, 27.709, 27.711, 27.713, 27.715, 27. 717 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.707. Release from the Facility. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Emergency release-The individual is absent from the facility for more than 24 hours for reasons specified in subsection (d)(1) of this section. The nature of the release prevents the facility from accomplishing prerelease planning. (2) Mental retardation authority (MRA)-The Texas Department of Mental Health and Mental Retardation (TDMHMR) entity that directs, operates, facilitates, or coordinates services required by state law and TDMHMR for persons with mental retardation in a local service area. A local service area consists of one or more counties. (3) Permanent release-The individual moves from the facility to another residence and the facility does not intend that the individual return for continued services, or the individual is absent from the facility for more than 30 days. TDMHMR state schools comply with permanent-release requirements when an individual is placed on extended furlough status (a furlough longer than 30 days). (4) Temporary release-The individual is absent from ICF-MR care for more than 24 hours but no longer than 30 days from the date of departure. The absence is for reasons other than a therapeutic visit, or for a therapeutic visit that exceeds the allowed length of stay. The facility intends that the individual return for continued services and provides a bed upon his return. (5) Therapeutic visit or extended therapeutic visit -An individual's absence from the facility meets the criteria stated in sec.27.519 of this title (relating to Payment for Absences from the Facility). (b) Requirements for temporary release are as follows. (1) The facility may temporarily release an individual if: (A) the individual, parent, if individual is a minor, or legal guardian requests the release; (B) the interdisciplinary team plans or approves the absence; (C) the individual transfers to an acute care medical setting; or (D) the individual's absence is not authorized. This includes, but is not limited to, an individual who leaves without permission or is being held by legal authorities. (2) The facility must notify the individual's family, parent, if individual is a minor, or legal guardian about the release. (3) The facility must document the temporary release in the individual's record, including the date of departure, the circumstances causing the absence, and the date of return. (4) Upon the individual's return, the facility must conduct an interdisciplinary team meeting attended by the QMRP and any other appropriate team member. The purpose of the meeting is to review the individual program plan, identify new needs, and make necessary changes to the plan. (5) If the individual's absence from the facility exceeds 30 days, the facility must permanently release him. (c) Requirements for permanent release are as follows. (1) The facility must complete permanent-release requirements in any of the following situations: (A) the individual makes a planned move to an alternate living arrangement, including, but not limited to, another facility, apartment, foster home, or home; (B) the individual, parent, if individual is a minor, or legal guardian requests the release; (C) the individual loses financial (Medicaid) eligibility for ICF-MR services, and the facility chooses to release him; (D) the facility stops operating or voluntarily withdraws from the Medicaid program; (E) the individual does not pay allowable fees including, but not limited to, applied income and bed-hold charges, and the facility chooses to release him; (F) the individual's temporary release exceeds 30 days. (2) Except in cases when an individual's temporary release exceeds 30 days, the facility must meet the following requirements before release. When an individual's temporary release exceeds 30 days, the facility must complete the following items within seven calendar days after the individual's permanent release. (A) Except in cases when an individual makes a planned move as described in paragraph (1)(A) of this subsection, the facility must notify the individual, parent, if individual is a minor, legal guardian, or other family members about the proposed release. When an individual makes a planned move, the facility must provide the notification at least 30 days before release. (B) The facility must counsel the individual, parent (if the individual is a minor), or legal guardian about the advantages and disadvantages of the release. These persons should participate in release planning whenever possible. (C) The facility must notify the mental retardation authority (MRA) of the catchment area in which the individual will live regarding the release and the reason for it. (D) The facility must develop a plan for providing appropriate services, including protective supervision and other follow-up services. The facility must ensure that the individual's record contains the following documentation from service agencies identified in the plan as responsible for providing after-care services: (i) letters of intent to provide the services identified in the plan; or (ii) signatures of service-agency representatives verifying their attendance at the interdisciplinary team meeting in which the plan is developed; or (iii) letters of attempts to secure such services, if service agencies have not provided documentation described in clauses (i) and (ii) of this subparagraph. (3) When the facility must release an individual because of maladaptive behavior(s) that the facility is unable to address successfully, the facility must provide evidence, in the individual's record, of the interdisciplinary team's attempts to manage the behavior(s). These attempts must include active participation of the facility's psychologist or psychiatrist and review by the facility's specially constituted committee. (4) Within seven calendar days after the individual's release, the facility must ensure that the individual's record contains a release summary including the following: (A) the reason for permanent release. If the individual is released to another residence, the facility must include an explanation of why the facility is no longer appropriate or no longer able to provide services; (B) a description of findings, events, and progress of the individual during residence. If the individual is released because of behaviors or active treatment needs the facility is unable to address, the facility must ensure that the summary describes the actions taken by the interdisciplinary team to meet those needs before discharge planning was initiated; (C) a comprehensive statement of the individual's service needs, the plan for addressing those needs, and the agency(ies) and other service providers responsible for providing the services. (5) The facility must send a copy of the release-summary to the individual, parent, if individual is a minor, or legal guardian; to the local MRA in whose catchment area the client will live; and to any alternative residence, if requested and legal consent is obtained. (6) The psychologist must participate in the release planning if the reason for release is the individual's display of maladaptive behavior that the facility is unable to address successfully. (7) If the facility voluntarily withdraws from the Medicaid program or ceases to operate, the facility implements a release plan for each individual, in cooperation with DHS and TDMHMR. (8) If the individual dies, the facility must complete a release-summary as described in paragraph (4)(A) and (B) of this subsection. (d) Requirements for emergency release are as follows. (1) The facility may release the individual on an emergency basis for any of the following reasons: (A) the individual, parent, if individual is a minor, or legal guardian requests an immediate permanent release. The facility must counsel the party(ies) about the advantages and disadvantages of the release; (B) the individual's physician determines that failure to release the individual will threaten the individual's health and safety or the health and safety of others; (C) the individual requires an acute-care medical setting. (2) The facility must notify, at least orally, the individual's family, parent, if individual is a minor, or legal guardian before the release unless the individual's well-being will be jeopardized. If the individual's well-being will be jeopardized, the facility must attempt to contact the family, parent, or legal guardian within 24 hours of the release. The facility must document in the individual's record all contacts or attempted contacts. (3) If the release is temporary, the facility must comply with subsection (b)(3)-(5) of this section. (4) If the release is permanent, the facility must comply with subsection (c) of this section. The facility must notify the local MRA within 72 hours of the individual's release. (e) When an individual is absent from the facility for 24 hours or more, except for purposes of a therapeutic visit, the facility must meet the requirements for termination of state reimbursement for services as described in sec.27.521 of this title (relating to Discharge and Transfer). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107194 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter H. Dental Program 40 TAC sec.sec.27.801, 27. 803, 27.805, 27.807, 27.809, 27.811, 27.813, 27.815, 27.817, 27.819, 27.821, 27. 823, 27.825, 27.827, 27.829, 27.831, 27.833, 27.835, 27.837, 27.839, 27.841, 27. 843, 27.845, 27.847, 27.849, 27.851, 27.853, 27.855, 27.857, 27.859, 27.861, 27. 863 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.27.831. Termination of a Provider Agreement. The agreement between the provider and the Texas Department of Human Services (DHS) for provision of ICF-MR dental services may be terminated in the following circumstances. (1) The agreement may be terminated voluntarily by either party by giving 30 days notice in writing to the other party. (2) If the provider is suspended or has his license revoked by the Texas State Board of Dental Examiners, the agreement is void on the date of the state board's action. (3) The department terminates the agreement if a provider is convicted for fraud in the program. (4) The agreement may be terminated by either party for breach of the agreement. A termination for breach of the agreement is effective when the other party receives written notice of the termination or on a later date specified in the notice. (5) The department and the provider may end the agreement if federal or state laws or other requirements are amended or judicially interpreted in a way that would make it unfeasible or impossible for either party to fulfill the agreement, or if either party is unable to agree on changes necessary for the substantial continuation of the agreement. Any respective accrued interests up to the date of termination must be settled equitably. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107195 Nancy Murphy Agency liaison, Policy and Document Support Section Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter O. Dental Program 40 TAC sec.sec.27.1501, 27.1503, 27.1505, 27.1507, 27.1509, 27. 1511, 27.1513, 27.1515, 27.1517, 27.1519, 27.1521, 27.1523, 27.1525, 27.1527, 27. 1529, 27.1531, 27.1533, 27.1535, 27.1537, 27.1539, 27.1541, 27.1543, 27.1545, 27. 1547, 27.1549, 27.1551, 27.1553, 27.1555, 27.1557, 27.1559, 27.1561, and 27.1563 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107160 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter S. Utilization Review and Reevaluation 40 TAC sec.sec.27.1801-27.1805 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107161 Nancy Murphy Agency liaison,Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter X. Housekeeping and Maintenance Services 40 TAC sec.sec.27.2301-27.2303 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107162 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter Y. Physical Environment 40 TAC sec.27.2403, sec.27.2405 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107163 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter Z. Change in Status of Intermediate Care MR Sections 40 TAC sec.sec.27.2501-27.2507 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107164 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter AA. Standards for Compliance of Intermediate Care MR Facilities with Title VI of the Civil Rights Act of 1964 40 TAC sec.sec.27.2601-27.2604 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107165 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter BB. Facilities with More than 15 Beds 40 TAC sec.sec.27.2701-27.2704 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107166 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter DD. Administrative Policies and Procedures 40 TAC sec.sec.27.2901-27.2917 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107167 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter EE. Admission and Release 40 TAC sec.sec.27.3001-27.3011 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107168 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter FF. Personnel Policies 40 TAC sec.sec.27.3101-27.3106 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107169 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter GG. Resident Living 40 TAC sec.sec.27.3201-27.3221 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107170 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter HH. Professional and Special Program and Services 40 TAC sec.sec.27.3301-27.3303 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107171 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter II. Dental Services 40 TAC sec.sec.27.3401-27.3406 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107172 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter JJ. Training and Habilitation Services 40 TAC sec.27.3501, sec.27.3502 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107173 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter KK. Food and Nutrition Services 40 TAC sec.sec.27.3601-27.3609 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107174 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter LL. Medical Services 40 TAC sec.sec.27.3701-27.3704 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107175 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter MM. Nursing Services 40 TAC sec.sec.27.3801-27.3804 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107176 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter NN. Pharmacy Services 40 TAC sec.sec.27.3901-27.3904 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107177 Nancy Murphy Agency liason, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter OO. Physical and Occupational Therapy Services 40 TAC sec.sec.27.4001-27.4003 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107178 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter PP. Psychological Services 40 TAC sec.27.4101, sec.27.4102 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107179 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter QQ, Recreational Services 40 TAC sec.sec.27.4201-27.4203 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107180 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter RR. Social Services 40 TAC sec.27.4301, sec.27.4302 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107181 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter SS. Special Pathology and Audiology Services 40 TAC sec.sec.27.4401-27.4403 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107182 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date : February 8, 1991 For further information, please call: (512) 450-3765 Subchapter TT. Records 40 TAC sec.sec.27.4501-27.4506 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107183 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter UU. Safety and Sanitation 40 TAC sec.sec.27.4601-27.4608 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107184 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter VV. Administrative Services 40 TAC sec.sec.27.4701-27.4704 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107185 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter WW. Residents' Personal Funds and Property 40 TAC sec.sec.27.4801-27.4804 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107186 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 Subchapter UUUU. Support Documents 40 TAC sec.27.9801 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 17, 1991. TRD-9107187 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: August 1, 1991 Proposal publication date: February 8, 1991 For further information, please call: (512) 450-3765 State Board of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's note: As required by the Insurance Code, Article 5.96 and Article 5.97, the Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act, and the final actions printed in this section have not been previously published as proposals. These actions become effective 60 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 1110 San Jacinto Street, Austin.) The State Board of Insurance has adopted a filing submitted by the Single Interest Advisory Committee of a Lender's Collateral Protection Blanket Policy, rules and rates. By Board Order Number 51390, dates August 18, 1987, the State Board of Insurance appointed an advisory committee to develop new forms and rules for the writing of single interest insurance on motor vehicles in Texas. During its deliberations, the advisory committee concluded that a separate and distinct policy was needed to address other issues and concerns affecting single interest coverage. The Collateral Policy provides a complete insurance package for lending institutions by providing coverage for losses resulting form several miscellaneous casualty perils. The specific perils covered are: errors and omissions; repossession expenses; possessory liens; instrument non-filing; premium deficiency; worldwide loss; delinquent payment; excluded loss; insufficient insurance, and loss to repossessed collateral. The Collateral Policy is designed to ensure proper pricing of the miscellaneous coverages currently provided to lending institutions in Texas. The policy should protect borrowers from having to pay inflated and excessive premiums for single interest insurance by appropriately apportioning costs between the miscellaneous casualty perils and single interest insurance. The board also adopted rules and rates for use with the Collateral Policy. The rules stipulate that the Collateral Policy will be issued for a continuous term, on a monthly or quarterly reporting form basis, and may be written individually or in conjunction with single interest insurance. The rates are based on informed judgment. The advisory committee reviewed and analyzed the rates currently being charged for similar coverages in Texas and the rates being charged outside Texas for similar coverages. The rates are considered to be reasonable, adequate, not unfairly discriminatory, and non-confiscatory as to any class of insurer. The Collateral Policy, rules, and rates become effective July 1, 1991. This new policy will be applicable to all loans that are not covered by single interest insurance as of 12:01 a.m., on July 1, 1991. (Loans covered by single interest insurance at 12:01 a.m., on July 1, 1991 will be governed by the Master Policy in effect prior to July 1, 1991.) This notification is made pursuant to the Insurance Code, Article 5.97, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on June 18, 1991. TRD-9107225 Nicholas Murphy Chief Clerk State Board of Insurance Effective date: July 10, 1991 For further information, please call:(512) 463-6327 Open Meetings Agencies with statewide jurisdiction must give at least seven days notice before an impending meeting. Institutions of higher education or political subdivisions covering all or part of four or more counties (regional agencies) must post notice at least 72 hours prior to a scheduled meeting time. Some notices may be received too late to be published before the meeting is held, but all notices are published in the Texas Register. Emergency meetings and agendas. Any of the governmental entities named above must have notice of an emergency meeting, an emergency revision to an agenda, and the reason for such emergency posted for at least two hours before the meeting is convened. Emergency meeting notices filed by all governmental agencies will be published. Posting of open meeting notices. All notices are posted on the bulletin board outside the Office of the Secretary of State on the first floor of the East Wing in the State Capitol, Austin. These notices may contain more detailed agenda than what is published in the Texas Register. Texas Department of Agriculture Tuesday, July 9, 1991, noon. The Texas Soybean Producers Board of the Texas Department of Agriculture will meet at the Ramada Love Field in Dallas, Palm Room, 3232 West Mockingbird Lane, Dallas. According to the complete agenda, the department will approve minutes; give financial report; budget to FY 1992; election; elevator notification of SPARC; ASDF report; discuss old and new business. Contact: Trent Roberts, P.O. Box 650290, Dallas, Texas, 75265-0290, 1+800-247-8691. Filed: June 19, 1991, 2:27 p.m. TRD-9107275 Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons Friday, June 28, 1991, 9 a.m. The Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons will meet at the Austin State Hospital, Canteen A & B, 4110 Guadalupe Street, Austin. According to the agenda summary, the committee will call the meeting to order and introduce members and guests; acceptance of minutes from March 22, 1991 meeting; appointment of chairman and meeting date for budget subcommittee meeting; discussion and action on new services; renewal services; new products; product changes and revisions; discussion and review of America Provides Foundation Inc. 's ceramic and plastic highway markers contract; discussion of TIBH marketing effort; and adjournment. Contact: Michael T. Phillips, P.O. Box 12866, Austin, Texas 78711, (512) 459-2604. Filed: June 18, 1991, 2:05 p.m. TRD-9107230 Employees Retirement System of Texas Thursday, June 27, 1991, 8:30 a.m. The Board of Trustees of the Employees Retirement System of Texas will meet at the ERS Auditorium, ERS Building, 18th and Brazos Streets, Austin. According to the complete agenda, the board will consider the investment of the system's assets; final adoption of an amendment to Trustee Rule 34 TAC sec.81.1 concerning the definition of an eligible dependent; consideration of the applications and reapplications of health maintenance organizations to provide services under the Texas Employees Uniform Group Insurance Program for Fiscal Year 1992; consideration of the rates, coverages, and administration of the Texas Employees Uniform Group Insurance Program for Fiscal Year 1992; hear executive director's report; set date of next trustee meeting; and adjourn. Contact: William S. Nail, 18th and Brazos Streets, Austin, Texas 78701, (512) 867-3336. Filed: June 18, 1991, 3:30 p.m. TRD-9107240 Texas Employment Commission Thursday, June 27, 1991, 8:30 a.m. The Texas Employment Commission will meet at the TEC Building, 101 East 15th Street, Room 644, Austin. According to the agenda summary, the commission will approve prior meeting notes; internal procedures of commission appeals; consideration and action on tax liability cases and higher level appeals in unemployment compensation cases listed on Commission Dockets 25 and 26; and set date of next meeting. Contact: C. Ed Davis, 101 East 15th Street, Austin, Texas 78778, (512) 463-2291. Filed: June 18, 1991, 2:53 p.m. TRD-9107233 Office of the Governor, Criminal Justice Division Friday, June 28, 1991, 9:30 a.m. The Criminal Justice Division Education Committee of the Office of the Governor will meet at the Sam Houston Building, Third Floor Conference Room, Austin. According to the complete agenda, the committee will call the meeting to order; approved minutes; appointment of Committee Secretary; Kerrville, Odessa, and Bryan Schools evaluation report; committee objectives; discussed funding; 1991/1992 training schedule/curriculum; site selections and review of site selection guidelines for future crime stoppers schools; and adjourn. Contact: David Cobos, P.O. Box 12428, Austin, Texas 78711, (512) 463-1784. Filed: June 18, 1991, 4:26 p.m. TRD-9107246 Texas Growth Fund Tuesday, July 2, 1991, 9:30 a.m. The Board of Directors of the Texas Growth Fund will meet at the Teacher's Retirement System Building, 1000 Red River Street, Austin. According to the complete agenda, the board will review organization for actual operation of the Texas Growth Fund. Contact: Winsome Jean, 201 East 14th Street, Room 706, Austin, Texas 78701, (512) 463-1814. Filed: June 19, 1991, 11:38 a.m. TRD-9107261 State Board of Insurance Thursday, June 27, 1991, 10 a.m. The State Board of Insurance will meet at the William P. Hobby Building, 333 Guadalupe Street, Room 100, Austin. According to the agenda summary, the board will discuss personnel; litigation; commissioner's orders; and solvency matters. Contact: Angelia Johnson, 333 Guadalupe Street, Austin, Texas 78701, (512) 463-6328. Filed: June 18, 1991, 4:02 p.m. TRD-9107245 Thursday, June 27, 1991, 10 a.m. The State Board of Insurance will meet at the William P. Hobby Building, 333 Guadalupe Street, Room 100, Austin. According to the agenda summary, the board will consider recession of Board Order Number 57649 transferring appointment as a designated insurer under the small premium policy plan for workers' compensation from City Insurance Company to Home Indemnity Company; consider adoption of amendment on an emergency basis and authorize publication as a proposal of 28 TAC sec.7.36, concerning requirements for an audited report of workers' compensation reserves; discuss personal matters including consideration of proposed appointment of Director of Intergovernmental Affairs; and discuss litigation. Contact: Angelia Johnson, 333 Guadalupe Street, Austin, Texas 78701, (512) 463-6328. Filed: June 19, 1991, 4:02 p.m. TRD-9107283 Public Utility Commission of Texas Monday, July 15, 1991, 1 p.m. The Public Utility Commission of Texas will meet at 7800 Shoal Creek Boulevard, Suite 450N, Austin. According to the complete agenda, the board will consider Docket Number 9300-application of Texas Utilities Electric Company for authority to change rates. Contact: Mary Ross McDonald, 7800 Shoal Creek Boulevard, Austin, Texas 78757, (512) 458-0100. Filed: June 18, 1991, 3:52 p.m. TRD-9107241 Texas National Research Laboratory Commission Thursday, June 27, 1991, 10 a.m. The Ad Hoc Committee of the Texas National Research Laboratory Commission will meet at the Johnson and Gibbs Law Offices, 15th Floor Conference Room, Suite 1500, 100 Congress Avenue, Austin. According to the agenda summary, the committee will convene the meeting; take roll call of members; report by outside counsel; consideration and action items; and adjourn. Contact: Karen Chrestay, 1801 North Hampton Road, #400, DeSoto, Texas 75115, (214) 709-3811. Filed: June 18, 1991, 4 p.m. TRD-9107243 Thursday, June 27, 1991, 2 p.m. The Personnel, Procurement, and Minority Affairs Committee of the Texas National Research Laboratory Commission will meet at Bickerstaff, Heath and Smiley Law Offices, 18th Floor Conference Room, Suite 1800, 98 San Jacinto Boulevard, Austin. According to the agenda summary, the committee will convene meeting; take roll call of members; report on state guidelines for minority participation; consideration of, and action as may be appropriate, regarding a resolution for commission guidelines for minority participation; report on status of EEO and affirmative action plan; meet in executive session to discuss personnel; and adjourn. Contact: Karen Chrestay, 1801 North Hampton Road, #400, DeSoto, Texas 75115, (214) 709-3811. Filed: June 18, 1991, 4:01 p.m. TRD-9107244 State Securities Board Monday, August 5, 1991, 10 a.m. (rescheduled from June 19, 1991, 10 a.m. ). The Securities Commissioner of the State Securities Board will meet at 1800 San Jacinto Street, Austin. According to the agenda summary, the commissioner will hold a hearing to determine whether an order should be issued revoking the registration of E. Carter Bills, II, as the registered principal of FEC Securities Corporation and whether a cease and desist order should be issued prohibiting the sale of securities issued by Federal Energy Development Company and whether a cease and desist order should be issued prohibiting Federal Energy Development Company from acting as an unregistered dealer. Contact: John Morgan, 1800 San Jacinto Street, Austin, Texas 78701, (512) 474-2233. Filed: June 18, 1991, 11:40 a.m. TRD-9107221 Monday, August 19, 1991, 10 a.m. (rescheduled from June 18, 1991, 10 a. m.). The Securities Commissioner of the State Securities Board will meet at 1800 San Jacinto Street, Austin. According to the agenda summary, the commission will hold a hearing to determine whether an order should be issued revoking or suspending the registration of Kinlaw Securities Corporation as a securities dealer and whether an order should be issued revoking or suspending the registration of Joe David Kinlaw, as the designated officer of Kinlaw Securities Corporation. Contact: John Morgan, 1800 San Jacinto Street, Austin, Texas 78701, (512) 474-2233. Filed: June 18, 1991, 11:41 a.m. TRD-9107222 Teacher Retirement System of Texas Thursday, June 20, 1991, 10:30 a.m. The Board of Trustees of the Teacher Retirement System of Texas held an emergency meeting at the Northeast Campus, Tarrant County Junior College, Conference Room, Administration Building, 828 Harwood Road, Hurst. According to the complete agenda, the board met in executive session to discuss the employment of the executive secretary and chief investment officer and to interview candidates for both positions; considered staffing and budget matters with respect to employment of and transition to a new executive secretary and chief investment officer; modified exempt position titles, responsibilities, and compensation; employment of executive secretary; employment of chief investment officer; and considered signature authorization to approve and sign vouchers. The emergency status was necessary as this was the only time members could meet. Contact: Mary Godzik, 1000 Red River Street, Austin, Texas 78701-2698, (512) 397-6400. Filed: June 18, 3:14 p.m. TRD-9107239 University of Houston System Wednesday, June 26, 1991, 8 a.m. The Board of Regents of the University of Houston System will meet at the University of Houston, Waldorf Astoria Room, Conrad Hilton College Building, Houston. According to the agenda summary, the board will discuss and/or act upon the following: approve minutes; Space Vacuum Epitaxy Center; board policies; dual employment; faculty emeriti appointments; security clearance; honorary degrees; personnel recommendations; art selection; Cullen Family Plaza Fountain; renovation of laboratory space; construction change orders; granting of easement; student housing; financial report; various contracts; computer purchases; change in fee rates; appointment of CPA firm; internal audit reports; endowment fund; Mitchell offer; gift acceptance reports and consent docket. Contact: Peggy Cervenka, 1600 Smith Street, 34th Floor, Houston, Texas 77002, (713) 754-7442. Filed: June 20, 1991, 9:55 a.m. TRD-9107323 Texas Veterans Commission Wednesday, July 10, 1991, 10 a.m. The Texas Veterans Commission will meet at the E. O. Thompson Building, Sixth Floor, 10th and Colorado Streets, Austin. According to the complete agenda, the commission will consider reports of commission; and make decisions regarding administrative matters pertaining to Texas' veterans' programs. Contact: Doug Brown, P.O. Box 12277, Austin, Texas 78711, (512) 463-5538. Filed: June 18, 1991, 1:51 p.m. TRD-9107228 Texas Board of Veterinary Medical Examiners Thursday-Saturday, June 20-22, 1991, 8 a.m. The Texas Board of Veterinary Medical Examiners met at the Wyndham Hotel, 4140 Governor's Row, Austin. According to the revised agenda summary, the board will conduct a disciplinary hearing; consider various petitions for licensure; consider proposed rules for adoption; discuss upcoming meetings and other general business; and committee report on various suggested rule revisions which the board will discuss. Contact: Don Wilson, 1946 South IH-35, Austin, Texas 78704, (512) 447-1183. Filed: June 18, 1991, 3:08 p.m. TRD-9107235 Texas Water Commission Monday, June 24, 1991, 9 a.m. The Texas Water Commission held an emergency meeting at the Stephen F. Austin Building, 1700 North Congress Avenue, Room 118, Austin. According to the agenda summary, the commission considered various matters within the regulatory jurisdiction of the commission, including specifically the adoption of new or amended agency regulations. In addition, the commission considered items previously posted for open meeting and at such meeting verbally postponed or continued to this date. With regard to any item, the commission took various actions, including but not limited to rescheduling an item in its entirety or for particular action at a future date or time. The emergency status was necessary due to reasonably unforeseeable circumstances, namely the recent passage of Senate Bill 1099 which mandates the promulgation of new regulations within certain deadlines, an emergency setting is necessary. Contact: Doug Kitts, P.O. Box 13087, Austin, Texas 78711, (512) 463-7905. Filed: June 18, 1991, 3:09 p.m. TRD-9107236 Monday, June 24, 1991, 3 p.m. The Texas Water Commission met at the Stephen F. Austin Building, 1700 North Congress Avenue, Room 118, Austin. According to the emergency revised agenda summary, the commission considered various matters within the regulatory jurisdiction of the commission. In addition, the commission considered items previously posted for open meeting and at such meeting verbally postponed or continued to this date. With regard to any item, the commission took various actions, including but not limited to scheduling an item in the entirety or for particular action at a future date or time. The emergency status was necessary due to reasonably unforeseeable circumstances, setting of this matter is necessary. Contact: Doug Kitts, P.O. Box 13087, Austin, Texas 78711, (512) 463-7905. Filed: June 18, 1991, 5:56 p.m. TRD-9107248 Friday, June 28, 1991, 10 a.m. The Texas Water Commission will meet at the Stephen F. Austin Building, 1700 North Congress Avenue, Room 123, Austin. According to the agenda summary, the commission will consider various matters within the regulatory jurisdiction of the commission. In addition, the commission will consider items previously posted for open meeting and at such meeting verbally postponed or continued to this date. With regard to any item, the commission may take various actions, including but not limited to scheduling an item in the entirety for particular action at a future date or time. Contact: Doug Kitts, P.O. Box 13087, Austin, Texas 78711, (512) 463-7905. Filed: June 18, 1991, 3:10 p.m. TRD-9107238 Wednesday, August 7, 1991, 3 p.m. The Texas Water Commission will meet at the Stephen F. Austin Building, 1700 North Congress Avenue, Room 118, Austin. According to the complete agenda, the commission will consider an application by H. S. Sizemore and Son Company, Application Number 5361 for an 11. 121 Water Use Permit to impound a maximum of not to exceed 1915 acre-feet of state water in an existing excavated 4805 acre-feet reservoir (2890 acre-feet of groundwater seepage) on Carreta Creek, tributary of San Fernado Creek, tributary of Baffin Bay, Nueces-Rio Grande Coastal Basin, one mile west of Bishop, Nueces County. Contact: Rick Airey, P.O. Box 13087, Austin, Texas 78711, (512) 371-6384. Filed: June 18, 1991, 3:10 p.m. TRD-9107237 Regional Meetings Meetings Filed June 17, 1991 The Wise County Appraisal District Appraisal Review Board met at 206 South State Street, Decatur, June 20, 1991, at 9 a.m. Information may be obtained from Peggy Price, 206 South State Street, Decatur, Texas 76234, (817) 627-3081. TRD-9106144. Meetings Filed June 18, 1991 The Austin-Travis County Mental Health and Mental Retardation Finance and Control Committee met at 1430 Collier Street, Austin, June 24, 1991, at noon. (rescheduled from June 19, 1991). Information may be obtained from Sharon Taylor, 1430 Collier Street, Austin, Texas 78704, (512) 447-4141. TRD-9107220. The Henderson County Appraisal District Appraisal Review Board will meet at 1751 Enterprise Street, Athens, June 24-26, 1991, at 9 a.m. Information may be obtained from Helen Marchbanks, 1751 Enterprise Street, Athens, Texas 75751, (903) 675-9296. TRD-9107232. The North Texas Municipal Water District Board of Directors will meet at the Administrative Offices, 505 East Brown Street, Wylie, June 27, 1991, at 4 p.m. Information may be obtained from Carl W. Riehn, P.O. Box 2408, Wylie, Texas 75098, (214) 442-5405. TRD-9107229. Meetings Filed June 19, 1991 The Ark-Tex Council of Governments Board of Directors will meet at the Naples Motor Inn Restaurant, Naples, June 27, 1991, at 5:30 p.m. Information may be obtained from Elizabeth Lea, P.O. Box 5307, Texarkana, Texas 75505, (903) 832-8636. TRD-9107249. The Capital Area Rural Transportation System (CARTS) Board of Directors will meet at 5111 East First Street, Conference Room, Austin, June 27, 1991, at 9 a.m. Information may be obtained from Edna M. Burroughs, CARTS, 5111 East First Street, Austin, Texas 78702, (512) 478-7433. TRD-9107258. The Colorado River Municipal Water District Board of Directors will meet at 400 East 24th Street, Big Spring, June 27, 1991, at 10 a.m. Information may be obtained from O. H. Ivie, P.O. Box 869, Big Spring, Texas 79720, (915) 267-6341. TRD-9107281. The Dewitt County Appraisal District Appraisal Review Board will meet at the Dewitt Appraisal District Office, 103 Bailey Street, Cuero, June 26-27, 1991, at 9 a.m. Information may be obtained from John Haliburton, P.O. Box 4, Cuero, Texas 77954, (512) 275-5753. TRD-9107253. The Education Service Center Region XV Regional Advisory Committee will meet at the El Patio Motel, 1901 West Beauregard, Matador Room, San Angelo, June 25, 1991, at 10 a.m. Information may be obtained from Clyde Warren, P.O. Box 5199, San Angelo, Texas 76902, (915) 658-6571. TRD-9107267. The Education Service Center Region XV Board will meet at the ESC Region XV, 612 South Irene Street, Conference Room One, San Angelo, June 25, 1991, at 1:30 p.m. Information may be obtained from Clyde Warren, P.O. Box 5199, San Angelo, Texas 76902, (915) 658-6571. TRD-9107268. The Gonzales County Appraisal District Agricultural Advisory Board will meet at 928 St. Paul Street, Gonzales, June 25, 1991, at 7 p.m. Information may be obtained from Glenda Strackbein, P.O. Box 867, Gonzales, Texas 78629, (512) 672-2879. TRD-9107266. The Gonzales County Appraisal District Appraisal Review Board will meet at 928 St. Paul Street, Gonzales, June 27, 1991, at 6 p.m. Information may be obtained from Glenda Strackbein, P.O. Box 867, Gonzales, Texas 78629, (512) 672-2879. TRD-9107265. The Heart of Texas Council of Governments Executive Committee will meet at 300 Franklin Avenue, HOTCOG Board Room, Waco, June 27, 1991, at 10 a.m. Information may be obtained from Mary McDow, 300 Franklin Avenue, Waco, Texas 76701, (817) 756-7822. TRD-9107250. The Jack County Appraisal District Appraisal Review Board met at 210 North Church Street, JCAD Conference Room, Jacksboro, June 24, 1991, at 8:30 a.m. Information may be obtained from Donna Hartzell, P.O. Box 958, Jacksboro, Texas 76056, (817) 567-6301. TRD-9107263. The Jack County Appraisal District Appraisal Review Board will meet at 210 North Church Street, JCAD Conference Room, Jacksboro, June 25, 1991, at 8:30 a.m. Information may be obtained from Donna Hartzell, P.O. Box 958, Jacksboro, Texas 76056, (817) 567-6301. TRD-9107264. The Jack County Appraisal District Appraisal Review Board will meet at 819 West Belknap, Jacksboro ISD Agriculture Science and Technology Building, Jacksboro, June 28, 1991, at 10 a.m. Information may be obtained from Donna Hartzell, P.O. Box 958, Jacksboro, Texas 76056, (817) 567-6301. TRD-9107276. The Leon County Central Appraisal District Board of Directors met at the Leon County Central Appraisal District Office, Gresham Building, Centerville, June 24, 1991, at 7:30 p.m. Information may be obtained from Robert M. Winn, P.O. Box 536, Centerville, Texas 75833, (903) 536-2252. TRD-9107282. The Northeast Texas Municipal Water District Board of Directors met at Highway 250 South, Hughes Springs, June 24, 1991, at 10 a.m. Information may be obtained from J. W. Dean, P.O. Box 955, Hughes Springs, Texas 75656, (214) 639-7538. TRD-9107252. The Sabine River Authority of Texas Board of Directors will meet at the Fredonia Hotel, Nacogdoches, June 28, 1991, at 10 a.m. Information may be obtained from Sam F. Collins, P.O. Box 579, Orange, Texas 77630, (409) 746-3200. TRD-9107269. The San Antonio-Bexar County Metropolitan Planning Organization Steering Committee met at the San Antonio City Hall Basement Conference Room, San Antonio, June 24, 1991, at 1 p.m. Information may be obtained from Charlotte Roszelle, Room 101, Bexar County Courthouse, San Antonio, Texas 78205-3036, (512) 227-8651. TRD-9107270. The Tarrant Appraisal District Appraisal Review Board will meet at 2309 Gravel Road, Fort Worth, July 1-3, 5, 8-13, 15-19, 22-26, 29-31, 1991, at 8: 30 a.m. Information may be obtained from Suzanne Williams, 2309 Gravel Road, Fort Worth, 76118, (817) 284-8884. TRD-9107271. The Texas Panhandle Mental Health Authority Board of Trustees will meet at 7120 I-40 West, Suite 150, Amarillo, June 27, 1991, at 10:30 a.m. Information may be obtained from Mellisa Talley, P.O. Box 3250, Amarillo, Texas 79105, (806) 353-3699. TRD-9107251. The Tyler County Appraisal District Appraisal Review Board will meet at 806 West Bluff, Woodville, June 26, 1991, at 10 a.m. Information may be obtained from Linda Lewis, P.O. Drawer 9, Woodville, Texas 75979, (409) 283-3736. TRD-9107262. The Upshur County Appraisal District Appraisal Review Board will meet at the Upshur County Appraisal District Office, Warren & Trinity Street, Gilmer, June 26, 1991, at 8 a.m. Information may be obtained from Louise Stracener, P.O. Box 280, Gilmer, Texas 75644, (903) 843-3041. TRD-9107260. The Wise County Appraisal District Appraisal Review Board will meet at 201 East Walnut Street, Decatur, June 28, 1991, at 10 a.m. Information may be obtained from Peggy Price, 206 South State Street, Decatur, Texas 76234, (817) 627-3081. TRD-9107259. Meetings Filed June 20, 1991 The Brazos River Authority Retirement Committee, Board of Directors will meet at 4400 Cobbs Drive, Waco, June 27, 1991, at 10 a.m. Information may be obtained from Mike Bukala, P.O. Box 7555, Waco, Texas 76714-7555, (817) 776-1441. TRD-9107317. The Brazos River Authority Administrative Policy Committee, Board of Directors will meet at 4400 Cobbs Drive, Waco, June 28, 1991, at 10 a.m. Information may be obtained from Mike Bukala, P.O. Box 7555, Waco, Texas 76714-7555, (817) 776-1441. TRD-9107318. The Golden Crescent Regional Planning Commission Board of Directors will meet at the GCRPC Board Room, Regional Airport, Building 102, Victoria, June 26, 1991, at 5 p.m. Information may be obtained from Patrick J. Kennedy, P.O. Box 2028, Victoria, Texas 77902, (512) 578-1587. TRD-9107316. The Gonzales County Appraisal District Appraisal Review Board will meet at 928 St. Paul Street, Gonzales, July 9, 1991, at 2 p.m. Information may be obtained from Glenda Strackbein, P.O. Box 867, Gonzales, Texas 78629, (512) 672-2879. TRD-9107315. The Gonzales County Appraisal District Appraisal Review Board will meet at 928 St. Paul Street, Gonzales, July 11, 1991, at 9 a.m. Information may be obtained from Glenda Strackbein, P.O. Box 867, Gonzales, Texas 78629, (512) 672-2879. TRD-9107314. The Lampasas County Appraisal District Appraisal Review Board will meet at 109 East Fifth Street, Lampasas, June 25-27, 1991, at 9 a.m. Information may be obtained from Janice Henry, P.O. Box 175, Lampasas, Texas 76550, (512) 556-8058. TRD-9107322. The Middle Rio Grande Development Council Board of Directors will meet at the Country Club, East Main Street (behind K-Mart), Uvalde, June 26, 1991, at 2 p.m. (revised agenda). Information may be obtained from Michael Patterson, P.O. Box 1199, Carrizo Springs, Texas 78834, (512) 876-3533. TRD-9107319. The Parmer County Appraisal District Board of Directors will meet at 305 Third Street, Bovina, July 11, 1991, at 8 p.m. Information may be obtained from Ron Procter, P.O. Box 56, Bovina, Texas 79009, (806) 238-1405. TRD-9107321. The Pecan Valley Mental Health and Mental Retardation Region Board of Trustees will meet at the Pecan Valley MHMR Region Clinical Office, 104 Charles Street, Granbury, June 26, 1991, at 9 a.m. Information may be obtained from Dr. Theresa Mulloy, P.O. Box 973, Stephenville, Texas 76401, (817) 965-7806. TRD-9107312. The San Jacinto River Authority Board of Directors will meet at the Lake Conroe Office Building, Conference Room, Highway 105 West, Conroe, June 26, 1991, at noon. Information may be obtained from James R. Adams, P.O. Box 329, Conroe, Texas 77305, (409) 588-1111. TRD-9107320. The Trinity River Authority of Texas Board of Directors will meet at 5300 South Collins Street, Arlington, June 26, 1991, at 10:30 a.m. Information may be obtained from J. Sam Scott, P.O. Box 60, Arlington, Texas 76004, (817) 467-4343. TRD-9107324. ISSUE OFJune 25, 1991" In Addition The Texas Register is required by statute to publish certain documents, including applications to purchase control of state banks, notices of rate ceilings, changes in interest rate and applications to install remote service units, and consultant proposal requests and awards. To aid agencies in communicating information quickly and effectively, other information of general interest to the public is published as space allows. Texas Department of Aviation Consultant Contract Award The following consultant contract award for providing professional engineering services is filed under the provisions of the Texas Civil Statutes, Article 6252-11c. The consultant's proposal request for professional engineering services was published in the December 21, 1990, issue of the Texas Register (15 TexReg 7456). The consultant proposals will be for professional engineering services for the design and construction administration phases for the following TDA project: 92/23-2-1, Beaumont Municipal Airpark. The engineering firm for these services is: Aviation Alliance, Inc., 101 Timberline North, Colleyville, Texas 76034. The total value of the contract is $94,664 and the contract period starts on June 12, 1991, until the completion of the project. Issued in Austin, Texas, on June 18, 1991. TRD-9107217 Lydia Scarborough Deputy Director, Support and Services Texas Department of Aviation Filed: June 18, 1991 For further information, please call: (512) 476-9262 Comptroller of Public Accounts Electronic Filing of Tax Returns The Comptroller of Public Accounts intends to implement an Electronic Filing Tax Return System this year under 34 TAC s3.9, concerning electronic filing of returns and reports; electronic transfer of certain payments by certain taxpayers. The Electronic Filing Tax Return System will be based on a new national standard being developed by the Accredited Standards Committee X12 (ASC X12). The new standard being developed is "813" Electronic Filing of Tax Return Data. The comptroller will begin testing of its Electronic Filing Tax Return System in July 1991 on a limited basis. Taxpayers and vendors are invited to participate in the testing of the comptroller's system. The initial tests will be for the filing of Texas Sales and Use Tax Returns, Forms 01-114, 01-115, 01-116, and 01-123. If you would like to receive additional information on electronic filing of tax returns, please contact Clovis Boatright at (512) 463-3605, or you may request information by writing to: Clovis Boatright, P.O. Box 13528, Austin, Texas 78711. Issued in Austin, Texas, on June 17, 1991 TRD-9107135 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Filed: June 17, 1991 For further information, please call: (512) 463-4028 Texas Department of Criminal Justice-Pardons and Paroles Request for Proposal Pursuant to the Texas Code of Criminal Procedure, Article 42.18, sec.26, Texas Department of Criminal Justice, Pardons and Paroles Division will begin the process of negotiating contracts for the upcoming fiscal year to begin September 1, 1991, on its community-based facilities throughout the state. These contracts will run for a period of one year with a one year option for renewal. The contract as well as any extensions will be subject to appropriations for such purpose by the Texas Legislature. The Division intends to enter into negotiations first with existing operators but will accept from other vendors a proposal for the housing of these residents in community-based facilities (to house Parole and Mandatory Releasees or to house Pre-Parole Transfers). These proposals will be considered in the event the Division is unable to successfully negotiate a contract with an existing operator. To the extent possible, the Division intends to maintain facilities in the proximate vicinity of the current facilities. Qualification requirements may obtained from the Business Management section of the Division. Contact Jerry Wall, Director of Business Management at P.O. Box 13401, Austin, Texas 78711-3401, (512) 343-4800. Inquiries for information may be requested from Kent Olson (512)459-2784. Issued in Huntsville, Texas, on May 31, 1991. TRD-9107133 Leonard W. Peck, Jr. Assistant General Counsel Texas Department of Criminal Justice Filed: June 17, 1991 For further information, please call: (409) 294-2141 Employees Retirement System of Texas Consultant Contract Award This award for flexible benefit claim administration services is being filed pursuant to the provisions of Texas Civil Statutes, Article 6252-11c. The request for proposal was published in the March 12, 1991, issue of the Texas Register (16 TexReg 1515). Claim administration services are required to provide ongoing support and technical assistance to the Employees Retirement System of Texas for the term of one year beginning on September 1, 1991, renewable annually by the executive director for the two following years under the same terms and conditions. The claim administrator selected is ERISA Administrative Services, Inc., 12325 Hymeadow Drive #4, Austin, Texas 78750. Issued in Austin, Texas, on June 14, 1991. TRD-9107197 Charles D. Travis Executive Director Employees Retirement System of Texas Filed: June 17, 1991 For further information, please call: (512) 867-3335 Texas Department of Human Services Public Notice The Texas Department of Human Services (TDHS) is planning to submit a Medicaid state plan amendment to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA '90), sec.4711. This action will ensure continued coverage to those persons receiving Medicaid funded personal care services in the community through their special status under the 1115 Medicaid waiver entitled "Modifications of the Texas System of Care for the Elderly: Alternatives to the Institutionalized Aged," which ends June 30, 1991. The amendment will describe the reimbursement methodology addressing the cost reporting and the rate determination processes for the services offered under OBRA '90, sec.4711. The current Medicaid personal care services reimbursement methodology, located in the Medicaid state plan in Attachment 4.19-B, page 6, sec.14, will be used for rate determination for the services offered under OBRA '90, sec.4711. Section 4711 is being implemented effective July 1, 1991. Implementing sec.4711 will allow Texas to receive federal matching funds which would not be available under other alternatives. The net decrease in aggregate expenditures to the state for implementing sec.4711, compared to not implementing and serving these clients with state funds only, for July and August 1991 is estimated to be $1,796,981. The increase in annual aggregate expenditures for fiscal year 1992 is estimated to be $681,401. Local TDHS field offices have copies of the personal care services reimbursement methodology for public review, or contact Ernest McKenney, MC W-521, P.O. Box 149030, Austin, Texas 78714-9030, (512) 450-3165. Written comments may be submitted to Mr. McKenney. Issued in Austin, Texas, on June 19, 1991. TRD-9107257 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Filed: June 19, 1991 For further information, please call: (512) 450-3765 Texas Department of Mental Health and Mental Retardation Notice of Public Hearing Texas Department of Mental Health and Mental Retardation (TXMHMR) will hold a public hearing on a proposed draft plan for new bed development in the Texas ICF/MR program for fiscal years 1992-1993. The public hearing is scheduled for Wednesday, July 10, 1991, from 1:30 p.m. to 4 p.m. in the TXMHMR Central Office Auditorium at 909 West 45th Street, Austin, Texas, 78756. Representatives of TXMHMR will be present to explain the development of the plan and to consult with and receive comments from interested citizens and affected groups. All written and oral comments will be considered in the preparation of the final plan. TXMHMR is required by state law to adopt the plan by rule, and Senate Bill 33 of the 72nd Texas Legislature requires that the plan be developed on a biennial rather than annual basis. This plan will be proposed as a revision of the plan currently adopted by reference as Exhibit J in sec.401. 53 of Chapter 401, Subchapter B governing Interagency Agreements. Copies of the draft plan are available for review in TXMHMR's Office of Policy Development, 4405 North Lamar Boulevard, Room 411, Austin, Texas 78756, or by calling Linda Logan, Director, Policy Development, (512) 465-4516. If deaf interpreters are required, notify Carole Smith, (512) 323-3261, 72 hours prior to the meeting. Issued in Austin, Texas, on June 17, 1991 TRD-9107272 Harry Deckard Attorney Legal Services Division Texas Department of Mental Health and Mental Retardation Filed: June 19, 1991 For further information, please call: (512) 465-4591 Nortex Regional Planning Commission Request for Proposal The Nortex Regional Planning Commission is requesting proposals for engineering assistance in the formulation of the Solid Waste Management Plan for the 11 counties and 32 cities comprising the region. This proposal will encompass a 13-month period initiating August 1, 1991, and terminating August 31, 1992. This request is filed under the provisions of Texas Civil Statutes, Article 664-4, Professional Services Procurement Act. Scope of Work. The engineering contract will encompass all project-related engineering services to the Nortex Regional Planning Commission, including but not limited to the following: evaluate current solid waste management systems relative to: roles, responsibilities, and institutional arrangements; capacity of existing solid waste facilities; current and future facility needs; waste management problems and alternatives; evaluation of alternative solutions; evaluate special requirements, problems, and opportunities; evaluation of waste reduction opportunities. Statement of Qualifications . The Nortex Regional Planning Commission is seeking to contract with a competent engineering firm, registered to practice in the State of Texas, that has had experience in the following areas: landfill design and construction; solid waste transporting methods and equipment; alternatives to landfilling; familiarity with Texas Department of Health, Municipal Solid Waste Regulations, August 1990; projects located in this region of the state. Request for proposal packages may be obtained by contacting C. E. Holt, P.E., Physical Planner, Nortex Regional Planning Commission, P.O. Box 5144, Wichita Falls, Texas, 76307, (817) 322-5281. A mandatory bidders conference is scheduled for July 8, 1991, at the office of the Nortex Regional Planning Commission. All proposals must received no later than 5 p.m. Central Standard Time, July 31, 1991. Proposals received after that date and time will be returned unopened. Issued in Wichita Falls, Texas, on June 14, 1991. TRD-9107140 Dennis Wilde Executive Director Nortex Regional Planning Commission Filed: June 17, 1991 For further information, please call: (512) 322-5281 Texas Public Finance Authority Request for Proposal for Accounting Services The Texas Public Finance Authority (TPFA) is requesting proposals for accounting services. The deadline for proposal submission is 12 noon, August 1, 1991. Selection will be based on the qualifications and experience of the firms, as well as the reasonableness of the hourly rate, provided that all criteria and specifications are met or exceeded. This request is in accordance with Texas Civil Statutes, Article 6252-11c. Copies of the proposal request may be obtained by calling or writing Catherine L. Nall, Texas Public Finance Authority, P.O. Box 12906, Austin, Texas 78711, (512) 463-5544. Issued in Austin, Texas, on June 17, 1991. TRD-9107139 Catherine L. Nall Chief Accountant I Texas Public Finance Authority Filed: June 17, 1991 For further information, please call: (512) 463-5544 Public Utility Commission of Texas Notice of Application to Amend Certificate of Convenience and Necessity Notice is given to the public of the filing with the Public Utility Commission of Texas of an application on June 12, 1991, to amend a Certificate of Convenience and Necessity pursuant to the Public Utility Regulatory Act, sec.16(a), 18(b), 50, 52, and 54. A summary of application follows. Docket Title and Number . Application of GTE Southwest Incorporated to amend Certificate of Convenience and Necessity within Fannin County, Docket Number 10411, before the Public Utility Commission of Texas. The Application. In Docket Number 10411, GTE Southwest Incorporated seeks approval of its application to amend the exchange area boundary between its Bonham exchange and Contel of Texas, Inc.'s Bells/Savoy exchange in order to provide telephone service to a residential customer. Persons who wish to intervene in the proceeding or comment upon action sought, should contract the Public Utility Commission of Texas at 7800 Shoal Creek Boulevard, Suite 400N, Austin, Texas, 78757, or call the Public Utility Commission Public Information Office within 15 days of this notice at (512) 458-0256. The telecommunications device for the deaf (TDD) number for the Public Information Office is (512) 458-0221. Issued in Austin, Texas, on June 17, 1991. TRD-9107157 Mary Ross McDonald Secretary of the Commission Public Utility Commission of Texas Filed: June 17, 1991 For further information, please call: (512) 458-0100 Notice of Petition for Waiver of Substantive Rules 23.11 and 23.12 Notice is given to the public of the filing with the Public Utility Commission of Texas of a petition on June 10, 1991, to waive, Public Utility Commission Substantive Rules 23.11 and 23.12. Docket Title and Number. Application of Southwest Arkansas Electric Cooperative Corporation for exemption from filing the Earnings Monitoring Reports required by Substantive Rules 23.11 and 23.12, Docket Number 10403 before the Public Utility Commission of Texas. The Application. In Docket Number 10403, Southwest Arkansas Electric Cooperative Corporation filed a petition seeking waiver of Public Utility Commission Substantive Rules 23.11 and 23.12. Persons who wish to intervene in the proceeding or comment upon action sought, should contact the Public Utility Commission of Texas, at 7800 Shoal Creek Boulevard, Suite 400N, Austin, Texas 78757, or call the Public Utility Commission Public Information Division at (512) 458-0256, or (512) 458-0221 teletypewriter for the deaf before August 23, 1991. Issued in Austin, Texas, on June 18, 1991. TRD-9107242 Mary Ross McDonald Secretary of the Commission Public Utility Commission of Texas Filed: June 18, 1991 For further information, please call: (512) 458-0100 Texas Water Commission Notice of Closure Guidance Documents Title 31, Texas Administrative Code (TAC), sec.335.3, requires the executive director of the Texas Water Commission (TWC) to make available, on request, copies of technical guidelines outlining methods designed to aid in the prevention of the conditions prohibited in 31 TAC Chapter 335. The executive director has established closure guidance document Number 6, Closure Requirements for Interim Status Hazardous Waste Incinerators and which reflect TWC experience and application of current regulations. A copy of the proposed closure guidance document may be examined weekdays from 8 a.m. to 5 p.m. in Central Records, Room B12, of the Stephen F. Austin State Office Building, 1700 North Congress Avenue, Austin, or at any of the TWC district offices. Questions about the proposed closure guidance document should be directed to Kim Hellinghausen at (512) 463-8175. Persons desiring to provide comments on the proposed guideline may do so by writing to Grace M. Montgomery, Hazardous and Solid Waste Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. Comments will be accepted until 30 days from date of publication, at 5 p.m. Issued in Austin, Texas, on June 19, 1991. TRD-9107254 Jim Haley Director Legal Division Texas Water Commission Filed: June 19, 1991 For further information, please call: (512) 463-8175