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 1. ADMINISTRATION
Part IV. Office of the Secretary of State
Chapter 81. Elections
Political Parties
1 TAC sec.sec.81.100-81.133
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Office of the 
Secretary of State or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The Office of the Secretary of State proposes the repeal of sec.sec.81.100-
81.133, concerning elections. The repeals regard the financing of the 1992 
primary elections with state funds, including the determination of necessary and 
proper expenses relating to the proper conduct of the primary elections by party 
officials and the procedures for requesting reimbursement by the parties for 
such expenses.
Tom Harrison, special assistant for elections, has determined that for the first 
five-year period the repeals are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
repeals.
Mr. Harrison also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will the proper conduct of the 1992 primary elections by party 
officials with the aid of state money appropriated for that purpose. There will 
be no effect on small businesses. There will be an anticipated economic cost to 
the state and county chairs of the Democratic and Republican parties.
Comments on the proposal may be submitted to the Office of the Secretary of 
State,  Tom Harrison, Special Assistant for Elections, P.O. Box 12060. Austin, 
Texas 78711.
The repeals are proposed under the Texas Election Code,  s31.003 and sec.173. 
006, which provides the Office of the Secretary of State with the authority to 
obtain and maintain uniformity in the application, interpretation, and operation 
of provisions under the Texas Election Code and other election laws, and in 
performing such duties, to prepare detailed and comprehensive written directives 
and instructions based on such laws, and to adopt rules consistent with the 
Election Code that reduce the cost of the primary elections or facilitate the 
holding of the elections within the amount appropriated by the legislature for 
that purpose.
sec.81.100. Payable Costs.
sec.81.101. Primary Administrator.
sec.81.102. Other Salaried Personnel.
sec.81.103. Contracts for Labor.
sec.81.104. Election Services Contract.
sec.81.105. Employee Fidelity Bond.
sec.81.106. Office Rent.
sec.81.107. Office Equipment.
sec.81.108. Office Supplies and Copies of the Texas Election Code.
sec.81.109. Telephone and Postage Charges.
sec.81.110. Competitive Quotations for Services or Products.
sec.81.111. Bank Account for Primary Fund Deposits and Expenditures.
sec.81.112. Deposit of Currency.
sec.81.113. List of Candidates and Filing Fees.
sec.81.114. Interest on Loans.
sec.81.115. Signature on Checks; Authorization of Primary Fund Expenditures.
sec.81.116. Payee of Checks Restricted to an Entity or Person.
sec.81.117. Form of Payments; Petty Cash Fund; Documentation of Petty Cash 
Transactions.
sec.81.118. Documentation of Expenses/Record Keeping.
sec.81.119. Legal Expenses.
sec.81.120. Transfer of Records to New Chairman.
sec.81.121. General Primary Election Cost Estimate Transmitted to the Secretary 
of State Prior to the Close of the Regular Filing Period.
sec.81.122. Returning Surplus Funds.
sec.81.123. County Election Officer Not to Receive Compensation Under Election 
Services Contracts for 1990 Primary Election.
sec.81.124. Transportation Costs.
sec.81.125. Compensation for Services at the Polling Places.
sec.81.126. Compensation for Delivery Election Records and Supplies.
sec.81.127. Reimbursement for Election Schools.
sec.81.128. Unemployment Taxes.
sec.81.129. Estimating Voter Turnout.
sec.81.130. Number of Paper or Electronic Voting System Ballots per Voting 
Precinct.
sec.81.131. Number of Election Workers per Voting Precinct.
sec.81.132. Number of Voting Machines, Devices, and/or Precinct Ballot Counters 
per Voting Precinct.
sec.81.133. Application of Rules.
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 September 16, 1991.
TRD-9111463
Audrey Selden
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 463-5645
       
1 TAC sec.sec.81.100-81.138
The Office of the Secretary of State proposes new sec. s81.100-81.138 concerning 
elections. The new sections regard the financing of the 1992 primary elections 
with state funds, including the determination of necessary and proper expenses 
relating to the proper conduct of the primary elections by party officials and 
the procedures for requesting reimbursement by the parties for such expenses.
Tom Harrison, special assistant for elections, has determined that for the first 
five-year period the sections are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
sections.
Mr. Harrison also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be the proper conduct of the 1992 primary elections by party 
officials with the aid of state money appropriated for that purpose. There will 
be no effect on small businesses. There will be an anticipated economic cost to 
the state and county chairs at the Democratic and Republican parties.
Comments on the proposal may be submitted to the Office of the Secretary of 
State Tom Harrison, Special Assistant for Elections, P.O. Box 12060, Austin, 
Texas 78711.
The new sections are proposed under the Texas Election Code, sec.31.003 and 
sec.173.006, which provides the Office of the Secretary of State with the 
authority to obtain and maintain uniformity in the application, interpretation, 
and operation of provisions under the Texas Election Code and other election 
laws, and in performing such duties, to prepare detailed and comprehensive 
written directives and instructions based on such laws, and to adopt rules 
consistent with the Election Code that reduce the cost of the primary elections 
or facilitate the holding of the elections within the amount appropriated by the 
legislature for that purpose.
sec.81.100. Payable Costs. <ol> In accordance with the Texas Election Code, 
sec.173.001, only expenses necessary and directly related to the conduct of 
primary elections are payable from primary funds. The Texas Election Code, 
sec.173.006 allows the Secretary of State to adopt rules consistent with the 
Election Code that reduce the cost of primary elections. Political expenses, 
those expenses which would be incurred if there were no election, and expenses 
for any activity forbidden by statute or rule are not primary election costs 
subject to primary fund reimbursement. Examples of non-payable expenses include, 
but are not limited to: expenses incurred in connection with a convention of a 
political party, any food or drink items, all costs associated with voter 
registration drives, and get out the vote campaigns. Pursuant to the Texas 
Election Code, sec.173.031, primary funds include filing fees, contributions to 
the primary fund, state appropriations, and other income earned by the fund. Any 
refund of money expended from the primary fund is also part of the primary fund.
sec.81.101. Payee of Checks Restricted. Except for the check written to 
establish a petty cash fund, no check written on the primary fund shall be made 
payable to cash or bearer. All checks other than the check written to establish 
a petty cash fund shall be made payable to an entity or person. No checks from 
the primary fund may be made payable to the county party as contributions or to 
election judges as reimbursement for payments to election clerks. No payment may 
be made from the primary fund to an entity or business in which the county 
chair, chair's spouse, or chair's family has a financial interest.
sec.81.102. Form of Payments; Petty Cash Fund; Documentation of Petty Cash 
Transactions. All payments from the primary fund shall be made by check, except 
that the county chair may establish a petty cash fund not exceeding $100 for 
minor purchases and payments. Complete documentation of all petty cash 
transactions shall be kept.
sec.81.103. Administrative Personnel. <ol> Salaries or wages of administrative 
personnel necessary to aid in the conduct of the primary elections are payable 
from the primary fund for the period beginning on December 1 preceding the 
primary elections and ending on the last day of the month in which the last 
primary election is held (general or runoff primary election). Such personnel 
may not be employed without the prior written approval of the secretary of 
state. Salaries must be reasonable for the hours worked and services rendered 
and must reflect the salaries paid in the locale for the same or similar 
services. Gross compensation for each full-time primary fund employee may not 
exceed $1,500 per month. In counties with more than 100,000 registered voters, 
one full time supervisory employee may be employed at a gross compensation not 
to exceed $2,000 per month. A list of necessary personnel to be paid from the 
primary fund must be transmitted to the secretary of state and must indicate the 
name and title of the employee, job duties, hours to be worked, period of 
employment, monthly or hourly rate of pay, and the estimated or actual gross pay 
for the period. This information must also be attached to each finance report.
sec.81.104. Administrative Personnel Payroll Taxes. No payment may be made from 
the primary fund for penalties arising from failure to pay the employer portion 
of employment taxes. Copies of all quarterly 941 returns filed with the Internal 
Revenue Service must be kept with the county primary records and be transmitted 
to the secretary of state upon request.
sec.81.105. Contracts for Services. Contracts for services costing over $500 
must be approved in writing by the secretary of state before money from the 
primary fund may be expended under the terms of such contracts. The fee or rate 
must be reasonable for the services rendered and must reflect the fee or rate 
prevailing in the locale for the same or similar services. The contract shall be 
signed by both the county chair and the contractor.
sec.81.106. Election Services Contract. The Model Election Services Contract<ol> 
prescribed by the secretary of state is adopted by reference. Copies of the 
contract may be obtained from the secretary of state. The model contract must be 
used in an agreement for election services pursuant to the Texas Election Code, 
Chapter 31, Subchapter B, between the county executive committee and the county 
elections officer, unless otherwise authorized by the secretary of state. Any 
modification of an election services contract is not binding until approved in 
writing by the secretary of state, and execution of the contract is not 
completed until written approval is obtained. The county elections officer must 
submit an accounting of the actual costs incurred in performance of the election 
services contract before the county chair may make final payment. Only actual 
costs incurred by the county and payable under provisions of the Election Code, 
election services contract, or 1992 primary rules may be paid to the county from 
primary funds. A contract may not allow for reimbursement for training of 
election workers or providing materials published by the secretary of state. 
Regular salaries of personnel regularly employed by the county may not be paid 
from or reimbursed to the county from the primary fund. An election services 
contract for the 1992 primary elections cannot provide for any salary or 
compensation of the county election officer for the performance of any statutory 
duty or service.
sec.81.107. Early Voting Costs Not Payable. Pursuant to the Texas Election Code, 
sec.173.003, the only expense to be paid from primary funds for early voting 
(formerly called absentee voting) is the cost of ballots. The county must pay 
for by-mail kits and their postage, early voting workers, and all other costs 
incurred in conducting early voting. No costs related to early voting shall be 
included in a primary election services contract or primary cost reports. 
Expenses related to the early voting ballot board are payable from the primary 
fund.
sec.81.108. Employee Fidelity Bond Required. The purchase of a fidelity bond for 
those persons, including the county chair, whose responsibilities include the 
receipt and/or expenditure of primary funds is required and payable from the 
primary fund. The amount of the bond is based upon the anticipated total amount 
of money the employee is expected to handle for the period beginning December 1 
before the primary elections and ending the last day of the month in which the 
final primary election (either general or runoff) is held. The maximum 
anticipated amount of money handled by any such employee for purposes of 
determining the cost of the bond shall be $50,000.
sec.81.109. Office Rent. <ol> Office rent is payable from the primary fund for 
the period beginning on December 1 preceding the primary elections and ending on 
the last day of the month in which the last primary is held (general or runoff 
primary election). A copy of the lease agreement shall be transmitted to the 
secretary of state along with the Primary Election Cost Estimate.<ol> Office 
rent shall not exceed the fair market rate for office space in the locale. Any 
change in a lease agreement and an explanation of such change shall be 
transmitted to the secretary of state with the next required primary election 
estimate or report. Rental charges may not be paid from the primary fund for the 
use of occupied residential property.
sec.81.110. Office Equipment. <ol> Office equipment (including telephone 
equipment) necessary for the administration of the primary elections may be 
leased for the period beginning December 1 preceding the primary and ending on 
the last day of the month in which the last primary is held (general or runoff 
primary election). The county party may not rent or lease party owned equipment 
to the primary fund. The primary fund may not be used to purchase any 
administrative item of more than $100 in value.
sec.81.111. Office Supplies and Two Copies of the Texas Election Code.  <ol> 
Purchases of office supplies necessary for the administration of the primary 
elections are payable from the primary fund. The expenditure for purchase of two 
copies of a paperback version of the Texas Election Code<ol> is authorized from 
the primary fund. No payment may be made from the primary fund for notary public 
expenses.
sec.81.112. Telephone and Postage Charges. Telephone costs, for a maximum of two 
telephone lines, and postage charges which are incurred during the period from 
December 1 preceding the primary elections and ending on the last day of the 
month in which the last primary is held and which are directly related to the 
administration of the primary elections, are payable from the primary fund. Any 
cost not directly attributable to the administrative conduct of the primary 
elections is not payable from the primary fund.
sec.81.113. Competitive Quotations For Services or Products.  Unless prior 
approval of the secretary of state is obtained, the county chair must purchase 
all services and products using competitive quotations from three or more 
sources. Documentation or explanation of the lack of availability of competitive 
quotations must be submitted with the General Primary Election Cost
Estimate.<ol> This rule does not apply to expenditures of $100 or less.
sec.81.114. Bank Account For Primary Fund Deposits and Expenditures.  The county 
chair shall establish and maintain a bank account for the sole purpose of 
depositing and expending primary funds. Primary funds shall not be commingled 
with any other fund or account. All checks issued on this account must include 
the following statement on their face "Void After 60 Days." Bank reconciliations 
must be completed on a monthly basis. These reconciliations become part of the 
primary records.
sec.81.115. Deposit of Currency. All filing fees and contributions received in 
currency shall be deposited intact into the primary fund.
sec.81.116. List of Candidates and Filing Fees. <ol> A complete list of 
candidates, including the offices sought and amount of filing fees received from 
each candidate, shall be transmitted to the secretary of state by January 13, 
1992. This list shall reflect whether each candidate filed by petition or filing 
fee.
sec.81.117. Interest on Loans Not Payable. Interest on loans of money to cover 
operating costs until the receipt of primary funds approved by the secretary of 
state is not payable from the primary fund. Such "start-up" money should be 
obtained from the secretary of state by filing a  General Primary Election Cost 
Estimate.
sec.81.118. Signature on Checks; Authorization of Primary Fund Expenditures. All 
checks written on the primary fund shall be personally signed by either the 
county chair or a bonded agent for the county chair, except that payroll checks 
to administrative personnel and checks to sole source vendors must be signed by 
the county chair. All primary fund expenditures shall be authorized by the 
county chair. No checks shall be signed solely with a rubber stamp or other 
facsimile.
sec.81.119. Documentation of Expenses/Record Keeping. Copies of all bills, 
invoices, contracts, petty cash receipts, and any other related materials 
supporting primary election costs shall be transmitted to the secretary of state 
upon request. Such records must be preserved for a period ending not later than 
one calendar year from July 1 following the primary elections, but if court 
action or an official investigation is pending, they shall be preserved until 
the termination of such court action or official investigation. A final account 
reconciliation must be completed and the account closed by July 1 following the 
primary elections.
sec.81.120. Legal Expenses. <ol> No legal expenses may be paid from the primary 
fund without the prior written approval of the secretary of state. Before 
entering into a contract for legal services anticipated to be payable from 
primary funds, the county chair must contact the secretary of state and obtain a 
determination that such legal services are payable from the primary fund. Such 
determination must be verified in writing and submitted to the county chair.
sec.81.121. Transfer of Records to New County Chair. The county chair is 
responsible for the complete and orderly transfer to his successor or the 
appropriate county committee of all records required by law in connection with 
the primary election. If a vacancy occurs in the office of county chair, the 
executive committee shall appoint a custodian of these records until a successor 
is appointed or elected.
sec.81.122. Early Filing of General Primary Election Cost Estimate.  If the 
General Primary Election Cost Estimate<ol> is transmitted to the secretary of 
state prior to the close of the regular filing period, the county chair shall 
estimate the amount of filing fees to be collected. The amount of estimated 
filing fees shall be reported as a financing source on the General Primary 
Election Cost Estimate.
sec.81.123. Returning Surplus Funds. Any surplus remaining in a primary fund 
account after payment of approved expenses shall be remitted to the secretary of 
state, primary fund account, with the Final Cost Report, <ol> but not later than 
July 1 following the primary election, unless otherwise provided by the 
secretary of state.
sec.81.124. Transportation Costs Not Payable. No payment from the primary fund 
is permitted for transportation or other personal expenses incurred by the 
county chair or primary fund employees in the performance of their duties.
sec.81.125. Compensation for Election Day Workers.  The hourly rate payable to 
precinct judges, clerks, absentee ballot board members, or persons working at 
the central counting station for the 1992 general primary and primary runoff 
elections may not exceed $5.00. A judge or clerk may only be paid for the actual 
time spent on election duties performed in the polling place or counting 
station. An election day worker may not receive an hourly compensation for 
travel time, pick up, or delivery of supplies, or attendance at the precinct 
convention. Technical support personnel in the central counting station 
appointed under the Texas Election Code, sec.sec.127.002, 127.003, or 127.004, 
may receive a compensation of greater than $5.00 per hour.
sec.81.126. Compensation For Delivering Election Records and Supplies.  
Compensation of the election judge or clerk who delivers and picks up the 
election records, equipment, and unused supplies may not exceed $15 per physical 
polling place location for each election.
sec.81.127. Reimbursement For Election Schools Disallowed.  <ol> Reimbursement 
for training of election workers or providing materials published by the 
secretary of state may not be made from the primary fund. Persons attending 
election schools may not be compensated from primary funds. Training materials 
may be ordered free of charge by contacting the secretary of state.
sec.81.128. No Charge For Use of a Public Building as Polling Place.  Pursuant 
to the Texas Election Code, sec.43.033, no charge may be made for the use of a 
public building on election day if that building is normally open for business 
on that day. Any charge for the use of a building for a state or county 
political convention may not be paid with primary funds. Secretary of State 
Opinion GSB-1 further clarifies this section and is available from the secretary 
of state.
sec.81.129. No Payment From Primary Funds For Pre-Printed Combination Form of 
Registered Voters. No payment may be made from the primary fund for a preprinted 
combination form of registered voters.
sec.81.130. Estimating Voter Turnout. The county chair should use the following 
formula as a starting point in determining the estimated voter turnout for the 
1992 primary elections. Each county chair should determine whether the local 
political situation suggests a higher turnout, and, if so, his or her estimate 
should be adjusted to take such factors into account. In presenting such 
estimate, the chair should present those factors and his or her analysis of 
those factors, and the secretary of state will evaluate such higher estimates 
based on the factors and analysis on a case-by-case basis. The formula for 
estimating turnout for the 1992 primary elections is:
[graphic]
(b) After estimating the voter turnout for each precinct, the county chair 
should then use the guidelines set forth in sec.sec.81.131-81.134 of this title 
(relating to Number of Paper or Electronic Voting System Ballots Per Voting 
Precinct; Number of Election Workers Per Voting Precinct Limited; Flex 
Scheduling of Precinct Workers; and Number of Voting Machines, Devices, and/or 
Precinct Ballot Counters Per Voting Precinct) to determine the necessary 
physical requirements (i.e., ballots, election judges and clerks, voting devices 
or machines) for each precinct. After estimating the physical requirements for 
each precinct, the county chair should combine the precinct data to arrive at 
the total estimated physical requirements of the primary election countywide. 
This may then be used to estimate the election costs.
sec.81.131. Number of Paper or Electronic Voting System Ballots per Voting 
Precinct. The minimum number of ballots furnished to each voting precinct for a 
primary election shall be equal to the estimated voter turnout as determined by 
the county chair pursuant to sec.81.128 of this title (relating to No Charge For 
Use of a Public Building as Polling Place). In no event shall the minimum number 
of ballots be less than the number arrived at by application of the numerical 
formula. The number of ballots provided may exceed the estimated number of 
voters determined by the numerical formula, since the number of ballots provided 
should never be so low as to impede the voting process or to jeopardize the 
rights of voters. The maximum number of ballots ordered may equal the total 
number of registered voters of the precinct if such a number may be 
substantiated.
sec.81.132. Number of Election Workers Per Voting Precinct Limited.  The 
following table must be used to determine the number of election workers 
allowable for each precinct. The minimum number of clerks in a primary election 
is two, for a total of three workers, including the presiding judge (Texas 
Election Code, sec.173.008(c)).
[graphic]
sec.81.133. Flex Scheduling of Precinct Workers.  If the number of election 
clerks allowed in a precinct is greater than two, the presiding judge may 
utilize one or more of the additional clerk positions to hire more clerks for 
shorter work periods. For example, instead of hiring one clerk for a 12-hour 
shift, the judge could hire three clerks for four-hour shifts, beginning at 4 p. 
m. and ending at 8 p.m. Clerks may be assigned to work for periods ending before 
any manual count or examination of ballots begins. Therefore, if no counting or 
examination of ballots has occurred, unnecessary clerks may be excused early, 
preventing unwarranted personnel expenses.
sec.81.134. Number of Voting Machines, Devices and/or Precinct Ballot Counters 
Per Voting Precinct.
(a) The following table must be used to determine the number of voting machines, 
precinct ballot counters, and punch card voting devices allowable for each 
precinct.
[graphic]
(b) In counties where voting machines are to be used, the county chair should 
make a special assessment of whether the number of voting machines calculated 
according to this formula is adequate and make provisions both in his cost 
estimate and his actual procurement of voting machines accordingly.
sec.81.135. Payment for Use of County Owned Equipment. <ol> The Texas Election 
Code, sec.123.033, specifies the rental rate a county may charge for the use of 
county owned election equipment. These rates are set at $16 per lever machine, 
$5.00 per punch card device, and $5.00 for each unit of tabulating equipment. In 
addition to these rental charges a county primary fund may be used to pay the 
actual expenses incurred by the county in transporting the equipment, preparing 
and programming equipment, testing equipment, and the cost of staffing the 
central counting station on election night. If the county's mainframe computer 
system is utilized as the central counting station ballot accumulator, the 
county may be reimbursed for its actual cost of providing this service. The cost 
to be reimbursed shall be calculated using the same cost accounting techniques 
used by the county in charging county departments for use of its data processing 
services. In the event the county does not have an established chargeback system 
for such purposes, the reimbursement shall be calculated based on $1.00 per 100 
ballots tabulated. Supporting calculations for the amount charged for these 
services shall be submitted to the secretary of state for review with the final 
cost report. The primary fund may not be used to pay expenses related to the use 
of non-county-owned equipment without the written permission of the secretary of 
state.
sec.81.136. Application of Rules. These rules apply to primary funds managed by 
the chair of both the state and county executive committees.
sec.81.137. County Chair's Compensation. Pursuant to the Texas Election Code, 
sec.173.004, county chairs may receive a compensation for administering the 
primary elections. This compensation may not be less than $300 nor exceed the 
lesser of $8,000 or 5.0% of the total expenses incurred by the county party for 
holding the primary election. The county chair's compensation must be reduced by 
the amount of wages paid to administrative personnel but may not be less than 
$300. This compensation may not be paid until the county party's final cost 
report has been approved by the secretary of state. The county chair will be 
notified of this approval by letter.
sec.81.138. Misuse of State Funds. The misuse or misappropriation of any primary 
funds will be referred to the proper prosecuting authority for enforcement of 
applicable civil and/or criminal penalties.
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 September 16, 1991.
TRD-9111389
Audrey Selden
Assistant Secretary of State
Office of the Secretary of State
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 463-5645
       
Part VI. Texas Surplus Property Agency
Chapter 143. Plan of Operation
1 TAC sec.143.1
The Texas Surplus Property Agency proposes an amendment to sec.143.1, concerning 
Texas State Plan of Operation. The amendment changes the procedures for 
refunding of service charges on donated surplus property (Part IV, Continued) 
procedure on page 13.
Marvin J. Titzman, executive director, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section.
Mr. Titzman 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 no public benefit anticipated as a result of enforcing the 
section. 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 Jenny B. Murray, P.O. Box 8120, San 
Antonio, Texas 78208-0120, (512) 661-2381.
The amendment is proposed under Texas Civil Statutes, Article 6252-6, which 
provide the Texas Surplus Property Agency with the authority to make rules.
sec.143.1. Texas Plan of Operation. The Texas Surplus Property Agency adopts by 
reference the rules contained in the October 17, 1977, Texas Plan of Operation, 
as amended January 1984, as amended August 1985, amended December 1986, as 
amended September 1987, [and] as amended January 1988<nl>, and as amended 
September 1991 <ol>. This document serves as a guideline for this agency in the 
administration of the Donation Program within the State of Texas. The plan 
outlines to the administrator of the General Services Administration the methods 
by which this agency will implement the rules and regulations as set forth in 
the G.S.A. Donation Handbook. Copies of this document are available for public 
inspection at any Texas Surplus Property Agency office in the state.
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 September 12, 1991.
TRD-9111364
Marvin J. Titzman
Executive Director
Texas Surplus Property Agency
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 661-2381
       
TITLE 22. EXAMINING BOARDS
Part VI. Texas State Board of Registration for Professional Engineers
Chapter 131. Practice and Procedure
Education
22 TAC sec.131.92
The Texas State Board of Registration for Professional Engineers proposes an 
amendment to sec.131.92, concerning foreign degrees.
The amendment clarifies that the type of degree referred to in subsection (a) 
(2) must be in engineering, and subsection (b) stipulates that individuals must 
submit with their applications for registration certified copies or documented 
proof of all engineering degrees awarded and a certified English translation if 
the documents are written in languages other than English.
Charles E. Nemir, P.E., executive director, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section.
Mr. Nemir 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 a clearer understanding of the documentation required from 
applicants with foreign engineering degrees when submitting an application for 
registration as a professional engineer. 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, 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.131.92. Foreign Degrees.
(a) An individual who has completed his undergraduate engineering education and 
received the equivalent of a baccalaureate degree <nl>in engineering<ol> from an 
institution other than one located in the United States and its possessions must 
apply under the Texas Engineering Practice Act (Act), sec.12(b), except as 
follows.
(1) (No change.)
(2) Applicants having <nl>engineering<ol> degrees accredited by the ABET 
counterpart organizations in Australia, Canada, Ireland, New Zealand, and the 
United Kingdom may apply under the Act, sec.12(a).
(3) (No change.)
(b) <nl>Individuals must submit with their applications complete certified 
copies or documented proof of all engineering degrees, diplomas, certificates, 
etc., showing the type of engineering degree awarded (B.S., M.S., Ph.D.), date 
awarded, branch of engineering, dates attended, and scores, grades, or honors 
awarded. Documents written in languages other than English shall be accompanied 
by a certified English translation<ol> [A complete certified transcript or 
record of foreign education credentials together with a certified English 
translation must be provided.]
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 September 12, 1991.
TRD-9111303
Fred Herber, P.E.
Deputy Executive Director
Texas State Board of Registration for Professional Engineers
Proposed date of adoption: October 23, 1991
For further information, please call: (512) 440-7723
       
Registration
22 TAC sec.131.134
The Texas State Board of Registration for Professional Engineers proposes an 
amendment to sec.131.134, concerning expirations and renewals, as originally 
adopted on an emergency basis in the September 10, 1991, issue of the Texas 
Register (16 TexReg 4893).
The section as amended allows the board to consider reduced renewal fees for 
registered engineers who are at least 65 years of age and to set the penalty 
fees for late renewals effective for fiscal year 1992.
Charles E. Nemir, P.E., executive director, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section.
Mr. Nemir 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 that the board has the authority to establish reduced renewal 
fees and late penalty fees effective for fiscal year 1992 in accordance with the 
provisions of Texas Civil Statutes, Article 3271a, sec.13 and sec.16. 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 Charles E. Nemir, 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.131.134. Expirations and Renewals. The certificate of registration is a 
license to practice engineering under the provisions of the Texas Engineering 
Practice Act, (the Act) and must be renewed by the registrant annually; 
otherwise, such license shall become invalid until the date the board receives 
the registrant's renewal and penalty fee. Each registrant shall advise the board 
in writing of each change of mailing address as it occurs. The board will mail a 
renewal notice to the last recorded address of each registrant in compliance 
with the Act, sec.16(a). It is the sole responsibility of the registrant to pay 
the required renewal fee together with any applicable penalty at the time of 
payment, regardless of whether the renewal notice is received. Stipulations with 
reference to expirations and renewals of certificates of registration are set 
out in the Act, sec.16 and sec.16.1. The following will apply to renewals.
(1)-(2) (No change.)
<nl>(3) The board may consider reduced annual renewal fees for registered 
engineers who are at least 65 years of age.
<nl>(4)<ol>[(3)] Licenses will expire according to the following schedule.
(A)-(D) (No change.)
<nl>(5)<ol>[(4)] Late renewals will be effected as follows.
(A) A license expired for not more than 90 calendar days may be renewed by 
payment of the set annual renewal fee, plus a <nl>penalty<ol> fee  <nl>set by 
the board<ol> [equal to one-half of the current application fee for a license] .
(B) A license expired for more than 90 calendar days but less than one year may 
be renewed by payment of the renewal fee which was due at expiration, plus a 
<nl>penalty <ol> fee <nl>set by the board<ol> [equal to the current application 
fee for a license].
(C) A license expired for one year but less than two years may be renewed by 
payment of the renewal fee which was due at expiration, plus the renewal fee 
which was set for the first anniversary of that expiration, plus a <nl>penalty 
<ol> fee <nl>set by the board<ol> [equal to the current application fee for a 
license].
<nl>(6)<ol>[(5)] A license which has been expired for two years may not be 
renewed, but the former registrant may apply for a new certificate of 
registration as provided in the Act and applicable board rules.
<nl>(7)<ol>[(6)] In strict accordance with the provisions of the Texas Education 
Code, sec.57.491, pertaining to the loan default proceedings of the Texas 
Guaranteed Student Loan Corporation (TGSLC), if a licensee's name has bee 
provided by TGSLC as being in default of a loan, the board shall not renew the 
license of the licensee on the second renewal date following such notification, 
unless TGSLC certifies that the individual has entered into a repayment 
agreement with TGSLC, or is not in default on a loan. Such licensee shall be 
provided an opportunity for a hearing, similar to that provided by sec.131.137 
of this title (relating to Disciplinary Actions), before any action concerning 
the nonrenewal of a license is taken under this paragraph. A defaulted loan 
shall not bar the board's issuance of an initial license if the applicant is 
otherwise qualified for licensure; however, the board shall not renew said 
license unless TGSLC certifies the individual has satisfied the requirements of 
sec.57.491.
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 September 13, 1991.
TRD-9111304
Fred Herber, P.E.
Deputy Executive Director
Texas State Board of Registration for Professional Engineers
Proposed date of adoption: October 23, 1991
For further information, please call: (512) 440-7723
       
Part XIII. Texas Board of Licensure for Nursing Home Administrators
Chapter 243. Application
22 TAC sec.243.1
The Texas Board of Licensure for Nursing Home Administrators (TBLNHA) proposes 
an amendment to sec.243.1, concerning application procedures. The amendment 
clarifies requirements for licensure for applicants who are currently licensed 
in another state and are requesting partial endorsement. An administrator must 
be licensed for one year or more as a nursing home administrator and must also 
be the administrator of record for at least one year.
Curtis D. Adrian, acting executive director, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section.
Mr. Adrian 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 ensuring that administrators have achieved an adequate level of 
experience and background. 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 Curtis D. Adrian, TBLNHA, 4800 
North Lamar Boulevard, Suite 310, Austin, Texas 78756.
The amendment is proposed under Texas Civil Statutes, Article 442d, sec.8 which 
provide TBLNHA with the authority to make rules and regulations not inconsistent 
with law as may be necessary or proper for the performance of its duties, and to 
take such other actions as may be necessary to enable the state to meet the 
requirements set forth in the Social Security Act, sec.1908 (42 United States 
Code Annotated, sec.1396g), the federal rules and regulations promulgated 
thereunder, and other pertinent federal authority; provided, however, that no 
rule shall be promulgated, altered, or abolished without the approval of a two 
thirds majority of the board.
sec.243.1. Application Procedures.
(a) (No change.)
(b)  (No change.)
(1) (No change.)
<nl>(2) must be licensed for one year or more as a nursing home administrator 
<nl>and must be the administrator of record for at least one year<ol>;
(3)-(5) (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 September 6, 1991.
TRD-9111376
Kim M. Foutz
Administrative Technician III
Texas Board of Licensure for Nursing Home Administrators
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 458-1955
       
Part XXIII. Texas Real Estate Commission
Chapter 535. Provisions of the Real Estate License Act
Licensed Real Estate Inspectors
22 TAC sec.535.205
(Editor's Note: The Texas Real Estate Commission proposes for permanent adoption 
the new section it adopts on an emergency basis in this issue. The text of the 
new section is in the Emergency Rules section of this issue.)
The Texas Real Estate Commission proposes new sec.535.205, concerning inspectors 
licensed under prior law. The new section would implement transitional 
provisions of Senate Bill 432, 72nd Legislature, 1991, which became effective 
September 1, 1991.
The Texas Real Estate Commission has licensed real estate inspectors under Texas 
Civil Statutes, Article 6573b, since 1985. Senate Bill 432 replaced the 
provisions of Article 6573a under which current inspectors were licensed. In 
order for current inspectors to be relicensed under the new law, the inspectors 
must have performed at least 75 inspections within a 12-month period prior to 
renewing the current license and must also have completed 38 classroom hours of 
core real estate inspection courses approved by the commission in addition to 
the 90 hours of courses required under prior law.
The section would clarify the status of an inspector licensed under prior law; 
the holder of a current real estate inspector license may continue to act as an 
inspector until the license expires or is suspended or revoked by the 
commission. The new section permits a currently licensed inspector to apply for 
a new license immediately or in connection with the renewal of the current 
license. If the new license is sought in connection with a renewal application, 
the applicant would be required to pay a renewal fee of $50. In either case, the 
inspector must satisfy the experience and education requirements of Senate Bill 
432 to receive a new license. If the inspector cannot presently meet these 
requirements, the commission is authorized to issue a transitional license valid 
for one year. Transitional licenses may not be renewed. The holder of a 
transitional license may obtain a new license by completing 75 inspections 
within the 24 months prior to the expiration of the transitional license and 
satisfying the education requirements.
The new section also adopts by reference an experience verification form to be 
used by applicants. The form lists inspections performed by the applicant for a 
new license. If the inspector demonstrates performance of at least 200 
inspections over a 15-month period, Senate Bill 432 permits the inspector to 
sponsor apprentice inspectors or inspectors in training. The new section would 
limit experience credit for partial inspections of a property. If the inspection 
is limited to structural items only or to equipment and systems only, the 
partial inspection would be given half credit by the commission.
Jack Morris, director of programs, has determined that for the first five-year 
period the section is in effect there will be fiscal implications for state 
government. Renewal fees to be collected by the state are estimated at $120,000 
for 1992 and $70,000 annually for 1993-1997. Costs to the state are 
indeterminate as the commission expects to administer the section with current 
employees unless a supplemental appropriation is obtained. There will be no 
fiscal implications for local government as a result of enforcing or 
administering the section.
Mr. Morris 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 is compliance with increased experience and education requirements for 
real estate inspectors. There will be no effect on small businesses. There is an 
anticipated economic cost to persons who are required to comply with the 
proposed section. Currently licensed inspectors are required to complete an 
additional 38 classroom hours of core real estate courses in order to receive a 
new license; these courses are available at an average cost of $5.00 per credit 
hour. Inspectors who obtain a new license as part of the renewal of the current 
license would also be required to pay a renewal fee of $50. There is no 
anticipated impact on local employment.
Comments on the proposal may be submitted to Jack Morris, Director of Programs, 
Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188.
The new section is proposed under Texas Civil Statutes, Article 6573a, sec.5(h) 
, which provide the Texas Real Estate Commission with the authority to make and 
enforce all rules and regulations necessary for the performance of its duties.
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 September 10, 1991.
TRD-9111231
Mark A. Moseley
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 465-3900
       
Part XXXI. Texas State Board of Examiners of Dietitians
Chapter 711. Dietitians
22 TAC sec.sec.711.4-711.7, 771.9, 711.11, 711.12
The Texas State Board of Examiners of Dietitians proposes amendments to 
sec.sec.711.4-711.9, 711.11, and 711.12, concerning dietitians.
The amendments will update the requirements for licensure to comply with the 
provisions covering the regulation of dietitians in Texas Civil Statutes, 
Article 4512h. The amendments will: clarify the academic requirements for 
licensure; clarify the experience requirements for examination; change the hours 
required for individual experience programs for graduate assistantships; modify 
the application procedures by not requiring transcripts of persons registered by 
the Commission on Dietetic Registration; waive the examination requirements for 
applicants who are registered in active status at the time of application; 
modify the application procedures by not requiring transcripts of persons 
registered by the Commission on Dietetic Registration; modify requirements for 
provisional licensed dietitian upgrades; amend the name change documentation 
requirements; and add license renewal procedures for active military 
duty/personnel.
Stephen Seale, Chief Accountant III, Texas Department of Health, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections.
Mr. Seale 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 assurance that the licensing and regulation of dietitians 
continues to identify competent practitioners. There will be no effect on small 
businesses. The additional costs for persons who are required to comply with the 
sections as proposed are estimated at $3.00 to $10 for transcript costs. There 
is no probable impact on local employment.
Comments on the proposal may be submitted to Becky Berryhill, Executive 
Secretary, Texas State Board of Examiners of Dietitians, 1100 West 49th Street, 
Austin, Texas 78745-3183, (512) 459-2945. Comments will be accepted for 30 days 
after the proposal has been published in the Texas Register .
The amendments are proposed under Texas Civil Statutes, Article 4512h, sec.6, 
which provide the Texas State Board of Examiners of Dietitians with the 
authority to adopt rules to implement the Act.
sec.711.4. Academic Requirements for Licensure.
(a) (No change.)
(b) General.
(1)-(6) (No change.)
(7) Persons applying for licensure must possess a baccalaureate or post-
baccalaureate degree <nl>with a major course of study in<ol> [and a minimum of 
24 semester hours from the fields of] human nutrition, food and nutrition, 
dietetics, or food systems management. [Of these 24 semester hours, at least 
three semester hours must be from each of the following course areas:
[(A) upper-division human nutrition related to disease;
[(B) upper-division food service systems management;
[(C) bio- or physiological chemistry, or advanced normal human nutrition; and
[(D) experimental food science.]
(8)  In place of the requirements in paragraph (7) of this subsection, a person 
may have an equivalent major course of study defined as either:
(A) a baccalaureate or post-baccalaureate degree or course work including a 
minimum of 30 semester hours specifically designed to train a person to apply 
and integrate scientific principles of human nutrition under different health, 
social, cultural, physical, psychological, and economic conditions to the proper 
nourishment, care, and education of individuals or groups throughout the life 
cycle. Of these 30 semester hours, a minimum of 18 semester hours must be from 
human nutrition, food and nutrition, dietetics, or food service systems 
management. Of these 18 semester hours, at least three semester hours must be 
from [each] <nl>four <ol> of the <nl>five following<ol> course areas [specified 
in paragraph (7)(A)-(D) of this subsection; or]:
<nl>(i) <nl> upper-division human nutrition related to disease;
<nl>(ii) <nl> upper-division food service systems management;
<nl>(iii) <nl> bio- or physiological chemistry, or advanced normal human 
nutrition;
<nl>(iv)<nl> experimental food science; or
<nl>(v) <nl> upper-division nutrition education; or
(B) (No change.)
(9) (No change.)
[(c) Registered dietitians. Applicants who are registered in active status by 
the commission at the time of making application to the board are deemed to meet 
the academic requirements.]
sec.711.5. Experience Requirements for Examination.
(a) (No change.)
(b) General. Applicants for examination must have satisfactorily completed a 
preplanned professional program experience or internship in the profession of 
dietetics approved by the board or the association.
(1)-(3) (No change.)
(4) Applicants who are registered in active status by the commission at the time 
of making application <nl>shall submit a photocopy of the registration card 
issued by the commission<ol> [are deemed to meet the experience requirements]. 
<nl>The applicant's internship or preplanned professional experience program 
accepted for registration by the commission shall be acceptable for licensure by 
the board. No further proof of completion of an internship or pre-planned 
professional experience shall be required.
(5) (No change.)
(c)-(e) (No change.)
(f) Guidelines specific to graduate assistantship in the field of dietetics.
(1)-(3) (No change.)
(4)  The curriculum guidelines are as follows.
(A)-(B) (No change.)
(C) The program shall include a minimum of <nl>400 <ol> [300] clock hours of 
supervised and directed work experience in teaching or research, as set out in 
sec.711.9(b)(2) of this title (relating to Provisional Licensed Dietitians) , 
plus a minimum of 500 clock hours of planned dietetic learning experiences with 
stated objectives divided to meet one of the following areas of specialization.
(i)-(ii) (No change.)
(5) (No change.)
(g) (No change.)
sec.711.6. Examinations for Dietitian Licensure.
(a)-(h) (No change.)
<nl>(i) Registered dietitians. The board shall waive the examination requirement 
for applicants who are registered in active status by the commission at the time 
of making application to the board.
sec.711.7. Application Procedures.
(a)-(c) (No change.)
(d) Required application materials.
(1)-(2) (No change.)
(3) Applicants must submit official transcript(s) of all relevant college work. 
[Transcripts will be not required of those persons who are registered by the 
commission.]
(4)-(9) (No change.)
sec.711.9. Provisional Licensed Dietitians.
(a)-(b) (No change.)
(c) Upgrading a provisional license. The purpose of this subsection is to set 
out the procedure to upgrade from provisional licensed dietitian to licensed 
dietitian.
(1)-(4) (No change.)
(5) Provisional licensed dietitians who become registered by the commission 
<nl>shall<ol> [and] submit proof of current registration status with a written 
request to upgrade [are deemed to meet the experience and examination 
requirements]. <nl>The provisional licensed dietitian's internship or preplanned 
professional experience program and examination accepted for registration by the 
commission shall be acceptable for licensure by the board. No further proof of 
completion of an internship or pre-planned professional experience program and 
examination shall be required.
(d) (no change.)
sec.711.11. Changes of Name or Address.
(a)-(c) (No change.)
(d) Before another license certificate and identification card will be issued by 
the board, notification of name changes must be mailed to the executive 
secretary and shall include a <nl>duly executed affidavit and a <ol>[notarized] 
copy of a marriage certificate, court decree evidencing such change, or a Social 
Security card reflecting the new name. The licensee shall return any previously 
issued license certificate and identification card and remit the appropriate 
replacement fee as set out in sec.711.2(t) of this title (relating to Fees).
sec.711.12. License Renewal.
(a)-(e) (No change.)
<nl>(f)  Active duty. If a licensee fails to timely renew his or her license on 
or after August 1, 1990, because the licensee is or was on active duty with the 
armed forces of the United States of America serving outside the State of Texas, 
the licensee may renew the license in accordance with this subsection.
<nl>(1) Renewal of the license may be requested by the licensee, the licensee's 
spouse, or an individual having power of attorney from the licensee. The renewal 
form shall include a current address and telephone number for the individual 
requesting the renewal.
<nl>(2) Renewal may be requested before or after expiration of the license.
<nl>(3) A copy of the official orders or other official military documentation 
showing that the licensee is or was on active duty serving outside the State of 
Texas shall be filed with the board along with the renewal form.
<nl>(4) A copy of the power of attorney from the licensee shall be filed with 
the Texas State Board of Examiners of Dietitians board along with the renewal 
form if the individual having the power of attorney executes any of the 
documents required in this subsection.
<nl>(5) A licensee renewing under this subsection shall pay the applicable 
renewal fee, but not the reinstatement fee or any penalty fee.
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 September 13, 1991.
TRD-9111383
Gracie Specks, RD/LD
Chairman
Texas State Board of Examiners of Dietitians
Proposed date of adoption: January 17, 1992
For further information, please call: (512) 459-2955
       
TITLE 25. HEALTH SERVICES
Part I. Texas Department of Health
Chapter 289. Occupational Health and Radiation Control
Asbestos Exposure Abatement in Public Buildings
25 TAC sec.sec.289.141-289. 144, 289.147-289.151, 289.156, 289.157
(Editor's note: The text of the following sections proposed for repeal will not 
be published. The sections may be examined in the offices of the Texas 
Department of Health or in the Texas Register office, Room 245, James Earl 
Rudder Building, 1019 Brazos Street, Austin.)
The Texas Department of Health (department) proposes the repeal of existing 
sec.sec.289.141-289.144, 289.147-289.151, 289.156, and 289.157, concerning 
asbestos exposure abatement in public buildings. The sections will be replaced 
by new sections concerning asbestos exposure abatement in public buildings in 
Chapter 295 of this title concerning occupational health, which are being 
proposed for adoption in this issue of the Texas Register.
The existing sections are being proposed for repeal and replacement by new 
sections in Chapter 295 in order to implement recent amendments in Senate Bill 
1341 and House Bill 79, 72nd Legislature, 1991, to Texas Civil Statutes, Article 
4477-3a, which is the state law covering asbestos abatement.
Stephen Seale, Chief Accountant III, Budget Office, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections.
Mr. Seale 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 the replacement of existing rules by new, updated, and more 
comprehensive rules on asbestos abatement. There will be no effect on small or 
large businesses, no cost to persons and no impact on local employment as a 
result of the proposed repeals.
Comments on the proposed repeals may be submitted to Jerry F. Lauderdale, 
Director, Division of Occupational Health, Texas Department of Health, 1100 West 
49th Street, Austin, Texas 78756, (512) 459-1611. Comments will be accepted for 
30 days after publication of the repeals in the Texas Register.
The repeals are being proposed under Texas Civil Statutes, Article 4477-3a, 
sec.11, which provide the Board of Health with the authority to adopt rules 
covering asbestos removal or encapsulation, including licensing and regulation; 
Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended 
Article 4477-3a; and Health and Safety Code, sec.12.001, which provides the 
board with authority to adopt rules to implement every duty imposed by law on 
the board, the department, and the commissioner of health.
sec.289.141. General Provisions.
sec.289.142. Definitions.
sec.289.143. Licensure.
sec.289.144. Licensing Standards.
sec.289.147. Abatement Notification, Plans Review, Inspection.
sec.289.148. Reprimand, Suspension, and Revocations.
sec.289.149. Registration of Employees as Asbestos Workers.
sec.289.150. Training Courses for Licensure and for Registration.
sec.289.151. Work Practices for Asbestos-Related Activities.
sec.289.156. Asbestos Waste Disposal.
sec.298.157. Processing of Licenses and Certificates for Asbestos Contractors, 
Abatement Supervisors, and Abatement Workers.
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 September 12, 1991.
TRD-9111261
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Proposed date of adoption: December 7, 1991
For further information, please call: (512) 459-1611
       
Chapter 295. <nl>Occupational<ol> [Environmental] Health
Asbestos Exposure Abatement in Public Buildings
25 TAC sec.sec.295.21, 295.31-295.48, 295.50-295.53, 295.55, 295.56, 295.58-
295.60, 295.62, 295.66-295.68
The Texas Department of Health proposes an amendment to  s295.21, and new 
sec.sec.295.31-295.48, 295.50-295.53, 295.55, 295.56, 295. 58-295.60, 295.62, 
and 295.66-295.68, concerning asbestos exposure abatement in public buildings. 
The new sections will replace existing rules concerning asbestos exposure 
abatement in public buildings in Chapter 289 of this title which are being 
proposed for repeal in this issue of the Texas Register.
The proposed amendment and new sections will implement the provisions in Senate 
Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended Texas Civil 
Statutes, Article 4477-3a, concerning asbestos exposure abatement. Section 
295.21 concerns fees for asbestos services and the amendment will delete the 
department's authority to receive samples and to charge a fee for analysis of 
the samples. The major changes in the new sections are as follows. New 
categories of licenses will be added, including building inspectors, management 
planners, consultants, project managers, air monitoring technicians, 
laboratorians, transporters, and trainers. Fees will be assessed to cover the 
expenses of operating the licensing and enforcement activities. A limited 
exemption from licensing will be provided for persons removing resilient floor 
covering materials containing asbestos. Provisions for inspections, 
investigations, and administrative penalties have been added. Numerous other 
changes will be made for updating and clarifying the rules that are being 
replaced.
Stephen Seale, Chief Accountant III, Budget Office, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. The state will receive an increase in fee revenue of 
approximately $200,000 for each year which will be offset by an expected cost to 
the state of approximately $200,000 each year. Local governmental agencies which 
perform asbestos inspections or management plan development with their own staff 
will receive fees, but they will be offset by a decrease in fees for supervisors 
and restricted activity building management that are now being charged under the 
sections being proposed for repeal.
Mr. Seale 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 a reduction in exposure to asbestos fibers for asbestos 
project workers and for other persons in public buildings. The resultant 
reduction in exposure will prevent development of asbestos related illnesses, 
including asbestos lung cancer, and mesothelioma. The anticipated increase in 
cost to businesses will be about $30 per employee for small businesses and about 
$3.00 per employee for large businesses. The anitcipated economic cost to 
persons who are required to comply with the sections as proposed will be the 
fees listed in the new sections. There will be no impact on local employment.
Comments on the proposed sections may be made to Jerry F. Lauderdale, Director, 
Division of Occupational Health, 1100 West 49th Street, Austin, Texas 78756 
(512) 459-1611. Comments on the sections will be accepted through October 31, 
1991. In addition, the department will conduct three public hearings on the 
proposal as follows. The first hearing will be on Friday, October 11, 1991, 
beginning at 9 a.m., Auditorium, Texas Department of Health, 1100 West 49th 
Street, Austin. The second hearing will be on Friday, October 18, 1991, 
beginning at 9 a.m., Bear Creek Pavilion (Bear Creek Park), Addicks Road (Texas 
6) three miles North of I.H. 10 West, Houston. The third hearing will be on 
Tuesday, October 22, beginning at 9 a.m., University of Texas at Arlington 
(Cooper Street), Engineering Two Building, Room 100, Arlington.
The new sections are being proposed under Texas Civil Statutes, Article 4477-3a, 
sec.11, which provides the Board of Health with the authority to adopt rules 
covering asbestos removal or encapsulation, including licensing and regulation; 
Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended 
Article 4477-3a; and Health and Safety Code, sec.12.001 which provides the board 
with authority to adopt rules to implement every duty imposed by law on the 
board, the department and the Commissioner of Health.
sec.295.21. Fees for Asbestos Services.
(a) General provisions.
(1) (No change.)
(2) Scope. This section covers fees for the [analysis of materials and airborne 
samples for the presence or concentration of asbestos, and the] review and 
approval of asbestos management plans, as submitted.
(3) Statutory authority. The Texas Board of Health  <nl>(board)<ol> is granted 
authority under <nl>the Health and Safety Code, sec.12.031 and sec.12. 032 <ol> 
[Texas Civil Statutes, Article 4414c, sec.2,] to charge fees to persons who 
receive public health services from the <nl>Texas Department of Health<ol> 
(department), which includes environmental and consumer health services.
(4) (No change.)
(5) Review. The <nl>board<ol> [Board of Health] shall review and approve all 
changes of the amounts of fees assessed, or any additions to fees for the 
services set forth in this section.
(b) Definitions. The following words and terms, when used in this section, shall 
have the following meanings, unless the context clearly indicates otherwise.
(1)-(3) (No change.)
[(4) Phase-contrast microscopy-A method of analysis of airborne particulate 
matter to determine the concentration of fibers, expressed as the number of 
fibers per cubic centimeter of air.
[(5) Polarized-light microscopy-A method of detecting the presence of asbestos 
fibers in materials, employing dispersion staining, by noting fiber color change 
upon rotation of the polarization filters.
[(c) Fees for asbestos analysis.
<nl>[(1) The department may charge a reasonable fee for analyzing bulk samples 
of materials to determine possible asbestos content, or the concentration of 
asbestos fibers in airborne samples. The fee for analysis of bulk samples by 
polarized-light-microscopy for the presence of asbestos shall be $12 per sample. 
The fee for fiber-count analysis of samples of airborne particulates by phase-
contrast microscopy shall be $16 per sample.
[(2) The department may accept samples for analysis from all agencies of state 
or local governments, physicians, federal agencies, public or private schools, 
institutions of higher learning, churches or synagogues, and registered 
nonprofit organizations. The department shall not accept requests for such 
services from commercial or industrial establishments, or from individuals.
[(3) The department may refuse to accept samples submitted for analysis that are 
not correctly prepared, packaged, or identified according to department 
requirements. The department shall refuse to accept samples submitted without 
proper provisions for payment. The department is not required to accept samples 
in lots of excessive size. The department may assign priorities at its 
discretion to samples submitted under the provisions of this section.
[(4) Collected fees for analysis services shall be apportioned equally between 
the subdivisions of the department which perform the analytical and the 
administrative procedures for asbestos samples.
[(5) The department may, at its discretion, waive fees for samples submitted for 
analysis as a result of investigations initiated by the department, the Texas 
Air Control Board, and local health departments.]
<nl>(c)<ol>[(d)] Fees for plans review.
(1) The department may collect a reasonable fee for the review and approval of 
plans affecting the control and abatement of asbestos or asbestos- containing 
materials. The fee determined for the review process for each asbestos plan, or 
partial plan, submitted under the provisions of this subsection shall be the 
greater of $75 or 1/10 of a cent ($0.001) per square foot of the total building 
area under review.
(2) Parts of an entire asbestos plan may be submitted separately for facilities 
in separate locations. Each partial submission shall be subject to the fees set 
forth in paragraph (1) of the subsection.
(3) The department may refuse or return asbestos plans that are found to be 
incomplete or not correctly prepared. The department may, at its election, hold 
documents pending notification to the sender of the required corrections or 
completions by mail. If the department has not received the required corrections 
or completions, or any necessary explanation, within 30 days of the date of 
mailing the letter of requirements to the sender, the department may return or 
discard the plans or specifications.
(4) The review process shall be completed within 90 days of the date of 
acceptance by the department of an asbestos plan in an essentially complete and 
correct form.
(5) The department shall refuse to accept or review plans submitted without 
proper provisions for payment. Fees for plans accepted by the department for the 
review process are not refundable.
sec.295.31. General Provisions.
(a) Problem. In more than 25 years of research into the relationship between 
airborne asbestos fibers and the diseases such exposure can cause, the bodily 
mechanism by which inhaled asbestos fibers initiate cancer or asbestosis is 
still not understood, no effective treatment has been found, and the only means 
of preventing asbestos disease depends entirely on limiting the exposure of the 
individual to asbestos fibers.
(b) Purpose. The purpose of these sections is to establish the means of control 
and minimization of public exposure to airborne asbestos fibers, a known 
carcinogen and dangerous health hazard, by regulating asbestos disturbance 
activities in public buildings.
(c) Scope. These sections apply to all buildings which are subject to public 
occupancy or to which the general public has access, and to all individuals or 
organizations engaged in removing asbestos from or encapsulating asbestos in a 
public building for any purpose, including repair, renovation, dismantling, 
demolition, installations or maintenance operations, or any other activity that 
may involve the disturbance or removal of asbestos-containing materials. Also 
included are the qualifications for accreditation of these individuals and 
organizations, and for compliance with these sections and all applicable 
standards of the United States Environmental Protection Agency and the United 
States Occupational Safety and Health Administration.
(d) Exclusions. Industrial or manufacturing facilities, or those buildings to 
which all access is strictly and entirely controlled or prohibited because of 
processes or functions dangerous to human health and safety are excluded from 
coverage of these sections. Private residences, federal buildings and military 
installations, and apartment buildings with no more than four dwelling units are 
excluded from these sections.
(e) Severability. Should any section in these sections be found to be void for 
any reason, such finding shall not affect all other sections.
(f) Implementation. As of February 29, 1992, the Texas Department of Health 
shall formally enforce the licensing requirements for asbestos inspector-
surveyors; management planners; asbestos consultants; air monitoring 
technicians; asbestos laboratories; asbestos transporters; asbestos project 
managers; and asbestos training providers. All worker registration certificates 
shall retain validity until February 29, 1992, or 12 months from date of issue, 
whichever is later.
sec.295.32. Definitions.  The following words and terms, when in used in these 
sections, shall have the following meanings, unless the context clearly 
indicates otherwise.
 Act-The Texas Asbestos Health Protection Act, Texas Civil Statutes, Article 
4477-3a.
 Air monitoring -The collection of airborne samples for analysis of asbestos 
fibers.
 AIHA-The American Industrial Hygiene Association
 Asbestos-The asbestiform varieties of chrysotile, amosite, crocidolite, 
tremolite, anthophyllite, and actinolite and all materials containing 1.0% or 
more of any of those substances.
 Asbestos abatement -The removal, the encapsulation, or the enclosure of 
asbestos for the purpose of or that has the effect of reducing or eliminating 
concentrations of asbestos fibers or amounts of asbestos-containing materials.
 Asbestos abatement contractor-A person who undertakes to perform asbestos 
removal enclosure or encapsulation for others under contract or other agreement.
 Asbestos-containing material (ACM) -Materials or products that contain more 
than 1.0% of any kind or combination of mineral asbestos, as determined by EPA 
recommended methods.
 Asbestos exposure -Airborne asbestos fibers as resulting from disturbance or 
deterioration of asbestos or asbestos-containing materials.
 Asbestos Hazard Emergency Response Act of 1986 (AHERA), Public Law 95-519-The 
Act which amends the Federal Toxic Substances Control Act, 15 United States 
Code, sec.2641, et seq, by requiring the inspection of all school buildings 
(Grades K-12); requiring all school administrations to develop plans for 
controlling asbestos in or removing asbestos from school buildings; and by 
providing penalties for noncompliance.
 Asbestos project supervisor-An individual who is in the direct and responsible 
charge of the personnel, practices, and procedures of an asbestos abatement 
operation or activity. The United States Occupational Safety and Health 
Administration (OSHA) competent person must be a licensed asbestos project 
supervisor.
 Asbestos-related activity -The removal, encapsulation, or enclosure of 
asbestos, the performance of asbestos surveys, the development of management 
plans or response actions, the collection or analysis of asbestos samples, or 
any other activity required to be licensed under the Texas Asbestos Health 
Protection Act.
 Asbestos removal -Any action that disturbs, dislodges, strips, or otherwise 
takes away asbestos-containing material.
 Board-The Texas Board of Health.
 Building owner or agent-The responsible manager of any public building.
 CIH-A certified industrial hygienist.
 CFR-The Code of Federal Regulations.
Commissioner-The Texas commissioner of health.
 Competent person -The individual designated as the competent person in the 
United States Occupational and Health Administration regulations in 29 CFR, 
sec.1926.58.
 Department-The Texas Department of Health (TDH).
 Encapsulation-A method of control of asbestos fibers in which the surface of an 
asbestos-containing material is penetrated by or covered with a coating prepared 
for that purpose.
 EPA-The United States Environmental Protection Agency.
 Friable material -Materials that when dry can be crumbled, pulverized, or 
reduces to powder by hand pressure.
 HEPA-A high-efficiency particulate air, filter, which is a filter capable of 
removing 99.97% of airborne particles 0.3 micron or larger in diameter.
 HVAC-Heating, ventilation, and air conditioning systems.
 Independent third-party monitoring-A person retained to collect area air 
samples to be analyzed by a licensed laboratory for the owner of the building or 
facility being abated. The person must not be employed by the contractor to 
analyze any area samples collected during the abatement projects.
 Licensee-A person who meets all qualifications and has been issued a license by 
the department under these sections.
 Management plan -A written plan describing appropriate actions to manage ACM in 
public buildings.
 Model accreditation plan-An EPA plan which provides standards for initial 
training, examinations, refresher training courses, applicant qualifications, 
decertification, and reciprocity, as described in 40 CFR, Part 763, Subpart E, 
Appendix C.
 NESHAP-An EPA national emissions standards for hazardous air pollutants, as 
described in 40 CFR, Part 61, as amended.
 NIOSH-The National Institute of Occupational Safety and Health.
 NVLAP-The National Voluntary Laboratory Accreditation Program.
 OSHA-The Occupational Safety and Health Administration of the United States 
Department of Labor.
 P.E.-A registered professional engineer.
 PAT-Proficiency analytical testing.
 Person-A person is:
(A) an individual;
(B) an organization such as a corporation, partnership, sole proprietorship, 
governmental subdivision, or agency; or
(C) any other legal entity recognized by law as the subject of rights and 
duties.
 Public building -A building used or to be used for purposes that provide for 
public access or occupancy. The term includes any building during a period of 
vacancy, including during preparations prior to actual demolition. The term does 
not include:
(A) an industrial facility to which access is limited principally to employees 
of the facility because of processes or functions that are hazardous to human 
safety or health;
(B)  a federal building or installation;
(C) a private residence;
(D) an apartment building with no more than four dwelling units; or
(E) a manufacturing facility or building that is limited to workers and invited 
guests under controlled conditions.
 Regulated area -The isolated work area in which asbestos abatement activity 
takes place, and in which the possibility of exceeding the permissible exposure 
limits (PEL) for concentrations of airborne asbestos may exist.
 TEM-Transmission electron microscopy.
sec.295.33. Licensing: Asbestos Abatement Contractor.
(a)  Licensing requirement. Persons must be licensed as asbestos abatement 
contractors in compliance with these sections to engage in asbestos abatement in 
a public building. Licenses are valid for a period of one year and shall be 
renewable. No license may be sold, assigned, or otherwise transferred.
(b)  Fee. The fee for an initial application or for an annual renewal of the 
license for an asbestos abatement contractor shall be $500. Such fees are 
nonrefundable and shall be retained by the department if applicant fails to 
complete all information required by the department within 90 days of any notice 
of deficiency sent by the department to the applicant.
(c) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing and Registration Applications and Renewals), both 
initial applications and renewals shall be submitted on forms prescribed by the 
department, together with all required qualification documentation, and a check 
or money order for the required fee. Only applications that are complete will be 
eligible for acceptance by the department. The department shall issue a notice 
of deficiency for applications that are found to be incomplete.
(d) Qualifications. Applicants for licensing as asbestos abatement contractors 
shall submit:
(1) a certificate of training from a training provider approved by or acceptable 
to the department, indicating successful completion of an approved 32-hour 
course for asbestos abatement contractors and project supervisors within the 
past 12 months, or the current annual refresher training course, according to 
the eligibility for such courses set forth in sec.295.58 this title (relating to 
Operations: Required Asbestos Training). An applicant organization shall 
designate a corporate officer, general partner, or proprietor, according to the 
kind of organization, for the purpose of complying with this training 
requirement;
(2) a certificate of good standing, issued by the State Comptroller's Office, 
stating that all franchise taxes due from the applicant have been paid. Out-of-
state applicants shall comply with sec.295.44 of this title (relating to 
Licensing: Asbestos Project Manager);
(3) a State of Texas sales tax account number for the applicant organization;
(4) a notarized copy of a current certificate of insurance, written by a 
provider eligible to do business in Texas, which includes asbestos abatement 
liability coverage; and
(5) a written respirator protection plan to be maintained and adhered to during 
periods of abatement activity.
(e)  Responsibilities. The asbestos abatement contractor shall be responsible 
for:
(1) licensing standards of operation, as described in sec.295.50 of this title 
(relating to Licensing Standards);
(2) standards of operation, including EPA and OSHA regulations, referenced in 
sec.295.51 of this title (relating to Operations: Adoption of Standards);
(3) additional work practices, as described in sec.295.52 of this title 
(relating to Operations: Work Practices for Asbestos Abatement);
(4) recordkeeping requirements, at both central office and work site locations, 
as found in sec.295.53 of this title (relating to Operations: Recordkeeping);
(5) required notification to the department about impending abatement projects, 
changes requiring re-notification, and emergency notifications, as described in 
sec.295. 55 of this title (relating to Operations: Notification Requirements);
(6)  the requirement to supply and train employees who perform asbestos-related 
activities in the use of personal protection equipment, and to supervise their 
compliance, as described in sec.295.56 of this title (relating to Operations: 
Personal Protection);
(7) maintenance of the current training status of each employee, as described in 
sec.295.58, and the annual physical examinations;
(8) standards and practices for operations and maintenance activities, as 
conducted for hire by a contractor, as described in sec.295.60 of this title 
(relating to Operations: Operations and Maintenance (O&M) Activities);
(9)  responses to department personnel in the discharge of their official duties 
to conduct inspections and investigations, as described in sec.295.62 of this 
title (relating to Licensing Operations: Inspections and Investigations);
(10) maintenance of liability insurance, as described in the Texas Absetos 
Health Protection Act; and
(11) maintenance of workers' compensation insurance issued by a company licensed 
to do business in this state, and written in this state on a form prepared by 
the State Insurance Board, if required by contract specifications or a building 
owner.
(f)  Prohibition. A person licensed under this section and other applicable 
sections in this undesignated head who is engaged under a hire agreement to 
perform asbestos inspections, write asbestos management plans, or design 
contractual plans and specifications for an asbestos abatement project in a 
public building, is prohibited from performing that abatement project as an 
asbestos abatement contractor.
sec.295.34. Licensing: Asbestos Abatement Project Supervisor.
(a)  Licensing requirement. An individual must be licensed as an asbestos 
abatement project supervisor in compliance with these sections to engage in the 
supervision of an asbestos abatement project conducted in a public building. 
Such licenses are valid for a period of one year from the effective date and 
shall be renewable.
(b) Fee. The fee for an initial application or for an annual renewal of the 
license for an asbestos abatement project supervisor shall be $300. Fees are 
nonrefundable except as set forth in sec.295.46 of this title (relating to 
Licensing and Registration: Applications and Renewals);
(c) Applications and renewals. Subject to the provisions of sec.295.46, both 
initial applications and renewals shall be submitted on forms prescribed by the 
Texas Department of Health (department) together with all required documentation 
and a check or money order for the required fee. Only applications which are 
complete shall be eligible for acceptance by the department. The department 
shall issue a notice of deficiency for applications that are found to be 
incomplete.
(d) Qualifications: work experience. Applicants for licensing as asbestos 
abatement project supervisors are required to submit documentation of prior work 
experience with their application forms, as follows.
(1) Verifiable written documentation must be submitted:
(A) of at least five abatement projects (minimums: 160 square feet of surface 
area or 260 linear feet of piping for each project); or
(B) at least 35 days of qualifiable work experience as a trained and registered 
worker or foreman performed over a period of not less than 12 months and within 
the past 24 months to qualify for an asbestos abatement project supervisor 
license.
(2) The burden of proof for all points of the qualifying experience is on the 
individual applicant. Applicants for abatement project supervisor licenses must 
furnish contacts or sources that can fully verify the documented experience. 
Descriptions of abatement projects are not acceptable if the personal 
involvement of the applicant cannot be determined by the reviewer. If, in the 
opinion of the reviewing staff members, applicant experience cannot be properly 
and sufficiently verified, such experience must be rejected.
(3) Qualifiable experience includes project site preparation and establishing 
the abatement enclosure as follows:
(A) construction of containment barriers;
(B) use of respirators and protective equipment, personal hygiene, and 
decontamination procedures;
(C) use of engineering controls, abatement work methods and practices, and final 
cleanup procedures; and
(D) handling of waste asbestos.
(4) Work performed in an administrative capacity relating to asbestos abatement 
projects such as project manager or advisor, or consultant, cannot be accepted 
as qualifying experience.
(5) Work performed as an asbestos project supervisor or worker licensed in 
another state can qualify as experience.
(6) Experience as an asbestos air monitoring technician, which includes personal 
air sampling, regulated-area airborne asbestos sampling, aggressive sampling for 
final cleanup, plus on-site project recordkeeping documenting daily operations, 
controlling entry and exit from this enclosure, etc., may be employed as 
qualifying experience, subject to time-period limitations, minimum number of 
abatement projects (five), or work experience.
(e) Other qualifications. Applicants for licensing or renewal as asbestos 
abatement project supervisors shall also submit with their applications:
(1) a certificate of training indicating successful completion of an approved 
32-hour course for abatement contractors and project supervisors within the past 
12 months, or the current annual refresher training course, according to the 
eligibility for such courses which are described in sec.295.58 of this title 
(relating to Operations: Required Asbestos Training), and which are conducted by 
a training provider approved by or acceptable to the department.
(2) an acceptable written opinion of a physical examination of the applicant 
within the past 12 months that was performed by a physician in accordance with 
OSHA regulations in 29 Code of Federal Reguations (CFR), sec.1926.58(m) or EPA 
regulations in 40 CFR, Part 763, Subpart G(m), relating to medical surveillance; 
and
(3) a certificate attesting to the proper selection and fit testing of the 
applicant's respirator within the past 12 months according to the mandatory 
procedures in 40 CFR, sec.763.121, Appendix C.
(f) Possession of license. An abatement project supervisor possessing a valid 
license on the effective date of these rules may continue to renew that license 
annually without demonstrating proof of high school graduation, as required in 
sec.295.46 and sec.295.47 of this title (relating to Licensing and Registration: 
Conditions and Exemptions).
(g) Responsibilities. The asbestos abatement project supervisor shall:
(1) comply with licensing standards of operation, as described in sec.295.50 of 
this title (relating to Licensing Standards);
(2)  comply with standards of operation, including EPA and OSHA regulations, 
which have been adopted by reference in sec.295.51 of this title (relating to 
Operations: Adoption of Standards);
(3) comply with additional work practices, as described in sec.295.52 of this 
title (relating to Operations: Work Practices for Asbestos Abatement);
(4) maintain records at both the central office and the work site locations, as 
described in sec.295.53 of this title (relating to Operations: Recordkeeping);
(5) supply personal protection equipment and train employees who perform 
asbestos-related activities in the use of equipment, and to supervise their 
compliance, as described in sec.295.56 of this title (relating to Operations: 
Personal Protection);
(6)  standards and practices for operations and maintenance activities, as 
conducted for hire, according to sec.295.60 of this title (relating to 
Operations: Operations and Maintenance (O&M) Activities); and
(7) cooperate with department personnel in the discharge of their official 
duties to conduct inspections and investigations, as described in sec.295.62 of 
this title (relating to Licensing Operations: Inspection and Investigations).
(h)  Other duties. Abatement project supervisors may also assume the duties of 
asbestos abatement workers or crew leaders, or perform operations and 
maintenance activities affecting asbestos materials.
(i) Competent person. The individual designated as the competent person in OSHA 
regulations in 29 CFR, sec.1926.58, shall be a licensed asbestos abatement 
project supervisor.
sec.295.35. Registration: Asbestos Abatement Workers.
(a)  Registration requirement. Persons must be registered as asbestos abatement 
workers in compliance with these sections to perform asbestos abatement work in 
a public building, including transporting, loading, or unloading asbestos, and 
perform any maintenance, repair, installation, renovation, or cleaning that 
dislodges, breaks, cuts, abrades, or impinges on asbestos material. 
Registrations are valid for a period of one year from the effective date and are 
renewable. Asbestos abatement project supervisors or asbestos operations and 
maintenance activity supervisors (restricted) may check for return perform 
abatement projects as workers or as foremen.
(b) Fee. The fee for an initial application for an annual renewal of 
registration of an asbestos abatement worker shall be $30. Such fees are 
nonrefundable and shall be retained by the department if applicant fails to 
complete all information required by the department within 60 days of any 
initial notice of deficiency sent by the department to the applicant.
(c) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing and Registration: Applications and Renewals), both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required documentation and a check or money order 
for the required fee. Only applications that are complete are eligible for 
acceptance by the department. The department shall issue a notice of deficiency 
for applications that are found to be incomplete.
(d) Qualifications. Applicants for registration as asbestos abatement workers 
shall submit evidence of qualifications with their applications; which shall 
include:
(1) a certificate of training indicating successful completion of an approved 
24-hour course for abatement workers within the past 12 months, or the current 
annual refresher training course, from a training provider approved by or 
acceptable to the department and according to the eligibility for such courses 
as described in sec.295.58 of this title (relating to Operations: Required 
Asbestos Training). Successful completion of the contractor/supervisor course 
may be substituted for the initial worker course;
(2) an acceptable written opinion of a physical examination of the applicant 
within the past 12 months that was performed by a physician in accordance with 
Occupational Safety and Health Administration (OSHA) regulations in 29 Code of 
Federal Regulations (CFR), sec.1926.58(m), or Environmental Protection Agency 
(EPA) regulations in 40 CFR, Part 763, Subpart G(m), relating to medical 
surveillance; and
(3) a certificate attesting to the proper selection and fit testing of the 
applicant's respirator within the past 12 months according to the mandatory 
procedures in 40 CFR, sec.763.121, Appendix C.
(e) Responsibilities and duties. A registered asbestos abatement worker shall 
comply with:
(1)  licensing standards of operation, as described in sec.295.50 of this title 
(relating to Licensing Standards);
(2) standards of operation, including EPA and OSHA regulations, adopted by 
reference, in sec.295.51 of this title (relating to Operations: Adoption of 
Standards);
(3) additional work practices, as described in sec.295.52 of this title 
(relating to Operations: Work Practices for Asbestos Abatement);
(4) standards and practices for operations and maintenance activities, as 
described in to sec.295.60 of this title (relating to Operations: Operations and 
Maintenance (O&M) Activities); and
(5) compliance responses to department personnel in the discharge of their 
official duties to conduct inspections and investigations, as described in 
sec.295.62 of this title (relating to Licensing Operations: Inspections and 
Investigations).
(f) Prohibitions. The following specific prohibitions apply to registered 
asbestos abatement workers.
(1) Asbestos abatement workers are prohibited from performing asbestos abatement 
or operations and maintenance activities affecting asbestos except under the 
direct supervision of a qualified licensed supervisor.
(2) Asbestos abatement workers are prohibited from engaging in any asbestos-
related activity as a supervisor or contractor.
sec.295.36. Licensing: Asbestos Building Management (Restricted).
(a) Licensing requirement. Owners of public buildings or their agents to whom 
management responsibilities have been delegated shall be licensed in order to 
engage in operations and maintenance activities affecting asbestos in any 
building under their ownership. Asbestos building management (restricted) 
licenses are valid for a period of one year, and shall be renewable as 
prescribed in these sections. All licenses issued under these sections are 
subject to amendment or modification by rules or orders of the board or 
department. No license may be sold, assigned, or otherwise transferred.
(b)  Fee. The fee for an initial application or annual renewal shall be $120. 
Fees are nonrefundable except as provided in sec.295.46 of this title (relating 
to Licensing and Registration: Applications and Renewals).
(c)  Applications and renewals. Subject to the provisions of sec.295.46, both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required qualification documentation and a check or 
money order for the required fee. Only applications that are complete can be 
eligible for acceptance by the department. The department shall issue a notice 
of deficiency for applications that are found to be incomplete.
(d)  Responsibilities. Building owners or their management agents who obtain an 
asbestos building management license shall be responsible for:
(1)  complying with licensing standards of operation, as described in sec.295.50 
of this title (relating to Licensing Standards);
(2) complying with federal standards of operation, including EPA and OSHA 
regulations which are adopted by reference, as follows:
(A) OSHA regulations in 29 Code of Federal Regulations (CFR), sec.1926.58, 
Appendix G, titled "Work Practices and Engineering Controls for Small-Scale, 
Short-Duration Asbestos Renovation and Maintenance Activities;" and
(B) EPA regulations in 40 CFR, Part 763, Subpart E, Appendix B, titled "Work 
Practices and Engineering Controls for Small-Scale, Short-Duration Operations, 
Maintenance and Repair (O&M) Activities Involving ACM;"
(3) complying with guidance and reference in the EPA manual titled "A Building 
Owner's Guide to Operations and Maintenance Programs for Asbestos-Containing 
Materials," 20T-2003, issued July 1990;
(4) employment of at least one licensed operations and maintenance supervisor 
(restricted) to supervise or perform operations or maintenance activities. An 
individual licensed as an asbestos project supervisor may be substituted for the 
operations and maintenance (O&M) supervisor. Employees who are registered 
asbestos abatement workers shall perform O&M activity only under the direct 
supervision of either category of supervisors named in this section;
(5) complying with recordkeeping requirements, at both the central office and 
work site locations, as described in  s295.53 of this title (relating to 
Operations: Recordkeeping);
(6) complying with the requirement to notify the department about impending 
abatement projects, changes requiring re-notification, and emergency 
notifications, as described in sec.295. 55 of this title (relating to 
Operations: Notification Requirements);
(7)  complying with the requirement to supply and train employees who perform 
asbestos-related activities in the use of personal protection equipment, and to 
supervise their compliance, as described in sec.295.56 of this title (relating 
to Operations: Personal Protection);
(8) maintaining the current training status of each employee, according to 
sec.295.58 of this title (relating to Operations: Required Asbestos Training);
(9) compliance responses to department personnel in the discharge of their 
official duties to conduct inspections and investigations, as described in 
sec.295.62 of this title (relating to Licensing Operations: Inspection and 
Investigations); and
(10)  providing for the proper storage and disposal of waste asbestos.
(e)  Prohibitions.
(1) Persons obtaining an asbestos building management license are prohibited 
from engaging in any asbestos-related activity, including operations and 
maintenance activities, under a contract or other hire agreement.
(2) Asbestos building management licensees shall not engage in any activity for 
which the primary purpose is asbestos abatement.
sec.295.37. Licensing: Asbestos Operations and Maintenance Supervisor 
(Restricted).
(a) Licensing. Individuals who directly supervise personnel and work practices 
in the conduct of operations and maintenance activities affecting asbestos-
containing materials (ACM) shall be licensed as asbestos operations and 
maintenance supervisors (restricted). Such licenses are valid for a period of 
one year, and shall be renewable. All licenses issued under these sections are 
subject to amendment or modification by rules or orders to the board or 
department. No license may be sold, assigned, or otherwise transferred.
(b) Fee. The fee for an initial application or annual renewal shall be $90.00. 
The fee is nonrefundable except as provided in sec.295. 46 of this title 
(relating to Licensing and Registration: Applications and Renewals).
(c) Applications and renewals. Subject to the provisions of sec.295.46 both 
initial applications and renewals shall be submitted on forms prescribed by the 
Texas Department of Health (department) together with all required qualification 
documentation and a check or money order for the required fee. Only applications 
that are complete can be eligible for acceptance by the department. The 
department shall issue a notice of deficiency for applications that are found to 
be incomplete.
(d) Restrictions and prohibitions. Licensing as an asbestos operations and 
maintenance supervisor is specifically restricted, as follows.
(1) A licensee may be employed only by a licensed building owner or his 
management agent, or by a licensed asbestos abatement contractor, to supervise 
operations or maintenance activities within public buildings, or to perform 
them.
(2) A licensee may not seek employment as an asbestos abatement worker.
(3) A licensee is prohibited from engaging in any other asbestos-related 
activity for which a license is required.
(4) A licensee is prohibited from engaging in the supervision of asbestos 
abatement projects.
(e) Qualifications. The applicant for an operations and maintenance license 
shall submit the following:
(1) a certificate of training indicating successful completion of an approved 
32-hour course for abatement contractors and project supervisors within the past 
12 months, or the current annual refresher training course from a training 
provider approved by or acceptable to the department, according to the 
eligibility for such courses set forth in sec.295.58 of this title (relating to 
Operations: Required Asbestos Training);
(2) an acceptable written opinion of a physical examination of the applicant 
within the past 12 months that was performed by a physician in accordance with 
OSHA regulations in 29 Code of Federal Regulations (CFR), sec.1926.58(m) or EPA 
regulations in 40 CFR, Part 763, Subpart G(m), concerning medical surveillance; 
and
(3) a certificate attesting to the proper selection and fit testing of the 
applicant's respirator within the past 12 months according to the mandatory 
procedures in 40 CFR, sec.763.121, Appendix C.
(f) Possession of licence. Operation and maintenance an asbestos supervisor 
(restricted) possessing a valid license on the effective date of these rules may 
continue to renew that license annually without demonstrating proof of high 
school graduation, as required in sec.295.46 and sec.295.47 of this title 
(relating to Licensing and Registration: Conditions and Exemptions).
(g) Responsibilities. The asbestos operations and maintenance supervisor 
(restricted) shall:
(1) comply with the licensing standards of operation, as described in sec.295.50 
of this title (relating to Licensing Standards);
(2) comply with the EPA and OSHA regulations for standards of small- scale, 
short-duration work practices which are adopted by reference in sec.295.51 of 
this title (relating to Operations: Adoption of Standards);
(3)  comply with the additional work practices, as described in sec.295.52 of 
this title (relating to Operations: Work Practices for Asbestos Abatement);
(4)  maintain records at both the central office and work site locations, as 
described in sec.295.53 of this title (relating to Operations: Recordkeeping);
(5) supply personal protection equipment and train employees who perform 
asbestos-related activities in the use of equipment, and supervise their 
compliance, as described in sec.295.56 of this title (relating to Operations: 
Personal Protection);
(6) comply with standards and practices for operations and maintenance according 
to sec.295.60 of this title (relating to Operations: Operations and Maintenance 
(O&M) Activities); and
(7)  cooperate with department personnel in the discharge of their official 
duties to conduct inspections and investigations, as described in sec.295.62 of 
this title (relating to Licensing Operations: Inspections and Investigations).
sec.295.38. Licensing: Asbestos Inspector-Surveyor.
(a)  Licensing. An individual may not perform building surveys, including the 
collection of bulk samples of suspected asbestos containing materials, determine 
the location and condition of asbestos in a public building, and document survey 
results unless the individual is licensed under these sections.
(b)  Qualification. To qualify for a license, an applicant must demonstrate in a 
manner acceptable to the department that he/she meets the following.
(1)  The applicant must have completed the training requirements of sec.295.58 
of this title (relating to Operations: Required Asbestos Training) applicable to 
inspectors.
(2) All individuals must furnish evidence of a physical examination within the 
past one-year period that was conducted by a physician in accordance with OSHA 
regulations in 29 Code of Federal Regulations (CFR), sec.1926.58(m) or EPA 
regulations in 40 CFR, sec.763.121, relating to medical surveillance. This 
evidence shall be a statement made by the physician in the form required by the 
department.
(3) All individuals, when doing work for hire, must provide a notarized copy of 
a certificate of insurance demonstrating professional liability insurance 
coverage for errors and omissions.
(c) Fee. The licensing fee for an asbestos inspector-surveyor is $120. No 
portion of this fee shall be refunded if the license is suspended, revoked, or 
if the licensee otherwise discontinues licensed activities.
(d)  Annual renewal. The license must be renewed annually. The fee for renewal 
is $120. Renewal will be made by application on a form, provided by the 
department 30 days before the expiration of the current license.
(e) Annual update course of instruction. All individuals subject to license 
renewal shall complete an annual update course of instruction for inspectors so 
as to fulfill the training requirements for licensing renewal.
(f) Application requirements. All applications/replacements shall be submitted 
on the prescribed department form(s) and accompanied by a check or money order 
for the required fee. Failure to complete the information required by the 
department within 90 days shall render the application null and void.
sec.295.39. Licensing: Asbestos Management Planner.
(a)  Licensing. An individual may not engage in the development of a management 
plan related to determining a written schedule and procedures to manage the use 
of asbestos in a public building unless the individual is licensed under these 
sections.
(b) Qualification. To qualify for a license as an asbestos management planner, 
an applicant must have completed an EPA or state approved two-day course of 
instruction within the past 12 months for management planners, or has remained 
certified by completing annual refresher training for management planners and 
inspectors, as specified in sec.295.58 of this title (relating to Operations: 
Required Asbestos Training).
(c) Fee. The initial licensing fee and the annual license renewal fee for an 
asbestos management planner is $120 and is nonrefundable. Fees are nonrefundable 
except as set forth in sec.295. 46 of this title (relating to Licensing and 
Registration: Application and Renewals). Application and renewals will be made 
on application forms provided by the department.
(d) Annual update course of instruction. All individuals subject to license 
renewal shall complete the appropriate annual update course of instruction for 
management planners and inspectors so as to fulfill the training requirements 
for licensing renewal.
(e)  Replacement certificate. If the licensee requires a replacement 
certificate, he may request a replacement by completing an application provided 
by the department. The reissuance fee is $20.
sec.295.40. Licensing: Asbestos Consultant.
(a) Licensing. Persons shall be licensed as an asbestos project consultants in 
compliance with the provisions of this section, in order to engage in an 
activity in a public building, including:
(1) advising clients on air sampling and planning sampling strategy;
(2) advising clients and abatement contractors regarding compliance with 
regulations and air standards;
(3) advising clients on the selection and use of appropriate personal protective 
equipment related to asbestos abatement activities;
(4) advising clients on inspection of buildings for suspected asbestos-
containing materials and assessing hazards posed by positively identified 
asbestos containing material;
(5) advising clients on collection of bulk samples from suspected asbestos-
containing material;
(6)  recommending abatement options for each area of asbestos-containing 
material;
(7) preparing and evaluating asbestos abatement projects or abatement project 
plan specifications and contract options; and
(8) providing owner representative services for asbestos abatement projects 
carried out by licensed asbestos abatement persons.
(b) Fee. The fee for an initial application or for an annual renewal of the 
license for an asbestos consultant shall be $500. Such fees are nonfundable and 
shall be retained by the department if the applicant fails to complete all 
information required by the department within 90 days of any notice of 
deficiency sent by the department to the applicant.
(c) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing and Registrations: Applications and Renewals), both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required qualification documentation and a check or 
money order for the required fee. Only applications that are complete will be 
eligible for acceptance by the department. The department shall issue a notice 
of deficiency for applications that are found to be incomplete.
(d) Qualifications. To qualify for a license, an applicant must demonstrate in a 
manner acceptable to the department that he/she meets the following applicable 
qualifications.
(1) The applicant must:
(A) have completed a three-day course of instruction within the past 12 months 
for abatement project designers;
(B) the 32-hour course for asbestos abatement contractors and supervisors; or
(C) one of these courses and all annual refresher training courses, as 
applicable, from a training provider approved by or acceptable to the department 
according to the eligibility for such courses described in sec.295.58 of this 
title (relating to Operations: Required Asbestos Training).
(2) An applicant organization shall designate a corporate officer, general 
partner, or proprietor, according to the kind of organization, for the purpose 
of complying with the training requirement in paragraph (1) of this subsection, 
and with paragraph (7) of this subsection.
(3) All applicants performing work for hire must provide a notarized copy of a 
certificate of insurance demonstrating professional liability insurance coverage 
for errors and omissions.
(4) All applicants who are professional corporations or otherwise incorporated 
under the laws of Texas must provide a certificate of good standing issued by 
the Texas Comptrollers Office.
(5) All applicants who are corporations from outside the State of Texas must 
provide a certificate from the secretary of state authorizing the corporation to 
conduct business in the state.
(6) All applicants must provide a State of Texas sales tax number.
(7) Each applicant shall provide evidence of:
(A) status as either an American Board of Industrial Hygiene certified 
industrial hygienist, a registered professional engineer, or a registered 
architect conferred by the appropriate regulatory body of the state in which the 
individual resides;
(B) possession of a bachelor's degree in a physical science from an accredited 
four-year college or university, and possession of four years' experience in 
engineering or industrial hygiene, including one years' experience in asbestos-
related activities; or
(C) possession of a high school diploma or GED together with a minimum of five 
years' experience in asbestos abatement, including at least two years' full-time 
practice as an asbestos abatement consultant provided that:
(i) an application under this subparagraph must be made on or before February 
29, 1992; and
(ii) documentation establishing the applicant's qualifications must be 
completely verifiable, and the department may request supplemental information 
as deemed necessary and desirable.
sec.295.41. Licensing: Air Monitoring Technician.
(a) Licensing. An individual must be licensed as an air monitoring technician in 
compliance with the provisions of this section to engage in obtaining air 
samples in a public building for laboratory analysis. They may obtain baseline, 
area, personal, and clearance samples. They may advise clients on air sampling 
and planning sampling strategy.
(b) Authority of air monitoring technicians. They may obtain baseline, area, 
personal, and clearance samples, and they may advise clients on air sampling and 
planning sampling strategy.
(c) Fee. The fee for an initial application or for an annual renewal of the 
license for an air monitoring technician shall be $50. Fees are non- refundable 
and shall be retained by the department if the applicant fails to complete all 
information required by the department within 90 days of any initial notice of 
deficiency sent by the department to the applicant.
(d) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing: Asbestos Training Provider), both initial 
applications and renewals shall be submitted on forms prescribed by the 
department together with all required documentation and a check or money order 
for the required fee. Only applications that are complete can be eligible for 
acceptance by the department. The department shall issue a notice of deficiency 
for applications that are found to be incomplete.
(e) Qualifications. To qualify for a license, an applicant shall submit the 
following.
(1) The applicant must have a certificate of training indicating successful 
completion of an approved three-day training course for air monitoring 
technicians within the past 12 months, and annual refresher training courses as 
applicable, conducted by a training provider approved by or acceptable to the 
department according to the eligibility for such courses described in  s295.58 
of this title (relating to Operations: Required Asbestos Training).
(2) All individuals must furnish evidence of a physical examination within the 
past one-year period that was conducted by a physician in accordance with OSHA 
regulations in 29 Code of Federal Regulations (CFR), sec.1926.58(m) or EPA 
regulations in 40 CFR, sec.763.121 relating to medical surveillance. This 
evidence shall be a statement made by the physician on the form required by the 
department.
(f) Exemptions. Applicants who have taken and passed airborne asbestos sampling 
and laboratory analysis (NIOSH 582) course or equivalent are exempt from the 
requirements of subsection (e)(1) of this section. They must submit a copy of 
this original certificate to the department in order to qualify.
sec.295.42. Licensing: Asbestos Laboratory.
(a) Licensing requirement. A person must be licensed in compliance with the 
provisions of this section to provide analysis of samples collected in public 
buildings for asbestos content. Such licenses are valid for a period of one year 
from the effective date and shall be renewable, as prescribed in this section. 
All licenses issued under these sections are subject to amendment or 
modification by rules or orders of the board or department. No license may be 
sold, assigned, or otherwise transferred.
(b) Fee. The fee for an initial application or for an annual renewal of the 
license for an asbestos laboratory shall be $200. Fees are nonrefundable and 
shall be retained by the department if the applicant fails to complete all 
information required by the department within 90 days of any initial notice of 
deficiency sent by the department to the applicant.
(c) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing and Registrations: Applications and Renewals), both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required documentation and a check or money order 
for the required fee. Only applications that are complete can be eligible for 
acceptance by the department. The department shall issue a notice of deficiency 
for applications that are found to be incomplete.
(d)  Qualifications. To qualify for a license, an applicant must demonstrate, in 
a manner acceptable to the department, that he/she meets the applicable 
following qualifications.
(1) The applicant must have at least one individual, in responsible charge, who 
has completed the National Institute of Occupational Safety and Health (NIOSH) 
582 course.
(2) The applicant must have National Voluntary Laboratory and Analytical Program 
(NVLAP) accreditation, and/or be enrolled in the National Institute of 
Occupational Safety and Health (NIOSH) Proficiency Analytical Testing (PAT) 
program, or on the Asbestos Analyst Registry.
(3) If the applicant is a Texas corporation, a certificate of good standing, 
issued by the State Comptroller's Office, must be submitted with the application 
for licensure.
(4) If the applicant is situated outside the State of Texas, a certificate of 
authority issued by the secretary of state, authorizing the corporation to do 
business in the state, must be submitted with the application.
(5) An applicant for licensing under these sections must produce proof of 
insurance for professional liability, including pollution, with a carrier 
eligible to do business in this state.
(e) Limitations. Limits which are placed on the type of services that a 
laboratory can perform are as follows.
(1) A laboratory may analyze bulk samples only if so accredited by NVLAP.
(2) A laboratory may analyze clearance samples by transmission electron 
microscopy (TEM) only if accredited by NVLAP.
(3)  A laboratory enrolled in the NIOSH proficiency analytical testing (PAT) 
program may perform phase-contrast microscopy analysis under controlled 
laboratory conditions or under field conditions, if quality-control analysis is 
performed on at least 20% of the samples analyzed in the field.
sec.295.43. Licensing: Asbestos Transporters.
(a) Licensing. A person must be licensed as an asbestos transporter in 
compliance with these sections to engage in the transport of asbestos in this 
state for the purpose of disposal. Licenses are valid for a period of one year, 
and shall be renewable. All licenses issued under these sections shall be 
subject to amendment or modification by rules or orders of the Board of Health 
(board) or Department of Health (department). No licenses may be sold, assigned, 
or otherwise transferred.
(b) Fee. The fee for an initial application or for an annual renewal of the 
license for an asbestos transporter shall be $200. Fees are nonrefundable except 
as provided in sec.295.46 of this title (relating to Licensing and Registration: 
Applications and Renewals).
(c) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing and Registrations: Applications and Renewals), both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required documentation and a check or money order 
for the required fee. Only applications that are complete can be eligible for 
acceptance by the department. The department shall issue a notice of deficiency 
for applications that are found to be incomplete.
(d) Qualifications. To qualify for a license, an applicant must demonstrate, in 
a manner acceptable to the department, that he/she meet the applicable 
qualifications.
(1) If the applicant is a Texas corporation, a certificate of good standing, 
issued by the State Comptroller's Office must be submitted with the application 
for licensure.
(2) If the applicant is situated outside the State of Texas, a certificate of 
authority issued by the secretary of state authorizing the corporation to do 
business in the state, must be submitted with the application for licensure.
(3) Proof of general liability and auto liability insurance with an insurance 
carrier eligible to do business in this state must be submitted with the 
applications for licensure.
(e)  Responsibilities. A licensee as an asbestos transporter shall:
(1)  comply with all applicable provisions of sec.295.50 of this title (relating 
to Licensing Standards);
(2) comply with federal regulations in 29 Code of Federal Regulations (CFR), 
Part 61 titled "National Emissions Standards for Hazardous Air Pollutants 
(NESHAP)," specifically the provisions concerning asbestos transport, and 40 
CFR, Part 763, Subpart E, Appendix D, titled "Transport and Disposal of Asbestos 
Waste;"
(3) train and supply employees who will handle asbestos with personal protective 
equipment and training for its use, and supervise their compliance with these 
measures in accordance with sec.295.56 of this title (relating to Operations: 
Personal Protection);
(4) establish and maintain records of transporting asbestos to disposal sites, 
and report annually to the department on the quantity transported to each 
disposal site destination;
(5) comply with department personnel in the discharge of their official duties 
to conduct inspections and investigations, as set forth in sec.295.62 of this 
title (relating to Licensing Operations: Inspections and Investigations); and
(6)  train employees in compliance with OSHA regulations in 29 CFR, 
sec.1910.120, in anticipation of possible spills of asbestos.
sec.295.44. Licensing: Asbestos-Project-Manager.
(a) Licensing. An individual must be licensed as an asbestos project manager, to 
perform in the capacity of owner's representative to evaluate the quality of the 
work being performed during an asbestos abatement project. He/she may monitor 
the project to insure the safety of both project personnel and building 
occupants, and the adequacy of controls. He/she may insure that all licensing 
requirements are being met by the abatement contractor. He/she may advise 
contractors, on behalf of his/her clients, on the selection and use of 
appropriate personal protective equipment related to the asbestos abatement 
activities.
(b) Fee. The fee for an initial application or for an annual renewal of the 
license for an asbestos project manager shall be $150. Fees are nonrefundable 
and shall be retained by the department if the applicant fails to complete all 
information required by the department within 90 days of any initial notice of 
deficiency sent by the department to the applicant.
(c) Applications and renewals. Subject to the provisions of sec.295.46 of this 
title (relating to Licensing and Registrations: Applications and Renewals), both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required documentation and a check or money order 
for the required fee. Only applications that are complete can be eligible for 
acceptance by the department. The department shall issue a notice of deficiency 
for applications that are found to be incomplete.
(d) Qualifications. To qualify for a license, an applicant must demonstrate, in 
a manner acceptable to the department, that he/she has:
(1) a certificate of training indicating successful completion of an approved 
32-hour course for abatement contractors and project supervisors within the past 
12 months or the current annual refresher training courses as applicable, 
conducted by a training provider approved by or acceptable to the department 
according to the eligibility for such courses set forth in sec.295.58 of this 
title (relating to Operations: Required Asbestos Training);
(2) evidence of a physical examination within the past one-year period that was 
conducted by a physician in accordance with OSHA regulations in 29 Code of 
Federal Regulations (CFR), sec.1926.58(m) or EPA regulations in 40 CFR, 
sec.763.121 relating to medical surveillance. This evidence shall be a statement 
made by the physician on the form required by the department; and
(3) a certificate attesting to the proper selection and fit testing of the 
applicant's respirator within the past 12 months according to the mandatory 
procedures in 40 CFR, sec.763.121, Appendix C.
(e)  Responsibilities. Those responsibilities and duties that shall be assumed 
by the asbestos project manager include competence in interpreting:
(1)  licensing standards of operation, as described in sec.295.50 of this title 
(relating to Operation: General Provisions);
(2) standards of operation including EPA and OSHA regulations adopted by 
reference in sec.295.51 of this title (relating to Operations: Adoption of 
Standards);
(3) additional work practices, as described in sec.295.52 of this title 
(relating to Operations: Work Practices for Asbestos Abatement);
(4) standards covering maintenance of records at both the department central 
office and work site locations, as described in sec.295.53 of this title 
(relating to Operations: Recordkeeping);
(5) standards and practices for operations and maintenance activities, according 
to sec.295.60 of this title (relating to Operations: Operations and Maintenance 
(O&M) Activities); and
(6)  cooperation procedures with department personnel in the discharge of their 
official duties to conduct inspections and investigations, as described in 
sec.295.62 of this title (relating to Licensing Operations: Inspections and 
Investigations).
(f) Liability. Asbestos consultants who employ asbestos project managers shall 
include them in their liability coverage for errors and omissions.
sec.295.45. Licensing: Asbestos Training Provider.
(a) Licensing. A person must be licensed as an asbestos training provider in 
accordance with these sections to offer and to conduct asbestos training for 
fulfillment of specific training requirements acceptable to the department.
(b) Fee. The fee for an initial application or for annual renewal of the 
asbestos training provider license shall be $500. Fees are nonrefundable except 
as set forth in sec.295.46 of this title (relating to Licensing and 
Registration: Applications and Renewals).
(c) Applications and renewals. Subject to the provisions of sec.295.46 both 
initial applications and renewals shall be submitted on forms prescribed by the 
department together with all required documentation and a check or money order 
for the required fee. Only applications that are complete can be eligible for 
acceptance by the department. The department shall issue a notice of deficiency 
for applications that are found to be incomplete.
(d) Qualification. Documentation required of applicants for licensing as 
asbestos training provider is as follows.
(1)  Organization. There shall be a clear written description of the 
organization, including the address of its central office and the names and 
addresses of its principals, and a statement of intent concerning the courses 
and services to be offered and the planned locations for conducting them. If the 
organization is affiliated with or the subsidiary of another, a complete 
description of this arrangement is also required. The organization shall 
designate a staff member as director in charge of asbestos training.
(2) Classroom space. There shall be a description, including plan drawings and 
photographs, of the principal space or spaces available for the conduct of 
courses.
(3)  Equipment. There shall be a description of the items of instructional 
equipment and accessories available for the conduct of courses. The provider 
shall furnish adequate equipment in good working order for each training 
session.
(4) Records. Records shall be maintained, including:
(A) a record of each asbestos course that is conducted, which shall include 
dates, location, instructors, trainees, etc., for a period of five years; and
(B)  a file for each trainee, including applications and eligibility 
documentation, exam scores, etc., for a period of five years.
(5)  Advertising. The following shall apply to any advertising to be done by the 
applicant. The applicant shall furnish examples of advertising to the department 
as issued.
(A) Printed bulletins, brochures, or other promotional literature must specify 
course prerequisites for admission, the content of the course, and requirements 
for successful completion.
(B) Training provider advertising shall not contain any illustration that 
conveys a false impression as to the size, importance, or location of their 
facility or their equipment.
(C) Training providers shall not use endorsements or commendations concerning 
asbestos training except with written consent of the writer and without offer of 
financial compensation.
(D) The advertising of training providers shall not state or intimate that 
prospective employees are being sought, that employment upon completion can be 
guaranteed, and no quotations of dollar amounts indicative of earnings potential 
shall be made.
(6) Fees and other charges. A schedule of proposed fees and other charges shall 
be submitted with the application. If the provider will offer financing of these 
fees, the details of such plan must be included. Trainees shall not be held 
liable for any fees or charges not disclosed prior to enrollment.
(7) Refund and cancellation policy. Each training provider must have a written 
policy concerning refunds and cancellations in both Spanish and English that is 
made available to applicants prior to acceptance of fees for enrollment, and 
shall include the procedure for notification by the trainee desiring to cancel.
(8) Admission requirements. The training provider shall discuss and inform each 
applicant of the requirements for the type of license being sought, and of 
necessary qualifications the applicant must have, as follows.
(A) Individuals not eligible for employment in the United States will not be 
licensed.
(B) Eligibility for refresher training courses is dependent on the effective 
date of the initial training.
(C)  Certain asbestos training courses require the successful completion of 
other training courses as a condition for admission.
(D) The trainee shall be furnished with a manual containing an outline of the 
course and the texts of applicable guidelines and recommendations.
(9) Maximum trainee-instructor ratio. The maximum number of trainees in a 
lecture session shall be 40. Hands-on training groups shall have no more than 12 
trainees and must be so arranged that each trainee is given individual 
attention.
(10)  Attendance and course completion standards.
(A) Roll call in asbestos training courses shall be taken at the beginning of 
each four-hour segment of course instruction. Control of exits and entrances 
shall be maintained. A master attendance record shall be maintained for each 
session.
(B) A trainee is not eligible to complete a given course if more than 20% of the 
session has been missed, and the qualifying exam shall not be offered in such 
instances. The records of that session shall be marked to this effect.
(C) Training providers shall develop a written policy for handling no-shows and 
absentees.
(D) A training provider must certify each examination taken by a trainee as to 
whether a minimum score of 70% correctly answered questions was achieved. The 
training provider shall have a written policy concerning re-examinations which 
shall apply to all such cases of failure of the initial examination. Failure of 
the re-examination means that the course will have to be repeated.
(e) Conditions of issuance. The following conditions and agreements shall apply 
to issuance of licenses under this section.
(1) There shall be an agreement to send at least one course instructor to any 
meeting sponsored by the department for the purpose of ensuring quality training 
courses in asbestos abatement and related topics.
(2) There shall be an agreement to permit representatives of the department to 
attend any asbestos training course and take the examination without cost to the 
department. The department shall be furnished a copy of all scheduled courses 
and shall be advised at least 24 hours in advance of any course cancellations or 
any non-scheduled courses to be presented.
(3) There shall be a description and an example of numbered certificates issued 
to students who attend the course and pass the examination. The certificate must 
be in conformance with 40 Code of Federal Regulations (CFR), Part 763, Subpart 
E, Appendix C, and must show the social security number of the individual 
certified. A uniquely numbered certificate may also be used, providing the 
social security number is shown.
(4)  Approval shall be automatically canceled for any course not presented at 
least one time in a six-month period and the trainer will be required to 
resubmit the course for approval.
(5) Trainers shall not provide the necessary training for accrediting their own 
personnel (employees), personnel who have a financial interest in the training 
provider, or personnel who are employees of persons having any financial 
relationship with the training provider.
(6) Trainers may present other courses or seminars relevant to asbestos 
activities including, but not limited to, courses on respirator training and 
compliance (NIOSH 582 or equivalent) sample analysis by polarized light 
microscopy, construction safety (29 CFR, Part 1926), hazard communications 
(Texas or OSHA), hazardous worker (29 CFR, sec.1910.120), local education 
agency-asbestos coordinator, or advanced hands-on for worker and supervisor. 
Such courses will not be accredited by the department. Any federal accreditation 
requirements will be complied with by the provider. Such courses and seminars 
may not be used for refresher training credit.
(f) Course instructors. The training provider shall submit a resume of each 
instructor that will participate in the conduct of any asbestos training course 
to be approved by the department. The training provider will notify the 
department of additions and deletions to their instructor roster within 15 days 
of actual occurrence, and shall notify the department by FAX or express mail of 
any last-minute instructor substitutions for scheduled courses.
(g) Instructor qualifications. Training instructors shall be qualified in any 
one of the categories in the following paragraphs. Training qualifications must 
be fully documented, and verifiable by the department. The categories include:
(1) at least two years of actual hands-on experience in asbestos-related 
activities with continuous training accreditation from EPA asbestos courses, and 
a high school diploma and completion of one or more teacher education courses in 
vocational or industrial teaching;
(2) a college degree in basic sciences or a related field, which shall include 
architect, registered professional engineer (P.E.), certified industrial 
hygienist (C.H.I.), or a certified safety professional (C.S.P.), with one years' 
hands-on experience in asbestos related activities, and current accreditation in 
at least one EPA asbestos course;
(3) at least three years' teaching experience in Hazmat or HazWoper courses, and 
completion of one or more teacher education courses in vocational or industrial 
teaching; or
(4) qualification on an individual basis of professional persons for the purpose 
of teaching their specialty, such as law, medicine, etc.
(h) Professional references. Each instructor application submitted shall be 
accompanied by professional references attesting to teaching experience and 
qualification.
(i)  Complete applications. The department shall not accept any instructor 
application until it is complete; the department shall reject any such 
application that does not contain sufficient references to be fully verifiable.
sec.295.46. Licensing and Registration: Applications and Renewals.
(a) Licensing. Applications for a license under these sections shall be made on 
forms provided by the department, shall be signed by the applicant, and must be 
accompanied by a check or money order for the amount of the license or renewal 
fee. Only applications which are complete shall be considered by the department.
(b) Denials. The department may deny an application for licensing or renewal to 
any applicant who fails to meet the standards established by these sections, 
including, but not limited to:
(1)  failure to demonstrate the ability of the applicant to comply fully with 
applicable requirements, procedures, and standards set forth in these sections;
(2) past history of violations of these sections by the applicant and/or the 
applicant's employees or agents, as determined by department administrative 
orders or court judgments;
(3) evidence that the applicant cannot be legally employed in the United States;
(4) failure of licensees to provide proof of high school graduation or 
equivalent (this is not a requirement for worker registration);
(5) submission of false information on an application;
(6) failure to submit the required information and/or documentation within 90 
days of a written request by the department;
(7) failure to submit the required fee with the application; and
(8) any past history violations of state or federal law pertaining to asbestos-
related activities.
(c) Time periods for processing applications and renewals. The department is 
allotted a time period of 90 days from receipt of an initial application to 
issue asbestos licenses, and/or a period of 60 days from receipt of an initial 
application to issue worker registration.
(d)  Reimbursement of fees. Initial application or renewal fees will be refunded 
only when a completed application is not processed according to these sections. 
Refunds are also made when fee amounts are incorrect or submitted for the wrong 
purpose. Otherwise, fees for applications and renewals are not eligible for 
refund, as follows.
(1) Denial of an application, failure to qualify, or abandonment of the 
application do not constitute grounds for reimbursement. Abandonment is defined 
as failure to respond to a written request of the department by the applicant 
for a period of 90 days or longer.
(2) A denial of an application or a request for renewal may be appealed by the 
applicant.
(e) Renewal notice. At least 30 days before a license expires, the department 
shall send to the licensee, by first-class mail to the last known address of the 
licensee, a renewal notice that states:
(1)  the date on which the current license or registration expires;
(2)  the date by which the renewal application must be received by the 
department for the renewal to be issued and mailed before the license or 
registration expires; and
(3) the amount of the renewal fee.
(f) Renewal requirements. Before the license or registration expires, it may be 
renewed for an additional one-year term providing that the licensee or worker:
(1)  is qualified to be licensed or registered;
(2) pays to the department the proper amount of the nonrefundable renewal fee;
(3)  submits to the department a renewal application on the prescribed form;
(4) completes successfully the requirements for renewal, including a current 
physical examination; and
(5) has complied with all final orders resulting from violations of these 
sections.
(g) Replacement. A licensee or registrant may request a replacement certificate 
by completion of an appropriate application. The fee for reissuance is $20.
(h) Retention of control. The department may, at any time after the filing of 
any application and before the expiration of any license or registration, 
require:
(1)  additional written information and assurances; and
(2) any inspections or cause the production of any documentary or other evidence 
that the department considers necessary to determine whether the license or 
registration should be granted, delayed, denied, modified, suspended, or 
revoked.
sec.295.47. Licensing and Registration: Conditions and Exemptions.
(a) A person must be appropriately licensed in compliance with these sections to 
engage in asbestos abatement or any asbestos-related activity within the scope 
of these sections.
(b) Each individual desiring to be licensed under these sections must attain 
his/her 18th birthday prior to submitting an application for such purpose.
(c) The term of all licenses, including the registration of asbestos workers, is 
one year and expires on the anniversary of the effective date unless renewed.
(d)  The minimum education requirement for any license to be issued under these 
section is graduation from high school or its equivalent.
(e) The terms and conditions of all licenses shall be subject at any time to 
revision, amendment, or modification by rules or orders issued by the Texas 
Board of Health or the Texas Department of Health (department), as appropriate.
(f)  No license or worker registration issued under these sections may be sold, 
assigned, or transferred.
(g) A change of name of any licensee, or the change of ownership of a licensee 
organization to an extent greater than 20% of the whole shall require re-
application. Notice of such change must be sent to the department within 30 
days.
(h) An individual shall not engage in the supervision of asbestos abatement 
within the scope of these sections unless and until he/she is licensed as an 
abatement project supervisor. Registered abatement workers or licensees must 
hold an abatement project supervisor's license if they assume responsible charge 
of the personnel and work practices of an abatement project.
(i) An individual must be licensed as an asbestos abatement contractor to 
solicit or conduct asbestos abatement projects or asbestos operations and 
maintenance tasks for hire.
(j) Those who contract to remove resilient floor coverings, including vinyl-
asbestos tile, may be exempt from the requirement to be licensed under these 
sections provided that:
(1) all persons employed in such removal shall have taken and passed an eight-
hour course approved by the department on the removal of resilient floor 
coverings by approved methods by an approved training sponsor;
(2)  removal activities of both floor coverings and the glue, or mastic, are 
removed according to the guidelines contained in EPA regulations covering 
national emissions standards for hazardous air pollutants in 40 CFR, Part 61, as 
amended. These standards are restricted to wet methods and the use of heat or 
dry ice or nitrogen for removal of floor coverings, and the use of solvents 
where necessary for the removal of the mastic;
(3) floor and mastic (glue) samples must be analyzed for asbestos content prior 
to removal; and
(4) the department shall be notified at least 10 days prior to conducting the 
removal operation. See sec.295.55 of this title (relating to Operations: 
Notification Requirements).
sec.295.48. Licensing and Registration: Requirements for Asbestos Hazard 
Emergency Response Act (AHERA).
(a) Individuals and organizations who engage in the control and abatement of 
asbestos-containing materials in the buildings of both public and non-public 
private schools which teach any grades between kindergarten and 12th grade must 
be in compliance with under AHERA requirements in 40 Code of Federal Regulations 
(CFR), Part 763, Subpart E, titled, "Asbestos-Containing Materials in Schools," 
as amended.
(b)  Persons or employees accredited to perform any asbestos-related activity 
under AHERA must be licensed under the provisions of these sections.
(1)  Asbestos abatement contractors must qualify for licensure under sec.295.33 
of this title (relating to Licensing: Asbestos Abatement Contractor).
(2)  Abatement project supervisors must qualify under sec.295.34 of this title 
(relating to Licensing: Asbestos Abatement Project Supervisor).
(3)  Inspectors must qualify under sec.295.38 of this title (relating to 
Licensing: Asbestos Inspector-Surveyors).
(4) Management planners must qualify under sec.295.39 of this title (relating to 
Licensing: Management Planner).
(5) Project designers must qualify under sec.295.40 of this title (relating to 
Licensing: Asbestos Consultant).
(6) Asbestos abatement workers must qualify under  s295.35 of this title 
(relating to Registration: Asbestos Abatement Workers).
(c) If the school's administration has obtained an asbestos building management 
license under sec.295.36 of this title (relating to Licensing: Asbestos Building 
Management (Restricted)), members of the school's custodial crew may conduct 
activities that will result in the disturbance of asbestos-containing materials. 
They must be licensed as asbestos abatement workers and supervised by a licensed 
operations and maintenance supervisor (restricted) in accordance with sec.295.37 
of this title (relating to Licensing: Asbestos Operations and Maintenance 
Supervisor (Restricted)) or an asbestos project supervisor. The 14-hour 
custodial training course is not recognized by Texas asbestos law as 
accreditation for operations and maintenance activity affecting asbestos in 
school buildings.
(d) All training under AHERA regulations, with the exception of the two-hour 
asbestos awareness course, must be conducted by training sponsors licensed by 
the department for those purposes.
(e) School maintenance and custodial employees who will perform removal of 
resilient floor coverings and adhesives containing known or assumed asbestos 
content according to the non-friable removal guidelines contained in EPA 
regulations covering national emission standards for hazardous air pollutants in 
40 CFR, Part 61, as amended. They shall successfully complete the mandatory 
eight-hour training in floor covering removal, as set forth in sec.295.47 of 
this title (relating to Licensing and Registration: Conditions and Exemptions), 
and sec.295.58 of this title (relating to Operations: Required Asbestos 
Training), concerning requirements and training, respectively.
sec.295.50. Operations: General Provisions.
(a) Responsibility. It is the responsibility of owners of public buildings or 
their designated agents to engage persons licensed under the provisions of this 
title to perform any asbestos-related activity. Owners or agents may become 
licensed under sec.295. 33 of this title (relating to Licensing: Asbestos 
Abatement Contractor), or sec.295.36 of this title (relating to Licensing: 
Asbestos Building Management (Restricted)).
(b) Supervision.
(1) Every asbestos abatement project undertaken by a licensed contractor in a 
public building shall be supervised by at least one licensed asbestos abatement 
project supervisor. Project supervisors shall be on-site and remain within the 
regulated area during all periods of abatement activity by those performing 
under his supervision.
(2) Only licensed asbestos abatement project supervisors shall be designated as 
competent persons under the Occupational Safety and Health Act.
(3) Every small-scale, short-duration maintenance or repair activity that 
involves asbestos-containing material in a public building, shall be supervised 
by at least one restricted-license operations and maintenance supervisor. 
Restricted activity supervisors shall be on-site and within the regulated area 
during all periods of asbestos disturbance activity.
(4)  Licensed abatement project supervisors may be employed to supervise small-
scale, short-duration asbestos activities.
(5) Supervisors with either restricted or unrestricted licenses may be employed 
as asbestos abatement workers.
(c) Employees. Each employee or agent of any licensee who shall come into 
contact with asbestos, or who shall engage in an asbestos removal project, an 
asbestos encapsulation project, or other asbestos-abatement activity within the 
regulated area, shall have an annual physical examination, respirator fit-test, 
be properly equipped and trained, and be licensed or registered in accordance 
with these sections.
(d) Records. Each licensee shall keep a complete record of each asbestos related 
activity or operation in public buildings to the extent of his or her 
participation. Records of current operations shall be kept on-site; records 
shall then be stored in a safe place. Such records shall be kept for 30 years. 
Each licensee shall also keep a copy of all violations issued against him by the 
EPA, OSHA, or a state agency. All required records shall be made available, upon 
request, for inspection and review by the Texas Department of Health 
(department) .
(e) Inspections. Each licensee shall assist and cooperate with all properly-
identified representatives of the department in the conduct of asbestos 
inspections, surveys, or monitoring procedures at all reasonable or necessary 
times, with or without prior notice. Such inspections may be made at proposed, 
actual, or former sites of asbestos-related activities, or of the premises, 
records, equipment, and personnel of licensees or applicants, or of those who 
have held active licenses previously.
(f) Respirator program. Each licensee who employs registered asbestos workers 
shall be responsible for establishing and maintaining a written respiratory 
protection program, as required by EPA regulations in 29 Code of Federal 
Regulations (CFR), sec.1910.134.
(g) Approved respirators. The licensee must maintain in safe working condition a 
sufficient number of the National Institute of Occupational Safety and Health 
approved respirators to meet all anticipated requirements of his employees; and 
any employee whose facial characteristics, hair, mustache, or beard preclude a 
tight fit of a negative-pressure respirator shall not be allowed to enter the 
containment area or containment of an asbestos operation using this type of 
respirator.
sec.295.51. Operations: Applicable Federal Standards.
(a) The Texas Department of Health (department) follows the requirements in the 
following:
(1) 40 Code of Federal Regulations (CFR), Part 61, titled, "National Emissions 
Standards for Hazardous Air Pollutants;"
(2) 40 CFR, Part 763, Subpart G, sec.sec.763.120-763.126, titled, "Asbestos 
Abatement Projects: Worker Protection Rule;"
(3) 40 CFR, Part 763, Subpart E, sec.sec.763.80-763.99, titled, "Asbestos-
Containing Materials in Schools;"
(4) 40 CFR, Part 763, Subpart E, Appendix C, titled, "Model Accreditation Plan;"
(5) 40 CFR, Part 763, Subpart E, Appendix B, titled, "Work Practices and 
Engineering Controls for Small-Scale, Short-Duration Operations Maintenance and 
Repair (O&M) Activities Involving ACM;"
(6)  29 CFR, sec.1926.58, titled, "Occupational Exposure to Asbestos, Tremolite, 
Anthophyllite, and Actinolite;"
(7) 29 CFR, sec.1926.58, Appendix G, titled, "Work Practices and Engineering 
Controls for Small-Scale, Short-Duration Asbestos Renovation and Maintenance 
Activities;" and
(8) 29 CFR, sec.1910.134, titled, "Occupational Health Standards for A 
Respiratory Protection Program."
(b)  Copies of the documents in subsection (a) of this section are available for 
review at the Texas Department of Health, Division of Occupational Health, 1100 
West 49 Street, Austin, and may be reviewed during normal business hours.
sec.295.52. Operations: Work Practices for Asbestos Abatement.
(a)  Critical barriers. Areas contaminated with asbestos shall be isolated from 
adjacent uncontaminated areas by air-tight barriers attached securely in place. 
All openings between the work area and uncontaminated areas including, but not 
limited to, windows, doorways, elevator openings, corridor entrances, 
ventilation openings, drains, ducts, grills, grates, diffusers, and skylights, 
shall be sealed airtight with a minimum of six-mil sheeting.
(b)  Movable objects. All movable objects shall be removed from the work area. 
Cleaning of contaminated items shall be performed if the items are to be 
salvaged or reused. Otherwise, they shall be properly disposed of as asbestos 
waste. All non-movable objects in the work area shall be covered with a minimum 
of four-mil sheeting, secured into place.
(c) Floor and wall preparation. Floor sheeting shall completely cover all floor 
surfaces and consist of a minimum of two layers of sheeting totaling at least 
six-mils. Floor sheetings shall extend up sidewalls at least 12 inches and be 
sized to minimize seams. No seams shall be located at wall-to-floor joints. Wall 
sheeting shall completely cover all wall surfaces and consist of a minimum of 
one layer of four-mil sheeting. It shall be installed so as to minimize joints 
and shall extend beyond wall/floor joints at least 12 inches. No seams shall be 
located at wall-to-wall joints.
(d) Decontamination system. A worker decontamination enclosure system consisting 
of a clean room, shower room, and equipment room, each separated from each other 
and from the work area by airlocks accessible through doorways. Except for the 
doorways, the worker decontamination enclosure system shall be airtight. All 
entry and exit from the work area shall be through this chamber, including a 
thorough exit shower before entering the clean room. No asbestos-contaminated 
individuals or items shall enter the clean room.
(e) Heating, ventilation, and air conditioning system equipment (HVAC). All HVAC 
equipment in or passing through the work area shall be shut down and 
preventative measures taken to prevent accidental startups. All intake and 
exhaust openings and any seams in system components shall be sealed with at 
least six-mil sheeting and/or tape. All system filters shall be replaced at the 
completion of the abatement, and old filters shall be disposed of as asbestos 
waste.
(f) Danger signs. Danger signs in accordance with 29 Code of Federal Regulations 
(CFR), sec.1926.58, shall be displayed in both Spanish and English languages at 
all approaches to any location where airborne fiber levels can be expected to 
exceed background levels.
(g) High efficiency particulate air (HEPA) cleaning. Following abatement, clean-
up procedures using HEPA vacuuming and wet cleaning techniques shall be 
performed. Wet cleaning shall be performed, followed by HEPA vacuuming after 
surfaces have been allowed to dry. The sequence of wet cleaning and vacuuming 
shall be repeated at 24-hour intervals until no visible residue is observed in 
the work area.
(h) Containment area ventilation. Units with HEPA filtration and in sufficient 
number to provide one containment air change every 15 minutes shall be operated 
for the duration of the project. The duration of the asbestos abatement project 
for the purpose of this requirement shall be considered from the time barrier 
construction is completed through the time acceptable final clean air-monitoring 
results are obtained. These units shall exhaust filtered air to the outside of 
the facility wherever technically feasible.
(i) Requirements for removal fo asbestos-containing material (ACM). The 
requirements for removing ACM are that:
(1) all ACM shall be thoroughly wetted prior to removal;
(2) structural components and piping shall be removed intact or in large 
sections whenever possible, and carefully lowered to the floor; and
(3) all ACM shall be removed in small sections and containerized while wet. At 
no time shall material be allowed to accumulate on the floor or become dry. 
Structural components and piping shall be thoroughly wetted prior to wrapping in 
plastic sheeting for disposal.
(j) Requirements for the encapsulation of ACM.
(1) Prior to encapsulation, loose and hanging ACM shall be removed.
(2) Filler material applied to gaps in existing material shall contain no 
asbestos, shall adhere well to the substrate, and shall provide an adequate base 
for the encapsulating agent.
(3) Encapsulant shall be applied using only airless spray equipment with the 
nozzle pressure and tip size set according to the manufacturer's 
recommendations.
(4) Encapsulated materials shall be specifically designated by signs, labels, 
color coding, or some other mechanism to warn individuals who may in the future 
be required to disturb the material.
(k) Requirements for the enclosure of ACM.
(1) Acceptable enclosures shall be airtight and of permanent construction, so 
that the area behind them is inaccessible.
(2) All areas of ACM shall be wetted if they are to be disturbed during the 
installation of hangers, brackets, or other portions of the enclosure.
(3) Prior to enclosure, loose and hanging ACM shall be removed.
(4) Filler material applied to gaps in existing materials shall contain no 
asbestos, and shall adhere well to the substrate.
(5) Enclosures for asbestos-containing materials shall be specifically 
designated by signs, labels, color coding, or some other mechanism to warn 
individuals who may in the future be required to disturb the material.
(l) Abatement project involving loose surfaces. The Department of Health 
requires that the following procedures for all projects involving loose surfaces 
such as dirt floors or deteriorating concrete walls shall be followed.
(1)  During precleaning activities, all visible ACM shall be removed from dirt 
surfaces or cleaned from deteriorating surfaces. Critical barriers shall be 
placed on all openings and air filtration units shall be running during this 
procedure.
(2) When dirt floors are present, a layer of soil shall then be scraped, bagged, 
and disposed of as asbestos waste. Enough soil shall be removed to eliminate all 
ACM that may have accumulated over time. All deteriorating surfaces shall be 
thoroughly vacuumed.
(3) Dirt floors and deteriorating surfaces shall then be covered with a layer of 
sheeting. Placement of this sheeting creates a barrier between the loose surface 
and the work area.
(4) Setup and removal activities shall then occur in accordance with the 
recommended work practices of this section. A total of three layers shall be on 
the floor before removal begins.
(5) After the work area has yielded an acceptable clearance air sampling result 
as analyzed by an independent laboratory, barriers can be removed or left in 
place at the building owner's discretion.
sec.295.53. Operations: Recordkeeping.
(a) Training providers. Licensed training providers shall establish and maintain 
records and documents pursuant to the requirements of this section for a period 
of five years, and shall make such records and documents available to the 
Department of Health (department) upon request.
(b) Asbestos contractors.
(1)  Central location. The following records and documents shall be maintained 
by asbestos contractors at a central location at the principal place of business 
for a period of 30 years and shall be made available to the department upon 
request:
(A) records and documents required by 29 Code of Federal Regulations (CFR), 
sec.1910.1001, and 29 CFR, sec.1926.58, as amended;
(B)  name, address, and asbestos abatement worker or supervisor, certificate 
number of each employee (past and present), including dates of employment, and 
description of each employee's involvement in each asbestos project while 
employed by the contractor, including name, address, location, and duration of 
project;
(C) copies of all regulatory agency correspondence including letters, notices, 
citations received, and notifications made by the contractor;
(D) records and documents required to be maintained under any other applicable 
federal, state or local law, regulation or ordinance;
(E) receipts and documentation of disposal of asbestos waste showing dates, 
locations, and amounts of asbestos waste disposed including the identification 
of the source of the asbestos waste and the transporter (company name or driver 
name if an employee of the contractor);
(F) copies of laboratory reports and sample analysis documenting workplace and 
personal exposure levels, including copies of consultant's reports provided to 
the contractor regarding employee or clearance level monitoring; and
(G)  copies of all contracts awarded for asbestos abatement projects.
(2)  On-site. Records and documents shall be maintained on-site at the asbestos 
project location for the duration of the project. Records and documents with 
personal references shall be made available to all persons employed at the site 
upon request. All on-site records and documents shall be made available to the 
department upon request. The records and documents covered by this paragraph 
include:
(A) a current copy of the work practice requirements;
(B)  a copy of the contract or technical specifications governing the project;
(C) a listing of all employees, by name, social security number, and certificate 
number working on the project;
(D) a listing of each of the contractors, subcontractors, and consultants on the 
project;
(E) a daily sign-in/out log which identified persons by name and the length of 
time each spent at the site;
(F) records of all on-site air monitoring; and
(G) a written respirator program which conforms to requirements of 29 CFR, 
sec.1910.134(b), as amended.
(c) Analytical services. Licensed providers of asbestos analytical services 
shall maintain copies of all records and documents required by these sections 
and copies of all analyses performed, including the sample identification number 
and analytical results, and make such documents available to the department upon 
request.
(d) Consultants. Licensed consultants shall maintain client files pertaining to 
inspection, sampling, assessment, clearance level monitoring, and copies of 
daily construction logs pertaining to contractor work practices and make such 
documents available to the department upon request. Logs for completed projects 
shall be maintained at the consultant's principal place of business. Logs for 
current projects shall be kept at the asbestos project work site until final 
cleanup has been certified.
(e) Asbestos building management (restricted). Building management licensed to 
perform small-scale, short-duration operations and maintenance (O&M) activities 
affecting asbestos shall maintain, at the place of business, copies of all 
documents which constitute the application of each O&M restricted supervisor's 
license and the registration of each asbestos worker. All such restricted 
operations performed shall be recorded in chronological order and made available 
for inspection as requested by the department.
(f)  Record retention. Records and documents required by this regulation shall 
be retained for a period of 30 years from the date of project completion unless 
otherwise stated. Organizations or individuals ceasing to do business, or 
relocating the principal place of business shall so notify the department in 
writing within 30 days of such event. The department, on receipt of such 
notification may instruct that the records be surrendered to the department, or 
may specify a repository for such records. The organizations or individuals 
shall comply with the department's instructions within 60 days.
sec.295.55. Operations: Notification Requirements.
(a) Each asbestos abatement contractor or building owner/operator must provide 
written notice of his/her intention to abate asbestos or to disturb asbestos in 
a building covered by the Texas Asbestos Health Protection Act. Notification 
shall be made on a form provided by the Texas Department of Health (department). 
Delivery of the required notice by United States Postal Service, commercial 
delivery service, hand delivery, or telephone facsimile (FAX) is acceptable.
(b) Notifications of asbestos abatement or disturbance must be received or 
postmarked at least 10 working days before the start of the project. Project 
start date is considered to be the date when actual abatement or disturbance 
begins.
(c) When asbestos abatement or disturbance will begin later than the date 
contained in the notice, the licensee shall:
(1) notify the department of the new start date by telephone as soon as possible 
but prior to the original start date; and
(2) provide the department with a written notice of the new start date as soon 
as possible before, and no later than, the original start date. Delivery of the 
updated notice by the United States Postal Service, commercial delivery service, 
hand delivery, or telephone facsimile (FAX) is acceptable.
(d) When asbestos abatement or disturbance covered by these sections will begin 
on a date earlier than the date specified for the original start, the licensee 
shall provide the department with a written notice of the new start date at 
least 10 working days beforehand.
(e) In no event shall an operation covered by this section begin on a date other 
than the date contained in the written notice of the start date.
(f) In the event of emergency renovations made necessary by an unexpected or 
unplanned asbestos incident, notification will be made as soon as practicable, 
but in no event later than 24 hours after the occurrence of the incident. 
Initial notification can be made by telephone, followed by formal notification 
on the department's notification form.
(g) Asbestos abatement projects involving less than five linear feet of asbestos 
surface on pipes or ducts or less than five square feet of asbestos surface on 
structures other than pipes or ducts are exempt from the notification 
requirements of this section.
sec.295.56. Operations: Personal Protection. Each licensee who disturbs or 
abates asbestos-containing material (ACM) shall take precautions to protect 
himself, workers, and the public. As a minimum he must provide for elements of 
personal protection as follows.
(1) Medical surveillance, as required by 29 Code of Federal Regulations (CFR), 
sec.1926.58, or 40 CFR, sec.763.21, as amended, must be performed annually for 
all workers, supervisors, inspectors, air monitoring technicians, and project 
managers. On-site records must include a photocopy of the most recent 
physician's statement for each individual concerned.
(2) A respiratory protection program shall be instituted, and on-site records 
must indicate the brand, type, and size of respirators for which each individual 
has been fit-tested.
(3)  Disposable coveralls, which include foot and head coverings, must be used 
whenever respirators must be worn.
(4) Replacement respirator canisters and other necessary disposable personal 
protection items shall be immediately available at a job site in sufficient 
quantity to meet all reasonably expected requirements.
(5) Air monitoring must be done to record the levels of asbestos to which 
employees are exposed, in accordance with 29 CFR, sec.1926.58 (OSHA). On- site 
records shall indicate daily personal exposure monitoring results. Eight- hour 
time-weighted average and 30-minute short-term exposure monitoring are both 
required, and shall be representative of the exposure of each employee.
sec.295.58. Operations: Required Asbestos Training.
(a) General provisions. Applicants for licensing or renewal must submit evidence 
of fulfillment of specific training requirements acceptable to the Department of 
Health (department) under these sections.
(1) Training courses shall be conducted by training providers licensed by the 
department. Training within the confines of this state by unlicensed providers 
shall not be accepted by the department after December 31, 1991.
(2) Valid training courses performed by EPA approved training providers in other 
states shall be accepted by the department provided that applicants have 
completed an approved course in Texas asbestos law and rules from a training 
provider licensed by the department. This requirement is effective January 1, 
1992, and does not apply to asbestos worker courses.
(3) The provisions of sec.295.45(e)(6) of this title (relating to Licensing: 
Asbestos Training Provider) prohibiting self-accreditation, shall apply to out-
of-state trainer-presented courses.
(4) The one-year period of validity following the effective date of a required 
asbestos course may be extended by completing the appropriate annual refresher 
training course. Failure to complete annual refresher training within two years 
of the most recent training shall require that the original course be repeated.
(5) A day of training shall consist of eight hours of actual classroom 
instruction, hands-on practical training sessions, and field trips in any 
suitable combination, including break periods.
(6) Courses requiring hands-on practical training must be presented in an 
environment that permits the trainees individually to have actual experience 
performing tasks associated with the appropriate asbestos activity studied. 
Hands-on training sessions shall maintain a student to instructor ratio of not 
more than 10 to one (10:1). Demonstrations and audio-visuals shall not 
substitute for required hands-on training.
(b) Contractor/supervisor training.
(1) A person seeking licensure as an asbestos abatement contractor, asbestos 
abatement project supervisor, asbestos consultant or project designer, asbestos 
competent person (under Occupational Health and Safety Administration 
requirements), or operations and maintenance (restricted) supervisor, shall 
successfully complete an approved 32-hour contractor/supervisor training course 
(course) as described in this section. The course may be substituted for the 
asbestos abatement worker course. This substitution does not apply to annual 
refresher training.
(2)  An unlicensed employee of an asbestos consultant who will serve in any 
capacity connected with an asbestos abatement project shall have successfully 
completed the contractor/supervisor training course. This training shall include 
lectures, demonstration, audio-visuals, at least six hours of hands-on training 
including individual respirator fit testing, course review, and a written 
examination of 100 multiple-choice questions. Each trainee must score at least 
70% or better on this exam to successfully complete the course.
(3) The course shall adequately address the:
(A) physical characteristics of asbestos and asbestos containing materials;
(B) potential health effects related to asbestos exposure;
(C) employee personal protective equipment;
(D) state-of-the-art work practices;
(E) personal hygiene;
(F) additional safety hazards;
(G) medical monitoring;
(H) air monitoring;
(I) relevant federal, state, and local regulatory requirements;
(J) establishment of respiratory protection programs and medical surveillance 
programs;
(K) hands-on training, including work area preparation, decontamination chamber 
construction, and respirator fit testing and maintenance;
(L) insurance and liability issues;
(M)  record keeping for asbestos abatement projects;
(N) supervisory techniques for asbestos abatement activities;
(O) contract specifications; and
(P) course review and manual.
(c) Asbestos abatement workers. Persons seeking registration as asbestos 
abatement workers shall successfully complete an approved three-day training 
course, as described in this subsection. Successful completion of the 
contractor/supervisor training course shall also be acceptable as qualification 
for asbestos worker applicants. Work training courses are recommended to have a 
student instructor ratio of not more than 25 to one (25:1). The worker training 
course shall include lectures, demonstrations, at least six hours of hands-on 
training including individual respirator fit testing, course review, and a 
written examination consisting of 50 multiple-choice questions. Successful 
completion of the course shall be demonstrated by achieving a score of at least 
70% on the examination. The course shall adequately address the:
(1) physical characteristics of asbestos and asbestos containing materials;
(2) potential health effects related to asbestos exposure;
(3) employee personal protective equipment;
(4) state-of-the art work practices;
(5) personal hygiene;
(6) additional safety hazards;
(7) medical monitoring;
(8)  air monitoring;
(9) relevant federal, state, and local regulatory requirements;
(10) establishment of respiratory protective programs and medical surveillance 
programs;
(11) hands-on training, including work area preparation, decontamination chamber 
construction, and respirator fit testing and maintenance; and
(12) course review and manual.
(d)  Asbestos inspectors. Persons seeking licensure as asbestos inspectors shall 
successfully complete an approved three-day training course as described in this 
subsection. The inspector training course shall include lectures, 
demonstrations, hands-on individual respirator fit testing, course review and a 
written examination consisting of 50 multiple choice questions. Successful 
completion of the course shall be demonstrated by achieving a score of at least 
70% on the examination. The course shall adequately address the:
(1) background information of asbestos;
(2) potential health effects related to asbestos exposure;
(3) functions/qualifications and role of inspectors;
(4) legal liabilities and defenses;
(5)  understanding of building systems;
(6) public/employee/ building occupant relations;
(7) pre-inspection planning, and review of previous inspection records;
(8) inspecting for friable and non-friable asbestos containing material;
(9) assessing of the condition of friable asbestos containing material;
(10) bulk sampling/documentation of asbestos;
(11) air monitoring;
(12) employee personal protective equipment;
(13) record keeping and writing of the inspection report;
(14) regulatory review;
(15) field trip or simulated building walk through inspection; and
(16) course review and manual.
(e)  Management planners. Persons seeking licensure as management planners shall 
successfully complete the training program for inspectors, as described in 
subsection (d) of this section, plus an approved two-day management training 
course, as described in this subsection. The management planner course shall 
include lectures, demonstration, course review, and a written examination 
consisting of 50 multiple choice questions. Successful completion of the course 
shall be demonstrated by achieving a score of at least 70% on the examination. 
The course shall adequately address the:
(1) course overview;
(2)  evaluation and interpretation of survey results;
(3) hazard assessment;
(4) legal implications;
(5) evaluation and selection of control options;
(6) role of other professionals;
(7) development of an operations and maintenance (O&M) plan;
(8) regulatory review;
(9) record keeping for the management planner;
(10) assembling and submitting of a management plan;
(11) financing abatement actions; and
(12) course review and manual.
(f) Air monitoring technician. Persons seeking licensure as air monitoring 
technicians shall successfully complete an approved three-day training course as 
described in this subsection. The air-monitoring technician course shall include 
lectures, demonstrations, hands-on individual respirator fit testing, course 
review, and a written examination consisting of 50 multiple choice questions. 
Successful completion of the course shall be demonstrated by achieving a score 
of at least 70% on the examination. The course shall adequately address the:
(1) health effects of asbestos;
(2)  asbestos regulations (state and federal);
(3) asbestos sampling and evaluation methods;
(4) calculating sampling times;
(5) time weighted average calculation;
(6) calibration of air sample pumps;
(7) sample logs and records;
(8) compliance testing;
(9)  clearance testing; and
(10) clearance procedures.
(g)  Texas law and rules. Persons seeking any asbestos license other than 
asbestos worker with the department who will submit out-of-state training as a 
means of qualification must first successfully complete an approved four-hour 
course on Texas asbestos health protection law which shall be conducted by a 
training sponsor licensed by the department.
(h) Floor covering removal training. All individuals seeking to remove resilient 
floor coverings that contain or may be reasonably expected to contain asbestos 
by exempt methods according to the guidelines contained in 40 Code of Federal 
Regulations (CFR), Part 61, titled "National Emissions Standards for Hazardous 
Air Pollutants (NESHAP)," as amended, must have completed a mandatory eight-hour 
course as described in this subsection. Asbestos licensees and registered 
workers who will use the exempt methods of removal must also complete the 
course. Possession of a floor covering removal-training certificate shall in no 
way qualify or accredit that person to perform any other asbestos-related 
activity whatsoever. The course shall adequately address the:
(1) physical characteristics of asbestos and asbestos-containing materials;
(2) potential health effects related to asbestos exposure;
(3) EPA regulations covering NESHAP;
(4) explanation and demonstration of approved exempt work practices;
(5) requirements in the Asbestos Hazard Emergency Response Act that applies to 
school buildings;
(6) application of penalties in Texas law;
(7) explanation and demonstration of practices requiring licensure;
(8) notification, record keeping, and disposal; and
(9)  course review and manual.
(i) Refresher training. With the exception of floor-covering workers, all 
disciplines shall receive refresher training annually. Satisfactory completion 
of such training shall be a condition of renewal, and evidence of satisfactory 
completion shall be included in the annual renewal application.
sec.295.59. Operations: Approval of Training Courses.
(a)  Generally. Asbestos training courses shall be individually approved only 
for those training providers currently licensed by the Texas Department of 
Health (department). Applications for each course shall be made separately. The 
department shall consider prior teaching of the course applied for as a part of 
the approval process.
(b) Conditional approval. Conditional approval of an asbestos training course 
shall be granted to an applicant after all required information and 
documentation submitted has been found to meet the requirements set forth in 
these sections for approval of the course by the department. Conditional 
approval shall expire six months from the date of issuance of the letter of 
approval, subject to a 90-day extension on an individual basis.
(c) Complete approval. Complete approval of an asbestos training course shall be 
granted for a period of two years after the department has granted conditional 
approval, has conducted an on-site observation and evaluation of the training 
course, its instructors and its facilities, and has determined that the 
applicant's asbestos training course meets the requirements set forth in these 
sections.
(d) Applications. An applicant for approval of an asbestos training course must 
submit an application in writing to the department. Within 30 working days after 
receiving an application, the department shall acknowledge receipt of the 
application and notify the applicant of any deficiency in the application. The 
department will approve or deny the application only upon receipt of the 
completed application which shall contain the following information:
(1) the name and address of the licensed training provider who will present the 
course, and the name and phone number of the responsible individual;
(2) the type of course for which approval is being requested;
(3) a detailed outline of the course curriculum including the amount of time 
allotted to each topic, the name and qualifications of the individual developing 
the instruction program for each topic, and the name and qualifications of the 
instructor of each topic;
(4) a description of the instruction program for each topic, including teaching 
methods to be used and copies or written materials to be distributed;
(5) a description of the type of equipment owned which must be used in all full-
length courses for demonstrations and/or "hands-on" exercises, including, but 
not limited to, types of respirators, negative air units, water spray devices, 
protective clothing, construction materials, high efficiency particulate air 
(HEPA) vacuum, air purifying panel, glove bags, shower unit, water filter 
assembly;
(6)  instructor-to-student ratio for "hands-on" practice exercises and 
demonstrations;
(7) documentation, including photos and details of assurance that the number of 
instructors, the amount of equipment, and the facilities are adequate to provide 
the students with proper training;
(8)  administration of a written multiple choice examination at the conclusion 
of the course. If copies of the exam are required by the department, measures to 
protect the confidentiality of the exam as proprietary information will be 
maintained by the department to the extent authorized by law; and
(9)  establishment of the fact that the minimum grade which must be obtained for 
a trainee to successfully complete the course is 70%.
(e) Re-training (refresher) courses.
(1) For all disciplines except inspectors, a state accreditation program shall 
include a one-day annual refresher training course for reaccreditation. 
Refresher courses for inspectors shall be a half-day in length. Management 
planners shall attend the inspector refresher course, plus an additional half-
day on management planning.
(2) A refresher course in any of the disciplines in accordance with 
sec.295.45(a) of this title (relating to Licensing: Asbestos Training Provider), 
must submit required information to the department as follows:
(A) the length of training;
(B) the topics covered in the course;
(C) a copy of all course materials;
(D) the names and qualifications of course instructors; and
(E)  a description and an example of certificates issued to students who 
complete the refresher course.
(f) Issuance of certificate. The training provider shall:
(1) issue certificates with their social security numbers to students who 
successfully pass the training course's examination. The certificate shall 
indicate the name of the student and the course completed, the date of the 
course, and examination. Course administrators who offer refresher training 
courses must also provide certificates with all the information in subsection 
(e) of this section (except testing information);
(2)  issue a wallet-size photo-identification card, including a description of 
the course completed, the effective date, and the social security number of the 
trainee; and
(3) submit the names and social security numbers of students receiving an 
accreditation to the department within 10 days of the completion date of each 
course.
(g) Course content and duration.
(1) Course content and duration shall:
(A) be as described in 40 Code of Federal Regulations (CFR), Part 763, Subpart 
E, Appendix C, titled, "Model Accreditation Plan for Inspectors, Management 
Planners, Abatement Project Designers, Asbestos Abatement Contractors and 
Supervisors and Asbestos Abatement Workers;" and
(B) contain other material as required by the department.
(2) Other courses not subject to 40 CFR, Part 763, Appendix C, will require the 
submission of similar information. See the details in sec.295.58 of this title 
(relating to Operations: Required Asbestos Training).
(h)  Revocation or suspension of approval. The department may revoke or suspend 
approval if field site inspections indicate a training course is not providing 
training that meets the requirements of the model plan or these sections. 
Training course sponsors shall permit department representatives to attend, 
evaluate, and monitor any training course without charge. The inspection staff 
may not give advance notice of their inspections.
(i) Minimum number of instructors. Each course requiring approval according to 
the model accreditation plan shall require at least the minimum number of 
instructors for that course as specified by EPA.
sec.295.60. Operations: Operations and Maintenance (O&M) Activities.
(a) Operations and maintenance (O&M) activities are restricted to small-scale, 
short-duration work practices and engineering controls for tasks that result in 
the disturbance, dislodgment, or removal of asbestos in the course of performing 
repairs, maintenance, renovation, installation, replacement, or utility 
operations, as described in sec.295.51 of this title (relating to Operations: 
Adoption of Standards).
(b) Whenever asbestos abatement is the primary purpose of any operation or 
maintenance activity it must be performed by an abatement contractor and 
employees licensed under these sections.
(c) Persons engaged in the performance for other O&M affecting asbestos under 
contract or similar for-hire agreement shall be licensed as asbestos abatement 
contractors.
(d)  Building owners or their management agents that would have employees 
perform operations, maintenance, or repair activities, as described in 
subsection (a) of this section within the buildings that they own or manage, 
must obtain a license as asbestos building management (restricted) according to  
s295.36 of this title (relating to Licensing: Asbestos Building Management 
(Restricted)).
(e) Asbestos O&M activities described in this section shall be performed by 
registered asbestos abatement workers and supervised by licensed operations and 
maintenance supervisors (restricted) or abatement project supervisors.
(f) EPA regulatory requirements for small-scale, short duration activities 
affecting asbestos are explained in detail in 40 Code of Federal Regulations 
(CFR), Part 763E, Appendix B, as amended. The same regulatory requirements of 
OSHA for these activities are explained in 29 CFR, sec.1926.58, Appendix G. The 
restricted activities of licensed building owners or their agents and O&M 
supervisors shall be confined to the work practices and procedures therein.
(g) Work practices shall include the following requirements.
(1) Employers shall be responsible for furnishing and requiring the use of 
respirators, protective clothing, HEPA vacuum machines, glove bags, and other 
necessary equipment for all who perform O&M activities.
(2) All persons not performing work shall be excluded from the work areas.
(3) Physical barriers shall be used where necessary to limit access to the work 
area.
(4) Airtight barriers, as described in sec.295.52 of this title (relating to 
Operations: Work Practices for Asbestos Abatement), shall be constructed for 
containment of asbestos fibers, or a glovebag technique may be used for removal 
or repair of asbestos containing materials on pipes or ducts.
(5) Asbestos material must be wetted with amended water and remain wet 
throughout the work operation.
(6) Asbestos exposed as a result of spot repairs shall be suitably enclosed or 
encapsulated.
(7) HEPA vacuuming or wet cleaning shall be used to decontaminate work areas and 
equipment until there is no visible debris.
(8) Asbestos shall be bagged and placed in containers, and disposed of in 
accordance with requirements to be found in sec.295.52.
sec.295.62. Licensing Operations: Inspections and Investigations.
(a) The Department of Health (department) shall maintain the right to inspect or 
investigate the practices of any person involved with asbestos-related activity 
in a public building.
(b) A department representative, upon presenting appropriate credentials, shall 
have the right to enter at all reasonable times any area or environment, 
including, but not limited to, any work area, building, construction site, 
storage, vehicle, or office area to inspect and investigate for compliance with 
these rules, to review records, to question any person, or to locate, identify, 
and assess the condition of asbestos and asbestos-containing materials.
(c) A department representative in pursuance of his official duties is not 
required to notify or seek permission to conduct inspections or investigations.
(d)  Authority and responsibility for the qualifications, health status, and 
personal protection of department representatives resides with the department by 
law. A department representative shall not be impeded or refused entry in the 
course of his official duties by reason of any regulatory or contractual 
specification.
sec.295.66. Compliance: Policy of the Texas Department of Health.  The Texas 
Department of Health's (department) policy is to gain compliance with these 
sections through voluntary efforts by all persons involved in asbestos-related 
activity in public buildings. Appropriate administrative and legal action will 
be sought where timely compliance is not accomplished. The type of action to be 
taken is within the discretion of the department.
sec.295.67. Compliance: Reprimand, Suspension, Revocation.
(a)  After notice to the licensee and an opportunity for a hearing in accordance 
with subsection (d) of this section, the department may reprimand the licensee 
or modify, suspend, suspend on an emergency basis, or revoke a license under the 
Texas Asbestos Health Protection Act (the Act).
(b) If the Texas Department of Health (department) suspends a license on an 
emergency basis, the suspension is effective immediately. The department shall 
then provide an opportunity for a hearing in accordance with subsection (d) of 
this section within 20 days after the date of the emergency suspension.
(c) The department may reprimand any licensee, or may suspend, revoke, or refuse 
to issue or to renew a license for:
(1) failure to comply with any provision of the Act, any rule adopted by the 
Board of Health, any order issued by the department or a court;
(2) failure to comply with applicable federal or state standards for licensed 
asbestos activities;
(3) failure to maintain or falsification of records as required by these 
sections; and
(4) failure to meet the qualifications for which one holds a license; or 
fraudulently or deceptively obtaining or attempting to obtain a license or 
contract for an asbestos-related activity.
(d) The contested-case hearing provisions of the Administrative Procedure and 
Texas Register Act, Texas Civil Statutes, Article 6252-13a, shall apply to any 
enforcement action proposed to be taken under this section. The formal hearing 
procedures of the department in Chapter 1 of this title (relating to Texas Board 
of Health) shall also apply.
(e) If a license issued under this section has been suspended, the individual(s) 
and organization named in the suspension are not eligible to reapply for 
licensing under this section for one year.
(f) If a license issued under this section has been revoked, the individual(s) 
and organizations named in the revocation are not eligible to reapply for 
licensing under this section for three years.
sec.295.68. Compliance: Administrative Penalty.
(a) If a person violates the Texas Asbestos Health Protection Act (Act), or a 
rule adopted or order issued under the Act, the Texas Department of Health 
(department) may assess an administrative penalty.
(b) The penalty shall not exceed $10, 000 a day per violation. Each day a 
violation continues may be considered a separate violation.
(c) In assessing administrative penalties, the department shall consider the:
(1) history of previous violation(s);
(2) seriousness of the violation(s);
(3) the hazard to the health and safety of the public; and
(4) demonstrated good faith, and any other matter which justice may require.
(d) Violations shall be placed in one of the following severity levels.
(1) Severity Level I covers violations that are most significant and have a 
direct negative impact on public health and safety.
(2) Severity Level II covers violations that are significant and which, if not 
corrected, could threaten public health and safety.
(3) Severity Level III covers violations that are of more than minor 
significance and, if left uncorrected, could lead to more serious circumstances. 
This category shall include fraud and misrepresentation.
(e)  The person charged with the violation will be given the opportunity for a 
hearing conducted in accordance with the applicable provisions of the 
Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 
6252-13a, and the department's formal hearing procedures in Chapter 1 of this 
title (relating to Texas Board of Health).
(f) The hearing regarding a proposed administrative penalty may be consolidated 
with another hearing on an administrative penalty.
(g) If the person charged with the violation :w!: Command not found. health 
after the he/she has determined that a violation did occur and the amount of the 
penalty is warranted.
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 September 12, 1991.
TRD-9111262
Robert A. MacLean, M.D.
Deputy Commissioner
Texas Department of Health
Proposed date of adoption: December 7, 1991
For further information, please call: (512) 459-1611
       
TITLE 28. INSURANCE
Part I. Texas Department of Insurance
Chapter 5. Property and Casualty Insurance
Subchapter C. Texas Medical Liability Insurance Underwriting Association
28 TAC sec.5.2002
The State Board of Insurance proposes an amendment to sec.5.2002, concerning the 
selection of members to the board of directors of the Texas Medical Liability 
Insurance Underwriting Association. The amendment is necessary to conform 
subsection (d) with recent legislation which amended the Insurance Code, Article 
21.49-3. The amendment sets qualifications for directors and sets their term 
office and the manner and timing for their selection.
Kenneth P. McDaniel, director of professional liability insurance, has 
determined that, for the first five-year period the section is in effect there 
will be no fiscal implications to state or local governments as a result of 
enforcing or administering the section, and there will be no impact on local 
employment or local economy.
Mr. McDaniel 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 increased representation of healthcare providers in the Texas 
Medical Liability Insurance Underwriting Association. There is no anticipated 
economic cost to small businesses or to other persons required to comply with 
the section as proposed.
Comments on the proposal may be submitted to Kenneth P. McDaniel, Director of 
Professional Liability Insurance, Mail Code 104-2B, State Board of Insurance, 
William P. Hobby State Office Building, 333 Guadalupe Street, P. O. Box 149104, 
Austin, Texas 78714-9104.
The amendment is proposed under the Insurance Code, Article 21.49-3, sec.3(c) 
which authorizes the State Board of Insurance to promulgate a plan of operation 
of the Texas Medical Liability Insurance Underwriting Association.
sec.5.2002. Operation of the Texas Medical Liability Insurance Underwriting 
Association.
(a)-(c) (No change.)
(d)  Directors.
(1) <nl>Selection<ol> [Election]. At <nl>a special<ol> [the first annual] 
meeting of members <nl>to be held prior to October 1, 1991,<ol> and at each 
annual meeting [thereafter], the members shall elect <nl>five<ol> directors from 
among member companies <nl>for the categories set forth in paragraph (2)(B) and 
(C) of this subsection<ol> [to hold office until the next succeeding annual 
meeting].  <nl>Four directors shall be selected in the manner set forth in 
paragraph (2)(D)-(F) of this subsection. Members of the board of directors take 
office on October 1 of each year<ol>. [Such an elected director shall designate 
at least two individuals to act as primary and alternate representatives on its 
behalf.]
(2)  Membership.
(A) The number of the directors of the association [to be elected at annual 
meetings] shall be nine.
(B) <nl>Three<ol> [Five] directors to be [so] elected <nl>in accordance with 
paragraph (1) of this subsection shall be elected by the members and<ol> shall 
be separate members of the association representing each of the following:
<nl>(i) National Association of Independent Insurers;
<nl>(ii)  American Insurance Association; <nl>and
<nl>(iii) Alliance of American Insurers [; Association of Fire and Casualty 
Companies in Texas; and] insurer organized under the laws of and domiciled in 
the State of Texas.
<nl>(C) Two directors shall be elected by the members and shall be<ol>:
<nl>(i)<nl> a member insurer organized under the laws of and domiciled in the 
State of Texas; and<ol>[.]
<nl>(ii)<nl> a member insurer that is not a member of those associations 
described in subparagraph (B) of this paragraph.
<nl>(D) One director shall be a physician who is appointed by the Texas Medical 
Association or its successor.
<nl>(E) One director shall be a representative of hospitals appointed by the 
Texas Hospital Association or its successor.
<nl>(F) Two directors shall be members of the public to be appointed by the 
board.
<nl>(G) [The remaining four directors shall be any members elected by the 
members at the annual meeting.] No member <nl>of the board of directors <ol> 
shall fill more than one seat on the board of directors, and no member 
affiliated by ownership, management, or control shall simultaneously occupy 
seats on the board of directors. No later than 60 days prior to the annual 
meeting, the board of directors shall select a nominating committee of <nl>three 
<ol> [five] member companies. The <nl>three<ol> [five] directors representing 
the  <nl>organizations set forth in subparagraph (B) of this paragraph<ol> 
(previously listed categories] shall be nominated by the nominating committee. 
The <nl>two<ol> [remaining four] directors <nl>described in subparagraph (C) of 
this paragraph<ol> may be nominated by any member of the association by 
submitting such nominee's name to the nominating committee. In order to be 
eligible for <nl>selection <ol>[election] to the board of directors <nl>by the 
members,<ol> a member must be nominated at least 30 days prior to the annual 
meeting at which <nl>such<ol> directors are <nl>selected <ol> [elected].
(3) Term of office. Unless removed in accordance with <nl>this subchapter<ol>, 
[these sections], each director shall hold office for the term of one year [from 
the date of election] or until a successor shall have been <nl>selected <ol> 
[elected] and qualified.
(4)-(15) (No change.)
(e)-(j) (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 September 11, 1991.
TRD-9111235
Angelia Johnson
Assistant Chief Clerk
State Board of Insurance
Earliest possible date of adoption: October 18, 1991
For further information, please call: (512) 463-6327
       
Subchapter E. Texas Catastrophe Property Insurance Association
Standard Policy Forms-Windstorm and Hail
28 TAC sec.5.4201
(Editor's Note: The Texas Department of Insurance 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 Texas Department of Insurance proposes an amendment to sec.5.4201, 
concerning the adoption by reference of standard Texas Catastrophe Property 
Insurance Association forms, windstorm and hail. The amendment adopts Form 
Number TCPIA-29, Texas Catastrophe Property Insurance Policy-Windstorm and Hail 
and Texas Special Mobile Home Windstorm and Hail Policy Mandatory Endorsement, 
for attachment to insurance policies effective through the Texas Catastrophe 
Property Insurance Association. The amendment is necessary to provide a 
mandatory form to incorporate new provisions into the Texas Catastrophe Property 
Insurance Policy-Windstorm and Hail and the Texas Special Mobile Home Windstorm 
and Hail Policy regarding the prompt payment of claims as set out under the 
Insurance Code Article 21.55, as provided by House Bill 2, enacted by the 72nd 
Texas Legislature. The new provisions provide for specific actions to be taken 
by the insured and the insurer within certain specified time periods for the 
prompt payment of claims. The rule is also amended to reflect the new address of 
the Texas Department of Insurance.
Lyndon Anderson, deputy commissioner, property division, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section.
Mr. Anderson 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 a more easily understood claims handling procedure with payment 
of claims on a more timely basis. There will be no effect on small business. 
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 Lyndon Anderson, Deputy 
Commissioner, Property Division (Mail Code 103-1A), State Board of Insurance, 
333 Guadalupe Street, P.O. Box 149104 Austin, Texas 78714-9104.
The amendment is proposed under the Insurance Code, Article 21.49 sec.8, which 
authorizes the State Board of Insurance to approve policy forms or endorsements 
for the Texas Catastrophe Property Insurance Association.
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 September 12, 1991.
TRD-9111295
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 463-6328
       
TITLE 31. NATURAL RESOURCES AND CONSERVATION
Part I. General Land Office
Chapter 21. Oil Spill Prevention and Response Hearings Procedures
31 TAC sec.sec.21.9, 21.10, 21.12, 21.41
The General Land Office proposes amendments to sec.21.9, concerning statement of 
grounds, sec.21.10, concerning docketing and notice, sec.21.12, concerning 
pleadings, and sec.21.41, concerning compliance or petition for judicial review. 
These amendments are proposed to redefine references, eliminate redundancy, and 
more clearly describe the classifications of pleadings.
Mr. Jim Phillips, General Counsel, has determined that for the first five-year 
period the sections are in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the sections.
Mr. Phillips 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 to provide clarification and eliminate confusion for 
individuals requesting hearings and to delete unnecessary language. Anticipated 
economic cost to persons who are required to comply with the proposed sections 
will be the same as those associated with preparing for and attending an 
administrative hearing if the individual requests one under Chapter 21.
Comments on the proposal may be submitted to Jim Phillips, General Land Office, 
1700 North Congress Avenue, Austin, Texas 78701.
The amendments are proposed under Senate Bill 14, 72nd Legislature, 1991, which 
authorizes the commissioner to promulgate rules necessary and convenient to the 
administration of the Oil spill Prevention and Response Act of 1991.
sec.21.9. Statement of Grounds.
(a)-(d) (No change.)
(e)  The time for submission of a statement of grounds will be automatically 
extended 15 days if the petitioner, having requested a hearing, requests an 
informal conference with the <nl>hearing examiner<ol> [hearings attorney] prior 
to the original date set for submission of the statement of grounds. In order to 
receive the automatic 15-day extension, the petitioner must file a letter with 
the administrative hearing clerk before the original date the statement of 
grounds is due which sets out the date and place of the informal conference, as 
agreed upon by the petitioner and the hearing examiner[, in order to receive the 
automatic 15-day extension].
sec.21.10. Docketing and Notice. When the administrative hearings clerk of the 
General Land Office receives a request for hearing or other pleading intended to 
initiate a hearing, the clerk shall determine whether the request for hearing or 
other pleading complies with these sections in form and content. If the request 
for hearing or other pleading complies with these sections in form and content, 
the clerk shall docket it as a pending proceeding, and shall number it in 
accordance with the established docket numbering system of the agency. Notice of 
such action shall be served on all parties of record. If the request for hearing 
or other pleading does not comply with these sections in form and content, the 
clerk shall return the request for hearing or other pleading to the sender 
<nl>to be amended in accordance with<ol> [as provided by] sec.21.12(d) of this 
title (relating to Pleadings).
sec.21.12. Pleadings.
(a) Classification of pleadings.
(1)  A pleading is any written document filed by a party alleging its claim, its 
response to a claim, or its request for specific relief or action. [Pleadings 
may take the form of statement of grounds, pre-hearing and post-hearing briefs, 
applications, petitions, complaints, protests, exceptions, replies, motions, or 
answers.]
(2) (No change.)
(3) Pleadings shall be classified as applications or petitions, <nl>complaints, 
statement of grounds, pre-hearing and post-hearing briefs,<ol> protests, 
responses, exceptions, replies, [or] motions<nl>, or answers <ol>. Any error in 
the designation of a pleading shall not prevent it from being accorded its true 
status in the proceeding in which it is filed.
(b)-(e) (No change.)
sec.21.41. Rehearing.  Except as provided in  <nl>sec.21.45<ol> [sec.21.40(g)] 
of this title (relating to <nl>Emergency Order <ol> [Commissioner's Orders)], a 
motion for rehearing is a prerequisite to an appeal. A motion for rehearing must 
be filed by a party within 20 days after the date the party or the attorney of 
record is notified of the final decision or order as required by sec.21.40[(d)] 
of this title (relating to Commissioner's Orders). Replies to a motion for 
rehearing must be filed with the agency within 30 days after the date that the 
party or the attorney of record is notified of the final decision or order as 
required by sec.21.40[(d)]. If agency action is not taken within the 45-day 
period, the motion for rehearing is overruled by operation of law 45 days after 
the date the party or the attorney of record is notified of the final decision 
or order required by sec.21.40[(d)]. The commissioner may, by written order, 
extend the period of time for filing motions for rehearing and replies and for 
agency action on a motion for rehearing except that an extension may not extend 
the period for agency action beyond 90 days after the date that the parties of 
record are notified of the commissioner's order as required by <nl>sec.21.40<ol> 
[subsection (a) of this section]. In the event of an extension, the motion for 
rehearing is overruled by operation of law on the date fixed by the order or in 
the absence of a fixed date, 90 days after the date the party or his attorney of 
record is notified of the final decision or order as required by sec.21.40.
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 September 12, 1991.
TRD-9111375
Garry Mauro
Commissioner
General Land Office
Earliest possible date of adoption: October 21, 1991
For further information, please call: (512) 463-5394
       
Part IX. Texas Water Commission
Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste
Subchapter Q. Pollution Prevention: Source Reduction and Waste Minimization
31 TAC sec.sec.335.471-335.480
The Texas Water Commission (commission) proposes new sec. s335.471-335.480, 
concerning source reduction and waste minimization plans and reporting. The 
Texas Air Control Board (board) is also promulgating proposed rules program 
pollution prevention under a separate submission to the Texas Register . 
Interested persons should review that submission as well. The planning 
requirements of this subchapter will apply to five groups of generators and 
facilities with staggered implementation dates. Of the total volume of toxic 
release inventory (TRI) contaminants or pollutants released to land, air, and 
water, 95.8% will be included in the first group. The second group will bring in 
an additional 3.89% (99.69% total), the third group 0.2% (99.89%), the fourth 
group 0.09% (99.98%), and the fifth 0.02% (100%). The first group would also 
include 99.6% of the total volume of generated hazardous waste, the second group 
would include an additional 0.38% (99.98%), the third group 0.01% (99.99%), the 
fourth group 0.005% (99.995%), and the fifth group O.005% (100%).
It is the policy of the state to reduce pollution at its source and to minimize 
the impact of pollution in order to reduce the risk to public health and the 
environment and continue to enhance the quality of air, land, and waters of the 
state where feasible. Source reduction is the primary goal of the state in 
implementing this policy because hazardous wastes, pollutants, and contaminants 
that are not generated or produced pose no threat to the environment and 
eliminate societal management and disposal costs.
To further promote this policy, hazardous wastes, pollutants, and contaminants 
that cannot be reduced at the source should be minimized wherever possible. 
Waste minimization, while secondary in preference to source reduction, is an 
important means for achieving more effective protection of public health and the 
environment while moving toward source reduction.
New sec.335.471, for clarification purposes, includes the following definitions: 
"commission," "release," "small quantity generator," "tons," and "Toxic Release 
Inventory (TRI)."
New sec.335.472 delineates the pollutants and contaminants subject to source 
reduction and waste minimization planning. These pollutants and contaminants are 
as follows: all hazardous wastes generated; and all chemicals which exceed 
threshold reporting requirements pursuant to the Emergency Planning and 
Community Right-To-Know Act of 1986 ("EPCRA"), sec.313.
New sec.335.473 includes statutory language distinguishing facilities which are 
required to develop a source reduction and waste minimization plan. This 
subchapter applies to the following facilities: all large quantity generators of 
hazardous waste; all generators other than large quantity generators and 
conditionally exempt small quantity generators; and persons subject to sec.313, 
Title III, Superfund Amendments and Reauthorization Act of 1986 (42 United 
States Code, sec.11023) whose releases exceed the levels established under 
sec.335. 475.
New sec.335.474 includes statutory language which lists the specific 
requirements of a five-year (or more) source reduction and waste minimization 
plan. More detailed requirements are included for the executive summary and for 
small quantity generators.
New sec.335.475 sets forth five due dates for plan implementation and 
distinguishes these by the amount of hazardous waste reported or by the volume 
of TRI releases reported. According to this section, the implementation year 
shall be determined by the prior year's reported volumes, and the executive 
summary shall be submitted to the commission and the board on the date the plan 
is required to be in place.
New sec.335.476 corresponds with the plan schedule. There are five groups and 
each group, with the exception of the first group (which has seven months for 
the first reporting year), must submit their report a year and a month after 
their plan is in place. Facilities may only use approved forms for reporting. 
This section also sets the base line year at 1987, the earliest reporting year 
with the best data for hazardous waste generation and the first reporting year 
under TRI.
New sec.335.477 requires facilities which desire an exemption to come before the 
commission and the board, and, on a case-by-case basis, demonstrate based on 
individual circumstances why they might be qualified for an exemption. If an 
exemption is granted, it is valid only for the following year, but can be 
renewed, on an annual basis, by filing a new application. This section also 
provides standards and criteria for practical economic and technical completion 
of the plan.
New sec.335.478 includes statutory language that provides the commission or the 
board with the authority to review plans and reports for compliance.
New sec.335.479 includes statutory language stating that failure to meet the 
requirements of this subchapter is a violation of this chapter.
New sec.335.480 includes statutory language requiring facilities to provide an 
executive summary of the plan and the annual report for public review. This 
section also provides protection for a facility's trade information.
Karen P. Phillips, director of budget and planning, has determined that for the 
first five-year period the sections are in effect there will be fiscal 
implications as a result of enforcement of and compliance with the sections. The 
effect on state government will be an increase in cost of $150,000 in fiscal 
year 1992, $305,000 in fiscal year 1993 and $610,000 in each of the fiscal years 
1994-1996. No effects are anticipated for local governments or small businesses 
that do not generate hazardous wastes or toxic releases in amounts subject to 
reporting and the provisions of these sections. The scope and complexity of 
plans developed under these rules, and their associated costs, will vary 
considerably from operator to operator. These costs will be determined based on 
individual objectives of generators and the specific conditions and 
circumstances of their operations. The costs to the large majority of generators 
is not expected to exceed $5,000 and in most cases will be significantly less. 
For the large generators of waste with complex manufacturing or waste management 
operations the costs could be much greater. Costs savings are likely to be 
realized by operators reducing waste management costs through implementation of 
waste reduction plans, but these savings must be determined on a case-by-case 
basis.
Ms. Phillips 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 reductions in the amount of hazardous wastes generated and 
toxic materials released to the environment and more effective utilization of 
the state's resources in regulation of waste management activities. There are no 
other effects anticipated for persons required to comply with the provisions of 
these sections.
Comments on the proposal may be submitted to Bob L. Warneke, Jr., Staff 
Attorney, Legal Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 
78711-3087. Comments will be accepted until 5 p.m., 30 days after the date of 
this publication. Persons submitting written comments on the proposal shall 
provide copies of their comments to both the commission and the board. For more 
information call (512) 463-8069.
The new sections are proposed under the Texas Water Code, sec.5.103, and the 
Texas Solid Waste Disposal Act, sec.361.024(a), which provide the commission 
with the authority to adopt any rules necessary to carry out the powers and 
duties under the provisions of the Texas Water Code and other laws of this 
state, and pursuant to the Texas Solid Waste Disposal Act, sec.361.017 and 
sec.361.024, the Texas Health and Safety Code, sec.361.435, as amended by Senate 
Bill 1099, 72nd Legislature, 1991, which provide the commission and the board 
with the authority to adopt requirements for source reduction and waste 
minimization plans. This rulemaking is a joint effort between the commission and 
the board. The board rules are proposed for 31 Texas Administrative Code 
sec.120.101, et seq.
sec.335.471. Definitions.  The following words and terms, when used in this 
subchapter, shall have the following meanings, unless the context clearly 
indicates otherwise. Further, the following words and terms, as defined herein, 
shall only have application to this subchapter.
 Acute hazardous waste-Hazardous waste listed by the Administrator of the United 
States Environmental Protection Agency under the federal Solid Waste Disposal 
Act, as amended by the Resource Conservation and Recovery Act (RCRA) of 1976 (42 
United States Code, sec.6901 et seq), because the waste meets the criteria for 
listing hazardous waste identified in 40 Code of Federal Regulations,  
s261.11(A)(2).
 Board-The Texas Air Control Board.
 Commission-The Texas Water Commission.
 Committee-The waste reduction advisory committee established by the Texas Solid 
Waste Disposal Act, Health and Safety Code Annotated,  s361.0215.
 Conditionally exempt small-quantity generator-A generator that does not 
accumulate more than 1,000 kilograms of hazardous waste at any one time on his 
facility and who generates less than 100 kilograms of hazardous waste in any 
given month.
 Environment-Water, air, and land and the interrelationship that exists among 
and between water, air, land, and all living things.
 Facility-All buildings, equipment, structures, and other stationary items 
located on a single site or on contiguous or adjacent sites that are owned or 
operated by a person who is subject to this subchapter or by a person who 
controls, is controlled by, or is under common control with a person subject to 
this subchapter.
 Generator and generator of hazardous waste -Have the meaning assigned by the 
Texas Solid Waste Disposal Act, Health and Safety Code Annotated,  s361.131.
 Large-quantity generator -A generator that generates, through ongoing processes 
and operations at a facility:
(A) more than 1,000 kilograms of hazardous waste in a month; or
(B)  more than one kilogram of acute hazardous waste in a month.
 Media and medium -Air, water, and land into which waste is emitted, released, 
discharged, or disposed.
 Pollutant or contaminant-Includes any element, substance, compound, disease-
causing agent, or mixture that after release into the environment and on 
exposure, ingestion, inhalation, or assimilation into any organism, either 
directly from the environment or indirectly by ingestion through food chains, 
will or may reasonably be anticipated to cause death, disease, behavioral 
abnormalities, cancer, genetic mutation, physiological malfunctions, including 
malfunctions in reproduction, or physical deformations in the organism or its 
offspring. The term does not include petroleum, crude oil, or any fraction of 
crude oil that is not otherwise specifically listed or designated as a hazardous 
substance under sec.101(14)(A)-(F) of the environmental response law, nor does 
it include natural gas, natural gas liquids, liquefied natural gas, synthetic 
gas of pipeline quality, or mixtures of natural gas and synthetic gas.
 Release-Any spilling, leaking, pumping, pouring, emitting, emptying, 
discharging, injecting, escaping, leaching, dumping, or disposing into the 
environment. The term does not include:
(A) a release that results in an exposure to a person solely within a workplace, 
concerning a claim that the person may assert against the person's employer;
(B) an emission from the engine exhaust of a motor vehicle, rolling stock, 
aircraft, vessel, or pipeline pumping station engine;
(C) a release of source, by-product, or special nuclear material from a nuclear 
incident, as those terms are defined by the Atomic Energy Act of 1954, as 
amended (42 United States Code, sec.2011 et seq), if the release is subject to 
requirements concerning financial protection established by the Nuclear 
Regulatory Commission under that Act, sec.170;
(D)  for the purposes of the federal Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (42 United States Code, sec.9601 et seq) 
sec.104, or other response action, a release of source, by-product, or special 
nuclear material from a processing site designated under the Uranium Mill 
Tailings Radiation Control Act of 1978 (42 United States Code, sec.7912 and 
sec.7942) sec.102(a)(1) or sec.302(a); and
(E) the normal application of fertilizer.
 Small quantity generator-A generator that generates through ongoing processes 
and operation at a facility:
(A) equal to or less than 1,000 kilograms but more than or equal to 100 
kilograms of hazardous waste in a month; or
(B) equal to or less than one kilogram of acute hazardous waste in a month.
 Source reduction -Has the meaning assigned by the federal Pollution Prevention 
Act of 1990, Public Law 101-508, sec.6603, 104 Stat. 1388.
 Tons-2,000 pounds, also referred to as short tons.
 Toxic release inventory (TRI)-A program which includes those chemicals on the 
list in Committee Print Number 99-169 of the United States Senate Committee on 
Environment and Public Works, titled "Toxic Chemicals Subject to the Emergency 
Planning and Community Right-To-Know Act of 1986 (EPCRA, 42 United States Code 
Annotated, sec.11023),  s313" including any revised version of the list as may 
be made by the administrator of the Environmental Protection Agency (EPA).
 Waste minimization -A practice that reduces the environmental or health hazards 
associated with hazardous wastes, pollutants, or contaminants. Examples may 
include reuse, recycling, neutralization, and detoxification.
sec.335.472. Pollutants and Contaminants. The following pollutants and 
contaminants are subject to source reduction and waste minimization planning:
(1) all hazardous wastes generated;
(2) All chemicals which exceed threshold reporting requirements pursuant to 
Emergency Planning and Community Right-to-Know Act, sec.313.
sec.335.473. Applicability.  This subchapter applies to facilities which are 
required to develop a source reduction and waste minimization plan pursuant to 
the Waste Reduction Policy Act of 1991, Senate Bill 1099, or the regulations 
promulgated thereunder, including:
(1) all large quantity generators of hazardous waste;
(2) all generators other than large quantity generators and conditionally exempt 
small quantity generators as defined by the Health and Safety Code, 
sec.361.431(3);
(3) persons subject to sec.313, Title III, Superfund Amendments and 
Reauthorization Act of 1986 (Emergency Planning and Community Right-to-Know Act 
(EPCRA), 42 United States Code, sec.11023) whose releases exceed the levels 
established under sec.335. 475 of this title (relating Implementations Dates). 
These TRI covered facilities would be required to develop source reduction and 
waste minimization plans for only the TRI listed chemicals that exceed threshold 
quantities established under EPCRA.
sec.335.474. Source Reduction and Waste Minimization Plans. <ol> All persons 
identified under sec.335.473 of this title (relating to Applicability) shall 
prepare a five-year (or more) source reduction and waste minimization plan which 
may be updated annually as appropriate. Plans shall be updated as necessary to 
assure that there never exists a time period for which a plan is not in effect. 
Plans prepared under paragraphs (1)-(3) of this section shall contain a separate 
component addressing source reduction activities and a separate component 
addressing waste minimization activities.
(1) With the exception of small quantity generators which are subject to 
paragraph (3) of this section, the plan shall include, at a minimum:
(A) an initial survey that identifies:
(i) for facilities described in sec.335. 473(1), activities that generate 
hazardous waste; and
(ii) for facilities described in sec.335.473(3), activities that result in the 
release of pollutants or contaminants designated under sec.335.472 of this title 
(relating to Pollutants and Contaminations);
(B) based on the initial survey, a prioritized list of economically and 
technologically feasible source reduction and waste minimization projects;
(C) an explanation of source reduction or waste minimization projects to be 
undertaken, with a discussion of technical and economic considerations, and 
environmental and human health risks considered in selecting each project to be 
undertaken;
(D) an estimate of the type and amount of reduction anticipated;
(E) a schedule for the implementation of each source reduction and waste 
minimization project;
(F)  source reduction and waste minimization goals for the entire facility, 
including incremental goals to aid in evaluating progress;
(G) an explanation of employee awareness and training programs to aid in 
accomplishing source reduction and waste minimization goals;
(H) certification by the owner of the facility, or, if the facility is owned by 
a corporation, by an officer of the corporation that owns the facility who has 
the authority to commit the corporation's resources to implement the plan, that 
the plan is complete and correct;
(I) identification of cases in which the implementation of a source reduction or 
waste minimization activity designed to reduce risk to human health or the 
environment may result in the release of a different pollutant or contaminant or 
may shift the release to another medium; and
(J) an executive summary of the plan which shall include at a minimum:
(i) a description of the facility which shall include:
(I) name of the facility;
(II) address;
(III) contact;
(IV) general description of the facility; and
(V) TACB account number, TWC solid waste notice of registration number, TWC 
wastewater permit number, EPA identification number (RCRA number), National 
Pollutant Discharge Elimination System (NPDES) permit number, and underground 
injection well code identification number.
(ii) a list of all hazardous wastes generated and the volume of each;
(iii) a list of all reportable TRI releases and the volume of each;
(iv) a prioritized list of chemicals to be reduced;
(v) a statement of reduction goals;
(vi) an explanation of environmental and human health risks considered in 
determining reduction goals;
(vii) implementation milestones for individual project development;
(viii) an implementation schedule for future reduction goals; and
(ix) identification and description of cases in which the implementation of 
source reduction or waste minimization activity designed to reduce risk to human 
health or the environment may result in the release of a different pollutant or 
contaminant or may shift the release to another medium. Included in this 
description shall be a discussion of the change in characteristic of the normal 
waste stream or release and how it will be managed in that affected medium.
(2) The source reduction and waste minimization plan may also include:
(A) a discussion of the person's previous efforts at the facility to reduce risk 
to human health and the environment or to reduce the generation of hazardous 
waste or the release of pollutants or contaminants;
(B) a discussion of the effect changes in environmental regulations have had on 
the achievement of the source reduction and waste minimization goals;
(C) the effect that events the person could not control have had on the 
achievement of the source reduction and waste minimization goals;
(D) a description of projects that have reduced the generation of hazardous 
waste or the release of pollutants or contaminants; and
(E) a discussion of the operational decisions made at the facility that have 
affected the achievement of the source reduction or waste minimization goals or 
other risk reduction efforts.
(3) The plans of small quantity generators shall include, at a minimum:
(A) a description of the facility which shall include:
(i) name of the facility;
(ii) address;
(iii) contact;
(iv) general description of the facility; and
(v) TACB account number, TWC solid waste notice of registration number, TWC 
wastewater permit number, EPA identification number (RCRA number), NPDES permit 
number, and underground injection well code identification number.
(B) a list of all hazardous wastes generated and the volume of each;
(C) a list of all reportable TRI releases and the volume of each;
(D) a prioritized list of chemicals to be reduced;
(E) a statement of reduction goals;
(F) information on environmental and human health risks, such as material safety 
data sheets or other available documentation, considered in determining 
reduction goals;
(G) implementation milestones for individual project development;
(H) an implementation schedule for future reduction goals; and
(I) identification and description of cases in which the implementation of a 
source reduction or waste minimization activity designed to reduce risk to human 
health or the environment may result in the release of a different pollutant or 
contaminant or may shift the release to another medium. Included in this 
description shall be a discussion of the change in characteristic of the normal 
waste stream or release and how it will be managed in that affected medium.
sec.335.475. Implementation Dates. All facilities subject to this subchapter 
shall develop a source reduction and waste minimization plan. The implementation 
year shall be determined by the prior year's reported volumes of hazardous waste 
generated and/or total TRI releases. A facility once subject to this subchapter 
shall remain subject until it no longer meets the requirements of sec.335.473 of 
this title (relating to Applicability) or are exempted under sec.335.477 of this 
title (relating to Exemptions). Volumes for calculations will be based on total 
hazardous waste generated and/or total TRI releases. The executive summary shall 
be submitted to the commission and the board on the date the plan is required to 
be in place. Plan implementation will be according to the following schedule.
(1) The source reduction and waste minimization plan shall be in place, 
available for review, and shall be implemented no later than July 1, 1993 for:
(A) hazardous waste generators reporting 5,000 tons or more; or
(B) TRI facilities reporting 100 tons or more.
(2) The source reduction and waste minimization plan shall be in place, 
available for review, and shall be implemented no later than January 1, 1994 
for:
(A) hazardous waste generators reporting less than 5,000 tons but more than or 
equal to 500 tons; or
(B) TRI facilities reporting less than 100 tons but more than or equal to 10 
tons.
(3) The source reduction and waste minimization plan shall be in place, 
available for review, and shall be implemented no later than January 1, 1995 
for:
(A) hazardous waste generators reporting less than 500 tons but more than or 
equal to 15 tons; or
(B) TRI facilities reporting less than 10 tons but more than or equal to five 
tons.
(4) The source reduction and waste minimization plan shall be in place, 
available for review, and shall be implemented no later than January 1, 1996 
for:
(A) hazardous waste generators reporting less than 15 tons but more than or 
equal to five tons; or
(B) TRI facilities reporting less than five tons but more than or equal to one 
ton.
(5) The source reduction and waste minimization plan shall be in place, 
available for review, and shall be implemented no later than January 1, 1997 
for:
(A) hazardous waste generators reporting less than five tons but greater than 
1.023 tons (1,000 kilograms); or
(B) TRI facilities reporting less than one ton.
(6)  After the effective date of this subchapter, any facility which becomes 
subject to the requirement to have a source reduction and waste minimization 
plan, either within 90 days prior to or at any time following the dates 
referenced in paragraphs (1)-(5) of this section, shall have 90 days to have the 
plan in place and available for review.
sec.335.476. Reports and Recordkeeping. All persons required to develop a source 
reduction and waste minimization plan for a facility under this subchapter shall 
submit to the commission and the board an annual report and a current executive 
summary of the plan according to the schedule outlined in paragraph (4) of this 
section.
(1) The report shall detail the facility's progress in implementing the source 
reduction and waste minimization plan and include:
(A) an assessment of the progress toward the achievement of the facility source 
reduction goal and the facility waste minimization goal;
(B) a statement to include, for facilities described in sec.335.473(1) of this 
title (relating to Applicability), the amount of hazardous waste generated and, 
for facilities described in sec.335.473(3), the amount of the release of 
reportable pollutants or contaminants designated under the Texas Solid Waste 
Disposal Act, Health and Safety Code Annotated sec.361. 433(c) in the year 
preceding the report, and a comparison of those amounts with the amounts 
generated or released using 1987 as the base year.
(C) any modification to the plan.
(2) The report may include:
(A) a discussion of the person's previous effort at the facility to reduce 
hazardous waste or the release of pollutants or contaminants through source 
reduction or waste minimization;
(B) a discussion of the effect changes in environmental regulations have had on 
the achievement of the source reduction and waste minimization goals;
(C) the effect that events the person could not control have had on the 
achievement of the source reduction and waste minimization goals; and
(D)  a discussion of the operational decisions the person has made that have 
affected the achievement of the source reduction and waste minimization goals.
(3) The report shall contain a separate component addressing source reduction 
activities and a separate component addressing waste minimization activities.
(4) The report and the executive summary of the plan shall be submitted 
according to the following schedule and annually thereafter.
(A) For all facilities meeting the specifications of sec.335.475(1) of this 
title (relating to Implementation Dates), the first report will be due on or 
before February 1, 1994. The report will cover calendar year 1993.
(B)  For all facilities meeting the specifications of sec.335.475(2), the first 
report will be due on or before February 1, 1995. The report will cover calendar 
year 1994.
(C) For all facilities meeting the specifications of sec.335.475(3), the first 
report will be due on or before February 1, 1996. The report will cover calendar 
year 1995.
(D) For all facilities meeting the specifications of sec.335.475(4), the first 
report will be due on or before February 1, 1997. The report will cover calendar 
year 1996.
(E) For all facilities meeting the specifications of sec.335.475(5), the first 
report will be due on or before February 1, 1998. The report will cover calendar 
year 1997.
(5)  Base line data from the calendar year 1987 shall be used in developing each 
of the first reports referred to in paragraph (4) of this section.
(6)  The report shall be submitted on forms furnished or approved by the 
executive directors of the commission and the board and shall contain at a 
minimum the information specified in paragraph (1) of this section. Upon written 
request by the facility, the executive directors may authorize a modification in 
the reporting period.
sec.335.477. Exemptions.
(a) This subchapter does not apply to:
(1) conditionally exempt small-quantity generators; and
(2)  facilities regulated by the Railroad Commission of Texas under the Natural 
Resources Code, sec.91.101 or  s141.012.
(b) Owners and operators of facilities listed in sec.335.473 of this title 
(relating to Applicability), may apply on a case-by-case basis, to the executive 
directors of the commission and the board for an exemption from this subchapter. 
The executive directors of the commission and board may grant an exemption if 
the applicant demonstrates that sufficient reductions have been achieved. If an 
exemption is granted, it is valid only for the following year, but can be 
renewed, on an annual basis, by filing a new application. The executive 
directors' decision will be based upon the following standards and criteria for 
determining practical economic and technical completion of the plan:
(1) the facility has reduced the amount of pollutants and contaminants being 
generated or released by 90% since the base year;
(2) potential impact on human health and the environment of any remaining 
hazardous waste generated, or pollutant or contaminant released; and
(3) a demonstration that additional reductions are not economically and 
technically feasible.
sec.335.478. Administrative Completeness. The commission or the board may review 
a source reduction and waste minimization plan or annual report to determine 
whether the plan or report complies with this subchapter.
sec.335.479. Enforcement.  Failure to have a source reduction and waste 
minimization plan in accordance with this subchapter or failure to submit a 
source reduction and waste minimization annual report in accordance with this 
subchapter is a violation of this chapter.
sec.335.480. Confidentiality.
(a) A source reduction and waste minimization plan shall be maintained at each 
facility owned or operated by a person and/or generator who is subject to this 
subchapter and shall be available to commission or board personnel for 
inspection. The source reduction and waste minimization plan is not a public 
record for the purposes of Chapter 434, Acts of the 63rd Legislature, 1973 
(Texas Civil Statutes, Article 6252-17a).
(b)  The executive summary of the plan and the annual report are public records. 
On request, the person and/or generator shall make available to the public a 
copy of the executive summary of the plan or annual report.
(c) If an owner or operator of a facility for which a source reduction and waste 
minimization plan has been prepared shows to the satisfaction of the commission 
or board that an executive summary of the plan, annual report, or portion of a 
summary or report prepared under this subchapter would divulge a trade secret if 
made public, the commission or board shall classify as confidential the summary, 
report, or portion of the summary or report.
(d) To the extent that a plan, executive summary, annual report, or portion of a 
plan, summary, or annual report would otherwise qualify as a trade secret, an 
action by the commission or board or an employee of the commission or board does 
not affect its status as a trade secret.
(e) Information classified by the commission or board as confidential under this 
section is not a public record for purposes of Chapter 424, Acts of the 63rd 
Legislature, 1973 (Texas Civil Statutes, Article 6252-17a), and may not be used 
in a public hearing or disclosed to a person outside the commission or board 
unless a court decides that the information is necessary for the determination 
of an issue being decided at the public hearing.
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 September 16, 1991.
TRD-9111401
Jim Haley
Director, Legal Division
Texas Water Commission
Earliest possible date of adoption: October 21, 1991
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 Facilities for the Mentally Retarded (ICF-MR)
The Texas Department of Human Services (DHS) proposes the repeal of sec.27. 417 
and an amendment to sec.27.413, concerning DHS's case mix pilot project and rate 
setting methodology. The purpose of the repeal and amendment is to revise the 
reimbursement methodology for the special children's facilities which currently 
are being reimbursed under the case mix payment pilot project.
Provisions of the proposed methodology are:
Each children's facility resident care rate component will be the greater of the 
uniform statewide resident care rate component for that facility's class of 
service, or the facility's projected resident care per diem cost plus a margin 
equal to 3.0% of the median resident care per diem cost component for that 
facility's class.
The all other rate component will be equal to the uniform statewide all other 
rate component.
The total reimbursement rate for each children's facility will be equal to the 
sum of the resident care rate component and the all other rate component.
Since provision is made to cover resident care costs plus a margin, the 
children's facilities will not be eligible for the supplemental reimbursement 
for heavy-care clients.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the repeal and section are in effect there will be fiscal 
implications as a result of enforcing or administering the repeal and section. 
The effect on state government for the first five-year period the repeal and 
section are in effect is an estimated reduction in cost of $109,189 for fiscal 
year 1992; $168,167 for fiscal year 1993; $177,434 for fiscal year 1994; $186, 
093 for fiscal year 1995; and $194,889 for fiscal year 1996. There will be no 
fiscal implications for local government or small businesses as a result of 
enforcing or administering the repeal and section.
Mr. Raiford also has determined that for each year of the first five years the 
repeal and section are in effect the public benefit anticipated as a result of 
enforcing the repeal and section will be a better understanding of the 
reimbursement methodology by providers and the rates will more closely reflect 
the direct care costs incurred by the provider to care for children. There is no 
anticipated economic cost to persons who are required to comply with the repeal 
and section.
Questions about the content of the proposal may be directed to Glenn Hart at 
(512) 450-4049 in DHS's Provider Reimbursement Department. Comments on the 
proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document 
Support-230, Texas Department of Human Services E-503, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register.
40 TAC sec.27.413
The amendment is proposed 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.27.413. Rate Setting Methodology.
(a)-(b) (No change.)
(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) -(2) (No change.)
<nl>(3) Alternate children's facility reimbursement rates for selected 
children's facilities are determined as follows.
<nl>(A) Definition of children. When referred to in this section, children are 
persons under 22 years of age.
<nl>(B) Determination of eligibility. To be considered eligible for alternate 
children's facility reimbursement rates, a facility must be one of the selected 
facilities listed in clause (i) of this subparagraph and must meet the 
definition of a children's facility as defined in clause (ii) of this 
subparagraph.
<nl>(i)  <nl>Selected facilities. Selected facilities must be one of the 
following facilities covered by the Royal Thomas v. Marlin Johnston lawsuit 
Settlement Agreement:
<nl>(I) Ada Wilson Hospital, Vendor Number 3730;
<nl>(II) The Children's Center of Austin, Vendor Number 3731;
<nl>(III) Thomas Care Center, Vendor Number 3747;
<nl>(IV)  Human Development Center, Vendor Number 3751;
<nl>(V) Crossroads Development Center, Vendor Number 3756; and
<nl>(VI) Denton Development Center, Vendor Number 3764.
<nl>(ii)<nl> Definition of children's facility. When referred to in this 
section, a children's facility is a facility which maintains a census of no less 
than 85% children. A selected facility will automatically lose eligibility and 
be paid under the uniform statewide reimbursement rate when the facility's 
census falls below 85% children.
<nl>(C) Determination of alternative children's facility rates.
<nl>(i)<nl> Calculation of resident care cost component. An eligible children's 
facility's per diem resident care cost component is the greater of:
<nl>(I) the uniform statewide resident care rate component for that facility's 
class of service; or
<nl>(II) the facility's own projected resident care per diem cost plus an 
incentive factor equal to 3.0% of the median resident care per diem cost 
component in the array of all facilities in that class. A facility's total 
resident care cost component, including the incentive factor, must not exceed 
the resident care cost center projected median day of service as calculated 
according to paragraph (1) of this subsection, multiplied by two.
<nl>(ii)<nl> Total children's facility rates. The total reimbursement rate for 
each eligible children's facility is equal to the sum of the resident care cost 
component, as determined according to clause (i) of this subparagraph, and the 
statewide uniform All Other cost component.
<nl>(D)  Additional supplemental reimbursement. Since provision is made to 
ensure that reasonable and necessary resident care costs are covered, and an 
incentive is provided, the selected children's facilities covered by the Royal 
Thomas v. Marlin Johnston lawsuit Settlement Agreement do not qualify for 
additional supplemental reimbursement for heavy-care clients as determined under 
subsection (f) of this section.
(d)-(f) (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 September 16, 1991.
TRD-9111392
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1992
For further information, please call: (512) 450-3765
       
Subchapter D. Reimbursement Methodology
40 TAC sec.27.417
(Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas Department 
of Human Services or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.)
The repeal is proposed 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.27.417. Case Mix Payment Pilot Project.
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 September 16, 1991.
TRD-9111393
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: January 1, 1992
For further information, please call: (512) 450-3765
       
Chapter 47. Primary Home Care
General Provisions
40 TAC sec.47.1903
The Texas Department of Human Services (DHS) proposes an amendment to sec.47. 
1903, concerning staffing requirements, in its Primary Home Care chapter. The 
purpose of the amendment is to change the requirements concerning special 
attendants, in order to expand the availability of attendants for primary home 
care clients.
Burton F. Raiford, interim commissioner, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section.
Mr. Raiford 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 access to a larger pool of staff from which to select an 
attendant. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the proposed section.
Questions about the content of this proposal may be directed to Maria Montoya at 
(512) 450-3155 in DHS's Long-Term Care Department. Comments on the proposal may 
be submitted to Nancy Murphy, Policy and Document Support-236, Texas Department 
of Human Services E-503, P.O. Box 149030, Austin, Texas 78714-9030, within 30 
days of publication in the Texas Register .
The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which authorizes the department to administer public and medical 
assistance programs.
sec.47.1903. Staffing Requirements.
(a)-(b) (No change.)
(c) The two types of attendants are as follows.
(1) (No change.)
(2) Special attendants. Special attendants may be used to initiate services, 
prevent a break in service, or provide ongoing services. Although special 
attendants are required to receive the general orientation specified in 
paragraph (1) of this subsection, they do not have to receive it in the client's 
home as long as they meet the following requirements.
(A) (No change.)
(B) The special attendant must either:
(i) (No change.)
(ii) meet the following requirements:
(I) have six continuous months of experience in delivering personal care tasks 
in family care or primary home care;  <nl>and
(II) have demonstrated competency in providing personal care tasks to the 
satisfaction of the RN supervisor; [and] <nl> or
<nl>(III) be listed as a nurses aide on the Texas Department of Health nurse 
aide registry.
[(III) have received seven hours of classroom training, conducted by a 
registered nurse, that addresses:
[(-a-) interpersonal skills in dealing with clients and families;
[(-b-) provision of personal care tasks;
[(-c-) basic nutrition and special dietary needs; and
[(-d-) first aid, safety, and emergency procedures.]
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 September 16, 1991.
TRD-9111391
Nancy Murphy
Agency liaison, Policy and Document Support
Texas Department of Human Services
Proposed date of adoption: November 29, 1991
For further information, please call: (512) 450-3765
       
 Texas Department of Insurance Exempt Filing 
Notifications 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 Texas Register publishes notice of proposed actions by the Texas Board 
of Insurance. Notice of action proposed under Article 5.96 must be published in 
the Texas Register not later than the 30th day before the  Board  adopts the 
proposal. Notice of action proposed under Article 5.97 must be published in the 
Texas Register not later than the 10th day before the Board adopts the proposal. 
The Administrative Procedure and Texas Register Act, Article 6252-13a, Texas 
Civil Statutes, does not apply to Board action under Articles 5.96 and 5.97.
The complete text of the proposal summarized here may be examined in the offices 
of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-
9104.)
The Texas Department of Insurance, at a board meeting scheduled for 8:30 a.m. , 
October 24, 1991, in Room 100 of the Texas Department of Insurance Building, 333 
Guadalupe Street in Austin, will consider an amendment to Rule IV(a) of the 
rules and regulations of the Texas Workers' Compensation Insurance Facility (the 
Facility). The proposed rule includes requiring that applications for coverage 
in the Facility must be submitted no later than 21 calendar days prior to the 
date on which existing coverage expires or the date on which the employer 
desires coverage to begin. If possible, such coverage will be bound with an 
effective date to coincide with the expiration date of the existing coverage or 
on the date designated by the employer. The Facility would have no less than 21 
calendar days to review an application prior to binding coverage.
Copies of the full text of the proposed amendment to Rule IV(a) of the 
Facility's rules and regulations are available for review in the office of the 
Chief Clerk of the Texas Department of Insurance, 333 Guadalupe Street, Austin, 
Texas 78714-9104.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as proposed has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111368
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6328
       
The Texas Department of Insurance at a board meeting scheduled for 8:30 a.m., 
October 24, 1991, in Room 100 of the Texas Department of Insurance Building, 333 
Guadalupe Street in Austin, will consider an amendment to the Texas Basic Manual 
of Rules, Classifications and Rates for Workers' Compensation and Employers' 
Liability Insurance <ol> pertaining to the Assigned Risk Rating Program. The 
proposed amendment includes amending the eligibility requirements for this 
retrospective rating program from $25,000 to $10,000 and adjusting the Table of 
Maximum Premium Factors accordingly.
Copies of the full text of the proposed changes to the  Texas Basic Manual of 
Rules, Classifications and Rates for Workers' Compensation and Employers' 
Liability<ol> pertaining to the Assigned Risk Rating Program are available for 
review in the office of the Chief Clerk of the Texas Department of Insurance, 
333 Guadalupe Street, Austin, Texas 78714-9104.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as proposed has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111369
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6328
       
The Texas Department of Insurance at a board meeting scheduled for 8:30 a.m., 
October 24, 1991, in Room 100 of the Texas Department of Insurance Building, 333 
Guadalupe Street in Austin, will consider an amendment to Rule III of the rules 
and regulations of the Texas Workers' Compensation Insurance Facility (the 
Facility). The proposed rule includes requiring that an application submitted to 
the Facility be accompanied by written notices of rejection of the applicant as 
a workers' compensation insurance risk, signed by a duly authorized officer or 
agent of the non-affiliated rejecting companies. Such duly authorized officer or 
agent of the rejecting company may not be the producer of record.
Copies of the full text of the proposed amendment to Rule III of the rules and 
regulations of the Facility are available for review in the office of the Chief 
Clerk of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 
78712-9104.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as proposed has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111370
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6328
       
The Texas Department of Insurance at a board meeting scheduled for 8:30 a.m., 
October 24, 1991, in Room 100 of the Texas Department of Insurance Building, 333 
Guadalupe Street in Austin, will consider an amendment to Rule X(f) of the rules 
and regulations of the Texas Workers' Compensation Insurance Facility (the 
Facility). The proposed rule includes establishing a formula for the 
calculation, declaring, and levying assessments against member companies so as 
to maintain the assigned risk pool fund on an actuarially sound basis.
For each calendar year prior to 1991, the Facility shall calculate annually its 
operating results by calendar year. All incurred losses, including incurred but 
not reported losses, occurring on or before December 31, 1990 and any future 
development of those losses, shall be allocated to calendar year 1990. If there 
is a deficit or surplus from operations for a calendar year, the amount of the 
deficit or surplus shall be assessed or rebated to the insurance carriers 
licensed in this state who were members of the Facility during the calendar 
year.
For calendar year 1991 and succeeding calendar years, the Facility shall 
calculate annually its operating results including incurred losses and incurred 
but not reported losses on an accident year basis. Each accident year will 
remain open for four succeeding calendar years to allow losses to develop. Any 
development on losses for an accident year beyond the fourth year shall be 
accounted for in the next open accident year. If there is a deficit or surplus 
from operations for an accident year, the amount of the deficit or surplus shall 
be assessed or rebated to the insurance carriers licensed in this state who were 
members of the Facility during the accident year. Each insurance carrier shall 
pay a proportion of the total assessment or receive a proportion of the total 
rebate based on its proportion of the total voluntary workers' compensation 
insurance writings during the corresponding calendar year.
Beginning with calendar year 1990, assessments shall be calculated on a present 
value basis using a discount rate to be determined by the governing committee.
Copies of the full text of the proposed amendment to Rule X(f) of the Facility's 
rules and regulations are available for review in the office of the Chief Clerk 
of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-
9104.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as proposed has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111371
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6328
       
The Texas Department of Insurance at a board meeting scheduled for 8:30 a.m., 
October 24, 1991, in Room 100 of the Texas Department of Insurance Building, 333 
Guadalupe Street in Austin, will consider an amendment to Rule IX of the Texas 
Basic Manual of Rules, Classifications and Rates for Workers' Compensation and 
Employmrs' Liability Insurance<ol> pertaining to employee leasing firms by 
adding a new paragraph F entitled "Employee Leasing Arrangements" and by 
amending the Texas Amendatory Endorsement. The proposed rule distinguishes 
between the "temporary workers," the "independent contractor, " and the "leased 
worker." In addition, the proposed rule includes a provision that a "client 
company" that leases all or a portion of its "workers" from an "employee leasing 
firm" is responsible for providing workers' compensation insurance for the 
workers it leases.
The proposed rule also includes that coverage must be provided using a standard 
workers' compensation policy issued in the name of the client company. The 
client company shall maintain and make available to the insurer all records 
needed for the determination of classifications and payrolls applicable to that 
policy. An employee leasing firm shall not be considered an employer for 
purposes of the Alternate Employer Endorsement if that endorsement is part of 
the client company's workers' compensation policy. All provisions of the Basic 
Manual of Rules, Classifications and Rates for Workers' Compensation and 
Employers' Liability Insurance <ol> and the Experience Rating Plan Manual<ol> 
apply to the client company's workers' compensation insurance irrespective of 
the presence or absence of leased workers. The proposed amendment to the Texas 
Amendatory Endorsement includes an amendment to the provision of "Who Is 
Insured" by adding that if you are an "employee leasing firm" you are insured, 
but with respect to "lease workers" only while they: are under your direct 
control and supervision; and are not at any work place of the "client company."
As an alternative, if the previous proposed rule is not adopted by the board, 
the Texas Workers' Compensation Insurance Facility (the Facility) requests an 
order authorizing the Facility to require employee leasing companies to pay a 
deposit premium of 100% of the estimated annual premium and post a surety bond 
in an amount to be determined by the executive director.
Copies of the full text of the proposed changes to Rule IX of the Workers' 
Compensation Manual and to the Texas Amendatory Endorsement are available for 
review in the office of the Chief Clerk of the Texas Department of Insurance, 
333 Guadalupe Street, Austin, Texas 78714-9104.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as proposed has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111372
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6328
       
The Texas Department of Insurance at a board meeting scheduled for 8:30 a.m., 
October 24, 1991, in Room 100 of the Texas Department of Insurance Building, 333 
Guadalupe Street in Austin, will consider an amendment to Article XII, sec.4c of 
the By-Laws of the Texas Workers' Compensation Insurance Facility which pertains 
to the small premium policy plan. The proposed amendment to the By-Laws includes 
increasing the estimated number of small premium policies from 90,000 to 
120,000. By increasing the number of small premium policies, then each 
designated insurers' proportionate share of small premium policies to be written 
will also be increased.
Copies of the full text of the proposed changes to Article XII, sec.4c of the 
By-Laws of the Texas Workers' Compensation Insurance Facility are available for 
review in the office of the Chief Clerk of the Texas Department of Insurance, 
333 Guadalupe Street, Austin, Texas 78714-9104.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure and Texas 
Register Act.
This agency hereby certifies that the rule as proposed has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111373
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
For further information, please call: (512) 463-6328
       
Notice is hereby given that a meeting will be held before the Texas Department 
of Insurance on Wednesday, October 2, 1991, beginning at 8:30 a.m. in the 
hearing room of the Texas Department of Insurance, 333 Guadalupe Street, Austin.
The purpose of the meeting is to consider the repeal of the current Texas 
General Liability Experience Rating Plan and the Texas Composite Rating Plan, in 
order to be in compliance with House Bill 2 and House Bill 62, which require all 
carriers to file their own rating plans.
Copies of the Texas General Liability Experience Rating Plan and Composite 
Rating Plan are available for review in the General Liability Department of the 
Texas Department of Insurance, 333 Guadalupe Street, Austin.
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.
Issued in Austin, Texas, on September 13, 1991.
TRD-9111350
Angelia Johnson
Assistant Chief Clerk
Texas Department of Insurance
Filed: September 13, 1991
For further information, please call: (512) 463-6327