Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter B. Operating Certificates, Permits, and Licenses 16 TAC sec.5.43 The Railroad Commission of Texas adopts new sec.5.43, concerning the transportation of recyclable materials, with changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6252). The new section is proposed pursuant to the provisions of Senate Bill 1340, 72nd Legislature, 1991. That bill directed the commission to adopt simplified procedures for obtaining limited common carrier, limited specialized motor carrier, and limited contract carrier authority, as well as new standards for setting maximum rates for the transportation of recyclable materials. The version as proposed was changed to reflect an additional amendment to the Health and Safety Code, sec.361.421(5), which restricted the definition of recyclable material to materials diverted from the nonhazardous solid waste stream. Other changes were made to alleviate concerns that the new types of authority would not apply to transportation of recyclable materials after the first level of processing. It is the intention of the commission that the newly-enacted system shall apply to recyclable materials until they have completed the recycling process, and are interchangeable and competitive with raw, virgin materials to be used in manufacturing processes. Finally, the information to be supplied with the application was changed to ensure that the commission staff will be able to determine that the commodities to be transported are within the definition of recyclable materials. The new section as adopted will institute a new, simplified application process for authority to transport recyclable materials, and a revised method for establishing maximum rates to apply on that transportation. Numerous comments were received regarding the proposed rule. Commenters in opposition argued that the commodities to which the rule applies should be limited (specifically, the rule should not apply to scrap metal, crushed glass, or wood chips); that existing carriers should be allowed to protest applications; that traditional procedures for authority applications should be used, only expedited; that applicants should be required to identify the specific commodities to be transported; that the definitions adopted should not apply to existing authority or pending applications for traditional types of authority; that recyclable material should not include hazardous waste or other Class I waste; and that existing carriers have a due process right to protest such applications. A few comments in opposition argued that the rules were overly restrictive, specifically in excluding recycled material and reconditioned products from the scope of the rule. Commenters generally in support expressed some concern that the definitions as proposed would prove more restrictive than the Legislature intended; specifically, concern was expressed that any processing performed in the recycling process would "convert" the material to "recycled material" rather than recyclable material. Comments generally in favor of the proposed rule were received from the Texas Chemical Council, the Texas Agricultural Chemicals Association, Ecology Action, the Lone Star Chapter of the Sierra Club, the General Land Office, the Texas Municipal League, and the Recycling Coalition of Texas. Comments in opposition to the proposed rule were received from the Texas Motor Transportation Association. While the commission disagrees with the comments that expressed concern regarding the overly restrictive scope of the definition of recyclable materials, the definition has been revised in order to alleviate some of those concerns. The commission also disagrees with the remainder of comments in opposition to the proposed rule. While some commodities have been recycled for so long that they are in many respects like commodities, the legislation does not distinguish between those commodities which have only recently been recycled and those which have historically been recycled. Existing carriers should be discouraged from protesting applications for the new authority except in exceptional situations, the application process should be substantially changed, and the public necessity standard should not include the existence or adequacy of existing carriers; the Legislature clearly intended that the process under the new law be significantly different than traditional standards. The staff also believes that applications for "recyclable materials" in general should be accepted and encouraged, in order to further simplify the process in accordance with Legislative intent. The definitions, terms, and procedures adopted in this rule will apply only to applications filed under this rule (or converted thereto); there will be no applicability to existing authority or applications for authority that are pending. There is no due process right to protest applications for authority under the new rule. While there may arguably be such a right when the adequacy of existing carriers is a statutory factor to be considered, in this instance there is no specific issue to be determined which directly involves competing carriers. In such an instance, the commission's inherent power to determine who may be a party to a contested case applies. (Railroad Commission of Texas v. Ennis Transportation Co., Inc., 695 S. W.2d 706 (Tex.App.-Austin 1985, writ ref'd n.r.e.)) The commission also disagrees with the comments that assert the definitions are overly restrictive. The statutory definition of recyclable materials specifically applies to materials which, after recycling, will be used "in place of a raw or virgin material in manufacturing a new product." This definition does not apply to parts, appliances, or devices which are repaired, reconditioned, or restored to their original use. The new section is adopted under the Health and Safety Code, Chapter 361.431, which directs the commission to establish simplified rules for the issuance of authority to transport recyclable materials. sec.5.43. Transportation of Recyclable Materials. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Recyclable materials-Material that has been recovered or diverted from the non-hazardous solid waste stream for purposes of reuse, recycling, or reclamation, a substantial portion of which is consistently used in the manufacture of products which may otherwise be produced using raw or virgin materials. Recyclable material does not include recycled material; goods or products that are to be reconditioned, repaired, or restored and then reused in their original capacity; or material designated by the Texas Water Commission as Class I waste. (2) Recycled material-Material that consists of recyclable material or materials derived from postconsumer waste, industrial waste, or hazardous waste which has completed a recycling process, and which is interchangeable with a raw or virgin material in manufacturing another product. (3) Solid waste-As defined in the Health and Safety Code, Chapter 361. (b) Applications for certificates or permits to transport recyclable materials. (1) Applications for limited common carrier certificates, limited specialized motor carrier certificates, and limited contract carrier permits authorizing the transportation of recyclable materials shall be filed on forms prescribed by the commission. (2) Applications for authority to transport recyclable materials shall contain: (A) the name and address of the applicant and the shall give full information concerning the financial condition and facilities of the applicant; (B) the nature of the transportation in which the applicant wishes to engage, stating the territory to be served, the types of recyclable materials to be transported, the types of vehicles to be used, and the method of operations to be conducted for each type of recyclable material to be transported; (C) a list of each power unit which the applicant intends to use; (D) other information which supports the application; and (E) a filing fee of $100. (3) All applications filed under this section shall be published as provided in sec.5.407(a) of this title (relating to Service of Notice in Nonrulemaking Proceedings). (4) All protests to applications filed under this section shall be stricken unless the protest is accompanied by a sworn affidavit showing standing to protest by showing that the protestant has information relating to the fitness of the applicant or the applicant's ability to meet requisite safety standards. The fact that a protestant possesses authority to provide service which would be authorized under the certificate sought by the applicant, or that such service is being provided shall not be sufficient to form the basis of standing to protest. The possession of information regarding violations which are or have been the subject of a complaint proceeding shall not be sufficient to form the basis of standing to protest. (5) All applications for authority under this section shall be governed by the provisions of Chapter 1 of this title (relating to General Rules of Practice and Procedure) as well as the rules in Subchapter U of this Chapter (relating to General and Special Rules of Practice and Procedure), unless otherwise specified in this section. (6) At hearing, the applicant must show, by a preponderance of the evidence: (A) that it is fit to operate the authority sought; (B) that there exists a public necessity for the service proposed; and (C) that it is able to meet the safety regulations applicable to its operations as proposed. (7) If the commission determines that the applicant has complied with all applicable provisions of this section, the commission shall issue the applicant the certificate or permit sought. (c) Public necessity. In considering the issue of public necessity, the commission shall consider that efficient transportation of recycling materials is essential to the development of an effective statewide recycling program. (d) Applicability of commission rules. Unless otherwise specified in this section, carriers receiving authority under this section shall be subject to all rules in this chapter. (e) Amendments. A carrier with authority under this section may apply to amend its certificate or permit. The application for additional authority shall be determined under the same provisions as for a new certificate or permit. (f) Rates. (1) The commission shall establish maximum rates for limited common carriers, limited specialized motor carriers, and limited contract carriers transporting recyclable materials. The maximum rates will be set at a level which is comparable to interstate rates for transportation of recyclable materials which are charged by interstate motor carriers providing the same kind, class, and quality of service. (2) The rates shall be set after a hearing in accordance with the provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, and Chapter 1. Carriers holding authority under this section, applicants for such authority, and carriers authorized to charge the rates under paragraph (3) of this subsection shall be required to present evidence of interstate services and interstate rates in connection with any proceeding to set rates under this subsection. (3) Rates set under this subsection may also be applicable to the transportation of recyclable materials by carriers operating under certificates of public convenience and necessity granted under the provisions of the Motor Carrier Act. Such carriers may elect to be subject to these rates, or may remain subject to rates established pursuant to the Motor Carrier Act. (4) Until rates are adopted under this subsection by an administratively final order, the existing rates which apply to the involved transportation by specialized motor carriers or common carriers will apply as maximum rates. If the rates adopted under this subsection are enjoined or otherwise become ineffective as a result of court action, the rates which had previously been applicable to such transportation by specialized motor carriers or common carriers will apply as maximum rates. (g) Dual certificate holders . A motor carrier holding a certificate of public convenience and necessity, or a contract carrier, may apply for a certificate or permit under this section. The prohibition against a person simultaneously holding a certificate of public convenience and necessity and a contract carrier permit (Texas Civil Statutes, Article 911b, sec.6-bb) shall not apply to limited common carrier certificates, limited specialized motor carrier certificates, or contract carrier permits issued under this section. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 23, 1991. TRD-9116354 Martha V. Swanger Hearings Examiner, Gas Utilities/LP-Gas Section, Legal Division Railroad Commission of Texas Effective date: January 13, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 463-7094 Part II. Public Utility Commission of Texas Chapter 23. Substantive Rules Rates 16 TAC sec.23.21 The Public Utility Commission of Texas adopts an amendment to sec.23.21, concerning rates, by adding a new subsection (d), with changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 5942). The amendment provides a mechanism for addressing the effect on state taxes of House Bill (H.B.) 11, 72nd Legislature, First Called Special Session. Section 16.072 of that bill amends the Public Utility Regulatory Act (PURA), sec.43, to require that the commission provide for adjustments to utility billings to account for the effect on state taxes upon the motion of any utility or the commission's own motion. The amendment requires each utility that pays state franchise taxes and has not had a rate case that accounted for the effect of H.B. 11 to make a filing each year that calculates and explains the effect of H.B. 11 on the utility's state taxes. In addition, if the utility has not previously agreed to recover changes in state taxes in a different manner than that provided by the rule, and if the effect crease or if the effect is an increase that the utility desires to implement the utility, the utility must also file tariff(s). If the adjustment is a decrease of less than $.50 per customer for electric utilities and dominate interexchange carriers and per access line for all other telephone utilities, the utility is required to file a tariff stating that the decrease is being carried, with interest, to be considered in the adjustment for H.B. 11 in future years. All tariffs would take effect on an interim basis, subject to surcharge or refund with interest. Final determination of the adjustment factor will be made after the utility has filed its franchise tax return. The amendment allows delay of the final hearing for up to three years for administrative efficiency. Filings that are not required to include a tariff will be considered to be informational filings. The amendment prescribes the manner in which the adjustment shall be calculated. The total adjustment will be calculated by subtracting the estimated taxes that would have been due if H.B. 11 had not been passed from the taxes that will be due under H.B. 11. Recognition is made to account for the difference in the privilege periods under the old franchise tax, which ran from May 1-April 30, and the new law, which runs from January 1-December 31. The proposed rule allows utilities to pass through the extra (double) tax incurred during the first four months of 1992. The rule also prescribes the manner in which the adjustment shall be allocated to the customers. For electric utilities, any decreases are allocated in the same manner as franchise taxes were in the last case and any increases are allocated on the same basis as were federal income taxes in the utility's last case. For telephone utilities, the adjustment is allocated based on revenues during the same period as covered by the federal tax return used to calculate the taxes. Finally, the rule requires that the adjustment be separately identified on the bill. Comments were filed by United Telephone Company (United), Houston Lighting and Power Company (HL&P), Southwestern Bell Telephone Company (SWB), Gulf States Utilities Company (GSU), Texas Statewide Telephone Cooperative, Inc. (TSTCI), Southwestern Electric Power Company (SWEPCO), West Texas Utilities Company (WTU), El Paso Electric Company (EPEC), GTE Southwest Inc. and Contel of Texas (GTE), Southwestern Public Service Company (SPS), the Texas Telephone Association (TTA), Office of Public Utility Counsel (OPC), AT&T, Texas Utilities Electric Company (TU Electric), Texas Industrial Energy Consumers (TIEC), and Central Power and Light Company (CPL). United and GTE supported the comments filed by the TTA. All of the parties filing comments recommended changes to the published proposal, but, with the possible exception of EPEC, they did not oppose the adoption of the rule. CPL commented that the rule should be amended to exempt them from its operation because they have agreed to a rate freeze pursuant to a stipulation in their last rate case. Although CPL believes that House Bill 11, First Called Special Session, 72nd Legislature, will increase their state taxes and thus the rule gives them the option to not request an increase, CPL maintains that the rule thereby imposes an unnecessary reporting and administrative burden on them and the commission. Further, if H.B. 11 were to result in reduced taxes, to pass the savings through as the rule dictates would be contrary to the provisions of the stipulation concerning such situations. The commission believes that CPL's comments have merit. If a utility has agreed to a rate freeze or similar restriction, the parties agreeing to the stipulation have already in some manner allocated the risk of changing tax laws. The utility has accepted the risk of increasing taxes; the signing ratepayers have accepted the risk of decreasing taxes. In deference to standard means of changing rates and the agreement of the parties, the commission should not by rule move to adjust the utility's bills to decrease rates. Likewise, the commission assumes that the utilities will be willing to honor their previous agreements. The language has been changed so that utilities that have an agreement concerning changes in cost of service will not be required to implement the change. However, the commission still wants such utilities to make informational filings of the effect of H.B. 11 on their taxes and the amendment so requires. In the preamble to the publication of the proposed rule, the commission requested comments on whether the commission had authority to provide for the adjustment to electric utility bills of customers residing within the city limits of a city that had not ceded jurisdiction to the commission. SWEPCO, WTU and TU Electric commented that the language of sec.43(j), the provision that began this rulemaking, was similar to sec.43(g) which addresses fuel. The three utilities pointed out that in both provisions the "commission" is authorized not the "regulatory authority." Similarly, HL&P noted that the language of sec.43(j) refers to only the commission, but not any other regulatory authority, and also all types and classes of service. TU Electric also noted that in both provisions it is stated that the proceeding authorized is not a rate case under the Act, sec.43. As noted by the some of the commenters, the commission has previously considered sec.43(g) to grant it authority over fuel costs within the limits of cities retaining original jurisdiction (see Dockets 6032 and 6072, 12 P.U.C. Bull. 194 (January 18, 1985)). SWEPCO and WTU noted that the Act, sec.17(a), limits the original jurisdiction of the cities by making the cities' jurisdiction "subject to the limitations imposed in this Act," and it was suggested that the new sec.43(j) is such a limitation. Like HL&P, TU Electric also points out the legislative directive to apportion the adjustment "pro-rata to all types and classes of service provided by the utility," is persuasive that the commission has the authority to impose the adjustment in all areas. SPS was the only commenter that stated the commission does not have the authority, but it did not explain its position. The commission agrees with the commenters that stated the commission does have jurisdiction. There is no rational explanation why the legislators would want to provide for the passthrough of taxes in the areas outside of the cities' original jurisdiction, but mandate standard rate cases within the limits of the cities. The legislature must have intended the commission to allow the adjustment within the limits of a city retaining original jurisdiction. TIEC commented that all tax related expenses should eventually be recovered through base rates so the rule should specify that state taxes will be rolled into base rates in the utility's next rate case. The rule already specifies this by limiting the applicability of the section to utilities that have not had a rate case to account for the effects of H.B. 11. TTA, United, GSU, HL&P, and TU Electric pointed out that it is not possible to file on December 1, 1991, as prescribed by the rule, for taxes to be paid in 1992, in that the rule will not even be in effect on that date. TTA, United, and GSU asked that a transition period be specified; TU Electric suggested the date be changed to December 10; HL&P suggested that the date be changed to "December 30 of each year." The commission recognizes that a transition period for the first year is necessary. The rule has been amended to require the first filing to be made as soon as practical after the adoption of the rule with the tariff taking effect no sooner than 10 days thereafter. TU Electric commented that the term "small decreases" in sec.23.21(d)(2) is vague and will result in hearings rather than avoid hearings as it was intended. Instead, TU Electric suggests that the rule should establish a definite threshold for determining materiality; TU Electric suggested .25% or $10 million, whichever is less. OPC commented that sec.23.21(d)(2), which provides for the dismissal of potential decreases that are less than the cost of their implementation, be changed to instead allow for the continuance of such a case for up to three years, as is provided for the hearing on the final adjustment factor. The commission finds merit and problems in both of these comments. TU Electric's comment that there are some decreases not worth pursuing is true, but the threshold recommended is too high. The problem with OPC's comment is that there may be some decreases that are outweighed by the cost of billing, preparing a filing, and requesting a delay. The commission believes that the customers should see the benefit of all decreases but a decrease of $.50 per customer on an annual basis in too small to pursue by itself. The amendment has been changed so that decreases of less than $.50 per customer are not passed to the customer immediately. Instead, such decreases will be carried forward to future years, with interest, to be considered with future adjustments. TU Electric suggests that the language in sec.23.21(d)(3), "shall be considered to include", is imprecise and should be changed to read "shall also include." TU Electric also recommended reorganizing the paragraph. Although the commission does not believe the original language is imprecise, it is unnecessarily wordy. The proposed change has been made. SWEPCO, WTU, EPEC and TU Electric objected to the provision in sec.23.21(d)(3) that states that the various fees under H.B. 11 will not be considered taxes, and thus subject to passthrough to the ratepayers under the rule. TU Electric argues that the intent of the legislature was to passthrough the effect of H.B. 11 and the use of the word "taxes" can be explained by the fact that the amendment adding the low level nuclear waste fee, the fee TU Electric is concerned about, was made after the amendment allowing for the passthrough. Thus, TU Electric reasons that the legislature had no reason to provide for the passthrough of fees at the time the passthrough provision was added. EPEC commented that both the fees and the franchise taxes are similar in that they are assessed against the utility. SWEPCO and WTU commented that the commission should not restrict the adjustment that a utility may show is attributable to H. B. 11, and at the least, the rule should specifically identify the fees. The commission does not believe a change is necessary. Case law distinguishes the word "tax" from that of "fee." The commission must presume that the legislature meant "tax" and not "fee" when it specified in H.B. 11, sec.16.072 that "any increase or decrease in tax liability" may be passed through. Given that H.B. 11 clearly labels particular items as "fees," there is no need to list the fees that will not be included. EPEC objected to singling out franchise taxes for adjustment when other cost of service items may also be changing. The commission finds this comment to be without merit because the legislature has already addressed the propriety of such changes when it directed the commission to passthrough the effects of H.B. 11 on the commission's own or a utility's motion. EPEC objected to the rule requiring that the calculation of the factor be made by using the taxes that would have been paid under the law prior to H.B. 11 as opposed to using the state taxes that were included in the setting of the utility's rates. The commission notes that H.B. 11 directs the commission to pass through the effect of H.B. 11 on state taxes that the utility pays; it says nothing of what has been included in rates. No change in the rule is necessary in response to this observation. EPEC objected to the provision in the rule which causes a utility to absorb any changes in state taxes after it has had a rate case that can account for H.B. 11. The commission notes that EPEC's observation of how the rule works is true, but it is mandated by H.B. 11. EPEC also suggested that if the commission desires that franchise taxes be "specifically recovered," they, as well as all other non-income taxes, be treated in the same manner as fuel and be listed separately on the bill. The commission does not believe a change in the rule is necessary in response to these comments. The legislature has directed the commission to provide for a passthrough of the effect of H.B. 11 on state taxes. The commission does not desire to "specifically recover" franchise taxes or any other tax. TU Electric supports the surcharge/refund mechanism provided in sec.23.21(d)(4) . SWB commented that the rule should be clarified that the refund or surcharge should be made to the customer base at the time of the refund or surcharge. SWB preferred to roll any discrepancies into the following year's factor. The commission agrees with SWB that the utility should not have to seek out past customers. The language has been changed to clarify that the refund/surcharge is to be made by a one time credit to the customers on the system at the time of the refund/credit. SWB, AT&T, TTA, SPS, HL&P, and TU Electric commented that the date set for filing of testimony, October 1, is not workable in that the final state franchise tax return is not filed until November 15. TU Electric suggests that the date be amended to December 10, the same date they suggest for the initial filing for each year. The hearing, it is suggested, should be no sooner than February 1 of the following year. HL&P suggested that the date for filing testimony be changed to November 15, the same date as the franchise tax return is due. TTA suggested a filing date of November 30. SPS suggested reconciling the actual franchise tax amount with the revenue collected in March of the following year via the interim adjustment factor, and because SPS believes the amount will be minimal, it suggested that no interest needs to be paid. In the same vein, AT&T also suggested that the "interim" factor be eliminated and any discrepancy between the actual taxes and the collections would be carried over into the next year's adjustment factor. In the alternative, AT&T suggested that the filing date be the later of 30 days after the filing of the franchise tax return or the federal income tax return, with the hearing following the filing by 30 days. The commission agrees that the rule as published needs to be changed; the rule has been changed to require a filing on the first working day after December 14. The commission does not agree with the suggestion by SPS and AT&T that the taxes should be reconciled and rolled into the next year's factor. There are logistical problems with the suggestion, because the utility will not be able to "reconcile" the collections with the taxes paid until sometime into the new year, which will be several months into the new year's factor-too late to roll it into the factor. TU Electric strongly supports the provision that allows for the delay of the final true-up for up to three years. TU Electric notes that such a delay should be allowed because the magnitude of the dollars will likely be small, the utility has no incentive to inaccurately estimate the interim factor given the interest provision, and many utilities will have a rate case within that period of time so as to allow it to be consolidated for efficiency. The commission agrees. GTE and TU Electric objected to having to separately list the adjustment on the bill. GTE and TU Electric commented that separately listing the item on the bill will cause customers unnecessary confusion. SWB and GTE also commented that labeling the adjustment as a tax adjustment will create difficulties in getting governmental agencies to pay. GTE suggested that the label be changed to "Cost of Service Surcharge." SWB suggested that the label be changed to "House Bill 11 Adjustment." The commission has long had a policy of having bills presented in a manner in which the customer can compute the bill given the tariff. The commission also desires that the customers understand each of the charges that they are paying. Therefore, the amendment has been changed to a require a longer, more descriptive label. SPS commented that the American Institute of Certified Public Accountants Interpretation Number 24 of Accounting Principles Board Opinion Number 11 states that if a franchise tax is based solely on income, it should be considered a income tax. The consequences of considering the tax to be an income tax are that: the tax should be expensed in the year that the income is earned, deferred taxes should be included, and the franchise tax must be based on projected federal taxable income and not the actual of past years. SPS commented that the Commission has the authority to determine that the franchise tax should not be considered an income tax under Statement of Financial Accounting Standards Number 71. Similarly, SWB commented that the rule should specify whether recovery of the tax adjustment will be normalized or simply flowed through. In response to these comments, a sentence has been added to clarify that the franchise tax will not be considered an income tax for ratemaking purposes. AT&T commented that the proposed rule makes a rate case inevitable even though the legislation does not require one. AT&T suggested that a procedure be established to process applications administratively, that a formula be developed for calculating the adjustment, and that the only review would be whether the adjustment was properly calculated. If a hearing is required, AT&T recommended that the hearing be limited in scope to whether the factor was correctly calculated. SWEPCO and WTU suggested that because the new the Act, sec.43(j) does not require a hearing and expressly states that proceedings under it are not rate proceedings under the Act, sec.43(a) the commission should fashion a procedure that does not require a hearing and thus would save resources. In the alternative, they commented that the scope of the hearing should be clearly limited. The commission believes that the Administrative Procedure and Texas Register Act mandates that the commission make an opportunity for a hearing available. As for the suggestion that the cases be handled administratively unless there is a request for a hearing, the commission believes that carving out a separate procedure for telephone utilities will serve to only complicate the rule without any real substantive benefit. The proposal has been changed to expressly state that hearings will be strictly limited to issues arising under this subsection. SWEPCO and WTU commented that the mechanics of the interest calculation should be specified to eliminate further disputes. The commission agrees and such specifications have been added to the language of the rule. AT&T, TTA, and GSU commented that if a utility is not requesting an adjustment, it should not have to file tariff only the explanation of the calculation. GSU suggested that filing tariff sheets unnecessarily uses resources and could cause confusion. The commission agrees and the language has been changed to not require the filing of tariff sheets when the utility does not request an increase. GSU commented that if a utility forgoes an adjustment that would increase its billings, the foregone revenue should be used to offset any later adjustments that would decrease rates. The commission disagrees. Such a procedure could be considered to be retroactive ratemaking unless some process is set up to allow the delay of the increase similar to the change regarding small decreases. The commission believes the utility's option to file an interim tariff and request a delay of up to three years is sufficient protection for the utility. The rule provides for a different method of allocating the adjustment for telephone and electric utilities. Several telephone utilities commented on the allocation method that applied to them. AT&T supported the allocation of the adjustment by revenues. If further breakdown by services is necessary, AT&T suggested that it only be done by the "broadest categories of service," because any further breakdown would be cost prohibitive. AT&T recommended that the adjustment factor be a percentage of the customer's bill. TSTCI did not have a problem with the proposed allocation methodology. GTE commented that it understood the language of sec.23.21(d)(6)(B) to mean that a revenue based allocation factor is to be developed for each customer service and class and that such factor is based on the percentage of revenue that the service/class bears to the utility's total revenues, using the same period used for the federal income tax return that was used to calculate the franchise taxes. GTE further commented that the method seemed sound except for two situations: it would not be practical to include an adjustment on coin telephone local calling; and if the adjustment to a customer was less than $.01 it could not be billed or collected. AT&T also commented that a provision should be included that allows the utility to round down to the nearest whole cent or 0. Similarly, TTA commented that the most equitable method to allocate the tax adjustment to the customer classes would be to determine the relative percentage of each major billed revenue category and then multiply that percentage time the total tax adjustment to determine the dollar allocation to each customer class. TTA commented that for each major revenue category, the tax would be billed to each customer as a percentage of revenue. The percentage would be determined by computing the ratio of the tax adjustment to the category's historical billed revenue. SWB recommended that the factor be applied as a percentage of the customer's intrastate bill. The commission believes that GTE's understanding of the rule is correct and is the same as that recommended by TTA. As for the two problems noted by GTE, the rule has been changed so that it does not require refunds/surcharges to coin telephone local calling and to require rounding to the nearest whole cent. The rule has also been clarified that telephone utilities will bill the factor as a percentage of the customer's bill. The percentage is developed as discussed by TTA. Several commenters also offered comment on the allocation and rate design for electric utilities. SWEPCO, WTU, HL&P, and TU Electric support the allocation/rate design language in the rule. TIEC commented that it supported the interclass allocations provided by the rule. However, TIEC opposed the intraclass allocation on the basis of kwh sales dictated by the rule and instead proposed that intraclass allocations be done as a percentage of base rates. TIEC maintains that such a method is appropriate because the income of a utility is largely a function of its rate base and base rates are a good proxy for rate base. SPS commented that the factor should be allocated using the same methodology by which the utility is currently collecting franchise taxes. The commission believes that the rule needs to be changed only in response to TIEC's comments. As for SPS's comment, the commission believes that an increase in franchise taxes will be the result of the income tax function of the new law, and therefore, the additional tax is more appropriately allocated in the same manner as federal income taxes. The amendment has been changed in response to TIEC's comments, both those submitted in writing and given orally, so that the adjustment within large industrial classes taking power at transmission level is allocated on the basis of base rate revenue. TTA commented that the mandatory filings required by the rule will be costly to the utilities and the commission and instead the rule should be revised to make the filings voluntary. The commission disagrees. In the absence of a filing, it would be difficult for the commission to ascertain the magnitude of the effect on each utility. The commission does not believe the cost of the filing will be significant. TTA commented that the period of 31 days between the filing of the tariffs, December 1, and the implementation of the tariff, January 1, conflicts with the 35-day rule for new tariffs. It is a conflict, but the specific language of this rule will control. TTA commented that because the state does not pay interest on tax overpayments, but the taxpayer has to pay interest on underpayments, fairness would call for the interest to be paid to the ratepayer. The state's relationship with the utility as tax-collector is a separate relationship from that of the utility to the customer. The rule should not be changed in response to this comment. TTA commented that the rule should recognize that tax changes, resulting from audits and amended returns, do occur, and that the rule should roll such changes forward into the next tax adjustment. TTA believed that such treatment would eliminate the need for the part of the rule in sec.23.21(d)(5) that allows the delay of the final hearing for up to three years. AT&T also suggested that a provision for out-of-period adjustments, for instance, changes resulting from a tax audit, be allowed. The commission agrees that out-of-period adjustments should be allowed and language has been added to the rule to account for this. This, however, does not eliminate the need for the three-year optional delay provision. AT&T suggested that rather than requiring the utility to file a tariff each year, the rule should require the utility to file a tariff that only explains the adjustment factor and states that the actual factor will be provided on the customer's bill. The commission disagrees and believes the adjustment factor should be filed each year. AT&T commented that the language explaining the calculation in sec.23.21(d)(3) is confusing and should be simplified; AT&T provided language to substitute. The commission believes that the substitute language is indeed simplified, but it could lead to confusion given that the old franchise tax related to a privilege period running from May 1-April 30 while the new privilege period is January 1 to December 31. The rule needs to address that problem directly. However, AT&T's language does point out that the four-twelfths and eight-twelfths language should be limited to only franchise taxes, not all state taxes. Thus the word "franchise" has been added in certain places to eliminate any confusion. TSTCI and AT&T also recommended that the cost of implementing the flowthrough be included in the calculations. The commission disagrees; H.B. does not authorize the passthrough of such costs. AT&T commented that billing changes to accommodate a change in factors will take up to 90 days to complete, thus some mechanism needs to be provided in the rule to prevent a loss from occurring during this lag. SWB also stated that the rule "could require substantial changes to the billing systems of the local exchange companies," so special provisions for the first year should be placed in the rule. SWB suggested that a once-a-year adjustment be made. Of all the companies filing comments, these two were the only ones that raised the problem of making changes to billing. The commission notes that the rule already provides for a once-a-year adjustment if the amount is small. If a utility has other billing problem that make monthly billing adjustments not feasible, the utility should be required to seek a waiver of the rule to allow some other billing pattern. AT&T recommended that the details of the computation, whether found in the initial filing or in the later testimony, be treated as proprietary. The commission believes that if a utility wants its filing to be treated as proprietary and believes it can make the requisite showing to have the filing protected, it can request a protective order upon filing. TSTCI opposed the mandatory filing of a tariff required by the rule because it would not be cost effective considering the small effect of H.B. 11 on the state taxes of most TSTCI member companies. As an alternative, TSTCI suggested that a schedule be included in the December earnings monitoring report that shows the increase or decrease in taxes resulting from H.B. 11. For the first year, given that December 1 has already passed, TSTCI suggested the schedule be included in the June earnings monitoring filing. TSTCI commented that an advantage of considering the effect of H.B. 11 with the earnings monitoring is that the overall health of the company could be considered at the same time. TSTCI also commented that many of its member companies have never had a sec.42 or sec.43 rate proceeding. The commission disagrees. The legislature directed the commission to consider state taxes in isolation. Further, the commission does not believe that developing a separate filing will be burdensome. TSTCI noted that there was an extraneous "is," a typographical error, in the first sentence of sec.23.21(d)(1). The error has been corrected. SWB commented that there is a "conflict" between the manner in which the Federal Communications Commission separates income taxes and the manner in which H.B. 11 specifies that the federal income taxes be apportioned to Texas for purposes of computing the franchise tax. SWB suggests that the solution is to include a sentence that specifies that the franchise taxes imposed by H.B. 11 will be considered a franchise tax for ratemaking purposes even though it may based on income. The commission does not see the "conflict" as anything more than an interesting anomaly without consequence. However, as discussed elsewhere in these comments, the commission is specifying that for ratemaking purposes the taxes will be considered franchise taxes to avoid the additional complication of having to normalize the franchise taxes. SWB commented that the reference to rate class in the provision that requires the filing of tariffs could cause confusion. The commission perceives no reason to believe the reference to rate classes will cause confusion. SWB recommended that because of the small size of the factor, the rule should require the factor be imposed in a single month. A once a year adjustment is already an option. The amendment is adopted under Texas Civil Statutes, Article 1446c, PURA, sec.16(a), which provide the Public Utility Commission of Texas with the authority to make and enforce the rules reasonably required in the exercise of its powers and jurisdiction. sec.23.21. Cost of Service. (a)-(c) (No change.) (d) Adjustment for House Bill 11, Acts of 72nd Legislature, First Called Special Session 1991. (1) Each utility that is subject to the commission's rate setting jurisdiction, pays state franchise taxes, and has not had a rate proceeding under the Act, sec.42 or sec.43, in which the effects of House Bill 11 were considered in the setting of rates shall be subject to this subsection. Except as provided in the following sentence, on or before December 1 of each year, each utility subject to this subsection shall file with the commission a tariff sheet, or tariff sheets, applicable to each rate class setting forth an interim House Bill 11 tax adjustment factor. If a utility chooses not to request an increase under this subsection or if the utility has otherwise limited itself by agreement to recovering tax changes that are the subject of this subsection by a method different from that prescribed in this subsection, the utility need not file tariff sheets but shall make an informational filing showing its calculations including an explanation and all underlying supporting documentation showing the effect of House Bill 11 on its taxes. If the adjustment is a decrease that amounts to less than $.50 cents per customer for electric utilities and dominate interexchange carriers or access line for all other telephone utilities on an annual basis, the tariff shall not include a factor, but shall state that the reduction will be applied against the adjustment for future years. In all other tariffs, the factors set forth in the tariff sheets shall be calculated as set forth in the following paragraphs. Utilities that are required to file tariff sheets shall include an explanation of how the interim factor was calculated as well as showing all the calculations. For state taxes to be paid during 1992, all utilities subject to this subsection shall make the initial filing as soon as practical, but no later than 90 days, after the adoption of this rule. (2) If the adjustment is a decrease requiring a factor or the utility affirmatively requests that an adjustment be made to its billings to account for the effect of House Bill 11 on its state taxes, the tariff filing will be docketed and will automatically go into effect on January 1 of the year following the filing. If the adjustment is a decrease being carried forward to future years, the filing will be treated as a tariff filing except that it shall take effect on January 1 of the year following the filing. For the initial filing, all tariffs will take effect on the date specified by the utility, but in no event earlier than 10 days after the filing. (3) The interim House Bill 11 tax adjustment factor shall be calculated by allocating the effect on the utility's state taxes for the next calendar year of House Bill 11 as provided in paragraph (6) of this subsection. The effect on the utility's state taxes for the coming calendar year shall be calculated by subtracting the estimated state taxes that would be attributable to the calendar year if the law prior to House Bill 11 was still in effect from the estimated state taxes that will be due or are attributable to the calendar year under House Bill 11. In calculating the state taxes that would be due during the calender year if the law prior to House Bill 11 was still in effect, four- twelfths of the franchise tax paid or that would have been paid in the previous year and eight-twelfths of the franchise tax that would have been paid in the calendar year in question will be considered attributable to the calendar year in question. For 1992 alone, the taxes attributable to the calendar year under House Bill 11 shall also include four-twelfths of the franchise taxes paid in 1991. In performing the calculation, the various fees imposed by House Bill 11 will not be considered taxes. In calculating the taxes that are estimated to be paid, changes resulting from audits or amended returns for previous periods that were covered by this rule shall be considered. The state franchise tax imposed by H.B. 11 will be considered to be a franchise tax and not an income tax regardless of the method of calculation. (4) If an interim factor goes into effect, it shall be subject to surcharge or refund to the extent it differs from the factor finally set by the commission. If a surcharge or refund is necessary, a credit or surcharge will be made to the existing customers' bills. Simple interest will be added to the amount due at the rate set by the commission for overbillings starting at the beginning of the month in which the obligation accrued and ending on the last day of the month preceding the refund or surcharge. The number of days in each month shall be considered for purposes of this calculation. Interest will be added to decreases that are carried to future years and will be calculated by the same method. If the adjustment necessary to account for the effect of House Bill 11 is so small that it would be difficult to adjust on a monthly basis, the utility may provide in its tariff sheet(s) an interim adjustment factor of 0 and request that the adjustment be performed by the use of a factor during a single month. (5) The utility shall file, on the first business day after December 14, testimony supporting the final adjustment factor that it is requesting to account for the effect of House Bill 11 on its state taxes for that year. The utility's filing will include a copy of the franchise tax return filed with the Comptroller's Office and the details of their computation of the tax that would have been due had House Bill 11 not been enacted. The hearing on the merits for purposes of setting the final factor, if necessary, shall be convened no earlier than February 1 of the year following the filing of the testimony and shall be strictly limited to issues under this subsection. For purposes of administrative efficiency, the hearings examiner assigned to a case may grant a utility's request that the final hearing on a particular year's factor be delayed for up to three years; however, if such a request is granted, any interest to be paid by the utility shall be at the utility's cost of capital as determined in the utility's last rate case. (6) Cost allocation and rate design are as follows. (A) Electric Utilities. For electric utilities, if the adjustment factor results in a lower cost to the ratepayers, the revenue decrease shall be allocated to the customers on the same basis as the franchise taxes were allocated in the utility's last rate case. If the adjustment factor results in a greater cost to the ratepayers, the revenue increase will be allocated to the customers in the same manner as were federal income taxes in the utility's last rate case. The factor for each customer within a class will then be calculated based on expected kwh sales and charged on a per kwh basis, except that the factor for each customer within an industrial class served at transmission level voltage will be calculated as a percentage of the base revenues (excluding fuel, any applicable PCRF charges, and add-on revenue taxes) received from that class during the most recent 12-month period. (B) Telephone utilities. Any increase or decrease will be allocated to each customer class and service based on the revenues from that class or service. For purposes of determining revenues, the period to be used will be the same as that for the federal tax return used to compute the state taxes. The adjustment factor will be billed as a percentage of the customer's bill except that coin telephone local calling shall not be billed any adjustment. Such percentage shall be determined by computing the ratio of service's allocated franchise tax to its historic revenues. The adjustment on the customer bill will be rounded to the nearest cent. (7) The utility shall separately list the adjustment on each customer's bill and label the adjustment, "Corporate Income Tax Surcharge Approved by Texas Legislature" if the adjustment is an increase or "Corporate Income Tax Credit Approved by Texas Legislature" if the adjustment is a decrease. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 30, 1991. TRD-9116428 Mary Ross McDonald Secretary Public Utility Commission Effective date: January 20, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 458-0100 Certification 16 TAC sec.23.31 The Public Utility Commission of Texas adopts an amendment to sec.23.31, concerning certification criteria, with changes to the proposed text as published in the June 28, 1991, issue of the Texas Register (16 TexReg 3573). The proposed amendment will facilitate the experimentation, by electric utilities, with renewable resources. Additionally, the proposed amendment will make a portion of the commission's substantive rules consistent with the criteria as set forth in Public Utility Regulatory Policies Act (PURPA), sec.292. 204. 45 FR 17972, March 30, 1980; as amended by Order 135, 45 FR` 19231, March 30, 1981. Finally, the proposed amendment would exclude from the requirement to obtain a certificate of convenience and necessity (CCN) certain specific routine transmission activities. All of the comments received during the comment period were generally favorable to adoption of the proposed amendment. None of the comments opposed adoption of the proposed amendment. However, the comments did discuss suggested clarifications and revisions. Comments were received from Cap Rock Electric Cooperative, Inc. (Cap Rock); Central and South West Corporation (CSW); Gulf States Utilities Company (GSU); Houston Lighting and Power Company (HL&P); Lower Colorado River Authority (LCRA); Public Utilities Board of the City of Brownsville (PUB); Southwestern Public Service Company (SPS); Texas Electric Cooperatives, Inc. (TEC); Texas Industrial Energy Consumers (TIEC); Texas-New Mexico Power Company (TNP); and Texas Utilities Electric Company (TUEC). The vast majority of comments concerned the proposed amendment to sec.23.31(c) (2). Only LCRA and TEC offered comments on the proposed amendment to sec.23.31(a). There were no comments concerning the proposed amendment to sec.23.31(c)(1)(F). The proposed amendment is not intended to alter the commission's practice regarding circumstances where transmission lines certificated for, and initially operated at, a lower voltage than for which they were originally designed and constructed, provided that the commission found that the transmission line would ultimately operate at the higher voltage. In such circumstances, commission practice has been not to require an amendment to the CCN when the utility decides to convert from the lower voltage to the higher voltage. Cap Rock's comments were generally supportive of the proposed amendment to the substantive rules. Cap Rock did not suggest any clarifications or revisions to the proposed amendments. CSW favors adoption of the proposed amendment. CSW notes that, because of the reporting requirement in the proposed amendment, the exemptions do not completely remove the subject matter from commission jurisdiction. CSW also notes that the commission retains the discretion to order a hearing on a filing under the proposed amendment. CSW does not offer any clarifications or revisions to the proposed amendments. GSU supports the proposed amendment. However, GSU proposes one modification to the proposed amendment. Specifically, GSU proposes that sec.23.31(c)(2)(E) of the proposed amendment increase the limit for upgrading transmission lines from 138kv to 230kv. GSU asserts that they, and several other non-ERCOT utilities, use up to 230kv as the maximum transmission voltage for service to a company's customers. The commission agrees with this proposed modification and the 138kv limit has been replaced by a 230kv limit. HL&P is generally supportive of the proposed amendment. However, HL&P proposes one modification. Specifically, HL&P proposes that sec.23.31(c)(2)(D) be modified so that a CCN would not be required for the alteration of an existing transmission line to extend service to a customer requesting transmission voltage service. HL&P observes that in such a situation the utility would not be adding to its transmission grid but would be providing service to a consenting customer. The commission agrees. The proposed amendment reflects this addition. LCRA supports the proposed amendment. However, LCRA proposes that the commission include in their adoption of the proposed amendment a new sec.23.31(c) (3). This new section would clarify that the proposed amendment would also apply to wholesale generation and transmission utilities. The commission agrees with LCRA's position. The proposed amendment has been modified to provide for this clarification. LCRA further proposes to redesignate sec.23.31(c)(3) and (c)(4), as published, as sec.23.31(c)(4) and (c)(5), respectively. The commission disagrees. The commission believes that the proposed modification can be added without a redesignation of the current sections. Finally, LCRA's supplemental comments proposes that the commission require that utilities report to the commission any construction of 10 MW units under the proposed amendment to sec.23.31(a). LCRA asserts that this would insure that the units are built for experimental purposes only. The commission agrees, and has partially addressed this concern in the proposed amendment to sec.23.31(a). However, the commission believes that any reporting requirement should be addressed in a rulemaking procedure to amend sec.23.11(m) of the commission's substantive rules. PUB proposes a change to the proposed sec.23.31(c)(2). PUB proposes this change to prevent the alteration or addition of facilities belonging to one utility but located partially or entirely within another utility's certificated area, without that utility's consent or comment. The commission agrees. Where applicable, the proposed amendment has been modified to include this proposed revision. SPS generally supports the proposed amendment. However, SPS disagrees with the reporting requirement in the proposed amendment. SPS believes that this is inconsistent with that part of the proposed amendment that allows commission review of any report that is filed. SPS recommends that the reporting requirement in sec.23.31(c)(2) be deleted. In the alternative, SPS recommends that the utility be only required to file a letter reporting on the status of the activities, or report on the activities after their completion. The commission disagrees. The proposed amendment is not intended as an exemption of these activities from commission oversight. Rather, it is only intended to exempt these routine transmission activities from the more formal CCN process. Reporting on the activities after their completion would severely limit the commission in their decision-making process. Additionally, SPS requests a clarification on sec.23.31(c)(2)(D), (G), and (H). Specifically, SPS wants to know that if a landowner fails to give his consent, will the utility be required to proceed through a more formal CCN process. SPS recommends that in such situations, only notice be given to the affected landowner. The commission disagrees. The commission does not believe that the proposed amendment should be used to impose these transmission activities on affected landowners. TEC supports the proposed amendment. TEC proposes a modification to sec.23. 31(a). Specifically, TEC proposes that this definition of generating unit apply specifically to electric utilities. TEC proposes this change to limit the proposed amendment to electric utilities and to specifically exclude independent power producers (IPP). The commission disagrees. The commission believes that this is unnecessary. There are presently no IPPs operating in Texas. Additionally, the commission's jurisdiction only contemplates the regulation of the rates and services of electric and telephone utilities. TIEC generally supports the proposed amendment. However, TIEC suggests a change to the proposed amendment. Specifically, proposes that the proposed amendment allow any affected person the ability to require that a utility provide additional facts on the activities, or allow any affected person to require a public hearing on the activities. TIEC believes that this change will protect the rights of affected persons and insure their participation. Further, it will require that the utility provide affected persons with additional facts. Finally, TIEC supports the comments as set forth by HL&P. The commission does not agree with this proposal. The commission believes that the proposed amendment adequately addresses the concerns of affected persons. Specifically, the proposed amendment requires that the utility procure prior consent from any landowner who would be affected by the transmission activities. Further, the proposed amendment requires the utility to file a report on the transmission activities, and allows the commission to convene a hearing based on the report. TNP supports the proposed amendment. However, TNP proposes an addition to the proposed amendment. Specifically, TNP proposes that the bundling of conductors be added to the transmission activities which would be exempt from the certification process. By adding the bundling of conductors to sec.23.31(c)(2)(E), TNP believes that this will further the intent of the proposed amendment to exempt routine transmission-related activities. The commission agrees with TNP's proposed modification and has incorporated it into the proposed amendment. TUEC generally supports the proposed amendment. However, TUEC proposes that the reporting requirement be deleted from the proposed amendment. TUEC believes that the reporting requirement is contrary to the intent of the proposed amendment. In the alternative, if the commission continues to require a report, then TUEC suggests that the report be required to be made in a similar format as the preliminary construction report (PCR). For the reasons stated previously, in the commission's response to SPS' comments, the commission disagrees. Additionally, TUEC disagrees with the requirement in the proposed amendment of filing documents indicating landowner(s) consent. TUEC proposes that the utility only be required to file sworn affidavits concerning the notification process. TUEC believes that this will further consistency of reporting. The commission disagrees. The commission does not believe that the proposed amendment should be used to impose these transmission activities on affected landowners. Adoption of TUEC's proposed modification would effectively eliminate the affected landowners' ability to address before the commission these exempted transmission activities prior to their completion. The commission would note that under the present rules of the Public Utility Commission of Texas the affected landowners would have the right to a hearing prior to completion of these types of transmission activities. The new section is adopted under Texas Civil Statutes, article 1446c, sec.16(a) , which authorize the Public Utility commission to make and enforce rules that are reasonably required in the exercise of its power and jurisdiction and sec.18, which grant the commission the authority and power to carry out the public policy of this state to protect the public interest in having adequate and efficient telecommunications service available to all citizens of the state at just fair and reasonable rates. sec.23.31. Certification Criteria. (a) 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) Generating unit-Any electric generating facility. This subsection does not apply to any generating unit that is less than 10 megawatts and is built for experimental purposes only, and not for purposes of commercial operation. (b) (No change.) (c) Certificates for new service areas and facilities. Except for certificates granted under subsection (b) of this section, the commission may grant applications and issue certificates only after finding that the certificate is necessary for the accommodation, convenience, or safety of the public. For an electric utility generating unit, the commission may grant an application only when it finds that purchased power, conservation, and alternative capacity and associated energy sources available at a lower or equal cost to the ratepayers, together with capacity from qualifying facilities with which contracts have been executed, cannot be reasonably expected to be available in sufficient quantity and for sufficient duration to allow the utility to modify its capacity expansion plan so as to provide for referral or cancellation of the generating unit for which certification is requested. The commission may issue the certificate as applied for, or refuse to issue it, or issue it for the construction of a portion, only of contemplated system or facility or extension thereof, or for the partial exercise only of the right or privilege. The commission may amend or revoke any certificate issued under this section upon a finding of fact that the public convenience and necessity requires such amendment or revocation. The cost of construction of a new electric generating unit found reasonable in granting a certificate may be taken into consideration in determining the amount of construction work in progress and the plant in service associated with that unit to be included in the rate base of the utility. In addition, the projected design electrical rating, capacity factor, and heat rate associated with the unit shall be taken into consideration in determining recoverable fuel expenses associated with the operation of the unit. (1) A certificate, or certificate amendment, is required for the following: (A)-(E) (No change.) (F) a qualifying facility which is making or plans to make retail sales of electricity to an end user, unless the end user is also the sole purchaser of the thermal output of the qualifying facility, or unless the qualifying facility generates less than 10 megawatts of electric power by renewable resources, biomass, or waste. As a requisite to certification, the commission shall find that the ratepayers of the utility in whose service area the purchasing end user is located will not be substantially adversely impacted as a result of such retail sales. (2) A certificate is not required for the following: (A)-(C) (No change.) (D) routine activities associated with transmission facilities that are conducted by electric utilities, including wholesale generation and transmission utilities, and as specifically noted following: (i) the alteration of an existing transmission line to provide service to a customer-owned substation or a utility-owned substation, where that utility- owned substation is located within two spans of the existing transmission line, provided that any neighboring landowner(s) crossed by the transmission facilities constructed to connect the substation to the existing transmission line has given prior consent; (ii) the rebuilding, upgrading, bundling of conductors, or reconductoring of an existing transmission facility; or the installation of an additional circuit(s) on facilities that were originally designed and certificated for multiple- circuit capacity. Activities described previously which occur in the certificated area of another utility require the prior consent of that utility. For purposes of this section, upgrading to a higher voltage shall be limited to 230 KV or less and rebuilding work shall be limited to the replacement and/or respacing of structures along an existing route of the transmission line; (iii) the relocation of all or part of an existing transmission facility due to a request for relocation to be done at the expense of the requesting party and to be relocated solely on rights-of-way provided by the requesting party. Activities described previously which occur in the certificated area of another utility require the prior consent of that utility; (iv) the relocation or alteration of all or part of an existing transmission facility to avoid or eliminate existing encroachments, provided that any neighboring utilities and new landowner(s) crossed by such relocation or alteration has given prior consent; (v) the relocation, alteration, or reconstruction of a transmission facility due to the requirements of any federal, state, county, or municipal governmental body or agency for purposes of highway transportation, public safety, or air and water quality, provided that the new construction is in close proximity to the existing facilities and that any new landowner(s) crossed by the new facilities has given prior consent; (vi) nothing contained in clauses (i)-(v) of this subparagraph should be construed as a limitation of the commissions authority as set forth in the Public Utility Regulatory Act. Any activity described in clauses (i)-(v) of this subparagraph must be reported to the commission not less than 30 days prior to the commencement of construction, and the commission may require additional facts or call a public hearing thereon to determine whether a certificate of convenience and necessity is required. Reports shall include a general description of and explanation of the reason for the project, estimated costs, a map(s) detailing the location, and copies of documents indicating landowner(s) consent, as necessary. For projects that require new or additional rights-of-way direct mail notice is required to landowners of adjacent property within 200 feet of the proposed project, parks and recreation areas within 1,000 feet, and airports within 10,000 feet of the proposed project is also required. (E) the construction or upgrading of distribution facilities within the utility's service area; and (F) new telephone central offices; (G) however, any extension, upgrading, or construction of facilities described in subparagraph (F) of this paragraph in excess of $250,000 must be reported to the commission as prescribed in sec.23. 13(b) of this title (relating to Statistical Reports), and the commission may require additional facts or call a public hearing thereon. (H) use or provision of pay telephones registered under Title 47, Code of Federal Regulations, Part 68. (3)-(4) (No change.) (d)-(h) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on December 18, 1991. TRD-9116292 Mary Ross McDonald Secretary Public Utility Commission Effective date: January 10, 1992 Proposal publication date: June 28, 1991 For further information, please call: (512) 458-0100 TITLE 22. EXAMINING BOARDS Part IX. State Board of Medical Examiners Chapter 163. Licensure 22 TAC sec.163.4 The Texas State Board of Medical Examiners adopts an amendment to sec.163.4, without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6255). The changes in the section will better define fellowship training. The section will function by clarification of the rules. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116316 Homer R. Goehrs, M.D. Executive Director Texas State Board of Medical Examiners Effective date: January 13, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 834-7728 Chapter 167. Reinstatement 22 TAC sec.167.1 The Texas State Board of Medical Examiners adopts an amendment to sec.167.1, without changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6256). A change in the relicensure rule will allows physicians whose licenses have been cancelled for five years or less to be reinstated without having to complete the full reciprocity licensure procedure. Licenses which have been cancelled for five years or less may be reinstated by payment of registration fees and penalty fees, with a minimum of paperwork. One comment, in support of the revision, was received. There were no negative comments. The comment received was from an individual therefore the name will not be published. The amendment is adopted under Texas Civil Statutes, Article 4495b, which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1991. TRD-9116317 Homer R. Goehrs, M.D. Executive Director Texas State Board of Medical Examiners Effective date: January 13, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 834-7728 Chapter 175. Schedule of Fees and Penalties 22 TAC sec.175.1, sec.175.2 The Texas State Board of Medical Examiners adopts an amendments to sec.175.1 and sec.175.2, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 6023). Certain fees and penalties will be raised as mandated by House Bill 11, 72nd Legislature, and as allowed by the Medical Practice Act, sec.3.10(b). The amendments will help to clarify the fees. Comments received were negative due to need of an increase in fees. Commenting against the section were individual physicians and some residency program directors/medical schools. The rule change is simply to implement House Bill 11. The amendments are adopted under Texas Civil Statutes, Article 4495b, which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116319 Homer R. Goehrs, M.D. Executive Director Texas State Board of Medical Examiners Effective date: January 13, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 834-7728 Chapter 193. Standing Delegation Orders 22 TAC sec.193.6 The Texas State Board of Medical Examiners adopts the repeal of sec.193.6, without changes to the proposed text as published in the October 25, 1991, issue of the Texas Register (16 TexReg 6023). With the passage of Senate Bill 774, sec.3.06(d)(6) of the Medical Practice Act was repealed effective September 1, 1991; sec.193.6 of the Board's rule and regulations is also repealed. The repeal will enable clarification of the rules by omission. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Civil Statutes, Article 4495b, which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations, and bylaws not inconsistent with this act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116318 Homer R. Goehrs, M.D. Executive Director Texas State Board of Medical Examiners Effective date: January 13, 1992 Proposal publication date: October 25, 1991 For further information, please call: (512) 834-7728 Part XXV. Structural Pest Control Board Chapter 595. Compliance and Enforcement 22 TAC sec.sec.595.2-595.8, 595.10-595.12, 595.21 The Structural Pest Control Board adopts amendments to sec.sec.595.2-595.5 and 595.21 and new sec.sec.595.6-595.8, and 595.10-595.12, concerning compliance and enforcement. Sections 595.3-595.8, 595.10, and 595.11 are adopted with changes to the proposed text as published in the September 27, 1991, issue of the Texas Register (16 TexReg 5312). Sections 595.2, 595.12, 595.21 are adopted without changes and will not be republished. The rules are adopted in order to clarify existing language and implement the provisions of House Bill 853 passed by the 72nd Legislature. Amendments were adopted in response to comments received about the pest control sign and consumer information definition of workplace was added to clarify the situations in which posting will be required. Notification provisions were changed to require posting of the sign and distribution of the consumer information sheet at the time of treatment in emergency situations. The definition of emergency was amended to clarify that only the localized area of the emergency is to be treated. The definitions of vacant, unused, and unoccupied were clarified to mean that the condition must exist for at least 48 hours following treatment. Amendments were adopted providing the pest control sign and consumer information sheet in Spanish. The consumer information sheet language was amended to provide more health information and more information about integrated pest management. An amendment was adopted to include building entranceways in the areas of common access definition. An amendment was also adopted to require notification of pesticide use at the time of registration at a school or day-care center. The emergency clause was amended to require the signature of the certified applicator as well as the customer in the case of an emergency. The record- keeping provision, sec.595.4, was amended to delete the prescribed form and the soil type and to clarify that percentage of pesticide in solution and service address are required. Section 595.5 was amended to delete the provision that the jurisdictional statement be on invoices, due to the comment that this information will be included on the consumer information sheet. The schools provision was amended to narrow the emergency exception and prohibit treatment in any area of a school building or grounds in which students are expected to be present in the next 12-hour period. The amendments change wording to reflect new classes of licensure, increase record-keeping requirements, and expand them to cover noncommercial applicators. The amendments expand the information that must be provided to consumers and clarify the authority of board investigators. New sec.595.6 creates a pest control sign and establishes the requirements for provision of the sign by licensees to customers and the necessary wording on the sign. New sec.595.7 creates a consumer information sheet and establishes the requirements for provision of the sheet to the customers and the necessary language for the consumer information sheet. New sec.595.8 establishes the responsibilities of unlicensed persons for posting the pest control sign and distributing the consumer information sheet. New sec.595.10 establishes procedures for biennial inspections as mandated by House Bill 853. The new section also establishes procedures for reporting misapplications of pesticides. New sec.595.11 establishes procedures for a 12-hour interval between pesticide applications and occupation of school buildings. The new section also establishes an emergency clause for treatments when there is a health threat. New sec.595.12 establishes procedures for selecting enforcement actions when a misapplication has occurred. Several comments were received concerning the consumer information sheet and the pest control sign. Concerns were expressed that the emergency definition was too broad or unnecessary. Additionally, comments were received concerning various changes in wording for the sign and the information sheet. Comments were received concerning the ambiguity of various definitions such as workplace, emergency and vacant, unused and unoccupied. Additional concerns were raised that all notification not be waived in emergency treatment situations. Additionally, there was concern that building entrances were not included in areas of common access. Comments were received that the board should provide a specific sign rather than dimensions for a sign and, conversely, that the board should provide type sizes for the consumer information sheet rather than a specific form. Several comments were received concerning the school notification provisions. Concerns were raised about the definition of school Structural Pest Control Board building and grounds and the existence of the emergency provision. Concerns were also raised that 20 days is too long a time period for notifying consumers and businesses that a finding of a misapplication has been made. Public comment included problems perceived with using a prescribed form and including soil type in the pest control use records. Commenters also asked for clarification of terms such as "location" and "concentration." Comment was received that inclusion of the board jurisdictional statement on invoices was unnecessary due to the fact that the consumer information sheet already includes this information. The names of groups and associations making comments for and against the section are as follows. For: Permian Basin Pest Control Association; Texas Apartment Association; Consumers Union; Texas Department of Agriculture; and Texas Association of School Boards. Against: Texas Pest Control Association; Sierra Club; and Chemical Connection. The agency opposes completely deleting the emergency clause from its rules. It agrees that the emergency clause should only be used in true emergencies. For this reason, the definition was restricted and approval by the certified applicator was added to the requirement. The wording adopted for the pest control sign and consumer information sheet addresses most of the concerns raised about the language used. The board felt that the flexibility provided by using only sign specification outweighed concerns for uniformity. The possibility of adopting this same flexibility for the consumer information sheet will be addressed at a later date. In response to the concern about the 20-day reporting period, the board staff was concerned that normal processing delays would not necessarily be covered using a shorter time period and that 20 days was a reasonable outer limit. The amendments and new sections are adopted under Texas Civil Statutes, Article 135b-6 which provides the Structural Pest Control Board with the authority to test, license, regulate, and to develop standards for the structural pest control industry. sec.595.3. Employee Supervision. (a) (No change.) (b) In order to provide adequate supervision, the certified applicator must have personal contact at least three days per week with the technicians or technician-apprentices being supervised. The technician or technician-apprentice must reside within the normally accepted commuting area of the licensed business office in order to personally report at least three days per week to receive instructions. (c) (No change.) (d) Technician-apprentices shall not perform pest control services without physical supervision until they have completed the technician training course and on-the-job training and verified such completion with the board. (e) (No change.) sec.595.4. Pest Control Use Records. The business licensee or in the case of a certified noncommercial applicator, the applicator, shall keep and maintain a record of all uses of pesticides and pest control devices for a period of two years. Said records will be kept on the premise of the business licensee or, in the case of a certified noncommercial applicator, the employer's premises. The records will include, but are not limited to, routine operational data, which include the name and address of the customer, the name of pesticides or devices used, the amounts of pesticides or devices used, the percent in solution of pesticides used, the purpose for which the pesticides or devices were used, the date the pesticides or devices were used, and the service address where the pesticides or devices were used. These records shall be made available to the board or its authorized agents in accordance with the Structural Pest Control Act, as amended. sec.595.5. Contracts. (a) Each written contract for service of a business regulated by the Structural Pest Control Board must contain the name, address, and telephone number of the board. It must also include the business location address, telephone number, and the statement "Licensed and regulated under the Structural Pest Control Act." (b) The requirement in subsection (a) of this section shall be on the face of any contract, warranty, or guarantee issued by the pest control operator. (c) (No change.) sec.595.6. Pest Control Sign. (a) A pest control sign must be provided by the licensee to the owner or manager at least 48 hours prior to a planned indoor treatment at a residential rental property with five or more rental units. (b) A pest control sign must be provided by the licensee to the employer or building manager at least 48 hours prior to a planned indoor treatment at a workplace. A workplace is defined as any non-residence with three or more fulltime paid employees which is treated by a licensed business or a certified noncommercial applicator. (c) A pest control sign must be provided by the licensee to the chief administrator or building manager at least 48 hours prior to a planned indoor treatment at a hospital, nursing home, hotel, motel, lodge, warehouse, food processing establishment, school or educational institution, or day-care center. (d) The pre-notification provisions of subsections (a)-(c) of this section are waived if the customer and certified applicator sign a statement attesting to the fact that an emergency exists that requires immediate treatment. If such an emergency exists, signs must be provided by the licensee at the time of application. The statement must be kept on file with the pest control use records at the business license location. Certified noncommercial applicators may attest to an emergency by signing a statement attesting to the emergency and must keep the statement on file with the pest control use records at their place of employment. If the customer is not available to sign a statement at the time of treatment, the customer's name and telephone number shall be noted in the pest control use records. An emergency is defined as an imminent hazard to health or property or an imminent infestation and emergency treatment is limited to the localized area of the emergency. (e) An indoor treatment includes a perimeter treatment if the primary purpose of the treatment is to treat the interior of the structure. (f) A person may not be considered in violation of this section if the space to be treated is vacant, unused, and unoccupied for at least 48 hours following treatment. (g) Each pest control sign must be at least 81/2 inches by 11 inches in size and must contain the following information with the first line in a minimum of 24- point type (1/4 inch) and all remaining lines in a minimum of 12-point type (1/8 inch). A standard sign in Spanish is available from the board upon request. The sign should appear in the following format. [graphic] (h) In the space marked "For more information call or contact," the telephone number where information on the pesticide(s) used may be obtained shall be listed, such as the apartment manager, building manager, or pest control operator. (i) In the space marked "phone number of hotline for pesticide information," the following wording shall be used: [graphic] (j) If a workplace has its own pesticide information center, the workplace center telephone number may be listed rather than the information in subsection (i) of this section. sec.595.7. Consumer Information Sheet. (a) For indoor treatments, the board-approved consumer information sheet, a statement listing the pesticide(s) used and upon request a label for any pesticide(s) used shall be distributed by the licensee as follows: (1) to owners of private residences before or at the time of treatment; (2) to each unit of residential rental properties of less than five units at the time of the treatment; (3) to the owner or manager of residential rental properties with five or more units at least 48 hours prior to a planned treatment; (4) to employers, managers, or administrators of workplaces, hospitals, nursing homes, hotels, motels, lodges, warehouses, food-processing establishments, school or educational institutions, or daycare centers at least 48 hours prior to a planned treatment. A workplace is defined as any non-residence with three or more full-time paid employees which is treated by a licensed business or a certified noncommercial applicator. (b) For outdoor treatments, the board-approved consumer information sheet, a statement listing the pesticide(s) used and upon request a label for each pesticide used shall be distributed by the licensee as follows: (1) to owners of private residences before the treatment begins; (2) to each unit of a residential rental property with fewer than five units at the time of treatment. (c) The official Structural Pest Control Board consumer information sheet must be used. Copies of the consumer information sheet are available from the board in English and Spanish and shall read as follows. [graphic] [graphic] (d) The pre-notification requirements of subsection (a)(3) and (4) of this section are waived if the customer and certified applicator sign a statement attesting to the fact that an emergency exists which requires immediate treatment. If such an emergency exists the consumer information sheet should be provided by the licensee at the time of treatment. The statement must be kept on file with the pest control use records at the business license location. Certified noncommercial applicators may attest to an emergency by signing a statement attesting to the emergency and must keep the statement on file with the pest control use records at their place of employment. If the customer is not available to sign a statement at the time of treatment, the customer's name and telephone number shall be noted in the pest control use records. An emergency is defined as an imminent hazard to health or property or an imminent infestation and emergency treatment is limited to the localized area of the emergency. sec.595.8. Responsibilities of Unlicensed Persons for Posting and Notification. (a) Owners or managers of residential rental properties with five or more units shall either: (1) post a pest control sign at least 48 hours before each planned treatment in an area of common access; or (2) distribute the consumer information sheet to each unit planned to be treated and each unit adjacent to those planned to be treated at least 48 hours before the planned time of treatment. Adjacent means having a common wall, ceiling, or floor. Area of common access means a common area that an individual is likely to check on a regular basis, such as building entranceway, mailboxes, laundry rooms, beverage machines, building bulletin boards, etc. (b) Employers, building managers, and chief administrators of workplaces, hospitals, nursing homes, hotels, motels, lodges, warehouses, food-processing establishments, school or educational institutions, and daycare centers shall post a pest control sign in an area of common access at least 48 hours prior to each planned treatment and provide a consumer information sheet to any individual working in the building at the request of that individual. Area of common access means a common area that an individual is likely to check on a regular basis, such as building entranceway, mailboxes, laundry rooms, beverage machines, building bulletin boards, etc. (c) Chief administrators of school or educational institutions and day-care centers shall notify the parents or guardians of children attending the facility in writing that pesticides are periodically applied indoors and that information on the times and types of applications is available upon request. Such notification must be made at the time of the child's registration. (d) The 48-hour pre-notification requirements of subsections (a) and (b) of this section may be met at the time of treatment if an emergency exists and the customer and certified applicator sign a statement attesting to the fact that an emergency exists that requires immediate treatment. The statement must be kept on file with the pest control use records at the business license location. Certified noncommercial applicators may attest to an emergency by signing a statement attesting to the emergency and must keep the statement on file with the pest control use records at their place of employment. If the customer is not available to sign a statement at the time of treatment, the customer's name and telephone number shall be noted in the pest control use records. An emergency is defined as an imminent hazard to health or property or an imminent infestation and emergency treatment is limited to the localized area of the emergency. (e) A person may not be considered in violation of this section if a pest control sign is removed by an unauthorized person or if the space to be treated is vacant, unused, and unoccupied for at least 48 hours after treatment. (f) A person found in violation of this section is subject to the administrative penalty provisions of the Structural Pest Control Act, sec.10B. sec.595.10. Inspections. (a) Each licensed pest control business shall be inspected at least one time in any two-year period. Businesses showing a lack of compliance with board law or rules may be inspected more frequently. The executive director may waive this requirement due to emergency. An emergency in this section is defined as a shortage of staff availability due to complaint investigations, personnel shortages, or budgetary constraints. (b) If the board or the executive director determines that a misapplication of pesticides has occurred on the premises of a consumer, the consumer and the business license holder or applicator shall be notified within 20 calendar days of the making of this determination. Records of any health injuries diagnosed by a licensed physician and property damage caused by any misapplication by a licensee which is found by the board shall be kept in a form reportable to the Texas Department of Health or any institution of higher education upon their request. (c) Procedures for the conduct of an investigation shall be contained in the Texas Structural Pest Control Board Investigations Manual, which shall contain all requirements of the Structural Pest Control Act, sec.4C(b). sec.595.11. Schools. Pesticide applications shall not be made to an area within or outside a school building if students are expected to be present in the area treated within the next 12-hour period immediately following treatment. Emergency treatments will be permitted in the localized area of infestation when there is an imminent threat to health or property or an infestation is imminent. Records of the reasons for emergency treatments shall be kept in the pest control use records of the business or certified noncommercial applicator performing the treatment. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas on December 9, 1991. TRD-9116212 Benny M. Mathis, Jr. Executive Director Structural Pest Control Board Effective date: February 1, 1992 Proposal publication date: September 27, 1991 For further information, please call: (512) 835-4066 Chapter 597. Unlawful Acts and Grounds for Revocation 22 TAC sec.597.1, sec.597.3 The Structural Pest Control Board adopts amendments to sec.597.1 and sec.597. 3, concerning unlawful acts and grounds for revocation. Section 597.1 is adopted with changes to the proposed text as published in the September 27, 1991, issue of the Texas Register (16 TexReg 5315). Section 597.3 is adopted without changes and will not be republished. The amendments were adopted to clarify existing language and to implement the provisions of House Bill 853 passed by the 72nd Legislature. The section was amended in response to comments opposed to the incomplete advertising provision. The amendments clarify the administrative penalty process and add additional violations specific to those for which sanctions may be imposed. Comments were received opposed to incomplete advertising as a penalty. Comments were also received that guidelines for penalties are not readily apparent. The names of a group or association making comments against the section is: Texas Pest Control Association. Guidelines for penalties are defined in a different section. The agency does not feel that it is possible to define a guideline that will fit each violation in all circumstances. The amendments are adopted under Texas Civil Statutes, Article 135b-6, which provide the Structural Pest Control Board with the authority to test, license, regulate, and to develop standards for the structural pest control industry. sec.597.1. Grounds for Revocation, Suspension, Penalties, Reprimanding, Refusal to Examine, Refusal To Issue or Renew Licenses. Any such action may be accomplished by a vote of the board, after notice and hearings, as provided for the Texas Civil Statutes, Article 135b-6, and the Administrative Procedure and Texas Register Act. No revocation, suspension, annulment, or withdrawal of any license is effective unless prior to the institution of agency proceedings, the agency gave notice by personal service or by registered or certified mail to the licensee of facts or conduct alleged to warrant the intended action, and the licensee was given an opportunity to show compliance with all requirements of law for the retention of the license. The following are grounds for revocation, suspension, penalties, reprimanding, refusal to examine, refusal to issue or renew licensees: (1)-(2) (No change.) (3) fraudulent or misleading advertising or advertising in an unauthorized category: (4)-(9) (No change.) (10) performing work in a category for which the certified applicator or technician licensee is not licensed; (11)-(19) (No change.) (20) failure of certified applicator licensee or technician to notify the board when he or she moves or changes employers; (21) failure to maintain minimum liability insurance; (22) failure to meet minimum continuing education requirements; (23) failure to maintain technician training records; (24) failure to provide signs and information sheets; and (25) failure to post signs or distribute information sheets; and (26) failure to comply with any section of the Act or regulations. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 9, 1991. TRD-9116213 Benny Mathis, Jr. Executive Director Structural Pest Control Board Effective date: February 1, 1992 Proposal publication date: September 27, 1991 For further information, please call: (512) 835-4066 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 11. Food Distribution and Processing Food Distribution Program 40 TAC sec.11.107 The Texas Department of Human Services (DHS) adopts an amendment to sec.11. 107, concerning warehousing and distribution of donated fodds, without changes to the proposed text as published in the November 29, 1991, issue of the Texas Register (16 TexReg 6915). The justification for the amendment is to clarify the rule to state that DHS solicits contracts for handling, storing, and distributing commodities by request for proposal according to state and federal procurement standards. The amendment will function by including the procedure in the rule for soliciting contracts. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 30, 1991. TRD-9116431 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 Proposal publication date: November 29, 1991 For further information, please call: (512) 450-3765 Chapter 47. Primary Home Care Provider Contracts 40 TAC sec.47.4901 The Texas Department of Human Services (DHS) adopts an amendment to sec.47. 4901, concerning provider contracts, in its Primary Home Care chapter. Justification for the section is to comply with the Patient Self- Determination Act provisions of the Omnibus Budget Reconciliation Act (OBRA) of 1990. The section will function by allowing individuals the right to make decisions concerning their medical treatment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. The section is adopted to be effective December 1, 1991, to comply with federal requirements. sec.47.4901. Contracting. (a) (No change.) (b) Provider agencies must: (1)-(9) (No change.) (10) comply with the Patient Self-Determination Act provisions of the Omnibus Budget Reconciliation Act (OBRA) of 1990. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 30, 1991. TRD-9116430 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: December 1, 1991 For further information, please call: (512) 450-3765 Chapter 50. Day Activity and Health Services Provider Eligibility 40 TAC sec.50.2910 The Texas Department of Human Services (DHS) adopts new sec.50.2910, concerning provider eligibility, in its Day Activity and Health Services chapter. The justification for the new section is to comply with the Patient Self- Determination Act provisions of the Omnibus Budget Reconciliation Act (OBRA) of 1990. The new will function by allowing individuals the right to make decisions about their medical treatment. The section is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. The section is adopted to be effective December 1, 1991, to comply with federal requirements. sec.50.2910. Compliance with Patient Self-Determination Act. Provider agencies must comply with the Patient Self-Determination Act provisions of the Omnibus Reconciliation Act (OBRA) of 1990. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 30, 1991. TRD-9116429 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: December 1, 1991 For further information, please call: (512) 450-3765 Part III. Texas Commission on Alcohol and Drug Abuse Chapter 150. Licensure of Chemical Dependency Counselors Counselor Licensure Rules 40 TAC sec.sec.150.1-150.18, 150.20, 150.22 The Texas Commission on alcohol and Drug Abuse adopts new sec.sec.150.1-150.18, 150.20, and 150.22. Sections 150.1, 150.3, 150.4, 150.13, 150.16, 150.17, 150.20, and 150.22 are adopted with changes to the proposed text as published in the October 18, 1991, issue of the Texas Register (16 TexReg 5819). Sections 150.2, 150.5-150.12, 150.14, 150.15, and 150.18 are adopted without changes and will not be republished. The rules are adopted to establish the authority granted to stand the intent of the Texas Commission on Alcohol and Drug Abuse in providing written rules, regulations, and standards reflecting licensing requirements of chemical dependency counselors; to define the scope of the rules, regulations, and standards as they apply to chemical dependency counselors; and to provide definition of terms to be used in this chapter. Changes occur in the definitions section of these rules with significant change in chemical dependency counselor to exclude the services of individuals licensed by a healthcare organization or certified by the Texas Department of Criminal Justice as falling under the scope of "counseling related services." The definition for counselor intern was expanded to allow individuals to be eligible for counselor intern status prior to completion of the required 270 classroom hours of approved curriculum if providing chemical dependency counseling services as of January 1, 1992 due to the impact of implementation of this chapter on individuals employed in the chemical dependency field prior to January 1, 1992. Additionally, the timeframe for counselor intern status was extended from three years to four years. Two new definitions were added to clarify the meaning of supervised work experience and training institution. To further clarify the section on exemptions, the definition on counselor intern was expanded under subsection (b)(2). Continuing education was also changed to specify required number of hours in HIV, cultural awareness and sensitivity, compulsive gambling, and sexual abuse. Disciplinary action; procedure section as also changed to indicate notices would be mailed by registered or certified mail. Changes for consistency were made in reference to discrimination in sec.sec.150.4, 150.16, and 150.22, and also sec.150.20(a). The rules establish procedures regarding licensure requirements, application process and fees, transition period, disciplinary action, and ethical standards for chemical dependency counselors as a result of recent legislation which revised Texas Civil Statutes, Article 4512o. Twelve comments were received to further clarify meaning of words and terms as used in this chapter. Changes were made as a result of comments received for each of the following: chemical dependency counselor, counselor intern, and the 12 core functions. Two new definitions were added as a result of comments received regarding supervised work experience and training institute. Comments declined included references to chemical dependency counseling, counselor intern, and the 12 core functions. Suggestions were made to include definitions for "client" and "actual and active experience." Forty-four comments requesting an exemption for nurses in the exemptions sections were declined as well as one for parole officers. Seven comments were declined in the licensure section which included objection to photograph requirement for licensure, suggestions for increase in educational requirements, objection to oral exam, suggestions for strengthening supervised work experience, standardization of the 4,000 hours of supervised work experience, contradiction in exemptions addressed in transition section and licensure section, the requirement of cultural awareness and sensitivity training for licensure renewal, suggestions for definition of course work, and suggestions for specificity in the training requirement in the 12 core functions. Three comments in the disciplinary action; grounds section were declined regarding payment for referral and disclosure of financial arrangements and one comment regarding appropriate titles used by counselor in the ethical standards section was declined. The names of groups and associations making comments for and against the section are as follows. For: Lubbock Regional Mental Health Mental Retardation; and Charter Counseling Center. Against: Texas Chemical Dependency Association, Inc.; Charter Counseling Center; Texas Mental Health Mental Retardation; Texas Peer Assistance Program for Nurses; Houston Association of Psychiatric Nurses; Gulf Coast Chapter of the National Nurses Society on Addictions; Texas Nurses Association; Texas Chemical Dependency Association, Inc.; Psychosocial Services; Cameron County Adult Probation; and Hidaldo County Community Servision and Corrections Department. The rationale for the Texas Commission on Alcohol and Drug Abuse's disagreement with comments received in response to various definitions is as follows. Chemical dependency counseling-the addition of the 12 core functions would not enhance this definition as suggested. To include family/client in the scope of chemical dependency counseling would broaden the services of a counselor in the chemical dependency field; Counselor intern-the title held while in the position represented during employment does not conflict with the designation of counselor intern status for the purposes stated for the licensure process; Twelve core functions-"headhunters" is appropriately addressed in sec.150.22 addressing ethics; Client-to include codependent and the treatment of family members in this definition would extensively broaden the scope of chemical dependency counseling; Actual and active experience-the recommendation for this new definition was declined because the definition of chemical dependency counseling addresses this activity. Recommendations for the exemption of nurses and parole officers from this chapter were declined because the commission does not have the authority to expand Texas Civil Statutes, Article 4512o, sec.150.3. The following comments were declined under sec.150.10, concerning licensure. The commission declined objections to requirement of photograph for application because of the need of identification of chemical dependency counselors for investigative purposes. The commission does not have authority to amend licensure statute, therefore, recommendations were declined for an increase in educational requirements of chemical dependency counselors and an objection to an oral exam due to possible discrimination. The issues of strengthening supervised work experience and the standardization of the 4,000 hours was appropriately addressed in the definition of supervised work experience and was declined under sec.150.10. The commission declined comments on the contradiction in exemptions addressed in the transition section with exemptions in the transition section because the rules are addressing two different methods of achieving licensure. Under sec.150.13, concerning license expiration; renewal, the objection to the requirement of cultural awareness and sensitivity training for licensure renewal was declined due to the necessity of licensed chemical dependency counselor to attain an awareness in this area and the suggestion for a definition for course work was declined as it was sufficiently addressed in the definition of continuing education. The suggestion for specificity in the training requirements in the 12 core functions was also declined under sec.150.13 to allow counselors the flexibility to acquire training in those areas within the 12 core functions that each counselor determined was most needed. Under sec.150.16, concerning disciplinary action; grounds, suggestions made in reference to payment for referral and the disclosure of financial arrangement with clients were declined as they were appropriately addressed in the ethics section under remuneration. The suggestion for the appropriate titles used and limitations of chemical dependency counselors was declined to allow for a broad base of experience within the structure of a particular organization under sec.150.22, concerning ethical standards. The new sections are adopted under Texas Civil Statutes, Article 4512o, which provide the Texas Commission on Alcohol and Drug Abuse with the authority to establish procedures which the commission is to license chemical dependency counselors. sec.150.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicant-A person who applies for a license under this chapter. Approved providers -Those individuals, partnerships, corporations, associations, organizations, organized health care systems, education institutions, governmental agencies, or private practitioners who have been approved and issued an education provider certificate by the commission. Chemical dependency counseling-Assisting an individual or group to develop an understanding of chemical dependency problems, define goals, and plan action reflecting the individual's or group's interest, abilities, and needs as affected by claimed or indicated chemical dependency problems. Chemical dependency counselor-A person who renders, for compensation, chemical dependency counseling or chemical dependency counseling-related services to an individual, group, organization, corporation, institution, or the general public, who implies that the person is licensed, trained, or experienced in chemical dependency counseling, and who holds a license issued under this chapter to engage in the practice of chemical dependency counseling. The following services shall not be deemed "counseling related services" within the meaning of this chapter: (A) services provided by a person within the scope of a healthcare license issued by the State of Texas; (B) services provided by a person certified by the Texas Department of Criminal Justice to individuals in the criminal justice system, when such services are provided within the scope of that certification. Commission-The Texas Commission on Alcohol and Drug Abuse. Continuing education -The variety of forms of learning experiences, including, but not limited to, lectures, conferences, academic studies, in- service education, institutes, seminars, and workshops undertaken by chemical dependency counselors for license renewal. Continuing education hour-At least 50 minutes of participation in an organized, systematic learning experience which deals with and is designed for the acquisition of knowledge, skills and information. Counselor intern -A student, intern, or trainee pursuing a course of study in chemical dependency counseling (or a closely related field) at a regionally accredited institution of higher education or training institution approved by the commission, who: (A) performs chemical dependency counseling activities and services as a part of his or her supervised course of study; (B) has completed 270 classroom hours of approved curricula, including no less than 135 classroom hours of chemical dependency specific education, and 135 classroom hours of chemical dependency related education; (C) has been designated a counselor intern by the regionally accredited institution of higher education or training institution at which he or she is enrolled; (D) does not act as a "counselor intern" for more than four years; (E) has made application to the commission, and been approved for counselor intern status, and has paid the counselor intern fee; (F) has met all other requirements contained in this definition, but has not yet completed 270 classroom hours of approved curricula, and who, on or before January 1, 1992, was engaging in chemical dependency counseling, provided, however, that the person shall be required to complete the 270 hours of approved curricula within the four-year period that such person is designated as a "counselor intern" by the commission. Person-An individual, firm, partnership, corporation, association, or other business or professional entity. Practice of chemical dependency counseling-Providing or offering to provide, for compensation, chemical dependency counseling services involving the application of the principles, methods, and procedures of the chemical dependency counseling profession. State-Includes any state, territory, or insular possession of the United States and the District of Columbia. Supervised work experience-Documented, verifiable, work experience, paid or voluntary, in the field of chemical dependency, which is performed under the direct supervision of a professional chemical dependency counselor or licensed health care professional, including work in the 12 core functions. Training institution -A training program or licensed practitioner approved by the commission as providing appropriate work experience to persons seeking to meet the requirements of sec.150.10(b)(5) of this chapter. Twelve core functions are: (A) screening. The process by which a client is determined appropriate and eligible for admission to a particular program; (B) intake. The administrative and initial assessment procedures for admission to a program; (C) orientation. Describing to the client: (i) general nature and goals of the program; (ii) rules governing client conduct and infractions that can lead to disciplinary action or discharge from the program; (iii) in a non-residential program, the hours during which services are available; (iv) treatment cost, if any, to be borne by the client; and (v) client's rights. (D) assessment. Those procedures by which a counselor/program identifies and evaluates and individual's strengths, weakness, problems, and needs for the development of the treatment plan; (E) treatment planning. Process by which the counselor and the client: (i) identify and rank problems needing resolution; (ii) establish agreed upon immediate and long-term goals; and (iii) decide on a treatment process and the resources to be utilized; (F) counseling (individual, group, and significant others). The utilization of special skills to assist individuals, families, or groups in achieving objectives through: (i) exploration of a problem and its ramifications; (ii) examination of attitudes and feelings; (iii) consideration of alternative solutions; and (iv) decision making. (G) case management. Activities which bring services, agencies, resources, or people together within a planned framework or action toward the achievement of established goals. It may involve liaison activities and collateral contracts; (H) crisis intervention. Those services which respond to an alcohol and/or drug abuser's needs during acute emotional and/or physical distress; (I) client education. Provision of information to individuals and groups concerning alcohol and other drug abuse and the available services and resources; (J) referral. Identifying the needs of the client that cannot be met by the counselor or agency and assisting the client to utilize the support systems and community resources available; (K) report and record keeping. Charting the results of the assessment and treatment plan, writing reports, progress notes, discharge summaries, and other client-related data; (L) consultation. Relating with one's own and other professionals to assure comprehensive, quality care of the client. sec.150.3. Exemptions. (a) A person is exempt from this chapter if the person: (1) does not engage in the practice of chemical dependency counseling in this state; (2) does not represent to the public, directly or indirectly, that the person is engaged in the practice of chemical dependency counseling in this state, or licensed under this chapter; and (3) does not use any name, title, or designation indicating that the person is licensed under this chapter. (b) This chapter does not apply to the activities and services of: (1) a person employed as a counselor by a federal institution, if the person is performing chemical dependency counseling within the scope of the person's employment; (2) a student, intern, or trainee pursuing a course of study in chemical dependency counseling (or a closely related field) at a regionally accredited institution of higher education or training institution approved by the commission if those activities and services constitute a part of the supervised course of study, and provided that the person meets the definition of counselor intern contained in this chapter, and is designated as a counselor intern by the commission; (3) a person who is not a resident of this state if: (A) the person does not engage in the practice of chemical dependency counseling in this state for more than 30 days during any 12-month period; and (B) the person is authorized to perform chemical dependency counseling activities and services under the laws of the state of the person's residence; (4) a licensed physician or psychologist; licensed professional counselor; certified social worker; religious leader of a congregation providing pastoral chemical dependency counseling within the scope of his or her duties; or school counselor certified by the Central Education Agency. (c) A person otherwise exempt under this section who elects to obtain a license under this chapter is subject to this chapter to the same extent as any other license holder. sec.150.4. Discrimination Prohibited. The consideration of a license application, the conduct of an examination, the establishment and enforcement of a rule, a disciplinary proceeding, and any other action and decision performed under this chapter shall be done without regard to the sex, race, religion, age, national origin, or handicaps of the person affected. sec.150.13. License Expiration; Renewal. A license issued under this chapter shall be valid for two years from the date of issuance. The expiration date shall be set forth on the license certificate. The biennial renewal fee is payable on renewal of the license before or on the expiration date. (1) Requirements for license renewal. In order to renew a license issued pursuant to this chapter, a person must: (A) make application to the commission for renewal of the license; (B) pay the application renewal fee; (C) complete at least 60 hours of continuing education approved by the commission including at least three hours of course work in each of the following areas: ethics, HIV education, cultural awareness and sensitivity, compulsive gambling, sexual abuse, and the 12 core functions in each two-year period in which the person holds a license; and (D) demonstrate to the commission that the applicant continues to meet the requirements set forth in sec.150.10(b)(1) and (10) of this title (relating to Licensure: Application; License Requirements; Issuance of License). (2) License renewal after date of expiration. Licenses issued pursuant to this chapter shall expire two years after the date of issuance. Should any person fail to renew a license issued under this chapter on or before two years from the date of issuance the following rules shall apply: (A) within 30 days from the date of expiration of the license, the commission shall notify the person in writing of the date of the license expiration, the amount of the renewal fee, and any continuing education provisions required to renew the license by sending a notice to the person at the address on file with the commission; (B) after 30 days, but within the first 90 days from the date of expiration of a license issued pursuant to this chapter, a person may renew the license by complying with the requirements set forth in subsection (a) of this section, and by paying to the commission a late renewal fee which shall be equal to one-half of the current examination fee for a license; (C) after 90 days, but within two years from the date of expiration of a license issued pursuant to this chapter, a person may renew the license by complying with the requirements set forth in subsection (a) of this section, and by paying to the commission a late renewal fee which shall be equal to the current examination fee for the license. (3) Renewal not allowed. After two years from the date of expiration of a license issued pursuant to this chapter, renewal of the expired license shall not be allowed. In order to obtain a license a person must comply with all of the requirements and procedures for obtaining an original license under this chapter. sec.150.16. Disciplinary Action; Grounds. The commission may refuse to issue or renew a license, place on probation a license holder whose license has been suspended, reprimand a license holder, or revoke or suspend a license issued under this chapter for: (1) violating or assisting another to violate this chapter, Texas Civil Statutes, Article 4512o, or a rule of the commission adopted pursuant thereto; (2) circumventing or attempting to circumvent this chapter, Texas Civil Statutes, Article 4512o, or a rule of the commission adopted pursuant thereto; (3) participating, directly or indirectly, in a plan the purpose of which is the evasion of this chapter, Texas Civil Statutes, Article 4512o, or a rule of the commission adopted pursuant thereto; (4) engaging in false, misleading, or deceptive conduct as defined by the Business and Commerce Code, sec.17.46; (5) engaging in conduct that discredits or tends to discredit the profession of chemical dependency counseling; (6) revealing or causing to be revealed, or indirectly, a confidential communication made to the licensed chemical dependency counselor by a client or recipient of services, except as required by law; (7) having a license to practice chemical dependency counseling in another jurisdiction refused, suspended, or revoked for a reason that the commission finds would constitute a violation of this chapter, Texas Civil Statutes, Article 4512o, or a rule of the commission adopted pursuant thereto; or (8) refusing to perform an act or service for which the person is licensed to perform under this chapter on the basis of the client's or recipient's sex, race, religion,age, national origin, or handicaps. sec.150.17. Disciplinary Action; Procedure. (a) Complaints. A person may file a complaint alleging a violation of this chapter, Texas Civil Statutes, Article 4512o, or a rule of the commission adopted pursuant thereto, by filing a charge with the commission in writing and under oath. After investigation, if the commission determines that disciplinary action is warranted it shall follow the procedures set forth in subsections (b)- (g) of this section. The commission shall keep an information file on each complaint or charge filed. The commission shall inform each party quarterly in writing as to the status of the complaint during the consideration of a charge filed under this section until the charge is finally resolved. (b) Notice of intent to take disciplinary action. Whenever the commission proposes to take disciplinary action against a person, including refusal to issue a license, refusal to renew a license, suspension or revocation of a license, or issuance of a formal reprimand, the person shall be given written notification by the issuance of a notice of intent to take disciplinary action, which shall be mailed to the person by registered or certified mail at the address on file at the commission. (c) Show cause hearing before executive director. Any person who has been issued a notice of intent to take disciplinary action, under subsection (b) of this section, shall be entitled to submit within 30 days of mailing of such notice, a request for hearing before the executive director and shall be given the opportunity to show cause why such disciplinary action should not be taken by the commission. At the show cause hearing the person shall have the right to introduce evidence, to call witnesses, and to cross-examine witnesses who testify in support of the commission's proposed disciplinary action. The commission shall be entitled to submit evidence through affidavits and documentation, or through the testimony of witnesses. The rules of evidence shall not apply. The executive director shall decide whether or not the show cause hearing shall be recorded. (d) Notice of denial, refusal, suspension, or revocation of a license; notice of formal reprimand. After a show cause hearing under subsection (b) of this section, or after 30 days from the mailing of the notice of intent to take disciplinary action, if a show cause hearing was not requested the person shall be given written notification of the decision of the executive director as to the proposed disciplinary action. If the executive director decides to uphold the proposed disciplinary action, a notice of denial, refusal, suspension, or revocation of a license or notice of formal reprimand shall be issued to the affected person, who shall also be provided with written notification by registered or certified mail of the grounds upon which such action was taken, and the procedure for seeking an appeal. (e) Contested cases; administrative review. A person who has been issued a notice of denial, refusal, suspension, or revocation of a license or a notice of formal reprimand shall have the right to contest such disciplinary action by the commission pursuant to the procedures set forth for administrative review of contested cases in the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a), provided however, within 30 days from the mailing of the notice of denial, refusal, suspension, or revocation of a license, the person shall be required to give notice to the commission of the person's intent to contest such disciplinary action. (f) Final action. Unless contested pursuant to the procedures set forth in subsection (e) of this section or as otherwise required by law, the commission's disciplinary action shall become final 31 days after mailing of the notice of denial, refusal, suspension, or revocation of a license or notice of formal reprimand, and shall not thereafter be subject to appeal or review. (g) Probation of a license which has been suspended or revoked. When a license has been suspended or revoked by the commission, the commission may order that the revocation or suspension be probated as long as the license holder complies with the terms of probation established by the commission. The commission shall determine the length of the probationary period at the time the probation is ordered. At any time while the license holder is on probation, the commission may hold a hearing and on majority vote rescind the probation and enforce the commission's original action in revoking or suspending the license. sec.150.20. Transition. (a) A person shall not be required to obtain a license under this chapter until January 1, 1992. (b) On or before January 1, 1992, but before August 31, 1993, the commission may, upon application to the commission and payment of the application and licensure fee, issue a license to a person who has not taken the chemical dependency counselor examination required by sec.150.10 of this title (relating to Licensure: application; License Requirements; Issuance of License), provided that: (1) on or before January 1, 1992, the person: meets the requirements of sec.150. 10(a), and sec.150.10(b)(1), (2), (3), (10), and (12); and (2) on or before October 1, 1991, the person: (A) is certified as an alcohol and drug abuse counselor by the Texas Association of Alcohol and Drug Abuse Counselors; or (B) holds a baccalaureate degree or higher in chemical dependency counseling or in sociology, psychology, criminology, or other related fields, including, without limitation, social work, criminal justice, public health and nursing, conferred by an educational program approved by the commission and has successfully completed two years of actual and active chemical dependency counseling experience approved by the commission. sec.150.22. Ethical Standards. (a) Discrimination not allowed. The licensed chemical dependency counselor shall not discriminate against any client or other person on the basis of sex, race, religion, age, national origin, or handicap. (b) Responsibility. The licensed chemical dependency counselor shall maintain objectivity, integrity, and the highest standards in the provision of services to the client. (c) Competence. The licensed chemical dependency counselor shall: (1) endeavor to prevent the practice of chemical dependency counseling by unqualified or unauthorized persons; (2) report violations of Texas Civil Statutes, Article 4512o, or rules adopted thereto, including, without limitation, violations of this section, to the commission; (3) be required to recognize the limitations of his or her ability or utilize techniques which exceed that counselor's professional competence; (4) not engage in the practice of chemical dependency counseling if impaired by, intoxicated by, or under the influence of chemicals, including, alcohol; (5) support peer assistance programs. (d) Legal standards and professional conduct. The licensed chemical dependency counselor shall uphold the law and refrain from unprofessional conduct. In so doing, the licensed chemical dependency counselor shall: (1) not make any claim, directly, or by implication, that the counselor possesses professional qualifications or affiliations that the counselor does not possess; (2) not mislead or deceive the public, or any person, in any way; (3) not promote, develop, market, profit from, or associate himself or herself with any commercial product, unless the counselor has determined that such commercial product does not tend to mislead the public, is factually accurate, and is consistent with the ethical standards of the profession as set forth in this section; (4) not commit any crime of moral turpitude, or any act which might tend to discredit the profession; (e) Public statements. The licensed chemical dependency counselor shall: (1) report information fairly and accurately to clients, other professionals, and the general public, and shall not make inappropriate, unprofessional, or inaccurate representations; (2) acknowledge the work of others, and shall document materials and techniques used in the performance of the counselor's professional services; (3) be required to advise all persons the counselor instructs or provides training to, in the skills, or techniques of chemical dependency counseling, of the requisite training or qualifications required to properly perform such skills or techniques. (f) Publication credit or acknowledgment. The licensed chemical dependency counselor shall give credit to, or expressly acknowledge all persons or works which have contributed to or directly influenced any publication of the counselor. (g) Client welfare. The licensed chemical dependency counselor shall respect a client's dignity, and shall not engage in any action injurious to the welfare of any client or person to whom the counselor is providing services. The licensed chemical dependency counselor shall: (1) remain loyal and professionally responsible to the client at all times, and shall inform the client of the counselor's loyalties and responsibilities; (2) not engage in any activity which could be considered a professional conflict, and shall be required to immediately remove himself or herself from such conflict should one arise; (3) terminate any professional relationship or counseling service which is not beneficial, or is in any way detrimental to the client; (4) always act in the best interest of the client; (5) never require a client to divulge confidential information obtained from another professional, without obtaining the express, and informed consent of the professional and the client, which informed consent shall contain the purposes for which such information shall be used; (6) not engage in the practice of chemical dependency counseling in settings or locations which are inappropriate, harmful to the client or others, or would tend to discredit the profession of chemical dependency counseling. (h) Confidentiality. The licensed chemical dependency counselor shall protect the privacy of all clients and, unless required by law, without express written consent, shall not disclose confidential information, however acquired. The licensed chemical dependency counselor shall remain cognizant of and obey all state and federal laws and regulations relating to confidentiality of chemical dependency treatment records, and shall: (1) inform the client, and obtain the client's consent, before recording the client, allowing another person to observe or monitor the client, or using client records for any purpose other than the provision of chemical dependency treatment of that client; (2) ensure the maintenance of confidentiality with respect to client records; (3) not discuss or dilvulge information obtained in clinical or consulting relationships except in appropriate settings, for professional purposes which clearly relate to the case; (4) make every effort to avoid invasion of the privacy of the client; (5) not reveal client identifying information, except as is required by law, without the express, written consent of the client. (i) Client relationships. The licensed chemical dependency counselor shall inform the client about all relevant and important aspects of the professional relationship between the client and the counselor, and shall: (1) in the case of clients who are not their own consentors inform the client's parent(s) or legal guardian(s) of circumstances which might influence the professional relationship; (2) not enter into a professional relationship with members of the counselor's family, close friends or associates, or others whose welfare might be jeopardized in any way by such relationship; (3) not engage in any type or form of sexual activity with a client. (j) Relationships with other professionals. The licensed chemical dependency counselor shall treat other professionals with respect, courtesy, and fairness, and shall: (1) not offer to provide, or provide professional services to a client who is undergoing chemical dependency treatment by another professional except with the knowledge of the other professional, and consent by the client, unless and until termination of chemical dependency treatment by the other professional; (2) cooperate with professional peer review groups or programs, professional ethics committees or associations, and shall promptly supply all requested or relevant information unless prohibited by law. (k) Remuneration. The licensed chemical dependency counselor shall, in advance of treatment, establish financial arrangements with the client, which shall be in accordance with professional standards in the relevant community, including, without limitation, informing the client of the counselor's fee schedule for all treatment services to be provided to the client, and shall: (1) not charge exorbitant or unreasonable fees for any treatment service; (2) not pay or receive any commission, consideration, or benefit of any kind related to the referral of a client for treatment; (3) not engage in fee splitting with other professionals, without the written consent of the client; (4) not use the client relationship for the purpose of personal gain, or profit, except for the normal, usual charge for treatment provided; (5) not provide treatment to a client, or accept a professional fee or any gift or gratuity from a client if the client is entitled to chemical dependency treatment free of charge, or at minimal cost to the client, through an agency or other institution, unless the client consents in writing. (l) Professional obligations. The licensed chemical dependency counselor shall support changes in public policy and legislation which advocate the provision of chemical dependency treatment for individuals impaired by chemical dependency of any kind, and shall inform the public through active participation in community affairs of the effects of chemical dependency, and shall: (1) make every effort to provide access to treatment, including advising clients about resources and services, taking into account the financial constraints of the client; and (2) in all activities of the profession, act to promote the welfare of all human beings. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116198 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: January 10, 1992 Proposal publication date: October 18, 1991 For further information, please call: (512) 867-8720 Department on Aging Chapter 292. Implementation of the OPTIONS for Independent Living Program Policies and Procedures 40 TAC sec.sec.292.1, 292.7, 292.9, 292.11 The Texas Department on Aging adopts amendments to sec. sec.292.1, 292.7, 292.9, and 292.11, without changes to the proposed text as published in the September 27, 1991, issue of the Texas Register (16 TexReg 5318). The amendments provide clarification regarding; the persons to be served coordination with Texas Department of Human Services, client co-payment, and service requirements. The section will function to strengthen the board on aging's policies and procedures governing the OPTIONS for Independent Living Program. No comments were received regarding adoption of the amendments. The amendments are adopted under the Human Resources Code, Chapter 101, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 18, 1991. TRD-9116345 Polly Sowell Executive Director Texas Department on Aging Effective date: January 13, 1992 Proposal publication date: September 27, 1991 For further information, please call: (512) 444-2727 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 31. Division of Public Transportation General 43 TAC sec.31.3 The Texas Department of Transportation adopts an amendment to sec.31.3, concerning definitions, without changes to the proposed text as published in the October 11, 1991, issue of the Texas Register (16 TexReg 5732). The adoption of this amended section is due to the recent passage of House Bill 235, 72nd Legislature, 1991, and House Bill 9, 72 Legislature, First Called Session, 1991, effective September 1, 1991, which necessitates the promulgation of amendments to rules describing the administration of state public transportation grant programs. The amended section revises the definition of "authority" in keeping with the statutory revisions. The remaining changes in this section are due to the recent name changes of the department, commission, members of the staff. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and more specifically to administer the state public transportation programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116216 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: January 10, 1992 Proposal publication date: October 11, 1991 For further information, please call: (512) 463-8630 State Programs 43 TAC sec.31.11, sec.31.13 The Texas Department of Transportation adopts amendments to sec.31.11, concerning formula program, and sec.31.13, concerning discretionary program, without changes to the proposed text as published in the October 11, 1991, issue of the Texas Register (16 TexReg 5733). The adoption of the amended sections is due to the recent passage of House bill 235, 72nd Legislature, 1991, and House Bill 9, 72nd Legislature, First Called Session, 1991, effective September 1, 1991, which necessitates the promulgation of amendments to rules describing the administration of state public transportation grant programs. An authority, as that term is defined in sec.31.3 and is simultaneously being amended, is no longer eligible to receive monies under the formula or discretionary state programs. The amendments describe how the available public transportation funds are now split equally between transit systems in urbanized areas of 50,000 or greater population, including those in cities not served by authorities that exist in that urbanized area, and systems in nonurbanized areas. No comments were received regarding adoption of the amendments. The amendment is adopted under Texas Civil Statutes, Article 6666, 6663b, and 6663c, which provide the Texas Transportation Commission with the authority to promulgate rules and regulations for the conduct of the work of the Texas Department of Transportation, and more specifically to administer the state public transportation programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on December 20, 1991. TRD-9116217 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: January 10, 1992 Proposal publication date: October 11, 1991 For further information, please call: (512) 463-8630