Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 17. Marketing and Development Division 4 TAC sec.sec.17.80-17.87 The Texas Department of Agriculture adopts new sec.sec.17.80-17.87, concerning standards for "Naturally Texas" products, without changes to the proposed text as published in the June 23, 1992, issue of the Texas Register (17 TexReg 4506). The new sections establish a voluntary natural fiber marketing promotion to promote the sales of Texas grown and processed natural fibers, and to promote the sale of natural fiber value-added products manufactured in Texas. The new sections provide definitions; provide requirements and procedures for filing an application to use the "NATURALLY TEXAS" mark; state a basis for denial of an application; establish a register of approved applicants; provide for annual registration and for payment of a registration fee; and provide procedures for termination of permission to use the "NATURALLY TEXAS" mark. No comments were received regarding adoption of the new sections. The new sections are adopted under the Texas Agriculture Code, sec.12.002, which provides the Texas Department of Agriculture with the authority to encourage the proper development of agriculture, horticulture, and related industries; sec.12.016, which provides the department with the authority to adopt rules as necessary for the administration of sec.12.002; and sec.12.0175, which provides that if the department establishes a program to promote products grown in the state or products made from ingredients grown in the state, the department may set by rule and collect a fee from each producer that participates in the program. 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 July 30, 1992. TRD-9210505 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: August 8, 1992 Proposal publication date: June 23, 1992 For further information, please call: (512) 463-7583 TITLE 10. COMMUNITY DEVELOPMENT Part IV. Texas Department of Housing and Community Affairs Chapter 49. Low-Income Rental Housing Tax Credit Rules 10 TAC sec.sec.49.1-49.14 The Texas Department of Housing and Community Affairs adopts new sec.sec.49. 1-49.14, concerning low-income rental housing tax credit rules, without changes to the proposed text as published in the May 15, 1992, issue of the Texas Register (17 TexReg 3529). The new rules are adopted to established procedures for administering the department's Low-Income Rental Housing Tax Credit Program. The new sections provide procedures for allocation, by the department, of certain low-income rental housing tax credits available under federal income tax laws to owners of qualified low-income rental housing projects, thereby enhancing the state's ability to provide safe, decent, and sanitary housing for Texans. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 4413(501), which provide the Texas Department of Housing and Community Affairs with the authority to adopt rules governing the administration of the department and its programs and Executive Order AWR-91-4 (June 17, 1991), which provides this department with the authority to make housing credit allocations in the State of Texas. 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 July 29, 1992. TRD-9210377 Susan J. Leigh Executive Director Texas Department of Housing and Community Affairs Effective date: August 19, 1992 Proposal publication date: May 15, 1992 For further information, please call: (512) 475-3917 TITLE 22. EXAMINING BOARDS Part XXIX. Texas Board of Professional Land Surveying Chapter 663. Standards of Responsibility and Rules of Conduct Ethical Standards 22 TAC sec.663.1 The Texas Board of Professional Land Surveying adopts an amendment to sec.663.1, ethical standards, without changes to the proposed text as published in the June 16, 1992, issue of the Texas Register (17 TexReg 4327). The amendment outlines methods that registrants must use to notify clients of the board's name, address, and telephone number for the purpose of directing complaints to the board. Service recipients will have the name, address, and telephone number of the board if they wish to file a complaint. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 5282c, sec.9, which provide the Texas Board of Professional Land Surveying with the authority to make and enforce all reasonable and necessary rules, regulations, and bylaws not inconsistent with the Texas Constitution, the laws of this state, and 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 July 29, 1992. TRD-9210404 Sandy Smith Executive Director Texas Board of Professional Land Surveying Effective date: September 1, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 452-9427 Professional and Technical Standards 22 TAC sec.sec.663.13, 663.15-663.19 The Texas Board of Professional Land Surveying adopts new sec.sec.663.13, and 663.15-663.19, concerning professional and technical standards. Section 663.19 is adopted with changes to the proposed text as published in the June 16, 1992, issue of the Texas Register (17 TexReg 4328). Sections 663.13, 663.15, 663.16, and 663.18 are adopted without changes and will not be republished. The new sections are adopted to implement the Professional Land Surveying Practices Act, sec.9 and to provide the public with reliable surveying services. In sec.663.19(2)(g) and (h) the word "sited" has been changed to "cited." These were inadvertent typographical errors. Rule sec.663.20 was withdrawn due to controversy. The rules will prescribe minimum standards for professional surveyors, thus providing the public with a better surveying product. Thirteen comments were received. No comments were received regarding sec.sec.663.13-663.19. Comments were all regarding sec.663.20. Proposed sec.663.20 is currently being withdrawn. The name of groups and associations making comments for and against the section are as follows: for: Texas Society of Professional Surveyors-sec.sec.663. 13- 663.19; against: Texas Society of Professional Surveyors-sec.663.20 (withdrawn). The Texas Board of Professional Land Surveying agreed with comments and withdrew sec.663.20. The new sections are adopted under Texas Civil Statutes, Article 5282c, which provide the Texas Board of Professional Land Surveying with the authority to make and enforce all reasonable and necessary rules, regulations, and bylaws not inconsistent with the Texas Constitution, the laws of this state, and this Act. sec.663.19. Plat/Description/Report. For the purposes of these rules the word "report" shall mean any or all of the following survey plat, descriptions, or separate narratives. (1) All reports shall delineate the relationship between record monuments and the location of boundaries surveyed, such relationship shall be shown on the survey plat, if a plat is prepared, and/or separate report and recited in the description with the appropriate record references recited thereon and therein. (2) Every description prepared for the purpose of defining boundaries shall provide a definite and unambiguous identification of the location of such boundaries and shall describe all pertinent monuments found or placed. (3) Every survey plat prepared shall be to a convenient scale and shall provide a definite and unambiguous representation of the location of the surveyed land according to its record description. Where material discrepancies are found between the record and the conditions discovered, the surveyor shall apprise his/her client in the following manner: (A) if a plat of survey is prepared, the surveyor shall: (i) make specific reference to the discrepancy on the plat of survey; or (ii) make a general reference to the discrepancy on the plat of survey and a specific reference to a report of survey which more specifically describes the discrepancy. (B) if a survey plat is not prepared, the surveyor shall notify his/her client of any material discrepancy by report of survey or other written notice. (4) Courses shall be referenced by notation upon the survey plat to an identifiable line for directional control. (5) The survey plat shall bear the name of the land surveyor responsible for the land survey, his/her official seal, his/her original signature (see sec.661.46 of this title (relating to Seal and Stamps)), and date surveyed. (6) Boundary monuments found or placed by the surveyor shall be described upon the survey plat, including those controlling monuments to which the survey may be referenced. The surveyor shall note upon the survey plat which monuments were found and which monuments were placed as a result of his/her survey. (7) A reference shall be cited on the plat to the record instrument which defines the location of adjoining boundaries. (8) When appropriate, reference shall be cited in the description prepared to the record instrument which defines the location of adjoining boundaries. (9) If any report consists of more than one part, each part shall note the existence of the other part or parts. 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 July 29, 1992. TRD-9210406 Sandy Smith Executive Director Texas Board of Professional Land Surveying Effective date: September 1, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 452-9427 Chapter 664. Continuing Education 22 TAC sec.sec.664.3, 664.4, 664.7, 664.8, 664.9, 664.11 The Texas Board of Professional Land Surveying adopts amendments to sec.sec.664.3, 664.4, 664.7, 664.8, 664.9, and 664.11, without changes to the proposed text as published in the June 16, 1992, issue of the Texas Register (17 TexReg 4329). The amendments are adopted to implement the requirements required in the Professional Land Surveying Practices Act, sec.17. The benefits of enforcing the sections as adopted will be better educated registered professional land surveyors. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 5282c, which provide the Texas Board of Professional Land Surveying with the authority to make and enforce all reasonable and necessary rules, regulations, and bylaws not inconsistent with the Texas Constitution, the laws of this state, and 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 July 29, 1992. TRD-9210405 Sandy Smith Executive Director Texas Board of Professional Land Surveying Effective date: September 1, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 452-9427 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 229. Food and Drug Minimum Standards for Approved Narcotic Drug Treatment Programs The Texas Department of Health (department) adopts amendments to sec.sec.229.141-229.142, 229.144-229.147, and 229.150-229.152; new sec.229.148 and the repeal of existing sec.229.148. Sections 229.145-229.148 and 229.150 are adopted with changes to the proposed text as published in the March 10, 1992 issue of the Texas Register (17 TexReg 1803). Sections 229.141-229.142, 229.144, 229.151-229.152, are adopted without changes and will not be republished. These sections establish minimum licensing and operating standards for approved narcotic drug treatment programs pursuant to the requirements of the Health and Safety Code (code), Chapter 466. The amendments update and clarify the existing language. The primary area of change in the amendments is the elimination of the 30-day compliance period, which will in turn eliminate chronic violations of the code and eliminate potential health hazards associated with these violations. Section 229.148 eliminates requirements that are no longer applicable and further defines the roles of program physicians and medical directors, especially in the areas of admitting patients to treatment, determining a patient's addiction, and approving take-home medications. The rules also require stricter adherence to the eight point criteria in assessing patients for take-home medications, enhance physician oversight in the treatment of patients, and prohibit the location of new narcotic treatment programs within a three-mile radius of an existing program. The following comments were received during the comment period regarding the proposed rules. COMMENT: Concerning the preamble, several commentors stated that the regulations would necessitate hiring additional staff. RESPONSE: The department agrees that the regulations could necessitate the hiring of additional staff by some narcotic treatment programs (NTP), but the requirements contained in the proposed rules which may require additional staff have been previously required by federal regulation or currently required by other authorities. COMMENT: Concerning the preamble, commentors stated that requirements to register/permit with the department and the Texas Commission on Alcohol and Drug Abuse (TCADA) will add an increased expense to the narcotic treatment programs. RESPONSE: The department agrees but the requirement for permits from this department and the TCADA is established statutorily. COMMENT: Concerning the preamble, two commentors described the general effect on the economy and judicial system if opiate-addicted patients leave treatment due to new restrictions established by this department. RESPONSE: The department's response is that the rules are not designed to exclude or deny the treatment of any patient. COMMENT: Concerning sec.229.144(c), a commentor stated that reporting a death that may be methadone related was not possible because death certificates to confirm methadone related deaths are not available from the Health Department for five-six weeks and that autopsies on deaths occurring in a hospital require a release from the next of kin. RESPONSE: The department disagrees since the section addresses the necessity of reporting deaths which may be methadone related, not necessarily confirmed as methadone related. There is no requirement that death certificates be provided to report these deaths. COMMENT: Concerning proposed sec.229.145(a)(2), department staff made a recommendation for licensure with the Texas Commission on Alcohol and Drug Abuse (TCADA). RESPONSE: The department has added a requirement for the NTP to be licensed with the Texas Commission on Alcohol and Drug Abuse (TCADA). COMMENT: Concerning sec.229.145(a)(5), two commentors said that increased costs associated with hiring additional counselors might result in patients dropping out and returning to illicit drug use and behavior. Another thought it was inhumane to refuse requested treatment based on this requirement. RESPONSE: The department disagrees, since this was previously required by the federal law and was omitted in their last revision. It is also required by one of the other licensing agencies. In response to this comment, however, the department has addressed the concern by amending the final sec.229.145(a)(5) to read "counselors employed" not "full time counselors employed", and permits temporary exemptions to this requirement to permit hiring of additional staff when new patient admissions causes the NTP to exceed the ratio. COMMENT: Concerning sec.229.145(a)(6), several commentors agreed with this proposal. One commentor who disagreed stated that certain areas may need more than one clinic due to patient population and the possibility of having a private and public program in the same area. One commentor suggested that this would violate the Texas Free Trade Act. The same commentor questioned whether existing clinics would be grandfathered or a decision made to move one of the clinics. RESPONSE: The department disagrees because proximity has been one element responsible for the reduced compliance with state and federal regulations, but will exempt existing programs currently operating within the three-mile radius of each other. COMMENT: Concerning sec.229.146(a), a commentor expressed concern that "threatening to violate" the code inhibits the free expression of ideas. RESPONSE: The department disagrees since it addresses potential violation of the rules rather than the free expression of ideas. COMMENT: Concerning sec.229.146(b), a commentor stated that funds would be requested from government agencies if additional personnel were needed to take care of patients from closed clinics. Another commented that requiring a physician to accept patients infringed upon a physician's right to determine who to treat. RESPONSE: The department agrees since it should not be mandatory that a program treat a patient from a closed program, and in response to the comment, sec.229.146(b) is amended for clarification. COMMENT: Concerning sec.229.147(a), a commentor stated that everyone deserved 30 days to correct violations and that chronic violators would be eliminated on subsequent 30 days extensions. RESPONSE: The department disagrees as this has contributed to chronic violations and inability of the State Methadone Authority to take effective actions. COMMENT: Concerning proposed sec.229.148(a), several commentors stated that the proposal to eliminate transfer patients would unfairly punish and restrict patients who have legitimate and necessary need to transfer. Several also mentioned the added effort and expense of new admission procedures and test. RESPONSE: The department agrees and has eliminated the proposed subsection (a) and has relettered subsequent subsections. COMMENT: Concerning proposed sec.221.148(b), numerous commentors opposed the change to decrease the number of take home doses allowed. Many suggested that twice a week dosing would force unacceptable hardship on those patients who work in jobs such as construction and offshore drilling that require travel away from the treatment center for more than three days. Others mentioned the added expense, time and job interruptions for increased clinic attendance for those who live great distances from the treatment center. Several commentors stated that reducing six-day take home privileges would punish those patients who had earned that right and also would remove an important incentive for patient compliance. In addition some commentors stated that increased restrictions and expenses would result in reduced admissions and higher dropout for those patients who for whatever reasons can't comply. Several commentors stated that careful consideration of the eight point criteria and patient history would be more effective in controlling problems with methadone overdosage and diversion. One commentor suggested restricting methadone take home supplies to a uniform total amount in milligrams. RESPONSE: The department agrees and has eliminated the proposed subsection (b) and has relettered subsequent subsections. The department disagrees with the final commentor as doses must be individualized per treatment level. COMMENT: Concerning proposed sec.229.148(c), numerous commentors stated that many situations (such as illness, family tragedies and job opportunities) require a faster response time than would be provided by this procedure. One commentor stated that take home exception decisions were best left to the discretion of the physician. Other commentors thought the proposal would be too time-consuming and that a phone call followed by a letter would suffice. RESPONSE: The department agrees and has made changes to the final sec.229. 148 (a). COMMENT: Concerning proposed sec.229.148(d), one commentor expressed concern that this change would restrict obtaining additional methadone supplies in emergency situations. RESPONSE: The department disagrees, but has made changes to final sec.229. 148(b) for clarification purposes. COMMENT: Concerning proposed sec.229.148(e), numerous commentors mentioned the possibility of false positives inherent with this type of urinalysis. Several mentioned the necessity to confirm positive results with more expensive chain of custody testing to assure accurate results and protect the legal liability of the treatment program. Several commentors thought the punishment was too severe since addiction is considered a chronic disorder subject to relapsing patterns of behavior. In addition, several commentors stated that this would place too much clinical reliance on urine tests for patient compliance when other factors were just as important to consider. RESPONSE: The department agrees and has eliminated the proposed subsection (e). COMMENT: Concerning proposed sec.229.148(f), a commentor said the word "consider" was ambiguous. RESPONSE: The department agrees and has clarified the final sec.229.148(c) with the words "adhere to". COMMENT: Concerning proposed sec.229.148(h), one commentor expressed concern that all patients would be allowed one take home per week regardless of their level of responsibility and the commentor suggested that provisions be made for seven day per week dispensing in all clinics. RESPONSE: The department agrees, but since this would require a substantive change the department will regulate this in accordance with Title 21, Code of Federal Regulations and has eliminated the proposed subsection (h). COMMENT: Concerning proposed sec.229.148(i), one commentor stated that the word "readmitted" implies that the patient has been discharged. The meaning is not clear. RESPONSE: The department agrees and has made the necessary correction by eliminating the proposed subsection (i). COMMENT: Concerning proposed sec.229.148(j), one commentor stated that a physical disability could be adequately documented by the program physician without consulting an outside physician and that chronic disabilities such as blindness should not require updating. RESPONSE: The department agrees and has made the necessary correction by eliminating the proposed subsection (j). COMMENT: Concerning proposed sec.229.148(k), one commentor stated that consideration be given to patients who must travel great distances from their home to the clinic. In addition several commentors suggested that a one-week limitation on take home exceptions would not be enough to allow for certain situations. RESPONSE: The department disagrees since travel in and of itself is not considered a hardship. Special requests are considered on an individual basis and the department agrees that the time limit should be increased to two weeks and has made the necessary change in the rules. (See final sec.229.148(e).) COMMENT: Concerning proposed sec.229.148(l), one commentor stated that taking excessive holidays had not been a problem in the past and that consideration should be made for inservice training for counselor and nursing licensure. RESPONSE: The department disagrees because numerous NTPs had holiday schedules which differed greatly from the state holiday schedule. The department has added clarification to final sec.229.148(f) to address special patients on methadone doses greater that 100mg or patients in long or short term detoxification or others deemed to be irresponsible patients by the program physician. COMMENT: Concerning proposed sec.229.148(q), a commentor expressed desire for more language encouraging access to prenatal care. RESPONSE: The department agrees and has made the suggested change. COMMENT: Concerning proposed sec.229.148(s), a commentor suggested more language requiring a letter from the patient's personal physician stating knowledge of the patient being on methadone, and additional information needed in the patient's chart regarding any outside prescriptions. Another commentor stated that many patients take numerous prescriptions drugs and that documenting each one would be too time consuming. RESPONSE: The department agrees with the first commentor and has made the suggested change. The department disagrees with the second commentor since lack of such documentation could be harmful to the patient due to potential drug interactions. The program physician needs to be aware of all medications the patient is taking. (See final sec.229.148(m).) COMMENT: Concerning proposed sec.229.148(u), department staff made a recommendation to add a requirement for patients known to be enrolled in more than one NTP at a time. RESPONSE: The department has added a six month probationary period requiring a minimum of six days per week attendance for patients known to be enrolled in more than one NTP at a time. (See final sec.229.148(o).) COMMENT: Concerning proposed sec.229.148(v), one commentor questioned whether the first sentence meant a one-year or a permanent restriction. If permanent was intended the commentor was concerned about the rule being in conflict with rehabilitation laws. RESPONSE: The department agrees and has made the change to clarify this concern. (See final sec.229.148(p).) COMMENT: Concerning proposed sec.229.148(v), one commentor stated that restricting former addicts access to the drug dispensing area conveyed a lack of trust to the staff. RESPONSE: The department disagrees. A one-year restriction from access is a precautionary measure to prevent possible diversion of methadone and several commentors supported this proposal. (See final sec.229.148(p).) COMMENT: Concerning proposed sec.229.148(x), one commentor suggested that no clients should receive more than 30mg of methadone initially and no more than a total of 40mg of methadone on the first day. RESPONSE: The department disagrees since doses need to be determined on a individual basis and are dependent upon the physician's diagnosis. (See final sec.229.148(r).) COMMENT: Concerning proposed sec.229.148(y), one commentor agreed with the two- week time period but suggested that depending on circumstances and the eight point criteria, the patient should be allowed to readmit without all the restrictions and requirements of a new admission. RESPONSE: The department agrees and has made the necessary change to provide for special exemptions. (See final sec.229.148(s).) COMMENT: Concerning proposed sec.229.148(aa), several commentors objected to the added time and expense associated with transcribing patient files into printed format. One commentor suggested issuing citations to offenders. Another commentor requested clarification of what is meant by "transcribe". RESPONSE: The department agrees and has clarified this requirement. (See final sec.229.148(u).) COMMENT: Concerning proposed sec.229.148(cc), one commentor stated that due to high turnover in clerical and support personnel that requiring notification of any change in employment status would place a burden on the program. RESPONSE: The department disagrees since regulatory history has demonstrated a need for this information. (See final sec.229.148(w).) COMMENT: Concerning proposed sec.229.148(dd), one commentor stated that the language is vague since there is no counselor "approval" process at the TCADA but a licensing process. Several commentors stated that certified alcohol and drug abuse counselor (CADAC) training did not adequately address the special problems of opiate addiction and methadone treatment. Another commented that some CADAC's have a history of substance abuse and do not necessarily make good counselors. RESPONSE: The department agrees that the language needs clarification and has made the necessary change. The department disagrees with the other commentors and, for the sake of uniformity with TCADA requirements, has changed this to require licensing of counselors. (See final sec.229.148(x).) COMMENT: Concerning proposed sec.229.148(dd), several commentors suggested that a reference be made to the exemptions from licensing as stated in the TCADA rules. RESPONSE: The department agrees and the appropriate language has been added. (See final sec.229.148(x).) COMMENT: Concerning sec.229.150(e)(1), two commentors stated that clients should continue to be allowed temporary treatment services on an emergency or exceptional basis from other clinics as allowed in the federal regulations as long as prior coordination and approval is obtained from the home clinic. RESPONSE: The department agrees at this time and has expanded this provision. COMMENT: Concerning sec.229.150(e)(2)(C)(ii)-(vi), as a result of the previous comment department staff recommended a change. RESPONSE: The department has retained current patient statuses as explained in a previous response. COMMENT: Concerning sec.229.150(e)(2)(D)(i), several commentors stated that many patients do not have and are reluctant to obtain a picture I.D. from a government agency and this requirement may prevent some from seeking treatment. Another commenter pointed out that a social security card and medical records do not contain a photograph. Two commentors from border communities suggested that residency cards with photographs be allowed as identification. Several commentors stated that a photograph should not be placed in the patient file or central registry due to privacy issues. RESPONSE: The department disagrees since the identity of the patient may be important to both the NTP and SMA. This is particularly true in identifying multiple enrollments. There is no requirement that a photo be provided for the central registry, and patient confidentiality is not compromised. COMMENT: Concerning sec.229.151(d)(5), one commentor stated that other drugs that are not addictive work better than methadone in the treatment of opiate dependence, such as "Catapres". RESPONSE: The department disagrees since this is considered by the United States Food and Drug Administration (FDA) as unauthorized use of an approved drug. The commentors were the El Paso Methadone Maintenance and Detoxification Treatment Center, Austin Travis County Methadone Treatment Program, Corpus Christi Drug Abuse Council, The Center for Health Care Services, Aeschbach and Associates, Texas Clinic, Best Recovery, Toxicology Associates, Huntsville Clinic, Life Management Center, West Texas Counseling and Rehabilitation Program, Narcotics Withdrawal Center, Port Arthur Drug Abuse Program, Drug Dependence Associates, Houston Substance Abuse Clinic, La Hacienda Treatment Center. In addition, numerous individuals commented with one individual opposing the rules in its entirety. All other commentors were not against the rules in their entirety, however they expressed concerns, questions and recommendations. 25 TAC sec.sec.229.141-229.142. 229.144-229.147, 229.150-229.152 The amendments are adopted under the Texas Health and Safety Code, Chapter 466, which provides for the Texas Board of Health (board) to adopt rules concerning narcotic treatment programs in Texas; and sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department and the commissioner of health. sec.229.145. Application, Fees, Permits. (a) Application. (1) A complete narcotic drug treatment application provided by the Texas Department of Health (department) must be submitted to the department to apply for an approved narcotic drug permit to operate a narcotic treatment program (NTP). (2) A complete application filed in accordance with this subsection for a NTP will be reviewed and evaluated by the department, in accordance with sec.229.281 of this title (relating to Processing Permit Application Relating to Food and Drug Operation). An application shall not be considered complete until an application for an NTP has been submitted to the Drug Enforcement Administration (DEA), Texas Commission on Alcohol and Drug Abuse (TCADA), and to the Food and Drug Administration (FDA). If the application is denied, the applicant shall have an opportunity for a hearing pursuant to sec.229.147 of this title (relating to Denial of Application; Suspension or Revocation of Narcotic Drug Permit). (3) (No change.) (4) Currently addicted individuals, and individuals with a history of opiate usage (including methadone) within one year of employment application are not eligible for employment in and/or ownership of an NTP. (5) The number of patients that a clinic is approved to treat is in direct proportion to the number of counselors employed by that clinic. This proportion is a maximum of 50 patients for each counselor. The NTP may exceed the counselor to patient ratio on a temporary basis to permit hiring of new staff when new admissions cause a ratio imbalance or when current staff leave and must be replaced. (6) New clinics will not be permitted to operate within a three-mile radius of an existing clinic. Existing programs are exempted so that they are not required to relocate. (b)-(c) (No change.) sec.229.146. Failure to Comply. (a) The Texas Department of Health (department) may take any action provided in Texas Health and Safety Code (code), Chapter 466, including emergency orders when it appears that a person violated, is violating, or is threatening to violate the code, these sections or an order or permit issued pursuant to the code. (b) If an emergency order is issued to suspend or revoke the permit of an NTP, the department may notify other NTPs to expect patients so that treatment services for the patients are maintained. (c) (No change.) sec.229.147. Denial of Application; Suspension or Revocation of a Narcotic Drug Permit. (a) Failure to comply with any of these sections shall be grounds for denial, suspension or revocation of a narcotic drug permit. If it appears that an applicant or permit holder has failed to achieve or demonstrate compliance with these sections, the applicant or permit holder shall be given written notice of an opportunity for a hearing in accordance with the Texas Department of Health's (department) formal hearing procedures in Chapter 1 of this title (relating to Board of Health), prior to denying the application, or suspending or revoking the permit. If the applicant or permit holder requests a hearing, he/she shall so notify, in writing, the Texas Department of Health, Division of Food and Drugs, 1100 West 49th Street, Austin, Texas, 78756, within 15 days of receipt of the notice of an opportunity for a hearing. If the applicant or permit holder does not request a hearing within the specified time, then the notice of an opportunity for a hearing shall be construed to be a notice of denial of the application, or suspension or revocation of the permit as stated in the notice. (b) The department may take action under emergency orders of the Health and Safety Code, Chapter 466, to immediately suspend an approved narcotic drug permit when approval is withdrawn from the permit holder by the Food and Drug Administration (FDA) or a registration is revoked by the Drug Enforcement Administration (DEA). The suspension shall be effective until the permit is surrendered, revoked, or reinstated in accordance with the department's formal hearing procedures in Chapter 1 of this title (relating to the Board of Health. ) sec.229.150. Central Registry. (a)-(d) (No change.) (e) Each NTP shall report to the central registry specific information. (1) Each person admitted as a new patient, readmitted to the same clinic, admitted from another NTP as a permanent transfer patient, transferred to another narcotic maintenance or detoxification program, temporarily transferred to another program, or discharged (terminated) from maintenance or detoxification treatment shall be identified and reported to the central registry located at the Texas Department of Health, Division of Food and Drugs, by telephone on the day the action occurs and written documentation must be submitted within a 24-hour period (or the next state working day immediately following weekends or holidays). (2) Each NTP's verbal and written report to the central registry shall identify and provide the following information for each patient: (A)-(B) (No change.) (C) action taken identified as: (i) new patient (NP); or (ii) terminated patient (TP); (iii) transfer in-patient (TIP); (iv) transfer outpatient (TOP); (v) terminated patient (TP); (vi) readmitted patient (RP); or (vii) temporary transfer patient (TTP); and (D) patient identification as follows. (i) The patient must be identified with a current state driver's license containing a photograph of the patient or state-issued identification card containing a photograph of the patient. Photocopies of each of these must be maintained in the patient's file. (ii)-(iii) (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 July 31, 1992. TRD-9210473 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1992 Proposal publication date: March 10, 1992 For further information, please call:(512) 458-7248 Synthetic Narcotic Drugs in the Treatment of Drug Dependent Persons 25 TAC sec.229.148 The repeal is adopted under the Texas Health and Safety Code, Chapter 466, which provides for the Texas Board of Health (board) to adopt rules concerning narcotic treatment programs in Texas; and sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. 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 July 31, 1992. TRD-9210474 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1992 Proposal publication date: March 10, 1992 For further information, please call:(512) 458-7248 Minimum Standards for Approved Narcotic Drug Treatment Programs 25 TAC sec.229.148 The new section is adopted under the Texas Health and Safety Code, Chapter 466, which provides for the Texas Board of Health (board) to adopt rules concerning narcotic treatment programs in Texas; and sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. sec.229.148. State Operational Requirements. (a) All requests for exceptions to the mandatory take-home dosage schedules must be requested in writing, following a request made by telephone or facsimile, and approved by the State Methadone Authority prior to administering the take-home doses. (b) When given a take-home dose of medication, a patient may not return to the clinic to ingest that take-home dose as an observed dose. The clinic may dispense only the minimum number of take-home doses of methadone to change a patient's take-home schedule. (c) Take-home medication may be given only to a patient who is responsible in handling narcotic drugs. Before the program physician reduces the frequency of a patient's clinic visits, the program physician or an appropriately trained health-care professional supervised by the admitting program physician shall record the specific rationale for the decision in the patient's clinical record using the criteria in paragraphs (1)-(8) of this subsection. If this is done by a designated staff member, a program physician shall review, countersign, and date the patient's record within 72 hours where this information is recorded. The program physician shall adhere to the following criteria in determining whether a patient is responsible in handling narcotic drugs: (1) absence of recent abuse of drugs (narcotic or nonnarcotic), including alcohol; (2) regularity of clinic attendance; (3) absence of serious behavioral problems at the clinic; (4) absence of known recent criminal activity, e.g., drug dealing; (5) stability of the patient's home environment and social relationships; (6) length of time in maintenance treatment; (7) assurance that take-home medication can be safely stored within the patient's home; and (8) whether the rehabilitative benefit to the patient derived from decreasing the frequency of clinic attendance outweighs the potential risks of diversion of narcotic drugs. (d) The requirement of time in treatment found in Title 21, Code of Federal Regulations, sec.291.505(d)(6)(v), is a minimum reference point after which a patient may be eligible for take-home privileges. The time reference is not intended to mean that a patient in treatment for a particular time has a specific right to take-home medication. Thus, regardless of time in treatment, a program physician must deny or rescind the take-home medication privileges of a patient if any of the eight criteria found in subsection (c) of this section are not met. (e) If a patient, because of exceptional circumstances such as illness, personal or family crises, travel, or other hardship, is unable to conform to the applicable mandatory schedule, the patient may be permitted a temporarily reduced schedule, provided that patient is also found to be responsible in handling narcotic drugs as provided in subsection (c) of this section. A travel hardship in this case does not pertain to the travel distance from the patient's home to the clinic, nor does it pertain to a patient who resides in another state and regularly attends a clinic located in the State of Texas. Examples of travel hardships are business trips and out-of-town family emergencies to locations where there are no nearby narcotic treatment programs to which a patient may temporarily transfer. An illness hardship will require a medical evaluation from an attending physician other than a program physician. The rationale for an exception to a mandatory schedule shall be recorded in the patient's record by the program physician, or by an appropriately trained health-care professional supervised by the program physician after consulting with the physician. In this situation, the physician shall review, countersign, and date the patient's record within 72 hours where this rationale is recorded. In any event, a patient may not be given more than a two-week supply of narcotic drugs at any time, due to special circumstances. (f) If a treatment center program is not in operation due to the observance of an official state holiday, patients may be permitted one extra take-home dose to allow them not to have to attend the clinic on that holiday. An official state holiday is a holiday on which most state offices are closed and routine state government business is not conducted. This does not apply to special patients on methadone doses greater than 100mg or patients in long or short term detoxification or others deemed to be irresponsible by the program physician. (g) The program supervisory counselor shall review and countersign within 72 hours all the information and findings recorded in each patient's record under Title 21, Code of Federal Regulations, sec.291.505(d)(3)(iv). (h) The admitting program physician or an appropriately trained health-care professional supervised by the admitting program physician shall record in the patient's record all findings from the admission medical evaluation. The admitting program physician shall record, date and sign his or her findings, or date, review, and countersign the findings of the appropriately trained health- care professional in the patient's record within 72 hours to signify his or her review of and concurrence with the history and physical findings. (i) The medical director or other authorized physicians shall sign or countersign all medical orders within 72 hours. (Such medical orders include but are not limited to the initial medication orders and all subsequent medication order changes, all changes in the frequency of take-home medication, and prescribing additional take-home medication for an emergency situation.) (j) A person who has resided in a penal or chronic care institution for one month or longer may be admitted to maintenance treatment within 14 days prior to release or discharge, or within six months after release from such an institution without documented evidence to support findings of physiological dependence, provided the person would have been eligible for admission before he or she was incarcerated or institutionalized and treatment is medically justified. Documented evidence of the prior residence in a penal or chronic care institution and evidence of all other findings and the criteria used to determine the findings are required to be recorded in the patient's record by the admitting program physician, or by an appropriately trained health-care professional supervised by the admitting program physician. The admitting program physician shall date and sign these recordings. The health-care professional is required to consult with the admitting program physician before the initial dose is administered to the patient. In this case, the admitting program physician shall date and sign the recordings in the patient's record made by the health-care professional within 72 hours of administration of the initial dose to the patient. (k) Pregnant patients, regardless of age, who have had a documented narcotic dependency in the past and who may return to narcotic dependency, with all its attendant dangers during pregnancy, may be placed on a maintenance regimen. For such patients, evidence of current physiological dependence on narcotic drugs is not needed if a program physician certifies the pregnancy and finds treatment to be medically justified. Evidence of all findings and the criteria used to determine the findings are required to be recorded in the patient's record by the admitting program physician, or by an appropriately trained health-care professional supervised by the admitting program physician. The admitting program physician shall date and sign these recordings. The health-care professional is required to consult with the admitting program physician before the initial dose is administered to the patient. In this case, the admitting program physician shall date and sign the recordings in the patient's record made by the health-care professional within 72 hours of administration of the initial methadone dose to the patient. Pregnant patients are required to be given the opportunity for, and should be encouraged to access prenatal care either by the program or by referral to appropriate health-care providers. This encouragement is to be documented in the patient's counseling records. (l) At least once a year, the program physician shall date, review, and countersign the treatment plan within 72 hours of the counselor's review of the treatment plan with the patient and ensure that each patient's progress or lack of progress in achieving the treatment goals is entered in the patient's record by the primary counselor. The treatment plan and progress notes must deal with the patient's mental and physical problems, apart from drug abuse. (m) The periodic treatment plan is required to contain adequate documentation of any prescription drug, other than methadone, that a patient may be taking, including the name of the drug, the prescription number, the dose, the reason for prescribing, the name of the prescribing doctor, the pharmacy's name and telephone number, the date it was prescribed and the length of time the patient is to be taking the drug. In addition, except for emergency medications, there is to be a letter from the prescribing practitioner as to the need for the prescription and their awareness of the patient being on methadone. The patient will be responsible for delivering this letter the day they inform the program they are taking additional prescription drugs. (n) There is a danger of drug dependent persons attempting to enroll in more than one NTP to obtain quantities of drugs for the purpose of self- administration or illicit marketing. Therefore, drugs shall not be provided to a patient who is known to be currently receiving drugs from another treatment program without prior approval from the State Methadone Authority. (o) Patients who are known to be enrolled in more than one narcotic treatment program (NTP) at a time will be forced to choose one clinic for treatment. That patient must then begin treatment as a completely new patient, including attending the clinic on a daily basis or a minimum of six days per week, for a period of six months. (p) Employees who are formerly addicted to drugs of abuse are considered risks to the security of drug stocks and may not have access to the drugs or to the drug dispensing area. Currently addicted individuals, and individuals with a history of opiate usage (including methadone) within one year of the employment application, are not eligible for employment and/or ownership of a NTP. (q) A narcotic drug may be administered or dispensed only by a practitioner licensed under the appropriate state law and registered under the appropriate state and federal laws to order narcotic drugs for patients, or by an agent of such a practitioner, supervised by and under the order of the practitioner. This agent is required to be a pharmacist, registered nurse, or licensed practical nurse, or any other health care professional authorized by federal and state law to administer or dispense narcotic drugs. The licensed practitioner assumes responsibility for the amounts of narcotic drugs administered or dispensed and shall record and countersign all changes in dosage schedules within 72 hours. (r) The program medical director shall ensure that the initial dose of methadone for a new patient does not exceed 30 milligrams and that the total dose for the first day does not exceed 40 milligrams, unless the program medical director documents in the patient's record that 40 milligrams did not suppress opiate abstinence symptoms. A patient is to be given an initial dose of 30 milligrams and then observed for one hour to see if opiate abstinence symptoms are suppressed. If not, an additional dose of up to 10 milligrams may be given. The patient is to be observed for an additional hour. If opiate abstinence symptoms are still not suppressed, then the patient may be given up to an additional 10 milligrams. This procedure, administering methadone in up to 10 milligram increments with a one-hour observance period after each addition, may be continued until abstinence symptoms are suppressed and within a scope that ensures patient safety. (s) For recordkeeping purposes, if a patient misses appointments for two weeks or more without notifying the clinic, the episode of care is considered terminated and is to be so noted in the patient's record with the exception of very unusual circumstances (example: a patient is hospitalized comatose, with no next of kin to notify the program), that will be required to be recorded in the patient's records. This does not mean that the patient cannot return for care. If the patient does return for care and is accepted into the program, the patient is considered a new patient in accordance with Title 21, Code of Federal Regulations, sec.291.505(d)(1)(i), (ii), (iii)(A) and (B), (iv), (v), and (d)(2) and (3) and is to be so noted in the patient's record. (t) A person may be admitted as a patient for a maintenance program only if a program physician determines that the person is currently physiologically dependent upon a narcotic drug and became physiologically dependent at least one year before admission for maintenance treatment. A one-year history of addiction means that an applicant for admission to a maintenance program was physiologically addicted to a narcotic at a time at least one year before admission to a program and was addicted, continuously or episodically, for most of the year immediately before admission to a program. In the case of a person for whom the exact date on which physiological addiction began cannot be ascertained, the admitting program physician may admit the person to maintenance treatment, if from the evidence presented, observed, and recorded in the patient's record, it is reasonable to conclude that there was physiological dependence at a time approximately one year before admission. (u) All notations by NTP personnel on patient files and other files kept by the NTP for purposes of this chapter shall be typed, printed or legibly handwritten so that any regulatory authority could read the writing. (v) A NTP may not refuse to allow an inspection or otherwise interfere with personnel of the State Methadone Authority in the performance of their duties, including the photocopying of patient records during an inspection. It is a violation for a NTP not to fully cooperate in any inspection by the State Methadone Authority. (w) Each NTP shall notify the State Methadone Authority in writing of any change in the employment status of any of its program personnel. This notice shall be provided within 20 days of the event. (x) NTP counselors not exempted must be licensed by the Texas Commission on Alcohol and Drug Abuse (TCADA). (y) Any theft from or illegal break-in to the clinic must be reported in writing to the State Methadone Authority within 10 days of the event. 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 July 31, 1992. TRD-9210475 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: September 1, 1992 Proposal publication date: March 3, 1992 For further information, please call:(512) 458-7248 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part III. Texas Air Control Board Chapter 101. General Rules 31 TAC sec.101.24, sec.101.27 The Texas Air Control Board (TACB) adopts amendments to sec.101.24 and sec.101.27, concerning general rules, without changes to the proposed text as published in the April 24, 1992, issue of the Texas Register (17 TexReg 2927). The amendments clarify and correct rule language so that both rules are consistent in content and meaning. A public hearing was held in Austin on May 27, 1992, to consider the proposed amendments. Written comments were accepted through May 29, 1992. Four commenters submitted written testimony. No oral testimony was presented during the public hearing. All testimony and written comments have been reviewed and seriously considered. The majority of testimony was directed at emissions fees for fiscal year (FY) 1994 and beyond. The following discussion addresses the comments on the proposed revisions. One individual believed that the TACB needs to provide a portion of the funds generated by sec.101.24 and sec.101.27 to local air quality agencies. The TACB does not have the authority to channel funds directly to local air pollution programs. However, the TACB negotiates individual contracts with each federally funded local agency to assist localized air pollution control program activities. DuPont requested that sec.101.27 reflect that companies which have prepared an emissions inventory should not have to validate emissions with continuous emissions monitors (CEM) or other quantifiable means when operating at reduced capacity during slow business years. When the emissions fee rate reaches $25 per ton, the difference between allowable and actual reduced emissions could be significant. The proposed language does not indicate a dollar per ton emission fee requirement for FY 1994. The FY 1994 amount will be determined at a later date. Furthermore, the rule language has not changed concerning actual emissions validation. The staff agrees that CEM or specific testing for reduced production levels may be costly. Therefore, an alternate of using allowable emissions without expensive monitoring or testing was devised for the original rule language. This low cost method has been available and will continue to be available in the future for companies to use at their discretion. In response to proposed changes to sec.101.27, the Lower Colorado River Authority (LCRA) offered substantial testimony on the Federal Clean Air Act (FCAA) requirements for a federally mandated $25 per ton emissions fee, unless the state can demonstrate an alternate fee rate will adequately fund the permit program. LCRA further proposed a two-stage process where the companies would submit their emissions inventories early in the next calendar year, the TACB would determine the level of funding required based on the inventories, and the appropriate fee would be assessed during the next year. The United States Environmental Protection Agency commented favorably with the caveat that the emission fee rules would need to be amended again in 1993. The staff agrees in part with the LCRA that an emissions fee should be based on the level of emissions reported. The proposed language has removed the previous reference to a fee of $25 per ton for FY 1994. Funding for the agency is determined by the legislature for a biennial period which precludes using the LCRA proposal in an annual fashion; however, the TACB has used and will continue to use a system similar to that proposed for future funding submittals to the legislature. The staff will consider the LCRA suggestion in future rulemaking when a fee is established for FY 1994. The LCRA suggested that the fee due dates for the proposed sec.101.24 and sec.101.27 needed to be clarified. The staff feels that the rule language clearly identifies the due dates based on the first letter of the company name. The fees collected in November or December of 1992 (FY 93) will be based on emissions rates for the previous full calendar year (1991). This procedure of assessing emissions fees based on the previous full calendar year's emissions remains unchanged. The amendments are adopted under the Texas Clean Air Act (TCAA), sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. 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 July 31, 1992. TRD-9210464 Lane Hartsock Deputy Director Texas Air Control Board Effective date: August 31, 1992 Proposal publication date: April 24, 1992 For further information, please call: (512) 908-1451 31 TAC sec.101.28 The Texas Air Control Board (TACB) adopts new sec.101.28, concerning asbestos notification fees, with changes to the proposed text as published in the April 24, 1992 Texas Register (17 TexReg 2930). The amendments are in response to House Bill Number 1 (General Appropriations Act), Rider 9, 72nd Texas Legislature. The statute authorizes the TACB to collect fees from contractors performing demolition and renovation projects that may involve asbestos to support oversight and enforcement activities required under the federal requirement of National Emission Standards for Hazardous Air Pollutants (NESHAP). Public hearings were held in Houston on May 21, 1992, and in Austin on May 27, 1992, to consider the proposed new section. Written comments were accepted through May 29, 1992. Thirteen commenters submitted written testimony. Ten individuals presented oral testimony during the two public hearings. All testimony and written comments have been reviewed and seriously considered. The following discussion addresses the comments on the proposed revisions in the following areas. Sierra Club; Houston Apartment Association; Fort Worth-Tarrant County Health Departments; City of Houston; Texas Apartment Association, Inc.; and one individual expressed concern that the proposed rules are not clear on how the local agencies will fit into the program as far as collecting fees or contracting with the TACB to perform inspections. Although funding of local agencies is beyond the context of this rule, the staff is aware that this is an area that needs to be addressed. Decisions regarding which agencies will perform the inspections and how fees will be passed through to these agencies have not been made at this time. The TACB is continuing to work with the Texas Department of Health to resolve these issues. Galveston County Health District; Houston Apartment Association; City of Houston; and Texas Apartment Association, Inc. pointed out discrepancies between the preamble rule language which applies to "owner/operator" and statute language which deals with "contractors." The staff agrees with the commenters that an inconsistency exists in the language. The staff recommends changes to sec.101.28(a) that reflect that this rule applies to "contractors" rather than an "owner/operator." It further defines a contractor as the individual or organization responsible for the asbestos removal. If the asbestos removal is performed by the owner/operator, then that individual is responsible for the fee. Rice University, Incarnate Word College, Southern Methodist University, University of North Texas, University of Texas at Austin, and the Houston Independent School District stated that the Legislature did not intend for this rule to apply to tax exempt schools and universities. Also, the quality of education would be reduced because of the additional expenses incurred by this rule. Asbestos removal in schools and universities is a significant portion of the total asbestos removal performed in the state. To insure equal treatment regarding asbestos removal costs and inspection of removal activities, the language is adopted as proposed with no exemption or exclusion for schools. Galveston County Health District recommended deleting the "Asbestos Fee Form" and consolidating all reporting to the maximum extent possible. The staff concurs and the "Asbestos Fee Form" has been deleted from the rule and a billing invoice system has been implemented. Galveston County Health District and Fort Worth-Tarrant County Health Departments wanted to know how the NESHAP information on asbestos renovation or demolition activities would be obtained by regional TACB offices or by the local agencies. An individual wanted more enforcement, especially in Austin. The staff agrees that these areas need to be addressed, however, these issues are beyond the scope of rulemaking. The TACB receives the information regarding NESHAP notification. This information will be passed on to local programs as appropriate. The collection of fees will allow more inspections and a subsequent improvement of enforcement to occur. Galveston County Health District felt that the benefit of enforcing the new section as described in the preamble is questionable without supporting data. The City of Houston stated that the cost analysis section of the preamble did not fully address the cost of the proposed rules to local governments who may lose the ability to collect fees currently charged for conducting asbestos inspection and oversight and indirect costs relating to payment of fees. Direct costs are placed into the preamble. The rule language cannot address contractual agreements between state and local governments, nor can it do a detailed analysis on the impacts to local governments fee collection activities. If the local programs are contracted to perform asbestos inspections, then the fees would be passed through to the program for the performance of these services. Galveston County Health District and an individual felt that the fee calculation seemed to be overly complicated. A fee based on the percentage of sales tax paid by owners for contractor's services was suggested as an alternative to the proposed fee. The staff believes that the calculation is straight-forward and follows the guidelines prescribed in the statute, requiring that a fee be assessed for asbestos removal. No calculations by contractors will be necessary since the staff has recommended a billing invoice system where the TACB will calculate the amount of fee owed. Furthermore, a sales tax fee would not accurately reflect the amount of asbestos removed, but rather, the amount of the contractor's fee for the project. Houston Lighting and Power suggested that a refund be given minus an administrative fee. An individual stated that it was the Legislature's intent to give refunds. The amount of overpayment is refunded minus a $25 administrative processing charge. The staff recommends a refund program to address these concerns. Reynolds Metal Company suggested carrying forward credit against future fees instead of providing refunds. A refund system will be used instead of a credit plan since it would be less costly to the state to administer. Houston Lighting and Power (HL&P) recommended that the TACB allow at least a ten-day delay after notification before requiring payment. Emergency notifications were used as an example where a delay in payment would be necessary. Texas Mid-Continent Oil and Gas Association suggested that the payments be deferred until the work was completed, unless it was a very large job where a downpayment of half the fee would be paid. Rice University supported accounting by means of an invoicing system. In general, the staff agrees with HL&P and Rice University. A billing invoice system which establishes a billing invoice for each notification will be implemented. The contractor will have a maximum of 30 calendar days to remit payment. The City of Houston and the Texas Apartment Association, Inc. felt that cities having a local ordinance for asbestos fee collection should be exempted from this rule and be allowed to continue to charge and collect an asbestos fee according to individual city ordinances. The staff disagrees with this suggestion. The TACB has no jurisdiction nor control over local ordinances. This issue is a contractual matter and not one of rulemaking. Texas Mid-Continent Oil and Gas Association wanted to have a clarification concerning renotification requirements when the amount of asbestos is different than originally reported. The staff feels that 40 Code of Federal Regulations sec.61.145(b)(2) clearly identifies renotification requirements. It states: "Update notice, as necessary, including when the amount of asbestos changes by at least 20%." The new section is adopted under the Texas Clean Air Act, sec.382.017, Texas Health and Safety Code (Vernon 1990), which provides the TACB with the authority to adopt rules consistent with the policy and purposes of the TCAA. sec.101.28. Asbestos Notification Fees. (a) Applicability. On or after September 1, 1992, the contractor of a demolition or renovation activity shall remit to the Texas Air Control Board (TACB) a fee that is based upon the amount of asbestos subject to the reporting requirements of the National Emission Standards for Hazardous Air Pollutants (for Asbestos) promulgated in the Code of Federal Regulations (CFR) at 40 CFR 61, Subpart M. For purposes of this section, the term "contractor" is the individual or organization responsible for the asbestos removal. (b) Payment. Within 30 calendar days of the date on the TACB Asbestos Billing Invoice, the billed fee(s) which are calculated by the TACB from the notification form shall be payable to the Texas Air Control Board in the form of a check or money order and the original TACB Billing Invoice shall be remitted to the Texas Air Control Board, (Attention: Asbestos Fees), 12124 Park 35 Circle, Austin, Texas 78753. (c) Basis for fees. The fee shall be based on the total amount of regulated asbestos-containing material (RACM) reported to be removed as defined in 40 CFR sec.61.141. The fee shall be calculated on the Asbestos Billing Invoice at a rate of $20 per Asbestos Reporting Unit (ARU). The number of ARUs associated with a removal activity is determined by dividing the number of linear feet reported by 260, the number of square feet reported by 160, and the number of cubic feet reported by 35. The sum of these ARUs, rounded up to the nearest tenth of a whole number, shall then be multiplied by the $20 rate to calculate the fee due with the notification. The minimum fee shall be $50 per notification, and the maximum fee shall be $7,500 per notification. The fee is assessed only for the amount of asbestos reported to be removed. If no asbestos is removed or if the amount of asbestos removed is less than one ARU, no fee shall be assessed. Annual notifications of maintenance activities subject to 40 CFR sec.61, Subpart M, are included in the fee requirement. (d) Schedule. A check or money order for the dollar amount of the fee due shall be remitted within 30 calendar days of the date on the Asbestos Billing Invoice sent by the TACB. The following fee schedule shall apply for all notification revisions. (1) If a revision is made with an official TACB notification form in which the original amount of asbestos reported is more than the actual amount removed, the TACB shall refund the amount of overpayment minus a $25 administrative processing fee. (2) If a revision is made with an official TACB notification form in which the original amount of asbestos reported is less than the actual amount removed, an additional fee covering the difference shall be remitted at the same time that renotification is made. (3) If a revision is made with an official TACB notification form in which the original amount of asbestos reported remains unchanged, payment is not required when the renotification is made. (e) Nonpayment of fees. The provisions of this section, as first adopted and as amended thereafter, shall remain in effect for purposes of any unpaid assessment, and the fees assessed pursuant to such provisions, as adopted or as amended, remain a continuing obligation. Failure to remit the full asbestos fee with the original TACB Asbestos Billing Invoice shall result in formal enforcement action under the Texas Clean Air Act, sec.382.082 or sec.382.088. In addition, sec.382.091(a)(2) provides for criminal penalties for those failing to pay fees. 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 July 31, 1992. TRD-9210462 Lane Hartsock Deputy Director, Air Quality Planning Texas Air Control Board Effective date: August 31, 1992 Proposal publication date: April 24, 1992 For further information, please call: (512) 908-1451 Part IX. Texas Water Commission Chapter 335. Industrial Solid Waste and Municipal Hazardous Waste Subchapter J. Industrial Solid Waste and Hazardous Waste Fee System 31 TAC sec.335.326, sec.335.329 The Texas Water Commission adopts amendments to sec.335.325 and sec.335.329, concerning the industrial solid waste and hazardous waste fee system. Section 335.326 is adopted with changes to the proposed text as published in the June 19, 1992, issue of the Texas Register (17 TexReg 4429). Section 335.329 is adopted without changes and will not be republished. The amendments will exclude certain materials from the determination of the dry weight of a hazardous waste subject to the assessment of fees for disposal in underground injection wells. The amendment will exempt from the measurement certain materials, which are not solid wastes, and are required to be added to waste streams to meet federal operating requirements relating to the prevention of migration of wastes in underground formations. Section 335.326, relating to dry weight determination, is changed by rewording subsection (c). This change does not alter the effect of the rule, but will ensure the consistency of this provision with the definition of "dry weight" contained in the Health and Safety Code, sec.361.131. Comments on the proposed rule were received from E. I. DuPont in support of the proposal. The amendments are adopted under the Health and Safety Code, Chapter 361, as amended by House Bill 1986, Acts of the 72nd Legislature, 1991, which provides the Texas Water Commission with the authority to establish an industrial solid waste and hazardous waste fee program and implement fee assessments for industrial solid waste and hazardous waste generators, facilities and permit applicants, and the commercial and noncommercial management of hazardous wastes and under the Water Code sec.5.103 which gives the Texas Water Commission the authority to adopt any rules necessary to carry out its powers, duties, and responsibilities. sec.335.326. Dry Weight Determination. (a)-(b) (No change.) (c) For purposes of a fee assessed under sec.335.325 of this title (relating to Hazardous Waste Management Fee Assessment), the dry weight of a hazardous waste disposed in an underground injection well, to which brine, inorganic salts, or other authorized agents are added to maintain density control to assure compliance with no-migration requirements of 49 Code of Federal Regulations 148 Subpart C, shall be determined prior to the addition of the agent. No solid waste, as defined by the Health and Safety Code, sec.361. 003(37), may be excluded from the determination of dry weight under this subsection. 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 August 3, 1992. TRD-9210531 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: August 24, 1992 Proposal publication date: June 19, 1992 For further information, please call: (512) 463-8069 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part III. Texas Commission on Alcohol and Drug Abuse Chapter 153. DWI Education Program Standards and Procedures General Provisions 40 TAC sec.sec.153.1, 153.2, 153.7 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.153.1, 153.2, and 153.7, concerning general provisions, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2752). The amendments are adopted to define terms commonly used in the DWI Education Programs, to address the name change of one agency represented on the DWI Certification Committee, and to define the expiration dates of exceptions granted to DWI Education Programs. The amendments provide clarity to terms used by DWI Education Programs, reflect a name change for the Texas Department of Transportation, a member of the DWI Certification Committee and clarifies the expiration dates for exceptions granted to DWI Education Programs. One comment was received in support of the adoption of the proposed revisions from the 12th and 278th Judicial District Community Supervision and Corrections Department. The amendments are adopted under the Texas Code of Criminal Procedure, Article 42.12, sec.13h, as amended in Chapter 473 (1989) which provides the Texas Commission on Alcohol and Drug Abuse with the authority to publish rules and regulations for state-approved DWI Education 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 July 29, 1992. TRD-9210442 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 867-8720 40 TAC sec.153.17, sec.153.18 The Texas Commission on Alcohol and Drug Abuse adopts new sec.153.17, and sec.153.18, concerning general provisions, without changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2752). The new sections are adopted to establish program participants complaint procedures and to establish a rule prohibiting participant discrimination. The new sections establish complaint procedures for program participants, as well as establishing a rule prohibiting discrimination against program participants. One comment was received in support of the adoption of the new sections from the 12th and 278th Judicial District Community Supervision and Corrections Department. The new sections are adopted under the Texas Code of Criminal Procedure, Article 42.12, sec.13h, as amended in Chapter 473 (1989), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to publish rules and regulations for state-approved DWI Education 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 July 29, 1992. TRD-9210443 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 867-8720 DWI Education Program Standards 40 TAC sec.sec.153.31, 153.35, 153.36, 153.38 The Texas Commission on Alcohol and Drug Abuse adopts amendments to sec.sec.153.31, 153.35, 153.36, 153.38, concerning DWI education program standards. Section 153.36 is adopted with changes to the proposed text as published in the April 17, 1992, issue of the Texas Register (17 TexReg 2753). Sections 153.31, 153.35, and 153.38 are adopted without changes and will not be republished. The amendments are adopted to enhance the program purpose, clarify the citations relating to client confidentiality, and define operational requirements. They will also clarify required audiovisuals as well as to further define program staff requirements. A typographical error in sec.153. 36(7) on the proposed submission necessitates the adoption with changes as the word "shall" was inadvertently typed instead of the correct word, "should." Section 153.31 expands the purpose of the program to include education on other drugs as well as alcohol; sec.153.35 provides the correct federal and state citations relating to client confidentiality; sec.153.36 defines operational requirements of programs and sec.153.38 further defines criteria for program staff. One comment was received in support of the adoption of the proposed revisions from the 12th and 278th Judicial District Community Supervision and Corrections Department. The amendments are adopted under the Texas Code of Criminal Procedure, Article 42.12, sec.13h, as amended in Chapter 473 (1989), which provides the Texas Commission on Alcohol and Drug Abuse with the authority to publish rules and regulations for State-approved DWI Education Programs. sec.153.36. Program Operation Requirements. All certified programs designed to rehabilitate persons who have been placed on probation for driving while intoxicated under the provisions of the Act shall: (1)-(6) (No change.) (7) utilize all required films and/or videos, transparencies, booklets, calculator, and any other required resources in instruction. Transparencies and 16mm films shall be projected on a surface which produces a clearimage. If the program uses VCR equipment, the monitor should be at least 25 inches and the videotapes must be of high quality. The monitor must be positioned in the classroom so that all participants have an unobstructed view. Any supplemental films used in the program must have prior approval from the DWI Certification Committee according to the following criteria: (A)-(C) (No change.) (8)-(15) (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 July 29, 1992. TRD-9210444 Bob Dickson Executive Director Texas Commission on Alcohol and Drug Abuse Effective date: September 1, 1992 Proposal publication date: April 17, 1992 For further information, please call: (512) 867-8720 Part XVIII. State Pension Review Board Chapter 601. General Provisions 40 TAC sec.sec.601.1, 601.20, 601.30, 601.40, 601.50 The State Pension Review Board adopts new sec.sec.601.1, 601.20, 601.30, 601. 40, and 601.50, concerning general provisions, without changes to the proposed text as published in the March 3, 1992, issue of the Texas Register (17 TexReg 16). These rules are set forth for the purpose of interpreting and implementing the Government Code, Title 8, Chapter 801. The proposed rules direct the board to conduct regularly scheduled meetings, to elect officers, and to designated committees. The new sections will outline procedures for board meetings, the election of officers, and the designation of committees. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Title 8, Subtitle A, Chapter 801, sec.801.201, which provides the State Pension Review Board with the authority to adopt rules for the conduct of its business. 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 July 30, 1992. TRD-9210532 Rita Horwitz Executive Director State Pension Review Board Effective date: August 24, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-1736 Chapter 603. Officers and Meetings 40 TAC sec.sec.603.1, 603.20, 603.30, 603.40, 603.50, 603.60 The State Pension Review Board adopts new sec.sec.603.1, 603.20, 603.30, 603. 40, 603.50, and 603.60 concerning officers and meetings, without changes to the proposed text as published in the March 3, 1992, issue of the Texas Register (17 TexReg 16). The new sections are set forth for the purpose of interpreting and implementing the Government Code, Title 8, Chapter 801. The proposed rules direct the board to conduct regularly scheduled meetings, to elect officers, and to designated committees. The sections will outline procedures for board meetings, the election of officers, and the designation of committees. No comments were received regarding adoption of the new sections. The new sections are adopted under the Government Code, Title 8, Subtitle A, Chapter 801, sec.801.201, which provides the State Pension Review Board with the authority to adopt rules for the conduct of its business. 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 July 30, 1992. TRD-9210533 Rita Horwitz Executive Director State Pension Review Board Effective date: August 24, 1992 Proposal publication date: March 3, 1992 For further information, please call: (512) 463-1736 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 11. Design Division Freeway Mainlanes 43 TAC sec.11.71 The Texas Department of Transportation adopts an amendment to sec.11.71, concerning control of access on freeway mainlanes, without changes to the proposed text as published in the May 15, 1992, issue of the Texas Register (17 TexReg 3629). The proposed amendment clarifies the department's role and responsibility relative to its participation in the cost of constructing additional frontage roads. The amendment provides for a waiver of the cost conditions for local governments with such waiver to be by written order of the commission based on consideration of the population level, bonded indebtedness, tax base, and tax rate of the local government involved. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Articles 6666 and 6674w, et seq, 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, to promote public safety, to facilitate the movement of traffic, and to preserve the financial investment of the public in its highways. 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 July 30, 1992. TRD-9210430 Diane L. Northam Legal Administrative Assistant Texas Department of Transportation Effective date: August 20, 1992 Proposal publication date: May 15, 1992 For further information, please call: (512) 463-8630 Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. ) The State Board of Insurance, at a board meeting scheduled on July 23, 1992, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, considered a petition filed by the Staff of the Texas Department of Insurance proposing amendments to Rule IX of the Texas Manual of Rules, Classifications and Rates for Workers' Compensation and Employers' Liability and adding Employee Leasing Forms EL-1 and EL-1A and Employee Leasing/Client Company Endorsement WC 42 04 06. The rule was proposed in a petition (Reference Number W-0692-31-I), filed by staff on June 15, 1992. On July 23, 1992, the State Board of Insurance adopted the amendments with changes to the proposed published text. In addition, the board repealed the current Rule IX, Section E, and Texas Amendatory Endorsement WC 42 03 01D. The amendment defines several terms including employee leasing arrangement and specifically states that such arrangement means an arrangement under lease, contract or otherwise, whereby an entity provides workers it claims are its employees or co-employees for workers' compensation purposes to another entity. The rule provides that an employee leasing firm wishing to secure a workers' compensation insurance policy shall purchase a standard workers' compensation insurance policy and submit an Employee Leasing Form EL-1 (or in the case of an employee leasing firm that wishes to continue workers' compensation insurance coverage, an Employee Leasing Form EL-1A) and a separate Employee Leasing/Client Company Endorsement for each client company with which it has an employee leasing arrangement. It provides that premiums and other charges shall be calculated based on the payroll, rate for each applicable classification and the experience modifier of the client company as shown on its Employee Leasing/Client Company Endorsement. The experience modifier most recently issued by the Department to the client company before it entered into any employee leasing arrangement shall be used to calculate premium for leased workers of the client company until the client company has leased its workers from the same employee leasing firm for two years from the date of the employee leasing firm's experience rating date following the date on which the client company contracted with the employee leasing firm. At the end of this period, premium for leased workers of a client company will be calculated based on the experience modifier of the employee leasing firm. If a client company does not have an experience modifier when it contracts with an employee leasing firm, then premium for the leased workers of the client company will be calculated based on an experience modifier of 1.00 (which reflects that the client company has neither a debit experience modifier nor a credit experience modifier). If an employee leasing arrangement exists as of the effective date of this rule and the client company has not leased its workers from the same employee leasing firm for two years from the date of the employee leasing firm's experience rating date following the date on which the client company contracted with the employee leasing firm, then premium for the leased workers of the client company shall be calculated using the experience modifier of the client company shall be used beginning 90 days after the effective date of this rule, regardless of the anniversary rating date of the policy. The rule also provides that when the employee leasing arrangement ends and the client company either obtains a new workers compensation insurance policy in its own name or adds its former leased workers to an existing policy, then the premium for that client company, if workers were leased from the same employee leasing firm for two years or more, will be calculated using the higher of its current experience modifier or the experience modifier of the employee leasing firm. Otherwise, the higher of its current experience modifier (if any) or the last known experience modifier of the client company before it entered into any employee leasing arrangement shall be used. The rule provides that in addition to other statutory, regulatory or contractual grounds for cancellation or non-renewal that may exist, any violation of this rule, including without limitation, any false or misleading statement, misrepresentation, concealment or omission of a material fact by a client company or by an employee leasing firm of any information required to be provided under this rule, is grounds for cancellation or non-renewal upon 30 days notice. Notice of cancellation or non-renewal shall be sent by certified mail to the employee leasing firm and the Texas Department of Insurance no later than the 30th day before the date on which the cancellation or nonrenewal becomes effective. The employee leasing firm shall provide notice of the cancellation to each client company by certified mail within three days of receipt of such notice. In addition, the rule allows the insurer to conduct periodic audits at any time after the effective date of the policy for any purpose. The insurer shall have the same rights of audit with respect to each client company that has engaged in an employee leasing arrangement. The insurer may make adjustments in premium calculations as a result of such audits. The rule provides that if an insured under a workers' compensation insurance policy enters into an employee leasing arrangement during its policy period, it shall notify its insurer within 10 days and comply with all provisions of this rule within 90 days. Premium for such insureds shall be calculated for the remaining policy period in accordance with this rule effective as of the date of the inception of the employee leasing arrangement. The Employee Leasing Forms EL-1 and EL-1A which are made part of the rule must be provided to the insurer with all information requested before insurance is bound and shall be sworn to as true by the owner, partner or officer authorized to bind the employee leasing firm. If an employee leasing arrangement exists as of the effective date of this rule, then Form EL-1A is required within 90 days. The Employee Leasing/Client Company Endorsement shall be submitted to the insurer by the employee leasing firm for each client company with which the employee leasing firm has an employee leasing arrangement. This endorsement shall be sworn to as true and correct by the owner, partner, or officer authorized to bind the client company. If an employee leasing arrangement exists as of the effective date of this rule, the employee leasing firm shall provide to the insurer within 90 days of the effective date of this rule, the endorsement for each client company with which the employee leasing firm has an employee leasing arrangement. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative Procedures and Texas Register Act. (Reference Number W-0692-31-I). 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 July 31, 1992. TRD-9210508 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: August 22, 1992