Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 16. ECONOMIC REGULATION Part IV. Texas Department of Licensing and Regulation Chapter 60. Texas Commission of Licensing and Regulation Subchapter C. Fees 16 TAC sec.60.64, sec.60.66 The Texas Department of Licensing and Regulation adopts new sec.60.64, and 60.66, without changes to the proposed text as published in the August 4, 1992, issue of the Texas Register (17 TexReg 5407). The new sections set registration/license fees for the Registration of Property Tax Consultants and Employers of Certain Temporary Common Workers programs. The method of collecting fees will remain the same. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Civil Statutes, Article 9100, which provide the Department of Licensing and Regulation with the authority to set fees to cover the cost of administering programs regulated by the department. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 4, 1992. TRD-9212134 Jack W. Garison Acting Executive Director Texas Department of Licensing and Regulations Effective date: September 25, 1992 Proposal publication date: August 24, 1992 For further information, please call: (512) 463-3127 Chapter 61. Boxing 16 TAC sec.61.109 The Texas Department of Licensing and Regulation adopts an amendment to sec.61.109, concerning technical requirements-boxer, without changes to the proposed text as published in the August 7, 1992, issue of the Texas Register (17 TexReg 5499). The amendment deletes the HIV test requirement and changes the requirement for EEG for a boxer's first Texas license from mandatory to as may be required. The amendment updates and clarifies the requirements for boxers. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 8501-1, which provide the Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules to assure compliance with the 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 September 4, 1992. TRD-9212191 Jack W. Garison Acting Executive Director Texas Department of Licensing and Regulations Effective date: September 29, 1992 Proposal publication date: August 7, 1992 For further information, please call: (512) 463-3127 Chapter 75. Air Conditioning and Refrigeration Contractor License Law 16 TAC sec.sec.75.20, 75.80, 75.90 The Texas Department of Licensing and Regulation adopts amendments to sec.sec.75.20, 75.80, and 75.90 without changes to the proposed text as published in the July 24, 1992, issue of the Texas Register (17 TexReg 5182). The amendment clarify existing rule and make department processing more efficient. Section 75.20 and sec.75.80 have changes in terminology to make automation of services possible. Section 75.90 has been amended to reflect state law in the Administrative Procedure and Texas Register Act. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 8861, which provide the Department of Licensing and Regulation with the authority to promulgate and enforce a code of rules and take all action necessary to assure compliance with the intent and purposes of the 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 September 4, 1992. TRD-9212135 Jack W. Garison Acting Executive Director Texas Department of Licensing and Regulation Effective date: September 25, 1992 Proposal publication date: July 24, 1992 For further information, please call: (512) 463-3127 Part VIII. Texas Racing Commission Chapter 309. Operation of Racetracks Subchapter B. Horse Racetracks Operations 16 TAC sec.309.200 The Texas Racing Commission adopts an amendment to sec.309.200, concerning stakes and other prepayment races, with changes to the proposed text as published in the June 16, 1992, issue of the Texas Register (17 TexReg 4326). The amendment is adopted to ensure that the pari-mutuel racing will be conducted with the highest integrity and that the participants in pari-mutuel racing are protected. The amendment clarifies the requirements for conducting stakes and prepayment races at a pari-mutuel racetrack. The changes from the proposed text include an effective date and reduce the number of signatures required for withdrawals from the nominations account. The Texas Quarter Horse Association filed written comments regarding the proposal. The TQHA requested clarification about the proposal's effective date and suggested the number of signatures required for withdrawals be reduced from three to two. The commission agreed with the comments and the appropriate changes were incorporated. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. sec.309.200. Stakes and Other Prepayment Races. (a) An association shall file with the commission, for approval, a copy of the race conditions and the nomination blank for all stakes or other prepayment races at least 30 days before distributing the conditions to the public. (b) The nomination blank must state all conditions of the race, including: (1) the payment schedule; (2) the dates and conditions for the race and any trials; (3) the source and amount of any added money; (4) the distribution of all funds paid into the race, including the percentages allocated for advertising, administration, and other expenses; (5) terms for obtaining refunds, if any; and (6) all other conditions pertaining to the race. (c) The association shall ensure all funds paid into the race are maintained in escrow in an FDIC secured financial institution, except as otherwise authorized by the commission. The escrow account must require, for all withdrawals, the signatures of the sponsor of the race and either the horsemen's bookkeeper or general manager of the racetrack. (d) Not later than five business days after receiving a request by the commission, the association shall provide to the commission a list of all horses nominated for the race, distinguishing which horses remain eligible as of the date of the request and the names of all owners of each horse remaining eligible. (e) Not later than five business days after receiving a request by the commission, the association shall provide a written report to the commission regarding the activity and status of the escrow account in which the race funds are maintained. The report must include the name of the financial institution in which the account is held, the dates and amounts of deposits into the account by each nominator or sponsor, the dates and amounts of all withdrawals or deductions from the account, and for what purpose each withdrawal or deduction was made. (f) Not later than 15 days after the purse from the race is released for payment by the commission, the association shall provide to the commission the final report for the escrow account. The final report must include all information required in subsection (e) of this section and a certification by the association that the purse has been distributed. The certification must state how the purse was distributed to each purse winner, including the address to which a check was mailed or the date on which winnings were deposited in the appropriate horsemen's account. (g) An association may not conduct a stakes or other prepayment race sponsored by a person or organization other than the association unless the person or organization agrees in writing to comply with this section. The failure of an association to ensure compliance with this section is grounds for disciplinary action against the association. (h) This section applies to stakes or other prepayment races scheduled to be conducted on or after January 1, 1993. 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 28, 1992. TRD-9212118 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: October 1, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter C. Simulcast Wagering Simulcasting at Horse Racetracks 16 TAC sec.321.232 The Texas Racing Commission adopts an amendment to sec.321.232, concerning negotiation with horsemen, without changes to the proposed text as published in the June 16, 1992, issue of the Texas Register (17 TexReg 4326). The amendment is adopted to ensure that the pari-mutuel racing will be conducted with the highest integrity and that the participants in pari-mutuel racing are protected. The amendment eliminates the requirement that an association negotiate with an organization representing jockeys regarding simulcasting. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. 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 28, 1992. TRD-9212119 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: October 1, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 794-8461 TITLE 22. EXAMINING BOARDS Part VIII. Texas Appraiser Licensing and Certification Board Chapter 153. Provisions of the Appraiser Licensing and Certification Act 22 TAC sec.153.17 The Texas Appraiser Licensing and Certification Board adopts an amendment to sec.153.17 relating to renewal of certification, license or trainee approval; continuing education, with changes to the proposed text as published in the July 7, 1992, issue of the Texas Register (17 TexReg 4869). Minor editorial changes were made from the published text to clarify the intent of the amendment. The amendment adds specificity to the appraiser continuing education (ACE) requirements including the implementation date of two years after implementation of the federal Title XI, Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), the purpose of appraiser continuing education, types of acceptable educational offerings and courses, acceptable appraisal related topics, and allowing credit for the teaching of appraisal courses and other appropriate activities. They also require a minimum of seven hours of coverage of the Uniform Standards of Professional Appraisal Practice (USPAP) every other renewal. Requirements for renewing an appraiser trainee approval specifies that a trainee must complete 15 classroom hours of the Uniform Standards of Professional Appraiser Practice (USPAP) in order to renew the first year, and must complete 30 classroom hours of acceptable appraisal courses every other annual renewal thereafter. An additional 15 classroom hours of USPAP is required for the sixth annual trainee approval renewal. One written comment was received. The Foundation Appraisers Coalition of Texas (FACT) supported the amendments to the rules. The amendment is adopted under the Texas Appraiser Licensing and Certification Act, Texas Civil Statutes, Article 6573a.2, which provides the Texas Appraiser Licensing and Certification Board with authority to adopt rules and regulations necessary for the performance of its duties. sec.153.17. Renewal of Certification, License, or Trainee Approval; Appraiser Continuing Education. (a)-(d) (No change.) (e) As a condition for renewing a certification or license after December 31, 1994, or two years after the federal implementation of Title XI, Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), whichever is later, an appraiser must successfully complete the equivalent of at least 20 classroom hours of appraiser continuing education (ACE) courses approved by the board, during the two-year period preceding the expiration of the certification or license. The board shall base its review and approval of appraiser continuing education courses upon the then current appraiser qualification criteria of the Appraiser Qualifications Board. (1) The purpose of ACE is to ensure that certified and licensed appraisers participate in programs that maintain and increase their skill, knowledge, and competency in real estate appraising. (2) The following types of educational offerings may be accepted for meeting the ACE requirements: (A) a course that meets the requirements for certification or licensing also may be accepted for meeting ACE provided: (i) the course is devoted to one or more of the appraisal related topics of the then current appraiser qualifications criteria of the Appraiser Qualifications Board (AQB) for continuing education; and (ii) the course was not repeated within a three-year period; (B) a course that has been accepted by an appraiser professional trade association as meeting the association's continuing education requirements if the board has previously approved one or more courses from the association as meeting licensure or certification requirements, provided that the course must have been at least two hours in duration and devoted to one or more of the appraisal related topics of the then current appraiser qualifications criteria of AQB for continuing education; (C) a course specifically approved by the board for meeting ACE offered by a provider as specified in sec.153.13(b)(2) of this title (relating to Educational Requirements), provided the course is devoted to one or more of the appraisal related topics of the then current appraiser qualifications criteria of the AQB for continuing education and the course is at least two hours in duration; (D) a course that meets the Texas Real Estate Commission mandatory continuing education (MCE) requirements, provided it is devoted to one or more of the appraisal related topics of the then current appraiser qualifications criteria of AQB for continuing education; (E) a seminar or other educational offering that deals with appraisal issues, offered by an appraiser trade association, a related association, or by a federal or state governmental agency, provided the offering was at least two hours in duration, and is devoted to one or more of the appraisal related topics of the then current appraiser qualifications criteria of AQB for continuing education. (3) as part of the 20 classroom hour ACE requirement, an appraiser must successfully complete a minimum of seven classroom hours of instruction covering the Uniform Standards of Professional Appraisal Practice (USPAP) before the appraiser's second renewal after December 31, 1992, of certification or licensure, and before every even numbered renewal thereafter (fourth, sixth, eighth, etc.). (4) Copies of transcripts or course completion certificates from the course provider must accompany the application for renewal form. (5) Appraiser continuing education credit may also be granted for participation, other than as a student, in real estate appraisal educational processes and programs. Examples of activities for which credit may be granted are teaching, educational program development, authorship of real estate appraisal textbooks, or similar activities that are determined by the board to be equivalent to obtaining appraiser continuing education. Appraisal experience may not be substituted for ACE. (f) As a condition for renewing an appraiser trainee approval, a trainee must successfully complete the following educational courses which meet requirements for application for licensing and certification: (1) for the first annual renewal, 15 classroom hours devoted to the USPAP (2) for the third annual renewal, 30 classroom hours of actual real estate appraisal courses; (3) for the fifth annual renewal, 30 classroom hours of actual real estate appraisal or appraisal related courses; (4) for the sixth annual renewal, 15 classroom hours devoted to the USPAP; and (5) for each second annual renewal thereafter, 30 classroom hours of actual real estate appraisal or appraisal related courses. 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 September 4, 1992. TRD-9212102 Renil C. Liner Commissioner Texas Appraiser Licensing and Certification Board Effective date: October 1, 1992 Proposal publication date: July 7, 1992 For further information, please call: (512) 465-3950 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 102. Practice and Procedures 28 TAC sec.102.8 The Texas Workers' Compensation Commission adopts new sec.102.8, concerning information required on written communications, with changes to the proposed text as published in the May 26, 1992, issue of the Texas Register (17 TexReg 3821). This section is adopted to allow staff to identify the injured worker; match information to a claim file; identify the employer; verify whether the employer is covered by workers' compensation insurance; and to identify the insurance carrier that will provide benefits to the injured worker. This section is also adopted to comply with the federal requirement for disclosure to allow the commission to request the injured worker's social security number on forms or information requests. The only change made to the text of this section is in subsection (a)(1) where the phrase "work permit (green card)" was replaced with the more formal and correct phrase "immigrant or non-immigrant visa." Section 102.8 requires any person communicating with the commission regarding an injured employee or claim to provide specific information if they know it. There were no public comments received on this section. The new section is adopted under Texas Civil Statutes, Article 8308-2.09(a), authorizing the commission to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act and Article 8308-2.11(f), which allows the executive director to prescribe the form, manner, and procedure for transmission of information to the commission. sec.102.8. Information Required on Written Communications to the Commission. (a) All written communications to the commission regarding an injured worker or claim for benefits shall include the following information, if known: (1) the injured worker's full name, date of injury, address, and social security number, or immigrant or non-immigrant visa number if no social security number has been assigned; (2) the name and address of the claimant, if other than the injured worker; (3) the workers' compensation number assigned to the claim by the commission; (4) the employer's name and address; (5) the employer's federal employer's identification number (FEIN); (6) the insurance carrier's name; (7) the insurance carrier's policy number; and (8) the insurance carrier's claim number. (b) Written communications involving medical issues shall also provide the information required by sec.133. 1 of this title (relating to Information Required in Communications). 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 September 8, 1992. TRD-9212208 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: October 1, 1992 Proposal publication date: May 26, 1992 For further information, please call: (512) 440-3592 Chapter 112. Scope of Liability for Compensation Subchapter E. Application to Certain Professional Athletes 28 TAC sec.112.401, sec.112.402 The Texas Workers' Compensation Commission adopts new sec.112.401 and sec.112.402, concerning the election of workers' compensation or contract benefits to be made by certain professional athletes with changes to the proposed text as published in the June 19, 1992, issue of the Texas Register (17 TexReg 4427). These sections are adopted as required by Texas Civil Statutes, Article 8308- 3.075, to clarify when a professional athlete must make a selection of benefits and to establish a mechanism for comparing those benefits. Section 112.401 requires a professional athlete, no later than 15 days after an injury, to make a written election to receive either workers' compensation insurance benefits or equivalent benefits provided by contract or collective bargaining agreement; requires the employer to provide the athlete with written notice of this mandatory election at the time the contract is executed; and establishes filing requirements for the written election. Section 112.402 defines when contractual benefits are equal to or greater than workers' compensation insurance benefits. There were no public comments received as a result of proposing these sections at this time, however, they were previously proposed and automatically withdrawn. The public comments when previously proposed were: The commission should amend the rule to permit a one-time, pre-injury election which is irrevocable and binding throughout the athlete's employment with that particular professional franchise, whether pursuant to one or several contracts. This is in keeping with Article 8308-3.08(b), which requires that employees (not just professional athletes) who wish to retain their common law rights must do so within five days of beginning their employment. The commission disagrees. Pursuant to Article 8308-3.075, the injured athlete is entitled to benefits that are equal to or greater than workers' compensation benefits. Contract benefits available to the athletes appear to change with time, so that an injury at the end of the contract period will result in less overall benefit than an injury at the beginning of the contract period. If the injured athlete will not be entitled to benefits that are equal to or greater than workers' compensation benefits, the Act does not allow them to make an election. Also, each new contract or collective bargaining agreement has the potential to change the equivalence of benefits. Thus, benefits must be compared after the injury to be certain that the the statute even allows the athlete to make a choice. The commission should amend the rule to provide that an athlete who signs a guaranteed contract, which requires that an athlete be paid whether injured or not and whether he/she plays or not, is deemed to have elected to receive the contract benefits. The commission disagrees. The rule as proposed includes a provision that the failure to make an election will result in a presumption that the athlete elected the option that would result in the highest benefits, which is consistent with the legislative requirement that benefits be at least equal before an election is made. Deeming the election to be made by the nature of the contract would not guarantee that the benefits are at least equal when the election must be made. In subsection (a), the 15-day deadline is not mandated by the statute and may confuse athletes, complicate administration, and cause unnecessary litigation. Other injured employees have 30 days in which to file a claim and the same time frame should apply here. The commission disagrees. Commenter is in error. Article 8308-5.01(a) provides that an employee has 30 days after an injury to notify the employer that an injury occurred, not to file a claim. Article 8308-5.01(b) provides that an injured employee has one year from the date of injury to file a claim for compensation. The issue here however, is the athlete providing notice of the type of benefits that he or she is electing to pursue. Establishing a different filing deadline emphasizes the fact that the actions are different. In subsection (a), the presumption that an athlete who fails to make an election has elected the option which provides the highest benefits eliminates the athlete's statutory right to elect which benefits to receive. The commission does not have the statutory authority to create a default method of election. The commission disagrees. The creation of the presumption does not take away the athlete's statutory right to elect. It merely provides a mechanism for determining which benefits are to be paid if the athlete is unwilling or unable to make the election which is required by law. Subsection (b) of Article 8308- 3.075 authorizes and requires the commission to establish the procedures and requirements for the election. In subsection (a), the term "highest benefits" is not found in the statute and there is no assurance that an outsider such as a representative of the commission or administrative law judge will be in a position to determine which benefits are the highest. Problems could arise if an arbitrator ruled that the contract benefits were the highest while the commission refused to permit the election. The commission disagrees. The common meaning of "highest" would clearly indicate that the phrase relates to benefits that are greater than other benefits. By using the formulas set out in sec.112.402 a person can compare the benefits and determine which are greater. The authority to resolve disputes about professional athletes' elections under Article 8308-3.075 rests with the commission, not an arbitrator with jurisdiction over a collective bargaining agreement. In addition, if the commission determined that the benefits available under the Act were greater, the athlete could not make an election. Subsection (a) forces the athlete to elect between his statutory benefits and the benefits available to him under a collective bargaining agreement or contract. This ventures close to, and perhaps beyond, the boundary between permissible state regulations and exclusive federal labor law. This may result in the entire rule being invalidated. The commission disagrees. The election is required by Article 8308-3.075. This rule merely provides the procedure by which the mandatory election will be made and ensures that the athlete is given notice that he or she must make an election. It is an appropriate exercise of the rule-making process for the commission to adopt a rule required by statute. The commission does not believe federal labor law preempts this state law. In subsections (c) to (e), the procedures for making the election and notifying the commission and the employer's insurance carrier of the election are unnecessarily burdensome and complicated. The commission disagrees. The procedures established in subsections (c) to (e) are the same procedures which must be followed by contractors and subcontractors under Articles 8308-3.05 and 8308-3.06 of the Act and Chapter 112 of the rules. It is administratively simpler for the commission to use similar procedures for making and filing all elections and agreements. Subsection (f) is repetitive and unnecessary. The same point is made in subsection (a). The commission disagrees. The purpose of subsection (f) is to make clear that the election is binding on the athlete and the term for which it is binding. Subsection (a) merely states that an election must be made and when the election must be made. The athlete (or his next of kin) should be required to make an election at the time the athlete seeks benefits or files a claim with respect to a particular injury. If the athlete does not timely file a claim for benefits under the Act, then he should be deemed to have elected the benefits under his contract. The commission disagrees. An injured worker (including professional athletes) has one year from the date of injury to file a claim to receive benefits under the Act. This would create an unworkably long period before it could be determined whether an athlete was electing to receive benefits under the Act or under a contract or collective bargaining agreement. Thus, the employer's insurance carrier will not get clear and timely notice of whether a specific athlete is covered by the workers' compensation policy which will make calculation of the appropriate premium difficult if not impossible. In a recent decision by the United States Court of Appeals for the District of Columbia, the Federal Employee Retirement Income Security Act of 1974 (ERISA) was held to preempt a statute which required employers to provide equivalent health insurance benefits to employees while they received workers' compensation. This statute should be considered preempted and no rule drafted. The commission disagrees. The statute which was held to be preempted in the cited case required an employer, who provided health insurance coverage to an employee, to provide health insurance coverage equivalent to the existing coverage while that employee received or was eligible to receive workers' compensation coverage. Article 8308-3.075 does not require the employer to provide equivalent coverage while the athlete is receiving or eligible to receive workers' compensation. Instead, this statute mandates that when the teams provide equivalent benefits the athlete must elect which benefits to receive. The rule should require the election after extent of injury and disability has been determined. The commission disagrees. Many injuries take years to determine extent. Since workers' compensation benefits are required to be paid within a limited time after the insurance carrier is notified that an injury resulted in more than eight days of disability, allowing the choice to be delayed would create an untenable situation for the carrier and the employer. The employer would have to report the injury to avoid penalties established in the Act. The carrier would have to begin paying benefits, also to avoid penalties under the Act. The athlete should be allowed a choice for each of the benefits provided under workers' compensation. The commission disagrees. Article 8308-3.075 does not require that athletes be given a choice for each benefit. It requires that, under specific conditions, an athlete choose between workers' compensation benefits and contract or collective bargaining benefits. Based on the statute and sec.112. 402, if any of the benefits fails to be equal to or greater than workers' compensation benefits, the athlete is not allowed to make an election. Comments were filed by the following in support of change to the rules as proposed: Texas Professional Sports Coalition; The Senate of the State of Texas; Houston Sports Association, Inc.; Mattingly & Marsh; Jackson & Walker, Attorneys for the Texas Rangers Baseball Club; National Football League Players Association The new sections are adopted under Texas Civil Statutes, Article 8308-3.075, which require the commission to adopt rules to establish the procedures and requirements for an election of benefits, and Article 8308-2.09(a), authorizing the commission to adopt rules necessary to implement and enforce the Texas Workers' Compensation Act. sec.112.401. Election of Coverage by Certain Professional Athletes. (a) A professional athlete employed by a franchise with workers' compensation insurance coverage and subject to the Texas Workers' Compensation Act (the Act), Article 8308-3.075, shall elect to receive either the benefits available under the Act or the equivalent benefits available under the athlete's contract or collective bargaining agreement.The election shall be made not later than the 15th day after the athlete sustains an injury in the course and scope of employment. If the athlete fails to make an election, the athlete will be presumed to have elected the option which provides the highest benefits. (b) When a contract is signed by a professional athlete, the employer shall give the athlete a copy of the following statement: "(Name of employer) has workers' compensation coverage from (name of insurance carrier). If the benefits available to you under your contract and any applicable collective bargaining agreement are equivalent to or greater than those available to you under the Texas Workers' Compensation Act, Article 8308-3.075 of that Act requires you to elect whether to receive the benefits available to you under the Act or the benefits available to you under your contract and any applicable collective bargaining agreement. You must make this election no later than 15 days after sustaining an injury. If you elect to receive the benefits available to you under your contract and any applicable collective bargaining agreement, you cannot obtain workers' compensation income or medical benefits if you are injured. You can get more information about your workers' compensation rights and the benefits available to you under the Act from any office of the Texas Workers' Compensation Commission, or by calling 1-800-252-7031." (c) The election shall be in writing and shall: (1) indicate the date of the injury for which the election is being made; (2) indicate whether the athlete elects to receive the benefits available under the Act or the benefits provided under the contract or agreement; and (3) be signed by the athlete and the employer. (d) If the athlete elects to receive the benefits available under the Act, the election shall be provided to the commission by personal delivery or registered or certified mail within 10 days of the date of execution. A copy shall also be provided to the franchise's workers' compensation insurance carrier within 10 days of the date of execution. Both the athlete and the franchise shall also keep a copy of the election. (e) If the athlete elects to receive the benefits available under the contract and any agreement, the election shall be provided to the franchise's workers' compensation insurance carrier by personal delivery or registered or certified mail within 10 days of the date of execution. Both the athlete and the franchise shall keep a copy of the election. (f) An election made under this section is irrevocable and binding on the athlete and the athlete's legal beneficiaries for a compensable injury incurred on the date specified in the election. sec.112.402. Determination of Equivalent Benefits for Professional Athletes. (a) Medical care available to a professional athlete subject to the Act, Article 8308-3.075, is equal to or greater than medical benefits under the Act if: (1) the athlete is entitled to all health care reasonably required by the nature of the work-related injury as and when needed, including all health care that: (A) cures or relieves the effects naturally resulting from the work-related injury; (B) promotes recovery; or (C) enhances the ability of the employee to return to or retain employment; and (2) the employer's liability for health care is not limited or terminated in any way by the contract or collective bargaining agreement. (b) When the athlete is not eligible for lifetime income benefits or when the athlete's legal beneficiaries are not eligible for death benefits under the Act, weekly benefits available to a professional athlete subject to the Act, Article 8308-3.075, are equal to or greater than the income benefits provided under the Act if the total amount of the payments provided for in the contract or collective bargaining agreement is equal to or greater than the maximum weekly benefit available under the Act multiplied by 104. (c) When the athlete is entitled to lifetime income benefits under the Act, weekly benefits available to a professional athlete subject to the Act, Article 8308-3.075, are equal to or greater than the income benefits provided under the Act if equal to or greater than the maximum weekly benefit available under the Act. (d) When the athlete's legal beneficiaries are entitled to death benefits under the Act, weekly benefits available to the legal beneficiaries of a professional athlete subject to the Act, Article 8308-3.075, are equal to or greater than the death benefits provided under the Act if equal to or greater than the maximum weekly benefit available under the 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 September 8, 1992. TRD-9212209 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: October 1, 1992 Proposal publication date: June 19, 1992 For further information, please call: (512) 440-3592 Chapter 134. Guidelines for Medical Services, Charges, and Payments Subchapter J. Reviews and Audits 28 TAC sec.134.900 The Texas Workers' Compensation Commission (TWC) adopts new sec.134.900, concerning the regulation of medical benefits, with a change in title, but no changes to the proposed text as published in the July 10, 1992, issue of the Texas Register (17 TexReg 4941). This new section is adopted as required by Texas Civil Statutes, Article 8308- 8.01(b) and as required to implement Article 8308-8.21. It implements the program of medical review of fees charged, payments made, and medical services provided which was contemplated by the Act in Article eight. The secction requires health care providers, insurance carriers, third party administrators, and others to allow staff of the medical review division access to their records and facilities to perform reviews and audits. Public comments received on this section were: There may not be statutory authority to charge a health care provider for the review and audit conducted by TWCC. The commission disagrees. The statute clearly gives the TWCC the authority to charge a health care provider a fee for the review of health care fees and treatments when the provider's fees and treatments exceed the fee and treatment guidelines and policies established by the commission. Health care providers will not incur a charge for the review and audit unless their fees and treatments are found to exceed these guidelines and policies. It is unfair to require small practices to provide an office and access to a copy machine and telephone. The commission disagrees. This section requires office space to be provided; however, the term "office space" simply requires a health care provider to provide a work space large enough for the auditors to review the medical records, not an enclosed office. The statute requires the health care providers to submit copies of reports and records to the commission when requested and does not allow the provider to charge the commission for copies. It allows providers to charge insurance carriers for copies of reports provided to that carrier. Access to a copy machine allows the auditors to make their own copies to ensure that the information is complete and accurate. Access to a telephone is only necessary when the audited providers cannot clarify issues related to the fees and treatments from within their own records. Since the review and audit is initiated by the commission, there should not be a charge to the provider except when the provider exceeds fee or treatments guidelines established by the commission. The commission agrees. The exception stated by the commenter is the only time a provider will be required to incur the expense of the audit. The fiscal notes did not accurately reflect the true economic impact, especially for small health care providers treating few workers' compensation cases, because it listed an hourly rate instead of the anticipated total cost per audit. The commission disagrees. The fiscal notes listed the hourly rate because the anticipated cost per audit can vary significantly between different audited entities. The providers who treat few workers' compensation cases will be audited fewer hours. The larger health care providers treating a higher percentage of workers' compensation cases will incur a greater total cost due to more hours. This section should include a provision to ensure patient confidentiality. The commission disagrees. Pursuant to the statute, all information in or derived from a claim file regarding an injured employee is confidential, and is treated as such by commission employees. Increasing the intensity of review will punish health care providers and circumvent due process. The commission disagrees. The statute mandates that health care providers' fees and treatments be reviewed. In addition, the statute mandates that the intensity of review be increased to ensure compliance when a providers' practices and patterns of medical charges and treatments are inconsistent with established guidelines. This rule is established to comply with the statutory mandate that the commission will increase the intensity of review. In addition, any violations noted during the audit are referred to the Compliance and Practice Division. This referral allows for due process provided through the Administrative Procedure and Texas Register Act. The carriers, third party administrators, and audit companies should be audited and held accountable for their actions. The commission agrees. All parties in the workers' compensation system should be accountable for fulfilling their responsibilities under the law and rules, and health care providers are not exempt from being held accountable. The commission also agrees that such accountability can be beneficial to the workers' compensation system. Comments on this proposed section were received from the Fort Worth Hospital Council, Physical Therapy Services, and the Texas Medical Association Committee on Workers' Compensation and Occupational Health, all generally opposed to some aspects. The new section is adopted under Texas Civil Statutes, Article 8308, sec.2. 09(a), which authorize the commission to adopt rules necessary to administer the Act, Texas Civil Statutes, Article 8308, sec.8.01, which require the commission to adopt rules to regulate medical services and the fees for those services, and Texas Civil Statutes, Article 8308, sec.8.21, which specifically direct the commission to address review and audit by rule. sec.134.900. Medical Benefit Review and Audit. (a) The division of medical review (the division) shall review and audit medical services, to include, but not be limited to: (1) treatments administered; (2) services provided; (3) fees charged; (4) payments made for medical treatment or services provided to injured employees; and (5) compliance with other commission rules regulating health care. (b) The division may conduct a review or audit at the office of an insurance carrier, third party administrator, audit company, health care provider, or at any other appropriate location as determined by the division. (c) The division shall notify, in writing, the person or entity whose documents are to be reviewed and audited, stating when the review and audit will be performed and the commission employee to contact. (d) The division shall be granted access to documents and to information regarding health care treatment; fees charged; or payments made, modified, or denied. Pursuant to law, failure or refusal to comply with a division request or order for any information is an administrative violation subject to penalty as provided by the Act. (e) The person or entity being reviewed or audited by the division shall furnish division personnel, for the duration of the review and audit, with: (1) a contact person to answer questions and respond to the needs of division staff; (2) office space; (3) access to a copy machine; and (4) access to a telephone. (f) The commission shall charge a reasonable administrative fee, set in accordance with Administrative Procedure 5, for the review and audit conducted under this rule. (g) The intensity of review and audit for compliance with medical policies and fee guidelines shall be increased as necessary to induce compliance by the health care provider who has established practices and patterns in medical charges or treatments inconsistent with medical policies and guidelines established by the commission. (h) Reports of all probable violations of law and commission rules found during a review and audit shall be forwarded to the division of compliance and practices. 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 September 8, 1992. TRD-9212210 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: October 1, 1992 Proposal publication date: July 10, 1992 For further information, please call: (512) 440-3592 Chapter 152. Attorney's Fees 28 TAC sec.152.3 The Texas Workers' Compensation Commission adopts amended sec.152.3, concerning the approval of fee by the commission, without changes to the proposed text as published in the July 10, 1992, issue of the Texas Register (17 TexReg 4941). This amended section is adopted as required by Article 8308-4.09 to provide a mechanism for attorneys to get fees approved and for the client to protest the amount of that fee. It additionally provides a viable recourse for the client to recoup overpaid fees. The section requires attorneys to submit bills on a specific form and to provide a copy of that bill to their client. It allows the client to protest the fee approved by the commission and establishes that the attorney will pay any amounts found to be overpaid. Public comments regarding this section and the commission responses follow: The amendment requiring the carrier to pay the entire attorney fee pending an appeal is not authorized by the Act. The Act "limits any payment during the pendency of an appeal to workers' compensation benefits." Articles 8308-6.34(h) and 8308-6.42(e). "Benefits," by definition, do not include attorney fees. Article 8308-1.03(5). The legislature intended only benefits to be continued in recognition "that a claimant may become destitute before recovery is final. In the case of attorney fees, a similar justification or urgency does not exist." The commission disagrees. A commission decision on a claimant's attorney's fees is a "decision regarding benefits," as referenced by Articles 8308-6.34(h) and 8308-6.42(e), since the claimant's income or death benefits are the source of the fee. Article 83084.09(b). The amendment requiring the carrier to pay the entire attorney fee pending an appeal conflicts with the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure. The rules require a party wishing to appeal a trial court's judgment to file a bond. The bond suspends enforcement of the judgment. The amendment serves to enforce the judgment on attorney fees, thus violates the rules. The commission disagrees. If the Act is in conflict "with the Texas Rules of Civil Procedure or any other rules promulgated or adopted by the Supreme Court of Texas," the Act controls. Article 830-86.62(c)(4). The amendment requiring the carrier to pay the entire attorney fee pending an appeal does not provide an adequate mechanism to recover funds. The legislature provided a mechanism to recover reimbursement of overpaid benefits (the subsequent injury fund) if the carrier ultimately prevails. No similar mechanism is provided by the rule for overpaid attorney fees. The attorney may be ordered to repay the carrier, but there is no guarantee of repayment. Neither is there provision for interest, nor penalty for late payment. "To guarantee payment, sec.152.3 should provide for the computation of interest and should provide a penalty for recovering delinquent payments." The commission disagrees. The attorney may be required to repay the injured employee based on final order of the commission or the courts. Compliance with a final commission order can be enforced by an administrative penalty and a suit to enforce. Article 8308-10.21(b)(3); Article 6252-13a, sec.19A, Administrative Procedure and Texas Register Act, Texas Civil Statutes Compliance with an order of the court is enforced by the court. The commission should require the insurance carrier to notify the legal representative of the claimant of every document sent to the claimant. The commission agrees. Section 102.4(b) already requires essentially what the commenter is requesting. If that isn't happening, the commission should be provided with details of the violation to allow enforcement actions. The insurance carrier should be required to specifically notify the legal representative of the initiation of impairment income benefits. The commission agrees. This is covered by sec.102.4(b) which requires the carrier to provide copies of notices to the representative, after they are notified in writing of the representation. The commission should require the carrier to withhold 25% of the temporary income benefits when the claimant receives 0% impairment. The commission disagrees. Because impairment is rated only when the injured employee has reached maximum medical improvement, the carrier will not know that there will be a 0% impairment until the point in time when no weekly benefit will be available from which to deduct 25%. The commission should require the carrier to withhold 25% of the impairment income benefits for payment of attorney fees. The commission disagrees. The carrier is required to comply with Article 8308- 5.22(a), which requires payment directly to the employee or beneficiaries, and with Article 8308-4.07(a), which establishes that benefits are exempt from legal process and are not assignable. Until the attorney obtains commission approval for a fee, the attorney does not have an allowable lien as provided in Article 8308-4.08(a)(1). The commission should require the carrier to pay the claimant a lump sum, of any amounts remaining of the 25% withheld, after attorney fees are paid. The commission disagrees. Since the carrier may not withhold benefits, there cannot be a balance to pay. If it was permissible to set aside a portion of the injured employee's benefit checks to pay for attorney fees, this might be a workable method for dealing with the excess. Comments on this section were received from the American Insurance Association and a private attorney. Both were opposed to the section in general or the revisions in particular. This new section is adopted under Texas Civil Statutes, Article 8308-4.09 which require the commission or a court to approve attorney fees and Texas Civil Statutes, Article 8308-2.09(a) which authorize the commission to adopt rules necessary to administer the 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 September 8, 1992. TRD-9212211 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: October 1, 1992 Proposal publication date: July 10, 1992 For further information, please call: (512) 440-13592 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part IX. Texas Water Commission Chapter 284. Private Sewage Facilities Subchapter R. Richland Creek Reservoir Note: In the August 25, 1992 issue of the Texas Register, 17 TeReg 5791, a conversion chart was published transferring rules from 31 TAC Chapter 285 to 31 TAC Chapter 284. Subchapter R. was not published in this chart. Tthe table below lists the conversion of Subchapter R. with the new section numbers and the old section numbers that correspond to them.) Chapter 320. Regional Assessments of Water Quality Program for Water Quality Assessment by Watershed 31 TAC sec.320.21, sec.320.22 The Texas Water Commission adopts sec.320.21, and sec.320.22, concerning the program for water quality assessment by watershed. Section 320.21 is adopted with changes to the proposed text as published in the July 14, 1992 issue of the Texas Register (17 TexReg 5003). Section 320.22 is adopted without changes and will not be republished. Section 320.21(a) provides a list of definitions and terms which apply to the section. Subsection (b) states the basis and the purpose for the fee. Subsection (c) provides the basis for assessing municipal and industrial uses of water. Subsections (d), (e), and (f) provide the bases for assessing a fee against water right holders. Subsections (g), (h), and (i) describe how retail public utilities may collect from customers a charge to recover the amount of the fee assessed. Subsection (j) sets out the dates upon which the fees shall be paid. Subsection (k) provides that the fees may be adjusted to ensure the adequate support of the programs and the equitable assessment of fees. Section 320.22 relates to allocation of fee revenue. Subsection (a) of that section provides that river authorities or designated local governments shall be eligible for reimbursement of the costs of development of water quality assessments and implementation of the provisions of Chapter 320. Subsection (b) provides that the schedule and amount of any reimbursement shall be determined by mutual agreement of the commission and the appropriate river authority or local government based on an approved water quality assessment report or work plan. The commission received comments on the proposed rules from Dallas Water Utilities, Fort Worth Water Department, Gulf Coast Waste Disposal Authority, North Central Texas Council of Governments, Red Bluff Power Control District, Texas Chemical Council, Texas Eastman Division of the Eastman Chemical Company, and the Trinity River Authority. Several commenters suggested that assessed fees be used only for projects within the basin from which the fees were collected. The commission believes that the intent of the legislation and the rule is to address water quality on a statewide basis. To strictly allocate income and expense by river basin would be costly and cumbersome and could harm the overall benefits of the program. Therefore, the commission did not incorporate this comment into the adopted rule. Other commenters asserted that point source dischargers pay an inordinate amount of the fees compared to nonpoint dischargers. They recommended that TWC devise a method to assess more fees on nonpoint source dischargers, though they supported using permitted water use as a means to identify significant nonpoint sources. The commission responds that Senate Bill 818 clearly states that fees shall be assessed against permitted wastewater dischargers and users of water. The legislature did not authorize a mechanism to assess costs to non-point source dischargers. Therefore, the commission did not incorporate this comment into the adopted rule. One commenter suggested the commission add the following sentence to sec.320. 21(a)(19): "If the permit does not contain a BOD limit then the higher of COD or TOC should be used to derive the BOD value according to the calculation." Pursuant to this comment, the commission incorporated the above comment into the adopted rule. Another commenter suggested that fee assessments be based on the greater dollar amount as determined by permitted wastewater discharge or water use, clarifying that fee assessments are not based on both. It is the position of the Texas Water Commission that the fee methodology is not based on any dollar amount, but prioritizes wastewater discharge uses first, then it cross references if they have a water right permit, and eliminates duplicative uses, and then bills for those uses that are not already being billed under the wastewater permit. The fee methodology bills for all uses for water rights if the permit holder does not have a wastewater discharge permit. Therefore, the methodology does eliminate duplication of assessing fees for the same uses. Therefore, the commission did not incorporate this comment into the rule. One of the comments recommended clarifications to sec.320.21(d) relating to fee calculations for water right holders, to eliminate potential confusion without changing the substance of the adopted regulation as follows: "For water right holders entitled to divert for irrigation more than 100 acre- feet per year, the fee shall be $50 plus $.07 per acre foot per year in excess of 100 acre-feet per year, in addition to..." Pursuant to this comment, TWC incorporates the above changes into the rule. One commenter agreed with the provision requiring verification of water rights use reports for irrigators claiming credit. However, the commenter recommended deleting verification requirements in favor of the 1990 water use reports as the sole verification device. The commission believes that some verification procedure is necessary in order to ensure a fair and accurate assessment for all affected entities. Therefore, the commission did not incorporate this comment into the adopted rule. Another commenter recommended that the exemption in sec.320.21(f) be expanded to include water which is authorized in a permit for consumptive use but is not actually appropriated by the permittee. No feasible method exists whereby the commission could accurately verify actual flows. Furthermore, the rule tracks directly the statutory language which provides that the fees shall be based on the "right" to withdraw, not the actual amount withdrawn. Therefore, the commission did not incorporate this comment into the rule. One of the comments suggested specific wording to revise sec.320.21(e) to assess fees only on the amount of water actually used. The commission has addressed this issue in the rules by issuing a credit to irrigation use for the verified difference in the permit and actual use. Therefore, the commission did not incorporate this comment into the rule. Another commenter suggested TWC clarify sec.320.21(d) regarding calculation of fees associated with water rights appropriated for consumptive use including irrigation use. The commenter asked whether the fee for consumptive use is calculated based on the total appropriation for consumptive use or only on amounts greater than 250 ac-ft, and also whether the fee for irrigation rights is based on that portion of the appropriation that exceeds 100 ac-ft. The rule is intended to assess fees for consumptive use only on amounts greater than 250 acre-feet. The fee for non-consumptive irrigation use assesses a fee of $50 to all water right uses classified as irrigation and if their entitlement is more than 100 acre-feet per year they shall be assessed $. 07 per acre-foot in addition to the minimum fee. Therefore, the commission believes the rule addresses these comments already and requires no change. Another comment recommended that the regulation contain guidelines for calculating water quality assessment fees associated with a water rights appropriation that includes more than one use and specific amounts are not given for each use. The commission will include flyers in the bills explaining the methodology for assessments. TWC staff will provide further assistance as necessary. Therefore, the commission did not incorporate this comment into the adopted rule. Another commenter said that the fee penalizes facilities that are operated carefully because it is based on permitted flow rather than actual flows and pollutant discharge. However, the commission believes that no feasible method exists whereby it could accurately verify actual flows. Furthermore, the rule tracks directly the statutory language which provides that the fees shall be based on the "right" to discharge, not the actual amount discharged. Therefore, the commission did not incorporate this comment into the adopted rule. One comment stated, "The maximum fee cap for POTW's should be maintained at the current $35,000 cap rather than opening it up to some other scheme that could cost plants more." The current fee structure does maintain the $35,000 cap. Therefore, the commission did not incorporate this comment into the adopted rule. The sections are adopted in order to implement the fee methodology to fund the water quality assessment program authorized by Senate Bill 818. The assessment program has been codified in the Texas Water Code, sec.26.0135. The new sections are adopted under the Texas Water Code, sec.sec.5.103, 5.105, and 26.011, which provides the Texas Water Commission with the authority to adopt rules necessary to carry out its powers and duties under the code and all other laws of the State of Texas and to establish and approve all general policies of the commission. sec.320.21. Water Quality Assessment Fees. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise. (1) BOD-Five-day biochemical oxygen demand. (2) COD-Chemical oxygen demand. (3) Consumptive use-The use of water for domestic and municipal, industrial, irrigation or mining purposes, consistent with the meaning of these uses for which water may be appropriated under the Texas Water Code, sec.11.023 and sec.11.024. (4) Final flow limit-The maximum amount of wastewater discharge authorized by a permit issued in accordance with the Texas Water Code, Chapter 26 expressed as a daily average flow, a daily maximum flow, an annual average or an annual maximum. For the purpose of this section, a final flow limit is expressed in millions of gallons per day of discharge (MGD). (5) Flow-The total by volume of all wastewater discharges authorized under a permit issued in accordance with Chapter 26 of the Texas Water Code, expressed as an average flow per day, a maximum flow per day, an annual average or an annual maximum, exclusive of variable or occasional stormwater discharges. Generally, the flow is based on the sum of the volumes of discharge for all outfalls of a facility, but excludes internal outfalls. However, for those facilities for which permit limitations on the volumes of discharge apply only to internal outfalls, the flow is based on the sum of the volumes of discharge for all internal outfalls of the facility, exclusive of variable or occasional stormwater discharges. (6) Flow type: (A) contaminated-These wastewaters include sanitary wastewater, process wastewater flows or any mixed wastewaters containing more than 10% process wastewaters; (B) uncontaminated-these wastewaters include non-contact cooling water or mixed flows which contain at least 90% non-contact cooling water and not more than one million gallons per day of process wastewater. (7) Hydropower use-The use of water for hydroelectric and hydromechanical power and for other mechanical devices of like nature. (8) Industrial use-The use of water in processes designed to convert materials of a lower order of value into forms having greater usability and commercial value, including commercial feedlot operations, commercial fish production and the development of power by means other than hydroelectric. (9) Irrigation use-The use of water for the irrigation of crops, trees, and pastureland, including but not limited to golf courses and parks which do not receive water through a municipal distribution system. (10) MGD-Million gallons per day (11) Mining use-The use of water for mining processes including hydraulic use, drilling, washing sand and gravel, and oil field repressuring. (12) Municipal use-The use of treated water within or without a municipality and its environs whether supplied by a person, privately-owned utility, political subdivision, or other entity as well as the use of municipal sewage effluent for certain purposes specified as follows. It includes the use of treated water for domestic purposes, fighting fires, sprinkling streets, flushing sewers and drains, watering parks and parkways, and recreational purposes including public and private swimming pools, the use of treated water in industrial and commercial enterprises supplied by a municipal distribution system without special construction to meet its demands, and for the watering of lawns and family gardens. Municipal use also includes the application of municipal sewage effluent upon land sites, pursuant to a Texas Water Code, Chapter 26, permit, where: (A) the primary purpose of the application is the treatment and/or necessary disposal of such effluent; or (B) the application site is a park, parkway, golf course, or other landscaped area owned by the owner of the permitted sewerage system; or (C) the effluent applied to such site is generated within an area for which the commission has adopted a no-discharge to surface water rule. (13) Navigation use-A recognized use that is not currently included in any water rights. (14) Non-consumptive use-The use of water for those purposes not otherwise designated as consumptive uses under this section, including hydroelectric power, navigation, non-consumptive recreation and other beneficial uses, consistent with the meaning of these uses and for which water may be appropriated under the Water Code, sec.11.023, and sec.11.024. (15) Other use-Any beneficial use not otherwise defined herein (16) Recreational use-The use of water impounded in or diverted or released from a reservoir or watercourse for fishing, swimming, water skiing, boating, hunting, and other forms of water recreation, including aesthetic land enhancement of a subdivision, golf course or similar development. (17) Recharge use-The use of surface water to either increase the amount of natural recharge to an underground aquifer or the injection of water into an aquifer. (18) TOC-Total organic carbon. (19) Traditional pollutants-The wastewater parameters typically found in wastewater discharge permits, specifically oxygen demand (BOD/COD/TOC), total suspended solids (TSS) and ammonia. For the purpose of this section, COD and TOC are expressed in terms of BOD at the rate of three pounds of TOC equal to one pound of BOD (3:1) or eight pounds of COD equal to one pound of BOD (8: 1). If the permit does not contain a BOD limit then the higher of COD or TOC should be used to derive the BOD value according to the calculation. (20) TSS-Total suspended solids. (b) For the purpose of recovery of the costs of development of regional water quality assessments and administration of the provisions of this chapter, a fee is assessed against water right holders and wastewater discharge permit holders in each watershed of the state in proportion to their right to use water from and discharge wastewater into the watershed. (c) The municipal and industrial use of water shall be assessed a fee based on the authority of a permittee to dispose of or discharge wastewater under a permit issued pursuant to the Texas Water Code, Chapter 26. The fee shall be assessed on the basis of permitted flow and traditional pollutant limits and determined as the sum of the factors in paragraphs (1)-(3) of this subsection. When calculating the charge based on flow, this amount shall be calculated based on the daily average flow limit in the permit. For permits that do not have a daily average flow limit, the charge shall be based on 50% of the daily maximum flow limit: (1) for contaminated discharges, $300 per MGD up to a maximum of 100 MGD; and $10 for each additional MGD or fraction thereof; (2) for uncontaminated discharges, $1.00 per MGD; (3) for each traditional pollutant, $2.00 per pound per day. The annual fee assessed for each wastewater discharge permit shall be a minimum of $200 and shall not exceed $35,000. The fee for a permit which does not authorize the discharge of wastewater, including evaporation and land disposal permits, shall be $150. The fee for an inactive permit shall be $100. (d) Water right holders not subject to subsection (c) of this section shall pay a fee based on the right to appropriate water under a permit issued pursuant to the Texas Water Code, Chapter 11. The fee for all water rights entitled to divert more than 250 acre-feet per year for consumptive use, other than water rights appropriated for irrigation, shall be $.20 per acre foot up to 10,000 acre feet, and $.02 per acre-foot thereafter. The fee shall be $.02 per acre foot for water rights appropriated for non-consumptive use above 2,500 acre-feet per year up to 100, 000 acre feet, and $.002 per acre-foot thereafter. Holders of water rights appropriated for irrigation shall pay a minimum fee of $50 per permit with no exceptions. If a water right includes irrigation use which has specific amounts stated for each of the multiple holders, each of these holders shall pay a separate $50 fee for that permit. Water right holders entitled to divert for irrigation 100 acre-feet or less per year will be assessed only the $50 minimum fee. For water right holders entitled to divert for irrigation more than 100 acre-feet per year, the fee shall be $50 plus $.07 per acre foot per year in excess of 100 acre-feet per year in addition to the minimum fee. (e) Water right holders entitled to divert for irrigation more than 100 acre- feet of water annually will be assessed $.07 per acre-foot. If the amount of water actually diverted is less than the water entitlement, the water right holder for irrigation would be entitled to a credit at $.07 per acre-foot for the difference between the total appropriated amount and the amount of water actually diverted. The 1990 water use reports will be the governing year for any claimed credits. Diverters claiming any credits would have to meet the following condition of verification: actual diversions would have to be verified by the commission's watermaster program or a federal entity (i.e., Bureau of Reclamation, United States Geological Survey or its designated contract employees, Corps of Engineers, or the International Boundary and Water Commission), political subdivision, or municipality. For those water right holders not required to file an annual use report with the Texas Water Commission, verification of any credits would have to be provided by any one of the above previous listed entities. Water right holders unable to provide this verification shall not be allowed any credits and shall be required to pay the full assessment. (f) Water which is authorized in a permit for consumptive use, but which is designated by a permit provision as unavailable for use may be exempted from the assessment of a fee under subsection (c) of this section. (g) A retail public utility as defined by the Texas Water Code, sec.13.002, which is subject to a water quality assessment fee under this chapter may collect from each customer a charge to recover the amount of the fee assessed. The total amount recovered by a retail public utility shall not exceed the amount assessed under this chapter plus any reasonable costs of collection. Any pass-through mechanism for the fees shall be fair and equitable for all customers and may be subject to review by the commission. (h) The portion of a water quality assessment fee recovered from a customer of a retail public utility may be listed on the customer's bill as a separate item and may be collected in addition to other regulatory assessments or charges for utility services. (i) The portion of a water quality assessment fee recovered from a customer by a retail public utility is not part of the rates of that utility. This provision shall apply to a retail public utility providing water and/or wastewater service. (j) Water quality assessment fees for every year after the initial year of this program are due and payable to the commission by January 1 of each year. The commission shall establish procedures for billing and collection of the fee and notification of amounts due for each year. For the first year this program is in effect, water quality assessment fees are due and payable 30 days after issuance of the bill. (k) The commission shall monitor both the collection of fees under this section and the allocation of fee revenues under sec.320.22 of this title (relating to Allocation of Water Quality Assessment Fee Revenue) for the river basins of the state. The commission shall adjust the fee rates established under this section to the extent necessary to ensure the adequate support of the programs undertaken to implement this chapter and the equitable assessment of fees within each watershed and region of the state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 4, 1992. TRD-9212166 Mary Ruth Holder Director, Legal Division Texas Water Commission Effective date: September 25, 1992 Proposal publication date: July 14, 1992 For further information, please call: (512) 463-8069 Part XVI. Coastal Coordination Council Chapter 501. Council Procedures 31 TAC sec.sec.501.1-501.3 The Coastal Coordination Council adopts new sec.sec.501.1-501. 3, concerning council procedures, with changes to the proposed text as published in the June 5, 1992, issue of the Texas Register (17 TexReg 4069). The new chapter will implement the Coastal Coordination Act, Subchapter F of Chapter 33, Texas Natural Resources Code. The Coastal Coordination Act establishes the Coastal Coordination Council and requires the council to review federal, state, and local actions that may adversely affect coastal natural resources. The Texas Natural Resources Code, sec.33.052(b), directs the commissioner to develop the Coastal Management Program (CMP). The Coastal Coordination Act requires the council to promulgate rules adopting the goals and policies of the CMP and to review agency and subdivision actions for consistency with the CMP. The review process as set out in new Chapter 501 generally tracks the language of the Coastal Coordination Act; however, until the council adopts goals and policies, the review process will not be operative. In order to make the review process as efficient and predictable as possible, the council anticipates substantial amendments to the provisions of this chapter prior to that time. These amendments will provide further detail on matters such as preliminary review, interagency cooperation, staffing, and timing. These issues must be addressed in the course of development of the CMP. The council is adopting basic provisions now that will be clarified by amendments as the program is developed. New Chapter 501 enumerates the agencies and subdivisions whose actions are subject to council review, provides for the council's structure and for setting and conducting council meetings, establishes an executive committee to guide the implementation of council directives and to review policies, issues, or other matters that will or may be subject to council deliberation, and sets forth the procedures and methods by which the council will review federal, state, and local actions for consistency with the goals and policies of the CMP. The chapter further provides for judicial review of council decisions and for council enforcement. Eleven state agencies and one corporation commented on the proposed rules. The Texas Historical Commission, the Texas Department of Health, and the Texas Air Control Board all offered general endorsements of the rules as proposed and suggested no changes. Most of the comments focused on the practical implications of the consistency review process. Generally, the council recognizes that these comments arise from legitimate concerns. The council elected not to make some of the specific changes suggested by these comments. The issues the comments raise regarding consistency review procedures will be addressed in the development of the CMP. Other changes were made in response to comments. Section 501.1 is changed to make certain that regional agencies are included within the definition of "agency or subdivision." Section 501.2 is retitled "General Provisions" and amended to provide that the council will meet on the first Thursday, instead of the third Thursday, of February, May, August, and November. Section 501.2(c) is amended to establish an executive committee, composed of representatives of the council members, which will meet regularly in the interim between regular council meetings to guide the implementation of council directives and perform staff-level work concerning the policies, issues, or other matters on which the council will or may deliberate. Section 501.2(f) is changed to clarify that the chairman will notify the governor of agency or subdivision actions once an action has been referred to the council for review. The Governor's Office requested that this provision be amended to require a minimum 10-day notice prior to a consistency review meeting to enable the governor's local representative to fully participate in the review process. Because referrals are made either by the commissioner or three other council members placing an item on the agenda at least 14 days in advance of a meeting, under the new language the Governor's Office is assured of receiving at least 14-day prior notice. In practice, the Governor's Office will be kept abreast of probable referrals through the preliminary review process. Section 501.2(g) explains what happens when a time period ends on a weekend or holiday. sec.501.3(a) is changed to clarify that actions subject to council review may include ordinances, approval of development plans, and bond issues. The United States Department of Commerce noted some inconsistency with the actions described in proposed sec.501.3(a) and those described in proposed sec.501.3(b)(2). With the changes to sec.501.3(a) and the elimination of a further description of actions in sec.501.3(b), any confusion should now be eliminated. The United States Commerce Department also suggested including a specific requirement that agencies and subdivision amend their rules to include a council notification process. Section 501.3(a)(2) requires state agencies and subdivisions to amend their rules to ensure compliance with the CMP, including council notification requirements. The Texas Department of Transportation questioned the authority to the council to review the adoption of agency rules and policies for consistency with the CMP. While the department recognized that the Act requires agencies and subdivisions to adopt rules and policies in accordance with the goals and policies of the CMP, it commented that the promulgation of rules and policies is not an action subject to consistency review. By contrast, the council reads the Act to make the adoption of rules clearly a reviewable action. To read the Act as placing the adoption of policies and rules outside the definition of actions and beyond the scope of the consistency review process clearly conflicts with the legislative intent. Such a construction would frustrate the purposes of the Act. The legislature did not intent to force the council to address the same issues repeatedly through review of individual actions, when the council could more effectively achieve the purposes of the Act through review of agency policies and rules. The Texas Department of Transportation and the Texas Water Development Board raised questions regarding the meaning of "final actions" in the context of the 30-day time period within which final actions must be referred to the council. See proposed sec.501.3(c)(4), now sec.501.3(c)(2). This language is taken directly from the Texas Natural Resources Code, sec.33.205(c). The council intends to develop a definition of final actions for purposes of council review as it develops the CMP. Almost all those submitting comments perceived the need for some type of preliminary review to precede an agency's or subdivision's final actions. The council will consider refinements to address this need in the preliminary review process that currently appears at new sec.501.3(b). The title to proposed sec.501.3(b) is amended to recognize the role of council agencies in the preliminary review process. The United States Department of Commerce raised several questions with respect to preliminary findings under sec.501.3(b) (3), particularly the legal effect of preliminary findings. The council intends to address these questions as it develops the CMP. Section 501.3(b)(2) is changed to more clearly set out the notification requirements of all agencies proposing or giving final approval to actions subject to the CMP. Proposed sec.501.3(b)(3) is amended to include council agencies in the preliminary review process. The Texas Department of Transportation also suggested changing the time period in sec.501.3(c)(7) within which an agency or subdivision must notify the council of the modifications or amendments adopted following council remand. The department recommended changing the current 10-day notification requirement to 30 days, so that the department would be allowed the same number of days the council is allowed following its decision to protest an action. No change is made in response to this suggestion. While under sec.501. 3(c)(6) the council must remand, following its protest of an action, within 30 days, this requirement includes an obligation to supply findings of inconsistency and specify the basis for the inconsistency determination. On the other hand, there is no time period within which an agency or subdivision must modify or amend its action in conformance with the CMP. However, if an agency or subdivision goes forward with the action, adopting proper modifications or amendments, then it must notify the council of such action within 10 days. In response to the Water Commission's suggestion, proposed sec.501.3(c)(2), now sec.501.3(c)(3), is amended to provide that the council will determine which counties are directly affected by the action under review. The Water Commission also raised issues with respect to the standard of review the council will apply, the criteria by which the council will determine consistency, and the meaning of "sufficient" in proposed sec.501.3(c)(3), now sec.501.3(c)(4)(A). In conducting reviews, as provided in sec.501.3(c)(5), the "only basis on which the council may protest an action is that it is inconsistent with the goals and policies of the CMP." While an agency will most certainly have made its own consistency determination, the council cannot fulfill its legal obligations by completely deferring to the agency's determination. Whether the council should adopt a clearly erroneous standard or some other legal standard is still under consideration. As noted earlier, these questions have not yet been fully explored, and the council intends to address them as it develops the CMP. Exxon's comments with respect to proposed sec.501.3(c) suggest that the council should not be allowed to consider any "additional information" during its review process. Exxon commented that review should be limited to the agency's record. The Texas Natural Resources Code, sec.33.204(c), clearly sets out that in conducting its reviews, the council "shall receive and consider the oral or written testimony of any person regarding the goals and policies of the coastal management plan," as well as "any additional information provided by that agency or subdivision." In response to Exxon's comments and those from the United States Department of Commerce, proposed sec.501.3(c)(3), now renumbered sec.501.3(c)(4), is amended to make clear that the additional information provided is limited to information relating to the goals and policies of the CMP. To provide further clarification of the nature and scope of council hearings, proposed sec.501.3(c)(2) is renumbered sec.501.3(c)(3) and amended to provide that the council may appoint officers or employees of council agencies to take testimony and report to the council. Section 501.3(c)(4) now includes subparagraphs (A) and (B). Subparagraph (A) is the last sentence from proposed sec.501.3(c)(3) and provides that the council can hold hearings and make legal and factual findings where the record of the agency or subdivision is insufficient for the council to conduct a complete and thorough review. Subparagraph (B) contains the language from proposed sec. 501.3(c)(2) regarding the council's appointment of a hearings examiner to receive testimony and propose findings of fact and conclusions of law. Proposed sec.501.3(c)(4), regarding the time periods within which final actions must be referred to the council and acted on, now appears at sec.501.3(c)(2). New sec.501.3(c)(2) sets out the time periods within which the council must take up and act on actions subject to review. Section 501.3(c)(2) also provides that actions are no longer subject to council review after the time periods have expired, provided proper notification was made under sec.501.3(b) (2). This last change responds to the problems of uncertainty raised by the comments of the Texas Water Development Board and Exxon. Section 501.3(c)(8) is changed to make it clear that if the council determines an action is consistent with the CMP, it shall affirm the action. The Texas Soil and Water Conservation Board requested that agriculture and silviculture operations be specifically exempted from rules requiring Coastal Coordination Council or General Land Office review. The Coastal Coordination Act states that all state and local actions that may adversely affect coastal natural resources must be consistent with the goals and policies of the CMP. (See Texas Natural Resources Code, sec.33.205(a).) The Texas Water Development Board, the United States Department of Commerce, and the Attorney General's Office questioned why sec.501.3(d) only permits the commissioner to refer federal actions to the council for review. This is because the Texas Natural Resources Code, sec.33.206(d), provides that the "council shall review any federal action the commissioner submits to the council for review." The Water Development Board also recommended that the council issue a written explanation of any findings of inconsistency. sec.501.3(c)(6) requires that the "remand shall include the council's findings of inconsistency with the goals and policies of the CMP and specify the basis for the inconsistency determination." The Water Development Board's recommendation that written findings of inconsistency be published in the Texas Register will be considered as the review process is more fully developed. The Texas Department of Agriculture raised the question of what actions taken outside of the coastal zone area will become subject to the CMP review process. The council anticipates providing greater guidance on this question as it develops the CMP. The department also suggested adding the agriculture commissioner to the council. While the process of developing and implementing the CMP will be open to all interested agencies and local governments, the council cannot expand its membership because membership is established by the Act. Exxon also recommended that sec.501.3(e) be amended to limit judicial review to only those persons who participated in the decision-making process at the agency level, the rationale being that it would be unfair to allow new concerns to be raised for the first time in the review process before the council. The Texas Natural Resources Code, sec.33.207, addresses judicial review. Standing to challenge a final council decision under the Administrative Procedure and Texas Register Act is an issue more appropriately resolved by the courts. The United States Department of Commerce commented that the definition of "coastal natural resource areas" in sec.501.18 was ambiguous because it was unclear whether such areas included the entire coastal zone or only designated areas within the coastal zone. One of the council's top priorities in developing the CMP will be to identify and precisely define those areas within the coastal zone that are deserving of special management as "coastal natural resource areas." The United States Department of Commerce also recommended that sec.501.3(a) be amended to cover actions that "significantly affect" coastal natural resource areas, not just those that "adversely affect" such areas. The rationale is that even actions considered beneficial may have adverse impacts on competing uses, or otherwise adversely affect coastal natural resource areas. This important issue will be addressed in the CMP development process. The United States Commerce Department suggested that in sec.501.3(a) "complies" and "compliance" should be changed to "consistent" and "consistency. " While "consistency" is the touchstone of the federal CZMA, the legislature used "compliance" and "consistency" almost interchangeably. The legislature used the term "comply" in sec.33.205(a) and in sec.33.206, but used the similar concept of consistency at other times, for example in sec.33.206(c). Generally, an action that is inconsistent with the CMP is not in compliance with the CMP. The sections are adopted under the Texas Natural Resources Code, sec.33. 204(a), which provides the council with the authority to promulgate rules adopting the goals and policies of the coastal management program. sec.501.1 Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Agency or subdivision -Any state, regional, or local governmental or quasi- governmental agency, department, board, commission, subdivision, body politic, entity or unit. These include, by way of example, state agencies, counties, municipalities, beach park boards of trustees, boards of park commissioners, regional planning commissions, municipal or special utility districts, navigation districts, road or road utility districts, transportation corporations, transit or transportation authorities, river authorities, water districts, drainage or levee improvement districts, and other special purpose districts. Coastal management program (CMP)-The comprehensive state program for management of the coastal natural resource areas that consists of the plan developed by the commissioner under the Texas Natural Resources Code, sec.33.052. Coastal natural resource areas-Those areas within counties having any tidewater shoreline that are designated in the coastal management program as requiring special management. Commissioner-Commissioner of the General Land Office. Council-The Coastal Coordination Council. The council consists of the commissioner, the attorney general, the chair of the Parks and Wildlife Commission, the chair of the Texas Water Commission, a member of the Railroad Commission of Texas, and one city or county elected official and one resident from the coastal area, governor for two-year terms. GLO-General Land Office. sec.501.2. General Provisions. (a) The commissioner chairs the council and conducts all meetings. The council may select a vice chairperson who shall serve in the chair's absence. (b) The council shall meet at least four times a year, once in each calendar quarter. Council meetings shall be scheduled for the first Thursday of February, May, August, and November. The commissioner, at his or her discretion or at the request of any council member, may call special meetings by posting notice in accordance with the Texas Open Meetings Act and sending a copy to all council members. (c) Each council member shall appoint a person to represent the member on an executive committee. (1) The executive committee shall meet regularly in the interim between regular council meetings to coordinate implementation of council directives and review of policies, issues, or other matters that will or may be subject to council deliberation. The representative of the commissioner chairs the committee. The executive committee shall consider any matter a committee member refers to the committee. (2) The commissioner shall appoint a council secretary. The secretary shall record the minutes of the meetings and perform other duties in compliance with the Texas Open Meetings Act or as required by the council or this chapter. (d) Council members may set items for the agenda by submitting them in writing to the chair at least 14 days before each meeting. The council secretary shall notify all council members of the agenda by certified or overnight mail, hand delivery, or telefax at least 10 days before each meeting. The council secretary shall notify the general public in compliance with the Texas Open Meetings Act posting and notification requirements. (e) Four voting council members or their statutorily authorized representatives shall constitute a quorum. The council will take action only when a quorum exists and a majority of the members present and voting agree to the action. (f) The chair shall notify the governor of each state agency or subdivision action referred to the council under sec.501.3(c) of this title, (relating to State Consistency) and request that the governor appoint an elected official from a county directly affected by that action to represent local interests in the affected area. The official shall assist the council in reviewing and evaluating the action's compliance with the CMP, but shall not vote on the action. The official shall not attend any executive session conducted by the council except at the council's request. (g) Time periods set out in this chapter do not include the day of the act or event that activates the time period. If the last day of the time period is a Saturday, Sunday, or legal holiday, the time period is considered to end the next day subsequent that is not a Saturday, Sunday, or legal holiday. sec.501.3. State Consistency. (a) Compliance with the CMP. (1) A state agency or subdivision, or a person authorized by a state agency or subdivision, taking any action that may adversely affect coastal natural resource areas, including discharges of wastewater and withdrawals of water that may significantly affect water quality in state waters subject to tidal influence, must act in compliance with the CMP. The agency or subdivision shall ensure that the action complies with the goals and policies of the CMP and the rules adopted by the council to implement those goals and policies. (2) Such actions include, but are not limited to, adoption of rules, ordinances, or policies; issuance of permits, licenses or certifications of approval; approval of development or use plans, bond issues, government development projects, government sponsored or assisted activities, or government imposed fees. Such actions further include any activity by a person or an entity pursuant to state agency or subdivision action or authorization. State agencies and subdivisions must adopt, or amend existing, administrative rules, ordinances, and policies when necessary to ensure compliance with the CMP. (b) Preliminary review by council agencies. (1) Under the Texas Natural Resources Code, sec.33.052(b) and sec.33. 204(d), the GLO is designated as the lead agency for coordinating the CMP and in assisting the council in effectuating its statutory responsibilities. (2) Agencies and subdivisions shall provide timely and sufficient notice to the council of any proposed action to be taken, authorized, or approved by the agencies and subdivisions that is subject to the CMP. Agencies and subdivisions shall also provide timely and sufficient notice to the council of any significant changes in proposed actions likely to affect review under paragraph (3) of this subsection. Agencies and subdivisions shall provide immediate notice to the council of final actions subject to the CMP. (3) The agencies represented on the council will review proposed agency or subdivision actions for consistency with the goals and policies of the CMP, make preliminary findings on consistency, and report the findings to the council and the agency or subdivision proposing the action. (c) Council review-state agency or subdivision actions. (1) The council shall review any action subject to the CMP if the commissioner or three other members of the council refer it to the council for review. The commissioner may refer the action to the council by placing it on the agenda for a regularly scheduled or specially convened council meeting. Three council members may refer an action to the council by the procedures specified in sec.501.2(d) of this title (relating to General Provisions). (2) An action must be referred to the council within 30 days of the date it becomes final. The council must consider and act on the matter within 90 days of referral. If the agency or subdivision proposing the action provided notice as required in subsection (b)(2) of this section, the matter is no longer subject to council review if it is not referred to or acted on by the council within the time periods set out in this paragraph. (3) In conducting reviews, the council shall receive and consider the oral or written testimony of any person regarding the goals and policies of the CMP. The council may reasonably limit the length and format of the testimony, set the time at which it will be received, and appoint officers or employees of agencies represented on the council to take testimony and report to the council. Before the commencement of the period during which public testimony will be received, notice shall be published in the Texas Register and in a newspaper of general circulation in each county that is directly affected by the matter under review. (4) The council shall consider only the record before the agency or subdivision involved in the matter under review, the agency's or subdivision's findings, applicable laws and rules, and any additional information regarding the goals and policies of the CMP provided by the agency or subdivision or through public testimony. (A) If the agency or subdivision did not hold a hearing, make a record, or make factual or legal findings sufficient for the council to conduct a complete and thorough review, the council may hold hearings and make factual and legal findings. (B) The council may appoint a hearings examiner to receive testimony and propose to the council findings of fact and conclusions of law. (5) After reviewing a state agency or subdivision action subject to the CMP, the council shall make a consistency determination regarding the action. If the council determines that an action is consistent with the CMP, it shall affirm the action. If the council determines that an action is inconsistent with the CMP, it shall protest the action. The only basis on which the council may protest an action is that it is inconsistent with the goals and policies of the CMP. (6) If the council affirms an action, the chair shall immediately notify the agency or subdivision involved in the matter under review. If the council protests an action, the council shall within 30 days remand the action to the state agency or subdivision. The remand shall include the council's findings of inconsistency with the goals and policies of the CMP and specify the basis for the inconsistency determination. The council may recommend modifications of the action to ensure that it is consistent with the CMP. (7) On remand, the state agency or subdivision shall modify or amend the action to ensure compliance with the CMP. The agency or subdivision shall notify the council in writing of its modification or amendment of the action within 10 days of such decision. (8) After remand, the council will review the state agency's or subdivision's decision. The council shall conduct further review in accordance with the procedures provided in subsections (c)(1)-(4) of this section. If the council determines that an action is consistent with the CMP, it shall affirm the action. If the council determines that the action still does not comply with the CMP, it shall reverse the action. The only basis on which the council may reverse a decision of an agency or subdivision is that it is inconsistent with the goals and policies of the CMP. (d) Council review-federal actions. (1) The council shall review any federal action the commissioner refers to the council for a consistency determination. The commissioner shall refer the action in the manner provided in subsection (c)(1) of this section. (2) If, after review, the council determines that a federal action is inconsistent with the goals and policies of the CMP, the council shall refer the matter to the federal official authorized to review or act on the matter and shall pursue resolution of the matter with the federal official in accordance with the provisions of the Coastal Zone Management Act, 16 United States Code 1451-1464. (e) Judicial review. Any person aggrieved by a decision of the council may appeal to the district court in Travis County under the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13(a). (f) Enforcement. At the request of the council, the attorney general shall file suit to enforce the provisions of this section and Chapter 33, Subchapter F of the Texas Natural Resources Code. Such suit shall be filed in a district court in either Travis County or in the county in which the violation occurred. 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 September 8, 1992. TRD-9212235 Garry Mauro Commissioner Coastal Coordination Council Effective date: September 29, 1992 Proposal publication date: June 5, 1992 For further information, please call: (512) 463-5019 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.298 The Comptroller of Public Accounts adopts an amendment to sec.3.298, concerning amusement services, without changes to the proposed text as published in the June 19, 1992, issue of the Texas Register (17 TexReg 4430). The amendment makes changes authorized by the 72nd Legislature, 1991, First Called Session. Effective October 1, 1991, nonprofit country clubs described by the Internal Revenue Code of 1986, sec.501(c)(7), are required to collect sales tax from their members on various fees and dues such as initiation fees, membership dues green fees, etc. Additionally, amusements provided jointly by the state, a municipality, county, school district, special district, political subdivision of the state or the United States and a for-profit group are subject to sales tax. See new subsection (h) of this section for specific exclusions from the amusement services exemption for entities with dual classifications. Two comments were received on the rule, neither having to do with the proposed rule amendment. An attorney with the law firm of Clark, Thomas, Winters & Newtwon in Austin, and an individual from Beaumont, commented on subsection (b). Both commenters expressed the opinion that the comptroller's assessment of sales tax on charges by private clubs to members for boat slip rental fees, golf cart storage and lockers fees is not support by the Tax Code. Both commenter felt that these fees represented the rental of real property and were not special privileges being allowed to members of the club. The comptroller had rejected these arguments earlier stating that charges to club members for locker rental, golf cart storage or boat slip rental constitute "... other charges and assessment...required for...a special privilege...in the club or organization" as required by Tax Code, sec.151.007(e) . It is the comptroller's position that the assessment of sales tax on these charges is wholly reasonable and consistent with legislative intent. The attorney also felt that the assessment of sales tax on "fees for access to the restaurant and bar" at a private club resulted in double taxation of food. The comptroller also rejected this contention stating that the charge for the privilege of entering a restaurant or bar at a private club is not connected with sale of the food any more than a cover charge at other clubs relates to the sale of food. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 September 8, 1992. TRD-9212196 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: September 29, 1992 Proposal publication date: June 19, 1992 For further information, please call: (512) 463-4028 Subchapter V. Franchise Tax 34 TAC sec.3.548 The Comptroller of Public Accounts adopts new sec.3.548, concerning taxable capital: close and S corporations, without changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 4735). The new section replaces 34 TAC sec.3.417, concerning the same subject matter, which is being repealed in order that it can be adopted under the Texas Administrative Code, Title 34, Part I, Chapter 3, Subchapter V. This new section addresses close and S corporations for taxable capital purposes. No comments were received regarding adoption of the amendment. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 September 8, 1992. TRD-9212225 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: September 29, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 463-4028 34 TAC sec.3.556 The Comptroller of Public Accounts adopts new sec.3.556, concerning earned surplus: S corporations, without changes to the proposed text as published in the July 16, 1992, issue of the Texas Register (17 TexReg 4331). The new section sets out guidelines for computing earned surplus for S corporations pursuant to the Tax Code, sec.171.110. No comments were received regarding adoption of the amendment. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 September 8, 1992. TRD-9212226 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: September 29, 1992 Proposal publication date: June 16, 1992 For further information, please call: (512) 463-4028 34 TAC sec.3.558 The Comptroller of Public Accounts adopts new sec.3.558, concerning earned surplus: officer and director compensation, without changes to the proposed text as published in the July 10, 1992, issue of the Texas Register (17 TexReg 4944). The new section sets out guidelines for officer, executive officer, and director compensation which is included in computing net taxable earned surplus pursuant to the Tax Code, sec.171.110. Although the new section limits amounts which may be characterized as compensation of officers and directors of S corporations, this provision is only intended to ensure that excessive compensation is not used as a method of tax avoidance. One comment was received regarding adoption of the amendment from Texas Bankers Association of Austin. The comment was favorable. The new section is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. 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 September 8, 1992. TRD-9212227 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: September 29, 1992 Proposal publication date: July 10, 1992 For further information, please call: (512) 463-4028 Part IV. Employees Retirement System of Texas Chapter 63. Board of Trustees 34 TAC sec.63.3, sec.63.4 The Employees Retirement System of Texas adopts amendments to sec.63.3 and sec.63.4, concerning board of trustees. Section 63.4 is adopted with changes to the proposed text as published in the July 3, 1992, issue of the Texas Register (17 TexReg 50). Section 63.3 is adopted without changes and will not be published. Rule will improve the distribution and return of ballots in the nomination and election of Trustees. Additional information will be furnished on candidates, and the Trustees will be allowed to contract with an election administrator. The amended sections will help insure the integrity of the nomination and the election procedures, provide for improved ballot distribution, and better inform the electorate on the qualifications of the nominees. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, sec.815.003 and sec.815.102, which provides the Employees Retirement System of Texas with the authority to promulgate rules necessary to nominate and elect Trustees and to carry out other business of the board. sec.63.4. Election of Trustees (Ballot). (a) The order of names on the ballot will be set by drawing. All nominated candidates or their representatives are entitled to be present at the drawing. (b) Qualified candidates must submit within the time frame established by the system the following information for printing on the ballot: (1) name as it is to appear on the ballot; (2) number of years and months state employment; (3) current classification/exempt title and position as a state employee; (4) name of current employing state agency. (c) In addition to the information required in subsection (b) of this section, the candidate shall provide, within the time frame provided by the system, his or her state agency mailing address and a statement of qualifications consisting of 100 words or less. This information, in addition to that which will appear on an election ballot, will be made available to the electorate through a special ERS newsletter devoted to the Trustee election process. This special edition of the newsletter will be made available to the electorate prior to the ballot distribution and will describe restrictions on the use of state funds to influence the outcome of any election. (d) The system may contract with an election administrator to implement and monitor the election process. (e) The system/election administrator will, at least 25 calendar days in advance of the return due date established by the Trustees, mail ballots to eligible voters in the manner currently used for annual individual ERS statements. Each such ballot will contain the printed name of the eligible voter for whose use it is intended. (f) The system/election administrator will provide a 24-hour toll-free telephone line which eligible voters may use to request their individual ballots if they did not receive their ballots pursuant to subsection (e) of this section. (g) All ballots will be returned through the United States Postal Service (postage prepaid by the system) to the system/election administrator. The system/election administrator will not accept ballots delivered in any other manner. All ballots will remain sealed and in a secure location through the return due date established by the Trustees. (h) Each candidate may designate one person to observe the ballot counting process. No observer will be permitted to see complete ballots which indicate the identity of a voter and voter's candidate selection. No observer will be permitted to challenge the validity of ballots or disrupt the counting process in any way. (i) The system/election administrator will disqualify all ballots which: (1) are from ineligible voters; (2) do not contain the signature of the eligible voter; (3) fail to accurately reflect the eligible voter's Social Security number; (4) are reproduced; (5) are from eligible voters from whom more than one ballot is received; (6) fail to clearly indicate the eligible voter's candidate selection; and (7) are postmarked after the return due date established by the Trustees, provided however, a ballot that is postmarked on or before the return due date and received within five working days of the due date will be counted. 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 September 8, 1992. TRD-9212233 Charles D. Travis Executive Director Employees Retirement System of Texas Effective date: September 29, 1992 Proposal publication date: July 3, 1992 For further information, please call: (512) 867-3336 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 48. Community Care for Aged and Disabled Client-Managed Attendant Services The Texas Department of Human Services (DHS) adopts amendments to sec.sec.48.2602, 48.2605, 48.2911, 48.2914, 48.2918, 48.3903, 48.5903, and 48.9301, in its community care for aged and disabled (CCAD) chapter. The amendment to sec.48.3903 is adopted with a change to the proposed text as published in the July 31, 1992, issue of the Texas Register (17 TexReg 5346). The amendments to sec.sec.48.2602, 48.2605, 48. 2911, 48.2914, 48.2918, 48.5903, and 48.9301 are adopted without changes and will not be republished. DHS also proposed an amendment to sec.48.2919 in the July 31, 1992 issue. DHS withdrew the proposal to sec.48.2919 in the August 18, 1992, issue of the Texas Register (17 TexReg 5659). The justification for the amendments is to change the name "Special Services to the Handicapped" to "Special Services to Persons with Disabilities. " The amendments will function by emphasizing the individual and discontinuing the use of the word "handicapped." No comments were received regarding adoption of the amendments. The department, however, has initiated one change to the text of sec.48.3903 to clarify that special services to persons with disabilities contracts apply to both attendant care and day care. 40 TAC sec.48.2602, sec.48.2605 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212249 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 450-3765 40 TAC sec.48.2608 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 2608, concerning client copayment, without changes to the proposed text as published in the August 4, 1992, issue of the Texas Register (17 TexReg 5460). The justification for the amendment will be to provide current copayment information for program participants. The amendment will function by updating the client copayment schedule. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which authorizes the department to administer public and medical assistance programs. 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 September 9, 1992. TRD-9212254 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: August 4, 1992 For further information, please call: (512) 450-3765 Eligibility 40 TAC sec.sec.48.2911, 48.2914, 48. 2918 The amendments are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212250 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 450-3765 Case Management 40 TAC sec.48.3903 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.48.3903. Denial, Reduction, and Termination of Benefits. (a) An applicant or client may request an appeal of any decision that denies, reduces, or terminates his benefits. The effective date of the action depends on the situation, as shown in the following table: rt Slick) [graphic] (b)-(f) (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 September 9, 1992. TRD-9212251 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 450-3765 Contracting for CCAD Services 40 TAC sec.48. 5903 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212252 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 450-3765 Minimum Standards for Agencies Contracted to Provide Special Services to Persons with Disabilities 40 TAC sec.48.9301 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212253 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: July 31, 1992 For further information, please call: (512) 450-3765 Support Documents 40 TAC sec.48.9801 The Texas Department of Human Services (DHS) adopts an amendment to sec.48. 9801, concerning support documents, without changes to the proposed text as published in the August 4, 1992, issue of the Texas Register (17 TexReg 5442). The justification for the amendment is to delete all the references to a unit rate ceiling in the reimbursement methodology. The amendment will function by allowing contractors to negotiate a competitive and adequate unit rate that considers local cost factors. No comments were received regarding adoption of the amendment. The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 9, 1992. TRD-9212255 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: October 1, 1992 Proposal publication date: August 4, 1992 For further information, please call: (512) 450-3765