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 1. ADMINISTRATION Part II. Texas Ethics Commission Chapter 40. Registration and Regulation of Lobbyists 1 TAC sec.40.5, sec.40.7 The Texas Ethics Commission adopts new sec.40.5 and sec.40.7 concerning registration and regulation of lobbyists, with changes to the proposed text as published in the June 23, 1992, issue of the Texas Register (17 TexReg 4505). The changes were as follows. The phrase "on the public record" was deleted from sec.40.5(a); additionally, the phrase "and is not required to be reported on the registration forms or activity reports" was added to sec.40.5(a) . The phrase ", including communication to show qualification for an exception of general applicability available under existing administrative rules, policies, and procedures" was added to sec.40.7(a)(8). These sections set forth the exclusions from administrative action lobbying, and lists activities that do not require persons to register with the commission under the provisions of the Texas Government Code, Chapter 305. These sections will provide the public and the commission with guidelines and a framework within which to help determine which persons are excluded from having to register with the commission as lobbyists. Comments were received. The comments supported the rules as a whole, but suggested certain changes. The changes to the text are a result of the comments received. Other suggested changes were as follows: define what "special or extra compensation" is as set out in sec.40.7(a)(4); and additional language designed to clarify sec.40.7(a)(1), together with a suggestion to expand sec.40.7(a)(9). Comments were received from the Travis County Bar Association, Administrative Law Section; Independent Bankers Association of Texas; and the law firm of Boyle and Freeman. All comments supported the rules, but suggested changes as indicated in Part 4, above. The agency took the changes into account when adopting amended sec.40.5 and sec.40.7. The adoption of these sections with changes reflects the implementation of some of the comments. Some of the requested changes not implemented can be addressed by the issuance of ethics advisory opinions upon request. The new sections are adopted under Texas Civil Statutes, Article 6252-9d.1, which provide the Texas Ethics Commission with the authority to promulgate and adopt rules concerning the administration of Chapter 305 of the Texas Government Code. sec.40.5. Exclusions from Administrative Action Lobbying. (a) For purposes of the compensation threshold of the Government Code, sec.305.003(a)(2), testimony, an appearance, or any other type of communication in a proceeding of an adjudicative nature of the type authorized by or subject to Texas Civil Statutes, Article 6252-13a (the Administrative Procedure and Texas Register Act or APTRA) is not direct communication to influence administrative action and is not required to be reported on the registration forms or activity reports if the communication is by a party to the proceeding, a party's representative of record, or a witness. One example of this exclusion is testimony, an appearance, or other communication by a witness in a contested case where the communication is documented as part of the public record for that particular contested case, whether or not the proceeding is subject to APTRA, and even if that witness is compensated. (b) A person required to register by Insurance Code, Article 1.06D, must register notwithstanding this section. (c) For purposes of the Government Code, Chapter 305, "administrative action" does not include an action which affects only the internal operations of the agency, such as the purchasing decisions of the state agency; and the negotiations over the terms of a contract to provide those services, including, but not limited to, negotiations over payment, delivery and performance of services, compliance with contract terms, and amendments. sec.40.7. Activities that Do Not Require Registration. (a) For the purpose of the Government Code, sec.305.003(a)(2), the following direct communications do not constitute activities to influence legislation or administrative action and are not required to be reported on registration forms or activity reports: (1) the mere preparation or submission of an application or other written document providing information required by law, including statute, rule regulation, order, subpoena, or responses to documents prepared by a state agency; (2) direct communication solely for the purpose of obtaining information if no attempt is made to influence the action of a member of the legislative or executive branch-examples include an inquiry as to when a particular matter has been set for hearing or the location of the hearing or as to what is an agency's official interpretation of a statutory provision; (3) providing merely clerical assistance in producing direct communication to influence legislation or administrative action, such as typing or hand- delivering a letter or other document; (4) appearing, submitting public written comments, or testifying at a hearing before a member of the legislative or executive branch in conjunction with official proceedings or rulemaking procedures if the person does not receive special or extra compensation for the preparation, appearance, submission or testimony other than actual expenses incurred for the preparation, appearance, submission, or testimony; (5) direct communication to the legal representative of a state agency concerning litigation in which the agency is a party or adjudicative proceedings of the agency; (6) direct communication to the appointing authority made by a person in his or her capacity as a member of an advisory committee or task force appointed by a member or an entity of the legislative or executive branch; (7) an activity described in the Government Code, sec.305.004 and sec.305. 003(c), whether or not such activity constitutes the sole activity of the person to influence legislation or administrative action; (8) direct communication for the purpose of compliance with existing laws, administrative rules, policies, and procedures, including communication to show qualification for an exception of general applicability available under existing administrative rules, policies and procedures; (9) direct communication in connection with an audit, inspection, or government investigation to interpret and determine compliance with existing laws, regulations, and policies; (10) direct communication involving a request to a person who is a member of the executive branch for a written opinion interpreting a law, regulation, rule, policy, practice, or procedure administered by the agency or office of which that person is a member; and (11) direct communication to provide information in response to a specific request for the information from a member of the legislative or executive branch that are unsolicited or otherwise not a subterfuge from compliance with the requirements of these laws. (b) A person whose only activities to influence legislation or administrative action is one or more of the activities excepted from the lobbyist registration requirement by the Government Code, sec.305.004 and sec.305.003(c), or by rules of this commission is not required to register with the commission as a lobbyist. 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 28, 1992. TRD-9213213 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: October 20, 1992 Proposal publication date: June 23, 1992 For further information, please call: (512) 463-5800 Part V. General Services Commission Chapter 111. Executive Administration Division Administration 1 TAC sec.111.1, sec.111.2 The General Services Commission adopts the repeal of sec.111.1 and sec.111. 2, concerning administration and meetings, without changes to the proposed text as published in the June 30, 1992, issue of the Texas Register (17 TexReg 4653). The repeals will benefit the public through simplified regulations. The repeal of sec.111.1 and sec.111.2 eliminate unnecessary, obsolete language. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of the article. 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 28, 1992. TRD-9213114 Judith M. Porras General Counsel General Services Commission Effective date: October 19, 1992 Proposal publication date: June 30, 1992 For further information, please call: (512) 463-3446 1 TAC sec.111.1, sec.111.3 The General Services Commission adopts an amendment to sec.111.3, concerning protest procedures, and new sec.111.1, concerning administration, without changes to the proposed text as published in the June 30, 1992, issue of the Texas Register (17 TexReg 4655). The amendment and new section will benefit the public by providing clearer regulations. The amendment to sec.111.3 clarifies the protest procedure. New sec.111.1 states the organizational structure of the commission. No comments were received regarding adoption of the amendment and new section. The amendment and new section are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of Article 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 28, 1992. TRD-9213109 Judith M. Porras General Counsel General Services Commission Effective date: October 19, 1992 Proposal publication date: June 30, 1992 For further information, please call: (512) 463-3446 Security 1 TAC sec.sec.111.11-111.19 The General Services Commission adopts the repeal of sec. sec.111.11-111.19, concerning security, without changes to the proposed text as published in the June 30, 1992, issue of the Texas Register (17 TexReg 4655). The repeals will benefit the public through simplified regulations. The repeal of sec.sec.111.11-111.19 eliminates obsolete language as the security program has been transferred to the Department of Public Safety. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of the article. 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 28, 1992. TRD-9213111 Judith M. Porras General Counsel General Services Commission Effective date: October 19, 1992 Proposal publication date: June 30, 1992 For further information, please call: (512) 463-3446 Parking 1 TAC sec.sec.111.31-111.46 The General Services Commission adopts the repeal of sec. sec.111.31-111.46, concerning parking, without changes to the proposed text as published in the June 30, 1992, issue of the Texas Register (17 TexReg 4655). The repeals will benefit the public through simplified regulations. The repeal of sec.sec.111.31-111.46 eliminates obsolete language as the security program has been transferred to the Department of Public Safety. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 601b, which provide the General Services Commission with the authority to promulgate rules to accomplish the purpose of the Article. 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 28, 1992. TRD-9213110 Judith M. Porras General Counsel General Services Commission Effective date: October 19, 1992 Proposal publication date: June 30, 1992 For further information, please call: (512) 463-3446 Part XIII. Texas Incentive and Productivity Commission Chapter 275. Productivity Bonus Program 1 TAC sec.sec.275.1, 275.7, 275.9, 275.11, 275.13, 275.15, 275.17, 275.19, 275.21 The Texas Incentive and Productivity Commission adopts amendments to sec.sec.275.1, 275.7, 275.9, 275.11, 275.13, 275.15, 275.17, 275.19, and 275.21. Sections 275.1, 275.17, and 275.19 are adopted with changes to the proposed text as published in the August 14, 1992, issue of the Texas Register (17 TexReg 5659). Sections 275.7, 275.9, 275.11, 275.13, 275.15, and 275.21 are adopted without changes and will not be republished. The amendments are necessary to further clarify definitions and processes for agencies participating in the Productivity Bonus Program. The amendments clarify several definitions and clarify the following: the legislative intent of required level of services, agency certification process, agency application process, commission approval of the amount of employee bonuses, and distribution of the remainder of savings. No comments were received regarding sec.sec.275.7, 275.9, 275.11, 275.13, 275. 15, and 275.19. Comments were received regarding sec.sec.275.1, 275.17(c) and (d), and 275.21(b). Comments were received that requested clarifying language regarding two definitions in sec.275.1. The first request was to make a nonsubstantive change to the definition of productivity plan. This change was made to the adopted text. The second request regarded a technical change to the definition of savings measurement account. As a result of the comment, the definition of a savings measurement account was changed from a "cost center" to a "generic appropriation (5108)" that is "transferred from the agency appropriation(s) where the savings occurred," instead of transferred from the agency's other cost centers. Another commenter suggested that discretionary language be included regarding pro rata shares in sec.175.17(a) and (d) to establish a reasonable employee tenure or cut off in determining those employees eligible for pro rata bonus distribution. The commenter's primary concern was that if pro rata is taken to an extreme, short tenure employees could receive insignificant bonuses. The commission agreed that the concern was valid and addressed the comment by adding language to specify that an agency may request, and the commission may approve, provisions that an employee be employed for a specified portion of the fiscal year before being eligible for a bonus. Another commenter regarding sec.275.21 requested clarifying language that an agency's one-third portion is to be used by that agency in the fiscal year following the fiscal year during which the plan was approved. This change was made in sec.275.19. Office of the Attorney General and Comptroller of Public Accounts requested changes. No comments were received against the sections. The Texas Incentive and Productivity Commission did not disagree with any comments and adopted the comments either in full or with some modification as noted previously. The amendment is adopted under Texas Civil Statutes, Article 6252-29a, sec.1, which provide the Texas Incentive and Productivity Commission with the authority to promulgate and adopt rules. sec.275.1. Definitions for the Productivity Bonus Program. The following words and term, when used in this chapter, shall pertain only to the Productivity Bonus Program and shall have the following meanings, unless the context clearly indicates otherwise. Fiscal Year-The fiscal year during which the agency or division puts the concepts outlined in the agency's or division's productivity plan into effect. Productivity Plan -A proposal detailing planned cost reductions and changes in operations that an agency or division intends to make with the goal of improving efficiency while maintaining service levels. Productivity Bonus Account-An account created by the state treasurer for each state agency or division within the productivity bonus fund. Productivity bonus fund or Fund 578-A fund created for each agency to transfer savings for the purposes of this program. At the end of the fiscal year the amount of certified savings is transferred to the appropriate accounts within this fund. Productivity Bonus or productivity bonus award-A cash bonus awarded to an eligible state agency, division of that agency, or employees thereof after a productivity plan has been successfully implemented and proven to save money in recognition of increased productivity. Savings Measurement Account-A generic appropriation (5108) into which cash, in an amount equal to the projected savings resulting from approved productivity plans, is transferred from the agency's appropriation(s) where the savings occurred. Verification Period -The period following the submission of the agency's application for approval of a productivity bonus award during which the commission analyzes the nature and the amount of the savings certified by the executive director of the agency and acts on the agency's application. sec.275.17. Awards to Employees. (a) Amount. If the commission approves an agency or division for a productivity bonus award, the commission shall award to the employees of the agency or division an amount not to exceed 25% of the amount in the agency's or division's productivity bonus account. The commission may award an amount less than 25% if the executive director makes such a request when the agency or division plan is submitted, or if the commission believes circumstances warrant. (b) (No change.) (c) Pro rata share of bonus. A current employee who has worked for the agency or division for less than the full fiscal year or on a part-time basis is entitled to a pro rata share based on the fraction of the fiscal year and the average fraction of the work week that the employee worked in the agency or division. (d) Distribution. The awarded amount shall be distributed in equal shares proportionally related to the amount of time worked during the fiscal year to the eligible current employees of the agency or division. If the pro rata share distribution results in a negligible amount of bonus for employees employed during less than the full fiscal year, the agency executive director may request, and the commission may approve, provisions that employees be employed for a specified portion of the fiscal year before being eligible for a bonus. (e) (No change.) (f) Timing. Bonuses shall be distributed to eligible employees within 90 days of the agency's receipt of commission notification of approval of a productivity bonus award unless the commission approves an agency's request for alternate timing. sec.275.19. Awards to an Agencies/Divisions. (a) Distribution to agency/division. If the commission approves a productivity bonus award for a division of a state agency, or an entire agency, the balance of the amount in the agency's or division's productivity bonus account remaining after the award to employees, shall be distributed between the state agency and the fund from which the original division appropriation was made. (b) Amount. One-third of the balance after award to employees shall be appropriated to that agency during the fiscal year following plan approval to be used by the administration of the agency to further agency productivity. sec.275.21. Remainder of Savings. Distribution to Appropriate Fund. The amount of savings remaining in the agency or division productivity bonus account after payment of employee bonuses and distribution to the agency shall be credited to the appropriate fund. 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 25, 1992. TRD-9213217 M. Elaine Powell Certifying Official, Executive Director Texas Incentive and Productivity Commission Effective date: October 20, 1992 Proposal publication date: August 14, 1992 For further information, please call: (512) 475-2393 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 5. Transportation Division Subchapter K. Safety Requirements 16 TAC sec.5.173 The Railroad Commission of Texas adopts an amendment to sec.5.173, concerning safety requirements, without changes to the proposed text as published in the August 11, 1992, issue of the Texas Register (17 TexReg 5616). The amendment eliminates duplicative record-keeping requirements of armored contract carriers operating pursuant to armored contract carrier permits by the commission, by exempting them from the requirements of maintaining drivers' daily logs. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Motor Carrier Act, Texas Civil Statutes, Article 911b, sec.4(a), which vests the commission with power and authority to prescribe all rules and regulations necessary for the government of motor carriers and for the safety of operations of motor carriers. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1992. TRD-9213190 Nolan F. Ward Hearings Examiner, Legal Division-General Law Railroad Commission of Texas Effective date: October 20, 1992 Proposal publication date: August 11, 1992 For further information, please call: (512) 463-7094 Part IV. Texas Department of Licensing and Regulation Chapter 65. Boiler Division 16 TAC sec.sec.65.1, 65.10, 65.20, 65.30, 65.50, 65.60, 65.70, 65. 80, 65.90, 65.100 The Texas Department of Licensing and Regulation adopts amendments to sec.sec.65.1, 65.10, 65.20, 65.30, 65.50, 65.60, 65.70, 65.80, 65.90, and 65.100, concerning boiler. Section 65.80 is adopted with changes to the proposed text as published in the August 21, 1992, issue of the Texas Register (17 TexReg 5718). Sections 65.1, 65.10, 65.20, 65.30, 65.50, 65.60, 65.70, 65.90, and 65.100 are adopted without changes and will not be republished. The amended sections are adopted in order to incorporate board of boiler rules recommendations and legislative mandates. The adopted section with changes is sec.65.80(c). Subparagraph (D) becomes subsection (d). The change is made to clarify the intent of the section. The amended sections will function to reflect technical conformance to adopted codes, clarify the rules, and reflect changes resulting from the passage of House Bill 863 and House Bill 2135 (71st Legislative Session), which renamed the agency and codified the law under the Health and Safety Code. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Codes Annotated, Health and Safety Code, Chapter 755, which provide the Texas Department of Licensing and Regulation with the authority to promulgate rules necessary to effectuate the purpose of the law. sec.65.80. Fees. (a) Certificate/inspection fees. (1) Inspection by authorized inspector. The owner or operator or his/her agent shall make a $15 payment for the certificate of operation fee. (2) Inspection by deputy inspector. The owner or operator shall make payment of the appropriate fee as shown following. (A) The inspection fees for all boilers other than heating boilers shall be: (i) (No change.) (ii) those with a heating surface greater than 50 square feet (4.65 square meters) but not greater than 100 square feet (9.29 square meters) -$70; (iii)-(v) (No change.) (B) The inspection fees for heating boilers shall be: (i)-(ii) (No change.) (3) All fees must be paid in full to the Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711 before a certificate of operation will be issued. (b) Special inspections. The fee for a special inspection is $650. In addition to the fees stated in this section, travel and per diem in accordance with the current rate as established in the current Appropriations Act shall be paid. A prepayment of $650 shall be received by the department at least five working days before the department can initiate the requested special inspection. Prepayment shall be made by certified check or money order made payable to the Texas Department of Licensing and Regulation. (c) Commission fees: (1)-(3) (No change.) (4) Replacement: (A)-(C) (No change.) (d) The fee for the boiler law and rules is $12. 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 28, 1992. TRD-9213186 Jack W. Garison Acting Executive Director Texas Department of Licensing and Regulation Effective date: October 20, 1992 Proposal publication date: August 21, 1992 For further information, please call: (512) 463-3127 TITLE 22. Examining Boards Part XV. Texas State Board of Pharmacy Chapter 311. Code of Conduct 22 TAC sec.311.2 The Texas State Board of Pharmacy adopts new sec.311.2 concerning procedures regarding complaints filed against board members with changes to the proposed text as published in the April 7, 1992, issue of the Texas Register (17 TexReg 2453). The new section provides procedures to follow in the event that a complaint if filed against a Board Member. No comments were received regarding adoption of the new section. The new section is adopted under the Texas Pharmacy Act, sec.sec.6, 16(a), 17(a) (4) and (6), and 27, which provides the Texas State Board of Pharmacy the authority to adopt rules for the proper administration and enforcement of the Act. sec.311.2. Procedures regarding complaints filed against Board Members. (a) The following procedures are applicable with regard to complaints against a board member, if the complaint alleges violations of the laws and rules governing the practice of pharmacy. (1) The complaint shall be reviewed by the executive director, who may refer the complaint to the appropriate board staff for handling, or if deemed necessary, the executive director may refer the complaint to another agency. (2) If the complaint is investigated and the investigation produces evidence of a violation of the laws or rules regarding the practice of pharmacy, the board staff shall determine if the complaint merits the institution of disciplinary action. This decision shall be made in consultation with one board member who shall be a pharmacists, but who shall not be the subject of the complaint; the board member shall be the President of the board, unless such person is unable to serve because he or she does not meet the criteria of this paragraph or for some other valid reason. If the President is unable to serve, the order of succession shall be Vice-President, then Treasurer. If none of the pharmacist officers are able to serve, then the board Present or designee shall designate another pharmacist board member to serve. (b) If after consultation with the board member described in subsection (a)(2) of this section, the determination is made that the complaint merits the institution of disciplinary action, the following is applicable. (1) The complaint shall be directed to the assistant attorney general assigned to the board. The office of the Attorney General should then assign an assistant attorney general to prosecute the complaint in accordance with board rules. (2) The board's legal counsel shall act as a liaison between the board's staff and the Attorney General's Office. The board's legal counsel shall ensure that the board's staff provides any information or assistance requested by the Attorney General's Office. (3) The board member shall be sent a preliminary notice letter and offered the opportunity to attend an informal conference for the purpose of settling the matter through an informal conference. (c) If the board member accepts the opportunity to attend an informal conference, the conference participants shall be as follows: (1) the assistant attorney general assigned to the case, who shall conduct the informal conference; (2) the board member who is the subject of the complaint and/or his or her legal counsel; (3) board staff, as necessary or required; and (4) one board member, who shall be the same person who was initially consulted about the complaint, as described in subsection (a)(2) of this section, provided, however, if that board member is unable to serve for some valid reason, the board member that shall attend the informal conference shall be a pharmacist, but who shall not be the subject of the complaint; the board member designated to attend the informal conference shall be the President of the board, unless such person is unable to serve because he or she does not meet the criteria of this paragraph or for some other valid reason. If the President is unable to serve, the order of succession shall be Vice-President, then Treasurer. If none of the pharmacist officers are able to serve, then the board Present or designee shall designate another pharmacist board member to attend the informal conference. (d) The case shall proceed to hearing, if the board member who is the subject of the complaint waives his or her right to attend an informal conference, or if after an informal conference is conducted, the case is not dismissed or the board member does not accept the recommendation for settlement. (e) If the case proceeds to hearing, the following procedures are applicable: (1) the assistant attorney general assigned to the case shall prosecute the hearing with the hearings officer presiding; (2) the hearings officer shall then draft an officer's report which discusses the evidence and contains proposed findings of fact and conclusions of law. The hearings officer shall, as authorized by law, recommend a sanction if he or she determines one is necessary; and (3) At the next scheduled board meeting, after the hearing officer has issued a proposal and all parties have accepted and replied, the following is applicable. (A) The board, absent the board member who is the subject of the complaint, shall vote to: (i) accept or reject each proposed finding of fact and conclusion of law; and (ii) accept or reject the recommended sanction, if applicable. (B) If the board rejects the recommended sanction, the board shall then vote on the sanction they deem appropriate. (C) If the board determines that additional evidence is needed, they can vote to remand the case for further hearing, as provided by law. (f) For the purposes of this section, a board member is defined as any individual who is serving on the board on the date of the receipt of the complaint, or any individual who has previously served on the board, if the complaint is filed within two years from the date the board member's official duties ended. 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 30, 1992. TRD-9213232 Fred S. Brinkley Jr., R.Ph., M.B.A Executive Director/Secretary State Board of Pharmacy Effective date: October 21, 1992 Proposal publication date: April 7, 1992 For further information, please call: (512) 832-0661 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 229. Food and Drug Food Service Sanitation 25 TAC sec.229.172 The Texas Department of Health (department) adopts an amendment to sec.229.172, concerning accreditation of food protection management programs, with changes to the proposed text as published in the August 7, 1992, issue of the Texas Register (17 TexReg 5505). The section covers accreditation of food protection management programs. The section establishes minimum requirements governing the content and duration of food protection management training programs pursuant to the requirements of Chapter 438, Subchapter D, Texas Health and Safety Code (Code). For clarification, the title of the section has been changed and the amendment revises procedural and administrative requirements for accreditation of programs and institute procedural and administrative criteria for recertification programs authorized during the 72nd legislative session. The amendment to sec.229.172 allows the department to discharge its accreditation and auditing duties more efficiently by standardizing educational and administrative program requirements. The auditing procedure revisions facilitate department compliance with the rules. An application fee for the accreditation of certification programs is instituted to offset program costs. A summary of comments received during the comment period is as follows. Comment: Concerning proposed sec.229.172(b)(6)(B), the six-hour length of training required for recertification, a commentor stated that three hours of training would be sufficient. Response: The department disagrees as six hours was the average of the recommended lengths of time indicated on a survey conducted of local health departments and course sponsors. Comment: Concerning proposed sec.229.172(d)(5), a commentor expressed disagreement in limiting class size to 35 students. Response: This was a misunderstanding on the part of the commentor since this section addresses proctor requirements and not class size; however the student/proctor ratio has been expanded to a maximum of 50/1 and the definition of proctor has been revised to include designated representatives. Comment: Concerning proposed sec.229.172(d), two commentors suggested provisions for an oral examination option be provided in the rules to assess knowledge of those unable to read. Response: The department agrees and has added paragraph (7) to include language concerning special examination accommodations as determined by course sponsors or required by the Americans with Disabilities Act. Comment: Concerning proposed sec.229.172(g), a commentor suggested rewriting this section on instructor qualifications more succinctly. Response: The department has reviewed the verbiage and feels that the instructor qualifications section is clear. Comment: Concerning proposed sec.229.172(j), a commentor suggested a clarification of the statement that state-issued Food Protection Management certificates are recognized by local regulatory authorities as the only valid proof of successful completion of training. Response: The department agrees and has rephrased the statement for clarification. Comment: A commentor requested that proposed sec.229.172(k) concerning program and candidate fees be clarified as to fee differences between the certification and the recertification programs. Response: The department agrees and has changed sec.229.172(k)(1), sec.229. 172(k)(2), and sec.229.172(k)(3) to clarify the fee requirements. Comment: Concerning proposed sec.229.172(k)(1) and (2), a commentor suggested the status of non-profit organizations be considered in the payment of program application and renewal fees. Response: The department does not object to this exemption, however, it is not provided for in the statute. Comment: Concerning proposed sec.229.172(k)(3), a commentor questioned the need to raise the candidate fees from $5.00 to $7.00. Response: The department has calculated program costs and feels the increase in fees is necessary to cover the cost of accreditation, audit and maintenance of the registry as required in the statute. Comment: A commentor disagreed with proposed sec.229.172(m) concerning unannounced examination audits used to assess program compliance because of unexpected scheduling changes and the creation of undue stress on candidates. Response: The department disagrees because program sponsors are required to advise the department of any schedule changes. Unannounced audits provide the department with a more accurate assessment of course compliance. Comment: Concerning proposed sec.229.172(n)(1), a commentor expressed reservations about a quarterly candidate failure rate of 26% or higher on course sponsor examinations as a cause for revocation. Response: The department feels that a 75% pass requirement is reasonable based on the fact that the current average pass rate is 91.5%. Comment: Concerning proposed sec.229.172(n)(2), a commentor suggested basing revocation on a significant difference in pass-fail ratios between the state audit examination and the course sponsor examinations. Response: The department disagrees since course sponsor testing parameters, conditions and security are not monitored by the department. A comparison of the course test to securely monitored state exams would be meaningless. Comment: A commentor stated that provisions should allow for both correspondence courses and a challenge certification and recertification examination without mandatory site training. Response: The department disagrees as these provisions are not provided for in the statute. Comment: Concerning sec.229.172(m), state audit examination results, a commentor suggested incorporating the examination results of candidates who receive prearranged oral examinations using the course examination with the examination results of candidates who receive the state examination given by the state audit team. Response: The department disagrees as this would negate the statistical validity of the state audit examination due to the incorporation of results from two different examinations. Comment: A commentor stated that the length of time for an examination should be left open to accommodate students with language barriers or learning disabilities. Response: The department agrees and has clarified the language in the section for consistency with the statute (Chapter 438, Texas Health and Safety Code, Subchapter D.), which states that candidates are allowed at least an hour for an examination. The department has added language to the section allowing special provisions for candidates with language and disabilities by the course sponsors. Comment: A commentor expressed concern as to the lack of entrance criteria for candidates to the program. Response: The department disagrees since the intent and scope of the Food Protection Management program is targeted at manager-level personnel and defines manager-level job criteria. The commentors were Child Inc., Del Mar College, the Texas Restaurant Association, Corpus Christi- Nueces County Department of Public Health, H.E. Butt Grocery Company and Eastfield College. The commentors were not against the rules in their entirety, however they expressed concerns, questions and recommendations. The amendment is proposed under Chapter 438, Subchapter D, Texas Health and Safety Code, which provides the Department with the authority to adopt necessary regulations to enforce this Chapter; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the Commissioner of Health. sec.229.172. Accreditation of Food Protection Management Programs. (a) Intent and scope. This section is intended to provide a framework for accrediting manager-level training programs in food service sanitation, in compliance with Chapter 438, Subchapter D, of the Texas Health and Safety Code. A uniform standard governing the accreditation of sanitation training programs enhances the recognition of reciprocity among regulatory agencies and reduces the duplication and expense of retraining incurred when food service managers cross regulatory jurisdictions. Education of the food service manager provides better qualified personnel, thereby reducing the risk of foodborne illness outbreaks caused by improper food handling and preparation techniques. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(5) (No change.) (6) Food Protection Management Program-A program accredited by the Texas Department of Health (department) which trains and certifies food service managers. (A) Certification Program-A program whose coursework consists of a minimum of 14 hours of classroom instruction and at least a one hour examination meeting the requirements of the Health and Safety Code, Chapter 438, Subchapter D. (B) Recertification Program-A program whose coursework consists of a minimum of six hours of classroom instruction on food safety and sanitation and a final examination as defined by the department. (7) Food service establishment-Any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off premises and regardless of whether there is a charge for the food. The term also includes delicatessen-type operations that prepare sandwiches intended for individual portion service. The term does not include private homes where food is prepared or served for individual family consumption, retail food stores, the location of food vending machines, and supply vehicles. (8) Food service manager-An individual who: (A) is responsible for identifying hazards in the day-to-day operation of a food preparation, service, or dispensing facility; (B) develops or implements specific policies, procedures, or standards aimed at preventing foodborne illness; (C) coordinates training, supervises, or directs food preparation activities and takes corrective action as needed to protect the health of the consumer; and (D) conducts in-house self-inspection of daily operations on a periodic basis to see that policies and procedures concerning food safety are being followed. (9) Instructor-An individual whose educational background and work experience meet the requirements for instructor as outlined in this section. (10) Law-Any federal, state, and local statutes, ordinances, and regulations. (11) Person-An individual, partnership, corporation, association, or other legal entity. (12) Proctor-An authorized agent of the Texas Department of Health; a course sponsor, instructor or designated representative; local health department personnel; or authorized community college or university personnel. (13) Regulatory authority-The state and/or local enforcement authority, or authorities, having jurisdiction over the food service establishment, or those determined by the commissioner of health as having jurisdiction. (14) Retail food store-Any establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premise consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only fresh fruits and fresh vegetables for sale; food service establishments; farmers markets; or food and beverage vending machines as defined in the Vending of Food and Beverages, 1978, Department of Health, Education and Welfare Publication Number (FDA) 78-2091. (15) Secure-Access limited to a proctor. (c) Requirements for accreditation of food protection management programs. All programs must meet the program requirements of the Texas Health and Safety Code, Chapter 438, Subchapter D. Persons sponsoring programs utilizing the state instructor's guide and final examinations shall file an application with the department. Persons wishing to develop their own course guides shall submit: (1) an application; (2) an independently-developed course guide including: (A) a detailed summary of each topic and subtopic area; (B) a time allotment for each topic and sub-topic totaling: (i) 14 hours for certification; and (ii) six hours for recertification; (C) a copy of all written teaching materials, pamphlets and handouts; (D) a list of all texts used; and (E) a list of all audio-visual aids used, describing their content, duration, and location in the program; and (3) documentation of the use of a national examination or special foreign language examination meeting Food Protection Management Program examination criteria. (d) Course examinations. The department shall supply an English language final examination on a bi-annual basis to course sponsors utilizing the state examination. Course sponsors shall be responsible for the security of the state examinations. (1) The course examination shall be multiple-choice (A,B,C,D) and shall: (A) contain 75 questions for certification; or (B) contain 50 questions for recertification. (2) A candidate passing score shall be 75% or above. (3) The final examination score or status (incomplete, withdrawal, or retake) of each candidate enrolled in a class shall be submitted to the department on a class roster. (4) The examination shall be maintained under secure conditions and administered by an approved proctor. (5) There shall be one proctor for every 50 students taking the examination. (6) An individual who speaks English as a secondary language may use a dictionary during examinations to translate English into the native language. (7) Individuals who require special examination arrangements as determined by course sponsors or as required by the Americans with Disabilities Act shall be accommodated by course sponsors. (e) Retake examinations. Course sponsors may set their retake policy in the event a candidate fails the final examination. (f) Student identification. The sponsor shall confirm by photo ID the identity of a candidate at the time of the final examination. A candidate's Food Protection Management certificate shall not be issued until such time as a valid photo ID has been presented to a proctor. (g) Instructor qualifications. The Food Protection Management Program course shall be taught by a department-approved instructor. As a minimum all instructors shall: (1) have successfully completed a Food Protection Management Certification Program as evidenced by a valid certificate; (2) possess a high school diploma or its equivalent; and (A) have worked a minimum of one year inspecting food service establishments; or (B) have worked a minimum of five years in the food service industry; or (3) possess an associate's degree or bachelor's degree from an accredited institution; and (4) provide evidence of attendance of at least one seven-hour training seminar on food safety and sanitation topics every three years following employment as an instructor. (h) Course scheduling. The course sponsor shall submit in writing to the Department, a bi-annual course schedule. The schedule shall include class times, dates, locations, size, and instructor name. The department shall be notified by telephone or FAX of any changes in previously submitted course schedules at least 24 hours before the initiation of any class. (i) Food protection management program accreditation certificate. The department shall issue a certificate of accreditation to each course sponsor who has demonstrated compliance with this section. A certificate issued under this rule expires one year from the date of issuance. (j) Food protection management program candidate certificates. Food Protection Management Program candidate certificates issued by the Department and accredited course sponsors shall be valid for a period of three years from date of issuance. State-issued food protection management training certificates shall be recognized as the only valid proof of successful completion of a state- accredited food protection management training program. (k) Program and candidate fees. All fees are nonrefundable and payable to the Texas Department of Health. Fees shall be: (1) $150 for an initial application for a Food Protection Management Certification or Recertification Program; (2) $100 for an annual renewal fee for a Food Protection Management Certification or Recertification Program; and (3) $7.00 per candidate enrolled in a Food Protection Management Certification or Recertification Program for the preceding three months: (A) the candidate fees are due on the first day of January, April, July, and October of each calendar year; and (B) considered delinquent if not received within 45 days after the due date. (l) Publication of a program registry. The department shall maintain and publish a current program registry. The registry shall be circulated statewide on a quarterly basis to community colleges, local health departments, public health regions and industry training groups. (m) Department audits. Examination and classroom audits shall be conducted on an announced and unannounced basis to assess program compliance. Audits will be determined from, but not limited to, course schedules and quarterly examination results submitted by course sponsors. (n) Revocation of accreditation. The following items are just cause for program review and/or revocation of a certificate of accreditation: (1) a quarterly candidate failure rate of 26% or higher on course sponsor examinations; (2) a mean class score of less than 75% on a state audit examination; (3) failure to notify the department of course schedules and/or scheduling changes; (4) a sponsor that is delinquent in payment by more than 45 days; (5) a sponsor that knowingly files a false accounting report, or fails to pay the appropriate fee, as determined through an audit by an agent of the department; and (6) a sponsor that compromises a secure examination, or fails to comply with or adhere to the rules regulating the Food Protection Management Program. (o) Revocation procedures. Revocation procedures under this section shall be conducted in accordance with the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a and the department's formal hearing procedures in Chapter 1 of this title (relating to the Board of Health) . This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1992. TRD-9213171 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: January 1, 1993 Proposal publication date: August 7, 1992 For further information, please call: (512) 458-7248 Registration of Manufacturers of Food-Including Good Manufacturing Practices 25 TAC sec.229.182 The Texas Department of Health (department) adopts an amendment to sec.229.182, concerning registration fee and procedures, without changes to the proposed text as published in the August 7, 1992, issue of the Texas Register (17 TexReg 5508). Section 229.182 establishes registration requirements and procedures for all manufacturers of food-including good manufacturing practices. In addition, sec.229.182 enumerates those entities which are exempt from registration requirements. The amendment restructures the gross annual volume dollar amounts of food products manufactured at an establishment that are used to determine the registration fee. The amendment also increases certain registration fees based on the restructured gross annual volume dollar amounts. The section enables the department to license and regulate manufacturers of food so as to ensure compliance with the regulations entitled "Current Good Manufacturing Practice in Manufacturing, Packing, or Holding Human Food". The increased fees will enable the department to conduct needed inspections of manufacturers of food. Under the previous fee structure, the department was able to conduct only 2,877 inspections per year. The increase in fees will result in 4,712 inspections a year, enabling the department to inspect all high priority establishments at least once a year. The department will be able to identify unknown firms, to follow up on the firms that are delinquent in fee payment, and to audit the firms that are not paying the appropriate fee based on the gross annual volume of earnings for food production. This should, in turn, result in a further increase in inspections by providing additional funds for additional manpower. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Health and Safety Code, sec.431.241, which provides the department with the authority to adopt necessary regulations pursuant to the enforcement of this Chapter; and sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health and the Commissioner of Health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 28, 1992. TRD-9213172 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: November 1, 1992 Proposal publication date: August 7, 1992 For further information, please call: (512) 458-7248 Chapter 289. Occupational Health and Radiation Control Asbestos Exposure Abatement in Public Buildings 25 TAC sec.sec.289.141-289.144, 289.147-289.151, 289.156-289.157 The Texas Department of Health (department) adopts the repeal of sec.sec.289.141-289.144, 289.147-289.151, 289.156, and 289.157, concerning asbestos exposure abatement in public buildings. The sections are replaced by new sections concerning Texas asbestos health protection in Chapter 295, concerning occupational health, which are being adopted in this issue of the Texas Register. The existing sections are being repealed and replaced by new sections in Chapter 295 in order to implement recent amendments in Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, to Texas Civil Statutes, Article 4477-3a, which is the state law covering asbestos abatement. There were no comments received regarding the repeal of existing sections; however, the department received numerous comments addressing the proposed new sections which are adopted and published in this issue of the Texas Register under Chapter 295, concerning occupational health\Texas asbestos health protection. The repeals are adopted under Texas Civil Statutes, Article 4477-3a, sec.11, which provide the Board of Health with the authority to adopt rules covering asbestos removal or encapsulation, including licensing and regulation; Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended Article 4477- 3a; and Health and Safety Code, sec.12.001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. 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 29, 1992. TRD-9213204 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: October 20, 1992 Proposal publication date: May 1, 1992 For further information, please call: (512) 834-6600 Chapter 295. Occupational Health Fees for Asbestos Services The Texas Department of Health (department) adopts an amendment to sec.295. 21, and adopts new sec.sec.295.31-295.40, sec.sec.295.42-295.52, sec.sec.295.54-295. 56, sec. sec.295.58-295.62, sec.295.64-sec.295.65, and sec.sec.295.67-295.70, concerning fees for asbestos services and Texas Asbestos Health Protection. All sections are adopted with changes with the exception of sec.295.67, sec.295. 68, and sec.295.70 to the proposed text published in the May 1, 1992, issue of the Texas Register (17 TexReg 3125). The sections adopted without changes will not be republished in this issue of the Texas Register. The new sections replace existing rules concering asbestos exposure abatement in public buildings in Chapter 289 of this title, specifically sec.sec.289.141- 289.144, sec.sec.289.147-289.151, and sec.289.156, sec.289.157, which are hereby repealed upon adoption of the new sections. This complete revision of the rules is the result of distribution of copies to more than 1, 800 recipients, four public hearings, and more than 100 comments received in response. The revision contains numerous changes to clarify the requirements and provisions in the rules. The amendment and new sections implement the provisions in Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended Texas Civil Statutes, Article 4477-3a, concerning asbestos exposure abatement. Section 295.21 concerns fees for asbestos services and the amendments delete the department's authority to charge a fee for analysis of the samples. The major changes in the new sections are as follows: New categories of licenses are added, including building inspectors, management planners, consultants, project managers, air monitoring technicians, laboratories, transporters, and trainers. Fees are assessed to cover the expenses of operating the licensing and enforcement activities. A limited exemption from licensing is provided for persons removing resilient floor covering materials containing asbestos. Provisions for inspections, investigations, and administrative penalties have been added. A summary of comments received during the comment period is as follows. Comment: Concerning sec.295.21, a comment was made that the preamble indicated that the department's authority to receive and charge a fee for analysis of samples was deleted, but that sec.295.21 still contained language that gives the department that very authority. Response: The department agrees and has changed all references in this section to fees for asbestos services. Comment: Concerning sec.295.21(a), several commenters were uncertain if this section was requiring that all management plans be reviewed and approved by the department. The paragraph should be clear as to whether review and approval is mandatory. Response: The department agrees. The words "non-mandatory" have been added to the scope in subsection (a)(2). Comment: Concerning sec.295.21, some commenters requested clarification on what management plans are. Response: The department responded that a management plan is not a specification for removal or encapsulation. It is a plan that explains how to maintain your areas of asbestos, when to reinspect and assess the condition of asbestos and what actions to take if asbestos needs to be removed as a result of the assessment or maintenance, renovation or demolition. See sec.295.32. Comment: Concerning sec.295.21, a commenter was concerned that the requirement for a licensed management planner to write management plans would place additional expense on scarce state funds for state agencies. Response: It is a requirement by law to have only a licensed management planner to write the management plan. See sec.295.51. Comment: Concerning sec.295.31, a commenter suggested that the public be supplied with statistics on asbestos related diseases in Texas and that verification of improvement be determined by some means in order to justify this regulation. Also that verification be made that licensing fees are sufficient to support all related activities. Response: The department does not keep statistics on asbestos related diseases. Regulations are required under Texas Asbestos Health Act. Licensing fees are currently sufficient to support related activities and can be adjusted as needed. Comment: Concerning sec.295.31, a commenter declared that the department has no authority to enforce OSHA regulations. Another commenter suggested that public schools and political subdivisions be exempt from licensing and fees. Response: The department disagrees. It is well established that the department does have the authority to enforce applicable standards of OSHA regulations. There is no provision in the Act exempting public agencies. Texas Civil Statutes, Article 4477-3a allows for no exemptions from licensing or fees. Comment: Concerning sec.295.32, many commenters requested additions to the definitions. It was suggested that asbestos abatement consultant/owner's representative, owner, industrial hygienist, certified industrial hygienist, third party monitor, asbestos inspection, small scale-short duration project, resilient floor covering material, industrial facility and manufacturing facility be added to the definitions. One commenter recommended that AIHA be removed from the list since no other professional organizations were defined. Response: The department disagrees. Expanding the definitions would not contribute greatly to clarify the rules. The occupational disciplines mentioned and the expertise they provide are all well known in the trade. The other items mentioned are also well known in the industry. The department believes that the definition of AIHA should remain since it is the only professional organization mentioned in the rules. Comment: Concerning sec.295.33, a commenter suggested that the state clarify the issue when state rules are less stringent than federal guidelines. Response: The department disagrees since state rules cannot ever be less stringent than federal guidelines. If for some reason this did occur, federal guidelines would prevail. Comment: Concerning sec.295.34(c), a commenter suggested that a building owner must formulate a comprehensive abatement plan drawn up by a licensed consultant, and the contractor should use the consultant to oversee the contractor in the execution of the plan. Response: The suggestion that abatement plans be designed by a licensed consultant is already required within the rules for full-scale abatement projects. Not all jobs require overseeing by a licensed consultant, and the Department states it should be left to the discretion of the client as to who is selected to oversee the project (consultant or supervisor). Comment: Concerning sec.295.34(b), many commenters suggested that only that portion of a building to be renovated or demolished be inspected for the presence of asbestos products, and not the whole building as currently implied. Response: The department agrees with this comment, and has added language such that all areas contiguous to the area being renovated or demolished be inspected for the presence of asbestos containing materials. Comment: In general, a commenter suggested allowing the use of trade contractors to perform O&M work if they employ licensed supervisors and workers. Response: The department agrees, and has made provisions in sec.295.43 to accommodate this suggestion. Comment: Concerning sec.295.34(e), a commenter suggested that a copy of the management plan be submitted with each required notification form. Response: The department disagrees, however, a copy of any asbestos management plan required by the department as a result of a mandatory building survey must be submitted to the department. Comment: Concerning sec.295.35, a commenter inquired about licensure for those individuals not eligible for employment in the United States. Response: The department has maintained a careful surveillance of illegal applicants because of widespread issuance of false social security cards. The statement of "not eligible for license or registration" has been added to this section, and as a basis for denial of application in sec.295.38(c)(2). Comment: Concerning sec.295.36(a), it was suggested that those who remove resilient floor coverings not be exempted from the licensing law. Response: The department disagrees. This comment is in conflict with the provisions of House Bill 79, Regular Session, 1991, which specifically provides for such exemption. Comment: Concerning sec.295.36(a)(2), it was suggested to delete the eight hour training requirement for resilient floor covering removers. Response: The department disagrees. This comment is in conflict with the provisions of House Bill 79, Regular Session, 1991. The exemption for floor coverings is only from the licensing provisions of the law. Comment: Concerning sec.295.36(a)(2), a comment was received to exempt those who have taken the 24-hour worker training course from taking the eight hours training required for the removal of resilient floor coverings. Response: The department disagrees. This comment is in conflict with the provisions of House Bill 79, Regular Session, 1991, which require training on specific work practices. Comment: Concerning sec.295.36(a)(3), a commenter stated that this paragraph, stating that school custodial workers must have mandatory training prior to qualifying for the exemption, is a violation of AHERA and should be deleted. Response: The department disagrees. This comment appears to be a misinterpretation of the regulations. AHERA will not be violated under the terms of this regulation. Comment: Concerning sec.295.36(a)(4), a commenter has expressed concern about which methods of floor covering removal are permitted under the exemption. Response: The department agrees. Only certain methods of removal are exempt. These are published for distribution in the booklet, "Recommended Work Practices for the Removal of Resilient Floor Coverings", by the Resilient Floor Covering Institute. No other removal methods, including infra-red heat devices, are exempt from licensing requirement. Comment: Concerning sec.295.36(b), a comment was received to delete the 10-day notification requirement. Response: The department disagrees. This comment is in conflict with the Act which requires notifications. Comment: Concerning sec.295.36(c), a commenter suggested that it is not clearly stated that the floor covering must be carefully removed so as to maintain it in a non-friable state. Response: The department agrees that this statement needs to be clarified, and has added this limitation. Comment: Concerning sec.295.36(e), a commenter requested information as to the reasons that qualify an asbestos emergency. Response: The department responds that an asbestos emergency may be declared by the department only if public health or safety are seriously affected. This qualification has been added. Comment: Concerning sec.295.37(a), several commenters questioned the application of these rules concerning the conflict of interest provision of the law with respect to employment of an air monitor technician for an asbestos abatement project. Response: The department agrees that this needs clarification, and has re- stated the conditions under which the contractor may or may not employ abatement project air monitor technician. Comment: Concerning sec.295.37(a) and (b), a commenter suggested that state and local governmental agencies be exempt from these sections. Response: The department disagrees, as there is no provision for exemption in the Act for state and local governmental agencies. Comment: Concerning sec.295.37 (a), a commenter pointed out an impossible situation whereby a building owner\operator, who is licensed as an asbestos abatement contractor to perform tasks in buildings under their purview are unable to hire a third party monitor without being in violation of the rules. Response: The department agrees. The following language is added to remedy the problem: "Those who are licensed to perform asbestos abatement for their own account shall employ a third party monitor for the purpose of obtaining final clearance." Comment: Concerning sec.295.37(b), a commenter suggested that the following language be added: "Such person must not be employed by the abatement contractor, or by any agency affiliated with the abatement contractor." Response: The department disagrees. The provisions of the regulation restrict persons from being employed by the contractor. Affiliated agencies fall outside the scope of the Act. Comment: Concerning sec.295.38(a), several commenters pointed out that the statement of general requirements for applications and renewals did not mention the department's policy, which states that the burden of proof for all qualification requirements is the responsibility of the applicant. Response: The department agrees, and has added this fundamental part of licensing policy. Comment: Concerning sec.295.38(c), a commenter suggested adding the following language: "if a qualified person representing the company or firm requesting a license already represents a company that is licensed." Response: The department agrees and has added the language in subsection (c) (17). Comment: Concerning sec.295.38(e)(1)(A), a commenter suggested to change "of" to "or" in second to the last sentence of the subparagraph. Response: The department agrees to the clarification. Comment: Concerning sec.295.40(a)(1), the Texas Department of Insurance suggested that the third sentence be changed from "and must be written...." to "and must be written by an insurance company authorized to do business in Texas or by an eligible Texas surplus lines insurer as defined in the Texas Insurance Code, Article 1. 14-2, or by a Texas registered risk retention group or through a Texas registered purchasing group." Response: The department agrees, and has made this change. Comment: Concerning sec.295.40(a), one commen ter suggested adding a paragraph (5) stating that the department conduct random inquiries with insurance carriers to verify that the licensed company has insurance. Response: The department disagrees. No license will be issued until it has been verified that the applicant does have adequate insurance. Comment: Concerning sec.295.40(a)(1), one commenter suggested that the department require a certificate of insurance instead of the whole policy as now written. Response: The department agrees. A certificate of insurance will provide all the information required for licensing. Comment: Concerning sec.295.42, a commenter stated that roofing workers should be exempt from licensing. Response: Roofing workers are exempt from the licensing requirement inasmuch as the department rules cover asbestos removal "within a public building." Comment: Concerning sec.295.43, general comments were received from building owners and from agencies representing building owners. Most comments dealt with the ability to engage the services of tradesmen in performing small tasks if they (the building owner) were not a licensed building owner/manager. Response: The department agrees with the comments and has rewritten the section to accommodate this need. Tradesman may now become licensed O&M contractors, limited to projects of small scale/short duration. Comment: Concerning sec.295.44(d)(1), several commenters have mentioned that the amount of classroom hours of training, listed as 36, should be 32 hours. Response: Mandatory training course requirements must comply with the EPA Model Accreditation Plan, and these requirements are to be changed, including additional hours. Therefore, all references in these rules to the number of classroom hours for training required by EPA are removed, and reference is changed to the published requirements of the Model Accreditation Plan for that particular course. Comment: Concerning sec.295.44 (d)(3), a commenter questioned how persons who have received their training from out-of-state training providers can provide the kind of photo identification required of applicants. Response: The department agrees that this instruction is not provided and has added the following language: "Persons submitting out-of-state training certificates with their applications may obtain the necessary photo identification when attending the mandatory course on Texas asbestos rules required of out-of- state applicants...." Comment: Concerning sec.295.44(f)(1), a commenter suggested the addition of the words "or retained" after the word "employed" in this paragraph. Response: The department agrees, and these words have been inserted. Comment: Concerning sec.295.44(f)(2), a commenter suggested that an O&M supervisor may also seek employment as an air monitoring technician. Response: The department disagrees. The licensing of air monitoring technicians is an entirely separate license category. An individual may hold more than one license, but there are separate qualifications for each. Comment: Concerning sec.295.45(e), a commenter suggested that no asbestos abatement contractor shall have the right to hire or supervise individuals as employees who are actually contract workers. Response: The department disagrees. The requirement for hiring persons is limited to their eligibility and qualifications as stipulated in the rules. The Act makes no other restrictions. Comment: Concerning sec.295.45(e)(10), a commenter points out that air monitoring practices are denied to contractors under the third-party provision of the law. Response: The department disagrees. Use of air monitoring by contractors is now authorized in sec.295.37(a), which states that personal samples may be obtained by the contractor for OSHA monitoring requirements. Comment: Concerning sec.295.45(f), two commenters proposed that time limits on the temporary storage of asbestos waste be set because of several instances of excessive storage periods in the past. Response: The department agrees with the above proposal, finding that this is the responsibility of the contractor, and has added a time limitation of 30 days for temporary storage to paragraph (11). Comment: Concerning sec.295.46(d)(1), two commenters suggested that the requirement for actual work experience to qualify for licensing as an asbestos abatement supervisor is a means of impeding building services. Response: The department disagrees. The commenter has failed to distinguish between the full scope of authority of the asbestos abatement supervisor, which makes the experience requirement a practical necessity, and the restricted scope of the operations & maintenance supervisor, who is a master of his trade but must handle asbestos occasionally and in small quantities, for which only training is required. Comment: Concerning sec.295.47, a commenter claimed that those who consult only for roofing work need not be licensed under this section. Response: The department agrees, and has placed the word "within" in sec.295. 31(c) to further define the scope of the Act. Comment: Concerning sec.295.47(a)(1), a commenter questioned why asbestos abatement project design includes the inspection of public buildings. Response: The department points out that this is a mandatory federal procedure (40 Code of Federal Reulation 61.145) and the determination that this has been completed is required of every consultant designing an abatement project. Comment: Concerning sec.295.47(b), a commenter questioned why asbestos management planning has not been included in this subsection. Response: The department agrees, and has added the words "asbestos management planning" to subsection (b)(2), relating to the scope of consultant duties. Comment: Concerning sec.295.47(b), a commenter questioned whether a consultant must be licensed in each license category in order to perform that activity. Response: The department finds that the scope of an individual consultant license, as listed in sec.295.47(b), encompasses the asbestos-related activities, eliminating the need for separate licenses, but requiring proficiency of consultants in all aspects. Comment: Concerning sec.295.47(b), a commenter suggested that the signing of all asbestos abatement project plans and specifications be added to the scope of the consultant. Response: The department agrees, but points out that this is already included in adopted subsection (i). Comment: Concerning sec.295.47(b), a commenter inquired as to whether those persons performing accident prevention services for insurance carriers, as it would apply to asbestos abatement projects, be required to be licensed. Response: The department agrees that they must be licensed according to the asbestos tasks they are to perform. Neither state nor federal law provides for an exemption. Comment: Concerning sec.295.47(e), two commenters suggested that both engineers and architects, by virtue of their registrations, are not qualified to be asbestos consultants and should be omitted from the list of eligibles for licensing as asbestos consultant. Response: The department disagrees with these comments, pointing out that there are basic eligibility requirements for the consultant's license and the specific qualification requirements for licensure, which can be met by engineers or architects. Comment: Concerning sec.295.47(e)(1), a commenter suggested that this paragraph should read: "current registration in the State of Texas as an architect or engineer." Response: The department agrees with the limitation to those registered in Texas and has added language. Comment: Concerning sec.295.47(e)(2), two commenters requested that a subparagraph be added, citing examples of eligible professional organization. Response: The department agrees, and has added "examples include American Academy of Industrial Hygiene and Board of Certified Safety Professionals" to subparagraph C. Comment: Concerning sec.295.47(e)(4), several commenters complained of this provision, which admits persons with only high school diplomas as also eligible under this section. Response: The department disagrees. This is a "grandfather" clause admitting for only a limited period of time those who are currently practicing consultants. Also, there is no relationship between the qualification for asbestos consultants and certain safety inspectors employed by the Workers Compensation Commission. Comment: Concerning sec.295.47(f)(1), a commenter suggested that the experience time period requirement for qualification within the last three years is too limited a time period. Response: The department agrees to lengthening the time period to five years, but explains that the time period must not be eliminated entirely. Comment: Concerning sec.295.47(f)(3), several commenters have questioned the training requirements for consultants, requesting substitution of courses, etc. Response: The department agrees, and has combined certain courses of instruction to reduce the burden of cost and time of the applicant. Comment: Concerning sec.295.47(f)(3)(D), a commenter has suggested that the requirement for a qualification examination for consultants be eliminated entirely. Response: The department agrees, and has removed the requirement. Comment: Concerning sec.295.47(h), a commenter has suggested the re-wording of the first sentence of the responsibilities for consultant. Response: The department agrees and has changed the wording to explain more fully the inclusion of this listing of the responsibilities of an asbestos consultant. Comment: Concerning sec.295.47(f)(6), two commenters complained about the insurance required of asbestos consultants. Response: The department responds that there is a specific requirement in the Act sec.4A.(4)(B) which requires mandatory errors and omissions insurance coverage for consultants, inspectors, or laboratories performing work for hire. Comment: Concerning sec.295.48(b), several commenters suggested that there be stated conditions as to when a consultant's office shall be considered an Asbestos Consultant Agency. Response: The department agrees to this suggestion and has stated these conditions more clearly than the original text. Comment: Concerning sec.295.48(b)(1), a commenter suggested re-wording this compliance listing for licensed asbestos consulting agencies to stipulate that those consultant offices which do not conduct asbestos consulting activities are exempt from such compliance. Response: The department agrees. To become an asbestos consultant agency is a voluntary action, and those who refrain from doing so are not subject to these provisions. Subsetion (b)(1) has been re-worded. Comment: Concerning sec.295.48(g), several commenters pointed out that the use of the word "ensure" to enumerate the responsibilities of consultant agencies is to invite serious confusion, as the term is accepted legally as "guarantee of results." Response: The department agrees and has removed the word "ensure". Comment: Concerning sec.295.49(a)(1), two commenters suggested that the words "insure" and "safety" be removed from this paragraph because of the confusion of a word that guarantees results instead of monitors progress of the abatement process. Response: The department agrees, and has reworded the paragraph. Comment: Concerning sec.295.49(a)(3), a commenter suggested that the phrase "advise contractors" in the description of project manager duties would be an inappropriate action on the part of a consultant employee, whereas an inquiry or consultation on behalf of the client would be a normal procedure. Response: The department agrees, and has substituted the words "consults with contractors on behalf of their clients." Comment: Concerning sec.295.50(a), a commenter suggested deleting the words "on a one-time basis" from sample-taking instructions. Response: The department agrees, but has placed the instructions on sampling in sec.295.58(h), relating to "Operations: General Requirements," as it applies to asbestos-related activity. Comment: Concerning sec.295.50(a), a commenter questioned as to whether an asbestos consultant must have a separate license to conduct asbestos surveys. Response: The department responds that asbestos surveys/inspections are within the scope of asbestos consultants licensed activities, as listed in sec.295.47(b)(1) of these sections. Comment: Concerning sec.295.50(f), two commenters pointed out that the signatory authority was incorrect. Response: The department acknowledges that the text was misplaced. The text now reads correctly "All asbestos surveys or inspections must be signed by the licensed inspectors performing the inspection or the consultant." Comment: Concerning sec.295.51(b), a commenter suggested that the text of this subsection implies that a licensed asbestos management planner may also do the work of a licensed asbestos inspector. Response: The department agrees with this interpretation, in that a licensed asbestos management planner must first be accredited as an asbestos inspector. Comment: Concerning sec.295.51(e), a commenter suggested that an applicant asbestos management planner should be required to meet the eligibility and qualification requirements of an individual asbestos consultant. Response: The department disagrees, noting that responsibilities of management planners are not as broad as those of a consultant. Comment: Concerning sec.295.51(g), two commenters suggested that the wording of this subsection be changed to: "All asbestos management plans must be signed by a licensed asbestos management planner or the consultant." Response: The department agrees, and has corrected the language in this subsection. Comment: Concerning sec.295.52(e)(2), several commenters suggested that those who have completed the NIOSH 582 or equivalent course is sufficient to meet the training qualification for air monitoring technician. Response: The department disagrees. The NIOSH course teaches the technique of "analysis of airborne asbestos dust," and requires no refresher training. Only a minor part of the course is devoted to sampling and the use of sampling instruments and materials. The three-day training that is required is devoted to a wide scope of hands-on sampling techniques, and the use and calibration of instruments, and also requires annual refresher training. Comment: Concerning sec.295.52(a), a commenter suggested limiting the air monitoring technician to employment by asbestos consultants and the sample- taking to baseline and clearance samples. Response: The department disagrees to this limiting concept of an air monitor's duties. The air monitor technician may also be employed by an asbestos laboratory for the abatement project. Comment: Concerning sec.295.54(a), a commenter suggested that the phrase "fiber content" be changed to "asbestos fiber content." Response: The department disagrees, as this change would eliminate the use of phase- contrast microscopy (PCM). Comment: Concerning sec.295.54(d), two commenters requested that accreditation by the American Industrial Hygiene Association (AIHA) be included for laboratory accreditation. Response: The department agrees: (1) This accreditation is extended to those laboratories accredited by AIHA for asbestos fiber counting and may include asbestos bulk analysis, both of which are contingent on continuing acceptable results of the proficiency analytical test sample review and quality assurance of analyses. (2) Voluntary bulk analysis proficiency testing (PAT rounds) offered by AIHA does not of itself constitute laboratory licensing. Comment: Concerning sec.295.54(d), a commenter suggested that there is no training for polarized-light microscopy for the analysis of bulk samples. Response: The department disagrees, pointing out that the two national agencies for laboratory accreditation which are recognized by these rules have requirements for those employed as analysts. Comment: Concerning sec.295.54(d), a commenter stated that AIHA registry for analysts does not use NIOSH 7400 counting rules for asbestos fiber counting (a mandatory method). Response: The department disagrees. A check with analysts in the registry indicates that the 7400 method is the only method currently in use. Comment: Concerning sec.295.55(a), a comment was made that a license is not required to teach the two-hour and 14-hour asbestos awareness courses as required by AHERA. Response: The department points out that this rule does not require a trainer to be licensed in order to teach these courses. However this section is reworded to reflect that only those courses that are required to obtain a license will need to be offered by a licensed trainer. Comment: Concerning sec.295.55(d)(2), a comment was made that principal training facilities need not be described. Response: The department agrees. This paragraph has been deleted. Comment: Concerning sec.295.55(d)(4), a comment was made that this is a violation of the first amendment to the United States Constitution. Response: The department disagrees. In order to adequately monitor asbestos training courses to determine whether they meet the model accreditation plan, the department must have that information. Comment: Concerning sec.295.55(e), a comment was made that a trainer not be allowed to train his own personnel due to conflict of interest. Response: The department disagrees. Concerns have been expressed on both sides of this issue. Some were concerned that they could not obtain the quality of training elsewhere that they could provide their own people. It would not be possible to prevent all possibilities of wrong-doing by requiring second party intervention. It will be up to the department to police the classes in the same manner regardless of any conflict of interest clause. Also, it is the responsibility of any individual, who feels that they received inadequate training, to report it to the department. Comment: Concerning sec.295.55(e)(4), a comment was made that this paragraph has no relevance and should be deleted. Response: The department disagrees. By delineating these courses as examples it is made clear what is and is not in the areas covered by this license. This subsection clarifies the types of courses not accredited by the department. Comment: Concerning sec.295.55(f), a comment was made that there is no provision in the law to require approval of instructors or the notification required if an "approved" instructor is not available for an upcoming class. Response: The department refers the commenter to the Texas Health Protection Act, sec.3(b), that empowers the department with the authority to determine and specify the conditions which the training organization must meet in order to obtain a license. The department agrees about last minute substitutions and has deleted that reference. Comment: Concerning sec.295.55(g), a comment was made that the department has no authority to specify the qualifications of an instructor. Response: The department disagrees. The Texas Asbestos Health Protection Act, sec.3(b), gives the department the authority to specify the qualifications under licenses required. Without specifications for instructors, it would be possible to put anyone into the position of instructor. Comment: Concerning sec.295.55(g)(2), a comment was made that the instructor should have the same level of degree as that of a consultant. Response: The department disagrees. It is not necessary to possess the same degree as the student in order to teach him something. Comment: Concerning sec.295.55(g)(2), a comment was made to include "or physical" before "sciences". Response: The department agrees and has added the word. Comment: Concerning sec.295.56, a comment was made that there is no requirement under this section for a trained and registered worker to load and unload asbestos as required by the Texas Asbestos Health Protection Act, sec.4B(a). Response: The department agrees, and is including a reference to the requirement for worker registration for those working for a licensed transporter. Comment: Concerning sec.295.56, a comment was made that the requirement for licensing should not be necessary for non-friable material. Response: The department disagrees. If the removal of the asbestos is covered under these rules, then the transport of that material is also covered. Since House Bill 79, Regular Session, 1991, exempts the removal of floor tile from the requirements of licensing, and roofing and siding are not covered under the rules, then it would follow that transporting such material would not require licensing. Comment: Concerning sec.295.56(a), a comment was made to amend this subsection to allow transport to a temporary storage facility by the contractor and require a transporter license for transport to final destination only. Response: The department disagrees because sec.295.43(e)(9) specifies that waste must be disposed of within 30 days of project completion or when receiving container is full, whichever is sooner. This rule is now incorporated as well in the contractors section. This is not intended to be more or less stringent than NESHAPS, but an exact definition to base your disposal. However, by law, if asbestos containing material (ACM) is transported off site on public roads, an asbestos transporter license is required. Comment: Concerning sec.295.56(d), questions were posed as to what are the specific training requirements for this license. Response: The department has addressed this issue by requiring employees who handle the waste asbestos to be registered as asbestos workers. Training for this is addressed in sec.295.42 (relating to Licensure: Asbestos Abatement Workers). Comment: Concerning proposed sec.295.56(d)(3), a comment was made that this paragraph be changed to reflect the Act, sec.4A(4)(d) concerning liability insurance. It was pointed out that auto liability does not cover a spill. Response: The department agrees because the requirement for auto liability is not relevant to asbestos pollution and therefore will be removed as a requirement leaving only the requirement for liability insurance as noted. Comment: Concerning proposed sec.295.56(e), several commenters pointed out that no qualifications for asbestos transport workers are stated in the rules. Response: The department agrees and has added language stating that those who are some adding new group of individuals to be registered employed by licensed asbestos transporters to handle, load, or to unload asbestos shall be registered as asbestos workers. Comment: Concerning proposed sec.295.56(e)(3), a comment was made as to the type of form required for reporting and on what dates the annual reporting period covers. Response: The current form for manifesting the asbestos shipment to the landfill is the Texas Water Commission Uniform Hazardous Waste Manifest form (TWC-0311). Annual reporting to the department will be by calender year. Comment: Concerning proposed sec.295.56(e)(3), a comment was made that reporting requirements are duplicative to the TWC reporting requirements and should be deleted. Response: The department disagrees because TWC does not have reporting requirements for transporters of asbestos. Comment: Concerning sec.295.56(e)(6), a comment was made to be more specific about the training required under this section. The reference made to 29 Code of Federal Regulations (CFR) 1910.120 is too broad. It is suggested that reference be made to 29 CFR 1910.120(q)(6)(ii) which covers containment and control of the spill to prevent exposures. Response: The department agrees that the reference is too broad. However, the reference that the commentor makes is too specific. It is more appropriate to cite the requirement that a transporter has to comply with 29 CFR 1910. 120(a)(v) as it applies to emergency response actions in case of a spill. Compliance with this part of the regulation requires that the transporter train the workers for a spill as part of the required emergency response plan. Comment: Concerning sec.295.58, a comment was made to include a section that no worker will make or be forced to make a fraudulent statement. Response: The department disagrees because sec.295.69(c)(3) and (5) cover this already. Section 295.69(c) was reworded to include registrants. Comment: Concerning sec.295.58(b)(3), a comment was made to delete this paragraph due to the responsibilities that a supervisor has outside containment, and that it would be unenforceable. Response: The department disagrees because a supervisor cannot do a proper job if he does not go into containment periodically to personally check on how things are going and get a first hand observation of the conditions of the containment, the asbestos material, and of how the workers are performing. Enforcement can be done by review of entry log, questioning workers and the consultant. Comment: Concerning sec.295.58(b)(2) and (3), a commenter questioned what "actual abatement activity" exactly does mean? Response: The department added the definition of "asbestos abatement activity" to clarify the activities when a supervisor is required. Comment: Concerning sec.295.58(c), a comment was made that the requirement for an annual physical be deleted from this section due to workers who might not be in containment for over 30 days and who could wear a positive pressure respiratior. Response: The department responded that this is a requirement by law. (see Texas Civil Statutes, Article 4477-3a, sec.4(c)(4)). Comment: Concerning sec.295.60(a), a comment was made that the requirements of this section do not apply to roofing. Response: The department agrees because the law was never intended to cover roofing as is evidenced by the use of the words "in public buildings" under the scope of the rules in sec.295.31(c). Section 295.31(c) will be reworded to say "within public buildings." Comment: Concerning sec.295.60(a), a comment was made that this section should make it clear that these methods are not required if you use the methods in House Bill 79, Regular Session, 1991. Response: The department disagrees because reference to House Bill 79, Regular Session, 1991, in sec.295.36 is sufficient. Comment: Concerning sec.295.60(a), a commenter was concerned that no reference to recommended final clearance levels is made. Response: The department cites federal regulations which states that the recommended clearance levels as suggested in 29 CFR 1926.58, Appendix F, are sufficient guidelines for this purpose. Comment: Concerning sec.295.60(a), a comment was made about the lack of flexibility it allows. The commenter was concerned that the general work practices were to be adhered to regardless of circumstances. Response: The department disagrees, stating that the first paragraph of this section allows for the unique situations encountered, and allows a designer the leeway to deviate from these recommended work practices as long as the specifications are at least as protective to public health and are approved by a licensed consultant. Comment: Concerning sec.295.60(i), a comment was made that the negative pressure should be listed as a minimum and not a maximum. Response: The department agrees that the sentence is confusing and has reworded it. Comment: Concerning sec.295.61(a), a comment was made that the language be modified so that notifications would not be required on projects involving less than three linear or three square feet as in the EPA Worker Protection Rule. Response: The department disagrees. Provision has been made for notification of O&M activities that are below 160 square feet or 260 linear feet, which are asbestos abatement project minimums. Notification is required by law to the department as set out in subsection (g). Periodic notification is permitted. Comment: Concerning sec.295.61(b), a commenter suggested the following language be added: "or abatement contractor, and the name of the consultant/owners representative shall appear on the form as the person responsible for the proper execution of the local, state, federal regulations, and project plans and specifications." Response: The department disagrees. It is contrary to accepted practice to say that only the consultant is responsible for adherence to the rules. His/her name may be included on the notification, but not as the sole responsible person. Comment: Concerning sec.295.61(b), a commenter suggested rewording this subsection to include holding the contractor responsible as well as the owner. NESHAPS holds both contractor and building owner responsible. Response: The department agrees that the building owner is ultimately responsible for what goes on in his/her building. If he/she chooses to pass on the responsibility of notification to the contractor, it is still up to him/her to insure that notification has been made before he/she allows the contractor to start work. If he/she chooses to, this responsibility must be passed to the licensee in writing. If the contractor allows the building owner to make notification, it is up to the contractor to insure that the owner has made notification before he/she starts work. The responsibility to conform to these regulations by all persons licensed under these regulations or who are required to be licensed under these regulations cannot be abrogated by contract or by any other means. Comment: Concerning sec.295.61(c), a comment was made that mail appeared to be the only way to notify and that FAX would no longer be accepted. Response: The department agrees that this is a correct interpretation as the Federal regulations do not accept FAX as a method of delivery for original notifications. Under NESHAPS, commercial delivery or hand delivery is an acceptable alternative to mail. Comment: Concerning sec.295.61(g), many comments were received on the problems associated with notifying for O&M work which involves removal of asbestos. Some commenters wanted the section deleted while others wanted some change in the reporting timeliness or period. Response: The requirement for notification cannot be deleted. By Texas law and NESHAPS, notification is required. One of two ways of notification is required for O&M depending on the size of the job. If the job is at least 160 square feet or 260 linear feet then a single notification is required 10 days prior to the start date. If the job is less than these amounts, then it and all other jobs for that month which are each less than these amounts, must be put on a consolidated notification which is due to the department 10 days before the beginning of the month. Comment: Concerning sec.295.61(h), a commenter felt that since many O&M jobs could not be predicted in enough time, that a 10-day notification could not be met and that O&M notifications should be included under subsection (h) with the emergency notifications. Response: The department agrees that the concept of emergency for small scale O&M (less than 160/260) include projects that make the area uninhabitable for health reasons. Comment: Concerning sec.295.62, a comment was made that records on roofing should not be required unless action level is exceeded. Response: The department points out that roofing is not covered by our law. If the roofing is regulated ACM, or becomes such, then NESHAPS requirements would apply toward record-keeping. Comment: Concerning sec.295.62, a commenter inquired about a time period for records retention. Response: The department refers the commenter to subsection (c)(1) wherein 30 years is the stated time for records retention. Comment: Concerning sec.295.62(c)(1)(G), a comment was made that contracts are not the department's business, that these are private documents. Response: The department agrees, and this will be reworded to say specifications, not contracts. Comment: Concerning sec.295.62(d) and (e), a commenter said that he/she could provide copies of the required documents, but not the originals. Response: The department will add to subsection (d) that documents be made available to the department for inspection upon request. Comment: Concerning sec.295.64, a comment was made that training offers no benefit to roofers. Response: The department points out that the law does not apply to roofing. Comment: Concerning sec.295.64 (a), a comment was received indicating that the United States Environmental Protection Agency (EPA) will change some of the content and requirements of the asbestos training courses promulgated under their Model Accreditation Plan, which constitute the standards of five of the training courses required by these rules. Response: In order to accommodate changes in course content, such as the impending EPA changes, the department has re-stated the general provisions for asbestos training courses. Comment: Concerning sec.295.64(a)(5), several commenters requested that the student-instructor ratio be increased from 10:1 to 15:1. Response: The department has found that the requested ratio (15:1) is customary and satisfactory, and has agreed to this request. Comment: Concerning sec.295.64(c)(1), a commenter pointed out that, whereas the contractor/supervisor training course is an acceptable substitute for asbestos worker training, the contractor/supervisor annual refresher training is not acceptable to maintain worker registration status. Response: A review of the examples of training substitution among the applications received by the department indicates that the number of substitutions is small but the need continues. Therefore, the department accepts the suggestion and states that it now applies to refresher training, as well. Comment: Concerning sec.295.64(i), a commenter recommended that it be clearly stated in the rules that refresher training cannot be accredited for licensure and registration if the appropriate training course was never completed. Response: The department agrees, and a statement has been added. This would constitute a basis for denial of application. Comment: Concerning sec.295.65(d)(6), a comment was made that standardized exams could be compromised under the open records act. The last sentence should delete reference to a standardized exam. Response: The department notes the exam would have standardized questions. However, the open records act does not apply to answers of standardized examinations. Comment: Concerning sec.295.65(d)(6), a comment was made that these additional exams do nothing to benefit the public. It was also the opinion of the commenter that EPA has more experience in testing individuals and can therefore administer/provide better exams/questions. Response: The department points out that the standardized tests are not in addition to the tests already required under the courses as specified by the Model Accreditation Plan. As to which agency is better is a moot point. The EPA Model Accreditation Plan gives the states the opportunity to develop their own examinations or use standardized examinations that were developed for purposes of TSCA Title II. The department finds that, since the state is responsible for approving the courses, that the state should also be responsible for what goes into the courses, and that includes testing. Comment: Concerning sec.295.65(f), a commenter points out the necessity of including the name and address of the training provider on every certificate of training issued therefrom. Response: The department agrees, and has added this stipulation to requirements for issuance of training certificates. Comment: Concerning sec.295.68, a commenter suggested that the department inspectors be required to provide copies of their physical, fit test, and proof of training in order to gain access to the actual abatement work area. Response: The department disagrees. There is no requirement for the contractor to check on the department inspector's background. It is the department's responsibility for the qualifications, training, health status, personal protection equipment, etc., under the law. Comment: Concerning sec.295.70, a commenter suggested that there should not be a set limit on any violation below the maximum allowed by the statute. Response: The department has chosen to set certain limits or values to certain violations under the arena of administrative penalty. Without some set guidelines, trying to enforce the violations under an administrative procedure would be unfair and open to debate. In addition, penalty schedules are established to comply with the cap set on penalties in the Act. Penalty schedules such as the ones set out herein contribute to accelerated enforcement settlements and enhance enforcement activities. In addition to those changes made as a result of the public responses received, the department has made a number of minor editorial changes for the purpose of clarification. These are to be found in sec.sec.295.32; 295.34-40; 295. 42- 295.52; 295.54-295.56; 295.58-295.62; 295.64-295.65; and 295.69. The following are commenters who commented on the rules: Ashley Environmental Svc., Houston, TX; Bloxsom & Associates, Houston, TX; Board of Certified Safety Professionals, Savoy, IL; Boatright, Mody K. P.E., Corpus Christi, TX; Clean Environments, Inc., San Antonio, TX; Delhi Gas Pipeline Corp., Dallas, TX; Eanes ISD, Austin, TX; El Paso ISD, El Paso, TX; Environmental Technologies, Inc., Magnolia, TX; Envirosess, Inc., Abilene, TX; Envirotest, Inc., Houston, TX; Fort Worth ISD, Fort Worth, TX; Godwin & Carlton, Dallas, TX; Goodwin Engineering, Inc., Clint, TX; Gulf Coast Section, Amer. Industrial, Hygiene Assoc., Houston, TX; Incarnate Word College, San Antonio, TX; Law Engineering, Inc., Dallas, TX; Lewis Environmental Services, Gladewater, TX; Loflin Environmental Services, Inc., Houston, TX; Lower Colorado River Authority, Austin, TX; McElroy & Sullivan, Attorneys, Austin, TX; Merico Abatement Contractors, Inc., Longview, TX; NATEC, Houston, TX; National Roofing Contractors Assoc., Rosemont, IL; Niemann & Niemann, L.L.P., Austin, TX; North Texas Section, Amer. Indust. Hygiene Assoc., Dallas, TX; Occupational Environmental Control, Inc., Dallas, TX; Occupational Safety Training Inst., Houston, TX; Ramzel-Texas Services, Austin, TX; Resilient Floor Covering Inst., Rockville, MD; Southern Methodist University, Dallas, TX; Specialized Abatement Systems, Inc., Houston, TX; Texas A&M University at Galveston, Galveston, TX; Texas Department of Insurance, Austin, TX; Texas Tech University, Lubbock, TX; Thuro-Care Consulting, Harlingen, TX; Tri-Pro Services, Inc., Kaufman, TX; TU Services (Texas Utilities), Dallas, TX; TX Building Owner & Managers, Assoc., Inc., Austin, TX (with seven letters of confirmation); University of Texas at Arlington, Arlington, TX; University of Texas at Galveston, Galveston, TX; University of Texas Health Ctr., Tyler, TX; University of Texas Health Science, Center, San Antonio, TX; Victoria ISD, Victoria, TX. 25 TAC sec.295.21 The amendment is adopted under Texas Civil Statutes, Article 4477-3a, sec.11, which provide the Texas Board of Health with the authority to adopt rules covering asbestos removal or encapsulation, including licensing and regulation; Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended Article 4477-3a; and the Health and Safety Code, sec.12.001 which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. sec.295.21. Fees for Management Plans. (a) General provisions. (1) (No change.) (2) Scope. This section covers fees for the non-mandatory review and approval of asbestos management plans, as submitted. (3) Statutory authority. The Texas Board of Health (board) is granted authority under the Health and Safety Code, sec.12.031 and sec.12.032 to charge fees to persons who receive public health services from the Texas Department of Health (department), which includes environmental and consumer health services. (4) (No change.) (5) Review. The board shall review and approve all changes of the amounts of fees assessed, or any additions to fees for the services set forth in this section. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(3) (No change.) (c) Fees for plans review. (1) The department may collect a reasonable fee for the review and approval of plans affecting the control and abatement of asbestos or asbestos containing materials (ACM). The fee determined for the review process for each asbestos plan, or partial plan, submitted under the provisions of this subsection shall be the greater of $75 or 1/10 of a cent ($0.001) per square foot of the total building area under review. (2) Parts of an entire asbestos plan may be submitted separately for facilities in separate locations. Each partial submission shall be subject to the fees set forth in paragraph (1) of this subsection. (3) The department may refuse or return asbestos plans that are found to be incomplete or not correctly prepared. The department may, at its election, hold documents pending notification to the sender of the required corrections or completions by mail. If the department has not received the required corrections or completions, or any necessary explanation thereof, within 30 days of the date of mailing the letter of requirements to the sender, the department may return or discard the plans or specifications. (4) The department shall complete the review process within 90 days of the date of acceptance by the department of an asbestos plan in an essentially complete and correct form. (5) The department shall refuse to accept or review plans submitted without proper provisions for payment. Fees for plans accepted by the department for the review process are not refundable. 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 29, 1992. TRD-9213205 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: October 20, 1992 Proposal publication date: May 1, 1992 For further information, please call: (512) 834-6600 Texas Asbestos Health Protection 25 TAC sec.sec.295.31-295.40, 295.42-295.52, 295.54-295.56, 295.58-295.62, 295.64, 295.65, 295.67-295.70 The new sections are adopted under Texas Civil Statutes, Article 4477-3a, sec.11, which provide the Texas Board of Health with the authority to adopt rules covering asbestos removal or encapsulation, including licensing and regulation; Senate Bill 1341 and House Bill 79, 72nd Legislature, 1991, which amended Article 4477-3a; and the Health and Safety Code, sec.12. 001, which provides the board with authority to adopt rules to implement every duty imposed by law on the board, the department, and the commissioner of health. sec.295.31. General Provisions. (a) Problem. In more than 25 years of research into the relationship between airborne asbestos fibers and the diseases such exposure can cause, the bodily mechanism by which inhaled asbestos fibers initiate cancer or asbestosis is still not understood, no effective treatment has been found, and the only means of preventing asbestos disease depends entirely on limiting the exposure of the individual to asbestos fibers. (b) Purpose. The purpose of these sections is to establish the means of control and minimization of public exposure to airborne asbestos fibers, a known carcinogen and dangerous health hazard, by regulating asbestos disturbance activities in buildings that afford public access or occupancy. (c) Scope. These sections apply to all buildings which are subject to public occupancy or to which the general public has access, and to all individuals or organizations removing asbestos, encapsulating asbestos, or enclosing asbestos within public buildings for any purpose, including repair, renovation, dismantling, demolition, installations or maintenance operations, or any other activity that may involve the disturbance or removal of asbestos containing material (ACM). Also included are the qualifications for accreditation of these individuals and organizations, and for compliance with these sections and all applicable standards of the United States Environmental Protection Agency and the United States Occupational Safety and Health Administration. (d) Exclusions. Industrial or manufacturing facilities, those to which access is controlled and limited principally to employees therein because of processes or functions dangerous to human health and safety are excluded from coverage of these sections. Private residences, federal buildings, military installations, and apartment buildings with no more than four dwelling units are also excluded. (e) Severability. Should any section in these sections be found to be void for any reason, such finding shall not affect all other sections. (f) Implementation. Upon adoption, the department will receive applications and begin issuing licenses. As of January 1, 1993, the department shall enforce the licensing and registration requirements of these sections. Existing licenses shall be valid until they expire, at which time they must be renewed under these sections. Workers registered before January 1, 1993, must renew their registration in 1993 in the month shown on their original registration certificate, and annually thereafter. sec.295.32. Definitions. The following words and terms, when used with these sections, shall have the following meanings, unless the context clearly indicates otherwise. Asbestos-containing material (ACM)-Materials or products that contain more than 1.0% of any kind or combination of mineral asbestos, as determined by Environmental Protection Agency (EPA) recommended methods. Act-The Texas Asbestos Health Protection Act, Texas Civil Statutes, Article 4477-3a, as amended. Air monitoring -The collection of airborne samples for analysis of asbestos fibers. AHERA-Asbestos Hazard Emergency Response Act of 1986, Public Law 99-519. The act amends the Federal Toxic Substances Control Act, 15 United States Code, sec.2641, et seq, by requiring an inspection of all school buildings (Grades K- 12), all school administrations to develop plans for controlling asbestos in or removing asbestos from school buildings, and providing penalties for non- compliance. AIHA-The American Industrial Hygiene Association. Asbestos-The asbestiform varieties of chrysotile, amosite, crocidolite, tremolite, anthophyllite, and actinolite and all materials containing one percent or more of any of those substances. Asbestos abatement -The removal, the encapsulation or the enclosure of asbestos for the purpose of, that has the effect of, reducing or eliminating airborne concentrations of asbestos fibers or amounts of ACM. Asbestos abatement activity-Asbestos abatement or any on-site preparations or clean-up related to the abatement. Asbestos abatement contractor-A person who undertakes to perform asbestos removal, enclosure, or encapsulation for others under contract or other agreement. Asbestos abatement supervisor-An individual who is in the direct and responsible charge of the personnel, practices, and procedures of an asbestos abatement operation or project. Asbestos exposure -Airborne asbestos fiber concentrations resulting from disturbance or deterioration of asbestos or asbestos containing material (ACM). Asbestos project design-Asbestos abatement project design includes the inspection of public buildings for asbestos containing material (ACM), the evaluation and selection of appropriate asbestos abatement methods, project layout, the preparation of plans, specifications and contract documents, and the review of environmental controls, abatement procedures and personal protection equipment employed during the project. Asbestos-related activity -The removal, encapsulation, or enclosure of asbestos, including preparations or final clearance, the performance of asbestos surveys, the development of management plans and response actions, asbestos project design, the collection or analysis of asbestos samples, monitoring for airborne asbestos, or any other activity required to be licensed under the Texas Asbestos Health Protection Act. Asbestos removal -Any action that dislodges, strips, or otherwise takes away asbestos containing material (ACM). Asbestos survey -A comprehensive inspection of a building or facility to determine the location, quantity, and condition of asbestos containing material (ACM) therein. Board-The Texas Board of Health. Building owner -The owner of record of any public building or the agent for operations management thereof, under written contract or similar agreement. CFR-The Code of Federal Regulations. Commissioner-The Texas Commissioner of Health. Competent person -The individual designated as the competent person as required by the United States Occupational and Health Administration regulations in 29 Code of Federal Regulation, sec.1926.58. Demolition-Operations in which load-bearing structural members of a building are wrecked or removed. Department-The Texas Department of Health. Encapsulation-A method of control of asbestos fibers in which the surface of asbestos containing material (ACM) is penetrated by or covered with a liquid coating prepared for that purpose. Enclosure-The construction of an airtight, impermeable, permanent barrier surrounding asbestos to prevent the release of asbestos fibers into the air. EPA-The United States Environmental Protection Agency. Friable material -Materials that when dry can be crumbled, pulverized, or reduced to powder by hand pressure. HEPA-A high-efficiency particulate air filter, capable of trapping and retaining 99.97% of mono-dispersed airborne particles 0.3 micron or larger in diameter. HVAC-Heating, ventilation, and air conditioning systems. Independent third-party monitor-A person retained to collect air samples to be analyzed by and for the owner of the building or facility being abated. The person must not be employed by the contractor to analyze any area samples collected during the abatement projects. Individual-A single person acting of and for his or herself. Licensee-A person who meets all qualifications and has been issued a license by the Texas Department of Health in accordance with these sections. Management plan -A written plan describing appropriate actions for surveillance and management of asbestos containing material (ACM). Model accreditation plan-A United States Environmental Protection Agency plan which provides standards for initial training, examinations, refresher training courses, applicant qualifications, decertification, and reciprocity, as described in Title 40, Code of Federal Regulation, Part 763, Subpart E, Appendix C. NESHAP-The United States Environmental Protection Agency National Emissions Standards for Hazardous Air Pollutants, as described in Title 40, Code of Federal Regulation, Part 61. NIOSH-The National Institute of Occupational Safety and Health. NVLAP-The National Voluntary Laboratory Accreditation Program. Operations and maintenance (O&M)-Operations and maintenance activities are restricted to small-scale, short-duration work practices and engineering controls for tasks that result in the disturbance, dislodgement, or removal of asbestos in the course of performing repairs, maintenance, renovation, installation, replacement, or cleanup operations (Title 29, Code of Federal Regulation, sec.1926.58, Appendix G, titled "Work Practices and Engineering Controls for Small-Scale, Short-Duration Asbestos Renovation and Maintenance Activities"). OSHA-The Occupational Safety and Health Administration of the United States Department of Labor. PAT-Proficiency Analytical Testing. PCM-Phase-contrast microscopy, a method of analysis for overall airborne fiber counts using an optical microscope. PLM-Polarized-light microscopy, a method of analysis for detection of the presence and type of asbestos. Person-A person is defined in the law as: (A) an individual; (B) an organization such as a corporation, partnership, sole proprietorship, governmental subdivision, or agency; or (C) any other legal entity recognized by law as the subject of rights and duties. Public building -A building used or to be used for purposes that provide for public access or occupancy. The term includes any building during a period of vacancy, including during preparations prior to actual demolition. The term does not include: (A) an industrial facility to which access is limited principally to employees of the facility because of processes or functions that are hazardous to human safety or health; (B) a federal building or installation; (C) a private residence; (D) an apartment building with no more than four dwelling units; or (E) a manufacturing facility or building that is limited to workers and invited guests under controlled conditions. Regulated area -The demarcated area in which asbestos abatement activity takes place, and in which the possibility of exceeding the permissible exposure limits (PEL) for concentrations of airborne asbestos exists. Renovation-Additions to or alterations of the interior surfaces of a public building for purposes of restoration by removal, repairing, and rebuilding. TEM-Transmission Electron Microscopy. Transportation of asbestos containing material (ACM) -Moving asbestos materials from one site to another. Working days-Monday-Friday including holidays which fall on those days. sec.295.33. Adoption By Reference of Federal Standards. (a) Adoption by reference. The Texas Department of Health (department) adopts by reference the following federal requirements in the Code of Federal Regulations (CFR), as amended: (1) 40 CFR Part 61, Subpart M, titled, "National Emissions Standards for Hazardous Air Pollutants (NESHAP)"; (2) 40 CFR Part 763, Subpart G, sec.sec.763.120-763.126, titled, "Asbestos Abatement Projects: Worker Protection Rule"; (3) 40 CFR Part 763, Subpart E, sec.sec.763.80-763.99, titled, "Asbestos- Containing Materials in Schools" (AHERA rules); (4) 40 CFR Part 763, Subpart E, Appendix C, titled, "Model Accreditation Plan"; (5) 40 CFR Part 763, Subpart E, Appendix B, titled, "Work Practices and Engineering Controls for Small-Scale, Short-Duration Operations Maintenance and Repair (O&M) Activities Involving ACM"; (6) 40 CFR Part 763, Subpart E, Appendix D, titled, "Transport and Disposal of Asbestos Waste"; (7) 40 CFR Part 763, Subpart F, Appendix A, Section 1, titled, "Polarized Light Microscopy"; (8) 29 CFR, sec.1926.58, titled, "Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite"; (9) 29 CFR sec.1926.58, Appendix G, titled, "Work Practices and Engineering Controls for Small-Scale, Short-Duration Asbestos Renovation and Maintenance Activities"; and (10) 29 CFR sec.1910.134, titled, "Occupational Health Standards for A Respiratory Protection Program". (b) Availability. Copies of the documents in subsection (a) of this section are available for review at any licensed training provider or the Texas Department of Health, Division of Occupational Health, Austin, and may be reviewed during normal business hours. (c) State versus federal standards. In certain instances the state requirements in the Texas Health Asbestos Protection Act and/or these sections will be more stringent than the Federal standards listed in subsection (a) of this section. In such cases the state requirements shall prevail. sec.295.34. Asbestos Management in Public Buildings. (a) General. Those whose jobs relate to the physical aspects of a building including carpenters, electricians, plumbers, telephone and maintenance personnel, and those who occupy such buildings, are at great risk of asbestos- related disease unless proper training, personal protection, and/or engineering controls are rigorously employed. Prudent management of asbestos in buildings is vitally necessary for their protection. (b) Statement of responsibility. The building owner retains the responsibility for the presence, the condition, the disturbance, and the disposal of any asbestos encountered in the construction, operations, maintenance, or furnishing of that building, including: (1) the responsibility for the periods of building vacancy, and for all preparations prior to actual demolition; (2) the obligation to inform those who enter the building for purposes of construction, maintenance, installation, repairs, etc., of the presence and location of asbestos that could be disturbed by those activities, and to arrange for proper handling of any asbestos that would be disturbed or dislodged by such activity; and (3) management by others, including lessees or agents, which does not diminish the responsibility of the building owner for the asbestos or any activity affecting asbestos in that building. (c) Conditions requiring a mandatory asbestos survey. Prior to any renovation or dismantling within a public building, including preparations for partial or complete demolition, as required by 40 Code of Federal Regulations, sec.61.145 (EPA), building owners must have the building surveyed by a licensed asbestos inspector. The work area and all immediately surrounding areas must be surveyed prior to partial renovations or demolition. (d) Asbestos control and abatement. A building owner has the following options for managing the asbestos found in his buildings. (1) Building owners may hire a licensed asbestos abatement contractor to conduct asbestos abatement. (2) Building owners may hire or retain an asbestos abatement contractor or asbestos O&M contractor to conduct small-scale, short-duration work activities or cleanup affecting asbestos. (3) Building owners may conduct asbestos O&M activities for their own account if they obtain an Asbestos Operations and Maintenance Contractor (Restricted) license, according to sec.295.43 of this title (relating to Licensure: Asbestos Operations and Maintenance Contractor (Restricted)). (4) Building owners may conduct asbestos abatement projects, including asbestos O&M activities, if they obtain an asbestos abatement contractor's license, as set forth in sec.295.45 of this title (relating to Licensure: Asbestos Abatement Contractor). (e) Prohibition. The owner of a public building who contracts with or otherwise permits any individual or organization without appropriate valid license, registration, or approved exemption to perform any asbestos-related activity in that building is subject to administrative or civil penalty under the Texas Asbestos Health Protection Act (Act), not to exceed $10,000 a day for each violation. (f) Mandatory notification. A notification of intent to abate asbestos must be submitted to the Texas Department of Health (department) by the building owner or his designated agent at least 10 working days prior to the start date of the abatement project as described in sec.295. 61 of this title (relating to Operations: Notifications). (g) Mandatory abatement project design. Abatement projects which have a combined amount of asbestos exceeding 160 square feet of surface area, or 260 linear feet of pipe length or one cubic yard of material to be removed from a building shall require that the project be designed by a licensed asbestos consultant. (h) Requirement for management plan. Where asbestos is found in a public building, as a result of an inspection performed under subsection (i) of this section, a written management plan must be developed by a licensed asbestos management planner that identifies, locates, and assesses the condition of that asbestos. The plan shall include a schedule to periodically reinspect for changes in the condition of the materials containing asbestos and for conducting operations and maintenance activities within the building so as to minimize the potential for release of asbestos fibers. Copies of the plan shall be submitted to the department and shall be on file with the owner, management, and any employee in charge of building operations and maintenance. (i) Requirement for asbestos in poor condition. If, in the opinion of the department following a site inspection of a public building, there appears to be a danger or potential danger from asbestos materials in poor condition to the occupants of a building, workers in a building, or the general public, the department shall require the building owner or authorized representative to complete an immediate survey for asbestos by a licensed asbestos inspector and to send a copy of the management plan to the department. sec.295.35. Licensing and Registration: Conditions. (a) Licensing requirement. A person must be appropriately licensed or registered in compliance with these sections to engage in asbestos abatement or any asbestos-related activity within the scope of these sections. Individuals not eligible for employment in the United States will not be licensed or registered. (b) Age requirement. Each individual desiring to be licensed or registered under these sections must by 18 years old prior to submitting an application for such purpose. (c) Term and expiration. The term of all licenses, including the registration of asbestos workers, is one year and expires on the anniversary of the effective date, unless renewed. (d) Provision for change. The terms and conditions of all licenses or registration shall be subject at any time to revision, amendment, or modification by rules or orders issued by the Texas Department of Health. (e) Condition of issuance. No license or worker registration issued under these sections may be sold, assigned, or transferred. (f) Responsibilities of licensees. Licensees who become aware of violations of these sections must report these violations to the department if the violations are not immediately corrected by the responsible party. sec.295.36. Licensing and Registration: Exemptions; Emergency. (a) Exemption requirements. Those who remove resilient floor coverings materials in public buildings are exempt from the licensing and registration requirements of these sections, provided that: (1) floor materials and their adhesive (mastic) are analyzed for asbestos content prior to removal; (2) all those engaged in removal of resilient floor coverings shall have received training in an eight-hour course which covers the elements described in the document titled, "Recommended Work Practices for the Removal of Resilient Floor Coverings", published by the Resilient Floor Covering Institute; (3) employees of schools (kindergarten through 12th grade) who elect to use this exempt method must first complete the 16-hour custodial training, as required by federal regulations adopted under authority of the Asbestos Hazard Emergency Response Act of 1986 (AHERA). Possession of a valid worker registration or supervisor license eliminates the individual's need for the 16- hour training; and (4) the actual removal of floor coverings and adhesive under this exemption is limited to the exempted methods of removal and must be conducted according to the work practices published for distribution by the Resilient Floor Covering Institute, or as directed by the commissioner of health. (b) Notification required. The Texas Department of Health shall be notified by mail at least 10 working days prior to commencing any removal of floor coverings from public buildings permitted under the terms of this exemption, as required in sec.295.61 of this title (relating to Operations: Notifications). (c) Limitations of exemption. The asbestos activity permitted by the exemption under the Texas Asbestos Health Protection Act, sec.15A, (House Bill 79), relating to the removal of resilient floor covering, does not apply to any other asbestos-related activity, nor does the training or experience gained from such practices qualify for any other asbestos-related activity. The exemption is strictly limited to flooring materials maintained in a non-friable state. (d) Failure to comply. Persons who intentionally fail to comply with subsection (a)(1)-(4) of this section are subject to a civil penalty of not more than $5,000. Persons who fail to comply with notification requirements, or other applicable sections of the Act or rules, are subject to administrative, civil, or criminal penalties as provided by the Act. (e) Abatement emergency. In an abatement emergency affecting public health or safety that results from a sudden, unexpected event that is not a planned renovation or demolition the department, on notification, may waive the requirement for a license. Call (512) 834-6600 for consultation about emergencies. sec.295.37. Licensing and Registration: Conflict of Interests. (a) Independent third-party monitoring. Third-party area monitoring for airborne concentrations of asbestos fibers during an abatement project shall be done by a person retained to collect samples by and for the owner of the building or facility being abated. Such persons must not be employed by the contractor hired to conduct the asbestos abatement project, except that: (1) this restriction in no way applies to personal samples taken to evaluate worker exposure, as required by OSHA regulations; and (2) those who are licensed to perform asbestos abatement for their own account in their buildings shall employ a third-party monitor for the purpose of obtaining final clearance. (b) Licensee conflict of interest. Any person licensed according to these sections to perform asbestos surveys, write management plans, or design asbestos abatement projects under a contract or other hire agreement shall not also engage in the removal of asbestos from those buildings. sec.295.38. Licensing and Registration: Applications and Renewals. (a) General requirements. Applications for a license or worker registration under these sections must be made on forms provided by the Texas Department of Health (department), shall be signed by the applicant, and must be accompanied by a check or money order for the amount of the license or renewal fee. Only applications which are complete shall be considered by the department; the burden of proof for all requirements for licensure rests with the applicant. (b) Inquiries. Potential applicants who wish to discuss or obtain information concerning qualification requirements may do so by calling the department's Asbestos Programs Branch at (512) 834-6600. (c) Denials. The department may deny an application for licensing, registration, or renewal to any applicant who fails to meet the standards established by these sections, including, but not limited to: (1) past history of substantial violations of these sections by the applicant and/or the applicant's employees or agents, as demonstrated by the department's issuance of administrative orders, court judgments, or similar actions by other federal or state agencies; (2) evidence that the applicant cannot be legally employed in the United States; (3) fraud or deception in obtaining, attempting to obtain, or renewing a license or registration; (4) failure to submit the required information and/or documentation within 90 days of a written request by the department; (5) failure to submit the required fee; (6) failure at any time to comply with the provisions of these sections; (7) failure to maintain or to permit inspection of the records required of all licensees; (8) employing or permitting an unauthorized person or individual to work on any asbestos project or operation; (9) engaging or attempting to engage in an asbestos-related activity without a valid license; (10) failure to comply with any rule adopted by the board or order issued by the department; (11) failure to provide notice of an asbestos project or operation as required by these sections; (12) conviction within the past five years of a felony or a misdemeanor (involving fraudulent activities relating to construction or the building trades in general); (13) failure of a licensee to complete their responsibilities during an asbestos project or operation due to insufficient financial resources; (14) failure to protect workers from asbestos exposures in excess of the current Permissible Exposure Limit (PEL); (15) failure to prevent asbestos contamination of areas adjacent to the abatement area; (16) failure to decontaminate any part of a facility or its environment, or any persons inadvertently contaminated with asbestos as a result of their actions while exercising their duties under these sections; or (17) employing or permitting a qualified person to represent the company or firm applying for a license if the person already represents another company that is licensed. (d) Administrative penalty. In accordance with sec.295.70 of this title (relating to Compliance: Administrative Penalty) an administrative penalty may be assessed for fraud or deception in obtaining, attempting to obtain, or renewing a license or registration. (e) Processing applications and renewals. (1) Time periods. Applications for licensure as asbestos contractors, abatement supervisors, and abatement workers shall be processed in accordance with the following time periods. (A) The first period is a time from the receipt of a written application to the date of issuance of a written notice approving the application or outlining the reasons why the application is unacceptable. The time period for each application type is 90 days for the initial contractor or supervisor license; 30 days from the renewal of contractor or supervisor license; and 30 days for the abatement worker certificate. (B) The second period is a time from receipt of the last item necessary to complete the application to the date of issuance of written notice approving or denying approval of the application. The time period for each application type is 60 days for the initial contractor or supervisor license; 15 days for renewal of the contractor or supervisor license; and 30 days for the abatement worker certification. (2) Reimbursement of fees. Initial application or renewal fees will be refunded only when the department does not process a completed application in the time period specified, or when fee amounts are incorrect or submitted for the wrong purpose. Otherwise, fees for applications and renewals are not eligible for refund. (A) Denial of an application, failure to qualify, or abandonment of the application do not constitute grounds for reimbursement. Abandonment is defined as failure to respond to a written request of the department by the applicant for a period of 90 days. (B) A denial of an application or a request for renewal may be appealed by the applicant. The details for requesting a hearing are included in each letter of denial. (3) Appeal. If the request for full reimbursement authorized by this section is denied, the applicant may then appeal to the Commissioner of Health for a resolution of the dispute. The applicant shall give written notice to the commissioner that he request full reimbursement of all filing fees paid because his application was not processed within the adopted time period. The program administrator shall submit a written report of the facts related to the processing of the application and good cause for exceeding the established time periods. The commissioner will determine the final action and provide written notification of his decision to the applicant and the program administrator. (4) Contested case hearing. If at any time during the processing of the permit during the second time period, a contested case hearing becomes involved, the time periods in sec.1.34 of this title (relating to Time Periods for Conducting Contested Case Hearings) is applicable. (f) Renewal notices. At least 30 days before a license expires, the department shall send to the licensee, by first-class mail to the last known address of the licensee, a renewal notice that states: (1) the date on which the current license or registration expires; (2) the date by which the renewal application must be received by the department for the renewal to be issued and mailed before the license or registration expires; and (3) the amount of the renewal fee. (g) Renewal requirements. No sooner than 60 days before the license or registration expires, it may be renewed for an additional one-year term providing that the licensee or worker: (1) is qualified to be licensed or registered; (2) pays to the department the proper amount of the non-refundable renewal fee; (3) submits to the department a renewal application on the prescribed form; (4) completes successfully the requirements for renewal; and (5) has complied with all final orders resulting from any violations of these sections. (h) Prohibition. It is prohibited to practice with lapsed licenses and registrations regardless of when renewal application is received. Also, licenses or registrations which have lapsed for a period exceeding 180 days cannot otherwise be renewed. A new application subject to current qualifications is required. (i) Replacements. A licensee or registrant may request a replacement certificate by completion of an appropriate application. The fee for reissuance is $20. (j) Retention of control. The department may, at any time after the filing of any application and before the expiration of any license or registration, require: (1) additional written information and assurances; and (2) cooperation with any inspections initiated by the department, or the production of any documentary or other evidence that the department considers necessary to determine whether the license or registration should be granted, delayed, denied, modified, suspended or revoked. sec.295.39 Licensing and Registration: Out-of-State Applicants. (a) Terms of reciprocity. Individuals or organizations may enter the state for purposes of asbestos abatement or other asbestos-related activity under the Act provided that they are licensed according to the terms of these sections prior to soliciting business or commencing such activities. (b) Applicant status. Contractors based in other states seeking an initial or renewal license under these sections must comply with all licensing requirements which would be imposed on a Texas contractor seeking licensure in the out-of- state contractor's base state. (c) Acceptance of qualifying documents. Out-of-state education, experience, training, and physical examinations can be accepted for the purpose of qualifying for Texas licenses provided that they are valid and are verifiable by the department. The burden of proof in such matters is the responsibility of the applicant; the department must reject unverifiable documentation. (d) Compulsory training. All out-of-state licensees and registrants must complete a minimum of three hours training by a licensed training provider on Texas law and regulations affecting asbestos prior to applying for licenses or commencement of any such activity. Licensee organizations must have at least one officer complete this training. This requirement shall be enforced as of January 1, 1993. (e) Required documents. To do business in Texas an out-of-state applicant corporation or other business entity applicant must: (1) submit a letter or certificate from the Texas Secretary of State authorizing the conduct of business in this state; (2) submit a sales tax account identification number obtained from the Texas Comptroller of Public Accounts; (3) submit a certificate of insurance for liability coverage if the applicant is an asbestos abatement contractor, asbestos consultant, asbestos inspector, asbestos laboratory, or asbestos transporter performing work for hire as required by sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements); and (4) provide workers' compensation insurance issued by a company authorized to do business in Texas and written on the Texas form, or evidence of self insurance, when such insurance is required by contract specification or other agreement. sec.295.40. Licensing and Registration: Insurance Requirements. Persons required to have insurance must obtain policies for required coverage as specified in these sections, and in the amounts specified, which meet the following requirements. (1) Applicants for licenses or renewal of licenses must provide to the department the certificate of insurance required. The policy must be currently in force and must be written by: (A) an insurance company authorized to do business in Texas; (B) an eligible Texas surplus lines insurer as defined in the Texas Insurance Code, Article 1. 14-2; (C) a Texas registered risk retention group; or (D) a Texas registered purchasing group. (2) The certificate of insurance must be complete, including all applicable coverage forms and endorsements, and must name the Texas Department of Health, Division of Occupational Health, as a certificate holder with a 10-day notice of cancellation. (3) In the event of policy cancellation by either the licensee or the insurance company, the licensee shall notify the department not later than 10 days prior to the cancellation effective date. (4) In the event of policy cancellation or expiration, the policy shall promptly be replaced or renewed without any lapse in coverage. A certificate of the renewal policy must be provided to the department upon receipt by the licensee. sec.295.42. Registration: Asbestos Abatement Workers. (a) Registration requirement. Individuals must be registered as asbestos abatement workers in compliance with these sections to perform asbestos abatement work in a public building, including, but not limited to, transporting, loading or unloading asbestos, or performing any maintenance, repair, installation, renovation or cleaning that dislodges, breaks, cuts, abrades, or impinges on asbestos material. Registrations are valid for a period of one year from the effective date and are renewable. (b) Fee. The fee for an initial application for an annual renewal of registration of an asbestos abatement worker shall be $30. (c) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 (a) and (d) of this title (relating to Licensing and Registration: Out-of-State Applicants). (d) Annual renewal. Asbestos workers who were registered on or before the effective date of this rule, may apply for annual renewal of their registration by completing annual worker refresher training and medical re-examination. The renewal must be issued no later than the month shown on the original certificate during the year 1993 and annually thereafter. (e) Qualifications. Applicants for registration as asbestos abatement workers shall submit evidence of qualifications with their applications which shall include: (1) a certificate of training indicating successful completion within the past 12 months of the approved training course for abatement workers or the annual refresher training course, as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses). Evidence of successful completion of the contractor/supervisor course may be substituted for the initial worker course; (2) an acceptable written opinion of a physical examination of the applicant within the past 12 months that was performed by a physician in accordance with Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations in 29 CFR, sec.1926.58(m), or Environmental Protection Agency (EPA) regulations in 40 CFR, Part 763, Subpart G(m), relating to medical surveillance. This opinion must be signed by the doctor and include certification of the following elements: (A) completion and review of the applicants standardized medical questionnaire and work history with special emphasis directed to the pulmonary, cardiovascular, and gastrointestinal systems per Appendix D in sec.1926.58; (B) if applicant is employed, the employer provided, and review was made of, the description of the employee's duties as they relate to asbestos exposure, the anticipated exposure level, the personal protective and respiratory equipment to be utilized by the employee, and information from previous medical examinations of the affected employee that is not otherwise available to the physician; (C) a physical examination with emphasis upon the pulmonary, cardiovascular, and gastrointestinal systems; (D) the pulmonary function tests of forced vital capacity (FVC) and forced expiratory volume at one second (FEV 1) in accordance with NIOSH and ATS standards; (E) a chest roentgenogram, posterior-anterior, 14 by 17 inches, or current film on file with interpretation in accordance with 29 CFR 1926.58 Appendix E. (Note: According to 29 CFR 1926.58(M)(2)(ii)(C), it is up to the discretion of the physician whether or not a chest X-ray is required.); and (F) the employee was informed by the physician of the results of the exam and of any medical conditions that may result from asbestos exposure, including the increased risk of lung cancer attributable to the combined effect of smoking and asbestos exposure; (3) a copy of the wallet-size photo-identification card from the training course, as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required; and (4) a one inch by one inch photograph of the face. (e) Responsibilities. A registered asbestos abatement worker shall: (1) comply with standards of operation, including EPA and OSHA regulations, adopted by reference in sec.295.33 of this title (relating to Adoption by Reference of Federal Standards); (2) comply with additional work practices, as described in sec.295.60 of this title (relating to Operations: Abatement Practices and Procedures); (3) comply with standards and practices for operations and maintenance activities, as described in sec.295.59 of this title (relating to Operations: Operations and Maintenance (O&M) Requirements); and (4) cooperate with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspections and Investigations). (f) Prohibitions. The following specific prohibitions apply to registered asbestos abatement workers. (1) Asbestos abatement workers are prohibited from performing asbestos abatement or O&M activities affecting asbestos except under the direct supervision of a qualified licensed supervisor. (2) Asbestos abatement workers are prohibited from engaging in any asbestos- related activity as a supervisor or contractor. sec.295.43. Licensure: Asbestos Operations & Maintenance Contractor (Restricted). (a) Licensing requirement. Persons must be licensed as asbestos abatement contractors or as asbestos operations & maintenance (O&M) contractors (restricted) to conduct building O&M in the presence of asbestos within any public building. Building owners that would have their own employees perform such activities for their buildings shall be licensed according to this section. (b) Restrictions. (1) O&M activities are restricted to small-scale, short-duration work practices and engineering controls for tasks that result in the disturbance, dislodgement, or removal of asbestos in the course of performing repairs, maintenance, renovation, installation, replacement, or cleanup operations, as adopted in sec.295.33(a) of this title (relating to Adoption of Standards). (2) Whenever asbestos abatement is the primary or principal purpose of any asbestos activity in a public building it must be performed by an asbestos abatement contractor licensed under these sections. (3) Those who solicit or conduct asbestos operations and maintenance activities within a public building under contract or other hire agreement must be licensed as asbestos abatement contractors or asbestos O&M contractors. (4) Employees who perform asbestos O&M activities for asbestos abatement contractors or asbestos O&M contractors must be registered as asbestos abatement workers, and under the supervision of employees who are trained and licensed as asbestos O&M supervisors or asbestos abatement supervisors. (5) EPA regulatory requirements for small-scale, short duration activities affecting asbestos are explained in detail in 40 CFR, Part 763E, Appendix B, as amended. The same regulatory requirements of OSHA for these activities are explained in 29 CFR, sec.1926.58, Appendix G. The restricted asbestos activities of licensed O&M contractors, O&M supervisors, and asbestos workers shall be confined to the work practices and procedures therein. (c) Fee. The fee for an initial application or annual renewal shall be $120. Licenses are valid for a period of one year, and shall be renewable, as prescribed in sec.295.38 of this title (relating to Applications and Renewals). (d) Applications and renewals. These are subject to the provisions of sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (e) Qualifications. Applicants for licensing as asbestos operations and maintenance contractors shall submit, as applicable: (1) a certificate of training from a training provider approved by or acceptable to the department, indicating successful completion within the past 12 months of the approved training course for asbestos abatement contractors and supervisors or the continuing annual refresher training, as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses). An applicant organization shall designate at least one corporate officer, general partner, or proprietor, according to the kind of organization, for the purpose of complying with this training requirement; (2) a certificate of good standing, issued by the State Comptroller's office, stating that all franchise taxes due from the applicant have been paid; (3) a State of Texas sales tax account number for the applicant organization; (4) workers compensation insurance issued by a company authorized and licensed to issue workers compensation insurance in this state and written in the state on the Texas form or evidence of self-insurance, if workers compensation is required by the specifications or owner; (5) a written respiratory protection plan to be maintained and adhered to during periods of abatement activity; (6) a description of the protective clothing and respirators which will be used; (7) a description of the site decontamination procedures; (8) a description of the procedures for handling waste containing asbestos; (9) a description of the removal and encapsulation methods; (10) a description of the air-monitoring procedures; (11) a description of final cleanup procedures; (12) a description of the provisions for record-keeping; (13) a list of operations & maintenance projects completed in the past year; (14) a copy of all disposal manifests for projects completed in the past year; (15) a list of inspections performed by other agencies; and (16) copies of all citations issued. (f) Responsibilities. O&M contractors who obtain restricted licenses shall be responsible for: (1) complying with standards of operation, as described in sec.295.58 of this title (relating to Operations: General Requirements) and sec.295.59 of this title relating to Operations: Operations and Maintenance Requirements); (2) complying with federal standards of operation, including EPA and OSHA regulations, which are adopted by reference, as follows: (A) OSHA regulations in 29 CFR, sec.1926.58, Appendix G, titled "Work Practices and Engineering Controls for Small-Scale, Short-Duration Asbestos Renovation and Maintenance Activities", or (B) EPA regulations in 40 CFR, Part 763, Subpart E, Appendix B, titled "Work Practices and Engineering Controls for Small-Scale, Short-Duration Operations, Maintenance and Repair (O&M) Activities Involving ACM"; (3) employment of at least one licensed operations and maintenance (O&M) supervisor (restricted) to supervise or perform operations or maintenance activities. An individual licensed as an asbestos abatement supervisor may be substituted for the O&M supervisor. Employees who are registered asbestos abatement workers shall perform O&M activities only under the direct supervision of either category of supervisors named in this section; (4) complying with recordkeeping requirements, both the central office and work site locations, as described in sec.295.62 of this title (relating to Operations: Recordkeeping); (5) complying with the requirement to notify the department about impending abatement projects, changes requiring re-notification, and emergency notification, as described in sec.295.61 of this title (relating to Operations: Notification); (6) complying with the requirement to supply and train employees who perform asbestos-related activities in the use of personal protection equipment, and to maintain the current training status of each employee according to sec.295.64 of this title (relating to Training: Required Asbestos Training Courses); (7) acquiring and maintaining in good working condition and free of asbestos contamination the necessary equipment for performing O&M activities, as prescribed by the department; (8) assisting department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Licensing Operations: Inspection and Investigations); and (9) providing for the proper temporary storage and for the final disposal of waste asbestos, which must be disposed of within 30 days of project completion or when receiving container is full, whichever is sooner. (g) Prohibitions. Asbestos O & M licensees shall not engage in any activity for which the primary purpose is asbestos abatement. sec.295.44. Licensure: Asbestos Operations & Maintenance Supervisor (Restricted). (a) Licensing. Individuals employed by licensed operations and maintenance (O&M) or abatement contractors to directly supervise personnel and work practices limited to the conduct of O&M activities affecting asbestos containing materials (ACM) shall be licensed as asbestos O&M supervisors (restricted). Such licenses are valid for a period of one year, and shall be renewable. (b) Fee. The fee for an initial application or annual renewal license for an asbestos O&M supervisor (restricted) shall be $90. (c) Applications and renewals. Applications and renewals shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-State applicants must comply with the applicable provision of sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants) . (d) Qualifications. The applicant for an O&M license shall submit the following: (1) a certificate of training indicating successful completion within the past 12 months of the approved training course for abatement contractors and project supervisors, or the annual refresher training as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses); (2) furnish a physician's statement of the required physical examination done within the past year as described in sec.295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers); (3) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If the training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out-of-state training certificates with their application may obtain the necessary photo-identification when attending the mandatory course on Texas Asbestos rules, as required; and (4) a one inch by one inch photograph of the face. (e) Responsibilities. The asbestos O & M supervisor (restricted) shall: (1) comply with the Environmental Protection Agency (EPA) and Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations for standards of small-scale, short-duration work practices which are adopted by reference in sec.295.33 of this title (relating to Adoption by Reference of Federal Standards); (2) comply with the additional work practices, as described in sec.295.59 of this title (relating to Operations: Operations & Maintenance Requirements); (3) maintain records at both the central office and work site locations, as described in sec.295.62 of this title (relating to Operations: Recordkeeping); (4) supply and maintain personal protection equipment, as specified by the department, and train employees who perform asbestos-related activities in the use of equipment, and to supervise their compliance; (5) comply with standards and practices for O & M activities as described in sec.295.59; and (6) cooperate with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspections and Investigations). (f) Restrictions and prohibitions. Licensing as an asbestos O & M supervisor is specifically restricted, as follows. (1) The licensee may be employed or retained only by a licensed O&M contractor or by a licensed asbestos abatement contractor to supervise O&M activities within public buildings, or to perform such work. (2) The licensee may also seek employment as an asbestos abatement worker but may not engage in any other asbestos-related activity for which a license is required. (3) The licensee shall not supervise asbestos abatement projects or act as a contractor. (4) The licensee shall not supervise any activity for which the primary purpose is asbestos abatement. sec.295.45. Licensure: Asbestos Abatement Contractor. (a) Licensing requirement. Persons must be licensed as asbestos abatement contractors in compliance with these sections to engage in asbestos abatement in a public building. (b) Licensee authorization. Asbestos abatement contractor licensees are specifically authorized to employ asbestos abatement supervisors and asbestos abatement workers who are currently licensed under these sections to carry out asbestos abatement procedures. They may employ licensed operations and maintenance (O&M) supervisors for building O&M activities, or as workers. Licensees are cautioned to observe the prohibited acts in sec.295.37 of this title (relating to Licensing and Registration: Conflict of Interests). (c) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos abatement contractor shall be $500. (d) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (e) Qualifications. Applicants for licensing as asbestos abatement contractors shall submit as applicable: (1) a certificate of training from a training provider approved by or acceptable to the department, indicating successful completion within the past 12 months of the approved training course for asbestos abatement contractors and project supervisors or the continuing annual refresher training, as described in sec.295.64 this title (relating to Training: Required Asbestos Training Courses). An applicant organization shall designate at least one corporate officer, general partner, or proprietor, according to the kind of organization, for the purpose of complying with this training requirement; (2) a certificate of good standing, issued by the State Comptroller's office, stating that all franchise taxes due from the applicant have been paid; (3) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Secretary of State, authorizing the corporation to do business in the state; (4) a State of Texas sales tax account number for the applicant organization; (5) evidence of asbestos abatement liability insurance as required in sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements), in the amount of $1 million, when doing work for hire; (6) workers' compensation insurance issued by a company authorized and licensed to issue workers' compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance if workers' compensation is required by the specifications or owner; (7) a written respiratory protection plan to be maintained and adhered to during periods of abatement activity; (8) a description of the protective clothing and respirators which will be used; (9) a description of the site decontamination procedures; (10) a description of the procedures for handling waste containing asbestos; (11) a description of the removal and encapsulation methods; (12) a description of the air-monitoring procedures; (13) a description of final cleanup procedures; (14) a description of the provisions for record-keeping; (15) a list of abatement projects completed in the past year; (16) a copy of all disposal manifests for projects completed in the past year; (17) a list of inspections performed by other agencies; and (18) copies of all citations issued. (f) Responsibilities. The asbestos abatement contractor shall be responsible for: (1) standards of operation, including Environmental Protection Agency (EPA) and Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations, referenced in sec.295.33 of this title (relating to Adoption by Reference of Federal Standards); (2) additional work practices, as described in sec.295.60 of this title (relating to Operations: Abatement Practices and Procedures); (3) recordkeeping requirements, at both central office and work site locations, as found in sec.295.62 of this title (relating to Operations: Recordkeeping); (4) required notification to the department about impending abatement projects, changes requiring re-notification, and emergency notifications, as described in sec.295. 61 of this title (relating to Operations: Notifications); (5) the requirement to supply and train employees who perform asbestos-related activities in the use of personal protection equipment, and to supervise their compliance; (6) maintenance of the current training status of each employee, as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses), and the annual physical examinations; (7) standards and practices for O&M activities, as conducted for hire by a contractor, as described in sec.295.59 of this title (relating to Operations: Operations and Maintenance (O&M) Activities); (8) assisting department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspections and Investigations); (9) maintenance of liability insurance, as described in sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements); (10) maintenance of workers' compensation insurance issued by a company licensed to do business in this state, and written in this state on a form prepared by the Texas Department of Insurance, or evidence of self insurance, if required by contract specifications or a building owner; and (11) providing for the proper temporary storage and for the final disposal of waste asbestos within 30 days of project completion or when receiving container is full, whichever is sooner. sec.295.46. Licensure: Asbestos Abatement Supervisor. (a) Licensing requirement. An individual must be licensed as an asbestos abatement supervisor in compliance with these sections to engage in the supervision of an asbestos abatement project conducted in a public building. Such licenses are valid for a period of one year from the effective date and shall be renewable. (b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos abatement supervisor shall be $300. (c) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (d) Qualifications. Applicants for licensing as asbestos abatement supervisors are required to submit: (1) work experience-to qualify for an asbestos abatement supervisor license, verifiable written documentation must be provided of at least 90 days of legally qualifiable work experience as a trained worker performed over a period of not less than 12 months and within the past 24 months. Qualifiable experience includes: (A) project site preparation and establishing the abatement enclosure for friable asbestos containing material (ACM); (B) use of respirators and protective equipment, personal hygiene, decontamination procedures, interpretation of air sampling results, and methods to reduce airborne fiber levels; (C) use of engineering controls, abatement work methods and practices, and final cleanup procedures; (D) handling of waste asbestos as part of an abatement project; (E) removal, enclosure, or encapsulation of asbestos; (F) work performed in an administrative capacity relating to asbestos abatement projects such as project manager or advisor, or consultant, may be accepted as qualifying experience. No more than 30 days may be counted as qualifiable work experience under this category; (G) experience as an asbestos air monitoring technician, which includes personal air sampling, regulated-area airborne asbestos sampling, aggressive sampling for final cleanup, plus on-site project recordkeeping documenting daily operations, controlling entry and exit from this enclosure, etc., may be accepted as qualifying experience, subject to time-period limitations, minimum number of abatement projects five, or work experience. No more than 30 days may be counted as qualifiable experience under this category; (H) work performed as an asbestos project supervisor or worker licensed in another state can qualify as experience; and (I) the burden of proof for all points of the qualifying experience is on the individual applicant. Applicants for abatement supervisor licenses must furnish contacts or sources that can fully verify the documented experience. Descriptions of abatement projects are not acceptable if the personal involvement of the applicant cannot be determined by the reviewer. If, in the opinion of the reviewing staff members, applicant experience cannot be properly and sufficiently verified, such experience must be rejected; (2) a certificate of training indicating successful completion within the past 12 months of the approved course for abatement contractors and supervisors, or the current annual refresher training, as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses); (3) a physician's statement of the required physical examination done within the past year as described in sec.295.42(e)(2) of these sections; (4) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required; and (5) a one inch by one inch photograph of the face. (e) Responsibilities. The asbestos abatement project supervisor shall: (1) comply with standards of operation, including Environmental Protection Agency (EPA) and Occupational Safety and Health Administration of the United States Department of Labor (OSHA) regulations, which have been adopted by reference in sec.295.33 of this title (relating to Adoption by Reference of Federal Standards); (2) comply with additional work practices, as described in sec.295.60 of this title (relating to Operations: Abatement Practices and Procedures); (3) maintain records at both the central office and the work site locations, as described in sec.295.62 of this title (relating to Operations: Recordkeeping); (4) supply personal protection equipment and train employees who perform asbestos-related activities in the use of equipment, and to supervise their compliance; (5) comply with standards and practices for O & M activities, as conducted for hire, according to sec.295.59 of this title (relating to Operations: Operations and Maintenance (O & M) Activities); and (6) cooperate with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspection and Investigations). (f) Other duties. Abatement supervisors may also assume the duties of asbestos abatement workers or perform O&M activities affecting asbestos materials. sec.295.47. Licensure: Individual Asbestos Consultant. (a) Licensing requirements. An individual must be licensed as an asbestos consultant to design asbestos abatement projects. (Texas Civil Statutes, Article 4477-3a, sec.4B(g), as amended, 1991). (1) Asbestos abatement project design includes the inspection of public buildings for asbestos containing material (ACM), the evaluation and selection of appropriate asbestos abatement methods, project layout, the preparation of plans, specifications and contract documents, and the review of environmental controls, abatement procedures and personal protection equipment employed during the project. (2) If an asbestos abatement project includes alterations to a building's structure, its electrical, mechanical, safety systems, or their components, a registered architect or engineer must prepare the appropriate plans and specifications as required by other state laws in addition to the requirement of paragraph (1) of this subsection. (b) Scope: Individual licenses. In addition to the design of asbestos abatement projects, individual asbestos consultants are licensed to provide: (1) asbestos surveys and assessment of the condition of ACM; (2) asbestos management planning, including response actions, instructions, and periodic surveillance recommendations for the control of asbestos and the conduct of operations and maintenance (O&M) programs; (3) the collection of bulk material samples, airborne substance samples, and the planning of sampling strategies; (4) owner-representative services for asbestos abatement projects or O&M programs, including air monitoring and project management; (5) consultation regarding compliance with various regulations and standards, recommending abatement options, and preparations for asbestos abatement projects, specifically including technical specifications and contract documents; and (6) the selection, fit testing, and appropriate use of personal protection equipment, and the development of engineering controls for asbestos-related activities. (c) Fees. The fee for initial application or for annual renewal of license for asbestos consultant individuals shall be $300. (d) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-State applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (e) Eligibility for licensing. Verifiable evidence of current eligibility must be submitted with all applications for licensing as an individual asbestos consultant, which includes any one of the following: (1) current registration in the State of Texas as an architect or professional engineer; (2) current highest full-qualification memberships in a national professional organization devoted to technical proficiency in environmental or occupational health protection, which includes: (A) a published code of ethics; (B) administration by an active board of directors; and (C) admission requirements that specify college courses and other training, a bachelor's or higher degree, at least three years' experience in specified fields, and a qualification examination (examples include the American Academy of Industrial Hygiene and the Board of Certified Safety Professionals); (3) possession of a bachelor's degree in architecture, engineering, physical or natural science from an accredited four-year college or university, and including four years' experience in areas affecting environmental or occupational health matters; or (4) for individuals making application before January 1, 1993, only: possession of a high school diploma (or GED) together with a qualifying minimum of four years' abatement experience, including at least two years of full-time practice as an asbestos consultant. (f) Qualification for licensing. To qualify as an individual asbestos consultant, individuals must: (1) submit verifiable documentation of their asbestos-related activity in conjunction with at least six asbestos abatement projects covering a period of at least a year within the past five years. (Applicants made eligible under subsection (e) (4) of this section must comply with these experience qualifications); (2) furnish a physician's statement of the required physical examination done within the past year as described in sec.295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers); (3) have successfully completed the following training courses or the necessary annual refresher training with the past 12 months at an approved training facility: (A) the approved training course for abatement project designers, according to sec.295.64(b) of this title (relating to Asbestos Consultant training), or for applicants prior to June 30, 1993; the contractor/supervisor training, according to sec.295.64(c) of this title; (B) a modified two-day training course in sampling techniques and use of monitoring equipment, as required for air monitor technician (this course is not required of certified industrial hygienists) (See sec.295.64(g)); and (C) training in asbestos building surveys, as required for both licensed asbestos building inspectors and management planners (see sec.295.64(e) and (f)); and (D) an annual refresher training course, consisting of eight hours of instruction and designed specifically for asbestos consultants; (4) submit a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas Asbestos rules, as required; and (5) submit a one inch by one inch photograph of the face. (g) Insurance. A licensed individual asbestos consultant performing work for hire must obtain professional liability coverage in the amount of $1 million for errors and omissions, or be covered under the consultant's employer's policy, as specified in sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements), when doing work for hire. (h) Responsibilities. The responsibilities of licensed asbestos consultants shall include the following: (1) preserve public health and diminish or eliminate hazards or potential hazards caused by the presence of ACM in public buildings; (2) provide professional services to the building owner or management concerning asbestos building surveys, assessment of conditions of materials, planned operations and maintenance, compliance with work practices and standards; (3) evaluate possible asbestos abatement projects and prepare plans, specifications, schedules, and contract options for abatement projects; (4) represent the interests of the building owner during the conduct of an asbestos abatement project, including consultation with the abatement contractor personnel, requiring compliance with regulations and specifications, requiring remedy of infractions, providing monitoring services, maintaining progress records and photographs as necessary, waste disposal, and providing the opinion or assurance of the final clearance of the project; and (5) advise on the selection and use of appropriate personal protective equipment for all asbestos-related activities. (i) Signature authority. All asbestos abatement plans and specifications must be signed by a licensed asbestos consultant. sec.295.48. Licensure: Asbestos Consultant Agency. (a) Scope: Asbestos consultant agency licenses. Consultant organizations desiring to be licensed as asbestos consultant agencies shall designate one or more individuals licensed as asbestos consultants, who shall be either principals or employees, and who shall have responsibility for the organization's asbestos activity. (b) Authorization and conditions. A licensed asbestos consultant agency is specifically authorized to employ asbestos consultants, asbestos project managers, asbestos inspectors and management planners, and air monitoring technicians who are currently licensed under these sections to assist in the conduct and fulfillment of the agency's asbestos consultation activity, as necessary. As a condition of licensure, an asbestos consultant agency must comply with the following: (1) any office, established within the state, that conducts asbestos consulting activities must have at least one licensed asbestos consultant in residence who is responsible for such activities. Offices that do not conduct asbestos consulting activities and do not advertise such services are exempt from this requirement; (2) notify the department in writing of any additions or deletions of designated individual asbestos consultants within 10 days of such occurrences; (3) refrain entirely from asbestos consulting activity at any office during any period without the active employment of at least one responsible individual licensed asbestos consultant at that location; and (4) refrain entirely from engaging as an asbestos abatement contractor in abatement or operations and maintenance activities. (Texas Civil Statutes, Article 4477-3a, sec.4C., amended 1991). (c) Fee. The fee for an initial application or for an annual renewal of license for an asbestos consultant agency is $200. (d) Applications and renewals. Applications and renewals shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (e) Qualification for licensing. Applicants for licensing as an asbestos consultant agency shall submit as applicable: (1) professional liability insurance coverage for errors and omissions in the amount of $1 million to cover the asbestos consultants and inspectors in its employ (Texas Civil Statutes, Article 4477-3a., sec.4A(4), amended 1991); and (2) evidence of insurance issued by a company authorized and licensed to issue workers compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance, if workers' compensation is required by the specifications or owner; (3) a certificate of good standing issued by the State Comptroller's office for the State of Texas for a corporation or other business entity (Texas Civil Statutes, Article 4477-3a., sec.4A(1), amended 1991); and (4) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Secretary of State, authorizing the corporation to do business in the state. (g) Responsibilities. A licensed asbestos consultant agency shall be responsible for: (1) employing generally accepted principles and practices in designing asbestos abatement projects; (2) monitoring and observing asbestos abatement projects for general compliance with the contract documents, specifications, and relevant regulations; and (3) reviewing asbestos disposal documentation to account for and confirm adequate waste disposal. sec.295.49. Licensure: Asbestos Project Manager. (a) Licensing. An individual must be licensed as an asbestos project manager and must be employed by a licensed asbestos consultant agency to perform in the capacity of the owner's representative to evaluate the quality of the work being performed during an asbestos abatement project. The asbestos project manager may: (1) monitor the project to document the standards designed to protect project personnel and building occupants, and the adequacy of controls; (2) observe that contractual requirements are being met by the abatement contractor; and (3) consult with contractors on behalf of their clients on the selection and use of appropriate personal protective equipment related to the asbestos abatement activities. (b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos project manager shall be $150. (c) Applications and renewals. Applications shall by submitted as required by sec.295.38 of this title (relating to Licensing and Registrations: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (d) Qualifications. To qualify for a license, an applicant must demonstrate, in a manner acceptable to the department, that he/she has: (1) a high school diploma or a GED certificate; (2) a certificate of training indicating successful completion within the past 12 months of the approved course for abatement contractors and project supervisors or the annual refresher training as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses); (3) furnish a physician's statement of the required physical examination done within the past year as described in sec.295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers); (4) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required; and (5) a one inch by one inch photograph of the face. (e) Responsibilities. Those responsibilities and duties that shall be assumed by the asbestos project manager include observance and monitoring of compliance with: (1) licensing standards of operation, as described in sec.295.58 of this title (relating to Operations: General Requirements); (2) standards of operation including EPA and OSHA regulations adopted by reference in sec.295.33 of this title (relating to Adoption by Reference of Federal Standards); (3) additional work practices, as described in sec.295.60 of this title (relating to Operations: Abatement Practices and Procedures); (4) standards covering maintenance of records at both the department central office and work site locations, as described in sec.295. 62 of this title (relating to Operations: Recordkeeping); (5) standards and practices for operations and maintenance activities, according to sec.295.59 of this title (relating to Operations: Operations and Maintenance (O & M) Activities); and (6) assisting department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspections and Investigations). sec.295.50. Licensure: Asbestos Inspector. (a) Licensing. An individual must be licensed as an asbestos inspector to conduct asbestos surveys in public buildings. An asbestos inspector must be employed by a licensed asbestos consultant agency or licensed asbestos management planner if he/she is to perform asbestos building surveys for hire. The scope of duties include the collection of bulk samples of suspected asbestos-containing material (ACM); determining the location and condition of asbestos in a public building; and documenting survey results. (b) Fee. The initial licensing fee or the annual license renewal fee for an asbestos inspector is $60. (c) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants) . (d) Qualification. To qualify for a license, an applicant must demonstrate, in a manner acceptable to the department, that he/she has: (1) a high school diploma or GED certificate; (2) a certificate of training indicating successful completion of approved three day training course for asbestos inspectors or the annual refresher training as described in sec.295.64 of the title (relating to Training: Required Asbestos Training Courses); (3) a physician's statement of the required physical examination done within the past year as described in sec.295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers); (4) professional liability insurance for errors and omissions in the amount of at least $100,000 when doing asbestos inspection work for hire, or be covered under his employers policy as required by sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements); (5) work experience. Applicants for licensing as asbestos inspectors are required to submit documentation of prior work experience with their application forms, as follows. (A) Verifiable written documentation must be submitted as follows: (i) completion of at least five asbestos surveys; or (ii) current employment with and doing work under the supervision of a licensed management planner or asbestos consultant. (B) The burden of proof for all points of the qualifying experience is on the individual applicant. Applicants for asbestos inspector licenses must furnish contacts or sources that can fully verify the documented experience. Descriptions of surveys are not acceptable if the personal involvement of the applicant cannot be determined by the reviewer. If, in the opinion of the reviewing staff members, applicant experience cannot be properly and sufficiently verified, such experience must be rejected; (6) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required; and (7) a one inch by one inch photograph of the face. (e) Responsibilities. The asbestos inspector shall: (1) comply with standards of operation, as described in sec.295.58 of this title (relating to Operations: General Requirements); (2) comply with guidelines for sampling schemes as presented in training course materials, or as required by consultant or management planner; and (3) cooperate with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspections and Investigations). (f) Signature. All asbestos building surveys or inspections must be signed by the licensed inspectors performing the inspections or the consultant. sec.295.51. Licensure: Asbestos Management Planner. (a) Licensing. A person must be licensed under these sections to develop an asbestos management plan, which shall include a written schedule and procedures to protect occupants from asbestos health hazards in a public building. (b) Scope. In addition to the development of management plans, a licensed management planner may be licensed to provide surveys and assess the condition of asbestos containing material (ACM), as provided in sec.295.50 of this title (relating to Licensure: Asbestos Inspectors. (c) Fee. The initial licensing fee and the annual license renewal fee for an asbestos management planner is $120. (d) Applications and renewals. Applications and renewals shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (e) Qualification. To qualify for a license as an asbestos management planner, an applicant must demonstrate in a manner acceptable to the department that he/she meets the following applicable qualifications. (1) The applicant must: (A) have completed an Environmental Protection Agency (EPA) or state-approved inspector training courses together with the additional management planner course of instruction within the past 12 months, or has remained certified by completing annual refresher training for management planners and inspectors, as specified in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses); (B) have an associates degree or 60 credit hours from a college or university; or (C) currently be performing management plans and pass a competency test to be administered by the department; (D) provide a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required, in accordance with sec.295.64(g) of this title (relating to Training: Required Asbestos Training Courses); (E) provide a one inch by one inch photograph of the face; and (F) furnish a physician's statement of the required physical examination done within the past year as described in sec.294.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers). (2) An applicant organization shall designate a corporate officer, general partner, or proprietor, according on the kind of organization, for the purpose of complying with the training and education requirements in paragraph (1) of this subsection. (f) Responsibilities. The asbestos management planner shall be responsible for: (1) the interpretation of the field notes and report of an asbestos building survey; (2) the production of drawings which show the locations of asbestos materials, together with notes as to the extent and the condition of this ACM; (3) writing an asbestos report which includes information from paragraph (2) of this subsection together with a proposed schedule of actions to be taken from the control of asbestos in the subject building; and (4) advising clients about options for operations and maintenance or asbestos abatement; (g) Signature. All asbestos management plans must be signed by the licensed asbestos management planner preparing the plan or the consultant. sec.295.52. Licensure: Air Monitoring Technician. (a) Licensing. An air monitoring technician must be licensed to perform air monitoring services for an asbestos abatement project or related activity in a public building. An air monitoring technician may obtain baseline, area, personal, and clearance samples. For purposes of asbestos abatement, a licensed air monitoring technician shall be an employee of an asbestos laboratory or asbestos consultant. (b) Authority of air monitoring technicians. Air monitoring technicians may obtain baseline, area, personal and clearance samples, if qualified in accordnce with subsection (e)(2) of this section, and may perform the analysis of airborne fibers in the field. (c) Fee. The fee for an initial application or for an the license for an air monitoring technician shall be $50. (d) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registration: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (e) Qualifications. To qualify for an air monitoring technician license or for an upgraded license to perform analysis of airborne fibers in the field, an applicant shall submit the following. (1) For a basic license the following must be submitted: (A) a high school diploma or GED certificate; (B) a certificate of training indicating successful completion within the past 12 months of the approved training course for air monitoring technicians or the current annual refresher training as described in sec.295.64 of this title (relating to Training: Required Asbestos Training Courses); (C) a physician's statement of the required physical examination done within the past year as described in sec.295.42(e)(2) of this title (relating to Registration: Asbestos Abatement Workers); (D) a copy of the wallet-size photo-identification card from the training course as required from all trainers in Texas in accordance with sec.295.65(f)(2) of this title (relating to Training: Approval of Training Courses). If training course was taken in Texas before January 1, 1993, a copy of a valid photo-identification card will be acceptable. Persons submitting out- of-state training certificates with their applications may obtain the necessary photo-identification when attending the mandatory course on Texas asbestos rules, as required, in accordance with sec.295.64(g) of this title (relating to Training: Required Asbestos Training Courses); and (E) a one inch by one inch photograph of the face. (2) In addition to the requirements in paragraph (1) of this subsection for the basic license, an air monitoring technician wishing to obtain an upgraded license to perform analysis of airborne fibers in the field, must also submit evidence of successful completion of the NIOSH Number 582 training course, or equivalent, titled "Analysis of Asbestos Dust" (7400 method), and current accreditation by the Asbestos Analyst Registry (AAR) or must comply with sec.295.54(e)(3) of this title (relating to Licensure: Asbestos Laboratory) if employed by a licensed asbestos laboratory. (f) Responsibilities. The air monitoring technician shall: (1) collect air samples as specified by appropriate sampling procedures; (2) collect air samples in the number, location, and frequency necessary to adequately reflect airborne levels of fibers in compliance with these regulations; (3) use appropriate sampling techniques during area clearance sampling; and (4) conduct air monitoring duties in an impartial, unbiased manner, and report monitoring results accurately. (g) Limitations. An air monitoring technician may perform the analysis of airborne fibers in the field only if he/she has obtained an upgraded license in accordance with subsection (e)(2) of this section and is also employed by a licensed asbestos laboratory or asbestos consultant. sec.295.54. Licensure: Asbestos Laboratory. (a) Licensing requirement. A person must be licensed in compliance with the provisions of this section to provide analysis of samples collected in public buildings for bulk asbestos or for final clearance of asbestos abatement projects. (b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos laboratory shall be $200. (c) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registrations: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-state Applicants). (d) Laboratory accreditation. To be eligible for licensure, applicants must submit evidences of accreditation, as follows: (1) accreditation by the National Voluntary Laboratory Accreditation Program (NVLAP) for bulk analysis by polarized-light microscopy and/or analysis of airborne asbestos by transmission electron microscopy, (both required for AHERA) and enrollment in the NIOSH Proficiency Analytical Testing (PAT) program; or (2) accreditation as an Industrial Hygiene Laboratory by the American industrial hygiene association, which includes the PAT program; or (3) accreditation by the Proficiency Analytical Testing (PAT) Program, which include quarterly sample tests for airborne fibers or bulk materials; or (4) accreditation by Asbestos Analysts Registry (AAR) listing, which include quarterly sample tests (PAT) for airborne fiber counting. (e) Limitations. Limits which are placed on the type of services that an asbestos laboratory can perform are as follows. (1) A laboratory may analyze bulk samples only if so accredited by NVLAP. (2) A laboratory may analyze clearance samples by transmission electron microscopy (TEM) only if accredited by NVLAP. (3) A laboratory enrolled in the NIOSH or AIHA PAT program may perform phase- contrast microscopy analysis under controlled laboratory conditions or under field conditions, if quality-control analysis is performed on at least 10% of the samples analyzed in the field. All phase-contrast analysis shall be performed by an analyst who has received NIOSH 582 training. The laboratory must maintain individual records for each analyst to document the individual analyst's coefficient of variation. (f) Qualifications. Applicants for licensing as an asbestos laboratory shall submit as applicable: (1) evidence of laboratory accreditation in accordance with subsection (d) of this section; (2) if the applicant is a Texas corporation, a certificate of good standing, issued by the State Comptroller's office; (3) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Secretary of State, authorizing the corporation to do business in the state; (4) evidence of professional liability insurance for errors and omissions in the amount of at least $1 million when doing work for hire as required by sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements). (5) evidence of workers compensation insurance issued by a company authorized and licensed to issue workers compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance if workers compensation is required by the specifications or owner. sec.295.55. Licensure: Asbestos Training Provider. (a) Licensing requirement. A person must be licensed as an asbestos training provider in accordance with these sections to offer and to conduct asbestos training for fulfillment of specific training requirements that are prerequisie to licensing or registration by the Texas Department of Health (department). (b) Fee. The fee for an initial application or for annual renewal of the asbestos training provider license shall be $500. (c) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registrations: Applications and Renewals). Out-of-state applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants) . (d) Qualification. Documentation required of applicants for licensing as asbestos training providers is as follows. (1) Organization. There shall be a clear written description of the organization, including the address of its central office and the names and addresses of its principals, and a statement of intent concerning the courses and services to be offered. If the organization is affiliated with or the subsidiary of another, a complete description of this arrangement is also required. The organization shall designate a staff member as director in charge of asbestos training. (2) Equipment. There shall be a description of the items of instructional equipment and accessories available for the conduct of courses. The provider shall furnish adequate equipment in good working order for each training session. (3) Records. Records shall be maintained, that include: a record of each asbestos course that is conducted, which shall include dates, location, instructors, trainees, etc., for a period of five years. (4) Advertising. Printed bulletins, brochures, or other promotional literature must specify course prerequisites for admission, the content of the course, and requirements for successful completion. (5) Refund and cancellation policy. Each training provider must have a written policy concerning refunds and cancellations in both Spanish and English that is made available to applicants prior to acceptance of fees for enrollment, and shall include the procedure for notification by the trainee desiring to cancel. (6) Information requirements. The training provider shall discuss and inform each prospective trainee of the requirements for the type of license being sought, and of necessary qualifications he/she must have, as follows. (A) Individuals not eligible for employment in the United States will not be licensed. (B) Eligibility for refresher training courses is dependent on the effective date of the initial training. (C) Certain asbestos training courses require the successful completion of other training courses as a condition for admission. (7) Maximum trainee-instructor ratio. The maximum number of trainees in a lecture session shall be 40. Hands-on training groups shall have no more than 15 trainees and must be so arranged that each trainee is given individual attention. (8) Attendance and course completion standards. Attendance and course completion standards are as follows. (A) Attendance records in asbestos training courses shall be taken at the beginning of each four-hour segment of course instruction. Control of exits and entrances shall be maintained. A master attendance record shall be maintained for each session. (B) A trainee is not eligible to complete a given course if more than 10% of the session has been missed, and the qualifying exam shall not be offered in such instances. The records of that session shall be marked to this effect. (C) A training provider must certify each examination taken by a trainee as to whether a minimum score of 70% correctly answered questions was achieved. The training provider shall have a written policy concerning re-examinations which shall apply to all such cases of failure of the initial examination. Failure of the re-examination means that the course will have to be repeated. (e) Conditions of issuance. The following conditions and agreements shall apply to issuance of licenses under this section. (1) There shall be an agreement to send at least one course instructor to any meeting sponsored by the department for the purpose of ensuring quality training courses in asbestos abatement and related topics. There will be no more than two such meetings per year. (2) The department shall be furnished a copy of all scheduled courses and shall be advised at least 24 hours in advance of any scheduled course cancellations. (3) There shall be a description and an example of numbered certificates issued to students who attend the course and pass the examination. The certificate must be in conformance with 40 CFR, Part 763, Subpart E, Appendix C, and must show the social security number of the individual certified. A uniquely numbered certificate may also be used, providing the social security number is shown. (4) Trainers may present other courses or seminars relevant to asbestos activities including, but not limited to, courses on respirator training and compliance, airborne sample analysis (NIOSH 582 or equivalent), sample analysis by polarized light microscopy, construction safety (29 CFR, Part 1926), hazard communications (Texas or OSHA), hazardous materials response worker (29 CFR, sec.1910.120), local education agency-asbestos coordinator, two hour and 16 hour AHERA Awareness Course, or advanced hands-on for worker and supervisor, or floor tile removal. Such courses will not be accredited by the department. Any federal accreditation requirements will be complied with by the provider. Such courses and seminars may not be used for refresher training credit. (f) Course instructors. The training provider shall submit a resume of each instructor that will participate in the conduct of any asbestos training course to be approved by the department. The training provider will notify the department of additions and deletions to their instructor roster within 15 days of actual occurrence. (g) Instructor qualifications. Training instructors shall be qualified in any one of the categories in paragraphs (1) -(5) of this subsection. Training qualifications must be fully documented, and verifiable by the department. The categories include: (1) at least two years of actual hands-on experience in asbestos-related activities (abatement or consulting) with training accreditation from Environmental Protection Agency (EPA) asbestos courses, and a high school diploma and completion of one or more teacher education courses in vocational or industrial teaching; (2) a college degree in natural or physical sciences or a related field, with one year's hands-on experience in asbestos related activities (abatement or consulting), and current accreditation in at least one EPA asbestos course; (3) at least three years teaching experience in Hazmat or HazWoper or EPA approved asbestos courses, and completion of one or more teacher education courses in vocational or industrial teaching from an accredited junior college or university; (4) qualification on an individual basis of professional persons for the purpose of teaching their specialty, such as law, medicine, insurance, etc.; or (5) a vocational teacher with certification from the Texas Education Agency with one year's hands-on experience in asbestos related activities (abatement or consulting) and current accreditation in at least one EPA asbestos course. (h) Professional references. Each instructor application submitted shall be accompanied by professional references attesting to teaching experience and qualification. (i) Complete applications. The department shall not accept any instructor application until it is complete. The department shall reject any such application that does not contain sufficient references to be fully verifiable. (j) Responsibilities. The asbestos training provider shall be responsible for: (1) complying with standards of operation, as described in sec.295.58 of this title (relating to Operations: General Requirements); (2) presenting to students all course material as outlined in syllabus and as represented to the department for approval; (3) providing environment, training, and testing of sufficient quality that student retains required elements of course; and (4) cooperating with department personnel in the discharge of their official duties to conduct inspections and investigations, as described in sec.295.68 of this title (relating to Compliance: Inspections and Investigations). sec.295.56. Licensure: Asbestos Transporters. (a) Licensing. A person must be licensed as an asbestos transporter in compliance with these sections to engage in the transport of asbestos in the State of Texas. (b) Fee. The fee for an initial application or for an annual renewal of the license for an asbestos transporter shall be $200. (c) Applications and renewals. Applications shall be submitted as required by sec.295.38 of this title (relating to Licensing and Registrations: Applications and Renewals). Out-of-dtate applicants must comply with sec.295.39 of this title (relating to Licensing and Registration: Out-of-State Applicants). (d) Qualifications. To qualify for a license, an applicant must demonstrate, in a manner acceptable to the department, that he/she meets the applicable qualifications. The applicant must submit with the application: (1) if the applicant is a Texas corporation, a certificate of good standing, issued by the State Comptroller's office must be submitted with the application for licensure; (2) if the applicant is situated outside the State of Texas, a certificate of authority issued by the Secretary of State authorizing the corporation to do business in the state, must be submitted with the application for licensure; (3) liability insurance in the amount of $1 million as required by sec.295.40 of this title (relating to Licensing and Registration: Insurance Requirements), when transporting asbestos containing material (ACM) for hire; (4) a copy of his/her emergency response plan in accordance with 29 CFR 1910.120(q)(1); and (5) evidence of workers compensation insurance issued by a company authorized and licensed to issue workers compensation insurance in this state and written in this state on the Texas form, or evidence of self-insurance if workers' compensation is required by the specifications or owner. (e) Responsibilities. An asbestos transporter shall: (1) comply with federal regulations in 40 CFR, Part 61 titled "National Emissions Standards for Hazardous Air Pollutants (NESHAP)", specifically the provisions concerning asbestos transport, and 40 CFR, Part 763, Subpart E, Appendix D, titled "Transport and Disposal of Asbestos Waste"; (2) register all employees who will be handling, loading, and unloading asbestos, as asbestos workers in accordance with sec.295.42 of this title (relating to Registration: Asbestos Abatement Workers); (3) train and supply employees who will handle asbestos with personal protective equipment and training for its use, and supervise their compliance; (4) establish and maintain records of transporting asbestos to disposal sites, and report annually to the department on the quantity transported to each disposal site destination; (5) comply with department personnel in the discharge of their official duties to conduct inspections and investigations, as set forth in sec.295.68 of this title (relating to Compliance: Inspections and Investigations); and (6) train employees in compliance with OSHA regulations in 29 CFR, sec.1910. 120(a)(v), in anticipation of possible spills of asbestos. sec.295.58. Operations: General Requirements. (a) Responsibility. It is the responsibility of owners of public buildings or their designated agents to engage persons licensed under the provisions of these sections to perform any asbestos-related activity. (b) Supervision. (1) Every asbestos abatement project undertaken by a licensed contractor in a public building shall be supervised by at least one licensed asbestos abatement supervisor. (2) Abatement supervisors shall remain on the job site and in immediate contact with those under their supervision during all periods of asbestos abatement activity. (3) During any period of actual abatement of asbestos, an abatement supervisor shall be stationed within the containment area at least 25% of the time for the purpose of supervising the progress of the abatement work. (4) Every small-scale, short-duration maintenance or repair activity that involves asbestos-containing material (ACM) in a public building, shall be supervised by at least one restricted-license operations and maintenance (O&M) supervisor. Restricted-activity Supervisors shall be at the job site during all periods of asbestos disturbance activity. (5) Abatement contractors or building management licensees may also employ licensed abatement supervisors to supervise small-scale, short-duration operations and maintenance activities. (6) Supervisors with either restricted or unrestricted licenses may be employed as asbestos abatement workers. (7) All licensed supervisors are responsible for respirator fit testing, personal protection, security, and control of access at the job site. (8) Supervisors licensed under these sections shall require that operations at the asbestos job site cease whenever hazardous or unlawful situations are detected, so as to effect a remedy. (c) Employees. Each employee or agent of any licensee who must intentionally disturb, handle, or otherwise work with ACM, or who shall engage in an asbestos abatement project, asbestos O&M activities or other asbestos-related activity shall have an annual physical examination, respirator fit-test, be properly equipped and trained, and be licensed or registered in accordance with these sections. (d) Records. Each licensee shall keep a complete record of each asbestos related activity or operation in public buildings to the extent of his or her participation. Such records shall be kept for 30 years. Each licensee shall also keep a copy of all violations issued against him by the Environmental Protection Agency (EPA), Occupational Safety and Health Administration of the United States Department of Labor (OSHA), or a state agency. All required records shall be made available, upon request, for inspection and review by the department. See sec.295.62 of this title (relating to Operations: Recordkeeping) for specific requirements. (e) Compliance inspections. Each licensee shall assist and cooperate with all properly-identified representatives of the department in the conduct of asbestos inspections, surveys, or monitoring procedures at all reasonable or necessary times, with or without prior notice. Such inspections may be made at proposed, actual, or former sites of asbestos-related activities, or of the premises, records, equipment and personnel of licensees or applicants, or of those who have held active licenses previously. (f) Respirator program. Each employer licensee shall be responsible for establishing and maintaining a written respiratory protection program, as required by OSHA regulations in 29 Code of Federal Regulations, sec.1910.134, as amended. (g) Individual respirator fit. The licensee must maintain in safe working condition a sufficient number of respirators of the types and styles approved by National Institute of Occupational Safety and Health to meet all anticipated requirements of his employees; and any employee whose facial characteristics, hair, mustache, or beard preclude a tight fit of a negative-pressure respirator shall not be allowed to enter the containment area of an asbestos operation using this type of respirator. (h) Sampling for asbestos. Any licensee may obtain a bulk or wipe sample to determine or confirm the presence of asbestos prior to the beginning of an asbestos-related activity or before performing O & M activities wherever suspect material is encountered. (A survey by a licensed asbestos inspector is required for actual abatement.) sec.295.59. Operations: Operations and Maintenance (O & M) Requirements (a) Restrictions. O&M activities involving asbestos-containing materials (ACM) are restricted to small-scale, short-duration activities, according to sec.295.33(a)(5) and (a)(7) of this title (relating to Adoption by Reference of Federal Standards). Asbestos O&M licensees shall not engage in any activity for which the primary purpose is asbestos abatement. (b) Work practices. Work practices shall include the following requirements. (1) Employers shall be responsible for furnishing and requiring the use of respirators, protective clothing, high-efficiency particulate air filter (HEPA) vacuum machines, glove bags, and other necessary equipment for all who perform O & M activities. (2) All persons not performing work shall be excluded from the work areas. (3) Physical barriers shall be used where necessary to limit access to the work area. (4) Airtight barriers, as described in sec.295.60 of this title (relating to Operations: Abatement Practices and Procedures), shall be constructed for containment of asbestos fibers, or a glovebag technique may be used for removal or repair of ACM on pipes or ducts. (5) Asbestos material must be wetted with amended water and remain wet throughout the work operation. (6) Asbestos exposed as a result of spot repairs shall be suitably enclosed or encapsulated. (7) HEPA vacuuming or wet cleaning shall be used to decontaminate work areas and equipment until there is no visible debris. (8) Asbestos shall be bagged and placed in containers, and disposed of in accordance with requirements to be found in sec.295.60 of this title. sec.295.60. Operations: Abatement Practices and Procedures. (a) General provisions. The following general work practices are minimum requirements for protection of public health, and do not constitute complete or sufficient specifications for an asbestos abatement project. More detailed requirements in plans and specifications for a particular abatement project, or requirements that address the unusual or unique circumstances of a project, may take precedence over the provisions of this section. (1) Federal work practices for asbestos abatement are referenced in 40 CFR sec.61.145 Environmental Protection Agency (EPA) titled "Standard for Demolition and Renovation", as amended. (2) An asbestos abatement project designer who is licensed under sec.295.47 of this title (relating to Licensure: Individual Asbestos Consultant) may specify work practices that vary from the provisions of this section as long as the work practices specified are at least as protective of public health, and are described in the project notification submitted to the Texas Department of Health. (3) If asbestos-containing material (ACM) is to be removed or encapsulated, it must be within a regulated area. (b) Critical barriers. Regulated areas within which asbestos abatement is to be conducted shall be separated from adjacent areas by barriers attached securely in place. All openings between isolated containment areas and adjacent areas, including but not limited to windows, doorways, elevator openings, corridor entrances, ventilation openings, drains, ducts, grills, grates, diffusers and skylights, shall be sealed. All penetrations that could permit air infiltration or air leaks through the plastic sheeting shall be sealed, with exceptions of the make-up air provisions and the means of entry and exit. (c) Movable objects. All movable objects shall be removed from the work area. Cleaning of contaminated items shall be performed if the items are to be salvaged or reused. Otherwise, they shall be properly disposed of as asbestos waste. All non-movable objects that remain in the work area shall be covered with a minimum of four-mil sheeting, secured in place. (d) Floor and wall preparation. Floor sheeting shall completely cover all floor surfaces and consist of a minimum of two layers of sheeting of at least six-mil. thickness, or equivalent. Floor sheetings shall extend up sidewalls at least 12 inches and be sized to minimize seams. No seams shall be located at wall-to-floor joints. Sealing of all floor penetrations against water leakage is mandatory. Wall sheeting shall completely cover all wall surfaces and consist of a minimum of one layer of four-mil sheeting, or equivalent. It shall be installed so as to minimize joints and shall extend beyond wall/floor joints at least 12 inches. No seams shall be located at wall-to-wall joints. (e) Decontamination system. A worker decontamination enclosure system consisting of a clean room, shower room, and equipment room, each separated from the other and from the work area by airlocks accessible through doorways. Except for the doorways and the make-up air provisions for the enclosure, the worker decontamination system shall be sealed against leakage of air. All personnel must exit the containment area through the shower before entering the clean room. No asbestos-contaminated individuals or items shall enter the clean room. (f) Heating, ventilation and air conditioning system equipment (HVAC). All HVAC equipment in or passing through the work area shall be shut down, and preventative measures taken to prevent accidental start-ups. All intake and exhaust openings and any seams in system components shall be sealed with at least six-mil sheeting and/or tape. All old filters shall be disposed of as asbestos waste. (g) Warning signs. Danger signs in accordance with 29 CFR, sec.1926.58, shall be displayed, in both the Spanish and English languages, at all entrances to regulated areas, and on the outside of critical barriers. (h) High-efficiency particulate air (HEPA) cleaning. Except where not feasible, cleaning procedures shall use wet methods and HEPA vacuuming, and visual inspections shall be performed in accordance with American Society for Testing Materials (ASTM) Standard E-1368, "Standard Practice for Visual Inspection of Asbestos Abatement Projects", available from the American Society for Testing Materials, 1916 Race Street Philadelphia, PA 19103. (i) Containment-area ventilation. Units with HEPA filtration, and in sufficient number to provide a negative pressure of at least of 0.02 inches of water column differential between the containment and outside and a minimum of four containment air changes per hour, shall be operated continuously for the duration of the project. The duration of the asbestos abatement project for the purpose of this requirement shall be considered from the time a regulated area is established through the time acceptable final clean air-monitoring results are obtained. These units shall exhaust filtered air to the outside of the building wherever technically feasible. (j) Requirements for removal. The requirements for removing ACM are that: (1) all ACM shall be thoroughly wetted prior to removal or other handling; (2) asbestos covered components that are going to be removed from the building may either be stripped in place and cleaned (and pass a visual inspection), or the ACM may be thoroughly wetted and the entire component wrapped in two layers of six-mil plastic, labeled and sealed, providing that: (A) components such as sections of metal lath that cannot be safely lowered to the floor shall be stripped in place; (B) any component that cannot be lowered or handled without presenting an excessive fiber release or safety hazard shall be stripped in place; (C) sharp edges of components shall be protected to preclude tearing the plastic wrapping and causing injury; and (3) ACM shall be removed in small sections and containerized while wet. At no time shall material be allowed to accumulate on the floor or become dry. Structural components and piping shall be thoroughly wetted prior to wrapping in plastic sheeting for disposal. (k) Requirements for the encapsulation of ACM. (1) Prior to encapsulation, loose and hanging ACM shall be removed. (2) Filler material applied to gaps in existing material must contain no asbestos, shall adhere well to the substrate and shall provide an adequate base for the encapsulating agent. (3) Encapsulant shall be applied using only airless spray equipment with the nozzle pressure and tip size set according to the manufacturer's recommendations. (4) Encapsulated materials shall be specifically designated by signs, labels, color coding or some other mechanism to warn individuals who may in the future be required to disturb the material. (l) Requirements for the enclosure of ACM. (1) Acceptable enclosure shall be airtight and of permanent construction, so that the area behind them is inaccessible. (2) All areas of ACM shall be wetted if they are to be disturbed during the installation of hangers, brackets, or other portions of the enclosure. (3) Prior to enclosure, loose and hanging ACM shall be removed. (4) Filler material applied to gaps in existing materials shall contain no asbestos, and shall adhere well to the substrate. (5) Enclosures for ACM shall be specifically designated by signs, labels, color coding or some other mechanism to warn individuals who may in the future be required to disturb the material. (m) Safety requirements. The following safety requirements shall be in effect for an abatement project: (1) Fire safety. At least one fire extinguisher with a minimum National Fire Protection Association rating of 10BC (dry chemical) shall be placed within each abatement project containment for every 1,000 square feet, or fraction, of containment area. (2) Electrical safety. Ground-fault circuit interrupter (GFCI) units shall be installed on all electrical circuits used within the regulated and containment areas. sec.295.61. Operations: Notifications. (a) General provision. The Texas Department of Health (department) must be notified of the intent to perform any asbestos abatement, demolition, or operations and maintenance (O & M) activity affecting asbestos containing materials (ACM) in public buildings. Notification shall be made prior to commencement of the activity and shall be submitted on the form specified by the department. This notification is in addition to any required by Environmental Protection Agency (EPA) (NESHAP), Occupational Safety and Health Administration of the United States Department of Labor (OSHA), or the Texas Air Control Board. (b) Responsibility. It is the responsibility of the building owner to notify the department under this section. This responsibility may be delegated to a licensed abatement contractor in writing. (c) Timeliness of notification. Notifications of asbestos activity must be hand delivered, express mailed, or postmarked at least 10 working days before the start of such activity. (Federal regulations require that original notifications are to be sent by mail.) The start date is considered to be the date when actual abatement or O & M begins. (d) Start-date change to later date. When asbestos abatement, demolition, or O & M will begin later than the date contained in the notice, the licensee shall: (1) notify the department (Asbestos Programs Branch) of the changed start date by telephone (or FAX) as soon as possible but prior to the original start date; and (2) provide the department with a written notice of the new start date as soon as possible before, but no later than the original start date. Delivery of the updated notice by the United States Postal Service, commercial delivery service, hand delivery, or telephone facsimile (FAX) is acceptable. (e) Start-date change to earlier date. When asbestos abatement or O&M covered by these sections will begin on a date earlier than the date specified for the original start, the licensee shall provide the department with a written notice of the new start date at least 10 working days beforehand. (f) State and federal start-date requirement. In no event shall actual abatement, as covered by this section, begin on a date other than the date contained in the written notice of start date. (g) Consolidated notifications of small operations. Notifications involving a series of small, separate asbestos O&M or abatement operations (each less than 160 square feet or 260 linear feet or 35 cubic feet in size) may be combined by listing and attaching the information to a single notification form, provided that any listing period does not exceed 31 days in length. All asbestos demolitions must be updated individually, regardless of size. (h) Provision for emergency. In the event of emergency renovations made necessary by an unexpected or unplanned asbestos incident, notification will be made as soon as practicable, but in no event later than 24 hours after the occurrence of the incident. Initial notification can be made by telephone, followed by formal notification on the department's notification form. sec.295.62. Operations: Recordkeeping. (a) Record retention. Records and documents required by this section shall be retained for a period of 30 years from the date of project completion unless otherwise stated. Organizations or individuals ceasing to do business, shall notify the Texas Department of Health (department) in writing within 30 days of such event. The department, on receipt of such notification may instruct that the records be surrendered and may specify a repository for such records. The organizations or individuals shall comply with the department's instructions within 60 days. (b) Training providers. Licensed training providers shall establish and maintain attendance records pursuant to the requirements of this section for a period of five years, and shall make such records and documents available to the department upon request. (c) Asbestos contractors. (1) Central location. The following records and documents shall be maintained by asbestos contractors at a central location at the principal place of business for a period of 30 years and shall be made available to the department upon request: (A) records and documents required by 29 CFR sec.1910, and 29 CFR, sec.1926.58, as amended; (B) name, address, and asbestos certificate number of each employee, past and present, including dates of employment, and description of each employee's involvement in each asbestos project while employed by the contractor, including name, address, location and duration of project; (C) copies of all regulatory agency correspondence including letters, notices, citations received and notifications made by the contractor; (D) records and documents required to be maintained under any other applicable federal, state, or local law, regulation or ordinance; (E) receipts and documentation of disposal of asbestos waste showing dates, locations and amounts of asbestos waste disposed including the identification of the source of the asbestos waste and the transporter (company name or driver name, if an employee of the contractor); (F) copies of laboratory reports and sample analysis documenting workplace and personal exposure levels, including copies of consultant's reports provided to the contractor regarding employee or clearance level monitoring; and (G) copies of all specifications of contracts awarded for asbestos abatement projects. (2) On site. Records and documents shall be maintained on-site at the asbestos project location for the duration of the project. Records and documents with personal references shall be made available to all persons employed at the site upon request. All on-site records and documents shall be made available to the department upon request. The records and documents covered by this paragraph include: (A) a current copy of the work practice requirements; (B) a copy of the contract or technical specifications governing the project or if no contract, location and description of operations and description of abatement procedures; (C) a listing of all employees, by name, social security number, and certificate number working on the project; (D) a listing of each of the contractors, sub-contractors and consultants on the project; (E) a daily sign-in/out log which identified persons by name and the length of time each spent at the site; (F) records of all on-site air monitoring; (G) a written respirator program which conforms to requirements of 29 CFR, sec.1910.134(b), as amended; (H) name and address of the contractor or building owner-operator; (I) name and address of project supervisor(s); (J) description of personal safety practices; (K) name and address of waste disposal site; (L) dates of participation in the operation; and (M) a roster of registered asbestos workers employed. (d) Analytical services. Licensed providers of asbestos analytical services shall maintain copies of all records and documents required by these sections and copies of all analyses performed, including the sample identification number and analytical results, and make such documents available to the department for inspection upon request. (e) Consultants. Licensed consultants shall maintain client files pertaining to inspection, sampling, assessment, clearance level monitoring and copies of daily construction logs pertaining to contractor work practices and make such documents available to the department for inspection upon request. Logs for completed projects shall be maintained at the consultant's principal place of business. Logs for current projects shall be kept at the asbestos project work site until final cleanup has been certified. (f) Asbestos O & M contractors (restricted). O & M contractors licensed to perform small-scale, short-duration operations and maintenance (O & M) activities affecting asbestos shall maintain, at the place of business, copies of all documents which constitute the application of each O & M restricted supervisor's license and the registration of each asbestos worker. All such restricted operations performed shall be recorded in chronological order and made available for inspection as requested by the department. sec.295.64. Training: Required Asbestos Training Courses. (a) General provisions. Applicants for licensing or renewal must submit evidence of fulfillment of specific training requirements acceptable to the Texas Department of Health (department) under these sections. Course content, hours of instruction, refresher training, etc., are subject to change or modification. (1) Training courses shall be conducted by training providers licensed by the department. Training within the confines of this state by unlicensed providers shall not be accepted by the department after January 1, 1993. (2) Valid training courses performed in other states, in the past 12 months, by Environmental Protection Agency (EPA) approved training providers shall be accepted by the department provided that applicants have completed an approved course in Texas asbestos law and rules from a training provider licensed by the department. This requirement is effective January 1, 1993. (3) The one-year period of validity following the effective date of a required asbestos course may be extended by completing the appropriate annual refresher training. Failure to complete annual refresher training within two years of the most recent training shall require that the original course be repeated. (4) A day of training shall consist of eight hours of actual classroom instruction, hands-on practical training sessions, and field trips in any suitable combination, including break periods. (5) Courses requiring hands-on practical training must be presented in an environment that permits the trainees individually to have actual experience performing tasks associated with the appropriate asbestos activity studied. Hands-on training sessions shall maintain a student to instructor ratio of not more than 15 to one. Demonstrations and audio-visuals shall not substitute for required hands-on training. (b) Asbestos consultant training. Persons seeking to be licensed as an asbestos consultant under these sections shall complete the approved project design training course as described in this subsection (see also the other training required for consultants in sec.295.47(f)(3) of this title (relating to Licensure: Individual Consultant)). Successful completion of the course shall be demonstrated by achieving a score of at least 70% on the course examination. The course shall adequately address: (1) general information concerning asbestos, including health effects related to exposure; (2) the role of the asbestos consultant and other consultants; (3) regulatory, insurance, and legal aspects; (4) personal hygiene and protective equipment; (5) work practices and procedures; (6) abatement project design, including control of airborne fibers, abatement options and evaluation, asbestos activity in occupied buildings, safety, and the preparation of drawings and specifications; (7) asbestos sampling: description and demonstration of bulk material and air sampling methods and analysis; (8) sampling for airborne fibers: equipment, calibration, and usage; (9) compliance sampling: area, personal, clearance, and background sampling; (10) recordkeeping and reporting: calculations, chain of custody, reports and preparation of records; (11) hands-on training: including a demonstration and explanation of the procedures of a complete abatement project, respirator fit-testing and maintenance, and sampling calibration and calculations; and (12) course review and manual. (c) Contractor/supervisor training. (1) Persons seeking to be licensed as an asbestos abatement contractor, asbestos abatement supervisor, project manager, asbestos competent person (under Occupational Health and Safety Administration requirements), or operations and maintenance (O & M) (restricted) supervisor, shall successfully complete this approved contractor/supervisor training course as described in this subsection. The course may be substituted for the asbestos abatement worker course; this substitution also applies to annual refresher training. (2) This training shall include lectures, demonstrations, audio-visuals and hands-on training, including individual respirator fit testing, course review, and a written examination of 100 multiple-choice questions. Each trainee must score at least 70% or better on this exam to successfully complete the course. The course shall adequately address: (A) physical characteristics of asbestos and asbestos containing material (ACM); (B) potential health effects related to asbestos exposure; (C) employee personal protective equipment; (D) state-of-the-art work practices; (E) personal hygiene; (F) additional safety hazards; (G) medical monitoring; (H) air monitoring; (I) relevant federal, state, and local regulatory requirements; (J) establishment of respiratory protection programs and medical surveillance programs; (K) hands-on training, including work area preparation, decontamination chamber construction, cleaning and disposal, and respirator fit testing and maintenance; (L) insurance and liability issues; (M) recordkeeping for asbestos abatement projects; (N) supervisory techniques for asbestos abatement activities; (O) contract specifications; and (P) course review and manual. (d) Asbestos abatement worker training. Persons seeking registration as asbestos abatement workers shall successfully complete the approved training course, as described in this subsection. Successful completion of the contractor/supervisor training course shall also be acceptable as qualification for asbestos worker applicants. Worker training courses are recommended to have a classroom student-instructor ratio of not more than 25 to one (25:1). The worker training course shall include lectures, demonstrations, hands-on training including individual respirator fit testing, course review, and a written examination consisting of 50 multiple-choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% on the examination. The course shall adequately address: (1) physical characteristics of asbestos and ACM; (2) potential health effects related to asbestos exposure; (3) employee personal protective equipment; (4) state-of-the art work practices; (5) personal hygiene; (6) additional safety hazards; (7) medical monitoring; (8) air monitoring; (9) relevant federal, state, and local regulatory requirements; (10) establishment of respiratory protective programs and medical surveillance programs; (11) hands-on training, including work area preparation, decontamination chamber construction, cleaning and disposal, and respirator fit testing and maintenance; and (12) course review and manual. (e) Asbestos inspectors. Persons seeking to be licensed as asbestos inspectors shall successfully complete the approved training course as described in this subsection. The inspector training course shall include lectures, demonstrations, hands-on individual respirator fit testing, course review, and a written examination consisting of 50 multiple choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% on the examination. The course shall adequately address: (1) background information of asbestos; (2) potential health effects related to asbestos exposure; (3) functions/qualifications and role of inspectors; (4) legal liabilities and defenses; (5) understanding of building systems; (6) public/employee/building occupant relations; (7) pre-inspection planning, and review of previous inspection records; (8) inspecting for friable and non-friable ACM; (9) assessing of the condition of friable ACM; (10) bulk sampling/documentation of asbestos; (11) air monitoring; (12) employee personal protective equipment; (13) recordkeeping and writing of the inspection report; (14) regulatory review; (15) field trip or simulated building walk through inspection; and (16) course review and manual. (f) Management planners. Persons seeking to be licensed as management planners shall successfully complete the training program for Inspectors, as described in subsection (d) of this section, plus the approved asbestos management planner training course, as described in this subsection. The management planner course shall include lectures, demonstration, course review and a written examination consisting of 50 multiple choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% on the examination. The course shall adequately address: (1) course overview; (2) evaluation and interpretation of survey results; (3) hazard assessment; (4) legal implications; (5) evaluation and selection of control options; (6) role of other professionals; (7) developing an operations & maintenance (O & M) plan; and (8) regulatory review; and (9) record keeping for the management planner; (10) assembling and submitting of a management plan; (11) financing abatement actions; and (12) course review and manual. (g) Air monitoring technician. Persons seeking to be licensed as air monitoring technicians shall successfully complete an approved three-day training course as described in this subsection. The air-monitoring technician course shall include lectures, demonstrations, hands-on individual respirator fit testing, course review and a written examination consisting of 50 multiple choice questions. Successful completion of the course shall be demonstrated by achieving a score of at least 70% on the examination. The course shall adequately address the: (1) health effects of asbestos; (2) asbestos regulations (state and federal); (3) asbestos sampling and evaluation methods; (4) calculating sampling times; (5) time weighted average calculation; (6) calibration of air sample pumps; (7) sample logs and records; (8) compliance testing; (9) clearance testing; and (10) clearance procedures. (h) Texas law and rules. Persons seeking an asbestos license or worker registration with the department who submit out-of-state training as a means of qualification must successfully complete an approved three-hour course on Texas Asbestos Health Protection law which shall be conducted by a training sponsor licensed by the department. This requirement shall be completed prior to commencing any licensed asbestos activity within the state. (i) Refresher training. All disciplines shall receive refresher training annually. Satisfactory completion of such training shall be a condition of renewal, and evidence of satisfactory completion shall be included in the annual renewal application. No refresher training can be accredited if the training course for licensure or registration was never completed. sec.295.65. Training: Approval of Training Courses. (a) General provision. Asbestos training courses shall be individually approved only for those training providers currently licensed by the Texas Department of Health (department). Applications for each course shall be made separately. The department shall consider prior teaching of the course applied for as a part of the approval process. (b) Conditional approval. Conditional approval of an asbestos training course shall be granted to an applicant after all required information and documentation submitted has been found to meet the requirements set forth in these sections for approval of the course by the department. (c) Complete approval. Complete approval of an asbestos training course shall be granted for a period of two years after the department has granted conditional approval, has conducted an on-site observation and evaluation of the training course, its instructors and its facilities, and has determined that the applicant's asbestos training course meets the requirements set forth in these sections. (d) Applications. An applicant for approval of an asbestos training course must submit an application in writing to the department. Within 30 working days after receiving an application, the department shall acknowledge receipt of the application and notify the applicant of any deficiency in the application. The department will approve or deny the application only upon receipt of the completed application which shall contain the following information: (1) the name and address of the licensed training provider who will present the course, and the name and phone number of the responsible individual; (2) the type of course for which approval is being requested; (3) a detailed outline of the course curriculum including the amount of time allotted to each topic, the name and qualifications of the individual developing the instruction program for each topic, and copies or written materials to be distributed; (4) a description of the type of equipment owned which must be used in all full-length courses for demonstrations and/or "hands-on" exercises, including, but not limited to, types of respirators, negative air units, water spray devices, protective clothing, construction materials, high efficiency particulate air (HEPA) vacuum, air purifying panel, glove bags, shower unit, water filter assembly; (5) documentation, including photos and details of assurance that the number of instructors, the amount of equipment and the facilities are adequate to provide the students with proper training; (6) administration of a written multiple choice examination at the conclusion of the course. If copies of the exam are required by the department, measures to protect the confidentiality of the exam as proprietary information will be maintained by the department to the extent authorized by law. No later than July 1, 1993, the department will institute standardized tests questions for all categories requiring testing to be administered by the trainer; and (7) establishment of the fact that the minimum grade which must be obtained for a trainee to successfully complete the course is 70%. (e) Re-training (refresher) courses. For all disciplines except inspectors, a state accreditation program shall include a one-day annual refresher training course for reaccreditation. Refresher courses for inspectors shall be a half-day in length. Management planners shall attend the inspector refresher course, plus an additional half-day on management planning. Consultants need attend only a single annual refresher course for the project designer. (f) Issuance of certificates. All training certificates shall bear the name, address, and telephone number of the licensed training facility. The training provider shall: (1) issue certificates (with their social security numbers) to students who successfully pass the training course's examination. The certificate shall indicate the name of the student and the course completed, the date of the course and examination; (2) issue a wallet-size photo-identification card, including a description of the course completed, the effective date, and the social security number of the trainee; (3) submit the names and social security numbers, and one inch by one inch photo, on a form provided by the department, of students receiving an accreditation to the department within 10 days of the completion date of each course; and (4) provide student with a one inch by one inch photo attached to a department application for license/registration. (g) Revocation or suspension of approval. The department may revoke or suspend approval if field site inspections indicate a training course is not providing training that meets the requirements of the Model Accreditation Plan or these sections. Training course sponsors shall permit department representatives to attend, evaluate, and monitor any training course without charge. The inspection staff may not give advance notice of their inspections. (h) Minimum number of instructors. Each course requiring approval according to the Model Accreditation Plan shall require at least the minimum number of instructors for that course as specified by EPA. sec.295.69. Compliance: Reprimand, Suspension, Revocation. (a) After notice to the licensee of an opportunity for a hearing in accordance with subsection (e) of this section, the Texas Department of Health (department) may reprimand the licensee or modify, suspend, suspend on an emergency basis, or revoke a license under this Texas Asbestos Health Protection Act. (b) If the department suspends a license on an emergency basis, the suspension is effective immediately. The department shall then provide an opportunity for a hearing in accordance with subsection (e) of this section within 20 days after the date of the emergency suspension. (c) The department may reprimand any licensee or registrant, or may suspend or revoke a license or registration for: (1) failure to comply with any provision of the Texas Asbestos Health Protection Act (Act), any rule adopted by the Texas Board of Health, any order issued by the department or a court; (2) failure to comply with applicable federal or state standards for licensed asbestos activities; (3) failure to maintain or falsification of records as required by these sections; and (4) failure to meet the qualifications for which one holds a license; or (5) fraudulently or deceptively obtaining or attempting to obtain a license or contract for an asbestos-related activity. (d) If the department receives three validated complaints against a licensed supervisor and finds that the supervisor has, on three separate occasions, violated or has permitted workers under his supervision to violate the Act or these sections, the department shall: (1) revoke the supervisor's license and issue a worker registration that is valid for six months; (2) after that period, the individual may re-apply for a supervisor's license; and (3) such revocation shall provide for a hearing according to the provisions of subsection (e) of this section (relating to contested case hearings). (e) The contested-case hearing provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a shall apply to any enforcement action proposed to be taken under this section. The formal hearing procedures of the department in Chapter 1 of this title (relating to Texas Board of Health) shall also apply. (f) If a license issued under these sections has been suspended, the individual(s) and/or organizations named in the suspension are not eligible to reapply for licensing under this section for one year. (g) If a license issued under these sections has been revoked, the individual(s) and or organizations named in the revocation are not eligible to reapply for licensing under these sections for three years. 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 29, 1992. TRD-9213206 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: October 20, 1992 Proposal publication date: May 1, 1992 For further information, please call: (512) 834-6600 Part II. Texas Department of Mental Health and Mental Retardation Chapter 405. Client (Patient) Care Subchapter V. Client Volunteer Program 25 TAC sec.sec.405.551-405.561 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.405.551-405.561, concerning the client volunteer program, without changes to the proposed text as published in the August 4, 1992, issue of the Texas Register (17 TexReg 5417). The repeal of the sections is adopted contemporaneously with the adoption of the subchapter which replaces them, Chapter 410, Subchapter B of this title (relating to Community Relations), also in this issue of the Texas Register. The new sections incorporate provisions of the volunteer program at facilities and CMHMRCs. No comment were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, sec.2. 11, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 29, 1992. TRD-9213195 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: January 1, 1993 Proposal publication date: August 4, 1992 For further information, please call: (512) 465-4516 Subchapter D. Volunteer Services 25 TAC sec.sec.407.71-407.102 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts the repeal of sec.sec.407.71-407.102, concerning volunteer services, without changes to the proposed text as published in the August 4, 1992, issue of the Texas Register (17 TexReg 5418). The repeal of the sections is adopted contemporaneously with the adoption of the subchapter which replaces them, Chapter 410, Subchapter B of this title (relating to Community Relations) , also in this issue of the Texas Register. The new sections update provisions for the implementation of volunteer services programs at facilities and CMHMRCs. No comments were received regarding adoption of the repeals. The repeals are adopted under Texas Civil Statutes, Article 5547-202, sec.2. 11, which provide the Texas Board of Mental Health and Mental Retardation with rulemaking powers. 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 29, 1992. TRD-9213196 Ann K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: January 1, 1993 Proposal publication date: August 4, 1992 For further information, please call: (512) 465-4516 Chapter 410. Volunteer Services and Public Information Subchapter B. Community Relations 25 TAC sec.sec.410.51-410.76 The Texas Department of Mental Health and Mental Retardation (TXMHMR) adopts new sec.sec.410.51-410.76, concerning community relations. Sections 410. 52- 410.56, 410.58-410.60, 410.62-410.69, 410.71, and 410.73-410.76 are adopted with changes to the proposed text as published in the August 4, 1992, issue of the Texas Register. Sections 410.51, 410.57, 410.61, 410.70, and 410.72 are adopted without changes and will not be republished. The new sections are adopted contemporaneously with the adoption of the repeal of existing Chapter 405, Subchapter V (concenring the Client Volunteer Program) and Chapter 407, Subchapter D (concerning volunteer services). The purpose of the new subchapter is to implement recommendations of the Texas Board of MHMR's Special Ad Hoc Committee on TXMHMR Volunteer Services. Those recommendations include the renaming of the volunteer services function as "community relations" to reflect that the effort includes both recruitment and retention of volunteers and resource generation; the extension of community relations programs to community mental health and mental retardation centers; and the inclusion of a provision for memorandums of understanding between facilities or community centers and any nonprofit organization working on behalf of the facility or community center to generate resources. Throughout the document, the term "facility or CMHMRC community relations office" is replaced with "facility or CMHMRC community relations staff" to reflect that community centers may elect to refer to the staff coordinating the community relations function as something other than "community relations. " Similarly, the term "chief executive officer (CEO)" has replaced "superintendent/director or executive director." The volunteer evaluation has been retermed "volunteer assessment." References to nonprofit organizations existing on behalf of a facility or community mental health and mental retardation center (CMHMRC) have been revised to clarify that the establishment of such a nonprofit organization is optional. In sec.410.52, the application is revised to reflect that the provisions of this subchapter are not applicable to community centers until funding for the community relations function is included in the CMHMRC's contract with TXMHMR. In sec.410.53, the term "direct care" is replaced with "direct contact" to reflect current terminology. The definition of "facility or CMHMRC community relations staff" is revised to clarify that the parameters of the function at CMHMRCs are defined in the contract. The definition of volunteer services council is revised to reflect that CMHMRCs may or may not elect to call their nonprofit organizations volunteer services councils. The definition of CMHMRC has been revised to include an updated citation. A definition for "facility or CMHMRC director of community relations" has been added. The definition of "individual served" has been replaced with "person served." The definition of the "Office of Community Relations, Central Office" is revised to clarify that the office is responsible for coordinating the community relations function. Similarly, sec.410.54(c) is revised to clarify that the Office of Community Relations, Central Office, is responsible for centrally coordinating the community relations function. In sec.410.54(d), it is clarified that a memorandum of understanding may be between the nonprofit organization and the department or one of its facilities or CMHMRCs. In sec.410.55, the one-year prohibition on former facility or CMHMRC community relations employees volunteering has been deleted; any waiting periods shall be determined by facility or CMHMRC policies and procedures. In sec.410.55(d), it is clarified that the volunteer assignment of a person served must be coordinated with the treatment team, as opposed to the earlier proposal requiring approval of the treatment team. Section 410.58(a)(4) is revised to clarify that the provision that volunteers assigned to religious education be approved by the chaplain or chaplaincy staff applies only to facilities. Section 410.58(a)(5) is revised to clarify that anti-discriminatory policies apply to CMHMRCs as well as facilities. It is clarified in sec.410.59(d) that volunteers may be provided meals or reimbursed for meals if on duty during mealtime, as specified by facility or CMHMRC policies and procedures. Provisions found in sec.410.60 are delineated for both facilities and CMHMRCs, which may establish their own policies and procedures regarding the issues of transportation. The requirement that the treatment team approve the separation of a person served from a volunteer assignment is deleted from sec.410.62(c). A provision is added to sec.410.63 clarifying that CMHMRCs are responsible for establishing their own policies and procedures addressing the issuance of keys. It is clarified in sec.410.63(g) that Chapter 404, Subchapter E (concerning rights of persons receiving mental health services) and Chapter 405, Subchapter Y (concerning client rights-mental retardation services) apply solely to facilities. In sec.410.64(a)(1) language is added clarifying that the donor determines the value of the donated items for tax purposes; the nonprofit organization uses fair market value for reporting in-kind gifts or merchandise donations. A provision is added to sec.410.64(b) clarifying that CMHMRCs are responsible for establishing policies and procedures addressing processing of donations made directly to the CMHMRC. Several details relating to acceptance of donations in sec.410.64(c) are deleted and will be included in the operating instructions which are expected to accompany this document beginning in early 1993. Section 410.65 is revised to clarify that CMHMRCs are responsible for establishing their own policies and procedures addressing which staff are authorized to solicit goods and services from the community. It is clarified in sec.410.65(d) that provisions regarding redirection of funds received at the facility or CMHMRC to the volunteer services council also apply to CMHMRCs, which may elect to call their nonprofit organizations something other than a volunteer services council. Section 410.66 is revised to clarify that CMHMRCs are responsible for establishing their own policies and procedures addressing the development and naming of capital improvement projects, gifts, memorials, and donated items. Section 410.68 is revised to clarify that facilities and CMHMRCs are authorized to undertake revenue generating activities, and that, in addition, each facility or CMHMRC may have a nonprofit organization working on its behalf to enhance the function. It is clarified that a CMHMRC may utilize its 501(c)(3) status for fundraising instead of establishing an independent nonprofit organization. It is further clarified that at facilities, the nonprofit organization shall be known as the volunteer services council, and shall be responsible for raising funds on behalf of campus and community services programs. Section 410.68(c) has been revised to require facility superintendent/directors or CMHMRC executive directors to establish a procedure for approving employee fundraising activities. It is clarified in sec.410.69(9) that the prohibition on voting and holding office in the nonprofit organization by facility or CMHMRC employees if such activity would create a conflict of interest applies to the spouse and children of the employee as well. Section 410.71 is revised to clarify that membership in the Volunteer Services State Council is open to one representative from each facility, CMHMRC, and the Texas Foundation for Mental Health and Mental Retardation. Section 410.73 is revised to reflect that volunteers must represent TXMHMR's position if identifying themselves as volunteers for one of its facilities or programs. The title of one of the exhibits listed in sec.410.74 is revised to reflect the new use of the term "volunteer assessment." Several pertinent state laws are added to the listing of references in sec.410.75. Section 410.76(b) is revised to include CEOs. Public comment on the proposed subchapter was received from seven individuals or organizations, including: Heart of Texas Mental Health Mental Retardation Center, Waco; an individual commenter; MHMR Services for the Concho Valley, San Angelo; Texas Panhandle Mental Health Authority, Amarillo; Humble Alliance for the Mentally Ill, Kingwood; the Texas Council of Community Mental Health and Mental Retardation Centers, Inc., Austin; and the Mental Health and Mental Retardation Authority of Harris County, Houston. A commenter suggested that the proposed rule will increase paperwork, documentation, and record keeping, and suggested that the subchapter would inhibit the ability to deliver the highest quality services possible to the individuals served. The department responds that the intent of the subchapter is to enhance and support volunteer activity throughout the system. Much of the record keeping is designed to meet statutory regulations, as well as to meet requirements of the Legislative Budget Board, which reviews the use of funds for volunteer programs. A commenter noted that use of the term "CMHMRC community relations staff" was inappropriate, since it implies that all centers must have one. The commenter noted that the mandate included in sec.410.54(c) requires centers to "operate volunteer staff," not a community relations office. The department responds that for the sake of simplicity, the term "community relations staff" has been used throughout the document when referencing a responsibility associated with the functions of volunteer services and fundraising. However, the definition of "community relations staff" includes a recognition that at CMHMRCs, the staff assigned these functions may be referred to by a different title. Concerning the concept of the nonprofit organization, a commenter requested that it be clarified that CMHMRCs may use their own structures from which to operate volunteer services and to use as a fund-raising vehicle. The commenter noted that it was not clear enough that the nonprofit organization was an optional mechanism. The department responds that it was never the intent to require the establishment of a nonprofit organization. Where appropriate throughout the document, language has been added clarifying the issue. A commenter suggested that the department consider making this proposed rule applicable only to state facilities, then address the CMHMRC's compliance through the TXMHMR contract rule currently being considered for revisions. The commenter noted that in such a situation, the allocation of funds for volunteer programs would then be tied into the performance contract between TXMHMR and a center, along with acceptable standards (i.e., aspects, expectations, characteristics) and reasonable reporting criteria from the center to the department concerning the utilization of funds. The department responds that application of this subchapter to community centers was among the recommendations of the Special Ad Hoc Committee on TXMHMR Volunteer Services in its effort to create a systemwide approach to volunteer services. Those recommendations were accepted by the Texas Board of MHMR earlier this year. The same commenter noted that the department needs to clearly state its approach as to what is expected of CMHMRC's volunteer programs. Specifically, the commenter asked three questions: Does Article 6252(11e)'s undefined "volunteer programs" at governmental entities include identical purposes as those at state agencies? If so, what should be considered by a CMHMRC in determining the best methods to fulfill those purposes? And finally, what allocation of funds for TXMHMR will be necessary to encourage the growth and development of volunteer programs/services to meet those purposes cost- effectively? The department interprets Article 6252(11e)'s undefined volunteer programs to include identical purposes as those state agencies. The funding issues will be included in the next legislative request and exact funds to be provided to CMHMRCs will be negotiated during the contract process. Regarding sec.410.53, a commenter noted that the definition of "community mental health and mental retardation centers" includes an outdated cite. The department agrees, and the outdated citation has been replaced with the current one. A commenter suggested that the definition of "community service volunteers" should be revised to include CMHMRCs. The department responds that "community service volunteers" are defined as direct service volunteers who volunteer at a facility's community services program-a description of the location at which the volunteer serves, not the type of service the volunteer provides. Community services volunteers are a subset of direct service volunteers, and, as defined, do not exist at CMHMRCs. Also regarding sec.410.53, two commenters noted that the definition of direct service volunteer does not reference or seem to include community center direct service volunteers. The department responds that a direct service volunteer is defined as an "individual who provides time and/or services to individuals served by TXMHMR." For purposes of this subchapter, TXMHMR is defined as the "Texas Department of Mental Health and Mental Retardation, including facilities and CMHMRCs." A commenter noted that the definition of "individual served" was included in sec.410.53, but the term "person served" was utilized throughout the document. The department agrees, and "individual served" has been replaced by "person served." A commenter asked that a definition of MOU be included in sec.410.53. The department responds that MOU is merely an acronym for "memorandum of understanding." The specifics of the MOU referred to in this document are outlined in sec.410.69. Regarding the definition of "Office of Community Relations, Central Office, " a commenter noted that boards set policies, and the programs are directed locally. The commenter asked that the definition be revised to reflect that the Office of Community Relations, Central Office, is responsible for "coordinating the statewide community relations program." The same commenter also asked that in sec.410.54(c), the phrase "shall be centrally overseen" be revised to read, "shall be centrally coordinated by." The department agrees, and the language has been revised. A commenter noted that the definition of "public responsibility committee" includes a PRC appointed by a "CMHMRC non-profit corporation." The commenter noted that such a PRC has no statutory authority. The department agrees, and language has been revised to clarify the means of appointing a PRC. A commenter asked that the definition of "TXMHMR" be deleted. The commenter asked that throughout the document, all references to TXMHMR be replaced with "facilities and CMHMRCs." The department responds that for the purpose of this document, TXMHMR has been defined as "the Texas Department of Mental Health and Mental Retardation, including facilities and CMHMRCs." A commenter asked if a reference to the value of volunteer service and donors to community MHMR centers was inadvertently omitted from sec.410.54(a). The department responds that the section makes reference to the value of volunteer service and donors of the Texas Department of Mental Health and Mental Retardation, which is defined in this subchapter to include facilities and community centers. A commenter noted that the language in sec.410.54(d) implies that a nonprofit organization exists at all facilities and CMHMRCs. The commenter requested this be revised to reflect that the nonprofit organization is an optional entity. The department agrees, and language has been revised. Concerning sec.410.55(b), a commenter noted that at CMHMRCs, the board of trustees was the rightful entity to determine any applicable waiting periods for former employees who wish to volunteer. The department agrees, and language has been revised to reflect that waiting periods will be determined by facility or CMHMRC policies and procedures. With regard to sec.410.56, a commenter asked that the phrase "the service does not constitute a job which is or should be the work of a paid employee" be deleted. The commenter noted it might create some difficulty for some programs operated by the agency. The department responds that the requirement is a provision of the Fair Labor Standards Act, and therefore must remain. Additional information regarding the provision will be included in the operating instructions which will be distributed to accompany this subchapter in early 1993. Another commenter noted that although sec.410.56(c) includes a prohibition on a person served volunteering on the same unit where he or she resides, it fails to address outpatient, vocational, day program, or other services by which a CMHMRC provides a vast majority of its services. The department responds that there are no similar restrictions on persons served volunteering in outpatient, vocational, day program, or other such services. Concerning sec.410.57(a), a commenter noted that families of clients have been wonderful in supplying baked goods, hours of help, and other assistance to staff. The commenter suggested that to disallow family members from helping in the area where a relative is receiving services would certainly have a devastating impact on the clients served and many programs. The department responds that the provision does not prohibit family members from informally helping out in the area where a relative is receiving services. However, if the family member is formally seeking a volunteer placement, then the placement must be in an area away from where the relative is receiving services. Regarding sec.410.58(a)(1), a commenter suggested that requiring consultation with "Central Office" prior to allowing any exceptions to the requirement that all volunteers sign a confidentiality statement could be seen as a usurpation of the CMHMRC's authority. The department responds that there really is no reason a volunteer should be exempted from signing a confidentiality agreement, and the clause has been deleted. A commenter noted that the citation included in sec.410.58(a)(2) was outdated. The department agrees, and the citation has been updated. Regarding sec.410.58(c)(2), a commenter noted that the paragraph refers to the "facility or community MHMR center's director of community relations." The commenter noted that the CMHMRC may choose to use a different title for the position. The department responds that for the sake of reference in the document, the term "director" has been used. However, the definition of "director" recognizes that other titles may be used at CMHMRCs. With regard to sec.410.58(e), a commenter noted that there was a negative reaction to use of the word "evaluation," and suggested replacing it with "assessment." The department agrees, and language has been revised. A commenter asked that the provision in sec.410.59 requiring that volunteers be provided a name tag, badge, or other means of identification be reworded to allow the means of identification to be provided only when necessary or when requested by the volunteer. The department responds that all volunteers must have some form of identification which distinguishes them from other individuals at the facility. The identification does not have to be worn, but should always be available in the event the individual needs to identify himself or herself as a volunteer. A commenter suggested that allowing the CMHMRC's "director of community relations" to select recipients of "Star" awards, as outlined in sec.410.61(a), is a usurpation of a CMHMRC's executive director and the board of trustees authority. The department responds that the person working most closely with the volunteer program is the most appropriate person to determine recipients of "Star" awards, which are intended for direct service volunteers. The provision does not, however, preclude additional approval from the CMHMRC's executive director or the board of trustees. A commenter suggested that the language in sec.410.61(d) implies that existence of a nonprofit organization. The department responds that this was not the intent, and language has been revised. With regard to sec.410.62(b), a commenter noted that it seemed inappropriate to permit a volunteer to be separated without citing a cause for the separation. The commenter noted that volunteers deserve to be treated with openness and honesty, and suggested the statement could discourage persons from volunteering. The department agrees, and the statement has been deleted. A commenter suggested that the provision in sec.410.62(c) requiring the treatment team's approval prior to separating a person served from a volunteer assignment be changed to required notification upon separation. The department agrees, and language has been revised. Concerning sec.410.63(d), a commenter noted that the community MHMR center's director of community relations does not have the authority to determine need to access a building. The department agrees, and the provision has been revised to require CMHMRCs to establish policies and procedures addressing the issuance of keys to volunteers. Also concerning sec.410.63(d), a commenter noted that volunteers primarily function after hours and on weekends when the building and office are locked, requiring keys to buildings and offices to be issued to volunteer staff. The department responds that the section includes provisions for issuing keys to volunteers when it is determined that a volunteer needs access to a building or office in order to adequately perform a volunteer assignment. A commenter noted that sec.410.63(j) refers to volunteers as "representatives of the department." The commenter suggested this reference did not include CMHMRCs. The department responds that for the purpose of this document, "department" has been defined to include facilities and community centers. Concerning sec.410.64(A)(1), a commenter suggested that it would be more appropriate for the donor to determine the value of donated items for tax purposes. The department agrees, and language has been revised. In addition, however, language has been added allowing the nonprofit organization to place a value on the items which will be used for internal reporting purposes. Two commenters noted that sec.410.65(a) appears to conflict with the authority of the CMHMRC board of trustees and the authority they may designate to the CMHMRC executive director. Another commenter noted that many merchants and individuals throughout the service area donate to individual programs on an "as- needed" basis, and suggested that the CMHMRC has no desire to curtail community involvement in any manner by having to "clear" the contributions through the community relations office. The department agrees, and the provision has been revised to require CMHMRCs to establish policies and procedures addressing which staff are permitted to solicit donations from the community. Regarding sec.410.66, a commenter questioned the applicability of Chapter 410, Subchapter C (concerning capital improvements) to CMHMRCs. The department responds that the subchapter does not apply to CMHMRCs, and language has been added requiring CMHMRCs to establish policies and procedures addressing issues related to capital improvements. Concerning the provision in sec.410.67(a) stating that the "director of community relations may elect to maintain petty cash funds for non-profit organizations," a commenter noted that a CMHMRC should be advised against doing so for a number of reasons. The commenter also suggested that TXMHMR Internal Audit does not approve of petty cash funds. The department responds that there is no requirement that petty cash funds be maintained by the director of community relations; CMHMRCs are permitted to choose not to carry out this function. Additionally, TXMHMR Internal Audit is not opposed to maintenance of petty cash funds provided steps are taken to ensure proper control and accounting of the funds. With regard to sec.410.69, a commenter suggested the relationship between the nonprofit organization and the facility or CMHMRC may need to be more than at arm's length. The department responds that legal staff has reviewed this section and concurs that it creates adequate distance between the two entities. Also regarding sec.410.69, a commenter suggested that volunteer groups operating under a 501(c)(3) can affect the community center because they solicit donations of money and goods and services. In many cases, the commenter noted, this may be in direct conflict with other solicitations being made by the center. The department responds that the purpose of the MOU is to avoid this type of conflict by creating an understanding of the roles and functions of the entities involved. Regarding sec.410.69(d)(2), a commenter suggested that a nominating committee appointed by the executive committee with the consensus of the nonprofit organization would be appropriate rather than the election of a nominating committee. The department responds that after careful review of alternatives, the Special Ad Hoc Committee on TXMHMR Volunteer Services recommended the preferred parliamentary approach as outlined in the section. Concerning sec.410.71, two commenters suggested that membership in the Volunteer Services State Council should be voluntary, not mandatory. The department agrees, and language has been revised clarifying that membership "is open to" one representative from each facility or CMHMRC. A commenter suggested that sec.410.72(a) singles out the CMHMRC's community relations office as being subject to audit by the Internal Audit Department and State Audit. The commenter noted that all center operations are subject to audit including any type of volunteer program. The department responds that the reference to the auditing process is merely an emphasis of existing policy. A commenter questioned the applicability or sec.410.73(a) to CMHMRCs, noting that CMHMRCs are not TXMHMR facilities or programs. The department responds that the provision would apply to CMHMRCs as public dollars will be used to fund the community relations program. Another commenter questioned whether Directive 1 should be referenced in sec.410.75. The department responds that the reference to Directive 1 has been deleted from the subchapter. sec.410.52. Application. The provisions of this subchapter shall apply to: (1) the department and all facilities of the Texas Department of Mental Health and Mental Retardation, including their community services programs; and (2) effective upon inclusion in individual contracts, but no earlier than September 1, 1993, all community mental health and mental retardation centers. sec.410.53. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Cash-Currency, checks, drafts, money orders, and other forms of legal tender. Chief executive officer (CEO)-The superintendent/director of a state facility or the executive director of a CMHMRC. Commissioner-The commissioner of the Texas Department of Mental Health and Mental Retardation. Community mental health and mental retardation center (CMHMRC)-A mental health and mental retardation center established under the Texas Health and Safety Code, Chapter 534. Department-The Texas Department of Mental Health and Mental Retardation. Deputy commissioner -The deputy commissioner for Mental Health Services and/or Mental Retardation Services of the Texas Department of Mental Health and Mental Retardation. Direct contact -An assignment which involves working one-to-one with persons served. Direct service volunteer-An individual who provides time and/or services to individuals served by TXMHMR. Direct service volunteers are not paid by TXMHMR for assistance and can include community citizens; family members of individuals receiving services when not acting on behalf of the individual receiving services; employees when not acting in the capacity of employment; and individuals receiving services when not acting solely on behalf of himself/herself. Examples of direct service volunteers include: (A) Advocacy volunteers-Individuals who act in an advocacy capacity for individuals with mental retardation who have no legal guardians. This program is part of the intermediate care facilities for mental retardation (ICF/MR) program requirements. (B) Community restitution volunteers-Individuals who are required by a court to provide a specified number of hours of volunteer services in lieu of a jail sentence. (C) Community service volunteers-Individuals who volunteer in programs operated by the facilities' community services divisions in counties for which they are the mental health or mental retardation authority. (D) Foster grandparents-A volunteer program operated by the federal government through ACTION. Volunteers are provided a subsidy. Donation-A contribution of anything of value freely given to benefit persons served by the department. Donor-An individual who contributes financial or in-kind gifts such as property or goods, or who serves as a volunteer "member" of a nonprofit organization which generates revenue on behalf of TXMHMR. Employee-A person who is legally employed to perform work and who is paid a salary or wage by the department, a facility, or a CMHMRC. Facility-A state school, state hospital, or state center, including their respective community services programs, or other facilities of TXMHMR. Facility or CMHMRC director of community relations-The staff member responsible for coordination of the facility or CMHMRC community relations function. At CMHMRCs, the staff member fulfilling responsibilities assigned to the director of community relations may operate under a different title. Facility or CMHMRC community relations staff -The staff at a facility or CMHMRC who manage the volunteer programs and oversee volunteer fundraising activities. At community centers, the parameters of this function are defined in the contract. Community relations may include the public information function. Nonprofit organization or 501(c)(3)-An organization recognized by the Internal Revenue Service as a nonprofit corporation and granted the right to receive tax deductible contributions. The nonprofit organization works on behalf of the agency to generate resources. Office of Community Relations, Central Office-Under the direct supervision of the commissioner, the central office department responsible for coordinating the statewide community relations program. Person served-Any individual receiving mental health or mental retardation services, in residence or through community services programs, from a facility or CMHMRC. Public responsibility by either the executive committee of a facility volunteer services council or the authorizing body of a community mental health and mental retardation center to provide independent investigation of consumer rights and abuse and neglect issues. The PRC is required by state statute for programs for individuals with mental retardation and authorized by TXMHMR for programs serving individuals with mental illness. Texas Foundation for Mental Health and Mental Retardation -A nonprofit organization acting on behalf of TXMHMR to raise funds to enhance the department's programs. TXMHMR-The Texas Department of Mental Health and Mental Retardation, including facilities and CMHMRCs. Volunteer services council (VSC)-A nonprofit organization of volunteers who work on behalf of a facility. At CMHMRCs, nonprofit organizations may be called something other than volunteer services councils. Volunteer Services State Council (VSSC)-A statewide organization representing facility and CMHMRC volunteers and volunteer fundraising efforts. sec.410.54. General. (a) Volunteers and donors of the Texas Department of Mental Health and Mental Retardation are highly valued as an essential component of its functions. Direct service volunteers are recognized and supported in their efforts to provide goods, services, and personal attention for persons served which enhance and enrich the best treatment and habilitation the state can provide. Donors are recognized and supported in their efforts to enhance the fundraising capabilities and revenue development of the department, enabling the department to provide additional services and goods to the people it serves. (b) By freely contributing their remarkable talents, resources, creativity, and energy in response to human needs, volunteers, both direct service and donors, consistently support the department in its vision of a Texas where: (1) in partnership with TXMHMR, volunteers assist people with mental illness, mental retardation, and substance abuse to have the skills and opportunities they need to achieve their individual dreams; (2) volunteers help people enjoy good health, safety, and security from harm, and a quality standard of living; and (3) volunteers encourage this and future generations to enjoy the bountiful natural beauty and resources of Texas. (c) In recognition of the talents, resources, creativity, and energy provided by direct service volunteers, TXMHMR has a responsibility to develop and support, through training and funding, volunteer programs which enhance the lives of the people served by the department. To facilitate the execution of this responsibility, every facility and CMHMRC shall operate a volunteer program. These programs shall be funded by the department at its facilities' campus and community service programs and shall be negotiated through the contracting process at CMHMRCs, and shall be centrally coordinated by the Office of Community Relations, Central Office. (d) In order to provide the best treatment and habilitation for persons served, it is essential that, in the event a nonprofit organization operates on behalf of a facility or CMHMRC, the nonprofit organization fully coordinate its activities with the facility or CMHMRC administration. The chief executive officer (CEO) retains full authority over all functions and projects concerning the facility or CMHMRC, persons served, and the employees. It is also essential that administration and staff cooperate fully with the volunteer council and the volunteers who provide the services. To facilitate this relationship where it exists, a memorandum of understanding clearly outlining the responsibilities of both the nonprofit organization and the department and or its facility or CMHMRC, which is referenced in sec.410.74 of this title (relating to Exhibits) as Exhibit A, shall be adopted. sec.410.55. Direct Service Volunteers: Current Employees; Former Employees. (a) Current employees. (1) Employees may volunteer their services at a facility or CMHMRC if their time is donated willingly without external pressure. (A) The functional area and geographic location of employees' volunteer assignments must be as far removed as possible from their regular work assignments and duties. (B) All employees must submit a statement verifying that they are volunteering their time without coercion. Facilities and CMHMRCs may use the standard "Employee Volunteer Statement," which is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit B, or they may develop a mechanism of their own. The facility or CMHMRC community relations staff shall keep a signed copy of the employee volunteer's statement, and a copy shall be placed in the employee's personnel record. (2) Hours of service donated by an employee volunteer are counted and recorded by the facility or CMHMRC community relations staff for volunteer credit, but shall not be counted as part of the employee's regular paid assignment. (b) Former employees. Former employees may apply to volunteer at the same or at a different facility or CMHMRC after a waiting period specified by facility or CMHMRC policies and procedures. (c) Requirements. All current and former employees applying for volunteer placement shall be subject to the standard interview, screening, training, and assessment required of other applicants for volunteer placement. sec.410.56. Direct Service Volunteers: Persons Served. (a) A person served has the right to perform services as a volunteer if: (1) the kinds of activity for which the individual volunteers are those which other volunteers usually and customarily perform in department facilities and CMHMRCs; (2) the service does not constitute a job which is or should be the work of a paid employee; (3) the person served understands that the activity is a free-will service and that "voluntarily" means "without pay"; (4) there are no material benefits or privileges available to the individual which are not available to persons served who do not volunteer to provide services, except the possible wearing of a name tag or other means of identification during the performance of volunteer services or special recognition or benefits such as are available to other volunteers for their services (i.e., meals); (5) appropriate orientation and on-the-job training is provided to enable the individual to understand the requirements of the volunteer assignment; (6) the individual is able to perform the services and understands the boundaries or risks, if any, of the volunteer assignment; and (7) the volunteer activities of the individual do not interfere with any regularly scheduled activity. (b) If the person served is employed by the facility or CMHMRC, volunteer services are to be in activities which are not related to duties in the individual's paid job. (c) A person served may not be placed in a volunteer assignment on the same unit where the person resides. (d) A person served may become a volunteer by initiating a request through the facility or CMHMRC community relations staff. The facility or CMHMRC community relations staff shall coordinate the request with the individual's treatment team. (e) Persons served may be advised that the volunteer program is available but may not be directed to participate in the volunteer program. A person served may offer to perform volunteer services if he or she so wishes. To the greatest extent possible, the volunteering of a person served for the performance of volunteer services is to be handled in essentially the same manner as the volunteering of any other citizen for the performance of volunteer services. (f) The facility or CMHMRC community relations staff shall confer with the appropriate facility or CMHMRC staff to work out specific methods of implementing a volunteer program for persons served at that facility or CMHMRC which shall conform with the requirements of this subchapter. (g) The facility or CMHMRC community relations staff shall obtain from the person served, on a one-time basis, a statement verifying that the individual is volunteering without coercion. Facilities and CMHMRCs may use the standard "Client Volunteer Statement," which is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit F, or may develop their own mechanism. A copy of the statement shall be filed with the facility or CMHMRC community relations staff and in the record of the person served. A person served may not begin the performance of a volunteer assignment until the statement has been processed. (h) Persons served who are engaged in activities for their own benefit as opposed to activities for the common benefit may continue to do so and need not be inducted through the facility or CMHMRC community relations staff by means of the procedures set forth in this subchapter (e.g., gardening/cultivating a plant, as opposed to trimming the shrubs). sec.410.58. Direct Service Volunteers: Standard Interview; Basic Orientation and Training; Placement Procedures; Assignment Descriptions; Assessment. (a) All applicants for volunteer placement, including persons served, shall complete an application for volunteer service as part of the interview process, a copy of which shall be kept on file with other volunteers' applications and records. A sample "Application for Volunteer Service" is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit C; facilities and CMHMRCs may use this form or develop their own. (1) All prospective volunteers must complete a confidentiality agreement. No exception to this rule shall be made. The "Confidentiality Agreement for Volunteers" form, which is referred to in sec.410.74 of this title as Exhibit D, may be used, although facilities and CMHMRCs may elect to develop their own mechanism. (2) All prospective volunteers who may be assigned to direct care positions are subject to a criminal history record check as authorized in the Texas Health and Safety Code, sec.533.007. (3) All prospective volunteers are subject to acceptance by the facility or CMHMRC director of community relations. (4) At facilities, volunteers assigned to religious education shall be approved by the facility chaplain or chaplaincy staff. (5) No volunteer shall be subject to discrimination under any of the policies or procedures of the department or any of its component facilities or CMHMRCs based on race, color, national origin, religion, sex, handicap, veteran status, or political affiliation. (b) Volunteers shall be required to complete a basic orientation conducted by the facility or CMHMRC community relations staff prior to placement. In addition, volunteers shall receive training in any areas necessary to successfully perform duties outlined in the volunteer's job description. (1) Whenever possible, the facility or CMHMRC community relations staff should utilize the resources and consultation available through the facility or CMHMRC office for staff development. (2) Training shall be offered at times which are convenient to volunteers, including weekends and evenings. (c) Volunteers shall be placed in assignments only with the agreement of the staff member with whom the volunteer will be placed. (1) Staff requests for volunteers shall be submitted to the facility or CMHMRC community relations staff. Facilities and CMHMRCs shall develop an appropriate mechanism for submission of requests for volunteers. (2) The facility or CMHMRC director of community relations shall confer with the staff member who shall be supervising the volunteers before making the placement. An interview between the volunteer and volunteer supervisor shall be conducted prior to placement. A job description shall be provided delineating responsibilities of the volunteer. (d) A copy of the job description of each volunteer assignment shall be maintained by the facility or CMHMRC community relations staff, and a copy of the job description of volunteer assignments for persons served shall also be placed in the individual's medical record. All job descriptions shall be reviewed periodically and revised as needed to accurately describe the tasks actually being performed by the volunteer. (e) The facility or CMHMRC community relations staff and facility or CMHMRC staff members who supervise the volunteer's work assignment shall periodically review and evaluate each volunteer's assigned work duties as delineated on the volunteer's job description using an appropriate mechanism. The "Assessment of Volunteer" form, which is referred to in sec.410.74 of this title as Exhibit E, may be used for this purpose, although facilities and CMHMRCs may elect to develop a different mechanism. (f) As part of the assessment process, volunteers shall be given an opportunity to evaluate their volunteer experience. sec.410.59. Direct Service Volunteers: Age Requirements; Identification; Meals. (a) All persons applying for individual volunteer services placements must have had their 14th birthday before their applications shall be considered. (1) Individual facilities or CMHMRCs may specify a minimum age above 14 years of age on specific assignments for individual volunteers. (2) The minimum age requirement does not apply to members of volunteer groups which come to the facility or CMHMRC under the supervision of an adult sponsor or leader (i.e., families, school groups) and which are approved by the facility or CMHMRC's director of community relations. (3) Volunteers age 14-17 shall be considered for placement in individual volunteer assignments only after the facility or CMHMRC community relations staff has obtained the documented permission of the minor's parent or legal guardian. The "Parental Permission Form-For Volunteers Under the Age of 18," which is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit G, may be used for this purpose, although facilities and CMHMRCs may elect to develop their own mechanism. (b) Volunteer assignments for minors should comply with the child labor requirements of the Department of Labor. (c) A name tag, badge, or some other means of identification shall be provided for all volunteers. (d) Volunteer workers may receive free meals provided by the facility or CMHMRC when on duty during mealtime, or may reimbursed for out-of-pocket expenses, as determined by facility or CMHMRC policies and procedures. sec.410.60. Volunteers: Insurance Coverage; Transportation. (a) Insurance coverage. Department funds shall provide coverage for direct service volunteers under volunteer program insurance. (b) Transportation at facilities. (1) Volunteers may ride as passengers in facility buses, vans, and other state vehicles in connection with their approved volunteer assignment. (2) Volunteers may drive state vehicles as permitted by facility policies and procedures. (3) Volunteers who drive non-state vehicles transporting persons served must have at least the minimum auto liability insurance coverage required by state law. Volunteers who drive non-state vehicles in connection with their volunteer assignment must satisfy the requirements listed in the department's internal rules governing transportation. (4) A volunteer whose driver's license is from another state may not transport persons served until he or she has obtained a valid Texas drivers' license or a military equivalent accepted by the Department of Public Safety in lieu of a valid Texas license. (c) Transportation at CMHMRCs. CMHMRCs shall establish policies and procedures addressing transportation issues which are in keeping with local, state, and federal regulations. sec.410.62. Volunteers: Separation Process, Exit Interview. (a) The facility or CMHMRC director of community relations may separate a volunteer if it is felt that the volunteer is unsuited to the assignment. (b) Before a volunteer is separated, consideration should be given to discussion with the volunteer, discussion with the volunteer's staff supervisor, length of satisfactory work donated by the volunteer, and reassignment of the volunteer. (c) If a volunteer who is a person served chooses to stop volunteering, the facility or CMHMRC community relations staff will notify the individual's treatment team. (d) The facility or CMHMRC community relations staff should make every effort to conduct an exit interview with all volunteers who are leaving the program or terminating their assignment. The "Exit Interview Form-Volunteer Services," which is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit H, may be used for this purpose, although facilities and CMHMRCs may elect to develop their own mechanisms. sec.410.63. Direct Service Volunteers: General Guidelines. (a) Volunteers shall be subject to all applicable rules, regulations, policies, and procedures of the department and the facility or CMHMRC where they are participating in the volunteer services program. (b) A volunteer shall not give money directly to persons served. If a volunteer wishes to donate money to a specific individual, he or she must consult the facility or CMHMRC director of community relations for the procedure to be followed. (c) Under no circumstances shall volunteers take or accept money from persons served. (d) At facilities, keys to state buildings, state vehicles, or state equipment shall not be issued to individual volunteers. However, the facility director of community relations may, in some rare instances, determine that a volunteer needs access to a room within a state building for a specific time and purpose in order to adequately perform a volunteer assignment. Under these conditions, the facility director of community relations may elect to request that a key be issued to the volunteer for a limited period of time. Keys shall not be issued to volunteers without the prior approval of the CEO or the person authorized by the CEO to issue keys. Volunteers may use state property only in connection with their assigned duties or in connection with activities of the volunteer services council. (e) CMHMRCs shall establish policies and procedures addressing issuance of keys to CMHMRC buildings, vehicles, and equipment. (f) Volunteers are not authorized to use the facility or CMHMRC letterhead. (g) All volunteers shall be subject to the confidentiality statutes and regulations governing disclosure of information concerning persons served, including Chapter 403, Subchapter K of this title (relating to Disclosure of Client-Identifying Information). At facilities, these regulations also include: (1) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); and (2) Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services). (h) Volunteers shall not take any photographs of persons served without obtaining clearance through the facility or CMHMRC community relations staff, who shall be responsible for obtaining legally adequate consent from the appropriate person. (i) All volunteer records which directly or indirectly identify a person served or a person formerly served are confidential. The confidentiality of such records shall be maintained and protected, and the information contained in such records may not be disclosed to anyone except as authorized by law. (j) Volunteers are required to observe the rights and responsibilities of identifying themselves as representatives of the department, including the responsibility to represent the department's position on issues when acting in such capacity. sec.410.64. Acceptance of Donations. (a) Donations through nonprofit organizations. All goods, services, and funds for persons served donated through the nonprofit organization shall be processed through the nonprofit organization. This is not a function or responsibility of the facility or CMHMRC community relations staff, although the facility or CMHMRC and the nonprofit organization may establish a process for staff assistance and include it in the memorandum of understanding (MOU) between the entities as outlined in sec.410.69 of this title (relating to Nonprofit Organizations-Relationship to Department and/or Its Facility or CMHMRC). (1) The donor shall determine the value of the donated items for tax purposes. The nonprofit organization shall use fair market value for reporting in-kind gifts or merchandise donations. (2) All items shall remain the property of the nonprofit organization until such time as they are turned over to the facility or CMHMRC. Donated items which cannot be used to benefit persons served, directly or indirectly, may be distributed to other 501(c)(3) agencies which have an appropriate use for them. (3) Upon transfer of donated goods, services, and funds from the nonprofit organization to the facility or CMHMRC, the facility or CMHMRC community relations staff shall place its own value on the goods, services, and funds which are accepted using values recommended by the Internal Revenue Service (IRS). These values shall be used by the facility or CMHMRC in completing its report of donations, as discussed in sec.410.72 of this title (relating to Auditing Guidelines; Additional Reporting Guidelines). (b) Donations made directly to facilities or CMHMRCs. Donations made directly to facilities shall be processed in keeping with policies and procedures outlined in department Directive 1, "Standard Operating Procedures." CMHMRCs shall establish their own policies and procedures addressing processing of donations made directly to the CMHMRC. (c) Acknowledgment of donations. All donations must be acknowledged. (1) Donations to the nonprofit organization must be acknowledged by the nonprofit organization. The correspondence must be signed by a council member. (2) Donations made directly to the facility or CMHMRC must be acknowledged by the facility or CMHMRC. sec.410.65. Donations: Community Solicitations; Undesignated Donations. (a) The facility community relations staff must be the facility's only personnel authorized to solicit goods and services from the community. Other facility staff members and designated personnel in the community services programs may solicit donated goods, services, food, or funds after conferring with and attaining approval from the facility community relations staff. (b) CMHMRCs shall be responsible for establishing policies and procedures addressing which staff are authorized to solicit goods and services from the community. (c) Donors often designate items for a particular individual, group, living unit, or section of the facility or CMHMRC. The facility or CMHMRC community relations staff shall make every effort to ensure that designated donations do not contravene standards of care of persons served. (d) Funds received at the facility or CMHMRC which do not specifically designate the nonprofit organization, shall be directed to the nonprofit organization if: (1) the funds are received in response to a specific fund appeal made to the community by the nonprofit organization; (2) the funds refer to a program or activity sponsored, underwritten, or coordinated by the nonprofit organization; or (3) written authorization is obtained from donors of undesignated funds specifying that those funds be given to the nonprofit organization. (e) Donated food not designated for a specific activity (e.g., birthday parties, holiday parties, picnics) shall be approved for quality and safety before it is distributed. At facilities' campus-sites this approval shall be obtained from the food service manager; at CMHMRCs and community services' sites, the approval will be obtained from appropriate personnel. sec.410.66. Capital Improvements Projects; Naming of Donated Gifts, Memorials, or Items. (a) Facility guidelines. (1) Guidelines for capital improvement projects are established in Chapter 410, Subchapter C of this title (relating to Capital Improvements by Citizen Groups). (2) The naming of any gift, memorial, or donated item which is a capital improvement project must be in accordance with guidelines established by the General Purchasing Commission and must have the approval of the Texas Board of Mental Health and Mental Retardation. (3) The naming of any gift, memorial, or donated item which is not a capital improvement project must be in accordance with guidelines established by the General Purchasing Commission and, if the donation is to be referred to or officially known by that name, must have the approval of the commissioner. (b) CMHMRC guidelines. The development and naming of capital improvement projects, gifts, memorials, and donated items at a CMHMRC shall be in accordance with CMHMRC policies and procedures. sec.410.67. Donations: Maintenance of Petty Cash Funds. (a) Facility and CMHMRC directors of community relations may elect to maintain petty cash funds for nonprofit organizations. Information regarding the need for the maintenance of petty cash funds, the amount of funds to be maintained, and the uses of the funds shall be included in the memorandum of understanding (MOU) between the facility or CMHMRC and the nonprofit organization. A sample copy of the MOU is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit A. (b) The facility or CMHMRC director of community relations shall keep receipts and accurate documentation for all petty cash funds disbursed and shall furnish such records to the treasurer of the local nonprofit organization. (c) Petty cash disbursements shall be included in the treasurer's reports to the local council and shall be included in the audit of the council's books. sec.410.68. Fundraising at Local Level. (a) Facilities and CMHMRCs are authorized to undertake revenue generating activities. In addition, each facility or CMHMRC may have a nonprofit organization working on its behalf to enhance the facility's or CMHMRC's fundraising abilities. A CMHMRC may utilize its 501(c)(3) status for fundraising or it may establish an independent 501(c)(3) nonprofit organization for this purpose. (b) At facilities, the nonprofit organization shall be known as the facility volunteer services council (VSC), and shall have responsibility for raising funds on behalf of campus and community service programs for needs of persons served, employee projects, and enhanced operations. (c) Employees may wish to conduct activities (i.e., bake sales, sales of merchandise) designed to raise money for employee activities. The CEO must establish a procedure for approving such activities. sec.410.69. Nonprofit Organizations -Relationship To Department and/or Its Facility or CMHMRC. When a nonprofit organization exists on behalf of a facility or CMHMRC, the following provisions shall apply. (1) The board of the nonprofit organization shall be cooperatively appointed by the CEO and the nonprofit organization. (2) The CEO shall have non-voting membership on the board of the nonprofit organization and executive committee. (3) The facility or CMHMRC director of community relations shall be a non- voting member of the council board and executive committee. (4) The council bylaws shall outline specific methodology for: (A) limiting terms of officers; (B) election of a nominating committee; (C) joining the nonprofit organization; and (D) replacing council board members. (5) The facility or CMHMRC shall provide the following staff services to the nonprofit organization: (A) fundraising assistance; (B) clerical and administrative services, such as typing and accounting assistance; (C) training of volunteers and the officers or board; and (D) coordination of activities. (6) The facility or CMHMRC may provide space. (7) The council shall provide its own: (A) postage; (B) printing, including letterhead and newsletters; (C) special event insurance; (D) recognition of donors; (E) recognition event for direct services volunteers; and (F) bond for officers. (8) A memorandum of understanding (MOU) governing the relationship between the agency and/or its facility or CMHMRC and a nonprofit organization acting on its behalf shall be executed. A sample MOU is referred to in sec.410.74 of this title (relating to Exhibits) as Exhibit A. The MOU should require the nonprofit organization to be in compliance with existing state and federal laws and regulations. The MOU should also: (A) specify relationships between staff and the nonprofit organization and include a mechanism for conflict resolution; (B) specify a mechanism to ensure that solicitation: (i) meets the mission, vision, and goals of TXMHMR; (ii) employs all accepted rules of ethical fundraising; (iii) is an appropriate type of fundraising for the nonprofit organization; and (iv) all proceeds less legitimate expenses shall be used for the benefit of the agency; (C) specify that in the event the nonprofit organization is audited by the Internal Revenue Service, a copy of the audit shall be forwarded to the facility or CMHMRC community relations staff for submission to the Office of Community Relations, Central Office; (D) at facilities, specify a mechanism for receiving input from the nonprofit organization regarding the development of the department's legislative agenda and assert the right of the department to review and approve all donations of real property and any improvements to existing real property. (9) At facilities where employees are invited to participate in council meetings, employees may attend if their work schedules permit. Facility and CMHMRC employees may vote and hold office in the nonprofit organization unless such activity would create a conflict of interest, i.e., the employee is involved in a management capacity with the facility or CMHMRC that makes decisions concerning the business that is transacted with the board of the nonprofit organization. If a conflict of interest exists, the facility or CMHMRC employee's spouse and children are also prohibited from voting and holding office in the nonprofit organization. sec.410.71. Volunteer Services State Council (VSSC). (a) The membership of the Volunteer Services State Council (VSSC) shall be open to one representative from each facility and CMHMRC and the Texas Foundation for MHMR. (b) The commissioner and one member of the Texas Board of Mental Health and Mental Retardation shall be nonvoting members of the board and executive committee. (c) The director of the Office of Community Relations, Central Office, shall be a nonvoting member of the board and executive committee. (d) The VSSC's bylaws shall specify a methodology for limiting the terms of officers and electing a nominating committee. (e) A memorandum of understanding shall be developed specifying the relationship between the VSSC and the Office of Community Relations, Central Office. (f) The Office of Community Relations, Central Office, shall provide space for VSSC records, and shall also provide: (1) clerical and administrative services, such as typing; (2) training of members and the officers of the VSSC; and (3) coordination of activities. (g) The VSSC shall provide its own: (1) postage; (2) printing, including letterhead and meeting materials; and (3) bond for officers. sec.410.73. Responsibility of Volunteers To Represent TXMHMR. (a) Volunteers must represent TXMHMR's position if identifying him/herself as a volunteer for the agency or one of its facilities, or programs. (b) This does not preclude a volunteer from speaking freely about any matter as a private citizen, as long as the volunteer makes it clear that such comments are the individual's opinion and are not made on behalf of the program for which the individual volunteers, the facility, the CMHMRC, the department, the commissioner, or the state. sec.410.74. Exhibits. (a) The following exhibits are referred to in this subchapter: (1) Exhibit A-Sample Memorandum of Understanding (MOU) between the department and a nonprofit organization; (2) Exhibit B-Employee Volunteer Statement, TXMHMR Form P-36; (3) Exhibit C-Application for Volunteer Service, TXMHMR Form V-9; (4) Exhibit D-Confidentiality Agreement for Volunteers, TXMHMR Form V-12; (5) Exhibit E-Assessment of Volunteer, Form V-19; (6) Exhibit F-Client Volunteer Statement, TXMHMR Form V-15; (7) Exhibit G-Parental Permission Form-For Volunteers Under 18 Years of Age, TXMHMR Form V-13; (8) Exhibit H-Exit Interview Form, TXMHMR Form V-8. sec.410.75. References. Reference is made to the following: (1) Texas Mental Health and Mental Retardation Act, Texas Civil Statutes, Article 5547-201, et seq, as amended. (2) Chapter 410, Subchapter C of this title (relating to Capital Improvements by Citizens Groups); (3) Chapter 403, Subchapter K of this title (relating to Disclosure of Client- Identifying Information); (4) Chapter 410, Subchapter A of this title (relating to Public Responsibility Committees); (5) Chapter 404, Subchapter E of this title (relating to Rights of Persons Receiving Mental Health Services); (6) Chapter 405, Subchapter Y of this title (relating to Client Rights-Mental Retardation Services); (7) Department of Labor: Child Labor Requirements; (8) Texas Civil Statutes, Article 5547-202, sec.2.13 and sec.2.14; (9) Texas Civil Statutes, Article 6252-11e; and (10) Texas Civil Statutes, Article 6252-11f. sec.410.76. Distribution. (a) The provisions of this subchapter shall be distributed to members of the Texas Board of Mental Health and Mental Retardation; deputy commissioners, associate deputy commissioners, assistant deputy commissioners, directors, and section chiefs of central office; CEOs and facility and CMHMRC directors of community relations; professional staff, Office of Community Relations, Central Office; chairpersons of the board of trustees of CMHMRCs; members of the executive committee of the Volunteer Services State Council; chairpersons of the nonprofit organizations working on behalf of department facilities; and CMHMRCs. (b) The CEO shall be responsible for the dissemination of the information contained in this subchapter to all appropriate staff members. 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 29, 1992. TRD-9213194 Anne K. Utley Chairman Texas Board of Mental Health and Mental Retardation Effective date: January 1, 1993 Proposal publication date: August 4, 1992 For further information, please call: (512) 465-4670