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 28. INSURANCE 
 Part II. Texas Workers' Compensation Commission 
  Chapter 164. Extra-Hazardous Employer Program 
  
  28 TAC sec.sec.164.3, 164.4, 164.7, 164.8 
 
  The Texas Workers' Compensation Commission adopts amendments to sec.164.3, 
164.4, 164.7, and 164.8. Section 164.4 and  sec.164.7 are adopted with changes 
to the proposed text as published in the August 14, 1992, issue of the Texas 
Register (17 TexReg 5669). Section 164.3 and sec.164.8 are adopted without 
changes and will not be republished. Section 164.1 remains under consideration 
at this time. 
 Changes to sec.164.4 were made in subsection (b) where a reference to another 
section was corrected, from (g) to (b); in subsection (g) the word "timeliness" 
was replaced with the words "time line"; and in subsection (h) the language was 
made consistent with the language of subsection (a). 
 Changes to sec.164.7 involved subsection (a) which was changed to make it clear 
that the inspection will be a follow-up inspection performed by the commission 
and subsection (b) which was changed to make it clear that the only time the 
commission will use other suitable standards is when the BLS publication does 
not include an injury frequency for that business or industry. 
 The amended sections are adopted to establish requirements for employers 
identified as extra-hazardous to improve safety conditions. Section 164.3 
requires employers identified as extra-hazardous to obtain a safety consultation 
as part of the development of an accident prevention plan. Section 164.4 
describes the information that must be included in the accident prevention plan, 
the time line for development, and the employer's options when the plan is 
complete. Section 164.7 establishes what will happen after employers implement 
an accident prevention plan and sec.164.8 establishes what happens when the 
employer fails or refuses to implement an accident prevention plan. The 
amendments were needed to encourage the independent development of safety 
programs by allowing employers to present programs developed prior to 
identification as a potential substitute for developing a post-identification 
safety program. These amendments are also necessary to clearly communicate that 
employers are Extra-Hazardous or that they have been removed from that status. 
 Public comments received are as follows. 
 Subsection (a) of sec.164.3 only allows review of a plan developed by the 
employer if developed in the last six months. Recommend changing this to 18 
months. 
 The commission disagrees. A plan that is 18 months old and still allows an 
employer to be identified is insufficient. A complete consultation is 
appropriate and will ensure the employer is using state of the art accident 
prevention methods. 
 In sec.164.4 the 30 day period is too short. Recommend changing this to 90 
days. 
 The commission disagrees. The employer can request a 30 day extension. The 
resultant 60 days should be more than sufficient to develop the plan. 
 Subsection (b) of sec.164.4 refers to sec.164.3(g) and it appears it should 
refer to sec.164.3(b). 
 The commission agrees. This reference will be changed. 
 Subsection (g) of sec.164.4 includes the word "timeliness" and it appears the 
intent was to say "time lines". 
 The commission agrees. This will be corrected to "time lines". 
 Subsection (h) of sec.164.4 requires filing of the plan with the division. 
Subsection (a) requires the same thing but uses different words. Recommend one 
or the other be changed to conform language. 
 The commission agrees. Subsection (h) will be changed to: "The employer shall 
be responsible for filing the accident prevention plan with the division within 
30 days of the date of the consultant's initial report and no later than 90 days 
after the employer received notification of identification as an extra-hazardous 
employer." 
 The provisions of sec.164.7(b) should be changed. If an identified employer 
complies with the accident prevention plan and reduces their injury rate, they 
should not remain in monitor status. 
 The commission disagrees. The statute specifically requires that the employer 
continue to be monitored if their injury rate continues to exceed the frequency 
reasonably expected for that employer's business or industry. 
 Section 164.7(b) should be changed. The phrase: "...the BLS rate or other 
suitable source identified by the commissioners." should be changed to "...BLS 
rate or, if not available from the BLS publication...". 
 The commission agrees. This makes it clear that the source of data will be the 
BLS publication unless the BLS has not identified a rate. Subsection (b) will be 
changed accordingly. 
 Section 164.7(a) should clarify that the inspection is the follow-up inspection 
by the division. 
 The commission agrees. The language should be changed to: "An employer shall be 
removed from extra-hazardous employer status if, on follow-up inspection by the 
division, the division determines that..." and subsection (a) will be changed 
accordingly. 
 Comments recommending changes to these proposed sections were received from: 
The International Association of Drilling Contractors; Texas Association of 
Business; Manpower Temporary Services; Granite Construction Company; Emerson 
Construction Company, Inc.; Frontera Materials; Foremost Paving, Inc.; Delta Air 
Lines, Inc.; General Motors Corporation; City of Austin; J. C. Evans 
Construction. 
 These amended sections are adopted under Texas Civil Statutes, Article 8308-
2.09(a), which authorizes the commission to adopt rules necessary to administer 
the Act and Texas Civil Statutes, Article 8308-7.04, which requires the 
commission to develop a program to identify extra-hazardous employers and to 
oversee the development and implementation of accident prevention programs. 
 
 
  sec.164.4. Formulation of Accident Prevention Plan. 
 
  (a) Employers who have not had an accident prevention plan developed in the 
last six months prior to notification will, within 30 days of the date of the 
consultant's initial report, develop with the assistance of a consultant an 
accident prevention plan which is consistent with established federal and state 
codes and standards, or in the absence of such standards, with accepted industry 
practices if recognized hazards exist that are causing or are likely to cause 
death or serious physical harm to employees, and that addresses each hazard 
and/or unsafe practice identified in the report. The accident prevention plan 
shall be developed by an approved professional source as defined in sec.164.9 of 
this title (relating to Approval of Professional Sources for Safety 
Consultations), shall be in the format prescribed by the commission, and shall 
include: 
 
  (1) a management component with a written safety policy statement and 
assignment, by position or title, of safety responsibilities and authority; 
   
  (2) an analysis component which includes identified operational and safety 
hazards; 
   
  (3) a safety program recordkeeping system component; 
   
  (4) a safety and health education and training component; 
   
  (5) a safety audit/inspection component which includes the identification, by 
title or position, of a qualified person(s) to conduct the audits/inspections; 
   
  (6)  an accident investigation component to identify the cause factors of 
injuries; and 
   
  (7) a periodic review and revision of the safety program and operational 
procedures component to determine effectiveness of abatement measures. 
     
  (b) Employers who have had an accident prevention plan developed and 
implemented within the six months prior to notification as an extra-hazardous 
employer that has been verified and approved by the division pursuant to 
sec.164.3(b) of this title (relating to Safety Consultation) will continue 
implementation of the plan and obtain an inspection by the division as provided 
in sec.164.5 of this title (relating to Follow-up Inspection by the Division). 
   
  (c) Reference material for the development of an accident prevention plan may 
be obtained from the division. 
   
  (d) An implementation time line, not to exceed six months after the 
formulation of the plan, shall be developed and included with the plan. 
   
  (e) If the employer disagrees with any or all of the plan, the employer shall 
sign the plan and attach a statement containing the specific reasons for 
disagreement to the plan. The division will review the areas of disagreement and 
notify the employer and the consultant of the decision on each area of 
disagreement. If the employer disagrees with the decision rendered by the 
division, the employer may request a hearing as provided by Chapter 145 of this 
title (relating to Dispute Resolution Hearings Under the Administrative 
Procedure and Texas Register Act). 
   
  (f) The employer's signature is understood to exclude those areas of the plan 
for which a disagreement has been attached to the plan, pending review by the 
division or a formal appeal. 
   
  (g) If the division finds it is practical to do so, the division may direct 
the employer to begin implementation of any or all parts of the plan that are 
not subject to the employer's disagreement. The time lines specified in the plan 
shall remain in effect for those parts of the plan the employer is directed to 
implement. 
   
  (h) The employer shall be responsible for filing the accident prevention plan 
with the division within 30 days of the date of the consultant's initial report 
and no later than 90 days after the employer received notification of 
identification as an extra-hazardous employer. Delays requested for good cause 
will be reviewed by the division. 
 
     
  sec.164.7. Removal From "Extra-Hazardous Employer" Status. 
 
  (a) An employer shall be removed from extra-hazardous employer status if on 
inspection the division determines that the employer has complied with the terms 
of the accident prevention plan or implemented other acceptable corrective 
measures approved by the division. 
   
  (b) If the employer has complied with the accident prevention plan but 
continues to exceed the injury frequency that may reasonably be expected in that 
employer's business or industry, the employer will be removed from extra-
hazardous employer status and placed in a monitoring status. For purposes of 
placing an employer in monitor status, "reasonably expected" is defined as: the 
BLS rate or if not available from the BLS publication, other suitable standard 
approved by the commissioners and used in the calculation. Determining placement 
on monitor status will be based on injury data from the most recent 12 months 
period for which data is available. 
   
  (c) During the monitoring period, the division: 
 
  (1) shall monitor injury frequency for trends and review injury causes in 
relation to the accident prevention plan and direct appropriate abatement 
measures; 
   
  (2) may investigate accidents, as appropriate; and 
   
  (3) may formulate additional accident prevention plans reasonably calculated 
to abate hazards. 
     
  (d) If, at the end of a six month monitoring period, an employer continues to 
exceed the injury frequency that may reasonably be expected in that employer's 
business or industry, the employer shall be evaluated during the next extra-
hazardous employer identification cycle and, if identified, will be required to 
fulfill all requirements of sec.sec.164.1-164.4 of this title. 
   
  (e) An employer who fails or refuses to implement accident prevention plans 
formulated by the division under subsection 
   
  (c) of this section commits a Class B administrative violation with a penalty 
not to exceed $5,000 a day. 
 
  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 October 16, 1992. 
 TRD-9214055 
  Susan Cory 
 General Counsel to the Workers' Compensation Commission 
 Texas Workers' Compensation Commission 
    Effective date: December 1, 1992 
 Proposal publication date: August 14, 1992 
 For further information, please call: (512) 440-3592 
         
                 
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part IX. Texas Water Commission 
  Chapter 336. Radiation Rules 
  
  Disposal of Radioactive Substances 
 
  31 TAC sec.sec.336.1-336.4 
 
  The Texas Water Commission (TWC) adopts new sec.sec.336.1-336.4, concerning 
disposal of radioactive substances. Section 336.1 is adopted with changes to the 
proposed text as published in the August 21, 1992, issue of the Texas Register  
(17 TexReg 5727). Sections 336.2-336.4 are adopted without changes and will not 
be republished. 
 The adoption of these sections is necessary in order to implement the 
provisions of Senate Bill 2, First Called Session, 72nd Legislature, Act of 
August 12, 1991, Chapter 3, 1991, Texas General Laws 4, which transferred the 
jurisdiction over disposal of radioactive substances from the Texas Department 
of Health (TDH) to TWC effective March 1, 1992. 
 Pursuant to the transfer of jurisdiction over the disposal of radioactive 
substances to TWC by Senate Bill 2, these sections will provide TWC with rules 
and standards with which to implement this authority. 
 The Bureau of Radiation Control, Texas Department of Health, commented in 
proposed sec.336.1(7) citing the use of an incorrect chapter title for Part 43. 
This title has been corrected in this publication to properly identify the 
adoption of rules applicable to licensing of uranium recovery facilities. 
 The new sections are adopted under the Texas Water Code,  sec.5.103 and sec.5. 
105 and the Texas Health and Safety Code sec.401.412, which gives TWC authority 
to adopt rules and establish minimum standards for the disposal of radioactive 
substances. 
 
 
  sec.sec.336.1. Adoption of Texas Regulations for the Control of Radiation.  
The Texas Water Commission hereby adopts by reference those portions of the 
Texas Regulations for Control of Radiation (TRCR) which relate to the disposal 
of radioactive substances: 
 
  (1) Part 11-General Provisions, except TRCR sec. sec.11.12, 11.13, and 11.14; 
   
  (2) Part 12-Fees for Certificates of Registration, Radioactive Material(s) 
Licenses, Emergency Planning and Implementation, and Other Regulatory Services; 
   
  (3)  Part 13-Hearing and Enforcement Procedures, except as provided in 
sec.336. 4 of this title (relating to Procedural Rules); 
   
  (4) Part 21-Standards for Protection Against Radiation; 
   
  (5) Part 22-Notices, Instructions, and Reports to Workers; Inspections; 
   
  (6) Part 41-Licensing of Radioactive Material; 
   
  (7) Part 43-Licensing of Uranium Recovery Facilities; 
   
  (8) Part 45-Licensing Requirements for Near-Surface Land Disposal of 
Radioactive Waste. 
 
  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 October 15, 1992. 
 TRD-9213985 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Effective date: November 5, 1992 
 Proposal publication date: August 21, 1992 
 For further information, please call: (512) 463-8069 
         
                   
  TITLE 34. PUBLIC FINANCE 
 Part IV. Employees Retirement System of Texas 
  Chapter 63. Board of Trustees 
  
  34 TAC sec.sec.63.9-63.15 
 
  The Employees Retirement System of Texas adopts new sec. sec.63.9-63.15, 
concerning board of trustees, without changes to the proposed text as published 
in the August 18, 1992, issue of the Texas Register (17 TexReg 5657). 
 The new sections were created in order to formalize the existing procedures for 
the election of officers and transaction of board business. 
 The new sections will provide procedures for the election of officers of the 
board, what constitutes a quorum, committee appointments, and conducting board 
business. These rules will be followed during the annual election of officers 
and during board of trustees meetings. 
 No comments were received regarding adoption of the new sections. 
 The new sections are adopted under the Texas Government Code, sec.815.102, 
which provides the Employees Retirement System of Texas with the authority to 
promulgate rules necessary to transact any business of the board. 
 
  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 October 19, 1992. 
 TRD-9214110 
  Charles D. Travis 
 Executive Director 
 Employees Retirement System of Texas 
    Effective date: November 9, 1992 
 Proposal publication date: August 18, 1992 
 For further information, please call: (512) 867-3336 
         
             
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 47. Primary Home Care 
  
  Service Requirements 
 
  40 TAC sec.47.2901 
 
  The Texas Department of Human Services (DHS) adopts an amendment to sec.49. 
2901, concerning referrals to provider agencies, without changes to the proposed 
text as published in the September 4, 1992, issue of the Texas Register (17 
TexReg 6095). 
 The justification for the amendment is to allow a client to continue to select 
a different primary home care provider agency every six months. 
 The amendment will function by promoting client satisfaction by continuing to 
allow clients to choose provider agencies every six months. 
 No comments were received regarding adoption of the amendment. 
 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs. 
 
  This agency hereby certifies that the rule as adopted has been reviewed by 
legal counsel and found to be a valid exercise of the agency's legal authority. 
 Issued in Austin, Texas, on October 15, 1992. 
 TRD-9213964 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: December 1, 1992 
 Proposal publication date: September 4, 1992 
 For further information, please call: (512) 450-3765 
         
           Chapter 71. Public Information 
  
  Adoption Registry 
 
  40 TAC sec.sec.71.21-71.28 
 
  The Texas Department of Human Services (DHS) adopts amendments to 
sec.sec.71.21-71.28 concerning adoptin registry, without changes to the proposed 
text as published in the May 29, 1992, issue of the Texas Register. 
 Justification for the amendments is that they will contain clearer, more up-to-
date information. 
 The amendments will function by reflecting relevant organizational changes and 
a change of address, clarifying the intent of certain passages, and deleting 
obsolete material. 
 No comments were received regarding adoption of the amendments. 
 The amendments are adopted under the Human Resources Code, Title 2, Chapter 49, 
which authorizes the department to establish an adoption registry. Adoption 
Registry. 
 
  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 October 15, 1992. 
 TRD-9213965 
  Nancy Murphy 
 Agency Liaison, Policy and Document Support 
 Texas Department of Human Services 
    Effective date: November 15, 1992 
 Proposal publication date: May 29, 1992 
 For further information, please call: (512) 450-3765