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 I. Office of the Governor Chapter 5. Energy Office Subchapter C. Energy Conservation Design Standard 1 TAC sec.5.301 The Governor's Energy Office adopts an amendment to sec.5.301, with changes to the proposed text as published in the July 31, 1992, issue of the Texas Register (17 TexReg 5315). The amendment is adopted in order to update the current design standard for new construction and major renovation projects. The change to the amendment is to include a table in the Design Standard of minimum performance ratings for gas fired absorption water chilling packages. No performance ratings for absorption equipment were included in earlier versions of the standard because industry consensus standards were in the process of being updated by the American Refrigeration Institute (ARI), the industry standards making body for air conditioning and refrigeration equipment. The Governor's Energy Office received one response from Southern Union Gas on the proposed amendment during the public review period which ended on August 31, 1992. Comments were received regarding an inadvertent bias for electric technologies and against gas technologies in the standard. One comment recommended a requirement to consider engine driven refrigeration systems, either in addition to variable speed (electric motor driven) compressors or as an alternative form of variable speed compression. Another comment suggested a change in efficiency measurement to COP's rather than EER's and urged the use of source BTU's rather than site BTU's to account for inefficiencies of average electrical production, transmission, and distribution systems. The Governor's Energy Office responded by soliciting comments on proposed minimum performance ratings for absorption water chilling packages from all of the known absorption chiller manufacturers, and will include this table in the next publication of the Design Standard. The revised standard will no longer require that electrically-driven variable speed compressors be considered for building cooling; instead, it will require that whatever equipment is used, minimum performance values given in the standard must be met. No action was taken on the issue of source versus site BTU's. The issue does not apply to Section 10 of the standard since it is component based and addresses only equipment efficiency ratings. However, this issue does apply to sec.13, the Building Energy Cost Budget Method, where the energy cost rather than site energy use is used to determine a design's compliance with the standard. Through energy pricing, this implicitly accounts for the inefficiencies of electrical production, transmission, and distribution. The amendment is adopted under Title 4, the Government Code, sec.447.004, which provides the Governor's Energy Office with the authority to adopt, publish and revise energy conservation standards for all new state buildings and major renovations. sec.5.301. Energy Conservation Design Standards for New State Buildings. (a)-(b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 21, 1993. TRD-9318026 Harris E. Worcester Director Governor's Energy Office Effective date: February 11, 1993 Proposal publication date: July 31, 1993 For further information, please call: (512) 463-1931 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 11. Herbicide Regulations 4 TAC sec.sec.11.3-11.10 The Texas Department of Agriculture (the department) adopts amendments to sec.11.3 and sec.11.6 and new sec.sec.11.4-11.5 and 11.7-11.10. Sections 11.4, 11.7, and 11.8 are adopted with changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7831). Sections 11.3, 11.5, 11.6, 11.9, and 11.10 are adopted without changes and will not be republished. The amendments and new sections are adopted to clarify provisions relating to the application of regulated herbicides, licensing and recordkeeping requirements for dealers and users of regulated herbicides, and requirements for inspection and licensing of application equipment used to apply regulated herbicides. In addition, new sec.11.7 provides new recordkeeping requirements for dealers, new sec.11.8 changes the permit fee for applying regulated herbicides, and new sec.11.9 adds requirements for special county provisions. Section 11.4 is adopted with changes. The definition of dealer has been corrected to be consistent with the definition of a dealer in the Texas Agriculture Code, Chapter 75. Section 11.7 is adopted with changes. The information required to be maintained by dealers concerning distribution of regulated herbicides has been changed to be consistent with the recordkeeping requirements for dealers required to be licensed under the Texas Agriculture Code, Chapter 76. Further language has been changed to clarify that dealers are no longer required to report all sales of regulated herbicides. Section 11. 8 has been adopted with changes. The government employee exemption has been moved to subsection (d) as governmental employees are generally not licensed as commercial applicators. In addition, other changes have been made to this section for the purpose of further clarifying the general requirements pertaining to applicators of regulated herbicides, to make the recordkeeping requirements for applicators consistent with the requirements of the Texas Agriculture Code, Chapter 76, to clarify equipment requirements, and to better distinguish between the general requirements for commercial applicators and those for other persons. General comments of support for the regulations, as proposed were submitted by the Texas Farm Bureau, the Texas Vegetation Management Association, the Texas Agricultural Experiment Station, the State Alliance for Food and the Environment, Burlington Northern Railroad, Dupont Vegetation Management, and several individuals. The Texas Agricultural Aviation Association (TAAA) also submitted comments generally in support of the proposed regulations. In addition, TAAA submitted comments regarding some specific provisions. In regard to sec.11.3, TAAA commented that making the distance restrictions apply to all other directions is too restrictive and will unnecessarily prohibit the use of herbicides on many acres of land in need of its use. The department disagrees that this language should be changed. The department feels that consideration of the distance to susceptible vegetation in all other directions is consistent with the intent of this chapter, which is to prevent a hazard to desirable vegetation through drift or uncontrolled application. The department does not believe that this will restrict the use of herbicides, but will prevent the possibility of susceptible vegetation from being adversely affected in marginal situations. Further, the department feels this requirement is necessary to prevent potential adverse effects on susceptible vegetation close to treated areas. In regard to sec.11.8(a)(1), TAAA requested clarification so that this section will not be interpreted to prohibit the use of a turbine powered aircraft. The department agrees and has changed the language to clarify that only the use of turbine or blower-type ground equipment to spray regulated herbicides is prohibited. In regard to adopted sec.11.8(b)(3)(B), the department has made a change in language requiring reinspection after reinstallation at the request of TAAA, and to conform with statutory requirements. The subsection as adopted correctly states that reinspection after reinstallation is only required if a period of more than 30 days has lapsed. The amendments and new sections are adopted under the Texas Agriculture Code, sec.74.004, which provides the department with the authority to set by rule and collect a fee for a herbicide dealers license; sec.75.005, which authorizes the department to adopt rules prescribing information to be requested of dealers and allows the department to request submission of such records by a licensee; sec.75.006, which authorizes the department to set the cost of spray permit fees and to allow exemptions from the permit requirement and payment of permit fees; sec.75.012, which authorizes the department to adopt rules for the application of regulated herbicides; sec.75.013, which authorizes the department to adopt rules prescribing the information to be kept by applicators; sec.75.014, which authorizes the department to require a showing of proof of financial responsibility by commercial applicators; sec.75. 016, which authorizes the department to collect a fee for inspection and licensing of application equipment; sec.75.017, which authorizes the department to regulate the use of application equipment; and sec.75.018, which authorizes the department to consider requests for the revision of a rule, exemption from a requirement of Chapter 75, or prohibition of the spraying of a regulated herbicide in an area, and to adopt rules regarding such requests, as appropriate. sec.11.4. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Applicator-An applier of regulated herbicides; any person applying regulated herbicides in this state by aircraft, ground, or hand spraying equipment who has been licensed or certified in accordance with the Texas Agriculture Code, Chapter 76, and regulations adopted thereunder. Commercial applicator -A custom applier; an applicator of regulated herbicides licensed in accordance with the requirements of the Texas Agriculture Code, sec.76.108 and sec.7.13 of this title (relating to Commercial Applicator License.) Commissioner-The commissioner of agriculture of the State of Texas, or his designee. Dealer-Any person who sells, wholesales, distributes, offers or exposes for sale, exchanges, barters, or gives away within or into this state any regulated herbicides in a container having a net capacity of more than 16 fluid ounces, unless such container has a capacity not to exceed one gallon, contains a substance with a concentration of regulated herbicides not exceeding 10% by volume, and bears a label with the statement "for lawn use only". Department-Texas Department of Agriculture. Equipment-Any type of ground, aquatic, or aerial equipment or device employing motorized, mechanical, or pressurized power and used to apply a regulated herbicide to land or to anything that may be inhabiting or growing on the land. The term does not include a pressurized hand-sized apparatus used to apply a regulated herbicide or any equipment or device for which the person applying the regulated herbicide is the source of power or energy used in making the application. Formulation-The mixture of active and inert ingredients for practical use as a pesticide, such as wettable powder, granular and emulsifiable concentrate. Person-Any individual, firm, partnership, association, corporation, company, joint stock association, or body politic, or any organized group of persons whether incorporated or not; including any trustee, receiver, assignee, or similar representative thereof. Pesticide-A substance or mixture of substances intended to prevent, destroy, repel, or mitigate any pest, including, but not limited, to fungicides, herbicides, insecticides, nematocides, rodenticides, desiccants, defoliants, or plant growth regulators. Regulated herbicide -All herbicide products containing the active ingredients 2,4-dichlorophenoxyacetic acid (2,4-D), 2,4, 5- trichlorophenoxyacetic acid (2,4,5-T), 2-methyl-4-chlorophenoxyacetic acid (MCPA), 2-(2,4,5-trichlorophenoxy) propionic acid (Silvex), polychlorinated benzoic acids, either alone or in mixtures, and such other substances used for weed control as the commissioner shall from time to time determine after public hearing to present a hazard to desirable vegetation through drift or other uncontrolled applications. Volatility-The tendency of a substance to change from a liquid or solid to a gaseous state. It is the movement of a pesticide in a gaseous state in the air from surface water, soil, or vegetation. For example, the volatility of different types of regulated herbicides under comparable environmental conditions is as follows: (A) sodium and ammonium salts. These are generally not considered as volatile, and are usually water-soluble. The ammonium salts are rarely found on the market while the sodium salts are marketed for use by homeowners and on asparagus; (B) amine salts. These are generally not considered as volatile. The alkylamines include monomethylamine, dimethylamine, isopropylamine, triethylamine, and others. The alkylanolamines include diethanolamine, triethanolamine, and mixed isopropanolamines; (C) highly volatile esters. These include methyl, ethyl, butyl, isopropyl, octylamyl, and pentyl esters containing various concentrations expressed in pounds of acid equivalent per gallon; and (D) low-volatility esters. These contain esters that suppress volatility. Formulations include butoxyenthanl, propylene glycol, tetrahydrofurfuryl, propylene gycol butyl ether, butoxy propyl, ethylhexyl, and isooctyl ester. These contain various pounds of acid equivalent per gallon. Weed-Any plant growing where not wanted. sec.11.7. Dealers. (a) Requirements. Sales by retailers, distributors, wholesalers, warehouse agents, and manufacturers of regulated herbicides, require the dealer to hold a valid dealer's license before any such sales are made. (b) License. Any dealer distributing or selling regulated herbicides in this state, or out-of-state dealers distributing or selling regulated herbicides in this state, must have a dealer's license and record all sales, regardless of whether or not the regulated herbicides sold or distributed are to be used in a regulated or unregulated county. (c) Multiple business locations. In the event a person operates a business at more than one location in the State of Texas under the same firm name, a separate dealer's license shall be required for each location, unless the applicant's principal office keeps and reports satisfactory records for all subsidiary offices, in which case, the applicant shall pay one fee. (d) Sales records. All dealers are required to make and retain for a period of two years from the date of sale, a record of distribution or sale of regulated herbicides. Such records of each sale shall consist of the following information: (1) the name, address, licensed or certified applicator number, or dealer license number of the person to whom the regulated herbicide was sold or distributed; (2) the date of distribution; (3) the brand name and EPA registration number; (4) the quantity of regulated herbicide distributed; and (5) if the distribution is made to a nonlicensed person acting under the authorization of a certified or licensed applicator: (A) the name of the nonlicensed person to whom the regulated herbicide is made available and the address of the residence or principal place of business of that person as stated on a valid driver's license or other current state, county, or tribal identification document issued to the nonlicensed person; and (B) verification that the regulated herbicide is made available to a nonlicensed person. This verification shall be accomplished by a statement signed by the licensed or certified applicator that the nonlicensed person is the duly authorized representative of the licensed or certified applicator and that the regulated herbicide made available to the nonlicensed person will only be used by a certified or licensed applicator or under the direct supervision of the licensed applicator. This statement may be made on a form prescribed by the department. (e) Sales record to the department. Upon written request by the department, a licensed dealer shall submit records of sales or distribution of regulated herbicides. (f) Fees for a dealer's license. All dealers, as defined in sec.11.4 of this title (relating to Definitions), shall pay a fee of $100 upon submitting an application for a dealer's license. sec.11.8. Applicators. (a) General requirements. The following requirements are applicable to all persons applying regulated herbicides. (1) The use of any turbine or blower-type ground equipment to spray regulated herbicides is prohibited. (2) The applicator shall keep the following records for a period of two years: (A) the date and time of day each application started; (B) the name of the person for whom the application was made (owner or lessee); (C) the location of the land where the application was made, stated in a manner that would permit inspection by authorized parties; (D) the regulated herbicide applied, including: (i) product name; (ii) its EPA registration number; (iii) rate of product per unit; and (iv) total volume of spray mix, dust, granules, or other materials applied per unit; (E) the name of the pest for which it was used; (F) the site treated (for example: name of crop, kind of animal, etc.); (G) total acres or volume of area treated; (H) wind direction, velocity, and air temperature; (I) the FAA "N" number of aerial application equipment, or identification number of other types of application equipment, or decal number affixed to the application unit; and (J) the name and department license number of the applicator. (b) Commercial applicators. (1) Spray permits. No person shall apply regulated herbicides as a commercial applicator to a total of more than 10 acres in any one calendar year without first obtaining a permit for such application. A blanket permit may be issued to a licensed or certified applicator who shall submit to the department a supplemental report of each regulated herbicide application within seven days following such application. (2) Permit fees. A permit fee for acreage intended to be sprayed shall be submitted with an application for a spraying permit. The permit fee shall be $1.00 for any amount of land up to 100 acres and an additional $1.00 for each increment of 100 acres, or fraction thereof. (3) Equipment licensing and inspection. Equipment license decals must be attached in a conspicuous place to each piece of equipment used to spray regulated herbicides. (A) Equipment license. All equipment used to spray regulated herbicides for hire must be licensed by the department before such equipment is used to spray regulated herbicides. A license will not be issued until the proof of financial responsibility has been filed with the department as required by the Texas Agriculture Code, sec.75.014. (B) Inspection. All ground equipment used to spray regulated herbicides for hire must be inspected by the department each year before the equipment is used. All equipment used on any aircraft in the application of regulated herbicides must be inspected every 30 days when installed upon said aircraft and must be inspected before use after reinstallation, if a period of more than 30 days has lapsed since the last inspection. An inspection fee of $20 for each piece of equipment shall be paid to the department upon each inspection. (C) All persons engaged in the application of regulated herbicides for hire must be licensed by the department under sec.7.13 of this title (relating to Commercial Applicator License) and meet the requirements of financial responsibility under sec.7.14 of this title (relating to Commercial Applicator Proof of Financial Responsibility) or of the Structural Pest Control Board as provided by the Structural Pest Control Act, Texas Civil Statutes (Article 135b- 6). (c) Persons other than commercial applicators. (1) Permits. (A) Permits or fees are not required if a person does not spray a total of more than 10 acres during any one calendar year. (B) All persons, except those applying to lawns, who apply regulated herbicides to less than 10 acres in any one calendar year must give notice of each application to the department prior to such application. (2) Permit fees. Except as otherwise provided in paragraph (1) of this subsection, a permit fee of $1.00 for any amount of land up to 100 acres and an additional $1.00 for each increment of 100 acres, or fraction thereof, must be paid before a permit for spraying will be issued. (3) Equipment. Ground application equipment used by persons other than commercial applicators need not be inspected or licensed. Aircraft equipment used by persons other than commercial applicators must be inspected and licensed but proof of financial responsibility is not required for the equipment or the person. (d) Government employee spray permit fee exemption. Employees of governmental entities that apply regulated herbicides as part of their official duties are exempted from spray permit fees. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 22, 1993. TRD-9318100 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: February 12, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 463-7583 4 TAC sec.sec.11.4-11.5, 11.7-11.10 The Texas Department of Agriculture (the department) adopts the repeal of sec.11.4, 11.5, 11.7-11.10, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register. The department, in a separate submission, has adopted new sections to replace those repealed. The repeal is adopted to allow the department to replace the repealed sections with new sections more clearly setting out requirements for application of regulated herbicides, licensing requirements for dealers of regulated herbicides, and requirements for inspection and licensing of application equipment used to apply regulated herbicides. The sections are also repealed to adopt new recordkeeping and permit requirements and to eliminate requirements that are no longer necessary due to changes in use requirements for certain herbicides. The repeal deletes the sections in Chapter 11 concerning definitions, general requirements, dealers, appliers, special requirements for mistblowers, and penalties in order to replace them with new sections as previously stated. No comments were received regarding adoption of the repeals. The repeals are adopted under the Texas Agriculture Code, sec.74.004, which provides the department with the authority to set by rule and collect a fee for a herbicide dealers license; sec.75.005, which authorizes the department to adopt rules prescribing information to be requested of dealers and allows the department to request submission of such records by a licensee; sec.75.006, which authorizes the department to set the cost of spray permit fees and to allow exemptions from the permit requirement and payment of permit fees; sec.75. 012, which authorizes the department to adopt rules for the application of regulated herbicides; sec.75.013, which authorizes the department to adopt rules prescribing the information to be kept by applicators; sec.75.014 which authorizes the department to require a showing of proof of financial responsibility by commercial applicators; sec.75.016, which authorizes the department to collect a fee for inspection and licensing of application equipment; sec.75.017, which authorizes the department to regulate the use of application equipment; and sec.75.018, which authorizes the department to consider requests for the revision of a rule, exemption from a requirement of Chapter 75, or prohibition of the spraying of a regulated herbicide in an area, and to adopt rules regarding such requests, as appropriate. 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 January 22, 1993. TRD-9318099 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Effective date: February 12, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 463-7583 Part II. Texas Animal Health Commission Chapter 35. Brucellosis 4 TAC sec.35.4 The Texas Animal Health Commission adopts an amendment to sec.35.4, concerning entry and change of ownership, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8369). The amendment is necessary to allow non-vaccinated female cattle to enter Texas and be vaccinated on arrival at a premise in Texas. Non-vaccinated female cattle between four and 12 months of age entering Texas from other states from a premise of origin, have the option of being vaccinated on arrival at a premise in Texas provided the animals are vaccinated at no expense to the state and the vaccination is done within five days after the cattle arrive at their Texas destination. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 163, which provides the Commission with authority to adopt rules and sets forth the duties of this Commission to control disease. 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 January 22, 1993. TRD-9318115 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 16, 1993 Proposal publication date: December 4, 1993 For further information, please call: (512) 479-6697 Chapter 41. Fever Ticks 4 TAC sec.41.1 The Texas Animal Health Commission adopts amendments to sec.41.1 without changes to the proposed text as published in the December 4, 1992 issue of the Texas Register (17 TexReg 8369). The amendment is necessary to clarify defined regulatory language. The terms defined in this rule provides the public with regulations that are written more clearly and in more understandable language. No comments were received regarding adoption of the amendments. The amendments are adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 167. These statute provides the Commission with authority to adopt rules and sets forth the duties of this Commission to control disease. 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 January 22, 1993. TRD-9318116 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 16, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 479-6697 4 TAC sec.41.2 The Texas Animal Health Commission adopts an amendment to sec.41.2, concerning quarantine line; defining and establish eradication areas, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8259). The amendment is necessary to clarify regulatory language. The rule clarifies how livestock, that are located within the fever tick quarantined area can be moved by the owner. No comments were received regarding adoption of the amendment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapters 161 and 167, which provides the Commission with authority to adopt rules and sets forth the duties of this Commission to control disease. 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 January 22, 1993. TRD-9318117 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 16, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 479-6697 Chapter 55. Swine 4 TAC sec.55.9 The Texas Animal Health Commission adopts an amendment to sec.55.9, concerning feral swine, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8259). The amendment is necessary to provide a means for a trapper to move trapped feral swine to a holding pen awaiting movement to slaughter. Feral swine trappers will have an additional alternative for movement of feral swine after trapping by allowing them to be moved to a holding facility before movement to slaughter. One comment was received from a rancher regarding adoption of the amendment. The commenter believes it will benefit the trappers to have an additional alternative to move feral swine to a holding facility prior to slaughter. The agency does not disagree with the comment. The amendment is adopted under the Agriculture Code, Texas Civil Statutes, Chapter 161, which provides the Commission with authority to adopt rules and sets forth the duties of this Commission to control disease. 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 January 22, 1993. TRD-9318118 Terry Beals, DVM Executive Director Texas Animal Health Commission Effective date: February 16, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 479-6697 TITLE 7. BANKING AND SECURITIES Part VI. Credit Union Department Chapter 95. Texas Share Guaranty Credit Union Finance and Accounts 7 TAC sec.95.304 The Credit Union Commission adopts the repeal of sec.95.304, concerning conversion from other guaranty programs, without changes to the proposed text as published in the November 24, 1992, issue of the Texas Register (17 TexReg 8225). Texas Share Guaranty Credit Union (TSGCU) can no longer provide share insurance to credit unions in Texas; therefore, this rule which permitted credit unions to convert from other guaranty programs to TSGCU's share insurance program is not necessary. This rules was no longer required; therefore, it will neither be amended nor replaced. One comment was received on this rules from United Credit Union which did not provide any specific rationale as to why the credit union was against its adoption. The repeal is adopted under Texas Civil Statutes, Article 2461-11.07, which provide the Credit Union Commission with the authority to adopt reasonable rules necessary for the administration of the Texas Credit Union Act. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 15, 1993. TRD-9317928 John R. Hale Commissioner Credit Union Department Effective date: February 10, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 837-9236 TITLE 13. CULTURAL RESOURCES Part IV. Texas Antiquities Committee Chapter 41. Practice and Procedure Memoranda of Understanding 13 TAC sec.41.15 The Texas Antiquities Committee (Committee or TAC) adopts new sec.41.15, concerning Memoranda of Understanding, with changes to the proposed text as published in the October 23, 1992, issue of the Texas Register (17 TexReg 7502). The new section allows for the appropriate placement in committee rules concerning practice and procedure of a memorandum of agreement between the committee and the Texas Department of Transportation (TxDOT). The new section is also required by the provisions of Texas Civil Statutes, Article 6673g, enacted by Senate Bill 352, 72nd Legislature, 1991. Article 6673g directs the Texas Department of Transportation (TxDOT) to adopt memoranda of understanding (MOU) with applicable environmental resources agencies, including the Committee. Article 6673g further directs each of the environmental agencies to adopt the MOU and all revisions to the memorandum. The MOU provides for the review of TxDOT projects which have the potential to affect historic properties and cultural resources within the jurisdiction of the Committee. The intent of the MOU is for the Committee to assist TxDOT in making environmentally sound decisions and to develop an information system regarding cultural resources. Increased coordination ensures that historic properties and archeological sites are given full consideration in a uniform and timely manner. A joint public hearing was held by TxDOT and the Committee September 14, 1992. A representative of the Lone Star Chapter of the Sierra Club attended the hearing, presented oral testimony concerning the MOU, and submitted written comments following the public hearing. No other comments were received. The organization supports the improved communication between the agencies and believes that the MOU is an improvement, in that respect. However, the group expressed concerns for enforcement of the agreement and the need to ensure that it is properly implemented. Three specific recommendations made by the Sierra Club and the Committee's responses follow. First, the Sierra Club requests modifications to the definition of the term "Project development". The requested modifications expand the definition to include all project studies prior to right-of-way designation or acquisition. The TxDOT and the Committee disagree. It is the intention of TxDOT to complete all studies and surveys necessary to properly evaluate the impact of a project on natural and cultural resources early in the planning process. TxDOT and the Committee, however, believe that the definition of the term "project development" included in the MOU is appropriate since under certain circumstances studies cannot be completed or performed prior to acquisition of right-of-way as authorized by federal law and denial of access by property owner. When a property owner denies access to his or her property, TxDOT's ability to perform early studies can be significantly hampered. Second, the group recommends changes to subclause sec.15.7(b)(1)(D)(i)(v) of this title, concerning archeological sites found after award of contract. This recommendation requires TxDOT and the review agency to prepare a plan of action for reroute alternatives and terminated projects. The Committee and TxDOT disagree with their comment. Should an archeological site be found during the course of construction, all feasible measures to minimize harm will be considered. However, once construction has commenced, the feasibility of selecting an alternative route canceling the project is greatly reduced. Third, the Sierra Club further suggests the addition of a new subclause to be named "Failure to report." Paraphrased, the suggested subclause states that the review agency shall give notice to TxDOT and the highway project shall cease until inadequacies are corrected. In the organization's opinion, the addition clarifies the Committee's authority to require timely and adequate testing and reporting data from TxDOT. To address these concerns, a new clause is included in the MOU. The final adoption, therefore, is made with changes in the form of a new clause sec.15. 7(b)(1)(D)(iv) of this title, concerning resolution of objections. The clause provides for reviewing agency to timely object to plans submitted for review, or proposed actions, and for TxDOT and the reviewing agency to enter in consultation to resolve the objection. If the objection cannot be resolved, the reviewing agency may terminate consultation and invoke Dispute Resolution proceedings. The new section is adopted under the Natural Resources Code, Title 9, Chapter 191 (revised by Senate Bill 231, 68th Legislature, 1983, and by House Bill 2056, 70th Legislature, 1987), sec.191.052, which provides the Texas Antiquities Committee with the authority to promulgate rules and require contract or permits conditions to reasonably effect the purposes of Chapter 191. sec.41.15. Memoranda of Understanding. (a) Introduction. It is the public policy and in the interest of the State of Texas to locate, protect, and preserve archeological sites and historic properties, situated on public lands. Furthermore, it is in the public interest to enter into agreements to provide for timely and efficient construction of transportation facilities, reservoirs, public buildings, parks, and infrastructure. Memoranda of understanding are formal agreements which provide for the preservation of the environment and cultural resources; wise, productive use of the cultural and natural resources; good stewardship of publicly owned historic landmarks; and protection of public and private investment in historic properties. (b) Memoranda of understanding. Memoranda of understanding are mutual agreements entered into in order to better implement programs and policies for the preservation of historical and archeological resources. A memoranda of understanding (MOU) is a formal mechanism which fosters the joint review of the impact of public projects and the improved management of State Archeological Landmarks (SALs). Increased coordination and communication between agencies and political subdivisions ensures that historical properties and archeological sites are given full consideration in a uniform and timely manner. (1) Texas Department of Transportation (TxDOT). (A) Need for agreement. (i) It is the practice of the TxDOT to: (I) investigate fully the environmental impacts of TxDOT transportation projects, coordinate these projects with applicable state and federal agencies, and reflect these investigations and coordinations in the environmental documentation for each project; (II) base project decisions on a balanced consideration of the need for a safe, efficient, economical, and environmentally sound transportation system; (III) complete public involvement and a systematic interdisciplinary approach as essential parts of the development process for transportation projects; and (IV) mitigate project impacts to provide environmentally sound roadway projects where such mitigation is feasible and prudent and where such mitigation is agreed upon by appropriate agencies. (ii) In order to pursue this policy, TxDOT, the Texas Historical Commission (THC), and the Texas Antiquities Committee (Committee) have agreed to develop the MOU, which will supersede TxDOT's MOU with the Committee which became effective on January 5, 1972. (iii) Senate Bill 352, enacted by the 72nd Legislature, directs TxDOT to adopt a memoranda of understanding with applicable environmental resources agencies. (iv) The rules for coordination of state-assisted transportation projects developed by the TxDOT, and published in the June 11, 1991, issue of the Texas Register (16 TexReg 3197) underline the need for and importance of comprehensive environmental coordination for all transportation projects. (v) It is the intent of this MOU to provide a formal mechanism by which the THC and the Committee may review TxDOT projects which have the potential to affect historic properties (cultural resources) within the jurisdiction of THC and the Committee, and to develop a system by which information held by TxDOT, THC, and the Committee may be exchanged to their mutual benefit. (vi) This memorandum supersedes that memorandum of understanding executed by TxDOT, THC, and the Committee on January 31, 1992, and that memorandum of understanding is of no further force of effect. (B) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (i) Antiquities Code of Texas (ACT)-Designates the Committee as the legal custodian of all cultural resources, historic and prehistoric, within the public domain of the State of Texas, and the body which issues antiquities permits, in accordance with Chapter 41 of this title (relating to Practice and Procedure) and as provided in ACT sec.191.054 and sec.sec.191.091-191.098. (ii) Antiquities permit-A permit issued by the Committee in order to regulate site destruction, archeological testing, and archeological excavation. (iii) Archeological excavation (data recovery)-Use of field techniques, including those of archeological testing, but with the goal of addressing specific research issues identified with the site's historic context. Excavation (data recovery) is conducted under an approved data recovery plan developed in consultation with the state historic preservation officer and the Advisory Council on Historic Preservation, following the procedure set forth under 36 Code of Federal Regulation 800, for federal undertakings; or in consultation with the Committee for non-federal undertakings, in accordance with Chapter 41 of this title. (iv) Archeological monitoring -Use of a professional archeologist present on- project when clearing and grubbing or other construction activities are being conducted. Should evidence of archeological remains be encountered, TxDOT will ensure that clearing and grubbing or other construction activities shall cease in the area of the archeological remains until these remains can be assessed and evaluated in accordance with appropriate state and federal laws and regulations. (v) Archeological resource/site -Locations where prehistoric or historic remains are found in a primary deposit, excluding extant standing structures dating from the historic time period. Note that archeological sites can be associated with a historic structure and historic structural ruins can be designated as archeological sites sec.41.5 of this title (relating to Definitions). However, an extant standing structure itself (as contrasted to a historic structural ruin) does not constitute an archeological site in the absence of other associated remains. Prehistoric ruins are considered to be archeological sites. (vi) Archeological survey-Archeological field methods used to locate archeological remains, including on-foot examination of the surface, shovel testing, and subsurface trenching by mechanical means where appropriate. (vii) Archeological testing -Use of field techniques including excavation of holes larger or deeper than those of a shovel test, and including mechanical trenching and removal of artifacts. Archeological field research limited to determination of eligibility for the National Register of Historic Places (NRHP) for federal undertakings, as defined in 36 Code of Federal Regulations 800, or determination of significance for non-federal undertakings, as defined in Chapters 41, 43, and 45 of this title (relating to Practice and Procedure; Procedure; and State Archeological Landmarks). The review agency will determine what level of testing is appropriate under the MOU. The Committee will determine when test phase investigations warrant an antiquities permit. (viii) Committee-The Texas Antiquities Committee. (ix) Cultural resources-A general term synonymous with "historic properties". (x) Eligibility-A site's eligibility for the NRHP as set forth in 36 Code of Federal Regulations 800. (xi) Environmental documents -Decision-making documents which incorporate the results of environmental studies, coordination and consultation efforts, and engineering elements. Types of documents include categorical exclusion assessments, environmental assessments, and environmental impact statements. (xii) Historic property-Any prehistoric or historic district, site building, structure, or object included in, or eligible for inclusion in the NRHP, as defined in 36 Code of Federal Regulations 800.2. (xiii) Historic resource-A feature of the built environment which is potentially eligible for listing in the NRHP as defined in 36 Code of Federal Regulations 60. (xiv) Historic resource survey -Examination of the project for the presence of historic resources. (xv) Mechanical testing-Excavation with backhoe, Gradall, or other heavy equipment in order to locate archeological remains. (xvi) Project development-The planning process of a highway project, which includes engineering design as well as environmental studies and public involvement procedures. Project development generally includes all studies of a project prior to actual construction. (xvii) Review agency-The appropriate review agency for each particular circumstance. THC has jurisdiction over federal undertakings, as defined in 36 Code of Federal Regulations 800, and the Committee has jurisdiction over non- federal undertakings and the issuing of antiquities permits, as provided in ACT, sec.191.054 and sec.191.098. (xviii) Right-of-way-The land provided for a highway, usually including the roadway itself, shoulders, and areas between the roadway and adjacent properties. (xix) Shovel testing-Excavation of test holes which shall measure at least 35 centimeters in diameter and shall be excavated to a basal horizon or bedrock, or to a depth of at least one meter if a basal horizon or bedrock is not reached. This technique is used both in areas where surface visibility is low and in areas where the potential for archeological remains is high. Shovel testing is also used when surface indications of archeological remains are encountered in order to provide a preliminary determination of the depth of the cultural deposits. (xx) State Archeological Landmark-Archeological and historic properties as defined in the ACT, Subchapter D, and identified in accordance with Chapters 41 and 45 of this title. (xxi) Subsurface survey-Mechanical or hand-dug probing of a site or project area during the survey phase to record or examine subsurface deposits, for the collection of archeological or geomorphic data. (C) Responsibilities. (i) TxDOT. (I) The responsibilities of the TxDOT pertain to its functions as a transportation agency, and include the following: (-a-) planning and designing safe, efficient, cost-effective, and environmentally sound transportation facilities, and avoiding, minimizing, or compensating for environmental impacts as far as practible when they are anticipated to occur; (-b-) the timely and efficient construction of transportation facilities, executed in a manner consistent with approved plans or agreements which have been entered into by the department for the protection of the natural environment and cultural sites; and (-c-) the ongoing maintenance of these facilities to provide safe, efficient, and environmentally sound transportation facilities for the traveling public, and dedication to the protection of natural and cultural resources within the jurisdiction of the TxDOT; (-d-) a commitment to the preservation and enhancement of the human environment. (II) Senate Bill 352 which became effective on September 1, 1991, directs TxDOT to adopt an MOU with each state agency that has responsibilities for the protection of the natural environment or for the preservation of historic and archeological resources. (ii) THC. THC, through the Office of the State Historic Preservation Officer (SHPO), regulates the disposition and management of historic properties which are affected by federal undertakings, as described in the National Historic Preservation Act, sec.106, and in 36 Code of Federal Regulations 800. (iii) The Committee. (I) The Committee regulates the disposition and management of archeological landmarks which are affected by non-federal undertakings, as described in the ACT and Chapter 41 of this title. (II) The Committee issues permits for the taking, excavation, restoration, or study of state archeological landmarks as provided in ACT, sec.191.054 and sec.sec.191.091-191.098. (D) Provisions. (i) Procedures for coordination regarding archeological resources. (I) Initial coordination phase. (-a-) TxDOT may combine the initial coordination phase with the archeological survey phase in order to expedite project coordination. In these cases, the review agency will be afforded an opportunity to comment on both the survey methodology and survey results. (-b-) TxDOT will identify projects requiring coordination for archeological resources, as indicated by the level of project documentation. Such projects include: (-1-) any project which, although classified as a categorical exclusion (CE), is judged to have the potential to affect archeological resources; (-2-) all projects requiring issuance of a finding of no significant impact (FONSI), when such a project is judged to have the potential to affect archeological resources; and (-3-) all projects requiring an environmental impact statement (EIS). (-c-) TxDOT will identify projects which are not believed to require individual coordination for archeological sites and will provide THC and the Committee with a list of such projects on a monthly basis. (-d-) TxDOT will begin coordination by conducting a search of the site files at the Texas Archeological Research Laboratory (TARL) as well as site files and survey records held at the THC and the Committee. THC and the Committee will render TxDOT all reasonable assistance in the search. (-e-) TxDOT will request a review of the project by the review agency. TxDOT will submit for review: (-1-) plans, project descriptions, and other documentation required by the review agency for review; (-2-) a statement detailing the result of the site files search, including information on any sites listed in the site files and occurring on or near the project, including a list of properties on or near the project which are listed in the NRHP, or are designated as State Archeological Landmarks (SALs); and (-3-) a statement recommending which portions of the project are to be surveyed, the techniques to be used on each part of the project, and identifying the portions of the project which have high likelihood of yielding archeological remains. (-f-) The review agency will respond within 30 days of receipt of the TxDOT request for review of the project. The response will include: (-1-) a statement of concurrence or non-concurrence with the results of the site files check and the survey recommendations contained in the TxDOT request for review; and (-2-) any other comments relevant to the archeological resources which could be affected by the project. (-g-) TxDOT will include the results of the site files search, survey recommendations, and comments received from the review agency in any environmental assessment or draft EIS written as part of the project, and will present findings at the public hearing, if such hearing is held. (II) Archeological survey phase. (-a-) All projects, and portions of projects, recommended for survey by TxDOT and for which concurrence has been obtained from the review agency during the initial phase of coordination will be the subjects of archeological survey using the methods agreed upon between TxDOT and the review agency. (-b-) An archeological survey will be conducted by a member of the TxDOT professional archeological staff or other archeologist approved by the review agency. (-c-) When the archeological survey has been completed, TxDOT will request a review of the results of the survey. With its request for review, TxDOT will include: (-1-) a letter report or form detailing the results of the survey, including a discussion of any deviations from the methods agreed upon during the initial phase of coordination; (-2-) the project location plotted on 7.5' Series USGS quadrangle maps; (-3-) copies of archeological site survey forms for any new archeological sites discovered during survey; (-4-) copies of archeological site survey forms for any previously recorded archeological sites; (-5-) recommendations regarding archeological testing or archeological monitoring; and (-6-) if deemed necessary, the review agency may request TxDOT to produce a formal report of findings made as a result of a survey phase investigation. (-d-) The review agency will respond within 30 days of receipt of the TxDOT request for review of the survey results and recommendations. The response will include: (-1-) a statement of concurrence or non-concurrence with the results of the site files check and the survey results contained in the TxDOT request for review; and (-2-) any other comments relevant to the archeological resources which could be affected by the project. (-e-) TxDOT will include the results of the archeological survey and recommendations in the environmental assessment or final EIS, if one is prepared. (III) Archeological testing phase. (-a-) All sites and portions of sites recommended for testing by TxDOT, THC, or the Committee will be subjects of archeological testing, using methods agreed upon by TxDOT and the review agency. (-b-) The review agency may send a representative to observe any or all of the testing procedures. (-c-) At the completion of testing, TxDOT will prepare a formal report of the results of testing. (-1-) For sites affected by federal undertakings, the report will include recommendations regarding eligibility for the NRHP, as described in 36 Code of Federal Regulations 800. (-2-) For sites affected by non-federal undertakings, the report will include recommendations regarding the significance of the site and whether designation as an SAL is warranted, in accordance with ACT, sec.191.091 and sec.191.092, and Chapters 41, 43, and 45 of this title. (-d-) TxDOT will send the testing report to the review agency with a request for review. (-e-) THC, in accordance with 36 Code of Federal Regulations 800, will respond to the report within 30 days of receipt of the TxDOT request for review. The response will include: (-1-) a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review; (-2-) a determination of the site's eligibility for listing in the NRHP; and (-3-) any other comments relevant to the archeological site which has undergone archeological testing. (-f-) The Committee, in accordance with Chapter 41 of this title and the ACT, Chapter 191, will respond to the report within 60 days of receipt of the TxDOT request for review. The response will include: (-1-) a statement of concurrence or nonconcurrence with the results of the archeological testing and recommendations contained in the TxDOT request for review; (-2-) a determination of whether the site warrants designation as an SAL; and (-3-) any other comments relevant to the archeological site which has undergone archeological testing. (-g-) TxDOT will include the results of the archeological survey and recommendations in the environmental assessment or final EIS, if one is prepared. (-h-) The Committee may require an antiquities permit be issued for some test phase investigations if the scope of the investigations warrants it. All testing performed by non-TxDOT staff archeologists must be performed under an antiquities permit. (IV) Archeological excavation/data recovery. (-a-) All sites and portions of sites determined to be eligible for the NRHP (for federal undertakings) or significant (for non-federal undertakings) based on consultation with the review agency during the survey phase or testing phase will be the subjects of data recovery. (-b-) TxDOT (or their contracted agent), in consultation with the review agency, will develop a suitable data recovery plan for each eligible or significant archeological site on a case-by-case basis, in accordance with 36 Code of Federal Regulations 800 for federal undertakings and the ACT, Chapter 191 for non-federal undertakings. Final data recovery plans must be approved by the review agency prior to their implementation. (-c-) Results of data recovery will be published as required by 36 Code of Federal Regulations 800 and/or the ACT, Chapter 191. (V) Archeological sites found after award of contract. (-a-) When previously unknown archeological remains are encountered after award of contract, TxDOT will immediately suspend construction that would affect the site. (-b-) A TxDOT archeologist will examine the remains and report the findings to the appropriate review agency. The Federal Highway Administration (FHWA) will enter consultations regarding the disposition of the site or sites for federal undertakings, as required by 36 Code of Federal Regulations 800. (-c-) TxDOT and the review agency will prepare a plan of action to determine eligibility or significance, and/or mitigate the effects on the site. (-d-) TxDOT may continue construction in the affected area upon approval of the review agency. (ii) Procedures for coordination regarding historic resources. (I) TxDOT will identify projects requiring coordination with the review agency for historic resources. Coordination will be required for: (-a-) any project which, although classified as a CE, is judged to have the potential to affect historical resources; (-b-) any project requiring the issuance of a FONSI, when such project is judged to have the potential to affect historic resources; and (-c-) all projects requiring an EIS. (II) TxDOT will identify which projects require individual coordination for historic resources. The TxDOT will provide a list of those projects which do not require individual coordination to the THC and Committee on a monthly basis. (III) For projects requiring individual coordination, TxDOT will conduct a search of available records, references, and resources, including listings of Registered Texas Historic Landmarks (RTHLs), SALs, and properties listed in the NRHP, as well as local historic property survey files on record at the THC. The THC and Committee will render all reasonable assistance to TxDOT in the search. (IV) TxDOT will conduct historic resources surveys to locate historic resources which are potentially eligible for inclusion in the NRHP. (V) For each project requiring individual historic resources coordination with the review agency, TxDOT will provide the following: (-a-) plans, project descriptions, and other documentation as needed; (-b-) a statement detailing the results of the records search; and (-c-) a summary of the results of the historic resources survey, describing all resources: (-1-) listed in or potentially eligible for listing in the NRHP for federal undertakings; or (-2-) which possess historical interest as defined by the ACT, sec.191. 092 for non-federal undertakings. (VI) The review agency will respond within 30 days of receipt of the TxDOT request for review of the project. The response will be in accordance with 36 Code of Federal Regulations 800, ACT, Chapter 191 and Chapter 41 of this title. (VII) TxDOT will include information on historic resources in the environmental assessment or final EIS, if one is prepared. (VIII) All historic resources either listed in or determined eligible for listing in the NRHP (for federal undertakings) or designated SALs (for non- federal undertakings) which are affected by projects will be subject to mitigation of these effects. (IX) TxDOT, in consultation with the review agency, will develop a suitable mitigation plan: (-a-) in accordance with 36 Code of Federal Regulations 800 for historic resources listed in or determined eligible for listing in the NRHP for federal undertakings; or (-b-) in accordance with the ACT, Chapter 191, for historic resources designated as SALs for non-federal undertakings. Final mitigation plans must be approved by the review agency prior to implementation of mitigation efforts. (iii) Artifact recovery and curation. (I) Artifact recovery. (-a-) All artifacts or analysis samples (such as soil samples) that are recovered from survey, testing, or data recovery investigations by TxDOT or their contracted agents must be cleaned, labeled, and processed in preparation for long-term curation. (-b-) Recovery methods must conform to 36 Code of Federal Regulations 800, Committee rules, and/or Council of Texas Archeologists (CTA) guidelines to ensure proper care and curation. (II) Artifact curation. (-a-) TxDOT may temporarily house artifacts and samples during their laboratory analysis research, but all artifacts must be transferred to a permanent curatorial facility within a reasonable time period, to be decided by the review agency. (-b-) All artifacts and samples must be placed at the Texas Archeological Research Laboratory or some regional artifact curatorial repository which fulfills 36 Code of Federal Regulations 800 Committee rules, or CTA curation standards, as approved by the review agency. (-c-) TxDOT is responsible for the curatorial preparation of all artifacts so that they are acceptable to the receiving curatorial repository and fulfill 36 Code of Federal Regulations 79, Committee rules, or CTA curation standards, as approved by the review agency. (iv) Resolution of objections. (I) Should the reviewing agency timely object (within stipulated review period) to any plans provided for review or any actions proposed by TxDOT regarding: (-a-) any phase of coordination for archeological resources including initial coordination, survey, testing, excavation/data recovery, and reporting; (-b-) any phase of coordination for historic resources including initial coordination, historic resources survey, and mitigation; or (-c-) curation of site materials, documentation, and samples, TxDOT and reviewing agency shall enter into consultation to resolve the objection. (II) If the objection cannot be resolved through the consultation process, either TxDOT or the reviewing agency, at any time, may terminate consultation and invoke the provisions of subparagraph (E) of this paragraph. (E) Dispute resolution. (i) In such instances when TxDOT and the review agency are unable to reach a mutually agreeable plan of action regarding survey, testing, determination of eligibility or significance, or mitigation, a good-faith effort will be made to develop a compromise plan. (ii) If TxDOT and the review agency cannot arrive at a compromise plan, the dispute will be resolved in accordance with procedures established under state and federal rules. (I) Federal undertakings will follow the procedures provided in 36 Code of Federal Regulations 800, including consultation with the Advisory Council on Historic Preservation, if necessary. (II) Non-federal undertakings will follow the procedures provided in Chapters 41, 43, and 45 of this title. (F) Review of MOU. This memorandum shall be reviewed and updated no later than January 1, 1997, and every fifth year after that date, as provided for in Senate Bill 352 and Texas Civil Statutes, Article 6673g, sec.3(d). (2) Future adoption of memoranda of understanding. The Committee may, at a later date, adopt by rule memoranda of understanding with additional state agencies, federal agencies, and/or political subdivisions of the State of Texas to better implement programs and policies for the preservation of historic properties and archeological resources situated on public lands. 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 January 6, 1993. TRD-9318048 Kathleen McLaughlin-Neyland Administrative Technician Texas Antiquities Committee Effective date: February 12, 1993 Proposal publication date: October 23, 1992 For further information, please call: (512) 463-6096 TITLE 16. ECONOMIC REGULATION Part VIII. Texas Racing Commission Chapter 309. Operation of Racetracks Subchapter A. General Provisions Operations 16 TAC sec.309.51 The Texas Racing Commission adopts an amendment to sec.309.51, concerning contracts, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8260). The amendment is adopted to ensure that the commission is informed regarding all persons participating in pari-mutuel racing. The amendment requires a racetracks association to obtain the approval of the commission on all contracts regarding the operation of the racetrack. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and under sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 15, 1993. TRD-9318037 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 11, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 794-8461 16 TAC sec.309.56 The Texas Racing Commission adopts an amendment to sec.309.56, concerning stable/kennel area visitors pass, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8260). The amendment is adopted to ensure that the stable and kennel areas of pari- mutuel racetracks are secure, to protect the integrity of pari-mutuel racing. The amendment modifies the procedure for issuing a temporary pass in the stable/kennel area. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and under sec.6.06, which authorize the commission to adopt rules relating to the operation of racetracks. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 15, 1993. TRD-9318036 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 11, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 794-8461 Chapter 311. Conduct and Duties of Individual Licensees Subchapter B. Specific Licensees Licensees for Greyhound Racing 16 TAC sec.311.171 The Texas Racing Commission adopts an amendment to sec.311.171, concerning kennel owners, with changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8261). The amendment is adopted to ensure that pari-mutuel wagering is conducted in a manner that is of the utmost integrity and is safe and humane for the race animals. The amendment requires a kennel owner to document the removal of greyhounds from a pari-mutuel racetrack. Clarifying changes were made to the proposed language in response to public comments. Oral comments were received by the Texas Greyhound Association and by an individual kennel owner. The Texas Greyhound Association commented that the duty of a kennel owner to update the kennel roster was unclear. The commission agreed with the comment and the proposal was changed accordingly. The Texas Greyhound Association also commented on the need to include a return to the greyhound's owner as an option for disposition of a retiring greyhound. The commission agreed with the comment and the proposal was changed accordingly. The individual commenter spoke against the proposal generally on the grounds that it would place an additional paperwork burden on kennels which can ill-afford more staff. The commission disagreed with the comment on the grounds that the reporting requirement can be satisfied with an easy-to-use form developed and provided by the commission. Further, the need to tract greyhounds as they leave the racetracks to reduce the risk of inhumane disposal outweighs the small increase in work for the kennel owners who must comply with the requirement. The amendment is adopted under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rule for conducting racing with wagering and for administering the Texas Racing Act; and under sec.7.02, which authorize the commission to adopt rules specifying the qualification and experience required for licensing in each licensing category. sec.311.171. Kennel Owners. (a)-(i) (No change.) (j) Not later than 30 days before the first day of race meeting, a kennel owner shall submit a completed kennel roster to the racing secretary. The kennel owner shall promptly notify the racing secretary of all changes in the kennel roster throughout the race meeting. Not later than five days after the date a greyhound is removed from the kennel roster, the kennel owner shall provide written notice to the racing judges regarding the removal and the disposition of the greyhound, including the name and address of the owner of the greyhound to which the greyhound is being returned, the name of the racetrack to which the greyhound was moved, the name of the greyhound adoption agency to which the greyhound, or any other information requested by the racing judges. Not later than five days after the last day of a race meeting, the kennel owner shall provide the written notice required by this subsection regarding each greyhound remaining on the kennel roster at the end of the race meeting. 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 January 15, 1993. TRD-9318038 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 11, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter B. Distribution of Pari-mutuel Pools 16 TAC sec.321.119 The Texas Racing Commission adopts new sec.321.119, concerning odd-even, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8261). The new section is adopted to ensure that pari-mutuel wagering; is conducting in a manner that is of the utmost integrity. The new section establishes a new pari-mutuel wager, to odd-even. No comments were received regarding adoption of the new section. The new section is adopted under Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; under sec.11.01, which authorize the commission to adopt rules relating to pari-mutuel wagering. 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 January 15, 1993. TRD-9318039 Paula Cochran Carter General Counsel Texas Racing Commission Effective date: February 11, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 794-8461 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 217. Licensure and Practice 22 TAC sec.sec.217.4, 217.5, 217.6 The Board of Nurse Examiners adopts amendments to sec. sec.217.4, 217.5, and 217.6, concerning licensure and practice, without changes to the proposed text as published in the December 4, 1992, issue of the Texas Register (17 TexReg 8376). These amendments are being adopted to clarify the rules in relation to an applicant writing both the Canadian Nurses Association Testing Service Examination (CNATSE) and the National Council Licensure Examination for Registered Nurses (NCLEX-RN). A Canadian nurse will know upon application for licensure that if he/she is sitting for both the CNATSE and the NCLEX-RN, the prevailing examination will be the NCLEX-RN. This will clarify the licensing procedure for those applicants. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Civil Statutes, Article 4514, sec.1, which provide the Board of Nurse Examiners with the authority to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. 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 January 22, 1993. TRD-9318086 Louise Waddill, Ph.D., R.N. Executive Director Texas Board of Nurse Examiners Effective date: February 12, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 835-8650 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 98. HIV and STD Control Subchapter C. Texas HIV Medication Program General Provisions 25 TAC sec.98. 104, sec.98.105 The Texas Department of Health (department) adopts amendments to sec.98.104 and sec.98.105, concerning the Texas HIV Medication Program, without changes to the text as proposed in the September 22, 1992, issue of the Texas Register (17 TexReg 6536). The sections implement the provisions of the Communicable Disease Prevention and Control Act, Health and Safety Code, sec.sec.85.061-85.066, concerning the establishment of an HIV Medication Program in Texas. The program assists hospital districts, local health departments, public or non-profit hospitals and clinics, nonprofit community organizations, and HIV infected individuals in the purchase of medications approved by the board that have been shown to be effective in reducing hospitalizations due to HIV related conditions. Generally, the sections cover eligibility for participation and medication coverage. The amendments expand coverage of the program to include the drugs Interferon-Alpha and Amphotericin-B for eligible participants and IV Pentamidine for children; and establish the procedures for administering the drugs. No comments were received regarding adoption of the amendments. The amendments are adopted under the Communicable Disease Prevention and Control Act, Health and Safety Code, sec.85.063, which provides the Texas Board of Health with the authority to adopt rules concerning a Texas HIV Medication Program; 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 January 21, 1993. TRD-9318017 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 11, 1993 Proposal publication date: November 22, 1992 For further information, please call: (512) 458-7357 Chapter 133. Hospital Licensing Standards 25 TAC sec.133.21 The Texas Department of Health (department) adopts an amendment to sec.133.21, concerning hospital licensing standards, without changes to the text as published in the November 3, 1992, issue of the Texas Register (17 TexReg 7750). The section adopts by reference the TDH publication titled "Hospital Licensing Standards." The amendment to the text of the section reflects the amendment date. The amendment is to Chapters 2 and 7 are adopted without change and the amendment to Chapter 10 is adopted with changes. The amendment updates references to publications, or portions thereof, which are part of the standards. The publications cover requirements for installations to existing buildings or installations in a new hospital. The changes will coincide with the adoption of the 1991 Life Safety Code by the Joint Commission on Accreditation of Healthcare Organizations and the Health Care Financing Administration in early 1993, and to ensure that hospital architectural drawings submitted to the department for review and approval are reviewed under the same guidelines. The department received two comments concerning proposed rules. The first commenter stated that the list of publications and agencies referenced in Chapter 10 of the standards did not include the Gypsum Association. The department agrees that the Gypsum Association should be included and has done so. The second commenter stated that Appendix A, Tables 9-1, 9-2, and 9-3 concerning essential electrical systems for hospitals should be revised to conform with NFPA 99, 1990, which is referenced in Chapter 10 of the standards. The tables in Appendix A, Tables 9-1, 9-2, and 9-3 were not proposed for amendment; however, the department is revising to correspond with adopted changes in Chapter 10 which is being amended to conform with NFPA Standards in this adoption. The commenters were staff personnel; no other comments were received. The amendment is adopted under the Health and Safety Code, sec.241.027, which provides the Board of Health (board) with the authority to adopt rules to establish and enforce minimum standards for the licensing of hospitals; and sec.12.001, which provides the board with authority to adopt rules for the performance of every duty imposed by law on the board, the department, and the commissioner of health. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 21, 1993. TRD-9318018 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 11, 1993 Proposal publication date: November 3, 1992 For further information, please call: (512) 834-6645 Chapter 169. Veterinary Public Health Animal Shelters 25 TAC sec.sec.169.62-169.65 The Texas Department of Health (department) adopts amendments to sec.sec.169.62-169.65, concerning the training of animal shelter personnel, without changes to the proposed text as published in the October 6, 1992, issue of the Texas Register (17 TexReg 6874). The sections cover definitions, levels of proficiency, prerequisites for certification, and certification of proficiency as an Animal Control Officer. The amendments create a new level of proficiency (instructor), delineate the prerequisites for instructor certification, and prescribe requirements for renewal of an instructor certificate. The amendments also require that basic level animal control officers have the ability to read and write in the English language, that advanced level animal control officers be certified at the basic level for at least one year and provide proof of high school graduation or equivalency, that Administrative Level Animal Control Officers' qualifying employment be as a supervisor or administrator. Also, the amendments remove current employment as a requirement for renewal of a certificate. In addition, the department has made several editorial changes for purposes of clarification. The amendments are adopted under the Health and Safety Code, sec.823.004, which provides the Texas Board of Health with the authority to adopt rules concerning the training of animal shelter personnel; 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 January 20, 1993. TRD-9317963 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 10, 1993 Proposal publication date: October 6, 1992 For further information, please call: (512) 458-7255 Riding Stable Registration Program 25 TAC sec.169.82, sec.169.83 The Texas Department of Health (department) adopts amendments to sec.169.82 and sec.169.83, concerning the registration of riding stables. Section 169.83 is adopted with changes to the proposed text as published in the October 6, 1992, issue of the Texas Register (17 TexReg 6875). Section 169.82 is adopted without changes and will not be republished. The sections cover definitions and standards for the housing, health and disease control, and humane care of rental equines. The amendments add or modify several definitions for the purpose of clarification, recognize natural shelter, and remove the requirements for smoke detectors and certain medical procedures; they prescribe rest periods for working animals, shade for resting animals when the ambient temperature is over 90 degrees Fahrenheit, preventive measures against excessive cold, and weight restrictions for riders. In addition, the department has made editorial changes for purposes of clarification. No comments were received regarding adoption of the amendments. The amendments are adopted under the Health and Safety Code, sec.827.004, which provides the Texas Board of Health with the authority to adopt rules and charge fees to implement a riding stable registration program; 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.169.83. Standards. (a) Housing. (1) When not at work equines may be stabled in box stalls or kept outside in pens or pastures provided they have access to adequate free-choice natural or artificial shelter and fresh, clean water. Artificial shelter, at a minimum, shall consist of a roof and at least one wall to afford protection against precipitation and north winds in inclement weather. The structure shall not have sharp, protruding objects which might cause injury to the animal: i.e., nails, broken boards, etc. (2) (No change.) (3) Equines housed in stalls shall be quartered in clean, dry, well ventilated stalls. Stall floors must be reasonably level. Sufficient bedding of straw, shavings, or other suitable material shall be furnished and changed as often as necessary to maintain them in a clean and dry condition. Bedding for concrete floors shall be at least six inches of materials. Bedding for clay, dirt, or rubber base floor shall be at least three inches of materials. (4) Minimum indoor standards of shelters shall include the following. (A) The ambient temperature shall be compatible with the health and comfort of the animal. (B) Indoor housing facilities shall be adequately ventilated by natural or mechanical means to provide for the health of the animals at all times. (5) Minimum outdoor standards of shelters shall include the following. (A) When sunlight is likely to cause heat exhaustion of an animal tied outside, sufficient shade by natural or artificial means shall be provided to protect the animal from direct sunlight. (B) Natural or artificial shelter appropriate to the local climatic conditions shall be provided as necessary for the health of the animal. (6) Minimum requirements for both indoor and outdoor enclosures shall include the following. (A) The housing facilities shall be structurally sound and maintained in good repair to protect the animals from injury and to contain the animals. (B) Enclosures shall be constructed and maintained so as to provide adequate space. Inadequate space may be indicated by evidence of debility, stress, or abnormal behavior patterns. (b) (No change.) (c) Health and disease control. (1) (No change.) (2) Any one of the following shall deem an equine unfit for work: (A) lameness; (B) untreated sores or wounds; (C) obvious signs of emaciation, dehydration, or exhaustion; (D) loose or improperly fitted shoes, or untrimmed hooves; and (E) body condition score less than five. (3) All rental equines shall be vaccinated on a yearly basis for rabies, eastern equine encephalomyelitis, western equine encephalomyelitis, and tetanus. Optional immunizations may also be administered at the owner's discretion. There must be documentation with adequate equine identification that the vaccinations were performed. Rabies vaccination must be done by or under the supervision of a veterinarian, and National Association of State Public Health Veterinarians Form #50 or its equivalent must be kept on file for each equine. (4) An internal parasite control program, developed in consultation with a veterinarian knowledgeable in equine practice, shall be implemented and records kept of the date and product used for each equine. (d) Humane care. Animals not cared for in a humane manner may be considered abused or neglected. (1) Animals must be provided with adequate food and clean water and while working must have access to clean water at reasonable intervals whether working or at rest. (2) (No change.) (3) Animals kept outside will be provided free-choice protection from weather (shade from the sun, shelter from the rain, snow, and cold) and will be maintained in an area free from accumulations of waste and unsanitary debris. (4) Owners are responsible for the acts of any person or persons to whom they rent equines for riding or driving purposes with respect to all acts where unjustified physical pain, suffering, or death is inflicted upon any equine from their establishment. (5) (No change.) (6) Working animals shall be given rest periods at reasonable intervals. Special attention must be given to animals on very hot days to preclude working when signs of heat stress, dehydration, or exhaustion are present. (7) Rental equines restrained and under saddle or harnessed while awaiting business during the months of May through October, inclusive, must be shaded unless the ambient temperature is less than 90 degrees Fahrenheit. (8) Reasonable and effective protective measures for sick equines, or those with body condition score less than 5, must be taken when the ambient temperature is less than 50 degrees Fahrenheit. (9) A saddle equine rider's size must be reasonably compatible with the size of the equine. In no case shall an equine be rented to a person whose weight, including clothing, exceeds 20% of the horse's weight as determined by scales or weight tape. Scales must be available for determining riders' weights, if necessary. (10) Saddle equines must not be rented to obviously intoxicated persons. (11) If two people ride simultaneously, the weight restriction in paragraph (9) of this subsection must be enforced except when one rider is handicapped. In that instance, the total weight of the riders must not exceed 30% of the equine's weight, and the length of the ride must not exceed 30 minutes, with a 30-minute rest required between rides. (e) Public notice. (1) Each facility (and each carriage) shall prominently display a notice consisting of the following information: "This facility is operated in compliance with the Texas Riding Stable Registration Requirements. Any person observing a violation of the requirements may report the violation to: Texas Department of Health, Bureau of Veterinary Public Health, 1100 West 49th Street, Austin, Texas 78756." (2) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 20, 1993. TRD-9317964 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: February 10, 1993 Proposal publication date: October 6, 1992 For further information, please call: (512) 458-7255 Title 34. Public Finance Part I. Comptroller of Public Accounts Chapter 3. Tax Administration Subchapter O. State Sales and Use Tax 34 TAC sec.3.331 The Comptroller of Public Accounts adopts an amendment to sec.3.331, concerning joint ownership transfers, without changes to the proposed text as published in the November 10, 1992, issue of the Texas Register (17 TexReg 7854). The amendment reformats subsections (a) and (b) for clarity and adds a new subsection (d) on intercorporate services. No comments were received regarding adoption of the amendment. The amendment is adopted under the Tax Code, sec.111.002, which provides the comptroller with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Tax Code, Title 2. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on January 20, 1993. TRD-9317925 Martin Cherry Chief, General Law Section Comptroller of Public Accounts Effective date: February 10, 1993 Proposal publication date: November 10, 1992 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part VI. Texas Department of Criminal Justice Chapter 151. Meeting Procedures 37 TAC sec.151.4 The Texas Department of Criminal Justice adopts new sec.151.4, concerning meeting procedures, without changes to the proposed text as published in the November 24, 1992, issue of the Texas Register (17 TexReg 8227). The rule formalizes the procedures to be followed by persons who wish to address comments on matters on the board agenda to the Texas Board of Criminal Justice at their regularly scheduled meeting. The rule also advises members of the public how they may request that items be placed on an agenda for discussion. The rule establishes sign-in procedures for persons who wish to make statements to the board concerning the board agenda, and advises the public of how they may request that an item be placed on the board agenda for discussion. Although the board received no written comments on this section, county representatives who appeared before the board both at subcommittee meetings and at the board's regular meeting stated their support for the rule. The new section is adopted under the Texas Government Code, sec.492.007, which provides the Texas Board of Criminal Justice with authority to publish rules concerning public comment on matters within its jurisdiction. 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 January 25, 1993. TRD-9318135 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: February 15, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 463-9988 Chapter 152. General Allocation Provisions Subchapter C. Maximum System Capacity of the Institutional Division 37 TAC sec.sec.152.10-152.12 The Texas Department of Criminal Justice adopts new sec. sec.152.10, 152.11, and 152.12, concerning general allocation provisions, without changes to the proposed text as published in the November 27, 1992, issue of the Texas Register (17 TexReg 8269). Final adoption of these rules will create a mechanism for determining maximum unit and system capacities in conformity with the Texas Government Codes, sec.499.001 et seq and the final judgment entered in Ruiz v. Collins. The maximum system capacity of units defined as existing units in the final judgment in Ruiz v. Collins may be increased only as permitted under Section XIII of the Final Judgment. Maximum system capacity may also be increased by building new facilities as permitted under the Texas Government Code and the final judgment, or be acquiring new facilities, or by contracting for the operation of facilities pursuant to the procedures set forth under Section XIII.D.4 of the final judgment. The inmates who commented on the proposed rule opposed it, generally because they believed that the system could not accommodate more inmates. As is required under the Texas Government Code, sec.499.106, the Governor reviewed recommendations from the Texas Department of Criminal Justice Board regarding increases in the inmate population capacity. She sustained the recommended increases, and made a finding that even if community corrections programs and other non-incarceration approaches were utilized more widely, the recommended increases in capacity would be necessary. She therefore forwarded the board's recommendations and findings to the Attorney General. Attorney General Dan Morales reviewed the recommendations of the board and the Governor in conformity with the requirements of the Texas Government Code, sec.499.107. He found the recommended capacity increases in the Institutional Division of the Texas Department of Criminal Justice are in compliance with state and federal law. He therefore recommended and urged the board to make the capacity increases as soon as possible. Based on exhaustive inspection of facilities by staff, negotiations with plaintiff's counsel in Ruiz v. Collins, and the findings of fact and conclusions of law of the presiding judge in Ruiz v. Collins, the agency believes that the capacity increases permissible under these rules may be safely accomplished, and should be implemented. The agency concurs with the recommendations of the Governor and the Attorney General. Therefore, the rules as proposed have been adopted. The new sections are adopted under the Texas Government Code, sec.499.101 et seq, which provides the Texas Board of Criminal Justice with authority to increase maximum capacity of the Texas Department of Criminal Justice- Institutional Division provided that all of the required procedures under that statute have been completed. The Final Judgment in Ruiz v. Collins permits increases upon completion of required tasks. 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 January 25, 1993. TRD-9318137 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: February 15, 1993 Proposal publication date: November 27, 1992 For further information, please call: (512) 463-9988 Chapter 155. Reports and Information Gathering Subchapter A. Construction Matters 37 TAC sec.155.1 The Texas Department of Criminal Justice adopts new sec.155.1, concerning procedures for determination of prevailing wages, with changes to the proposed text as published in the November 24, 1992, issue of the Texas Register (17 TexReg 8211). Under Texas Civil Statutes, Article 5159a, the Texas Board of Criminal Justice has the duty to set prevailing wage rates for state construction projects. These rules are adopted in conformity with the requirements of that statute. The new section establishes by rule the procedures which the Texas Department of Criminal Justice will follow in compiling data to ascertain the prevailing wage rate for each construction project to be done for the department. It also established a mechanism for protests to the wage rate determinations made by the department. The Associated General Contractors-Texas Building Branch, through their counsel, commented that the inclusion of labor and union collective bargaining agreement data in our data gathering process might have a negative fiscal impact on state government. Although the rules organizations concerning wage rates included in collective bargaining agreements, that information is used for comparative purposes only. The wage rates actually used to compute the prevailing wage rate will be obtained from contractors who are preforming jobs in the area in question. The date collected from labor organizations and collective bargaining agreements will not be used as part of the actual computation of prevailing wages. The new section is adopted under Texas Civil Statutes, Article 5159a, which imposes a duty on the Texas Department of Criminal Justice to set wage rates for state construction projects, and under the Texas Government Code, sec.492. 013, which confers authority on the Board of Criminal Justice to adopt rules for the operation of the department. sec.155.1. Procedures to Determine Prevailing Wage Rates. (a) Requirements. The specifications and the contract for each construction project (Project) administered by the Department's Contract Construction Division (Division) shall include a schedule of wages (Prevailing Wage Rates) to be paid on the Project. The Prevailing Wage Rates determined by the Division shall be final and will not be changed except as hereinafter provided. (b) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the contents clearly indicates otherwise. (1) Prevailing wage rates-Wages ascertained by the Division as prevailing in the locality of the Project for each craft or type of worker needed to execute the contract. It is mandatory that the Contractor to whom the contract is awarded, and any subcontractor under such contractor, pay not less than the wages specified by the Prevailing wage Rates in the execution of the contract. (2) Wages-The basic hourly rate of pay plus payments made to or on behalf of employees for health insurance, pension plans, death benefits, and vacation pay. (c) Data gathering procedures. (1) The Division shall conduct a survey of contractors, labor organizations, and other interested parties in the locality in which the Project is performed to determine the wages paid to various classifications of workers and the number of workers receiving such wages. (2) If information is presented to the Division and the Division determines that a survey for a particular locality is not sufficiently representative due to the lack of construction projects of comparable size in that locality or, in the sole judgment of the Division, the survey data is otherwise insufficient, the Division may extend the area of a survey to contiguous counties. If the data is still insufficient, the Division may survey the uniform service region established under Chapter 19, Article V, Rider 120 to the Appropriations Act, 72nd Legislature, First Called Session, (1991), in which the county of the Project is located. (3) To support primary survey data or as a data source when surveys are impractical, the Division may include data from the following: (A) other public contracting authorities constructing, planning to construct, or having recently constructed projects in the locality; (B) the U.S. Division of Labor Wage Determinations; (C) labor and construction related organizations which publish wage rates; (D) relevant data from entities issuing building permits in the locality when such data is beneficial in confirming prevailing rates. (4) The survey procedure is as follows. (A) The Division will prepare master lists of contractors doing business in the locality of Project. (B) The master lists shall be compiled from sources available to the Division including, but not limited to: (i) yellow pages of the telephone book in the locality; (ii) contractor associations and labor organizations which maintain an office in the locality being surveyed; (iii) such other source that will provide the most complete list of all contractors doing business in the locality. If no office is maintained by a contractor association or labor organization in the locality, the Division may contact statewide organizations for names of additional contractors in the locality (C) Master lists shall be as complete as possible but may exclude those contractors whose contribution to the local work force is deemed negligible by the Division. (D) Master lists will contain the following categories: (i) general and building contractors; (ii) site work, paving, grading, excavation contractors; (iii) utility (water, gas, sewer utilities) contractors; (iv) plumbing (building systems) contractors; (v) mechanical (HVAC) contractors; (vi) electrical contractors; (vii) roofing contractors; (viii) painting contractors; (ix) other contractors as applicable to specific projects or localities. (E) Contractors within the listed categories will not be classified as to size of operation. Whether a contractor confines its operations to projects of a particular type or size (residential, commercial, industrial, etc.) will be considered when it is apparent that such specialization is common in the locality and is reflected in the wages prevailing therein. (F) The Division will attempt to contact each contractor and labor organization on the master list to obtain wages being paid and an estimate of the contractor's work force. Contact will be by mail or personal interview using a standard questionnaire devised by the Division. Wage rates established by signed collective bargaining agreements for construction projects within the locality shall be considered in determining Prevailing Wage Rates. (G) Surveys will be conducted in a timely manner for the locality in which a construction project is scheduled to assure that the Prevailing Wage Rates included in the Division's project manual for the Project are accurate. Such survey will be complete within a six-month period prior to publication of the project manual for a particular project. (H) After questionnaires are mailed, the Division will allow 30 days for responses. All data received up to that time will be compiled and a Prevailing Wage Rate determined. (d) Ascertaining prevailing wage rates. (1) Data from the wage rate questionnaires will be compiled and analyzed to determine the prevailing wage rates being paid for the various classifications of labor. Criteria used to determine the Prevailing Wage Rates will include: (A) when 50% or more of workers within a given classification are all reported to have received the exact same wages, that rate will be considered as prevailing for that classification; (B) when more than 50% of workers within a given classification are all reported to have received wages within $1.00 of each other, the weighted average rate will be considered as prevailing. The term "weighted average rate" means the wage rate for a given classification produced by multiplying each rate reported times the number of employees receiving that rate, and dividing the cumulative products by the total number of workers reported for that classification; (C) when a prevailing wage rate cannot be determined by either subparagraph (A) or (B) of this paragraph; the weighted average of all reported wages within a given classification will be considered as prevailing. (2) The project schedule of Prevailing Wage Rates will be determined in accordance with the procedures of subsection (a) of this section, provided that if federal funds are to be used in any aspect of a particular construction project, the wage rates determined by the U.S. Department of Labor shall be used for the entire project. (e) Use of determination. (1) The Prevailing Wage Rates determined for a construction project shall be included in the project manual for that particular project. (2) Following determination of the Prevailing Wage Rates for a particular project, such Prevailing Wage Rates will not be changed unless: (A) it is necessary to add omitted wage rates; or (B) if prior to bid date for that project, substantial evidence is presented to the Division that the survey data on which determination was based does not reflect actual prevailing wages in the relevant labor market in the locality. (f) Protests. The Division will respond to any person who protests a wage rate determination prior to the date bids are received for that project, provided: (1) protest is made in writing listing the rate(s) which is believed to be in error, reasons why the rate(s) is believed incorrect, and the person's name. If the protester is representing an aggrieved person, then that interest must be disclosed and the aggrieved person named; (2) upon receipt of a protest, staff personnel of the Division will review its determination, ascertain whether an error has been made, and report to the protesting person what action, if any, is to be taken; (3) in the event the staff report is not found satisfactory, the protesting person may request that the matter be subjected to review by the Construction Committee of the Texas Board of Criminal Justice, the findings of which shall be final. 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 January 25, 1993. TRD-9318134 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: February 15, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 463-9988 Chapter 160. Receipt and Disbursement of Work Program Residents' Earned Funds 37 TAC sec.160.3 The Texas Department of Criminal Justice adopts an amendment to sec.160.3, concerning distribution of residents' contributions, without changes to the proposed text as published in the December 15, 1992, issue of the Texas Register (17 TexReg 8805). The adoption of these regulations will bring the conditional work program rules of the Texas Board of Criminal Justice in compliance with the requirements of Federal Law for certification by the United States Department of Justice for participation in the private sector prison industry enhancement certification program. The amendment as adopted increases the percentage of the earnings a work program resident must contribute to the compensation to victims of crime fund. No comments were received regarding adoption of the amendment. The amendment is adopted under the Texas Government Code, sec.497.056(b), which requires the Texas Board of Criminal Justice to adopt rules for the conditional work program, including provisions of a contract with program participants to make financial contributions that shall be distributed in conformity with statutory requirements. 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 January 25, 1993. TRD-9318136 Jackee Cox General Counsel Texas Department of Criminal Justice Effective date: February 15, 1993 Proposal publication date: December 15, 1992 For further information, please call: (512) 463-9988 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 31. Case Management Services Subchapter D. Early Childhood Intervention General Provisions The Texas Department of Human Services (DHS) adopts new sec.sec.31.401-31.408 and sec.sec.31.501-31.506, concerning general provisions and reimbursement methodology for the Texas Early Childhood Intervention (ECI) program, without changes to the proposed text as published in the December 11, 1992, issue of the Texas Register (17 TexReg 8618). The justification for the new sections is to implement ECI targeted case management services as Medicaid reimbursable services. DHS is adopting the repeal of existing ECI rules in this issue of the Texas Register. The new sections will function by providing developmentally disabled infants and toddlers with access to medical, social, educational, developmental, and other appropriate services to help them fully participate in the community. No comments were received regarding adoption of the new sections. 40 TAC sec.sec.31.401-31.408 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 January 21, 1993. TRD-9317999 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1993 Proposal publication date: December 11, 1992 For further information, please call: (512) 450-3765 Reimbursement Methodology for the Early Childhood Intervention Program 40 TAC sec.sec.31.501-31.506 The new sections are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 January 21, 1993. TRD-9318000 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1993 Proposal publication date: December 11, 1992 For further information, please call: (512) 450-3765 Chapter 33. Early and Periodic Screening, Diagnosis, and Treatment Subchapter U. Early Childhood Intervention General Provisions The Texas Department of Human Services (DHS) adopts the repeal of sec.sec.33.501-33.508 and sec.sec.33.601-33.606, concerning general provisions and reimbursement methodology for the Texas Early Childhood Intervention (ECI) program, without changes to the proposed text as published in the December 11, 1993, issue of the Texas Register (17 TexReg 8624). The justification for the repeals is to enable DHS to adopt new programmatic and reimbursement methodology rules and rates to implement ECI targeted case management services as Medicaid reimbursable services. DHS is adopting the new rules in this issue of the Texas Register in Chapter 31 of this title (relating to Case Management Services). The repeals will function by enabling DHS to adopt in their place new rules that will provide developmentally disabled infants and toddlers access to medical, social, educational, developmental, and other appropriate services to help them fully participate in the community. No comments were received regarding adoption of the repeals. 40 TAC sec.sec.33.501-33.508 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provides the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 January 21, 1993. TRD-9318001 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1993 Proposal publication date: December 11, 1992 For further information, please call: (512) 450-3765 Reimbursement Methodology for the Early Childhood Intervention Program 40 TAC sec.sec.33.601-33.606 The repeals are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs and under Texas Civil Statutes, Article 4413 (502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. 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 January 21, 1993. TRD-9318002 Nancy Murphy Agency Liaison, Policy and Document Support Texas Department of Human Services Effective date: March 1, 1993 Proposal publication date: December 11, 1992 For further information, please call: (512) 450-3765 Texas Department of Insurance Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. ) The State Board of Insurance of the Texas Department of Insurance, at a public meeting held at 9 a.m. January 6, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted the rules on Procedures for Hearing Appeals as proposed by the Texas Workers' Compensation Insurance Facility (Facility) in a petition filed in the Chief Clerk's Office on October 29, 1992. The petition recommends rules on procedures for hearing appeals by codifying current informal procedures at the Facility and providing alternative procedures for more complex appeals. The codification of the current appeals procedures will be beneficial to the efficient administration of the Facility's appeals process. The Facility's petition (Reference Number W-1092-66) was published in the December 4, 1992, issue of the Texas Register (17 TexReg 8429). The State Board has jurisdiction over this matter pursuant to the Insurance Code Articles 5.76-2 and 5.96. The full text of the rule on procedures for hearing appeals as adopted by the State Board of Insurance is filed with the Chief Clerk under Reference Number W- 1092-66, and is incorporated by reference by Board Order Number 60107. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedure and Texas Register Act. Consistent with Texas Insurance Code, Article 5.96(h), prior to the effective date of this action, the Board will notify all insurers writing workers' compensation insurance. 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 January 22, 1993. TRD-9318073 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: February 13, 1993 Proposal publication date: December 4, 1992 For further information, please call: (512) 463-6327 The State Board of Insurance of the Texas Department of Insurance, at a public hearing held at 9 a.m. on January 6, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted amendments to the Texas Homeowners Policy, Texas Dwelling Policy, Texas Farm and Ranch Policy, and manual rules in the Texas Personal Lines Manual as proposed by staff in a petition filed in the Chief Clerk's Office on November 12, 1992. The petition recommended revising the existing policy forms and endorsements for the Texas Homeowners Policy, Texas Dwelling Policy, Texas Farm and Ranch Policy, and manual rules in the personal lines manual to clarify coverages and rules, to incorporate omissions and to correct errors discovered after the adoption of new policy forms and endorsements and manual effective on July 1, 1992. The amendments do not encompass any new revisions to coverages or manual rules and are intended to correct unintentional errors occurring during the rewriting of the policy forms and endorsements and manuals. Staff's petition (Reference Number P-1092-63-I) was published in the November 24, 1992, issue of the Texas Register (17 TexReg 8231). The State Board has jurisdiction over this matter pursuant to the Insurance Code Articles 5.35 and 5.96. The amendments adopted by the State Board of Insurance are as follows: POLICY FORM CORRECTIONS I. Texas Homeowners Policy Form-A A. Definitions Page 1, item 3 Business day. Replace the word "endorsement" with "policy". B. Section I Property Coverage Page 3, Extensions of Coverage Item 2 Paragraph 2-Loss of Use is "20%" and should be "10%". C. Section I Conditions page 6, item 3.a.(6).(b); (i), (ii), and (iii). Delete "(b) If you elect to make claim under the replacement cost coverage of this policy, this proof of loss shall also state, to the best of your knowledge and belief: (i) The replacement cost of the described dwelling. (ii) The replacement cost of any other building on which loss is claimed. (iii) The full cost of repair or replacement of loss without deduction for depreciation". II. Texas Homeowners Policy Form-B A. Section I exclusions Page 4, 1.f. (1) & (5). Delete under item (1) "inherent vice, wear and tear or deterioration". Add "wear and tear, deterioration or loss caused by any quality in property that causes it to damage or destroy itself". Delete under item (5) "vermin". Add "rats, mice". B. Section I conditions page 7, item 4.b.(2). [graphic] III. Texas Homeowners Policy Form-C A. Section I Property Coverage Page 2, Coverage B (Personal Property) item 4.a. The property is away from the residence premises. Add "of the residence employee" (continue sentence). B. Section I Exclusions Page 5, item 1.i.(1) & (5). Delete under item (1) "inherent vice, wear and tear or deterioration". Add "wear and tear, deterioration or loss caused by any quality in property that causes it to damage or destroy itself". Delete under item (5) "vermin" Add "rats, mice". C. Section I Conditions Page 8, item 4.b. (2). [graphic] IV. Texas Homeowners Tenant Policy Form B A. Section I Property Coverage-Extensions of coverage page 3, item 2 paragraph 2. Delete both places in this paragraph stating "Coverage A (Dwelling)". Add "Coverage B (Personal Property)". B. Section 1 Conditions page 5, item 3.a.(6).(b).(i),(ii), and (iii). Delete (b) "if you elect to make claim under the replacement cost coverage of this policy, this proof of loss shall also state, to the best of your knowledge and belief: (i) The replacement cost of the described dwelling. (ii) The replacement cost of any other building on which loss is claimed. (iii) The full cost of repair or replacement of loss without deduction for depreciation". V. Texas Homeowners Tenant Policy Form C: Section 1 Conditions page 5, item 3.a.(6).(b), (i), (ii), and (iii). Delete (b) "if you elect to make claim under the replacement cost coverage of this policy, this proof of loss shall also state, to the best of your knowledge and belief: (i) The replacement cost of the described dwelling. (ii) The replacement cost of any other building on which loss is claimed. (iii) The full cost of repair or replacement of loss without deduction for depreciation". VI. Texas Homeowners Condominium Policy Form B: Section I Conditions page 6, item 3.a.6. (b), (i), (ii), and (iii). Delete (b) "if you elect to make claim under the replacement cost coverage of this policy, this proof of loss shall also state, to the best of your knowledge and belief: (i) The replacement cost of the described dwelling. (ii) The replacement cost of any other building on which loss is claimed. (iii) The full cost of repair or replacement of loss without deduction for depreciation". VII. Texas Homeowners Condominium Policy-Form C A. Section 1-Property coverage page 3, item 7.b. Delete "7". Add "6". Delete "property in transit up to 10% of the coverage B (Personal Property) limit of liability or $1,000, whichever is greater". Add "property in transit up to the coverage B (Personal Property) limit of liability". B. Section 1 Exclusions page 4, item 1. Delete "Coverage A (Dwelling) or". C. Section 1 Exclusions page 4, item I.i. (1) and (5). Delete under item (1) "inherent vice, wear and tear or deterioration". Add "wear and tear, deterioration or loss caused by any quality in property that causes it to damage or destroy itself". Delete under item (5) "vermin". Add "rats, mice". D. Section 1 Exclusions page 5, item K. Delete "Coverage A (Dwelling) ". Add "Coverage B (Personal Property)". E. Section 1-conditions page 6, item 3.a. (6). (b), (i), (ii), and (iii). Delete (b) "if you elect to make claim under the replacement cost coverage of this policy, this proof of loss shall also state, to the best of your knowledge and belief: (i) The replacement cost of the described dwelling. (ii) The replacement cost of any other building on which loss is claimed. (iii) The full cost of repair or replacement of loss without deduction for depreciation". VIII. Texas Farm & Ranch Policy Endorsement Endorsement No. TFR-071 Mobil Agricultural Machinery and Equipment Coverage- Page 2, item c. 3. b. (1), (2), (3), (1), (2), and (3). Delete. "b. We will reimburse you for replacement cost for covered losses subject to the following conditions. These conditions apply at the time of the loss. (1) If the limit of liability is 80% or more of the full replacement cost of the property, we will pay the repair or replacement cost of the damaged property. Replacement cost means there will not be deduction for depreciation. (2) If the limit of liability is less than 80% of the full replacement cost of the property, we will pay only a proportionate share of the full replacement cost of the damaged property. Our share is equal to: [graphic] (3) If the actual cash value of the property is greater than the replacement cost determined in VIII Texas Farm & Ranch Policy Endorsement, (1) or (2), we will pay the actual cash value up to the applicable limit of liability. In determining the amount of insurance required to equal 80% of the full replacement cost of the property, do not include the value of excavations, underground pipes, and wiring and foundations which are below the surface of the ground. We will pay only the actual cash value of the damaged property until repair or replacement is completed. Repair or replacement must be completed within 365 days after loss. We will extend this time limit for an additional 180 days. We will pay the additional amount claimed under replacement cost coverage, upon completion of repairs or replacement. We will not pay more than the smallest of the following: the limit of liability under this policy applicable to the damaged or destroyed property; the cost to repair or replace that part of the property damaged, with material of like kind and quality and for the same use and occupancy on the same premises; or the amount actually and necessarily spent to repair or replace the property". IX. Texas Dwelling Policy Form 2. A. Perils Insured Against a. Page 2 item 3, Windstorm, Hurricane and Hail (b) We do not cover loss caused by windstorm, hurricane. Delete "and" add "or" (continue sentence). b. Page 3 item 12, Vandalism and Malicious Mischief (b) loss by pilferage, theft, burglary or larceny, but. Add "we" (continue sentence). X. Texas Dwelling Policy Form 3 a. Page 3, under item 9-Exclusions 1A through 1H under general exclusions do not apply to loss caused by this peril. Should read Exclusions 1. a through 1.i. under general exclusions do not apply to loss caused by this peril. [graphic] A. Homeowners 1. Section IV item A.13 Page 9, change "Deductible Amendent Chart " to "Deductible Adjustment Chart". 2. Territorial Multipliers Page 29 Territory #19N, change "1.396" to "1.398". 3. Deductible Adjustment Chart Page 37, "substracted" should be "subtracted". 4. Premium Chart 4 bottom of page, 38 & 39, "Townshouses" should be "Townhouses". 5. Premium Chart 22 Page 44 Item 1 Limit of Liability 250, 000-Initial Farm Premises $1,000, "14" should be "15". 6. Texas Homeowners Policy Endorsements and Forms Page 48 a. Add "Endorsement No. HO-100. Description -Refusal to Renew. Abbreviated Description-Refusal to Renew., Date 3-1-93." b. Add "Endorsement No. HO-195. Description -Amendatory Endorsement. Abbreviated Description-Amendatory Endorsement., Date 3-1-93." B. Dwelling 1. Section VI Item A.3.D. (I), (i), (ii) (iii) Page 12. a. Delete under (i) "The basic premiums shall be reduced 2% rounded to the nearest dollar". Add "The key rate shall be reduced eight cents". b. Delete under (ii)" the basic premiums shall be reduced 1% rounded to the nearest dollar". Add "The key rate shall be reduced four cents". c. Delete under (iii) "the Basic Premium shall be reduced 1% rounded to the nearest dollar". Add "The key rate shall be reduced four cents". 2. Premium chart No. 12 Miscellaneous Property Schedule page 27, change the language in the all other perils column. Delete "Use dwelling premiums". Add "use additional perils/all risk premium charts. Delete "use additional perils premium charts. Add "Use additional perils/all risk premium chart". 3. Add page number 32 ("List of Policy Endorsements and Forms"). C. Farm and Ranchowners 1. Add page number 36 ("List of Policy Endorsements and Forms"). D. Farm & Ranch 1. Premium Chart No. 5 Miscellaneous Property Schedule Page 27, Greenhouses and contents plain glass E.C, Rate of "7.47" should be "8.00". 2. Add page number 32 ("List of Policy Endorsements and Forms"). These amendments will be incorporated into mandatory endorsement Form Numbers HO-195, TDP-028, and TFR-088 to be used by companies until such time as the amendments can be incorporated into the policy forms. This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedures and Texas Register Act. Consistent with Texas Insurance Code Article 5.96(h), prior to the effective date, March 1, 1993 of this action, the Board will notify all insurers writing property and casualty insurance. 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 January 22, 1993. TRD-9318075 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 1, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 463-6327 The State Board of Insurance of the Texas Department of Insurance, at a public hearing held at 11 a.m. on January 6, 1993, under Docket Number 1960, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street, Austin, adopted Refusal to Renew Mandatory Endorsement HO-100, Refusal to Renew Mandatory Endorsement TDP-026, Refusal to Renew Mandatory Endorsement TDP-027, Refusal to Renew Mandatory Endorsement TFR-086, Refusal to Renew Mandatory Endorsement TFR-087, and refusal to Renew Mandatory Endorsement FRO-486 as proposed by staff in a petition filed in the Chief Clerk's Office on November 12, 1992. The petition recommended adopting mandatory endorsements to amend the Refusal to Renew provisions in the Texas Homeowners Policy, Texas Dwelling Policy, Texas Farm and Ranch Policy, and Texas Farm and Ranch Owners Policy incorporating a prohibition of the refusal to renew a residential property policy because of the condition of the premises unless there is a change in the condition(s) of the premises, the insurer has notified the insured of the condition(s), and provided the insured adequate time to correct the condition. The staff's petition (Reference Number P-1092-64-I) was published in the November 24, 1992, issue of the Texas Register (17 TexReg 8231). The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.35 and 5.96. The endorsements as adopted by the State Board of Insurance amend the Refusal to Renew provisions in each policy to read as follows: e. We may not refuse to renew this policy based on the condition of the premises unless: (1) there is a change in the condition(s) of the premises, (2) we have notified you of the condition(s) which may result in our refusal to renew the policy, and (3) we have allowed you adequate time to remedy the condition(s). This notification is made pursuant to the Texas Insurance Code, Article 5. 96, which exempts it from the requirements of the Administrative Procedures and Texas Register Act. Consistent with Texas Insurance Code, Article 5.96(h), prior to the effective date, March 1, 1993, of this action, the Board will notify all insurers writing property and casualty insurance. 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 January 22, 1993. TRD-9318074 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: March 1, 1993 Proposal publication date: November 24, 1992 For further information, please call: (512) 463-6327