ADOPTED RULES 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 22. EXAMINING BOARDS Part XII. Board of Vocational Nurse Examiners Chapter 231. Administration General Practice and Procedure 22 TAC sec.231.17, 231.20, 231.32, 231.50 The Board of Vocational Nurse Examiners adopts amendments to sec.sec.231.17, 231.20 and 231.32 and new sec.231.50, without changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 274). The amendments are adopted to clarify language and bring the sections up to date. Section 231.50 is adopted to comply with House Bill 1009, sec.5, Acts of the 73rd Legislature. The adoption of these rules provides for clarification of the duties of the president and secretary of the Board, minutes of the Board and provides specific information of charges for copies of public information. No comments were received regarding adoption of these rules. The amendments and new rule are adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502114 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Chapter 233. Education The Board of Vocational Nurse Examiners adopts amendments to sec.233.1, concerning Definitions, sec.233.26, concerning Clinical Facility, and sec.233.71, concerning System of Grading, without changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 275). Rule 233.1 is adopted to provide a definition for Director Affidavit as it is required in the application for licensure by examination and endorsement. Rule 233.26 is being adopted to clarify that clinical facilities do not require a survey visit or board approval as it is not cost effective or necessary for programs other than newly approved programs. Rule 233.71 is adopted to remove the indication that a grade 70% is a "C". No comments were received regarding adoption of the amendments. Definitions 22 TAC sec.233.1 The amendments are adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502115 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Operation of a Vocational Nursing Program 22 TAC sec.233.26 The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502116 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Vocational Nursing Education Standards 22 TAC sec.233.71 The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502117 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Chapter 239. Contested Case Procedure The Board of Vocational Nurse Examiners adopts amendments to sec.sec.239.1, 239.11, 239.22, 239.24, 239.25, 239.33, 239.53 and new sec.239.18 and sec.239.19. Section 239.33 is adopted with changes to the proposed text as published in the January 17, 1995, issue of the Texas Register (20 TexReg 276). Sections 239.1, 239.11, 239.22, 239.24, 239.25, 239.53, and new sec.239.18 and sec.239.19 are adopted without changes and will not be republished. In sec.239.33(a) the subsection was reworded to read "not subject to disclosure, subpoena, or other means of legal compulsion". The word "discovery" was inadvertently omitted in the proposal. Subsection (a) (1) "his or her" was changed to "their". The rules are adopted for clarification and to substitute Texas Government Code for Administrative Procedure Act. New sec.239.18 addresses penalties and sanctions the board may impose and sec.239.19 addresses the fines the board has authority to assess. No comments were received regarding adoption of the amendments and new rules. Definitions 22 TAC sec.239.1 The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502118 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Enforcement 22 TAC sec.sec.239.11, 239.18, 239.19 The amendment and new sections are adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502119 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Hearings Process 22 TAC sec.sec.239.22, 239.24, 239.25, 239.33 The amendments are adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. sec.239.33. Release of Information. (a) A complaint and investigation concerning a licensee/applicant and all information and materials compiled by the board in connection with a complaint and investigation are confidential and not subject to disclosure under Texas Government Code Annotated, Chapter 552-Open Records and not subject to disclosure, discovery, subpoena, or other means of legal compulsion for their release to anyone other than the board or its employees or agents involved in licensee discipline except that this information may be disclosed to: (1) the nurse being investigated and/or their authorized representative; (2)-(3) (No change.) (4) peer assistance programs approved by the board under the Health and Safety Code, Annotated, Chapter 467; (5)-(6) (No change.) (b) The filing of formal charges against a licensee/applicant by the board, the nature of those charges, disciplinary proceedings of the board, and final disciplinary actions, including warnings and reprimands, by the board are not confidential and are subject to disclosure in accordance with Texas Government Code Annotated, Chapter 552-Open Records. (c) (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 February 17, 1995. TRD-9502120 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 Reinstatement Process 22 TAC sec.239.53 The amendment is adopted under Texas Civil Statutes, Article 4528c, sec.5(g), which provide the Board of Vocational Nurse Examiners with the authority to make such rules and regulations as may be necessary to carry in effect the purposes of the law. 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 February 17, 1995. TRD-9502121 Marjorie A. Bronk Executive Director Board of Vocational Nurse Examiners Effective date: March 14, 1995 Proposal publication date: January 17, 1995 For further information, please call: (512) 835-2071 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 proposed text as published in the January 6, 1995, issue of the Texas Register (20 TexReg 59). The amended sections implement the provisions of the "Communicable Disease Prevention and Control Act," Health and Safety Code, sec.85.063, Subchapter C, concerning the Texas HIV Medication Program. The program assists hospital districts, local health departments, public or nonprofit hospitals and clinics, nonprofit community organizations, and HIV-infected individuals in the purchase of medications approved by the Texas Board of Health (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 Ganciclovir, Megestrol Acetate and Azithromycin for eligible participants. No comments were received regarding adoption of the amendments. The amendments are adopted under the Health and Safety Code, sec.85.063, which provides the board with the authority to adopt rules concerning the Texas HIV Medication Program; and under Health and Safety Code, sec.12.001, which provides the board with the 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 February 22, 1995. TRD-9502224 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 15, 1995 Proposal publication date: January 6, 1995 For further information, please call: (512) 458-7236 Chapter 169. Veterinary Public Health The Texas Department of Health (department) adopts the repeal of existing sec.sec.169.1, 169.2, and 169.11-169.13, concerning transportation of dead animals and meat and poultry inspection, without changes to the proposed text as published in the September 16, 1994, issue of the Texas Register (19 TexReg 7225). The sections cover identifying vehicles transporting dead animals/administrative penalties; federal regulations on meat and poultry inspection; meat inspection; and administrative penalties. The repeals are necessary to move the sections to a more appropriate location in the Texas Administrative Code. These sections are adopted under Chapter 169 titled "Veterinary Public Health." A portion of the department's Bureau of Veterinary Public Health was combined with the Division of Food and Drug to become the Bureau of Food and Drug Safety (BFDS). Under BFDS, the Meat Safety Assurance Division is responsible for rules regulating the transportation of dead animals, and meat and poultry inspection. Therefore, these sections are being adopted under a new Chapter 221, titled "Meat Safety Assurance." No comments were received regarding adoption of the repeals. Transporting Dead Animals 25 TAC sec.169.1, sec.169.2 The repeals are adopted under the Health Safety Code, sec.433.008, which provides the Commissioner with the authority to adopt rules for the efficient execution of the Texas Meat and Poultry Act; 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 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 February 22, 1995. TRD-9502220 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 15, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 458-7236 Meat and Poultry Inspection 25 TAC sec.sec.169.11-169.13 The repeals are adopted under the Health Safety Code, sec.433.008, which provides the Commissioner with the authority to adopt rules for the efficient execution of the Texas Meat and Poultry Act; 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 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 February 22, 1995. TRD-9502221 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 15, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 458-7236 Chapter 221. Meat Safety Assurance The Texas Department of Health (department) adopts new sec.sec.221.1, 221.2, and 221.11-221.13, concerning transportation of dead animals and meat and poultry inspection. Section 221.11 is adopted with changes to the proposed text as published in the September 16, 1994, issue of the Texas Register (19 TexReg 7225). Sections 221.1, 221.2, 221.12, and 221.13 are adopted without changes and will not be republished. The sections specifically cover identifying vehicles transporting dead animals/administrative penalties; federal regulations on meat and poultry inspection; meat inspection; and administrative penalties. These new sections presently exist in 25 TAC sec.sec.169.1, 169.2, and 169. 11- 169.13 under Chapter 169 titled "Veterinary Public Health." A portion of the department's Bureau of Veterinary Public Health was combined with the Division of Food and Drug to become the Bureau of Food and Drug Safety (BFDS). Under BFDS, the Meat Safety Assurance Division is responsible for rules regulating the transportation of dead animals, and meat and poultry inspection. As appropriate, the new sections are being adopted under a new chapter, titled "Meat Safety Assurance" more appropriately located in the Texas Administrative Code. New sec.221.11 adopts by reference the most recent federal regulations concerning meat and poultry inspection. These federal regulations are preemptive and the State of Texas is required, through its cooperative agreement with the United States Department of Agriculture, to follow the federal regulations. This section includes all the most current federal regulations which the department is required to follow and reflects the departmental reorganization name changes. In addition, this section will enable the department to maintain the mandated "equal to" status required by United States Department of Agriculture. Editorial changes were made for clarification purposes. No comments were received regarding adoption of the new sections. Transporting Dead Animals 25 TAC sec.221.1, sec.221.2 The new sections are adopted under the Health Safety Code, sec.433.008, which provides the Commissioner with the authority to adopt rules for the efficient execution of the Texas Meat and Poultry Act; 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 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 February 22, 1995. TRD-9502222 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 15, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 458-7236 Meat and Poultry Inspection 25 TAC sec.sec.221.11-221.13 The new sections are adopted under the Health Safety Code, sec.433.008, which provides the Commissioner with the authority to adopt rules for the efficient execution of the Texas Meat and Poultry Act; 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 board, the department and the Commissioner of Health. sec.221.11. Federal Regulations on Meat and Poultry Inspection. (a) The Texas Department of Health adopts by reference Title 9, Code of Federal Regulations, Parts 301-381 titled "Mandatory Meat Inspection, Voluntary Inspections and Certification Services, and Mandatory Poultry Products Inspection," as amended. (b) Copies of these regulations are indexed and filed in the Division of Meat Safety Assurance, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756 and are available for public inspection during regular working hours. 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 February 22, 1995. TRD-9502223 Susan K. Steeg General Counsel Texas Department of Health Effective date: March 15, 1995 Proposal publication date: September 16, 1994 For further information, please call: (512) 458-7236 TITLE 28. INSURANCE Part II. Texas Workers' Compensation Commission Chapter 102. Practice and Procedures 28 TAC sec.sec.102.5, 102.8, 102.9 The Texas Workers' Compensation Commission adopts amendments to sec.sec.102.5, 102.8, and 102.9, concerning electronic submission of data to and from the commission, without changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9097). Amendments to sec.sec.124.1, 124.2, and 124.4, are being simultaneously adopted in this issue of the Texas Register . The amendments allow the commission to require that claim data currently submitted on Forms TWCC-1/21 be transmitted to TWCC electronically. The requirements for electronic submission set out in these amendments apply to insurance carriers as that term is defined in the Texas Labor Code, sec.401.011(27). The commission will use record layouts developed in conjunction with the International Association of Industrial Accident Boards and Commissions (IAIABC), several other states and several national carriers. These records consist of the carriers-reported First Report of Injury (IAIABC 148 record layout) and the Subsequent Report (IAIABC A49 record layout) data. These reports correspond to the TWCC-21, Payment of Compensation or Notice of Refused/Disputed Claim, and the TWCC-1, First Report of Injury. The amendments will result in improved business processes in the following manner: receipt of data in a timely and more efficient manner will allow the commission to process claims and provide quality customer support to all parties in the workers' compensation system; processing claims faster allows TWCC customer support staff to more promptly advise injured workers of their rights and obligations under the law and to ensure that the proper level of benefits are being paid; assisting the injured worker early in the process helps to reduce disputes or allows dispute resolution at an earlier and lower level thereby reducing costs to the system; an increase in data accuracy and quality by reducing the number of times data is handled and keypunched into various systems through the workers' compensation processes; increased data accuracy via system edits by the sender before transmission and by TWCC upon receipt; accurate, reliable, and quality data will improve reports that must be provided to various entities; and timeliness of filing will reduce compliance violations. Requiring electronic submission of claims data is aligned with the goals and improvements of the workers' compensation system at the national level. TWCC has participated with the International Association of Industrial Accident Boards and Commissions (IAIABC) over the past year to develop national standards for reporting workers' compensation data. In conjunction with the IAIABC, several states, carriers, third party administrators, and servicing agents attend monthly technical development meetings to develop and resolve issues at the national level. Major carriers involved in the IAIABC project are: ITT Hartford, CIGNA, Liberty Mutual, Kemper, SAFECO, Travelers, Wausau, Zurich American, plus TPAs or servicing vendors Crawford & Company, EDS, First Image, and Frank Gates Co. There are 46 states involved in the Electronic Data Interchange (EDI) project either in production, piloting, test/pilot (expected soon), participating, or using the IAIABC formats for system design. Several are piloting or in production with at least one carrier. These amendments also help facilitate the Sunset Commission's recommendations to streamline the claims process by letting insurance companies report workers' injuries electronically. Comments were received on the proposed amendments from ITT Hartford, the Texas Workers' Compensation Insurance Fund, and Southwestern Bell Corporation. All commenters expressed overall support for the proposed amendments, while offering suggestions for revision of the amendments. The following comments were received regarding the proposed amendments to sec.sec.102.5, 102.8, 102.9, as well as sec.sec.124.1, 124.2, and 124.4. Comments to both chapters of rules are included because the revisions to the two chapters are so intertwined. COMMENT: Commenters suggested (regarding sec.124.4 (b)) that it would be more appropriate and timely to notify the claimant/legal beneficiary when action is taken by a carrier that reduces or terminates payment of income or death benefits, rather than on a monthly basis. Also, the reference to sec.129. 4 would not be necessary. RESPONSE: The commission agrees. The proposed amendment to sec.124.4(b) has been revised to read: "If a carrier reduces or terminates the payment of income or death benefits, the carrier shall notify the claimant/legal beneficiary by a notice or letter with content prescribed by the commission. This notice/letter is required no later than the tenth day after the date the carrier has taken the action and shall state fully the reason(s) for such action. This statement must contain sufficient substantive information to enable the claimant/legal beneficiary to understand the carrier's position on the claim. A statement that simply states the carrier's position with phrases such as "abandoned medical treatment", "compensation in dispute", or "liability is in question" with no further description of the factual basis for the action taken does not satisfy the requirements of this section. COMMENT: Section 124.2 and sec.124.4 state that the commission will prescribe the "content" of the form or letter provided to the claimant\legal beneficiary. The content should be the same as or a subset of the data submitted electronically to TWCC. RESPONSE: The commission disagrees. The commission feels that the rules do not need to be amended to reflect this level of detail. While the commission's goal is that the data elements required on the notices and letters will be limited to data elements that are captured electronically, additional free text is required on the letter to explain to the claimant in easy to understand terms what action the carrier is taking concerning payment of benefits. A standard notice/letter format will eliminate the carriers having to send confusing and hard-to- understand forms to the claimant, reducing unnecessary communications between all parties. Also, this will reduce the need to maintain additional state specific forms. COMMENT: Suggest that sec.102.5 specify the procedures for acknowledging acceptance or rejection of records. RESPONSE: The commission disagrees. The commission feels that the rules do not need to be amended to reflect this level of detail. The acknowledgement procedure and record layouts are defined in specifications, instructions, advisories and communications from the commission. COMMENT: The commission should consider the lead time carriers will need in order to make programming changes and/or train personnel. RESPONSE: The commission agrees with the statement, but disagrees that this is a point to be included in the rules. Any changes will be based on specifications developed through the Texas EDI Task Group and/or the National IAIABC Technical Development Committee. Companies will be given a sufficient lead time to comply. COMMENT: One commenter noted that carriers may be required to report more information than what is currently captured on the TWCC-21 form. RESPONSE: This is correct. Although the electronic data elements on the 148 and A49 record layouts are similar and correspond closely to the TWCC-21, there is not a one-to-one, 100% correlation. The 148/A49 electronic record layouts will ultimately replace the hard-copy paper TWCC-21. This is appropriate, given the goal of receiving the data necessary to the commission's operation, in a more efficient manner. COMMENT: One commenter expressed dissatisfaction that their company, a major participant in the EDI project, was inadvertently omitted from the preamble. RESPONSE: The commission agrees that the omitted company is a major participant in the Electronic Data Interchange project and should have been included in the preamble. The commission apologizes for the omission, and has added ITT Hartford to the list in the preamble to the adopted amendments. COMMENT: One commenter expressed concern that the rules do not explain that the initial participation for the EDI project is on the basis of a pilot program. RESPONSE: The commission disagrees. The commission feels that this is not an item for the rules. The commission is aware of the complexity of the EDI project and does not expect full and immediate production. The January 31, 1995 date stated in the proposed rule allows the commission flexibility to accommodate the various EDI pilots/production commencements. Note that this date has been adjusted in the Chapter 124 rules to March 15, 1995 in order to comply with statutory requirements regarding filing adopted rules with the Texas Register . The amendments are adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, and the Texas Labor Code, sec.402.042(b)(11), which allows the executive director of the commission to prescribe the form, manner, and procedure for transmission of information to the commission. 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 February 16, 1995. TRD-9502055 Susan Cory General Counsel Texas Workers' Compenstation Commission Effective date: March 15, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 440-3700 Chapter 108. Fees 28 TAC sec.108.1 The Texas Workers' Compensation Commission adopts new sec.108.1, concerning charges for copies of public records. The new rule is adopted with changes to the proposed text as published in the November 15, 1994, issue of the Texas Register (19 TexReg 8939). The new rule is adopted to comply with House Bill 1009, 73rd Legislature, 1993 which mandates each state agency to promulgate rules specifying the charges the agency will establish for copies of public information. The charges listed in the new rule are in accordance with the recently approved General Services Commission rules specifying the costs and methods that a state agency may use to recover the costs of providing copies of public records; the charges specified were calculated to equal but exceed the agency's costs for providing copies. The charges approved by the General Services Commission have been determined in accordance with accepted cost methodologies adopted by the Council on Legislative Government. The new rule establishes a framework within which the commission may recover the cost to provide copies of public records to persons requesting the copies. The rule also provides that the commission may waive these charges under certain circumstances, and authorizes the executive director of the commission to determine whether a public benefit exists on a case-by-case basis. The new rule provides a mechanism by which the commission will be able to recover costs for providing copies of public records in circumstances where such a practice would provide the most benefit to the commission and the state. Consistent with Texas General Services Commission approval, the Texas Workers' Compensation Commission has previously charged for copies of public records. The new rule also provides for more efficient resource utilization, since the commission will be able to recover costs for providing copies of public records as a result of uniform procedures throughout state government for recovery of costs associated with providing public information. The Texas Workers' Compensation Commission maintains a separate fee schedule for obtaining copies of workers' compensation claimant files, which are confidential under the Texas Labor Code, and for costs of audits and reviews required within the commission's regulatory authority. Comments were received regarding the proposed new rule from the Freedom of Information Foundation of Texas (FOIFT) and Common Cause of Texas. Both commenters, while generally in support of the proposed new rule, suggested some revisions. The commission agrees with the commenters' suggestions and has revised the proposed new rule accordingly. The following comments were received regarding the proposed new rule. COMMENT: In subsection (c)(2), the cost of copies of 51 pages or more of standard-size copies of readily available records should be changed to be in accordance with the new guidelines provided by the General Services Commission. RESPONSE: The commission agrees. The proposed rule has been revised to reflect the guidelines provided by the General Services Commission. COMMENT: In subsection (c)(3), the cost of standard-size copies of not readily available records should be changed to be in accordance with the new guidelines provided by the General Services Commission. RESPONSE: The commission agrees. The proposed rule will be revised to reflect the guidelines provided by the General Services Commission. The commission also deleted the phrase "by the tenth calendar date after the date of receiving the written request", in subsection (b)(5)(B), because there are certain exceptions which allow the request to be made at a later date. Similarly, the commission added the phrase "or if the commission seeks clarification", because that is sometimes the basis for the request for an Attorney General Opinion. The word "requires" in subsection (h) was changed to "involves", because the Open Records Act does not require that an agency "create" information. The new rule is adopted under the provisions of sec.5 of Acts 1993, 73rd Legislature, Chapter 428, House Bill 1009; the Government Code, sec.sec.552.230, 552.261, and 552.263; and the Texas Labor Code, sec.402.061 and sec.402.064. House Bill 1009 and the Government Code sections authorize the agency to promulgate reasonable rules of procedure under which public records may be inspected efficiently, safely, and without delay, and require the agency to prescribe rules specifying the charges the agency will make for copies of public records. The Texas Labor Code, sec.402.061 authorizes the commission to adopt rules as necessary for the implementation and enforcement of the Texas Workers' Compensation Act. The Texas Labor Code, sec.402.064 authorizes the commission to set reasonable fees for services provided to persons requesting services from the commission. sec.108.1. Charges for Copies of Public Records. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) Letter of Certification-A letter signed and sealed by the executive director of the commission, or stamped and sealed by his delegate, attesting to authenticity of attached document(s). (2) Readily Available Records-Records that already exist in printed form, or information that is stored electronically and is ready to be printed or copied without requiring any programming, or information that already exists on a microfiche or microfilm, but not information that requires a substantial amount of time to locate or prepare for release, for example, as a result of required redaction for the purpose of deleting information that is confidential by law. (3) Standard-size copy-A printed impression on one side of a piece of paper that measures up to 8 1/2 inches by 14 inches. A piece of paper that is printed on both sides shall be counted as two copies. A copy of a public record made available to a requestor in any other available format is not a standard-size copy. (b) Public Record Requests. The Texas Labor Code, sec.402.021 provides that the Open Records Act applies to a record of the commission or the Texas Workers' Compensation Research Center. Except where limited by law, the following provisions will apply to all requests for review of the commission's public records pursuant to the Texas Government Code, Chapter 552. (1) All public records requests shall be treated equally. (2) All public records requests and appointments for inspection must be in writing and should be directed to the Office of Executive Communication, the commission's public records coordinator. (3) A request for official records shall include the name, address and telephone number of the requestor, and a detailed description of the records in sufficient detail to permit efficient gathering of the requested information. (4) The commission shall make every reasonable effort to provide the information in the manner requested and in a reasonable time without disruption of normal business activities. (5) The following requirements apply to confidentiality of records. (A) The commission will not provide records considered to be confidential by law or otherwise prohibited from release under the Texas Government Code, the Texas Labor Code or other provisions of law, unless the requestor is legally eligible for such information. The commission will comply with all copyright laws. (B) If the commission considers that the requested records fall within an exception under the Government Code, and that the records should be withheld, the commission will ask for an opinion from the attorney general about whether the records are within that exception, if there has not been a previous determination on that issue or if the commission seeks clarification. (C) Confidential claim files, arbitrator lists, and requests for information excepted from disclosure in the Texas Government Code, Chapter 552, will not be made available except under a court order, Attorney General directive, or other legal process. (6) The following requirements apply to examination of information. (A) Records access for purposes of inspection will be available by appointment only and will only be available during the regular business hours of the commission. (B) A person requesting to examine commission records in the offices of the commission must complete the examination without disrupting the normal operations of the commission and not later than the tenth day after the date that the records are made available to the person. Upon written request by the requestor within the ten-day period, the commission will extend the examination period by increments of ten days, not to exceed a total of 30 days. (C) A person may not remove any commission record from the offices of the commission. If the requestor desires a copy of information after examination of commission records, copies will be provided by commission staff and the requestor will be charged in accordance with this section. (D) If the safety of any public record or the protection of confidential information is at issue, or when compliance with a request for inspection would be unduly disruptive to the ongoing business of the commission, physical access may be denied and the option of receiving copies of the records at the fees stated in this section shall be provided. (E) In response to requests for inspection, the commission shall not charge for making available for inspection readily available information maintained in standard-size form. The commission may charge for preparing and making available information that is maintained in other than standard size and not readily available. Preparation may involve retrieval of information from a database or redaction of confidential information. In such cases, the commission may recover the cost of personnel time. (7) The provision of copies of records or the inspection of records may be delayed or interrupted by the commission if the records are in active use by the commission, are needed for use by the commission, or are in storage. The period of interruption will not be charged against the requestor's ten day period to examine the records. If the information is unavailable because it is in active use or in storage, the requestor shall receive written notification of the delay and, if necessary, the office of executive communication will arrange a subsequent appointment for inspection of records when the information is available for inspection or duplication. (8) Costs of duplication shall be the responsibility of the requesting party in accordance with the fees imposed by this section. Fees are due and payable at the commission at the time of receipt of the copies of public records. However, if mail, expedited, or fax delivery is requested, fees are due in advance. (9) When a particular request will involve considerable time and resources, the commission will advise the requesting party of what may be involved and will provide an estimate of the date of completion and the charges that may result. (10) If the anticipated charges under this section exceed $100, the commission may require a bond for payment of costs or cash prepayment equal to the total anticipated charges prior to the requested information. (11) The commission may, in its discretion, waive fees if it serves a general public purpose. The executive director of the Texas Workers' Compensation Commission is authorized to determine whether a public interest benefit exists to the general public on a case by case basis. (c) Copy Charge. (1) Copy charges for standard-size copies-The charge for standard-size paper copies reproduced by means of an office machine copier or a computer printer is $0.10 per page. (2) If certification of copies is requested, a letter of certification will be provided for an additional charge of $1.00, which will be added to the computed fee for each requested letter of certification. Several pages copied from a single file may require only one letter of certification. (3) Copy charges for non-standard copies will be as follows: (A) Audiotape-$1.00 each; (B) Videotape-$2.50 each; (C) Diskette-$1.00 each; (D) Magnetic Tape (2400 Reel-to-reel) -$10.00 each; (E) Magnetic Tape Cartridge (Type 3480)-$10.00 each; (F) Paper-$.50 each; and (G) Duplication of Photographic Images-$5.00 per image plus commercial photo reproduction costs and postage. (d) Personnel Charge. (1) The charge for personnel costs incurred in processing a request for public information is $15 an hour, which is the average hourly cost, including fringe benefits, to the state for classified state employees as of May 31, 1993. This charge will be prorated as appropriate. (2) A personnel charge will not be billed in connection with complying with requests that are for 50 or fewer pages of readily information in standard-size form. (e) Overhead Charge. (1) In response to a request for information that is not readily available or which is in excess of 50 pages of readily available information, the commission may include in the charges direct and indirect costs, in addition to the personnel charge, at a rate of 20% of the personnel charge. This overhead charge covers such costs as depreciation of capital assets, rent, maintenance and repair, utilities and administrative overhead. (2) An overhead charge will not be billed in connection with requests for copies of 50 pages or less of information that is readily available in standard- size form. (f) Remote Document Retrieval Charge. The actual cost of retrieving a document from an off-site storage location will be charged. If a remote retrieval charge is assessed, no personnel charge will be assessed. (g) Computer Resource Charge. (1) A computer resource charge is a computer utilization charge for computers based on the amortized cost of acquisition, lease, operation, and maintenance of computer resources, which might include, but is not limited to, some or all of the following: central processing units (CPUs), servers, disk drives, local area networks (LANs), printers, tape drives, other peripheral devices, communication devices, software, and system utilities. (2) Computer Resource Charges are as follows: (A) Mainframe Service-Rate of $17.50 per minute; (B) Midrange Service-Rate of $3.00 per minute; and (C) PC or LAN Service-Rate of $.50 per minute. (3) The charge made to recover the computer utilization is the actual time the computer takes to execute a particular program at the applicable rate. (h) Programming Time. If a particular request involves the entry of data in order to execute an existing program or creation of a new program so that information may be accessed, an additional charge of $26 per hour will be added to the computed fee for the programmer's time. This charge will be prorated as appropriate. (i) Miscellaneous Supplies. The actual cost of miscellaneous supplies, such as labels, boxes, and other supplies used to produce the requested information will be added to the total charge for public information. (j) Expedited Handling. A $25 expedited handling charge will be added to requests which require completion on a priority basis. (k) Delivery Charge. (1) U.S. Mail. When requested copies of public records are to be mailed, the actual cost of postage and supplies will be added to the computed fee. (2) Overnight Courier. When requested copies of public records are to be sent by overnight courier or other expedited delivery service, the cost of the service will be added to the computed fee unless the requestor furnishes a recipient delivery number for use by the commission in delivering the copies to the carrier. (3) Faxing. The charge for faxing copies is $.10 per page for local telephone delivery, $.50 per page for telephone delivery within the same area code, and $1.00 per page for telephone delivery to a different area code. The commission may not be required to fax 20 or more pages of information and may require another form of delivery. (l) Annual Re-evaluation of Charges. The charges set forth in this section may be revised annually in accordance with the Texas General Services Commission's annual re-evaluation and update for charges for public records. 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 February 16, 1995. TRD-9502057 Susan Cory General Counsel Texas Workers' Compenstation Commission Effective date: March 10, 1995 Proposal publication date: November 15, 1994 For further information, please call: (512) 440-3700 Chapter 124. Carriers: Required Notices and Mode of Payment 28 TAC sec.sec.124.1, 124.2, 124.4 The Texas Workers' Compensation Commission adopts amendments to sec.sec.124.1, 124.2, and 124.4, concerning electronic submission of data to and from the commission, with changes to the proposed text as published in the November 18, 1994, issue of the Texas Register (19 TexReg 9098). Amendments to sec.sec.102.5, 102.8, and 102.9 are being simultaneously adopted in this issue of the Texas Register . The amendments allow the commission to require that claim data currently submitted on forms TWCC-1/21 be transmitted to TWCC electronically. The requirements for electronic submission set out in these amendments apply to insurance carriers as that term is defined in the Texas Labor Code, sec.401.011(27). The commission will use record layouts developed in conjunction with the International Association of Industrial Accident Boards and Commissions (IAIABC), several other states and several national carriers. These records consist of the carriers-reported First Report of Injury (IAIABC 148 record layout) and the Subsequent Report (IAIABC A49 record layout) data. These reports correspond to the TWCC-21, Payment of Compensation or Notice of Refused/Disputed Claim, and the TWCC-1, First Report of Injury. The amendments will result in improved business processes in the following manner: receipt of data in a timely and more efficient manner will allow the commission to process claims and provide quality customer support to all parties in the workers' compensation system; processing claims faster allows TWCC customer support staff to more promptly advise injured workers of their rights and obligations under the law and to ensure that the proper level of benefits are being paid; assisting the injured worker early in the process helps to reduce disputes or allows dispute resolution at an earlier and lower level thereby reducing costs to the system; an increase in data accuracy and quality by reducing the number of times data is handled and keypunched into various systems through the workers' compensation processes; increased data accuracy via system edits by the sender before transmission and by TWCC upon receipt; accurate, reliable, and quality data will improve reports that must be provided to various entities; and timeliness of filing will reduce compliance violations. Requiring electronic submission of claims data is aligned with the goals and improvements of the workers' compensation system at the national level. TWCC has participated with the International Association of Industrial Accident Boards and Commissions (IAIABC) over the past two years to develop national standards for reporting workers' compensation data. In conjunction with the IAIABC, several states, carriers, third party administrators, and servicing agents attend monthly technical development meetings to develop and resolve issues at the national level. Major carriers involved in the IAIABC project are: ITT Hartford, CIGNA, Liberty Mutual, Kemper, SAFECO, Travelers, Wausau, Zurich American, and other carriers, plus TPAs or servicing vendors Crawford & Company, EDS, First Image, and Frank Gates Co. There are 46 states involved in the Electronic Data Interchange (EDI) project either in production, piloting, test/pilot (expected soon), participating, or using the IAIABC formats for system design. Several are piloting or in production with at least one carrier. These amendments also help facilitate the Sunset Commission's recommendations to streamline the claims process by letting insurance companies report workers' injuries electronically. Comments were received on the proposed amendments from ITT Hartford, the Texas Workers' Compensation Insurance Fund, and Southwestern Bell Corporation. All commenters expressed overall support for the proposed amendments, while offering suggestions for revision of the amendments. The following comments were received regarding the proposed amendments to sec.sec.102.5, 102.8, 102.9, as well as sec.sec.124.1, 124.2, and 124.4. Comments to both chapters of rules are included because the revisions to the two chapters are so intertwined. COMMENT: Commenters suggested (regarding sec.124.4 (b)) that it would be more appropriate and timely to notify the claimant/legal beneficiary when action is taken by a carrier that reduces or terminates payment of income or death benefits, rather than on a monthly basis. Also, the reference to sec.129. 4 would not be necessary. RESPONSE: The commission agrees. The proposed amendment to sec.124.4(b) has been revised to read: "If a carrier reduces or terminates the payment of income or death benefits, the carrier shall notify the claimant/legal beneficiary by a notice or letter with content prescribed by the commission. This notice/letter is required no later than the tenth day after the date the carrier has taken the action and shall state fully the reason(s) for such action. This statement must contain sufficient substantive information to enable the claimant/legal beneficiary to understand the carrier's position on the claim. A statement that simply states the carrier's position with phrases such as "abandoned medical treatment", "compensation in dispute", or "liability is in question" with no further description of the factual basis for the action taken does not satisfy the requirements of this section." COMMENT: Section 124.2 and sec.124.4 state that the commission will prescribe the "content" of the form or letter provided to the claimant\legal beneficiary. The content should be the same as or a subset of the data submitted electronically to TWCC. RESPONSE: The commission disagrees. The commission feels that the rules do not need to be amended to reflect this level of detail. While the commission's goal is that the data elements required on the notices and letters will be limited to data elements that are captured electronically, additional free text is required on the letter to explain to the claimant in easy to understand terms what action the carrier is taking concerning payment of benefits. A standard notice/letter format will eliminate the carriers having to send confusing and hard-to- understand forms to the claimant, reducing unnecessary communications between all parties. Also, this will reduce the need to maintain additional state specific forms. COMMENT: Suggest that sec.102.5 specify the procedures for acknowledging acceptance or rejection of records. RESPONSE: The commission disagrees. The commission feels that the rules do not need to be amended to reflect this level of detail. The acknowledgement procedure and record layouts are defined in specifications, instructions, advisories and communications from the commission. COMMENT: The commission should consider the lead time carriers will need in order to make programming changes and/or train personnel. RESPONSE: The commission agrees with this statement, but disagrees that this is a point to be included in the rule. Any changes will be based on specifications developed through the Texas EDI Task Group and/or the National IAIABC Technical Development Committee. Companies will be given a sufficient lead time to comply. COMMENT: One commenter noted that carriers may be required to report more information than what is currently captured on the TWCC-21 form. RESPONSE: This is correct. Although the electronic data elements on the 148 and A49 record layouts are similar and correspond closely to the TWCC-21, there is not a one-to-one, 100% correlation. The 148/A49 electronic record layouts will ultimately replace the hard-copy paper TWCC-21. This is appropriate, given the goal of receiving the data necessary to the commission's operation, in a more efficient manner. COMMENT: One commenter expressed dissatisfaction that their company, a major participant in the EDI project, was inadvertently omitted from the preamble. RESPONSE: The commission agrees that the omitted company is a major participant in the Electronic Data Interchange project and should have been included in the preamble. The commission apologizes for the omission, and has added ITT Hartford to the list in the preamble to the adopted amendments. COMMENT: One commenter expressed concern that the Rules do not explain that the initial participation for the EDI project is on the basis of a pilot program. RESPONSE: The commission disagrees. The commission feels that this is not an item for the Rules. The commission is aware of the complexity of the EDI project and does not expect full and immediate production. The January 31, 1995 date stated in the proposed Rule allows the commission flexibility to accommodate the various EDI pilots/production commencements. Note that this date has been adjusted in the Chapter 124 rules to March 15, 1995 in order to comply with statutory requirements regarding filing adopted rules with the Texas Register . The amendments are adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, and the Texas Labor Code, sec.402.042(b)(11), which allows the executive director of the commission to prescribe the form, manner, and procedure for transmission of information to the commission. sec.124.1. Written Notice of Injury Defined. (a)-(d) (No change.) (e) Effective March 15, 1995, the insurance carrier shall submit Carrier- reported First Report of Injury information in the format, form and manner prescribed by the commission. (f) The commission shall prescribe the form, format, and content of any required electronic submission through instructions, specifications, and Electronic Data Interchange trading partner agreements. sec.124.2. Notice of Initiation of Compensation. (a) Each insurance carrier shall report to the commission and to the claimant/legal beneficiary, in a format, form, and manner prescribed by the commission, the initial payment of income or death benefits to the claimant/beneficiary, within ten days of: (1) the issuance of a check, or other negotiable instrument; or (2) the transfer of funds electronically to the claimant's/beneficiary's account. (b) Effective March 15, 1995, each insurance carrier shall submit information to the commission in the format, form, and manner prescribed by the commission. With the initial payment of income or death benefits, a notice or letter with content prescribed by the commission will be sent by the carrier to the claimant/legal beneficiary. (c) The commission shall prescribe the form, format, and content of any required electronic submission through instructions, specifications, and Electronic Data Interchange trading partner agreements. sec.124.4. Notice of Reduction or Termination of Compensation. (a) The carrier shall notify the commission in the format, form, and manner prescribed by the commission, of any reduction or termination of income or death benefits, including the basis for the action, not later than the 10th day after the date the carrier has taken the action. When the reason for the reduction or termination is a settlement with a third party, or a court judgment, the carrier shall file a copy of the executed settlement or approved judgment within 20 days of receipt. (b) If a carrier reduces or terminates the payment of income or death benefits, the carrier shall notify the claimant/legal beneficiary by a notice or letter with content prescribed by the commission. This notice/letter is required no later than the tenth day after the date the carrier has taken the action and shall state fully the reason(s) for such action. This statement must contain sufficient substantive information to enable the claimant/legal beneficiary to understand the carrier's position on the claim. A statement that simply states the carrier's position with phrases such as "abandoned medical treatment", "compensation in dispute", or "liability is in question" with no further description of the factual basis for the action taken does not satisfy the requirements of this section. (c) Effective March 15, 1995, each insurance carrier shall submit information to the commission in the format, form, and manner prescribed by the commission. (d) The commission shall prescribe the form, format, and content of any required electronic submission through instructions, specifications, and Electronic Data Interchange trading partner agreements. 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 February 16, 1995. TRD-9502056 Susan Cory General Counsel Texas Workers' Compenstation Commission Effective date: March 15, 1995 Proposal publication date: November 18, 1994 For further information, please call: (512) 440-3700 Chapter 164. Extra-Hazardous Employer Program 28 TAC sec.sec.164.1, 164.13, 164.14 The repeals are adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, and sec.sec.411.041-411.049, which requires the commission to identify extra- hazardous employers and oversee the development and implementation of accident prevention programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502058 Susan Cory General Counsel Texas Workers' Compenstation Commission Effective date: March 10, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 440-3700 The Texas Workers' Compensation Commission (the "commission") adopts new sec.164.1 and sec.164.14, the simultaneous repeal of existing sec.164.1 and sec.164.14, the repeal of sec.164.13, and amendments to sec.sec.164.2-164.12, concerning the Extra-Hazardous Employer Program. New sec.164.1 and new sec.164. 14 are adopted with changes to the proposed text as published in the December 20, 1994, issue of the Texas Register (19 TexReg 10073), as corrected in the January 10, 1995, issue of the Texas Register (20 TexReg 173). The repeal of existing sec. sec.164.1, 164.13, and 164.14, and the amendments to sec.sec.164.2-164.12 are adopted without changes and will not be republished. The changes consist of: a revision to sec.164.14(e)(4), in response to a comment received (described in the summary of comments and responses portion of this preamble); and, in sec.164.1(b)(10), the addition of the word "last" to the second sentence in the definition of occupational diseases, so that the sentence reads: "The occupational disease will be included on the record of the employer under which the last exposure occurred." The last change was made to be consistent with the statute. As required by the Government Code, sec.2001.033(1), the commission's reasoned justification is set out in this preamble which discusses the reasons why the new rules, amendments, and repeals are necessary; the factual, policy, and legal bases for the rule; a summary of comments received; names of interested groups or associations that commented and whether they are for or against adoption of the new rules, amendments, and repeals; and the reasons why the agency disagrees with the comments, submissions, and proposals. These new rules, amendments, and repeals are adopted in order to fulfill the directives in the Texas Labor Code, sec.sec.411.041-411.049, which requires the commission to identify extra-hazardous employers and develop and implement accident prevention programs. Labor Code sec.411.041 requires the commission to develop a program to identify extra-hazardous employers. The program must include analysis of injury frequency (sec.411.041(a)). The statute further provides that an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry is an extra-hazardous employer (sec.411.041(b)). The statute requires notification to the employer and the insurance carrier (sec.411.042). Employers designated as extra-hazardous must within 30 days obtain a safety consultation from the commission, the carrier, or an approved professional source. The safety consultant is to perform a hazard survey and, along with the employer, develop an accident prevention plan. The employer is to implement the plan, and is to be monitored by the commission (sec.411.043). The commission is to conduct a follow-up inspection, and certify compliance with the plan or other acceptable measures, or continue monitoring (sec.411.045 and sec.411.047). An employer may request a hearing to contest the commission's findings. (sec.411.049). The commission adopted the existing Chapter 164 rules to comply with these statutory requirements. Experience with the program has identified various revisions which should be made to clarify the calculation and process for affected employers, to simplify the calculation and process, and to ensure that the division's time and resources are properly directed among various employers. The repeals, new rules and amendments are adopted in order to change the method of computation used in identifying extra hazardous employers and incorporate numerous lessons learned from experience to date with the program. The computation is changed from the current rules to replace the fatality index with a fixed threshold value for all employers who have experienced a fatality, and reduce the variable threshold value for employers without a fatality. The grounds for a hearing based on injuries caused by third parties unrelated to the workplace and beyond the control or jurisdiction of the employer have been eliminated in favor of a screening procedure that allows the commission's Health and Safety Division ("division") to eliminate from the computation or convert to injuries, fatalities that meet specific criteria. The employer's basic right to a hearing is not impaired. These rules as revised will implement the extra-hazardous program required by statute in a manner which is fair and reasonable to employers of all sizes and all businesses and industries. As previously noted, the commission's experience with the program has identified various revisions which should be made to clarify the calculation and process for affected employers, to simplify the calculation and process, and to ensure that the division's time and resources are properly directed among various employers. The revisions which channel certain issues out of the hearing process and into an administrative division process should result in savings in time and expenses for affected employers and the commission, while still affording employers an opportunity for hearing on unresolved matters. The public benefit resulting from the program will be a reduction in the number of accidents and the associated financial and human cost. Experience to date of employers completing the program shows an average injury rate reduction of 60%. The commission interprets the first sentence of sec.411.041 as mandating the use of injury frequencies in designating extra-hazardous employers but also permitting the use of other factors. Further, the commission interprets the second sentence of sec.411.041 as requiring the designation of employers whose injury frequencies substantially exceed the expected rate in their business or industry, but as not limiting the commission's authority to designate other employers extra-hazardous as well. The commission believes it is proper and appropriate to use a lower threshold for an employer with a fatality for several reasons. One is the limited resources available to the commission and a belief that the commission should put emphasis on employers with a fatality, to achieve the most impact from the program. Second, this decision is supported by a theory known as the Heinrich model: for every major injury an employer has, there are 29 minor injuries and 300 near misses. Thus, the number of fatalities an employer has is an indicator of the number of other minor injuries and near misses suffered by the employer, or the potential number. Finally, the use of a lower threshold counterbalances the lack of data about all injuries suffered by an employer. Section 411.041 allows the commission to make use of more than one type of injury frequency or factor in designating employers. Workplaces in which fatalities occur are the most dangerous to Texas employees and most in need of the assistance offered by the extra-hazardous employer program. The rules as revised achieve the following statutory and policy objectives: (1) to identify extra-hazardous employers (sec.411.041(a) and sec.164.1 and sec.164.14); (2) to include analysis of injury frequency (sec.411. 041(a) and sec.164.1 and sec.164.14); (3) to designate as extra-hazardous an employer whose injury frequencies substantially exceed those that may reasonably be expected in that employer's business or industry (sec.411.041(b) and sec.164.1 and sec.164.14); (4) to decrease the frequency of employee accidents and deaths (Joint Select Committee on Workers' Compensation Insurance, Report to the 71st Texas Legislature, pp. 4, 6, 9, 12-13); (5) to provide a fair and reasonable program of designation of employers; (6) to make efficient use of the commission's time and financial resources; (7) to provide an alternative to designation for small employers, while still achieving increased safety and decreased accidents (sec.164.1); (8) to provide a definitive basis for removal of a fatality from the calculation (sec.164.14); (9) to simplify the process and provide an administrative, cost-saving process for removal of a fatality from the calculation (sec.164.2); (10) to retain threshold values which will preclude the identification of an employer with a single lost time injury or occupational disease during the audit period (sec.164.1 and sec.164.14); (11) to establish threshold values that will preclude the identification of an employer whose injury rate does not exceed their expected injury rate for their industry (sec.164.1 and sec.164.14); (12) to establish a separate threshold value for an employer with a fatality so that an employer is not identified based on a fatality if the employer's injury frequency does not substantially exceed the expected injury rate for their industry (sec.164.1 and sec.164.14); (13) to simplify and clarify the basis for designation, the process for designation, and the requirements after designation (sec.sec.411.041-411.049 and sec.sec.164.1-164.8, sec.164.11, sec.164.14); (14) to provide definitions for terms used in the rules, for clarification (sec.164.1); (15) to provide definitive sources of data (sec.164.1); (16) to provide opportunity for a hearing to contest the commission's findings (sec.411.049 and sec.164.2); (17) to provide notice to employers and carriers ( sec.411.042 and sec.164. 2); (18) to clearly establish the qualifications for an approved professional source so persons will know whether they qualify (sec.411.043 and sec.164.9); (19) to clarify the process for processing applications for approved professional source status and establish a process for removal from the list by the commissioners (sec.411.043 and sec.164.9 and sec.164.10); (20) to require an approved professional source to keep up-to-date and provide for removal to an inactive list (sec.411.043 and sec.164.10); (21) to require identification of hazardous conditions or practices (sec.411.043 and sec.164.3); (22) to clarify the requirements for the hazard survey and report, and the due dates (sec.411.043 and sec.164.3); (23) to require formulation of an accident prevention plan (sec.411.043 and sec.164.4); (24) to clarify the requirements and due date for the accident prevention plan (sec.411.043 an sec.164.4); (25) to hold approved professional sources accountable for their signatures on an accident prevention plan (sec.164.4); (26) to provide for consultations by the division ( sec.411.043 and sec.164. 11); (27) to require employer compliance with the accident prevention plan or other acceptable corrective measures (sec. sec.411.045, 411.046, and 411.047 and sec.sec.164.5-164.8); (28) to provide for follow-up inspections by the division (sec.411.045, sec.164.5 and sec.164.5); (29) to certify compliance or continue monitoring of the employer (sec.411.045 and sec.411.047 and sec.sec.164.6-164.8); and (30) to provide for recovery of commission costs ( sec.411.048 and sec.164. 12)). The commission carefully and fully analyzed all the facts and arguments presented, and those known to the commission through its experience in administering the extra-hazardous program (including the results of the various APA hearings considering whether a specific fatality should or should not be included in an employer's calculation, the commission's inability to hold an approved professional source accountable, and the differing opinions as to the meaning of certain parts of the current rules). In accordance with the statutory requirements, the revised rules balance the need to meet the commission's mandated objective of decreased injuries and fatalities with the need to make efficient use of limited resources available to the commission to implement this and other programs. The resulting rules are in accord with all statutory objectives and requirements as well as commission policy and the facts before the commission. The commission's program is not preempted by the federal Occupational Safety and Health Act of 1970 ("the OSH Act"). The OSH Act expressly does not "supercede or in any manner affect any workmen's compensation law or enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." (Emphasis added) 29 U.S.C. sec.653(b)(4). The extra-hazardous program is an integral part of the workers' compensation law (Joint Select Committee on Workers' Compensation Insurance, Report to the 71st Texas Legislature, pp. 4, 6, 9, 12-13), and is clearly a law with respect to injuries, diseases, or death of employees arising out of or in the course of employment. This program is therefore exempt from preemption under sec.653(b)(4). In addition, pursuant to the OSH Act, sec.18(a), the Act does not "prevent any state agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no [federal] standard is in effect." 29 U.S.C. sec.667(a). OSHA has not promulgated standards in the field of safety and health programs, but has promulgated only "voluntary safety and health program guidelines ..." Volume 54, Number 16 Federal Register, January 26, 1989 at p. 3906. With no federal standard in place, sec.18(a) provides that there is no preemption. Finally, the commission's rules do not set standards, but are outcome oriented. Although the rules require an employer to have a plan, the statute and the rules allow the employer to implement "other acceptable corrective measures" (sec.411.045). The determining factors at the time of the division's follow-up inspection are whether some type of hazard abatement has been implemented and whether the injury rate is at or below the expected rate. No supplementation of any existing standards is contemplated and no new standards are set. A discussion of the provisions of the various rules as revised follows. New sec.164.1 (Existing sec.164.1 is repealed.) New sec.164.1 provides definitions of the words and terms used in the program, specifies the calculation used to determine extra-hazardous employer status, requires the commissioners to establish by rule the threshold values used in the calculation, and provides an opportunity for the employer to verify the data used in the computation prior to notification of extra-hazardous employer status. The amendments to this rule add some needed definitions, and clarify sources of data and method of calculation so employers subject to the rule have a clear understanding of both. A revision to the proposed text of subsection (b)(10) adds the word "last" to the second sentence of the definition of "occupational disease". That sentence now reads: "The occupational diseases will be included on the record of the employer under which the last exposure occurred." (1) For the purposes of the program, an employer is a public or private entity defined by the employer's Federal Employer Identification Number (FEIN) and four-digit Standard Industrial Classification (SIC) code. This codifies existing practice. The definition of an employer subject to the program is moved from sec.164.13 to this rule. The phase-in for the various definitions of employer have been eliminated, as all of the phase-in periods have lapsed. (2) The employer's SIC code is specified as the SIC Code derived from the Standard Industrial Classification Manual, current edition, published by the Office of Management and Budget, and assigned to the employer by the Texas Employment Commission (TEC). This provides a definitive source for SIC codes and recognizes the TEC as the authority for SIC codes in Texas. (3) The source of the employer's highest employment during the audit period, for use in the computation, is clarified as the highest figure reported to TEC or substantiated by employer payroll documents. This provides a definitive source for the employment figure, but still allows an employer to refute the TEC employment figure with payroll documents. (4) The term "injuries", as used in the computation, is clarified to mean the total number of lost time injuries, occupational diseases, and fatalities. This provides clarification for those subject to the rule. (5) The source and method of determining the expected injury rate is clarified and consolidated. The information is split between sec.164.1 and sec.164.14 in the current rules. Beginning in 1992, the U.S. Department of Labor Bureau of Labor Statistics ("BLS"), in its publication, Survey of Occupational Injuries and Illnesses, reported rates for lost workdays cases with days away from work. These are the rates used by the revised rules, when available, as they most closely match the commission's lost time injuries. Previously used were the BLS statistics on "lost workday cases", which included restricted work activity as well as days-away-from-work cases. The new rule clearly articulates the sources and procedure currently in use. (6) The audit period is defined as the 12-month period used in determining the factual data on which the identification is based. (7) A fatality is defined as the death of an employee from a work related injury or occupational disease, excluding those fatalities that meet the screening criteria in new sec.164.14. The screening criteria are discussed under new sec.164.14. This definition is necessary to implement the screening criteria discussed below. (8) The procedures for including an occupational disease in the computation are clarified. An occupational disease will be included on the record of the employer under which the exposure occurred. The occupational disease will be included in the audit period during which it was reported. The exposure need not have occurred during the audit period. This clarification is needed because an occupational disease often involves the situation of employment by one employer at the time of first exposure and employment by another employer at the time of first reporting or disability. The definition provides an easily understood standard for determining when and for which employer an occupational disease will be counted, and prevents double counting of the disease for more than one employer. (9) Lost time injuries are defined as injuries (excluding occupational diseases and fatalities) resulting in greater than seven days of lost time. This is not changed from the current rule. (10) The use of a fatality index in the current computation is replaced with a single, separate threshold value for all employers with one or more fatalities. This simplifies the computation. For employers with no fatalities, the current table of threshold values in sec.164.14 is retained with the threshold values for employers with ten or more employees reduced to broaden the scope of the program. Values for both sets of thresholds will be selected such that no employer will be identified as an extra-hazardous employer who has only one lost time injury or occupational disease reported during the audit period nor will an employer be identified as extra-hazardous whose injury rate does not exceed their expected injury rate, even if the employer has suffered a fatality. The threshold for employers that experience at least one fatality will be lower than that for employers with no fatalities. Under the current rules, an employer whose injury rate did not exceed their expected injury rate could be identified as extra-hazardous if the employer had suffered a fatality. This change is made so this will not occur under the revised rules. (11) An employer whose identification is based solely on one fatality and whose total employment in all SIC codes is less than 20 may obtain a full OSHCON consultation from the division in lieu of being identified as an extra-hazardous employer. A single fatality will affect a small employer's injury rate calculation proportionately more than it would affect a larger employer. For this reason, the revised rules allow a small employer whose injury rate exceeds its expected rate, to obtain a full OSHCON consultation from the division in lieu of being identified as an extra-hazardous employer. This allows a small employer to avoid being designated as extra-hazardous based on a single fatality, but still implements the safety provisions which will help to reduce injuries and fatalities for the employer. (12) The calculation used to determine extra-hazardous employer status has been simplified. The employer's injury rate is divided by the expected injury rate and the result compared to the appropriate threshold value. If the ratio exceeds the threshold level, the employer is extra-hazardous. In all instances, the identified employer's injury rate will exceed the expected injury rate by more than the amount determined by the commissioners and specified in new sec.164.14. This simplified calculation will enable those subject to the rules to easily determine their status under the rules. (13) Prior to notification, the employer will be provided the opportunity to verify the FEIN, SIC code, employment data, and injury records that will be used in the computation. The employer will also have the opportunity to provide documentation on any fatalities. The division will use the information in screening the fatalities using the criteria in new sec.164. 14. The current rules also allow for pre-identification verification of data. The revised rules add a provision allowing the commission staff to evaluate data provided regarding a fatality and to determine whether the fatality meets the screening criteria and should be excluded from the computation or converted from a fatality to an injury count. This process has not been delegated to the agency staff in the current rules, and has resulted in numerous requests for a hearing pursuant to the Administrative Procedure Act. These APA hearings have resulted in the exclusion of various fatalities from the calculation. The revised rules make use of the experience gained from these hearings to establish an administrative procedure in lieu of always having to go to an APA hearing, which is costly in time and expenses both to the commission and to employers. Amendments to sec.164.2: Section 164.2 is amended to clarify the matters that can be resolved through an administrative review by the division as specified in subsection (b) (4). This allows the division to deal administratively with matters that should have been resolved prior to notification, but which did not come to light until after the notification was made. This includes the ability to exclude, or convert to injuries, fatalities that meet the criteria in sec.164. 14. If the issue cannot be resolved administratively, the employer will be offered the opportunity for a hearing. Additionally, subsection (b)(5) is amended to delete the grounds for a hearing based on injuries caused by third parties unrelated to the workplace and beyond the control or jurisdiction of the employer. Fatalities caused by third parties and by circumstances beyond the control or jurisdiction of the employer are provided for in the screening criteria of new sec.164.14. Injuries in categories in sec.164.14(e) are included in the expected injury rate statistics to which the employer's injury rate is compared. Again, this process was not delegated to the agency staff in the current rules, and has resulted in numerous requests for a hearing pursuant to the Administrative Procedure Act. These APA hearings have resulted in the exclusion of various fatalities from the calculation. The revised rules make use of the experience gained from these hearings to establish an administrative procedure in lieu of always having to go to an APA hearing, which is costly in time and expenses both to the commission and to employers. The employer still has the right to request a hearing if the administrative process does not resolve the matter. Amendments to sec.164.3: Section 164.3 is amended to clarify the timely filing of the hazard survey report and the limits of extensions of time that may be granted to accomplish the initial consultation. There has been some confusion regarding the date on which a consultation was considered to be "complete" under the current rules, and thus when a report was due. Amendments to sec.164.4: Section 164.4 is amended to clarify the development and content of the accident prevention plan as specified in subsection (a). The employer is responsible for the development and submission of the plan with the assistance of an approved professional source ("APS"). The signature of the approved professional source on the plan certifies that the plan meets the format prescribed by the commission. This provision was added because there had been some dispute as to the meaning of the signature of an APS, especially where the survey work is done by one person and signed by another. An APS must be held accountable for the plans which the APS signs. An individual responsible for each component must be specified in the plan, as well as the specific interval at which the recurring components must be accomplished. Experience has shown that these are necessary elements for a successful program. Additionally, sec.164.4(e) is amended to specify that an employer who disagrees with the accident prevention plan must propose alternative measures to meet the objectives of the program. This closes a gap in the current rules as to what happens when the employer disagrees with the consultant. The reference to a hearing to resolve disputes over the content of the accident prevention plan is deleted because it is not required by statute. Amendments to sec.sec.164.5, 164.6, 164.8, 164.11, and 164.12: The amendments to sec.sec.164.5, 164.6, 164.8, 164.11, and 164.12 contain only minor clarifications and/or updates of references to the Texas Labor Code. There are no substantive changes from the text of these rules as they existed before these revisions. Amendments to sec.164.7: Section 164.7 is amended to clarify the title of the rule, changing it to read: "Removal From "Extra-Hazardous Employer" Status And Placement In Monitor Status". Subsection (b) is amended to refer the meaning of the phrase "the injury frequency that may reasonably be expected in that employer's business or industry" back to the meaning of the term "expected injury rate" in new sec.164.1(b)(7). Additionally, subsection (d) is amended to clarify the actions taken at the end of the monitor period. All of these revisions aid the affected employer in understanding the requirements of the rules. Amendments to sec.164.9: Section 164.9 is amended to bring the requirement for an approved professional source application forward to subsection (a) from the current sec.164.9(e) and to clarify the educational requirements and define occupational health and safety experience. This will enable applicants to better determine if they meet the necessary qualifications. Section 164.9 also contains the following amendments: (1) Current subsection (c) is moved forward to precede current subsection (b) since it is the primary criteria for qualification as an approved professional source. (2) Subsection (b), now subsection (c), is amended to clarify the requirements for qualification under this subsection, so applicants may better determine if they meet the necessary qualifications. This subsection is also revised to delete the current subsection (b)(6) providing for use of a certified training program to qualify as an approved professional source, because no such programs exist nor are they likely to. (3) A new subsection (d) is added to define occupational health and safety experience as used to evaluate qualifications for an approved professional source, so applicants may better determine if they meet the necessary qualifications. (4) Current subsection (d), now subsection (e), is amended to add a requirement for an approved professional source to attend an annual approved professional source update seminar in order to remain on the active approved professional source list. This will ensure that approved professional sources stay current on the issues relevant to their services. (5) Finally, subsection (g) is amended to delete the reference to a hearing if the applicant is not approved by the division, because a hearing is not required by statute. Amendments to sec.164.10: (1) Clarification that only the commissioners can remove an approved professional source ("APS") from the list of approved professional sources. This clarifies the process for an APS facing possible removal from the list. (2) A new subsection (a)(5) is added to provide for the removal of an approved professional source who approves an accident prevention plan that does not meet the criteria prescribed by the commission. This is necessary to hold an APS accountable and to uphold the integrity of the plan and thus of the program. (3) A new subsection (b) is added to provide the mechanics of notifying an approved professional source that the division intends to recommend to the commissioners that the consultant be removed from the list and the procedure the approved professional source may follow to request a hearing. This subsection replaces the current subsection (e). This clarifies the process for an APS facing possible removal from the list. (4) A new subsection (c) is added to specify that only the commissioners may remove an approved professional source from the list of approved professional sources and provide the mechanics of issuing an order of deletion. This also clarifies the process for an APS facing possible removal from the list. (5) A new subsection (g) is added to provide a procedure for reinstatement of an approved professional source removed under new subsection (a)(5). Again, this also clarifies the process for an APS facing possible removal from the list. (6) A new subsection (h) is added to provide that an approved professional source who does not comply with the provision of subsection (e), pertaining to attending an annual update seminar, will be placed on an "inactive" list by the division and be prohibited from conducting Extra-Hazardous Employer Program consultations. This is necessary to ensure the integrity of APS plans, and thus of the program. (7) Finally, a new subsection (i) provides for the reinstatement of an approved professional source placed on the inactive list under the provisions of subsection (h) of this rule. This clarifies the process for an APS placed on the inactive list. Repealed sec.164.13: Section 164.13 (relating to Applicability) is repealed and reserved for future use. The phase-in provisions provided in the current rule have been completed and the final applicability conditions incorporated in new sec.164. 1(b)(2). New sec.164.14 (Existing sec.164.14 is repealed.): New sec.164.14 provides threshold values established by the commissioners in accordance with sec.164.1(d). (1) Subsections (a) and (b) establish the threshold levels used in calculations under sec.164.1. The use of a fatality index in the current rules is replaced with a single, separate threshold value for all employers with one or more fatalities. This simplifies the computation. For employers with no fatalities, the current concept of a variable threshold set based on employer size was retained, with the threshold values for employers with ten or more employees reduced to broaden the scope of the program and to lower the amount by which an employer may exceed the expected rate for the employer's business or industry. Values for both sets of thresholds were selected such that no employer will be identified as an extra-hazardous employer who has only one lost time injury or occupational disease reported during the audit period; nor will an employer be identified as extra-hazardous whose injury rate does not exceed their expected industry injury rate, even if the employer has suffered a fatality. The threshold for employers that experience at least one fatality will be lower than that for employers with no fatalities. Under the current rules, an employer whose injury rate did not exceed their expected injury rate for the employee's industry could be identified as extra-hazardous if the employer had suffered a fatality. The changes were made so this will not occur under the revised rules. (2) Subsection (c) specifies the initial 12-month audit period under the revised rules and provides for subsequent audit periods at three month intervals. It also provides for annual review by the commissioners for authorization to continue the notification cycles for an additional year. This clarifies what constitutes the first audit period under the revised rules and provides a mechanism for annual review of the program by the commissioners. (3) Subsection (d) provides criteria to be used by the division to exclude fatalities involving heart attacks, other diseases of life, homicides, and suicides from the computation. If the circumstances surrounding the fatality are not clear, the fatality will be included in the computation and the employer may exercise his or her right to a hearing. The current rules do not provide for this administrative process, resulting in numerous requests for a hearing pursuant to the Administrative Procedure Act. These APA hearings have resulted in the exclusion of various fatalities from the calculation. The revised rules make use of the experience gained from these hearings to establish an administrative procedure in lieu of always having to go to an APA hearing, which is costly in time and expenses both to the commission and to employers. (4) Finally, subsection (e) provides criteria to be used by the division to convert to injuries, for use in the computation, fatalities caused by third party vehicle accidents (including vehicle/pedestrian accidents), common carrier accidents, natural events, and circumstances beyond the control or jurisdiction of the employer. Again, the current rules do not provide for this administrative process, resulting in numerous requests for a hearing pursuant to the Administrative Procedure Act. These APA hearings have resulted in the exclusion of various fatalities from the calculation. The revised rules make use of the experience gained from these hearings to establish an administrative procedure in lieu of always having to go to an APA hearing, which is costly in time and expenses both to the commission and to employers. In response to a comment, the commission changed the word "may" to "will" in the last sentence of (e)(4). The commission carefully and fully analyzed all the facts presented and the statutory objectives and requirements in formulating these revisions to the Extra-Hazardous Employer Program rules (28 TAC, Chapter 164). Full and objective analysis and consideration was given to all comments received, as evidenced by the revisions made from the new rules, amendments, and repeals as proposed, and the responses to comments in the following paragraphs of this preamble. The factual, statutory, and policy bases for parts of the rules which received comments, are described in these responses. Comments on the proposed new rules, amendments, and repeals were received from The Southland Corporation; and Mitchell Energy Corporation. The following groups and/or individuals submitted comments which suggested changes to the new rules, repeals, and amendments as proposed, but did not specifically state whether they were in overall support or opposition to the rule: The Southland Corporation and Mitchell Energy Corporation. A summary of the comments received and the commission responses are as follows. Comment received regarding sec.164.2. COMMENT: Subsection (b)(4): The requirement for a request for an administrative review to be filed within ten days of receipt of the notification does not provide the employer adequate time to review all pertinent records. The commenter suggested it should be changed to a 20 day time limit, stating such an extension will not detrimentally effect the process. RESPONSE: The commission disagrees. Section 164.1(e) provides that the employer will be given the opportunity to verify the data used in the identification before the notification is made. The division offers the employer two weeks to respond to the request for verification, and extensions to that time are granted for good cause. The notification then takes place some time after that. The data elements presented to the employer for verification are the same data elements considered under an administrative review, so the employer has more than ten days to review pertinent records. Also, extending the time frame to 20 days for requesting an administrative review would seriously impact the employer's ability to obtain a safety consultation and have the initial report submitted to the division within 30 days of notification as required by sec.164.3. Comments received regarding sec.164.14. COMMENT: A commenter suggested that in subsection (e)(4), Circumstances Beyond Control or Jurisdiction of the Employer, the following text be added: add "a fatal injury that occurs as a result of deliberate misconduct by an employee may be classified by the TWCC as an injury rather than a fatality for the purposes of the computation in 28 TAC sec.164.1(c)." Believes it is possible for a responsible employer, one that diligently trains its employees in safe work practices and provides all proper safety equipment, supervision and specific instructions on job performance, to have an employee fatally injured because that employee deliberately disregards the instructions. The employer may have no record of previous employee misconduct that could lead the employer to question the employee's intent to follow instructions. The commenter believes such a situation is beyond the control of the employer and should be treated as such. RESPONSE: The commission acknowledges the concerns but believes the proposed rule, as presently stated, gives the division sufficient authority to classify a fatality as an injury in cases like this, based upon the employer's total accident prevention plans and evidence of enforcement of those plans. COMMENT: Also regarding subsection (e)(4), Circumstances Beyond Control or Jurisdiction of the Employer, another commenter stated that the paragraph as presently written was ambiguous, and suggested that "will" be substituted for "may" in the last sentence so that it reads: "Where the employee, employer or employment environment was involved in the fatality and verifiable information was provided indicating preventive programs were in place and enforced, the fatality will be excluded." RESPONSE: The commission acknowledges the intent of the paragraph could be clarified, and has changed the last sentence to read: "Where the employee, employer or employment environment was involved in the fatality and verifiable information was provided indicating preventive programs were in place and enforced, that fatality will be counted as an injury." COMMENT: Regarding subsection (b), a commenter stated that the threshold level (x) for employers that have one or more fatalities is 1.3 and is not adjusted according to employer size. It appears that small/medium size employers will be identified unfairly with such a threshold level. The commenter recommended the threshold level (x) for employers with one or more fatalities should be adjusted according to employer size as reflected in 164. 14(a). RESPONSE: The commission disagrees. The commissioners selected a single threshold value for those employers experiencing a fatality to ensure that any employer identified for the program has an injury rate above that expected for that employer's business or industry. The threshold level (x) of 1.3 does that. Any employer identified with this threshold would have an injury rate of more than 30% above that expected for that employer's business or industry. 28 TAC sec.sec.164.1-164.12, 164.14 The new rules and amendments are adopted under the Texas Labor Code, sec.402.061, which authorizes the commission to adopt rules necessary to administer the Act, and sec.sec.411.041-411.049, which require the commission to identify extra-hazardous employers and oversee the development and implementation of accident prevention programs. sec.164.1. Criteria For Identifying Extra-Hazardous Employers. (a) The Texas Workers' Compensation Commission (the commission) shall identify employers subject to the Texas Labor Code, sec.411.041, as extra-hazardous based on criteria established by the commission in Chapter 164 of this title (relating to Extra-Hazardous Employer Program). Each employer identified, continued, or monitored shall have the right to administrative review of the findings of the commission by the Workers' Health and Safety Division (the division). In addition, each employer identified, continued in the program or monitored shall have the right to request a hearing to contest the findings of the commission. (b) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Employer-A public or private entity defined by the employer's Federal Employer Identification Number (FEIN) and four-digit Standard Industrial Classification (SIC) code. (2) Employer subject to the program-Every employer who has workers' compensation insurance coverage to the extent that any finding as to extra- hazardous employer status made during such coverage shall continue, even if such coverage is terminated, until such status is removed pursuant to this chapter. In addition, this chapter applies to every employer who is not required to have such coverage and does not have such coverage and employs five or more non- exempt employees. (3) Standard Industrial Classification (SIC) Code-The SIC Code derived from the Standard Industrial Classification Manual, current edition, published by the Office of Management and Budget, and assigned to the employer by the Texas Employment Commission (TEC). (4) Employment(E)-Highest employment recorded during the audit period by the employer in any pay period, for the applicable SIC code, as reported to TEC or substantiated by employer payroll documents. (5) Injuries(I)-The employer's total number of injuries, including lost time injuries, occupational diseases, and fatalities. The category of no lost time injuries will be included when provided by rule. (6) Rate(R) -The employer's injury rate normalized to the number of injuries per 100 employees, for the specified audit period, using the formula (I/E) x 100. (7) Expected Injury Rate (R point=9.03p set=9.03p [sub]expected)-An employer's expected injury rate per 100 employees for the applicable SIC code from the following source: From the most current edition of the Bureau of Labor and Statistics (BLS) publication Survey of Occupational Injuries and Illnesses available to the commission when the audit period is initiated, using Table 1, Injuries and Illnesses, Lost Workday Cases with days away from work column, and using data for the four digit SIC if available; if not, then the three digit SIC if available; if not, then the two digit SIC. If applicable data is not available from the BLS publication, then from the most current edition of the National Safety Council publication Work Injury and Illness Rates available to the commission when the audit period is initiated, using the Cases Involving Days Away From Work and Deaths column, and using data for the four digit SIC if available; if not, then the three digit SIC if available; if not, then the two digit SIC. If applicable data is not available for a specific SIC code from these two sources, the commission will develop an expected rate for the SIC code based on comparison of hazard exposures for the SIC code with the hazard exposures for a SIC code with an established injury rate. Irrespective of source, when the published SIC code rate is less than 1.0, an expected rate of 1.0 will be used. (8) Audit Period-The 12-month period to be used for obtaining employment data and for counting injuries, including occupational diseases and fatalities as specified in sec.164.14 of this title (relating to Values and Criteria Assigned for Computation of Extra-Hazardous Employer Identification). (9) Fatality-The death of an employee from a work-related injury or occupational disease. (10) Occupational diseases-Occupational diseases reported to the commission during the audit period. The occupational disease will be included on the record of the employer under which the last exposure occurred. The occupational disease will be included in the audit period during which it was reported. The exposure need not have occurred during the audit period. (11) Lost Time Injuries-Injuries (excluding occupational diseases and fatalities) resulting in greater than seven days of lost time. Injuries with lost time of greater than one day, but less than eight days, will be included when provided by rule. (12) No Lost Time Injuries-Medical-only injuries with impairment, but no lost time (excluding occupational diseases). (13) Threshold Level (X) -Specified in sec.164.14 and established so as to insure that an identified employer's injury frequency substantially exceeds that which may reasonably be expected in the employer's business or industry. Values for both thresholds will be selected such that no employer will be identified as an extra-hazardous employer who has only one lost time injury or occupational disease reported during the audit period nor will an employer be identified as extra-hazardous whose R does not exceed R point=9.03p set=9.03p>. (c) The following calculation shall be used to determine extra-hazardous employer status. An individual employer's rate of injuries per 100 employees, for the specified audit period, calculated using the formula: R = (I/E) x 100. The computed R is divided by the expected injury rate (R point=9.03p set=9.03p [sub]expected and the result compared to the threshold level established in sec.164.14. If the ratio is greater than the threshold value, the employer is extra-hazardous. (d) The commissioners will by rule establish the threshold values as specified in subsection (b)(13) of this section. (e) Prior to notification, the employer will be given the opportunity to verify FEIN, SIC code, employment, and injury data. (f) An employer whose identification is based solely on one fatality and whose total employment in all SIC codes is less than 20 may be excluded from identification for the program. (1) An employer tentatively identified will be advised by certified mail at the employer's principal place of business that the employer has been tentatively identified for the program, and that the employer may voluntarily request a full OSHCON consultation from the division. (2) If the employer requests a full OSHCON consultation within 30 days of receipt of the tentative identification and receives the consultation within 90 days of the notification, the employer will not be identified for the Extra- Hazardous Employer Program. (3) If the employer does not request and receive a full OSHCON consultation, the employer will be identified for the Extra-Hazardous Employer Program. (4) An employer tentatively identified for the program may request an administrative review of the facts used in the tentative identification as addressed in sec.164.2 of this title (relating to Notice to "Extra-Hazardous Employers"). sec.164.14. Values and Criteria Assigned for Computation of Extra-Hazardous Employer Identification. (a) The following Threshold Levels (X) will be used in the identification of employers that have no fatalities: (1) 1,000 or more employees, the threshold is 1.6; (2) 500-999 employees, the threshold is 1.7; (3) 150-499 employees, the threshold is 1.8; (4) 50-149 employees, the threshold is 2.5; (5) 20-49 employees, the threshold is 5.0; (6) 10-19 employees, the threshold is 10; (7) 5-9 employees, the threshold is 20; (8) 4 employees, the threshold is 25; (9) 3 employees, the threshold is 34; (10) 2 employees, the threshold is 50; and (11) 1 employee, the threshold is 100. (b) The value of the Threshold Level (X) for employers that have one or more fatalities is 1.3. (c) The initial 12-month audit period to be used for counting employment and injuries is September 1, 1993 through August 31, 1994. Subsequent 12-month audit periods will advance by three months for each audit period. The Extra-Hazardous Employer Program will be reviewed at least once each year at the January public meeting, beginning January 1996, for authorization by the commissioners to continue the notification cycles for the next year. (d) Fatal injuries that meet the following screening criteria will be excluded from the computation by the division. (1) Heart Attacks. A fatality resulting from a heart attack that has been successfully controverted and/or shown on a death certificate or autopsy report as the cause of death will not be used in the computation. This includes: cardiac arrest, cardiopulmonary arrest, ischemic heart disease, atherosclerotic coronary artery disease, myocardial infarction, and arteriosclerotic coronary artery disease. If the controversion was challenged for any reason, the TWCC dispute resolution process must have been exhausted and the death found to be non-compensable. If the fatality is found to not be within the course and scope of employment (compensable) the fatality will be excluded. (2) Other Diseases of Life. A fatality resulting from a disease of life unrelated to the employment that has been successfully controverted and/or shown on a death certificate or autopsy report as the cause of death will not be used in the computation. If the controversion was challenged for any reason, the TWCC dispute resolution process must have been exhausted and the death found to be non-compensable. (3) Homicide. A fatal injury resulting from a homicide that did not result from the employment environment will not be used in the computation. To satisfy this criteria, information must be provided that clearly establishes the homicide as a personal matter or random occurrence and not directed at the employee as an employee or because of the employment. If there was workers' compensation insurance, and the homicide was the result of a personal matter, the carrier must have controverted the claim. If the controversion was challenged for any reason, the TWCC dispute resolution process must have been exhausted and the death found to be non-compensable. (4) Suicide. A fatal injury resulting from a suicide will not be used in the computation. To satisfy this criteria, a death certificate plus a police report, and/or insurance investigation must be provided that clearly indicates that the death was a suicide with no indication that it was related to employment. If there was workers' compensation insurance, the carrier must have controverted the claim. If the controversion was challenged for any reason, the TWCC dispute resolution process must have been exhausted and the death found to be non- compensable. (e) Fatal injuries that meet the following screening criteria will be converted to injuries by the division and used in the computation. (1) Third Party Vehicle Accidents (includes vehicle/pedestrian accidents). A fatal injury resulting from a vehicle accident caused by a third party without contribution by the employer, or the employment environment will be included in the computation as an injury rather than as a fatality. In order to satisfy this criteria information should be provided that clearly indicates that the accident was caused by a third party without contribution by the employee, the employer, or the employment environment (such as faulty equipment). Documentation of successful subrogation of cost to a third party is acceptable verification of third party liability. (2) Common Carrier Accidents. A fatal injury that occurred while the employee was a passenger on a common carrier will be included in the computation as an injury rather than as a fatality. In order to satisfy this criteria, documentation should be provided showing that the employee was a passenger on the common carrier at the time of the accident and was not involved in causing the accident. Documentation of successful subrogation of cost to a third party is acceptable as verification. (3) Natural Events. A fatal injury arising out of an act of God, unless the employment exposed the employee to a greater risk of injury from an act of God than ordinarily applies to the general public and whose occurrence or severity could not have been foreseen by a prudent employer will be included in the computation as an injury rather than as a fatality. In order to satisfy this criteria, a documented account of the circumstances surrounding the accident, preferably by an outside source such as law enforcement authorities, OSHA, or an insurance investigator, should be provided that shows the event's occurrence or severity could not have been foreseen and/or that reasonable and prudent actions by the employer would not have prevented it. (4) Circumstances Beyond the Control or Jurisdiction of the Employer. A fatality resulting from circumstances beyond the control or jurisdiction of the employer will be included in the computation as an injury rather than a fatality. Where the employee, employer, or employment environment was involved in the fatality and verifiable information was provided indicating preventive programs were in place and enforced, the fatality will be excluded. 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 February 16, 1995. TRD-9502139 Susan Cory General Counsel Texas Workers' Compensation Commission Effective date: March 14, 1995 Proposal publication date: December 20, 1994 For further information, please call: (512) 440-3700 TITLE 34. PUBLIC FINANCE Part I. Comptroller of Public Accounts Chapter 5. Funds Management (Fiscal Affairs) Claims Processing-Witness Allowances 34 TAC sec.sec.5.71-5.74 The Comptroller of Public Accounts adopts the repeal of sec.sec.5.71-5.74, concerning claims processing-witness allowances, without changes to the proposed text as published in the January 13, 1995, issue of the Texas Register (20 TexReg 215). The sections are being repealed because they are no longer consistent with the various statutes that govern witness allowances. Those statutes were amended by House Bill 1952, 73rd Legislature, 1993. The comptroller does not believe that new sections are needed to reflect this legislation. The witness allowance statutes now provide much more detail than previously, and the comptroller's general rules about the processing of payment documents in the uniform statewide accounting system will sufficiently cover witness allowance payments. No comments were received regarding adoption of the repeals. The repeals are adopted under the Government Code, sec.2101.035, which authorizes the comptroller to adopt rules for the effective operation of the uniform statewide accounting system. The repeals implement the Government Code, sec.2101.035. 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 February 21, 1995. TRD-9502214 Martin Cherry Chief, General Law Comptroller of Public Accounts Effective date: March 15, 1995 Proposal publication date: January 13, 1995 For further information, please call: (512) 463-4028 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part XIII. Texas Commission on Fire Protection Chapter 421. Standards for Certification 37 TAC sec.421.1 The Texas Commission on Fire Protection adopts an amendment to sec.421.1, concerning standards for certification, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8844). The justification for the amendment is that local governments will be able to budget and plan for rule changes. The amendment provides that rules finally adopted before May 1st, should go into effect January 1st, of the following year and rules finally adopted after May 1st, should go into effect no sooner than one year from January 1st, of the following year, unless the committee recommends a sooner effective date for issues such as health and safety or undue hardship. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.023, which provides the commission with authority to establish a fire protection personnel advisory committee. 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 February 16, 1995. TRD-9502180 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 423. Fire Suppression Subchapter A. Minimum Standards for Structure Fire Protection Personnel Certification 37 TAC sec.sec.423.1, 423.3, 423.5 The Texas Commission on Fire Protection adopts amendments to sec.sec.423.1, 423.3, and 423.5, concerning structural fire protection personnel, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8844). The justification for the amendments is that the new curriculum approval process limiting curriculum changes to an annual basis will aid training academies in planning and budgeting. The amendments delete language in sec.423.1 concerning adoption by reference of the curriculum to accommodate the final adoption of the new curriculum approval process in adopted new chapter 443 concerning the certification curriculum manual. Subsection (h) adds the provision that applicants for certification from another jurisdiction with accreditation from the International Fire Service Accreditation Congress are deemed to have equivalent training. Changes to sec.423.3 and sec.423.5 provide clarification that old or new National Fire Academy courses can be used for higher levels of certification. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419. 022, which provides the commission with authority to establish minimum training standards for fire protection personnel and for advanced positions; and Texas Government Code, sec.419.032(d) which provides the commission with authority to adopt rules relating to presentation of evidence of training in another jurisdiction equivalent in content and quality and authorizing the commission to waive any certification requirement for an applicant with a license from another state having certification requirements equivalent to those of this state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502181 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Subchapter B. Minimum Standards for Aircraft Crash and Rescue Fire Protection Personnel 37 TAC sec.sec.423.201, 423.203, 423.205, 423.207 The Texas Commission on Fire Protection adopts amendments to sec.sec.423.201, 423.203, 423.205, and 423.207, concerning aircraft rescue and fire protection personnel certification, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9475). The justification for the amendments is that aircraft rescue fire protection personnel that respond to structure fires on or off airport property will be properly trained and the new curriculum approval process limiting curriculum changes to an annual basis will aid training academies in planning and budgeting. The amendment to sec.423.201 provides that aircraft rescue and fire protection personnel who also perform structure fire suppression duties must also be certified as structure fire protection personnel. The amendments to sec.423.203 delete language concerning adoption by reference of the curriculum to accommodate the new certification curriculum approval process outlined in new Chapter 443 concerning the Certification Curriculum Manual. Finally, amendments to sec.423.205 and sec.423.207 add language allowing credit for higher levels of certification for old or new National Fire Academy courses. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; Texas Government Code, sec.419. 022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; and Texas Government Code, sec.419.038, which provides the commission with authority to adopt minimum standards for aircraft fire protection personnel certification. 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 February 16, 1995. TRD-9502182 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 918-7184 Subchapter C. Minimum Standards for Marine Fire Protection Personnel 37 TAC sec.423.301 The Texas Commission on Fire Protection adopts the repeal of sec.423.301, concerning minimum standards for marine fire protection personnel certification, without changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6988). The repealed section is replaced by a new section dealing with the same subject matter. The repeal is effective January 1, 1996. The justification for the repeal is to replace it with a new section that will allow for consistency of the certification requirements for marine fire protection personnel with other fire suppression disciplines. In addition, potential applicants for certification from other jurisdictions will have specific guidelines by which the commission staff will determine equivalency and local fire departments can eliminate duplication of training costs. The repealed section is replaced by new sections that establish requirements for marine fire protection personnel certification in a format that is consistent with other disciplines including completion of an approved marine fire protection personnel curriculum and completion of an examination requirement. No comments were received regarding adoption of the repeal. The repeal is adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions. 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 February 16, 1995. TRD-9502184 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1996 Proposal publication date: September 6, 1994 For further information, please call: (512) 918-7184 37 TAC sec.sec.423.301, 423.303, 423.305, 423.307, 423.309 The Texas Commission on Fire Protection adopts new sec. sec.423.301, 423.303, 423.305, 423.307, and 423.309, concerning minimum standards for marine fire protection personnel certification, with changes to the proposed text as published in the September 6, 1994, issue of the Texas Register (19 TexReg 6988). The changes consist of changing the effective date in sec.423. 301(a) and sec.423.303(a) to January 1, 1996. The justification for the new sections is that certification requirements (including an examination to determine competency) for marine fire protection personnel will be consistent with other fire suppression disciplines. In addition, potential applicants for certification from other jurisdictions will have specific guidelines by which the commission staff will determine equivalency. Finally, local fire departments can eliminate duplication of training costs for employees who have previously received training required for structural fire protection personnel certification. The new sections establish requirements for marine fire protection personnel certification in a format consistent with other disciplines including completion of an approved marine fire protection personnel curriculum and completion of an examination requirement. The new curriculum reduces the number of hours for marine fire protection training from 285 hours to 90 hours by eliminating subjects covered in the basic fire suppression curriculum required for structure certification. The new standard for basic marine certification therefore requires eligibility for structure certification as a prerequisite. In addition, the new sections more clearly delineates the class of persons for whom certification is required by limiting the requirements to fire fighters who work aboard a fire boat with a minimum pumping capacity of 2,000 gallons per minute. The new sections also includes guidelines for the evaluation of military and out-of-state training for marine fire protection personnel consistent with similar guidelines for structure fire fighters. Finally, the new sections include provisions for higher levels of marine certification with requirements consistent with other disciplines. Comments received from the Port of Houston Authority are summarized as follows: The effective date in sec.423.301(a) and sec.423.303(a) should be changed to January 1, 1996. The prohibition of assignment to marine fire suppression duties prior to training in sec.423.301(d) would constitute an undue hardship if it required a trainee to be removed from a fire boat responding to a call. Training facility requirements in sec.423.303(b)(2)(A) would be unreasonable if a burn building is required for a marine training facility. The commission agrees that the effective date of the new chapter should be changed to January 1, 1996. The commission further agrees that the rules as adopted would not require removal of a marine fire protection personnel trainee from a fire boat responding to a call provided it is fully manned with certified personnel and the trainee is used only in a non-suppression role, such as communications. Finally, the training facility requirements as adopted require only equipment and facilities appropriate to the basic marine fire protection curriculum which does not include a burn building. The new sections are adopted under the Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; the Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel in advanced or specialized fire protection personnel positions; and Texas Government Code, sec.419.037, which provides the commission with authority to adopt requirements for marine fire protection personnel certification. sec.423.301. Minimum Standards For Marine Fire Protection Personnel. (a) The effective date of this section shall be January 1, 1996. (b) Marine Fire Protection Personnel are employees of a local governmental entity who work aboard a fire boat with a minimum pumping capacity of 2,000 gallons per minute, and fights fires that occur on or adjacent to a waterway, waterfront, channel, or turning basin. (c) All full time, full paid employees of any local government entity, who are assigned marine fire protection duties must be certified by the commission within two years from the date of their employment in a marine fire protection personnel position. (d) As a minimum, all personnel must have completed all requirements specified in sec.423.303 of this title (relating to Minimum Standards for Basic Marine Fire Protection Personnel) prior to being assigned to marine fire suppression duties. (e) All personnel holding any level of Marine Fire Protection Personnel certification shall be required to comply with the continuing education specified in sec.441.11 of this title (relating to Continuing Education Requirements for Marine Fire Protection Personnel). sec.423.303. Minimum Standards For Basic Marine Fire Protection Personnel Certification. (a) The effective date of this sub chapter shall be January 1, 1996. Training programs that are intended to satisfy the requirements for Basic Marine Fire Protection Personnel certification, that are started after the effective date of this subchapter, must meet the curriculum, competencies, and hour requirements of this subchapter. All applicants for certification must meet the examination requirements of this section. (b) In order to obtain basic Marine Fire Protection Personnel certification the individual must: (1) hold or be eligible to hold basic structure fire protection personnel certification; (2) complete a training program specific to marine fire protection consisting of one of the following: (A) complete the commission approved Basic Marine Fire Protection Curriculum of at least 90 total hours as specified in Chapter 3, of the commission's document titled "Commission Certification Curriculum Manual", as approved by the commission in accordance with Chapter 443, of this title (relating to Certification Curriculum Manual). The commission approved marine fire protection curriculum must be taught by a training facility that has been certified by the commission as provided in Chapter 427 of this title (relating to Minimum Standards for Training Facilities); or (B) an out-of-state training program that has been submitted to the commission for evaluation and found to be equivalent to or exceed the commission approved Basic Marine Fire Protection Curriculum; or (C) A military training program that has been submitted to the commission for evaluation and found to be equivalent to the commission approved Basic Marine Fire Protection Curriculum. (3) successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification) prior to assignment. (c) Out-of-state or military training programs which are submitted to the commission for the purpose of determining equivalency will be considered equivalent if the subjects taught, subject content, hours of training in each subject, and total hours of training meet or exceed the requirements set forth in Chapter 3 (pertaining to Marine Fire Protection) of the Commission's Certification Curriculum Manual for Paid Fire Protection Personnel. (d) A person who holds or is eligible to hold a certificate upon employment as a part-time marine fire protection personnel may be certified as a marine fire protection personnel, of the same level of certification, without meeting the applicable examination requirements. (e) If a person holds a current certification as a part-time marine fire protection personnel, the Texas Department of Health emergency care attendant certification may be satisfied by documentation of equivalent training or certification in lieu of current certification by the Texas Department of Health. sec.423.305. Minimum Standards For Intermediate Marine Fire Protection Personnel. (a) Applicants for Intermediate Marine Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite a Basic Marine Fire Protection Personnel Certification as defined in sec.423.303 of this title (relating to Minimum Standards for Basic Marine Fire Protection Personnel Certification). (2) acquire one of the following combinations of college education or training points, and the listed years of fire protection experience, which may include the training points and the years of experience used to qualify for all lower levels of Marine Fire Protection Personnel Certification: (A) 20 training points and at least eight years of service; or (B) 20 training points which includes at least 15 college semester hours in fire science subjects and at least seven years of service; or (C) 40 training points and at least six years of service; or (D) 40 training points which includes at least 15 college semester hours in fire science subjects and at least five years of service; or (E) An associate degree or 60 training points and at least four years of service; or (F) An associate degree or 60 training points, either of which includes at least 15 college semester hours in fire science subjects and at least three years of service; or (G) A baccalaureate degree or an associate degree in Fire Science or 120 training points and at least two years of service. (3) As part of the training specified in paragraph (2) of this section, complete the courses listed in one of the following options: (A) Option Number 1-Successfully complete six semester hours of fire science from an approved Fire Protection Degree Program from the following courses: (i) Fire Administration I, or a course that meets the following course description -Organization and management of a fire department. Topics include budgeting, maintenance of records and reports, and management of fire department officers. Personnel administration, distribution of equipment and personnel, and relations of government agencies to fire protection areas. Fire Service Leadership as viewed from the company officer's position; or (ii) Fire Fighting Tactics and Strategy, or a course that meets the following course description-Essential elements in analyzing the nature of fire and determining the requirements to fight a fire. Efficient and effective utilization of manpower, equipment and apparatus. Pre-planning, conflagration problems, fire ground organization problem-solving related to fire ground decision making and attack tactics and strategy. Use of mutual aid and large scale command problems; or (iii) Hazardous Materials I, or a course that meets the following course description-Characteristics and behavior of various materials that burn or react violently are studied. Flammable liquids, combustible solids, and gases are included. Storage, transportation, and handling are covered. Emphasis is on emergency situations and methods of control. (B) Option Number 2-Complete a minimum of 80 hours of instruction in any National Fire Academy resident program. This training must be in addition to any training used to qualify for Basic Marine Fire Protection Personnel Certification. (C) Option Number 3-Complete a minimum of 80 hours in the following National Fire Academy off-campus courses: (i) Incident Command System (ICS) (16 hours); (ii) Initial Response to Hazardous Materials Incidents: Basic Concepts (12 hours) and Recognizing and Identifying Hazardous Materials (3 hours); (iii) Initial Response to Hazardous Materials incidents: Concept Implementation (16 hours); (iv) Instructional Techniques for Company Officers (12 hours); (v) Public Fire Education Planning (12 hours); (vi) Pesticide Challenge (12 hours); (vii) Conducting Basic Fire Prevention Inspections (12 hours); (viii) Fire/Arson Detection (12 hours); (ix) Managing Company Tactical Operations: Preparation (12 hours); (x) Managing Company Tactical Operations: Command Decision Making (12 hours); (xi) Managing Company Tactical Operations: Tactics (12 hours); It is recommended, by the NFA, that the Managing Company Tactical Operations Series be taken in the sequence listed. (D) Option Number 4-Successfully complete three semester hours of the courses listed in option #1 and 40 hours of the courses listed in option number 3. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Intermediate Marine Fire Protection Personnel Certification. (c) If a National Fire Academy off campus course(s) is discontinued or is replaced by a new course, the old or the new course may be used toward requirements for certification. (d) Non-traditional credit awarded at the college level, such as credit by experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. Credit will not be given for repeating a course or courses of similar content. sec.423.307. Minimum Standards For Advanced Marine Fire Protection Personnel Certification. (a) Applicants for Advanced Marine Fire Protection Personnel certification must complete the following requirements: (1) hold as a prerequisite an Intermediate Marine Fire Protection Personnel Certification as defined in sec.423.305 of this title (relating to Minimum Standards for Basic Marine Fire Protection Personnel Certification). (2) acquire one of the following combinations of college education or training points, and the listed years of fire protection experience, which may include the training points and the years of experience used to qualify for all lower levels of Marine Fire Protection Personnel Certification: (A) 40 training points and at least 12 years of service; or (B) 40 training points which includes at least 15 college semester hours in fire science subjects and at least ten years of service; or (C) An associate degree or 60 training points and at least 12 years of service; or (D) An associate degree or 60 training points, either of which includes at least 15 college semester hours in fire science subjects and at least six years of service; or (E) A baccalaureate degree or an associate degree in Fire Science or 120 training points and at least four years of service; (F) A baccalaureate degree or 120 training points either of which must includes at least 15 college semester hours in fire science subjects and at least three years of service. (3) As a part of the training specified in paragraph (2) of this subsection, complete the courses listed in one of the following options: (A) Option Number 1-Successfully complete six semester hours in fire science from an approved Fire Protection Degree Program from the following courses: (i) Fire Administration II, or a course that meets the following course description-Insurance rates and ratings, preparation of budgets, administration and organization of training in the fire department; city water requirements, fire alarm and communication systems; importance of public relations, report writing and record keeping are stressed; measurements of results, use of records to improve procedures, and other related topics; legal aspects relating to fire prevention and fire protection with stress on municipal and state agencies; design and construction of fire department buildings; or (ii) Fire Safety Education, or a course that meets the following course description -Physical, chemical, and electrical hazards and their relationship to loss of property and life. Study of codes, laws, problems, and cases. Detailed examination of the physical and psychological variables related to the occurrence of casualties. Safe storage, transportation, and handling techniques are stressed to eliminate or control potential risks; or (iii) Building Construction, or a course with the following course description-Fundamental consideration and exploration of building construction and design with emphasis on fire resistance of building materials and assemblies, exposures, and related data focused on fire protection concerns; elements of structural collapse and failure during a fire are included; or (iv) Building Codes, or a course with the following course description-An in- depth study of the National Fire Protection Association's Life Safety Code. An introduction to other model codes and the fire codes as they relate to building design; or (v) Building Codes and Construction, or a course with the following course description-The fire resistance of building construction is considered. Included are building materials, assemblies, and exposures. Both local and national laws and guidelines are reviewed. Model building codes and the life safety code are also studied. (B) Option Number 2-Complete a minimum of 80 hours of instruction in any National Fire Academy on-campus resident program. This training must be in addition to any training used to qualify for Intermediate Marine Fire Protection Personnel Certification. (C) Option Number 3-Complete a minimum of 80 hours in the following National Fire Academy off-campus courses: (i) Building Construction for Fire Suppression Forces -Principles, Wood and Ordinary Construction (12 hours); (ii) Building Construction for Fire Suppression Forces -Principles, Non- Combustible and Fire Resistive Construction (12 hours); (iii) Firefighter Safety and Survival: The Company Officer's Responsibility (16 hours); (iv) Firefighter Health and Safety: Program Implementation & Management (16 hours); (v) Fire Service Management (12 hours); (vi) Leadership I: Strategies for Company Success (12 hours); (vii) Leadership II: Strategies for Personal Success (12 hours); (viii) Leadership III: Strategies for Supervisory Success (12 hours); (ix) Fire Supervision-Increasing Team Effectiveness (12 hours); (x) Fire Supervision-Increasing Personal Effectiveness (12 hours); (xi) Infection Control for Emergency Response Personnel: The Supervisors Role and Responsibilities (12 hours) (D) Option Number 4-Successfully complete three semester hours of the courses listed in option #1 and 40 hours of the courses listed in option number 3. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Advanced Marine Fire Protection Personnel Certification. (c) If a National Fire Academy off campus course(s) is discontinued or is replaced by a new course, the old or the new course may be used toward requirements for certification. (d) Non-traditional credit awarded at the college level, such as credit by experience or credit by examination obtained from attending any school in the commission's document titled "Commission Certification Curriculum Manual" or for experience in the fire service, may not be counted toward higher levels of certification. Credit will not be given for repeating a course or courses of similar content. sec.423.309. Minimum Standards for Master Marine Fire Protection Personnel Certification. (a) Applicants for Master Marine Fire Protection Personnel Certification must complete the following requirements: (1) hold as a prerequisite an Advance Marine Fire Protection Personnel Certification as defined in sec.423.307 of this title (relating to Minimum Standards for Basic Marine Fire Protection Personnel Certification). (2) acquire one of the following combinations of college education or training points, and the listed years of fire protection experience, which may include the training points and the years of experience used to qualify for all lower levels of Marine Fire Protection Personnel Certification: (A) An associate degree of 60 college semester hours and at least 12 years of service; or (B) An associate degree or 60 college semester hours, either of which includes at least 15 college semester hours in fire science subjects and at least nine years of service; or (C) An associate degree in Fire Science and at least six years of service; or (D) A baccalaureate degree or 120 college semester hours and at least six years of service. (E) A baccalaureate degree or 120 training points either of which includes at least 15 college semester hours in fire science subjects and at least four years of service. (F) A master's degree and at least four years of service. (b) College level courses from both the upper and lower division may be used to satisfy the education requirement for Master Marine Fire Protection Personnel Certification. 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 February 16, 1995. TRD-9502183 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: January 1, 1996 Proposal publication date: September 6, 1994 For further information, please call: (512) 918-7184 Chapter 425. Fire Protection Personnel Instructors Subchapter B. Instructor Training Courses 37 TAC sec.425.201 The Texas Commission on Fire Protection adopts an amendment to sec.425.201, concerning instructor training courses, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8845). The justification for the amendment is clarification of the reciprocity agreement with the Texas Department of Health regarding instructor training courses. The amendment clarifies that only the instructor certification course is needed and not a certification from the Texas Department of Health. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. 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 February 16, 1995. TRD-9502185 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 425. Fire Protection Instructor Subchapter C. Fire Education Specialist Certification 37 TAC sec.425.301 The Texas Commission on Fire Protection adopts an amendment to sec.425.301, concerning fire education specialist certification, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8846). The justification for the amendment is clarification of the requirements for out-of-state and military applicants seeking certification as fire education specialists. The amendment to subsection (b) changes the wording "service instructor" to "education specialist". No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. 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 February 16, 1995. TRD-9502186 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Subchapter D. Associate Instructor Certification 37 TAC sec.425.401 The Texas Commission on Fire Protection adopts an amendment to sec.425.401, concerning minimum standards for associate instructor certification, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8846). The justification for the amendment is the clarification of the original intent of limiting associate instructor certification to persons not in the fire service. The amendments restrict the associate instructor certificate to those not in the fire service and the deletion of (c)(2) removes the approval by a fire chief. Also, an addition to subsection (b) adds language for the approval by the commission of out-of-state instructor training. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(3), which provides the commission the authority to certify persons as qualified fire protection personnel instructors under conditions the commission prescribes. 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 February 16, 1995. TRD-9502187 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 427. Certified Training Facilities 37 TAC sec.427.15 The Texas Commission on Fire Protection adopts an amendment to sec.427.15, concerning training facilities, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8847). The justification for the amendment will be to ensure that training academies conduct written comprehensive tests for all disciplines of fire protection personnel certification taught by the academy. The amendment changes the wording referencing "basic firefighter curriculum" to "training curriculum" to clarify that the curriculum used by training facilities includes all training curricula for each certification, and provide consistent comprehensive testing by academies. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to propose rules for the administration of its powers and duties; and Texas Government Code, sec.419.028(1), which provides the commission the authority to certify facilities operated for training fire protection personnel. 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 February 16, 1995. TRD-9502188 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 429. Minimum Standards for Fire Inspectors 37 TAC sec.sec.429.3, 429.5, 429.7 The Texas Commission on Fire Protection adopts amendments to sec.sec.429.3, 429.5, and 429.7, concerning minimum standards for basic fire inspector certification, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8847). The justification for the amendments is that the new curriculum approval process limiting curriculum changes to an annual basis will aid training academies in planning and budgeting. The change to NFA course requirements avoids unnecessary duplication of training costs. In addition, the limitation of the college route for basic certification to courses relevant to fire protection and prevention (without an associate degree requirement) encourages additional training of fire protection personnel for the benefit of the community served by those personnel. The amendment to sec.429.3 allows for the implementation of the new curriculum approval process and removes the requirement of an associate degree for basic certification. The amendments to sec.429.5 and sec.429.7 allow credit for old or new NFA courses for higher levels of certification. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and the Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. 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 February 16, 1995. TRD-9502189 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 431. Minimum Standards for Fire and Arson Investigator 37 TAC sec.sec.431.3, 431.5, 431.7 The Texas Commission on Fire Protection adopts amendments to sec.sec.431.3, 431.5, and 431.7, concerning fire and arson investigator, with changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8848). The change in sec.431.3 consists of adding language in subparagraph (b)(3)(D) that allows a course substitution for Building Construction, consistent with similar language for Basic Fire Inspector Certification. The justification for the amendments is that the new curriculum approval process limiting curriculum changes to an annual basis will aid training academies in planning and budgeting. The change to NFA course requirements avoids unnecessary duplication of training costs. In addition, the limitation of the college route for basic certification to courses relevant to fire protection and prevention (without an associate degree requirement) encourages additional training of fire protection personnel for the benefit of the community served by those personnel. The changes to sec.431.3 allow for the implementation of the new curriculum approval process and removes the requirement for an associates degree for basic certification. The changes to sec.431.5 and sec.431.7 allow credit for old or new NFA courses for higher levels of certification. Comments regarding the proposal were received from representatives of the Austin Fire Department and the Testing Advisory Committee. The commenters were in favor of eliminating the degree requirement for the college alternative for basic fire and arson investigator certification, but recommended allowing course substitution of "Building Codes and Construction" for "Building Construction" as is permitted for basic fire inspector certification. The commission agrees with the commenters and finally adopts the amendments to sec.431.3 with changes to allow the course substitution. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022(a)(5), which provides the commission with authority to establish minimum standards for admission to employment as fire protection personnel and for advanced or specialized fire protection personnel positions. sec.431.3. Minimum Standards for Basic Fire and Arson Investigator Certification (a) (No change.) (b) In order to be certified by the commission as a Basic Fire and Arson Investigator an individual must: (1)-(2) (No change.) (3) complete a commission approved basic fire and arson investigator program and successfully pass the commission examination as specified in Chapter 439 of this title (relating to Examinations for Certification) within one year from the date of initial appointment to the position. An approved basic fire and arson investigation program shall consist of one of the following: (A) completion of the commission approved Basic Fire and Arson Investigator Curriculum of at least 122 total hours, as specified in Chapter 5, of the commission's document titled "Commission Certification Curriculum Manual", as approved by the commission in accordance with Chapter 443, of this title, (relating to Certification Curriculum Manual); or (B) (No change.) (C) successful completion of an out of state training program which has been submitted to the commission for evaluation and found to meet the minimum requirements as listed in the commission approved Basic Fire and Arson Investigator Curriculum as specified in Chapter 5, of the commission's document titled "Commission Certification Curriculum Manual"; (D) successful completion of the following college courses: Arson Investigator I-three semester hours; Arson Investigator II-three semester hours; Hazardous Materials I-three semester hours; Building Construction-three semester hours; Fire Protection Systems-three semester hours: Total semester hours-15. The three semester hour course "Building Codes and Construction" may be substituted for Building Construction. (c) (No change.) sec.431.5. Minimum Standards for Intermediate Fire and Arson Investigator Certification. (a)-(b) (No change.) (c) If a National Fire Academy off campus course is discontinued and is replaced by a new course, the old or new course may be used toward requirements for certification. (d) (No change.) sec.431.7. Minimum Standards for Advanced Fire and Arson Investigator Certification. (a)-(b) (No change.) (c) If a National Fire Academy off campus course is discontinued and is replaced by a new course, the old or new course may be used toward requirements for certification. (d) (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 February 16, 1995. TRD-9502190 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 437. Fees 37 TAC sec.437.11 The Texas Commission on Fire Protection adopts an amendment to sec.437.11, concerning copy fees, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8849). The justification for the amendment is that obsolete language for copy charges is deleted which conflicted with agency wide rules for copy charges adopted in Chapter 405 of this title consistent with General Services Commission guidelines. The changes to this section correspond with the new Chapter 405 adopted by the commission regarding agency wide copy charges. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Civil Statutes, Article 6252-17a, sec.9(A)(b), which require each state agency to specify by rule the changes the agency will make for copies of public records. 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 February 16, 1995. TRD-9502191 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 439. Examinations for Certification 37 TAC sec.439.3 The Texas Commission on Fire Protection adopts an amendment to sec.439.3, concerning examinations for certification, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8849). The justification for the amendment is the elimination of cost, time lost and undue hardship resulting from testing deemed unnecessary by the commission. This amendment allows for persons who continuously held aircraft rescue and fire protection personnel certification between April 1, 1993, and the effective date of this proposal, who completed the basic fire suppression program, but were not certified, to receive a basic structural fire protection personnel certification. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, 419.032(b), concerning basic certification examinations and continuing education programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502192 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 443. Certification Curriculum Manual 37 TAC sec.443.5 The Texas Commission on Fire Protection adopts new sec.443.5, concerning Effective Dates of Curricula or Changes to Curricula Required by Law or Rule, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9477). The justification for the new section will be the annual implementation of curriculum changes will aid local governments in budgeting and planning for training costs. The new section provides for annual changes only to curricula approved by the commission unless a safety consideration is found by the advisory committee. No comments were received regarding adoption of the new section. The new section is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.022, which provides the commission with authority to establish minimum training standards for fire protection personnel. 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 February 16, 1995. TRD-9502193 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 918-7184 Chapter 447. Part-Time Fire Protection Employee 37 TAC sec.447.1 The Texas Commission on Fire Protection adopts an amendment to sec.447.1, concerning minimum standards for part-time fire protection employees, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8850). The justification for the amendment will be the cost and time required to provide duplication of ECA training deemed unnecessary is eliminated. The amendment allows a full-time full paid fire fighter to obtain a part-time certification by possessing training equivalent to the Texas Department of Health ECA certification. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.0321, which provides that the commission shall create a separate certification class for part-time fire protection employees. 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 February 16, 1995. TRD-9502194 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 471. Standards for Volunteer Certification 37 TAC sec.sec.471.1, 471.3, 471.5 The Texas Commission on Fire Protection adopts amendments to sec.471.1 and sec.471.3, and new sec.471.5, concerning standards for volunteer certification, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9477). The justification for the amendments and new section will be to coordinate election of officers for the Volunteer Fire Fighter Advisory Committee to coincide with new appointments; to provide guidelines for effective dates that aid in budgeting and planning by local governments; and to expand the certification and training of volunteers to include other disciplines of volunteer fire protection personnel providing protection to communities in Texas. The amendments to sec.471.1 change the election of officers from the meeting following October 1st to the meeting following February 1st of each year and establish guidelines for effective dates of rule changes. The term volunteer fire fighter is changed to volunteer fire protection personnel throughout the sections. Finally, new section 471.5 concerning definitions is added to replace a repealed section concerning the same subject matter to add a definition of "recognition of training," to delete the definition of "module," and to omit the numbering of definitions. No comments were received regarding adoption of the amendments and new section. The amendments and new section are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502195 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 918-7184 37 TAC sec.471.5 The Texas Commission on Fire Protection adopts the repeal of sec.471.5, concerning definitions relating to standards for volunteer certification, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6895). The justification for the repeal is to replace obsolete language in the definitions pertaining to volunteer fire protection personnel certification. The repealed section is replaced by a new section relating to the same subject matter that adds new definitions and deletes the numbering of definitions. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502196 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 918-7184 Chapter 472. Volunteer Certification Curriculum Manual 37 TAC sec.sec.472.1, 472.3, 472.5, 472.7, 472.9 The Texas Commission on Fire Protection adopts new sec. sec.472.1, 472.3, 472. 5, 472.7, and 472.9, concerning certification curriculum manual, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8850). The justification for these sections is to aid local governments in budgeting and planning for training by limiting curriculum changes to an annual basis. In addition, the requirement of conformance of curricula to NFPA standards provides consistency with a national standard and provides groundwork for accreditation by the International Fire Service Accreditation Congress for the commission's volunteer certification program. The new sections provide for a new certification curriculum approval process which maintains the requirement of approval by the commission and the Volunteer Fire Fighter Advisory Committee. In addition, the new approval process provides for annual changes only unless a safety consideration is found and requires the committee and commission to address new or revised National Fire Protection Association standards pertaining to the curricula. There is no automatic change to a curriculum without committee and commission approval. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502197 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 473. Volunteer Fire Fighter 37 TAC sec.sec.473.1, 473.3, 473.5, 473.7, 473.9 The Texas Commission on Fire Protection adopts amendments to sec.473.1 and new sec.sec.473.3, 473.5, 473.7, and 473.9, concerning volunteer fire fighter certification, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8851). The justification for these sections is that the availability of higher levels of certification for volunteer fire fighter encourages volunteer personnel to seek additional training and benefits the communities served by those persons by providing better fire protection. The amendments to sec.473.1 conform the section to statutory changes regarding requirements for persons receiving certification by the State Firemen's and Fire Marshals' Association after September 1, 1993. New sec.sec.473. 3, 473.5, and 473.7 add voluntary standards for higher levels of volunteer fire fighter certification (including intermediate, advanced, and master levels) which track the requirements for paid structural fire protection personnel. New sec.473.9 replaces repealed sec.473.5 concerning the same subject matter that is renumbered for administrative convenience. No comments were received regarding the amendments and new section. The amendments and new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502198 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 37 TAC sec.473.3, sec.473.5 The Texas Commission on Fire Protection adopts the repeal of sec.473.3 and sec.473.5 concerning adoption by reference and maintaining certification for volunteer fire fighters, without changes to the proposed text as published in the September 2, 1994, issue of the Texas Register (19 TexReg 6895). The justification for the repeal is that the sections are renumbered to allow organization of sections pertaining to basic and higher levels of volunteer fire fighter certification in a manner that is easily understood by the public. The repealed sections are being replaced by new sections with the same subject matter that have been renumbered for administrative convenience. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502199 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: September 2, 1994 For further information, please call: (512) 918-7184 Chapter 476. Volunteer Fire Fighter Investigator 37 TAC sec.sec.476.1, 476.3, 476.5, 476.7, 476.9 The Texas Commission on Fire Protection adopts new sec. sec.476.1, 476.3, 476. 5, 476.7, and 476.9, concerning volunteer fire investigator, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8854). The justification for the new sections is increased fire protection for communities served by volunteer fire investigation personnel that receive training required for certification. The new sections provide volunteer fire investigation personnel the opportunity to become certified at levels from basic through master levels. The requirements for the various levels track the requirements for paid fire investigator certification. New sec.476.3(b)(2) allows certification at the basic level of persons holding certification as fire or arson investigator from the State Firemen's and Fire Marshals' Association prior to January 1, 1994. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and Texas Government Code, sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502200 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 478. Volunteer Fire Inspector 37 TAC sec.sec.478.1, 478.3, 478.5, 478.7 The Texas Commission on Fire Protection adopts amendments to sec.sec.478.1, 478.3, 478.5, and 478.7, concerning Volunteer Fire Inspector, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9479). The justification for these sections is a possible increase in the number of persons seeking fire inspector certification through the college route by making it more accessible (by requiring only fire prevention and fire protection courses and no associate degree) which may indirectly improve fire prevention in communities served by volunteer fire inspection personnel. In addition, the annual implementation schedule for curriculum changes aids local governments in budgeting and planning for training. The amendment to sec.478.1 requires a person who holds a certificate that has been inactive for more than a year to retake the commission examination. The amendment to sec.478.3 deletes language concerning adoption by reference of the inspector curriculum in order to accommodate the proposal of a new curriculum approval process in new chapter 472 concerning Volunteer Certification Curriculum Manual and removes the requirement for an associate degree for basic certification. The amendments to sec.478.5 and sec.478.7 allow either old or new National Fire Academy courses to be used toward higher levels of certification. No comments were received regarding adoption of the amendments. The amendments are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and 419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502201 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 918-7184 37 TAC sec.478.11 The Texas Commission on Fire Protection adopts the repeal of sec.478.11, concerning adoption by reference, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8857). The repeal is proposed to provide for the new curriculum approval process under the proposed new chapter 472 entitled Volunteer Certification Curriculum Manual. The justification for the repeal is to replace it with a new chapter that will allow for better budget and planning for training. The repealed section is replaced by a new chapter concerning the new curriculum approval process which maintains the requirement of approval by the commission and the Volunteer Fire Fighter Advisory Committee. No comments were received regarding adoption of the repeal. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and 419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502202 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184 Chapter 479. Examinations for Volunteer Fire Fighter Certification 37 TAC sec.sec.479.1, 479.3, 479.5, 479.7, 479.9, 479.11 The Texas Commission on Fire Protection adopts the repeal of sec.sec.479.1, 479.3, 479.5, 479.7, 479.9, and 479.11, concerning examinations for volunteer certification, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9480). The justification for the repeal of these sections is to provide a clearer understanding of certification testing for volunteer fire protection personnel in a manner consistent with testing of paid personnel. The repealed sections are replaced by new sections dealing with the same subject matter which conform the volunteer examinations to changes in procedures for examinations for paid fire protection personnel. No comments were received regarding adoption of the repeals. The repeal is adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and sec.419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502204 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 918-7184 37 TAC sec.sec.479.1, 479.3, 479.5, 479.7, 479.9, 479.11, 479.13 The Texas Commission on Fire Protection adopts new sec. sec.479.1, 479.3, 479. 5, 479.7, 479.9, 479.11 and 479.13, concerning examinations for volunteer certification, without changes to the proposed text as published in the December 2, 1994, issue of the Texas Register (19 TexReg 9481). The justification for this section is to provide a clearer understanding of certification testing for volunteer fire protection personnel in a manner consistent with testing of paid personnel. The new sections replace repealed sections dealing with the same subject matter and conform the volunteer examinations to changes in procedures for examinations for paid fire protection personnel. No comments were received regarding adoption of the new sections. The new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and 419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502203 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: December 2, 1994 For further information, please call: (512) 918-7184 Chapter 485. Volunteer Fire Fighter Continuing Education 37 TAC sec.sec.485.3, 485.5, 485.9, 485.11 The Texas Commission on Fire Protection adopts amendments to sec.485.3 and sec.485.5 and new sec.485.9 and sec.485.11, concerning volunteer certification continuing education, without changes to the proposed text as published in the November 8, 1994, issue of the Texas Register (19 TexReg 8857). The justification for these sections is to assure the public that the competency of certified volunteer fire inspection and investigation personnel is maintained through continuing education, and to provide a uniform expiration date of volunteer certification. The amendments to sec.485.3 specify the renewal date to be October 31, of each year. The amendment to sec.485.5 adds a provision that 20 hours of continuing education renews all commission volunteer certificates held by an individual. The new sec.485.9 and sec.485.11 provide for the continuing education of volunteer fire inspection personnel and volunteer fire investigation personnel respectively. No comments were received regarding adoption of the amendments and new sections. The amendments and new sections are adopted under Texas Government Code, sec.419.008, which provides the Texas Commission on Fire Protection with authority to adopt rules for the administration of its powers and duties; and 419.071(e), which provides the Texas Commission on Fire Protection with authority to establish rules for qualifications relating to education, training programs, continuing education, and testing procedures for the volunteer certification program. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 16, 1995. TRD-9502205 Jack Woods General Counsel Texas Commission on Fire Protection Effective date: March 15, 1995 Proposal publication date: November 8, 1994 For further information, please call: (512) 918-7184