PROPOSED RULES Before an agency may permanently adopt a new or amended section or repeal an existing section, a proposal detailing the action must be published in the Texas Register at least 30 days before action is taken. The 30-day time period gives interested persons an opportunity to review and make oral or written comments on the section. Also, in the case of substantive action, a public hearing must be granted if requested by at least 25 persons, a governmental subdivision or agency, or an association having at least 25 members. Symbology in proposed amendments. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION Part IX. State Aircraft Pooling Board Chapter 181. General Provisions 1 TAC sec.181.8 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the State Aircraft Pooling Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The State Aircraft Pooling Board proposes the repeal of s181.8, concerning fees to be charged agencies using services provided. Jerry Daniels, fiscal officer for the board, has determined that for the first five years the repeal is in effect, there will be no significant fiscal implications for state or local government. Mr. Daniels also has determined that for the first five years the repeal is in effect the public benefit anticipated will be that the new section will clarify those responsible for setting rates/charges for services to other state agencies. There will be no effect on small businesses. There are no anticipated economic costs to persons who are required to comply with the repeal as proposed. Comments on the proposed repeal may be submitted to Jerry Daniels, Fiscal Officer, State Aircraft Pooling Board, 4900 Old Manor Road, Austin, Texas 78723. The repeal is proposed under the Texas Government Code, Title 10, Chapter 2205, sec.2205.010, which provides the board the authority to adopt rules for conducting business. No other code or article is affected by this repeal. sec.181.8. Fees. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on April 3, 1995. TRD-9503984 Jerald A. Daniels Fiscal Officer State Aircraft Pooling Board Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 477-8900 Charges for Services 1 TAC sec.181.8 The State Aircraft Pooling Board proposes new sec.181.8, concerning charges for services provided to other agencies. The new section specifies rates to be determined by the governing board and rates to be determined by agency staff subject to governing board review. Jerry Danies, fiscal officer for the board, has determined that for the first five-year period the proposal is in effect there will be no significant fiscal implications for state or local government as a result of the proposed actions. Mr. Daniels also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be clarafication of those responsible for setting rates/charges for services provided to other state agencies. There will be no effect on small businesses. The proposed section will not impose any economic costs on persons required to comply with the proposal. Comments on the proposal may be submitted to Jerry Daniels, Fiscal Officer, State Aircraft Pooling Board, 4900 Old Manor Road, Austin, Texas 78723. The new section is proposed under the Texas Government Code, Title 10, Chapter 2205, sec.2205.010, which provides the board the authority to adopt rules for conducting business. No other code or article is affected by this new rule. sec.181.8. Charges for Services. (a) The board by order shall approve hourly rates to be charged the agencies using aircraft provided by the board. The approved rates are "dry" rates and include all charges other than fuel. Agency staff may change hourly rates to the extent there are substantial fluctuations in fuel prices. (b) Agency staff shall determine rates for ground services: maintenance and avionics labor rates, fuel and oil rates, hangar storage rates, and miscellaneous charges. (c) All staff determined rate changes are subject to governing board review at the next regularly scheduled board meeting. (d) Rates shall be set, as close as practicable, to recover the full costs of providing services. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on April 3, 1995. TRD-9503985 Jerald A. Daniels Fiscal Officer State Aircraft Pooling Board Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 477-8900 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 24. Texas Agricultural Finance Authority: Farm and Ranch Finance Program 4 TAC sec.sec.24.1-24.16 The Board of Directors of the Texas Agricultural Finance Authority (TAFA), a public authority within the Texas Department of Agriculture, proposes new sec.sec.24.1-24.16, concerning the Farm and Ranch Finance Program. The new sections are proposed for the implementation and administration of the Farm and Ranch Finance Program pursuant to Texas Agriculture Code, Chapter 59. New ssec.24.1-24.5 state the authority and purpose of the program, provide definitions, describe the procedure for open records requests, and provide an address for communications with TAFA. New sec.sec.24.6-24.7 describe the Farm and Ranch Finance Program Fund and list eligible uses for loan proceeds. New ssec.24.8-24.10 list applicant requirements and provide procedures for the filing and consideration of applications, including the contents of the application. New sec.24.11 states the loan criteria that will be considered by TAFA. New sec.24.12 states the general terms and conditions of TAFA's financial commitment, including fees, down payment, and interest rate. New sec. s24.13-24. 15 provide conditions for the partial release of a portion of property purchased by a borrower under the program, describe conditions constituting default of a loan, and provide for default proceedings. New sec.24.16 provides authority to the TAFA staff to act as necessary for the collection, settlement and enforcement of financing approved under the program. Robert Kennedy, deputy assistant commissioner for finance and agribusiness development, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state government as a result of enforcing or administering the sections, as any costs of administering the program will be paid out of the income generated by the program. Mr. Kennedy also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be the provision of financial assistance to borrowers to purchase farm or ranch land, and the efficient operation of the program. There will be no effect on small or large businesses. The anticipated economic cost to persons who are required to comply with the rules is $50, which represents the non-refundable application fee. There may be some additional costs to persons who are required to comply with the rules, to the extent that expenses are incurred in preparing an application to the program. However, these costs are expected to be minimal. Comments on the proposal may be submitted to Robert Kennedy, Deputy Assistant Commissioner for Finance and Agribusiness Development, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposed amendment in the Texas Register. The new sections are proposed under the authority of the Texas Agriculture Code (the Code), sec.59.022, which provides that TAFA may adopt rules governing various aspects of the program; the Code, sec.59.023, which states that TAFA has the power to adopt rules and procedures as necessary to carry out Chapter 59; and Texas Government Code, sec.2001.004, which requires that state agencies adopt rules of practice stating the nature and requirements of all available formal and informal procedures. Texas Agriculture Code, Chapter 59, is affected by the proposed new rules. sec.24.1. Authority. Through action of the Texas Legislature and the approval of the Texas voters in the passage of a Constitutional Amendment on November 5, 1985, the Texas Agricultural Finance Authority is authorized to issue general obligation bonds or other indebtedness backed by the State of Texas to provide financial assistance to eligible applicants through direct loans, loans to lenders, or purchasing participations in loans. sec.24.2. Purpose. The purpose of the Farm and Ranch Finance Program is to provide financing to eligible and creditworthy applicants for the purchase of land for agricultural use. It is not intended to compete with available credit sources or to be a lender of last resort, but to complement and extend those available sources by sharing risk or reducing their exposure through sound and constructive credit practices. sec.24.3. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-Chapter 59, Texas Agriculture Code, Farm and Ranch Finance Program. Applicant-Any person who is applying for assistance under the Act and this chapter. Application-An application, including supporting documentation and schedules as required by the Authority for participation in this program. Authority-The Texas Agricultural Finance Authority acting through its Board of Directors. Board-The Veterans Land Board. Borrower-An Applicant approved for a loan by the Authority Board of Directors. Department-The Texas Department of Agriculture. Financial statements -Financial Statements submitted by the Applicant, which shall include a balance sheet, income statement, cash flow statement and owners equity reconciliation, if applicable. Fund-The Farm and Ranch Finance Program Fund. Gross income-The total income as identified and accumulated from the income tax returns filed by the applicant for the preceding three years with such accumulation to include income generated from wages earned, both on and off farm or ranch, the sale of farm or ranch production or accumulated inventories, or any other income generated by the Applicant and identified on the tax return filed with the Internal Revenue Service. Interest rate-The interest rate on a Loan as determined and approved by the Authority and the lender on a case-by-case basis. Lender-A lender shall be a state or nationally chartered commercial lending institution, savings and loan association, credit union, any member of the Farm Credit System in the state, or any institution that the Authority determines is an experienced and sophisticated lender. Loan-A loan approved by the Authority in accordance with the requirements and criteria set forth in the Act and in this chapter. Program-The Farm and Ranch Finance Program. Staff-The staff of the Department performing work for the Authority. State-The State of Texas. sec.24.4. Examination of Records. Any party requesting the examination of records of the Program pursuant to the Open Records Act, Chapter 552, Texas Government Code, shall indicate in writing the specific nature of the document to be viewed, and if photocopying is desired, the appropriate fee must accompany the request. sec.24.5. Written Communication with the Texas Agricultural Finance Authority. Applications and other written communications to the Authority should be addressed to the attention of the Texas Agricultural Finance Authority, in care of the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. sec.24.6. Farm and Ranch Finance Program Fund.
    The Fund shall be established in the state treasury and may consist of bond proceeds, appropriations or transfers made to the Fund, moneys received from the operation of the Program, interest paid on money in the Fund, and any other moneys received from other sources for the Fund. The Board or the Authority may provide for the establishment and maintenance of separate accounts within the Fund including the Farm and Ranch Administrative Expense Fund. sec.24.7. Eligible Uses of Loan Proceeds. (a) Eligible costs. Financing received under this Program may be used to finance costs incurred in connection with the purchase of farm or ranch land, including refinancing of an outstanding obligation, mortgage, or advance used for those purposes. The land to be purchased may have existing improvements including a home, but the cost of the construction of new improvements on the property is not an eligible cost. (b) Ineligible costs. Use of financing received under this program for any costs other than those described in subsection (a) of this section shall be considered ineligible costs. A loan may be declared in default by the Authority if the borrower uses loan proceeds for ineligible costs. sec.24.8. Applicant Requirements.
      An applicant may submit an application to the Authority if the applicant meets the following requirements: (1) applicant is a resident of the State of Texas; (2) applicant provides evidence of the fact that the applicant's proposed farm or ranch operation will be located within the State; (3) applicant provides evidence that he/she is a member of a household that has derived at least 25% of its gross income from a farm or ranch operation for the preceding three years; (4) applicant provides evidence that his/her net worth (computed in accordance with generally accepted accounting practices) together with the applicant's spouse and their dependents is less than $250,000; (5) applicant intends to purchase the farm or ranch land for use by the Applicant and family for agricultural production as the applicant's primary occupation; (6) applicant is worthy of credit after giving due regard to the security value of the farm or ranch land being acquired; (7) applicant can demonstrate the existence of or provision for financing of necessary equipment, operating costs and normal improvements, together with the ability to repay all indebtedness of the Applicant and provide for a reasonable standard of living for the Applicant and family; (8) applicant is not an immediate family member of any member of the Authority, the Board, or the commissioner, the Deputy Commissioner, or any assistant commissioner of the Texas Department of Agriculture; and (9) applicant will agree to provide the lender and Authority annual reports of actual income and expense for the duration of the Loan. sec.24.9. Filing Requirements and Consideration of Application. (a) Application forms. An applicant seeking a loan from the Authority may use the application forms provided by either the Authority or the local participating lender. Applications must include the information necessary to identify eligibility for the program. (b) Submission of application. Applicants are required to work with a lender to complete application documents before submission to the Authority. Staff will be available prior to submission of the application to assist applicants and lenders in determining program eligibility. (c) Staff review. Staff will review the application for completeness and will notify the applicant and/or the lender of any additional information required. When all required information has been received, staff will conduct a credit review, evaluate the technical and market feasibility of the operation and examine its benefits for Texas agriculture and economic growth in the State. (d) Authority board review. Staff will submit a credit memorandum to the Authority Board of Directors for each application received by the program. The Authority Board of Directors will approve or deny each application by a majority vote of a quorum of members. The Authority Board of Directors may conditionally approve the application by imposing additional requirements. (e) Notification of approval. Upon approval or conditional approval of the application the Authority will instruct staff to notify the applicant and the lender in writing identifying the terms and conditions of the loan. The Authority may set certain time limits regarding both the acceptance of a loan commitment and the closing of a loan by the applicant but in no event shall the time periods following notification exceed 30 days for acceptance and 90 days for closing unless approved in writing by the staff. The lender and/or the staff will prepare the written agreements and documents necessary to close the loan in accordance with the terms and conditions set forth in the notice of conditional approval. The Authority will send the lender and the applicant final notice of approval after review of the closing documents. The lender will disburse the loan according to the terms and conditions of the note and loan agreement. (f) Denial of application. If the application is denied by the Authority, the Authority will instruct staff to notify the lender in writing identifying the reasons for denial. The lender will notify applicant in accordance with appropriate federal regulations. Any applicant denied may reapply to the program without payment of an additional application fee. (g) Providing false information. An applicant who knowingly provides false information in an application shall be disqualified from obtaining a loan under the program and shall be liable to the Authority and the department for any expense incurred by the Authority or the department as a result of the falsity. If the falsity is discovered after approval of a loan, the falsity may constitute grounds for declaration of default of the loan, and the Authority shall be entitled to exercise all its rights under the loan documents. In addition, the applicant may be subject to the penalty provisions of the Act, sec.59.046 and sec.59.047. (h) Reporting to the Authority board. Staff shall report to the Authority Board of Directors at each board meeting the status of loans and current financial commitments of the Authority under the program. sec.24.10. Contents of the Application. (a) Required information. Applicants must complete an application as required by the lender assisting in origination of the loan. The application must contain adequate information to determine eligibility and creditworthiness. Such information must include but is not limited to: (1) the applicant's name and address; (2) a copy of the applicant's current valid driver's license; (3) the applicant's resume which identifies the agricultural experience of the applicant; (4) a completed personal history questionnaire; (5) two credit references and two personal references, all from different sources and none from the applicant's immediate family; (6) information and/or letters of commitment regarding other funding sources, if applicable; (7) disclosure of any and all business affiliations or familial relationships of the applicant with members of the Board or Authority Board of Directors, employees of the department and the staff which could present a conflict of interest; and (8) any other information which the applicant, the lender, or the Authority decide may be useful in the determination of the applicant's eligibility and/or creditworthiness. (b) Financial statement. Financial statements must be provided on the form and/or in the same format included in the application package. They should be typed or written in ink, dated (no more than three months old), and signed by the applicant and spouse, if applicable. Printed forms of other lending institutions will be accepted. A financial statement will be required from each person/entity who will become personally liable on the loan. (c) Business plan. A business plan for the applicant's proposed operation including the land acquisition, must be provided. It must provide a comprehensive overview of the proposed operation including pro forma operating statements, balance sheets and sources and uses of funds for the first three years of operation and must provide sufficient cash flow for the requested financing and all other indebtedness of the applicant. The assumptions on which the plan is based must be provided, including the interest rate used. (d) Tax returns. The applicant's complete tax returns including W-2 forms, if applicable, for the preceding three years. (e) Farm or ranch land appraisal. An appraisal of the farm or ranch land must be submitted which identifies the appraised market value and the income potential of the farm or ranch land. The appraisal must be completed by an appraiser, selected by the lender, who is duly qualified to perform such task under the Texas Appraiser Licensing and Certification Act. A letter stating the appraiser's qualifications and experience must be submitted with the appraisal. The Authority may require the applicant to obtain an additional appraisal from another appraiser when comparable sales do not reasonably reflect the value of the farm or ranch land stated in the original appraisal. (f) Earnest money contract. The seller of the farm or ranch land to be acquired and the applicant must enter into a binding earnest money contract. The earnest money contract must contain all terms and conditions agreed to by the parties thereto. sec.24.11. Criteria for Approval of a Loan. (a) Reasonable risks. There must be reasonable assurance, in the judgment of the Authority, that the applicant has the willingness and ability to repay the loan according to its terms. In making this judgment the Authority may consider the following: (1) the applicant's business plan and how sound and comprehensive it is; (2) projected cash flow of the applicant; (3) commitments from other sources for funds necessary for the operation such as seasonal working capital; (4) collateral, guaranties, and/or insurance securing the loan; (5) the applicant's management ability, credit history and financial condition. (b) Eligibility and/or certification of lenders. Institutions desiring to originate and service loans as lenders and/or participate in loans as lenders must demonstrate the continuing ability to evaluate, perform and service the loan; make the necessary reports as identified in the rules of the program; and to collect the loan, if requested by the Authority, upon default. The lender must agree to exercise due diligence in the servicing, maintenance, review and evaluation of performance without regard to the existence of participation by the Authority or any other limitation of risk. sec.24.12. General Terms and Conditions of Authority's Financial Commitment. (a) The program will work in partnership with lenders who are familiar with making farm or ranch land loans. Such partnership will include a joint funding of financing to eligible applicants in Texas. Such joint funding will be determined on a case-by-case basis but the Authority's portion will be no less than 75% of the total financing not to exceed the limitations defined in subsection (b) of this section. (b) The maximum loan amount shall not exceed 95% of the appraised value or 95% of the purchase price of the farm or ranch land, whichever is less, but in no case shall the total loan amount exceed $150,000 (minus the down payment) . Appraised value is defined as either the market data approach or the income approach, whichever is applicable. (c) The Authority and the lender will share the pledged collateral in a ratio of 72% to the Authority and 28% to the lender. (d) The terms of the loan will be negotiated by the applicant, lender, and the authority on a case-by-case basis. (e) Fees. A non-refundable application fee of $50 will be required with each application presented to the Authority for consideration. In addition, an origination fee based on the term of the approved loan commitment will be charged. All fees will be the responsibility of the applicant and shall be remitted to the Authority. (f) Down payment. A loan under this chapter may not exceed $150,000, less the down payment required under this subsection. If the purchase price of land purchased with financial assistance under this chapter is $150,000 or less, the minimum down payment is equal to 5.0% of the purchase price. If the purchase price exceeds $150,000, the minimum down payment is an amount equal to the sum of 5.0% of the purchase price plus the amount equal to the difference between the purchase price and $150,000. (g) Interest rates on loans will be based upon rates established by the Authority. (h) Security. Loans must be secured by collateral of a type, amount and value which affords reasonable assurance of repayment when considered with other criteria and must include a first lien deed of trust on the property being financed. The total outstanding amount of the loan, plus all accrued and unpaid interest, will be due and payable upon the sale of any financed property. (i) Closing costs. All closing costs associated with the closing of an approved loan including the Authority's review of the closing documents by independent legal counsel shall be the liability of the borrower. (j) Closing of the loan. The staff may attend the verification and signing of the closing documents at the time, date and location determined by the Authority and lender. The closing documents must include all those documents which are necessary for the protection of the Authority and the lender as determined by the legal counsel. (k) The loan will not be subject to any prepayment penalties by the lender or the Authority. (l) Reporting requirements. The borrower shall provide annual financial statements to the lender, with comparison to the expected progress in the business plan. The lender shall submit a copy of the financial statements to the Authority. The Authority may request other reports or documentation as necessary. The lender shall report in writing any non-compliance with or default of loan covenants to the Authority within 15 days of each noted occurrence. sec.24.13. Partial Release.
        The Authority may approve the release of a portion of the property purchased under the program from a lien or may delegate the approval authority to the lender/servicer under the following conditions: (1) the Authority and lender determine that the release will not adversely affect either the borrower's operational ability or ability to continue in the program; (2) the borrower agrees to comply with the conditions for release imposed by the Authority which may include conditions as to the amount and location of acreage to be released, and the application of any and or all of the proceeds of the sale to the loan; (3) the remaining loan amount does not exceed 95% of the lesser of the appraisal value or the current market value of the acreage remaining after the release. sec.24.14. Default by Borrower. A borrower is in default if one or more of the following conditions exists as determined by the lender and any other reasons that may be identified in the closing documents of the loan: (1) the borrower does not pay a principal or interest payment within 30 days of the date due; (2) the borrower breaches a material obligation in the note, loan agreement, or any instrument securing the loan; (3) the borrower fails personally to maintain the farm or ranch land in active agricultural production for longer than one year; (4) the borrower leases any interest in the farm or ranch land without prior written consent of the lender and the Authority; (5) the borrower sells or conveys outright any minerals or mineral interest associated with the farm or ranch land without prior written consent of the lender or the authority; or (6) the borrower fails to provide the lender annual financial statements as required by these rules. sec.24.15. Default Proceedings. (a) The lender shall notify the Authority in writing within 15 days of default by borrower. Default by the borrower will be deemed to have occurred on the date of the lender's knowledge of default. The lender shall be deemed to have knowledge of a default in payment of money by a borrower on the 31st day after such payment is due. The lender shall be deemed to have knowledge of a default, other than a default in payment, on the date of the lender's actual knowledge of such default. (b) The lender and the Authority may take reasonable steps to ensure fulfillment of the loan obligation. The lender and the Authority may agree to an extension of time or any amount of payment of money, or agree to extend the period during which any other default may be cured. Such extension of time must be agreed upon by the lender, borrower, and the Authority in writing. (c) Should the lender and the Authority determine that an extension of time will not cure the default, then lender must notify borrower in writing, complying with all proper notification and foreclosure procedures in accordance with applicable law. (d) Lender and the Authority shall agree to the strategy to be used during the foreclosure proceedings. (e) If at the foreclosure sale the lender should acquire the property, the lender and the Authority representative will mutually agree on a procedure for the sale of the acquired property. (f) Should a deficiency occur through the foreclosure sale, then the lender shall proceed with the all actions necessary and proper under applicable law to secure a deficiency judgment, with the expenses for such proceedings to be shared on a pro-rata basis between the lender and the Authority based upon the percentage of ownership as identified in subsection (g) of this section. (g) Net proceeds from the foreclosure sale or the ultimate final sale of the property by the lender, whichever is greater, and any net proceeds resulting from the collection under a deficiency judgment, shall be shared by the lender and the Authority in the ratio of 28% to the lender, and 72% to the Authority. Net proceeds shall mean that amount received from the foreclosure sale less expenses attributable to the foreclosure. All expenses must be approved by the lender and the Authority. (h) Upon receipt of any net proceeds which the lender and the Authority mutually agree are the final net proceeds to be realized, the lender shall prepare a final accounting as to the loan so that the transaction may be closed out on the records of the lender and the Authority. Such final accounting shall be filed with and approved by the Authority. sec.24.16. Administration of Financing. (a) Except as otherwise provided by state law, by these rules or by resolution of the Veterans Land Board or Board of the Authority, the staff, with the approval of the commissioner of agriculture, the deputy assistant commissioner of agriculture or the official of the department designated by the commissioner of agriculture as being responsible for the department's agricultural finance programs, shall have the authority to act on behalf of the Authority, without specific Authority Board approval, in regard to collection, settlement and enforcement of each and every financing approved by the Authority under this program. Such authority shall include, without limitation, the actions required to be taken by the Authority under any loan agreement, any participation agreement and any other agreement entered into by the Authority concerning a loan approved by the Authority under this program. (b) Nothing in this section shall prevent the staff or the commissioner of agriculture, deputy commissioner, or official of the department designated by the commissioner of agriculture from submitting any matter to the Authority Board for its consideration and approval. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503820 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7583 TITLE 7. BANKING AND SECURITIES Part VII. State Securities Board Chapter 109. Transactions Exempt From Registration 7 TAC sec.109.13 The State Securities Board proposes an amendment to sec.109.13, concerning the uniform limited offering exemption. The amendment corrects a typographical error in the rule and updates a citation to the Securities and Exchange Commission's Regulation A. Micheal Northcutt, Director, Securities Registration Division, has determined that for the first five-year period the rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule. Mr. Northcutt also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be that persons using the exemption will be more easily able to locate the federal regulations cited in the rule. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the rule as proposed. Comments on the proposal may be submitted to Rada Lynn Potts, State Securities Board, P.O. Box 13167, Austin, Texas 78711-3167. The amendment is proposed under Texas Civil Statutes, Article 581, sec.28-1. Section 28-1 provides the Board with the authority to adopt rules and regulations necessary to carry out and implement the provisions of the Securities Act, including rules and regulations governing registration statements and applications; defining terms; classifying securities, persons, and matters within its jurisdiction; and prescribing different requirements for different classes. The new rule is also proposed under Texas Civil Statutes, Article 581, sec.5.T. Section 5.T provides that the Board may prescribe new exemptions by rule. The proposed amendment affects Texas Civil Statutes, Article 581-7. sec.109.13. Limited Offering Exemptions. (a)-(j) (No change.) (k) Uniform limited offering exemption. In addition to sales made under the Texas Securities Act, sec.5.I, the State Securities Board, pursuant to the Act, sec.5.T, exempts from the registration requirements of the Act, sec.7, any offer or sale of securities offered or sold in compliance with the Securities Act of 1933, Regulation D, Rules 230.505 and/or 230.506, including any offer or sale made exempt by application of Rule 508(a), as made effective in United States Securities and Exchange Commission Release Number 33-6389 and as amended in Release Numbers 33-6437
          [33-6347], 33-6663, 33-6758, and 33-6825, and which satisfies the following further conditions and limitations. (1) (No change.) (2) No exemption under this subsection shall be available for the securities of any issuer if any of the parties described in the Securities Act of 1933, Regulation A, Rule 230. 262
            [230.252(c), (d), (e), or (f)], as made effective in United States Securities and Exchange Commission Release Number 33-6949
              [33-6389]: (A)-(E) (No change.) (3)-(15) (No change.) (l) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 31, 1995. TRD-9503968 Denise Voight Crawford Securities Commissioner State Securities Board Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 805-8300 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.8 The Railroad Commission of Texas proposes an amendment s3.8, concerning water protection, by adding new definitions to subsection (a) and a new subsection (j). The proposed amendment to sec.3.8 are intended to address requirements under the Texas Coastal Management Plan (CMP) applicable to commission actions. The proposed amendment applies only to commission actions authorizing certain activities within the coastal area. The coastal area currently encompasses the Gulf of Mexico to the seaward limit of Texas title and ownership and the following counties: Cameron, Willacy, Kenedy, Kleberg, Nueces, San Patricio, Aransas, Refugio, Calhoun, Victoria, Jackson, Matagorda, Brazoria, Galveston, Harris, Chambers, Jefferson, and Orange. The CMP requires that actions of state agencies and subdivisions that authorize certain activities within the coastal area must be consistent with the enforceable goals and policies of the CMP (the CMP rules) adopted by the Coastal Coordination Council (the council). The CMP rules were published in the September 27, 1994, issue of the Texas Register (19 TexReg 7606), to be codified at Title 31, Texas Administrative Code, Chapters 501 and 504-506. The CMP rules are intended to coordinate state, local, and federal programs governing activities that may adversely affect coastal natural resource areas (CNRAs). CNRAs are designated ecological areas within the coastal area such as tidally influenced waters, some wetlands, tidal sand and mud flats, submerged aquatic vegetation, oyster and hard substrate reefs, state parks, wildlife preserves, and beach and dune areas. Provisions of the CMP rules apply to commission regulations for discharges of oil and gas waste to surface waters and disposal of oil and gas waste in pits. The CMP rules also apply to commission rules for certifying that federal permits comply with applicable water quality requirements. The CMP rules also require that three types of individual commission actions be consistent with the applicable CMP rules: issuance of permits for oil and gas waste disposal pits, issuance of permits for oil and gas waste discharges, and certification of Department of the Army dredge and fill permits. In particular, sec.501.14(c)(1) of the CMP rules prohibits siting a commercial oil and gas waste disposal pit in any CNRA and requires that oil and gas waste disposal pits be designed to prevent releases of pollutants to coastal waters and critical areas (coastal wetlands, tidal sand and mud flats, submerged aquatic vegetation, and oyster and hard substrate reefs). Proposed sec.3.8(j)(1)(A) would incorporate these requirements into sec.3.8. Under these proposed amendments, commercial disposal pits cannot be constructed in a CNRA after June 15, 1995, and all disposal pits must be designed to prevent the release of pollutants to coastal waters and critical areas. Section 501.14(c)(2)(A) and (C) of the CMP rules requires that oil and gas waste discharges meet the requirements of the surface water quality standards and that the commission consider effects of salinity when permitting any discharge. Section 501.14(c)(2)(B) of the CMP rules requires that the outfall for any new oil and gas waste discharge be located where it will not adversely affect a critical area. Section 501.14(c)(2)(B) of the CMP rules also requires that to the extent practicable, by June 15, 1997, the outfall of any existing discharge that adversely affects a critical area be relocated so that the discharge does not adversely affect a critical area. Otherwise, the discharge must be discontinued. Proposed sec.3.8(j)(1)(B) incorporates these requirements of sec.501.14(c)(2) (A)-(C) of the CMP rules. The proposed amendment specifically states that discharges of oil and gas waste to surface waters cannot cause a violation of the Texas Surface Water Quality Standards adopted by the Texas Natural Resource Conservation Commission (TNRCC), and the commission must consider the effects of salinity from a discharge when issuing a discharge permit. Further, outfalls for discharges that commence after June 15, 1995, cannot be located where the discharge will adversely affect a critical area. Any existing outfall that adversely affects a critical area must, to the extent practicable, be relocated no later than June 15, 1997; otherwise, the discharge must be discontinued. Section 501.14(h) and (j) of the CMP rules require that the commission certify that federal permits issued by the U.S. Army Corps of Engineers in connection with certain activities regulated by the commission comply with applicable water quality requirements, including applicable provisions of the CMP rules. Proposed s3.8(j)(1)(C) incorporates the requirements of sec.501. 14(h) of the CMP rules applicable to activities under commission jurisdiction. Under proposed sec.3.8(j)(1)(C), prior to certifying that a federal dredge or fill permit associated with oil and gas exploration or production (including pipeline construction) affecting a critical area complies with applicable water quality requirements, the commission must confirm that the permit applicant has satisfied the requirements of Title 31, Texas Administrative Code, sec.501.14(h)(1)(A)-(G) (relating to development in critical areas). Proposed sec.3.8(j)(1)(D) incorporates provisions applicable to commission certifications that federal permits involving dredging and dredged material disposal and placement comply with applicable water quality requirements. Under the proposed provision, prior to issuance of a certification of compliance with applicable water quality requirements, the commission must confirm that the federal permit applicant has satisfied the requirements of Title 31, Texas Administrative Code, sec.501.14(j) (relating to dredging and dredged material disposal and placement). Contemporaneous with this rulemaking, the commission is proposing new sec.3.93, regarding water quality certification, that will provide for commission certification of federal permits for dredging and dredged material disposal. Proposed sec.3.8(j)(2) sets out commission procedures for reviewing proposed activities for consistency with the CMP rules. If a proposed activity will have no adverse effect on any CNRA identified in provisions of this section that relate to the activity, the commission will issue a written determination of no adverse effect. If a proposed activity will have an adverse effect on a CNRA identified in provisions of this section that relate to the activity, an applicant must demonstrate that the proposed activity is consistent with the applicable portions of the CMP rules that have been incorporated into sec.3.8 in order for the commission to issue a consistency determination for the proposed action. If an activity is inconsistent with the CMP rules as incorporated into sec.3.8, the commission will not grant the application or certification. The proposed provision expressly provides that issuance of consistency determinations is an element of the permitting process for oil and gas waste discharge and disposal pit permits. Sections 505.30-505.42 of the CMP rules provide for the council's review of individual commission actions that are subject to the CMP rules. Provided that applicable procedural requirements are met, the council may individually review commission permits to dispose of oil and gas waste in a pit; permits to discharge oil and gas wastes to surface waters; and certifications that federal dredge and fill permits associated with oil and gas exploration or production (including pipeline construction) comply with applicable water quality requirements. Procedural requirements of the CMP rules provide means to limit the individual actions that may be reviewed by the council. Section 505.32 of the CMP rules provides that an action subject to the CMP rules may be referred to the council for consistency review if the action exceeds the agency's approved thresholds for referral and no formal hearing was available before the agency to contest the consistency determination; exceeds the approved thresholds for referral and was subject to a formal hearing before the agency or an alternative dispute resolution ("ADR") proceeding in lieu of a formal hearing and the agency's consistency determination was contested in the formal hearing or ADR process; or does not exceed the approved thresholds for referral but affects a critical area, a critical dune area, a coastal park, wildlife management area, or preserve, or a Gulf beach and was the subject of a formal hearing in which another state agency participated as a party and contested the agency's consistency determination. In order for thresholds to be effective in limiting council review of individual agency actions, the thresholds must be approved by the council, and the council must certify that the commission's rules are consistent with the enforceable goals and policies of the CMP, Title 31, Texas Administrative Code, sec.sec.505.20-505.26. In the absence of approved thresholds, any individual action that is subject to the CMP rules may be reviewed by the council for consistency with the CMP. As stated in the coastal management program document, actions above an agency's thresholds should include only those actions presenting unique and significant consistency issues. Therefore, subject to council approval, proposed sec.3.8(j)(3) includes thresholds for referral of individual commission actions that are subject to the CMP rules and that present unique and significant consistency issues due to their size relative to other commission actions. The proposed threshold for referral of oil and gas waste disposal pits is a permit for a pit that will occupy five or more acres of a CNRA. There are two permitted oil and gas waste disposal pits within the coastal area covering more than five acres. The commission estimates that at most one or two pit permits per year would fall above the proposed threshold for oil and gas waste disposal pits. All other types of oil and gas waste disposal pits would be deemed to fall below the thresholds for referral. The proposed threshold for referral for discharges of oil and gas waste is a permit to discharge 100,000 gallons or more per day of produced water into tidally influenced waters. There are 17 discharges of more than 100,000 gallons per day into coastal waters including the Gulf of Mexico that have been permitted by the commission. In each of the years 1991-1994, one permit was issued authorizing the discharge of more than 100,000 gallons per day. Therefore, the commission anticipates that one to three permits per year would fall above this proposed threshold. All other types of oil and gas waste discharges would be deemed to fall below this threshold for referral. The proposed threshold for referral of certifications of federal permits for development in critical areas is certification of a permit that authorizes the permanent disturbance of five acres or more of a critical area. The threshold for referral of certifications of federal permits for dredging and dredged material disposal or placement is certification of a permit authorizing the removal of more than 10,000 cubic yards of dredged material from a critical area. In 1993, the commission received 65 requests for certification of U.S. Army Corps of Engineers dredge and fill permits inside the CMP boundary; in 1994, the commission received 45 requests for certification inside the CMP boundary; and to date for 1995, the commission has received seven requests for certification inside the CMP boundary. In 1993, one request exceeded the proposed threshold of five acres, and one request exceeded the proposed threshold of 10,000 cubic yards of fill. In 1994, one request exceeded the proposed threshold of five acres, and two requests exceeded the proposed threshold of 10,000 cubic yards of fill. To date for 1995, one request has exceeded the proposed threshold of five acres and two requests have exceeded the proposed threshold of 10,000 cubic yards. All other certifications issued by the commission would be deemed to fall below these thresholds. The proposed amendment to sec.3.8(a) will add definitions for the following terms used in the CMP rules: "coastal area," "coastal management program," "coastal natural resource area," "coastal waters," "critical areas," and "practicable." Rita E. Percival, systems analyst for the Oil and Gas Division, has determined that for each year of the first five-year period the proposed rule amendment will be in effect, there will be fiscal implications as a result of enforcing or administering it. The effect on state government for the first five-year period the amendment will be in effect is an estimated cost of $12, 166 annually Fiscal Years 1996-2000. There will be no fiscal implications for local government. There will be no cost of compliance with the proposed rule amendment for small businesses as a result of enforcing or administering it. Jeb Boyt, staff attorney for Environmental Services, Oil and Gas Division, has found that for each year of the first five years the section as proposed is in effect, the public benefit will be consistency of designated commission actions with the enforceable goals and policies of the CMP. In addition, upon council approval of commission thresholds for consistency review of individual agency actions, the public will benefit because the number of individual commission actions subject to council review will be limited to those actions that have the greatest potential to adversely affect CNRAs. Thus, the council will be able to dedicate its attention to the actions of state and federal agencies with the greatest potential to adversely affect CNRAs. No additional costs will be incurred by affected individuals, including small businesses and oil and gas operators, upon adoption of the proposed amendment because the proposed amendment incorporates regulatory requirements imposed under the CMP rules. Costs to individuals of complying with the CMP rules should be reduced by adoption and approval of thresholds for referral limiting the number of individual commission actions that may be referred to the council for consistency review. Public comment on the proposed amendment may be submitted to Jeb Boyt, Staff Attorney, Environmental Services, Oil and Gas Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967 by 5:00 p.m. on May 4, 1995. The amendment is proposed under Texas Natural Resources Code, sec.91.101, which authorizes the commission to adopt rules and issue permits to prevent pollution of surface and subsurface waters, including permits relating to discharge and disposal of oil and gas waste; Texas Natural Resources Code, sec.85.402(b), which authorizes the commission to adopt rules for the prevention of operations in the field that are dangerous to life or property; Texas Natural Resources Code, sec.33.205(a), which provides that agencies must take into account the goals and policies of the coastal management program when developing rules and policies applicable in the coastal area; and Texas Water Code, sec.26.131, which authorizes the commission to issue permits for the discharge of waste from activities associated with the exploration, development, and production of oil or gas or geothermal resources. The following are the statutes, articles, or codes affected by the proposal: Texas Natural Resources Code, sec.33.205(a), sec.85.402(b), and sec.91.101; Texas Water Code, sec.26.131. sec.3.8. Water Protection. (a) The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1)-(34) (No change.) (35) Coastal area-The area within the boundary established in Title 31, Texas Administrative Code, s503.1 (relating to coastal management program boundary). (36) Coastal management program (CMP) rules-The enforceable rules of the Texas Coastal Management Program codified at Title 31, Texas Administrative Code, Chapters 501, 504-506. (37) Coastal natural resource area (CNRA)-One of the following areas defined in Title 31, Texas Administrative Code, sec.501.3(b): waters in the open Gulf of Mexico, waters under tidal influence, state submerged lands, private submerged lands, coastal wetlands, submerged aquatic vegetation, tidal sand and mud flats, oyster reefs, hard substrate reefs, coastal barriers, shore areas, Gulf beaches, critical dune areas, special hazard areas, critical erosion areas, coastal historic areas, and coastal parks, wildlife management areas, and preserves. (38) Coastal waters-Waters in the open Gulf of Mexico and waters subject to tidal influence. (39) Critical areas-Coastal wetlands, areas of submerged aquatic vegetation, tidal sand and mud flats, oyster reefs, and hard substrate reefs as defined in Title 31, Texas Administrative Code, sec.501.3(b). (40) Practicable-Available and capable of being done after taking into consideration existing technology, cost, and logistics in light of the overall purpose of the activity. While the individual circumstances of each case may result in one factor being given more weight, no one of these factors shall be analyzed independently in determining whether an alternative is practicable. (b)-(i) (No change) (j) Consistency with the Texas Coastal Management Program. The provisions of this subsection apply only to activities that occur in the coastal area and that are subject to the CMP rules. (1) Specific Policies. (A) Disposal of Oil and Gas Waste in Pits. The following provisions apply to oil and gas waste disposal pits located in the coastal area: (i) no commercial oil and gas waste disposal pit constructed after June 15, 1995, shall be located in any CNRA; and (ii) all oil and gas waste disposal pits shall be designed to prevent releases of pollutants that adversely affect coastal waters or critical areas. (B) Discharge of Oil and Gas Waste to Surface Waters. The following provisions apply to discharges of oil and gas waste that occur in the coastal area: (i) no discharge of oil and gas waste to surface waters may cause a violation of the Texas Surface Water Quality Standards adopted by the Texas Natural Resource Conservation Commission and codified at Title 30, Texas Administrative Code, sec.307; (ii) in determining whether any permit to discharge oil and gas waste that is comprised, in whole or in part, of produced water is consistent with the CMP rules, the commission shall consider the effects of salinity from the discharge; (iii) to the greatest extent practicable, in the case of any oil and gas exploration, production, or development operation from which an oil and gas waste discharge commences after June 15, 1995, the outfall for the discharge shall not be located where the discharge will adversely affect any critical area; (iv) in the case of any oil and gas exploration, production, or development operation with an oil and gas waste discharge permitted prior to June 15, 1995, that adversely affects any critical area, the outfall for the discharge shall either be relocated by June 15, 1997, so that, to the greatest extent practicable, the discharge does not adversely affect any critical area, or the discharge shall be discontinued; and (v) the commission shall notify the Texas Natural Resource Conservation Commission and the Texas Parks and Wildlife Department upon receipt of an application for a permit to discharge oil and gas waste that is comprised, in whole or in part, of produced waters to waters under tidal influence. (C) Development in Critical Areas. The provisions of this subparagraph apply to issuance under sec.401 of the federal Clean Water Act, United States Code, Title 33, sec.1341, of certifications of compliance with applicable water quality requirements for federal permits authorizing development affecting critical areas. Prior to issuing any such certification, the commission shall confirm that the requirements of Title 31, Texas Administrative Code, sec.501.14(h)(1)(A)-(G) have been satisfied. The commission shall coordinate its efforts under this subparagraph with those of other appropriate state and federal agencies. (D) Dredging and Dredged Material Disposal and Placement. The provisions of this subparagraph apply to issuance under sec.401 of the federal Clean Water Act, United States Code, Title 33, sec.1341, of certifications of compliance with applicable water quality requirements for federal permits authorizing dredging and dredged material disposal and placement in the coastal area. Prior to issuing any such certification, the commission shall confirm that the requirements of Title 31, Texas Administrative Code, sec.501. 14(j) have been satisfied. (2) Consistency Determinations. The provisions of this paragraph apply to issuance of consistency determinations and determinations of no adverse effect, as provided for in Title 31 Texas Administrative Code, sec.505. 30 (relating to agency consistency determination), for the following actions listed in Title 31, Texas Administrative Code, sec.505.11(a)(2)(C): permits to dispose of oil and gas waste in a pit; permits to discharge oil and gas wastes to surface waters; and certifications of compliance with applicable water quality requirements for federal permits for development in critical areas and dredging and dredged material disposal and placement in the coastal area. (A) The commission shall issue consistency determinations under this paragraph as an element of the permitting process for permits to dispose of oil and gas waste in a pit and permits to discharge oil and gas waste to surface waters. (B) Prior to issuance of a permit or certification covered by this paragraph, the commission shall determine if the proposed activity will have an adverse effect on any CNRA identified in the provisions of paragraph (1) of this subsection that are applicable to such activity. (i) If the commission determines that issuance of a permit or a certification covered by this paragraph would not result in adverse effects to any CNRA identified in the provisions of paragraph (1) of this subsection that are applicable to the proposed activity, the commission shall issue a written determination of no adverse effect which shall read as follows: "The Railroad Commission has reviewed this action for consistency with the Coastal Management Program (CMP) goals and policies, in accordance with the regulations of the Coastal Coordination Council, and has found that the action will not adversely affect any coastal natural resource area (CNRA) identified in the applicable policies." (ii) If the commission determines that issuance of a permit or certification covered by this paragraph would result in adverse affects to a CNRA identified in the provisions of paragraph (1) of this subsection that are applicable to the proposed activity, the commission shall determine whether the proposed activity would meet the applicable requirements of paragraph (1) of this subsection. (I) If the commission determines that the proposed activity would meet the applicable requirements of paragraph (1) of this subsection, the commission shall issue a written consistency determination which shall read as follows: "The Railroad Commission has reviewed this action for consistency with the Texas Coastal Management Program (CMP) goals and policies, in accordance with the regulations of the Coastal Coordination Council, and has determined that the action is consistent with the CMP goals and policies applicable to the action." (II) If the commission determines that the proposed activity would not meet the applicable requirements of paragraph (1) of this subsection, the commission shall not issue the permit or certification. (3) Thresholds for Referral. Any commission action that is not identified in this paragraph shall be deemed not to exceed thresholds for referral for purposes of the CMP rules. Pursuant to Title 31, Texas Administrative Code, s505.32 (relating to requirements for referral of an individual agency action), the thresholds for referral of consistency determinations issued by the commission are as follows: (A) for oil and gas waste disposal pits, any permit to construct a pit occupying five acres or more of any CNRA that has been mapped or that may be readily determined by a survey of the site; (B) for discharges, any permit to discharge oil and gas waste consisting, in whole or in part, of produced waters into tidally influenced waters at a rate equal to or greater than 100,000 gallons per day; (C) for certification of federal permits for development in critical areas, any certification of a federal permit authorizing disturbance of five acres or more of a critical area, but excluding any development that will result in only a temporary disturbance authorized under a general permit; and (D) for certification of federal permits for dredging and dredged material disposal or placement, certification of a permit authorizing removal of more than 10,000 cubic yards of dredged material from a critical area. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503811 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7562 16 TAC sec.3.93 The Railroad Commission of Texas proposes new sec.3.93, concerning water quality certification). Pursuant to sec.401 of the Federal Clean Water Act, United States Code, Title 33, sec.1341, the applicant for any federal permit that may result in a discharge into waters of the United States must provide the federal permitting agency with a state certification of compliance with applicable water quality requirements. These state certifications of compliance with applicable water quality requirements are called 401 certifications. Proposed new sec.3.93 governs issuance of 401 certifications by the commission. Under Texas Natural Resources Code, sec.91.101, and Texas Water Code, sec.26. 131, the commission has jurisdiction to grant 401 certifications for federal permits covering activities associated with the exploration, development, and production of oil, gas, and geothermal resources that may result in discharges to waters of the United States. 401 certifications are required for National Pollutant Discharge Elimination System (NPDES) permits issued by the U.S. Environmental Protection Agency (EPA) under the Federal Clean Water Act, sec.402, United States Code, Title 33, sec.1342; permits to discharge dredged or fill material issued by the U.S. Army Corps of Engineers (the Corps) under sec.404 of the Federal Clean Water Act, United States Code, Title 33, sec.1344; and permits issued by the Corps for activities which might affect navigation under sec.9 of the Rivers and Harbors Act of 1899, United States Code, Title 33, sec.402. Proposed sec.3.93(a) defines terms used in the proposed section. Proposed sec.3.93(b) requires a 401 certification for any federal permit that relates to an activity under commission jurisdiction and that is subject to the provisions of sec.401 of the federal Clean Water Act. Certification by the commission is required for any federal permit authorizing a discharge into waters of the United States within the boundaries of the State of Texas. Proposed sec.3.93(c) describes the procedures for filing a request for a water quality certification with the commission. A permit applicant may request certification from the commission prior to filing an application for a permit from either the EPA or the Corps. The EPA and the Corps may request certification from the commission through issuance of a joint notice as described under proposed sec.3.93(d)(1). Proposed sec.3.93(d) describes the procedures necessary to provide notice of an application for water quality certification. To the greatest extent practicable, the commission shall utilize a joint mailed notice issued by the federal permitting agency. If joint notice is used, such joint notice constitutes a request for certification. If a joint notice is not used, the applicant must mail notice of the request for certification to owners of land adjacent to and downstream of the site where the proposed activity would occur as well as to certain local, state, and federal governmental entities. Proposed sec.3.93(e) provides that the commission will consider all comments related to water quality impacts of the proposed activity that are submitted in writing prior to the deadline for submission of comments. If the commission finds it is in the public interest, the commission may call a public meeting for the receipt of public comments on the request for certification. Notice of a meeting to receive public comments will be sent to owners of land adjacent to and downstream of the site where the proposed activity would occur and certain local, state, and federal governmental entities. Proposed sec.3.93(f) describes the water quality requirements that the commission will consider when reviewing a request for water quality certification. The commission will evaluate whether such activity will result in a violation of applicable state water quality standards or other applicable state water quality requirements. For activities in the coastal area, applicable water quality requirements include certain portions of the enforceable goals and policies of the Texas Coastal Management Plan, 31 Texas Administrative Code, Chapters 501, 503-506. The commission may also make a determination as to whether a proposed activity that may result in a discharge will cause a violation of federal law, including the Clean Water Act, and for federal dredge and fill permits, criteria under the sec.404(b)(1) guidelines, 40 Code of Federal Regulations, Part 230. Proposed sec.3.93(g) addresses final action by the commission on requests for 401 certifications. The commission shall issue a final determination regarding compliance with applicable water quality requirements within 15 days of the close of the public comment period, unless the EPA regional administrator or the Corps district engineer, in consultation with the commission, finds that unusual circumstances require a longer time. Notification of the commission's final action shall be sent to the applicant, the regional administrator or the district engineer, and any other person requesting notice. If the commission conditionally grants certification or denies certification, the commission shall grant an applicant a hearing upon request. Proposed sec.3.93(h) provides that violations of this section may subject a person to penalties and remedies as specified in the Texas Natural Resources Code, Title 3, and any other statutes administered by the commission. In addition, an operator's certificate of compliance for any oil, gas, or geothermal well may be revoked for violation of proposed sec.3.93. Rita E. Percival, systems analyst for the Oil and Gas Division, has determined that for the first five-year period the proposed rule will be in effect, there will be fiscal implications as a result of enforcing or administering it. The effect on state government for the first five-year period sec.3.93 will be in effect is an estimated cost of $22,872 annually fiscal year 1996-2000. There will be no fiscal implications for local government. There will be no cost of compliance with the proposed rule for small businesses as a result of enforcing or administering it. Jeb Boyt, staff attorney for Environmental Services, Oil and Gas Division, has found that for each year of the first five years the section as proposed is in effect, the public benefit will be the compliance of federally permitted activities with applicable water quality requirements. For activities along the Gulf coast, the proposed section will also benefit the public by ensuring consistency of federally permitted activities with the enforceable goals and policies of the Texas Coastal Management Program, 31 Texas Administrative Code, Chapters 501, 503-506. There will be no additional costs to individuals, including small businesses, upon adoption of this rule. Comments on proposed rule may be submitted to Jeb Boyt, Staff Attorney, Environmental Services, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967 by 5:00 p.m. on Thursday, May 4, 1995. The new section is proposed under Texas Natural Resources Code, sec.91.101, which authorizes the commission to adopt rules and issue permits to prevent pollution of surface and subsurface waters, including adoption of rules and issuance of permits for the management of oil and gas waste; and Texas Water Code, s26.131, which authorizes the commission to issue permits for the discharge of waste from activities associated with the exploration, development, and production of oil, gas or geothermal resources. The following are the statutes, articles, or codes affected by the proposal: Texas Natural Resources Code, sec.91.101; Texas Water Code, sec.26.131. sec.3.93. Water Quality Certification. (a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (1) 401 certification-A certification issued by the commission, under the authority of the Federal Clean Water Act, sec.401, that a federal permit that may result in a discharge to waters of the United States is consistent with applicable state and federal water quality laws and regulations. (2) Commission-The Railroad Commission of Texas or its designee. (3) Department of the Army permits-Individual or general permits issued by the U.S. Army Corps of Engineers under the authority of the Federal Clean Water Act, sec.404, which authorizes the discharge of dredged or fill material into waters of the United States, and permits issued by the U.S. Army Corps of Engineers under the authority of the Rivers and Harbors Act of 1899, sec.9, United States Code, Title 33, sec.402. (4) District engineer-The U.S. Army Corps of Engineers representative responsible for administering and enforcing federal laws and regulations, including processing and issuance of permits, under the jurisdiction of the U. S. Army Corps of Engineers. (5) Federal Clean Water Act-United States Code, Title 33, Chapter 26. (6) NPDES permit-A permit issued by the regional administrator under the authority of the Federal Clean Water Act, sec.402, Title 33, United States Code, sec.1342, that authorizes the discharge of any pollutant, or combination of pollutants, into waters of the United States. NPDES permits can either be individual or general permits. (7) Permitting agency-Any agency of the federal government to which application is made for any permit to conduct an activity that may result in any discharge into waters of the United States. (8) Person-A natural person, corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, or any other legal entity. (9) Pollutant-Any constituent that contaminates or alters the physical, thermal, chemical, or biological quality of water so as to be harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to the public health, safety, or welfare, or that impairs the usefulness or the public enjoyment of the water for any lawful purpose. (10) Regional administrator-The administrator of the U.S. Environmental Protection Agency, Region 6. (11) Water quality standards-Texas Surface Water Quality Standards, Title 30, Texas Administrative Code, Chapter 307. (12) Waters of the United States-Interstate waters, the territorial seas, and waters that would or could affect interstate commerce, including tributaries of such waters and adjacent wetlands, as defined in Title 33, Code of Federal Regulations, Part 328. (b) Certification Required. No person may conduct any activity subject to the jurisdiction of the commission pursuant to a Department of the Army permit or an NPDES permit if the activity may result in a discharge into waters of the United States within the boundaries of the State of Texas, unless the commission has first issued a certification or waiver of certification under this section. (c) Request for Certification. The regional administrator, district engineer, or the permit applicant may submit a request for certification to the commission. (1) Request by Applicant. If the permit applicant requests certification, the applicant shall submit to the commission: (A) a copy of the completed permit application and any amendments thereto; (B) a list on a map or on a separate sheet attached to a map of the names and addresses of owners of tracts of land adjacent to the site where the proposed activity would occur and, where the activity may result in a discharge to a watercourse other than the Gulf of Mexico or a bay, the owners of each waterfront tract between the potential discharge point and 1/2 mile downstream of the potential discharge point, except for those waterfront tracts within the corporate limits of an incorporated city, town, or village; and (C) a request for certification. (2) Request by EPA or the Corps. Except as provided in subsection (d)(1) of this section, a request for certification submitted by the regional administrator or the district engineer shall contain the information specified in this paragraph: (A) a copy of the public notice; (B) a request for certification; and (C) for NPDES permits, a copy of the draft permit, if available. (3) Request for Additional Information. Where the commission believes more information is required to accomplish review of a request for certification, the commission shall notify the applicant or the permitting agency and request such information. In response to such a notification from the commission, the applicant or the permitting agency shall submit such materials as the commission finds necessary for review of the request for certification. Except as otherwise provided, such information shall be provided within ten days of issuance of a request for additional information by the commission. (d) Notice of Request for Certification (1) Joint Notice. Notice of a request for certification shall be made using a joint mailed notice issued by the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency after agreements with those agencies have been reached regarding the content of the notice and the persons entitled to notice in Texas. When a joint notice is issued by either the U.S. Army Corps of Engineers or the U.S. Environmental Protection Agency the requirements of subsection (c)(2) of this section do not apply. (2) Notice by Applicant. If a joint notice is not used as provided in paragraph (1) of this subsection, the applicant must mail notice of the request for certification on or before the date the request for certification is filed with the commission. Such notice shall include the information required in paragraph (3) of this subsection. The applicant shall provide notice by first class mail to: (A) the owners of land adjacent to the tract upon which the activity is proposed to take place, and where the activity may result in a discharge to a watercourse other than the Gulf of Mexico or a bay, the surface owners of each waterfront tract between the potential discharge point and 1/2 mile downstream of the potential discharge point, excluding owners of those waterfront tracts within the corporate limits of an incorporated city, town, or village; (B) the mayor and health authorities of any city or town in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge; (C) the county judge and health authorities of any county in which the proposed activity will be located or that is within 1/2 mile downstream of the potential discharge; (D) the Texas Natural Resource Conservation Commission; (E) the Texas Parks and Wildlife Department; (F) the U.S. Environmental Protection Agency, Region 6; (G) the U.S. Fish and Wildlife Service; and (H) for a proposed activity within the coastal management program boundary as defined under Title 31 Texas Administrative Code, sec.503.1 (relating to coastal management program boundary), the Secretary of the Coastal Coordination Council. (3) Contents of Notice. Any notice provided as required in paragraph (2) of this subsection shall contain: (A) the applicant's name and mailing address, together with the name and mailing address of the party conducting the activity, if different from the applicant; (B) a brief written description of the activity; (C) a statement that the applicant is seeking certification from the commission under the Federal Clean Water Act, sec.401; (D) a statement that any comments concerning the request for certification may be submitted in writing to the Director of Environmental Services, Railroad Commission, 1701 North Congress Avenue, P.O. Box 12967, Austin, Texas 78711- 2967, on or before the deadline for submission of written public comments, which, absent special circumstances, shall be at least 30 days after the date notice is mailed; and (E) a statement that a copy of the permit application is available for review in the office of the federal permitting agency. (e) Public Comments. (1) Written Comments. The commission shall consider all comments related to the water quality impacts of the proposed activity that are submitted to the commission in writing prior to the deadline for submission of comments. (2) Public Meetings. The commission shall hold a meeting to receive public comment on a request for certification if the commission finds that such a meeting is in the public interest. If the commission holds a meeting to receive public comment on a request for certification, the commission shall notify the applicant by first class mail not less than ten days before the date set for the public meeting that a meeting to receive public comment will be held on the request for certification. The commission will also provide notice by first- class mail or by personal service to all of the persons identified under subsection (d)(2) of this section and the federal permitting agency at least ten days prior to the public meeting. The notice of public meeting shall identify the federal permit application; the date, time, place, and nature of the public meeting; the legal authority and jurisdiction under which the public meeting is to be held; the applicant's proposed action; the requirements for submitting written comments; the method for obtaining additional information; and such other information as the commission deems necessary. The notice to the federal permitting agency shall also estimate the additional time necessary to consider the request for certification and shall state that the commission is not waiving certification. (f) Commission Review of Requests for Certification. After expiration of the time for receipt of public comments, the commission shall determine whether the proposed activity for which a request for certification has been received will result in any discharge into waters of the United States within the boundaries of the State of Texas, and if so, whether the proposed activity will comply with all applicable water quality requirements. Applicable water quality requirements include, but are not limited to, state water quality standards, and any other applicable water quality requirements. For an activity within the boundary of the Texas Coastal Management Program (CMP), applicable state water quality requirements include the enforceable goals and policies of the CMP, Title 31 Texas Administrative Code, Chapters 501, 503-506. (g) Final Action. (1) Issuance of Final Determination. A final determination on a request for certification of an NPDES or Department of the Army permit shall be issued by the commission within 15 days from the close of the public comment period, unless the regional administrator or the district engineer, in consultation with the commission, finds that unusual circumstances require a longer time. If the commission does not act upon the request for certification within 15 days from the close of the public comment period or within a longer time granted by the regional administrator or the district engineer, the commission will be deemed to have waived certification. Notwithstanding any contrary provisions of this paragraph, in unusual circumstances the commission may elect to delay acting upon a request for certification of an NPDES permit until after a review of the draft permit and upon a request for certification of a Department of the Army permit until issuance of the statement of findings. (2) Notification of Final Determination. The commission shall notify the applicant, the regional administrator or district engineer, and any person so requesting of its final determination. Such final determination shall waive, grant, grant conditionally or deny certification. The notification of a final determination shall be in writing and shall include: (A) the name and address of the applicant; (B) a statement of conditions that are necessary to ensure compliance with the applicable water quality requirements; (C) when the state certifies a draft permit instead of a permit application, any condition required to ensure compliance with applicable water quality requirements shall be identified, citing the federal or state law references upon which that condition is based. Failure by the commission to provide such a citation waives its right to certify with respect to that condition; (D) for NPDES permits, a statement of the extent to which each condition of the draft permit can be made less stringent without the concurrence of the commission; and (E) a statement of the basis for the commission's determination to waive certification, grant certification, grant conditional certification, or deny certification. (3) Statement of Basis. (A) If a waiver of certification is made, the statement of basis for the commission's determination shall explain that the waiver is based on a determination that no discharge will result from the activity or that the activity does not fall within the commission's jurisdiction or that the commission expressly waives its authority to act on a request for certification for other reasons. (B) If a certification or conditional certification is made, the statement of basis for the commission's determination shall include either a statement that there is reasonable assurance that the activity will be conducted in a manner which will not violate any applicable water quality requirements or a statement of conditions, including monitoring conditions, that the commission deems necessary to assure that the discharge will not violate applicable water quality requirements. (C) If a denial of certification is made, the statement of basis for the commission's determination will explain why the commission has determined that the proposed activity will result in a violation of applicable water quality requirements. (4) Limitation. The commission shall not condition or deny certification of an NPDES permit on the grounds that state law allows a less stringent permit condition. (5) Request for Hearing. If the commission's final determination denies certification, the applicant may request a hearing on the final determination. If the commission's final determination grants a conditional certification and the applicant disagrees with one or more of such conditions, the applicant may request a hearing on the final determination. A request for a hearing must be filed within 15 days after the commission issues its final determination. The commission shall provide notice of the hearing to each of the parties provided notice of the final determination as provided in paragraph (2) of this subsection. After hearing, the examiner shall recommend a final action by the commission. (h) Penalties. Violations of this section may subject a person to penalties and remedies specified in the Texas Natural Resources Code, Title 3, and any other statutes administered by the commission. The certificate of compliance for any oil, gas, or geothermal resource well may be revoked in the manner provided in sec.3.68 of this title (relating to pipeline connection and severance) (Rule 73) for violation of this section. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503810 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7562 Chapter 9. Liquefied Petroleum Gas Division The Railroad Commission of Texas proposes the repeal of s9.5 (relating to licensing requirements); new sec.9.5 (relating to licensing requirements), and sec.9.8 (relating to designation of operations supervisor (branch manager); and amendments to sec.9.4 (relating to categories of licensees), and sec.9.15 (relating to registration of LP-gas transports). The commission proposes these actions to implement Texas Natural Resources Code, sec.113.094, which permits the commission, by rule, to adopt a system under which LP-gas licenses expire on various dates during the year, but requires that license fees be prorated on a monthly basis during the transition from the current system to the new one. Section 9.5 lists licensing requirements, discusses procedures for license renewal, and explains special requirements for certain licenses. The simultaneous repeal of current sec.9.5 and adoption of a new sec.9.5 will clarify some language; in addition, the new rule adds the requirement for staggered renewal dates; explains the conversion of all licenses from an August 31 renewal date to commission-assigned renewal dates staggered throughout the year and the method by which license fees will be prorated; and requires that the commission notify licensees of the new renewal date at least 30 days in advance. Also added is the requirement that licensees shall make copies of the LP-gas safety rules available to employees. Section 9.4, as proposed to be amended, lists the categories of licenses and the license fees and states when the fees are due; the proposed amendment adds the requirement that fees will be prorated during the first year of staggered license renewal dates. Other proposed nonsubstantive amendments include a new table, which contains information previously in text form, and some changes in wording, punctuation or organization to provide clearer language and sequence. Section 9.4 has also been retitled for clarity. Proposed new sec.9.8 contains language moved from sec.9.5 for clarity; sec.9.8 describes how the commission designates whether a site is an outlet, and explains the requirement that licensees designate an operations supervisor for each outlet. Proposed amended sec.9.15 lists registration requirements for LP-gas transports, including proposed changes in the fees; adds the requirement for staggered renewal dates; explains the conversion of all transport registrations from an August 31 renewal date to commission-assigned renewal dates staggered throughout the year, including the method by which registration fees will be prorated; and requires that the commission notify licensees of the new renewal date at least 30 days in advance. Proposed sec.9. 15 also explains the different requirements for certain types of transports. Thomas D. Petru, director, Liquefied Petroleum Gas Division, has determined that for each of the first five years the proposed rules are in effect there will be no fiscal implications for local government, but there will be fiscal implications for state government as a result of enforcing or administering the sections. The fiscal implications for state government result from a change in the annual registration fees for LP-gas transports. The fees are currently $150 for bobtail trucks, semi-trailers, or other motor vehicles equipped with LP-gas cargo tanks with an aggregate water capacity of 5,000 gallons or more, and $100 for bobtail trucks or semi-trailers with an aggregate water capacity of 4,999 or less, or trailers or motor vehicles used principally for transporting LP-gas in portable containers. The commission proposes to change these fees to $156 and $96, respectively. Based on the current number of registered transports in each category, this change will result in a net revenue loss to the commission of approximately $566, but the convenience to both the public and commission will be far greater: the change in fees makes them divisible by 12, which will make prorating the fees by the month much simpler, and will eliminate fractions of dollars. Mr. Petru also has determined that the public benefit anticipated as a result of enforcing the sections as proposed will be more streamlined licensing, renewal, and registration procedures for LP-gas licensees and transports, as well as for the commission itself. There is an anticipated economic cost to small businesses and to individuals who currently hold licenses. The cost arises because when a license renewal or transport registration changes from August 31 to a staggered renewal date to be assigned by the commission, the cost of the renewal license or transport reregistration will be prorated. Also, the change in the annual registration fees for LP-gas transports is very small; one category is increased by $6 and the other decreased by $4. Even a very large company with transports in the $156 category would only see a small increase; for the majority of companies, it would be well under $100 a year. Comments on the proposals may be submitted to Thomas D. Petru, Director, Liquefied Petroleum Gas Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication in the Texas Register. Subchapter A. General Applicability and Requirements 16 TAC sec.sec.9.4, 9.5, 9.8, 9.15 The new sections and amendments are proposed under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and sec.113.094, which authorizes the commission to adopt, by rule, a system under which LP-gas licenses expire on various dates during the year. The following are the statutes, articles, or codes affected by the proposed new sections and amendments: Texas Natural Resources Code, sec.113.051 and sec.113.094. sec.9.4. Categories of Licenses and Related Fees. (a) A prospective licensee may apply to the commission for a license to engage in one or more of the categories specified in subsection (d)
                [(c)](1)- (15) of this section. Fees required to be paid shall be those established by the commission and in effect at the time of licensing or renewal, as specified in Table 1 of this section.
                  [The licensing fee and renewal fee is included in each category for informational purposes only.]
                    Figure 1: 16 TAC sec.9.4(a) (b) License and renewal fees shall be prorated as specified in sec.9.5(d) of this title (relating to Licensing Requirements). (c)
                      [(b)] An original manufacturer of a new motor vehicle powered by LP-gas, or a subcontractor of a manufacturer who produces a new LP-gas powered motor vehicle for the manufacturer, is not subject to the licensing requirements of this title, but shall
                        [must] comply with all other LP-Gas Safety Rules. (d) The license categories are as follows: [(c) License Categories.] (1) A Category A license for manufacturers
                          [Category A-Manufacturers] and/or fabricators authorizes
                            [, which covers] the manufacture, fabrication, assembly, repair, installation, subframing, testing, and sale of LP-gas containers, including LP-gas motor or mobile fuel containers and systems, and the repair and installation of transport and transfer systems. [Original license fee is $500; annual renewal fee is $300.] (2) A Category B license for transport
                              [Category B-Transport] outfitters authorizes
                                [, which covers] the subframing, testing, and sale of LP-gas transport containers, the testing of LP-gas storage containers, [and] the installation, testing, and sale of LP-gas motor or mobile fuel containers and systems, and the installation and repair of transport systems[,] and motor or mobile fuel systems. [Original license fee is $200; annual renewal fee is $100.] (3) A Category C license for carriers authorizes
                                  [Category C- Carriers, which covers] the transportation of LP-gas by transport, including the loading and unloading of LP-gas, and the installation and repair of transport systems. [Original license fee is $500; renewal fee is $150.] (4) A Category D license for general
                                    [Category D-General] installers and repairmen authorizes
                                      [, which covers] the sale, service, and installation of containers, excluding motor fuel containers, and the service, installation, and repair of piping, certain appliances as defined by rule, excluding recreational vehicle appliances and LP-gas systems, and motor fuel and recreational vehicle systems. The service and repair of an LP-gas appliance not required by the manufacturer to be vented to the atmosphere is exempt from Category D licensing. The installation of these unvented appliances to LP-gas systems by means of LP-gas appliance connectors is also exempt from Category D licensing. [Original license fee is $50; annual renewal fee is $35.] (5) A Category E license for retail
                                        [Category E-Retail] and wholesale dealers authorizes
                                          [, which covers] the storage, sale, transportation, and distribution of LP-gas at retail and wholesale dealers
                                            , and all other activities included in this section, except the manufacture, fabrication, assembly, repair, subframing, and testing of LP-gas containers. [Original license fee is $500; annual renewal fee is $150.] (6) A Category F license for cylinder
                                              [Category F-Cylinder] exchangers authorizes
                                                [, which covers] the operation of a cylinder filling and container exchange dealership, including cylinder filling, the sale of LP-gas in cylinders, and the replacement of [a] cylinder valves
                                                  [valve]. [Original license fee is $50; annual renewal fee is $25.] (7) A Category G license for dispensing stations authorizes
                                                    [Category G-Service station, which covers] the operation of [an] LP-gas dispensing stations
                                                      [service station] filling ASME containers designed for motor or mobile fuel. [Original license fee is $50; annual renewal fee is $25.] (8) A Category H license for cylinder
                                                        [Category H-Cylinder] dealers authorizes
                                                          [, which covers] the transportation and sale of LP-gas in cylinders. [Original license fee is $500; annual renewal fee is $150. ] (9) A Category I license for dispensing stations
                                                            [Category I-Service station] and cylinder exchanges authorizes
                                                              [, which covers] any service station and cylinder activity set out in Category F and Category G of this section. [Original license fee is $75; annual renewal fee is $35.] (10) A Category J license for dispensing stations
                                                                [Category J-Service station] and cylinder dealerships authorizes
                                                                  [, which covers] the operation of a cylinder filling and container exchange dealership, including cylinder filling and the sale, transportation, installation, and connection of LP-gas in cylinders, [and] the replacement of cylinder valves, and the operation of an LP-gas dispensing
                                                                    [service] station as set out in Category G. [Original license fee is $500; annual renewal fee is $150.] (11) A Category K license for distribution systems authorizes
                                                                      [Category K-Distribution system, which covers] the sale and distribution of LP- gas through mains or pipes,
                                                                        and the installation and repair of LP-gas systems. [Original license fee is $500; annual renewal fee is $150.] (12) A Category L license for carburetion authorizes
                                                                          [Category L- Carburetion, which covers] the sale and installation of LP-gas motor or mobile fuel containers, and the sale and installation of LP-gas motor fuel systems. [Original license fee is $50; annual renewal fee is $25.] (13) A Category M license for recreational
                                                                            [Category M-Recreational] vehicle installers and repairmen authorizes
                                                                              [, which covers] the sale, service, and installation of recreational vehicle containers, and the installation, repair, and service of recreational vehicle appliances, piping, and LP-gas systems, including recreational vehicle motor or mobile fuel systems and containers. [Original license fee is $50; annual renewal fee is $35.] (14) A Category N license for manufactured
                                                                                [Category N-Manufactured] housing installers and repairmen authorizes
                                                                                  [, which covers] the service and installation of containers that supply fuel to manufactured housing, and the installation, repair, and service of appliances and piping systems for manufactured housing. [Original license fee is $50; annual renewal fee is $35.] (15) A Category O license for testing
                                                                                    [Category O-Testing] laboratories authorizes
                                                                                      [, which covers] the testing of [an] LP-gas containers
                                                                                        [container], LP-gas motor fuel systems or mobile fuel systems, transfer systems, and transport systems for the purpose of determining the safety of the containers
                                                                                          [container] or systems for LP-gas service, including the necessary installation, disconnection, reconnection
                                                                                            [reconnecting], testing, and repair of LP-gas motor fuel systems or mobile fuel systems, transfer systems, and transport systems involved in the testing of containers. [Original license fee is $100; annual renewal fee is $50.] sec.9.5. Licensing Requirements. (a) Licensees shall maintain a copy of the current version of the LP-Gas Safety Rules published by the commission and shall provide at least one copy to each company representative and operations supervisor. The copies shall be available to employees during business hours. Failure to maintain the required number of copies may result in enforcement action such as penalties or suspension of licenses. (b) Licensees, company representatives, and operations supervisors at each outlet shall have copies of all current licenses and examination identification cards for employees at that location available for inspection during regular business hours. (c) Licenses issued under this chapter expire one year after issuance at midnight on the last day of the month prior to the month in which they are issued. (d) License and renewal fees are specified in sec.9.4 of this title (relating to Categories of Licenses and Related Fees). During the first year when a license changes from an August 31 renewal date to a staggered renewal date, the commission will randomly assign new license renewal dates to be staggered throughout the year. License renewal fees shall be prorated by: (1) dividing the applicable renewal fee by 12; and (2) multiplying that amount by the number of months assigned to the new staggered license. Fractions will be rounded off to the nearest tenth of a dollar. (e) Only licenses that are in effect during the time of the conversion to staggered renewal dates shall have prorated fees. New applicants for license shall pay all fees in full before the commission issues a license. (f) When the commission assigns a new staggered license renewal date to a licensee, the commission shall notify the licensee of the new date at least 30 days in advance. For all subsequent renewals, the commission shall notify the licensee of the impending license expiration at least 15 days prior to the expiration date. Renewals shall be submitted to the commission along with the renewal fee specified in sec.9.4 of this title (relating to Categories of Licenses and Related Fees) on or before the last day of the month in which the license expires in order for the licensee to continue LP-gas activities. Failure to meet the renewal deadline set forth in this section shall result in expiration of the license. If a person's license expires, that person shall immediately cease performance of any LP-gas activities. (1) If a person's license has been expired for fewer than 90 days, the person shall submit a late-filing penalty of one-half the amount of the annual renewal fee in addition to the required annual renewal fee. Upon receipt of the annual renewal fee and late-filing penalty, the commission shall verify that the person's license has not been suspended, revoked, or expired for more than two years. After verification, if the licensee has met all other requirements for licensing, the commission shall renew the license, and the person may resume LP- gas activities. (2) If a person's license has been expired for 90 days but less than two years, the person shall submit a late-filing penalty equal to the amount of the annual renewal fee in addition to the required annual renewal fee. Upon receipt of the annual renewal fee and late-filing penalty, the commission shall verify that the person's license has not been suspended, revoked, or expired for more than two years. After verification, if the licensee has met all other requirements for licensing, the commission shall renew the license, and the person may resume LP-gas related activities. (3) If a person's license has been expired for more than two years, that person may not renew, but shall comply with the requirements for issuance of a new license. (g) Applicants for license or license renewal shall file with the commission LPG Form 1 designating a company representative who shall be an owner or employee of the licensee, and shall be directly responsible for actively supervising LP-gas operations of the licensee. A licensee may have more than one company representative. (1) An applicant for license shall not engage in LP-gas activities governed by the Texas Natural Resources Code, Chapter 113, and the LP-Gas Safety Rules, until its company representative has successfully completed the management examination administered by the commission or, in the case of an applicant for a Category D license, has obtained a General Installers and Repairmen Exemption by following the requirements in sec.9.6(b) of this title (relating to Examination and Course of Instruction). (2) The licensee shall notify the commission in writing upon termination of its company representative of record and shall at the same time designate a replacement by submitting a new LPG Form 1. (3) The licensee shall cease operations if, at the termination of its company representative, there is no other qualified company representative of the licensee acknowledged and recorded by the commission at its Austin office. The licensee shall not resume operation until such time as it has a qualified company representative unless it has been granted an extension of time in which to comply under the Texas Natural Resources Code, Chapter 113. (h) In addition to complying with other licensing requirements set out in the Texas Natural Resources Code, Chapter 113, and the LP-Gas Safety Rules, applicants for license or license renewal in the following categories shall comply with the specified additional requirements: (1) An applicant for a Category A license or renewal shall file with the commission for each of its outlets legible copies of: (A) its current Department of Transportation (DOT) authorization. A licensee shall not continue to operate after the expiration date of the DOT authorization; and/or (B) its current American Society of Mechanical Engineers (ASME) Code, Section VIII certificate of authorization. If ASME is unable to issue a renewed certificate of authorization prior to the expiration date, the licensee may request in writing an extension of time not to exceed 60 calendar days past the expiration date. The licensee's request for extension shall be received by the commission prior to the expiration date of the ASME certificate of authorization referred to in this section, and shall include a letter or statement from ASME that the agency is unable to issue the renewal certificate of authorization prior to expiration and that a temporary extension will be granted for its purposes. A licensee shall not continue to operate after the expiration date of an ASME certificate of authorization until the licensee files a current ASME certificate of authorization with the commission, or the commission grants a temporary exception. (2) A Category A or B licensee making repairs on ASME containers shall file with the commission a legible copy of its current "U" or "R" certificate of authorization for the repair of ASME containers by the National Board of Boiler and Pressure Vessel Inspectors. (3) An applicant for a Category B or O license or renewal shall file with the commission a properly completed LPG Form 505 certifying that the applicant will follow the testing procedures indicated. LPG Form 505 shall be signed by the appropriate LP-gas company representative designated on LPG Form 1. sec.9.8. Designation of Operations Supervisor (Branch Manager). (a) The commission shall designate whether a site is an outlet for the purpose of this chapter. Criteria used by the commission in determining the designation of an outlet includes, but is not limited to: (1) distance from other LP-gas activities operated by the licensee; (2) whether the operation is a duplicate of the home office operation; and (3) whether the operation is directly supervised on a routine basis. (b) A licensee maintaining more than one outlet shall file LPG Form 1A with the commission designating an operations supervisor (branch manager) at each outlet. The operations supervisor shall pass the management examination as administered by the commission or, in the case of a Category D licensee only, obtain a General Installers and Repairmen Exemption as specified in sec.9. 6(b) of this title (relating to Examination and Course of Instruction), before commencing or continuing the licensee's operations at the outlet. (c) An operations supervisor (branch manager) may be a company representative of the licensee; however, unless the commission grants specific approval, an individual may be designated as an operations supervisor (branch manager) at each outlet. (d) The operations supervisor (branch manager) shall be directly responsible for actively supervising LP-gas operations of the licensee at the designated outlet. sec.9.15. Registration of LP-Gas Transport. (a) Bobtail trucks, semitrailers, or other motor vehicles either
                                                                                              [Each bobtail truck, semitrailer, or other motor vehicle] equipped with [an] LP-gas cargo tanks
                                                                                                [tank and each trailer, semitrailer, or other motor vehicle] or
                                                                                                  used principally for transporting LP-gas in portable containers shall be registered with the commission according to the requirements of Table 1 of this section. (b) A licensee or ultimate consumer
                                                                                                    who has purchased, leased, or obtained other rights to use any unit described in subsection (a) of this section shall register that unit by meeting the requirements of Table 1 of this section. The unit shall be registered in the name or names under which the licensee or ultimate consumer
                                                                                                      conducts business before the unit is used in LP-gas service. (c) Registration and reregistration fees shall be paid in full before any unit may be registered or reregistered, unless fees are prorated as described in subsection (d) of this section. [(c) An ultimate consumer of LP-gas who has purchased, leased, or obtained other rights to use any unit described in subsection (a) of this section shall register that unit by meeting the requirements of Table 1 of this section. The unit shall be registered in the person's name before the unit is used in LP-gas service.] (d) During the first year when a transport registration changes from an August 31 renewal date to a staggered renewal date, the registration fees specified in Table 1 of this section shall be prorated by: (1) dividing the applicable registration fee by 12; and (2) multiplying that amount by the number of months assigned on the new staggered license. (e) Reregistration fees specified in Table 1 of this section shall be prorated using the method described in subsection (d) of this section, except under subsection (d)(2), where reregistration fees shall be prorated by multiplying by the number of months remaining on the current license. (f) Licensees shall file the following items with the commission for all LP-gas transports: (1) LPG Form 7; and (2) LPG Form 18B if the Form 4 decal is destroyed or mutilated. (g) LP-gas transports shall comply with the requirements indicated in Table 1 of this section:
                                                                                                        Figure 2: 16 TAC sec.9.14(g) (h) The commission may also request that: (1) the licensee file a copy of the Manufacturer's Data Report; or (2) the unit be tested by a test other than those required by sec.9.1753 of this title (relating to Testing Requirements). (i) Currently registered LP-gas transports shall be inspected by the commission at least once during the commission's last four fiscal years for compliance with the LP-Gas Safety Rules prior to the commission issuing LPG Form 4. The commission shall notify the licensee of the date and time for inspection at least 24 hours in advance. (j) If a commission inspection reveals that an LP-gas transport is unsafe for LP-gas service, the commission shall not issue LPG Form 4 until the required corrections have been made, the licensee notifies the commission, and the commission determines that the unit is in compliance. (k) Nonspecification units registered as of June 1, 1989, shall be continuously registered, or they shall be removed from LP-gas service. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503808 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7562 27> 16 TAC sec.9.5 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Railroad Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Texas Natural Resources Code, sec.113.051, which authorizes the commission to adopt rules relating to any and all aspects or phases of the LP-gas industry that will protect or tend to protect the health, welfare, and safety of the general public, and sec.113.094, which authorizes the commission to adopt, by rule, a system under which LP-gas licenses expire on various dates during the year. The following are the statutes, articles, or codes affected by the repeal: Texas Natural Resources Code, sec.113.051 and sec.113.094. sec.9.5. Licensing Requirements. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503809 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7562 Chapter 13. Regulations for Compressed Natural Gas (CNG) Fuel Systems The Railroad Commission of Texas proposes the repeal of s13.61 (relating to licensing); the proposal of new sec.13.61 (relating to categories of licenses and related fees, and licensing requirements), and sec.13.72 (relating to designation of operations supervisor (branch manager)); and an amendment to sec.13.69 (relating to registration of CNG transport units). The commission proposes these actions to implement Texas Natural Resources Code, sec.116.038, which permits the commission, by rule, to adopt a system under which CNG licenses expire on various dates during the year, but requires that license fees be prorated on a monthly basis during the transition from the current system to the new one. Current sec.13.61 lists the categories of licenses, sets the license fees and when the fees are due, sets forth licensing requirements, discusses procedures for license renewal, and explains special requirements for certain licenses. Proposed new sec.13.61 contains language currently in sec.13.61; the simultaneous repeal and adoption of new sec.13.61 will clarify some language, add the requirement for staggered renewal dates; explain the conversion of all licenses from an August 31 renewal date to commission-assigned renewal dates staggered throughout the year and the method by which license fees will be prorated; and require that the commission notify licensees of the new renewal date at least 30 days in advance. Also added is the requirement that licensees shall make copies of the regulations for compressed natural gas available to employees. Proposed new sec.13.72 contains language that was previously in sec.13.61, but is moved to a new section for better clarity. Proposed sec.13.69 lists registration requirements for CNG transports; only nonsubstantive amendments are proposed for this section. Thomas D. Petru, director, Liquefied Petroleum Gas Division, has determined that for each year of the first five years the sections will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. Petru also has determined that the public benefit anticipated as a result of enforcing the sections will be more streamlined licensing, renewal, and registration procedures for CNG licensees and transports, as well as for the commission itself. There is no anticipated economic cost to small businesses and to persons required to comply. When a license renewal changes from August 31 to a staggered license renewal date to be assigned by the commission, the cost of the renewal license will be prorated. Comments on the proposals may be submitted to Thomas D. Petru, Director, Liquefied Petroleum Gas Division, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. Comments will be accepted for 30 days after publication in the Texas Register. Subchapter C. Classification, Registration, and Examination 16 TAC sec.13.61 (Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Railroad Commission of Texas or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeal is proposed under the Texas Natural Resources Code, sec.116.012, which authorizes the commission to adopt rules and standards relating to compressed natural gas work and operations to protect the health, safety and welfare of the general public, and sec.116.038, which authorizes the commission to adopt, by rule, a system under which CNG licenses and registrations expire on various dates during the year. The following are the statutes, articles, or codes affected by the proposed repeal: Texas Natural Resources Code, sec.116.012 and sec.116.038. sec.13.61. Licensing. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503807 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7562 16 TAC sec.sec.13.61, 13.69, 13.72 The new sections and amendment are proposed under the Texas Natural Resources Code, sec.116.012, which authorizes the commission to adopt rules and standards relating to compressed natural gas work and operations to protect the health, safety and welfare of the general public, and sec.116.038, which authorizes the commission to adopt, by rule, a system under which CNG licenses and registrations expire on various dates during the year. The following are the statutes, articles, or codes affected by the proposed new sections and amendment: Texas Natural Resources Code, sec.116.012 and sec.116.038. sec.13.61. Categories of Licenses and Related Fees, and Licensing Requirements. (a) A prospective licensee may apply to the commission for a license to engage in one or more of the categories specified in subsection (c)(1)-(6) of this section. Fees required to be paid shall be those established by the commission and in effect at the time of licensing or renewal, as specified in Table 1 of this section. A person may not engage in CNG activities unless that person has obtained a license as specified in this section. If a license expires or lapses, the person shall immediately cease CNG operations.
                                                                                                          Figure: 16 TAC 13.61(a) (b) License and renewal fees shall be prorated as specified in subsection (j) of this section. (c) The license categories are as follows: (1) A Category 1 license for manufacturers of CNG cylinders authorizes the manufacture, assembly, repair, testing, sale, installation, or subframing of CNG cylinders. (2) A Category 2 license for general installers and repairmen authorizes the sale, installation, service, or repair of CNG systems, including cylinders. (3) A Category 3 license for retail and wholesale dealers authorizes the sale, storage, transportation for delivery, or dispensing of CNG for use other than by an ultimate consumer, and the sale, installation, service, or repair of CNG systems as set out in Categories 2, 5, and 6. (4) A Category 4 license for testing laboratories authorizes the testing of CNG cylinders. (5) A Category 5 license for service stations or cylinder exchangers authorizes the operation of a CNG service station, including filling CNG cylinders, or the operation of a cylinder exchange dealership, including filling CNG cylinders, the sale of CNG in cylinders, the sale of CNG cylinders, and the replacement of cylinder valves. (6) A Category 6 license for equipment dealers authorizes the sale of CNG cylinders or systems. (d) An ultimate consumer is not subject to the licensing requirements of this title in order to perform those CNG activities dealing only with the ultimate consumer. (e) An original manufacturer of a new motor vehicle powered by CNG, or a subcontractor of a manufacturer who produces a new CNG powered motor vehicle for the manufacturer, is not subject to the licensing requirements of this title, but must comply with all other regulations for compressed natural gas. (f) A license obtained by an individual, partnership, corporation, or other legal entity extends to the entity's employees who are performing CNG work, provided that each employee is properly examined as required by this chapter. (g) Licensees shall maintain a copy of the current Regulations for Compressed Natural Gas published by the commission and shall provide at least one copy to each company representative and operations supervisor. The copies shall be available to employees during business hours. Failure to maintain the required copies may result in enforcement action such as penalties or suspension of licenses. (h) Licensees shall have copies of all current licenses and examination identification cards for employees at each location available for inspection during regular business hours. (i) Licenses issued under this chapter expire one year after issuance at midnight on the last day of the month previous to the month in which they are issued. (j) During the first year when a license changes from an August 31 renewal date to a staggered renewal date, the commission will randomly assign new license renewal dates to be staggered throughout the year. License renewal fees shall be prorated by: (1) dividing the applicable renewal fee by 12; and (2) multiplying that amount by the number of months assigned to the new staggered license. Fractions shall be rounded off to the nearest tenth of a dollar. (k) Only licenses that are in effect during the time of the conversion to staggered renewal dates shall have prorated fees. New applicants for license shall pay all fees in full before the commission issues a license. (l) When the commission assigns a new staggered license renewal date to a licensee, the commission shall notify the licensee of the new date at least 30 days in advance. For all subsequent renewals, the commission shall notify the licensee of the impending license expiration at least 15 days prior to the expiration date. Renewals shall be submitted to the commission along with the renewal fee specified in Table 1 of this section on or before the last day of the month in which the license expires in order for the licensee to continue CNG activities. Failure to meet the renewal deadline set forth in this section shall result in expiration of the license. If a person's license expires, that person shall immediately cease performance of any CNG activities. (1) If a person's license has been expired for fewer than 90 days, the person shall submit a late-filing penalty of one-half the amount of the annual renewal fee in addition to the required annual renewal fee. Upon receipt of the annual renewal fee and late-filing penalty, the commission shall verify that the person's license has not been suspended, revoked, or expired for more than two years. After verification, if the licensee has met all other requirements for licensing, the commission shall renew the license, and the person may resume CNG activities. (2) If a person's license has been expired for 90 days but less than two years, the person shall submit a late-filing penalty equal to the amount of the annual renewal fee in addition to the required annual renewal fee. Upon receipt of the annual renewal fee and late-filing penalty, the commission shall verify that the person's license has not been suspended, revoked, or expired for more than two years. After verification, if the licensee has met all other requirements for licensing, the commission shall renew the license, and the person may resume CNG activities. (3) If a person's license has been expired for more than two years, that person may not renew, but shall comply with the requirements for issuance of a new license. (m) Applicants for license or license renewal shall file with the commission CNG Form 1001 designating a company representative who shall be an owner or employee of the licensee, and shall be directly responsible for actively supervising CNG operations of the licensee. A licensee may have more than one company representative. (1) An applicant for license shall not engage in CNG activities governed by the Texas Natural Resources Code, Chapter 116, and the Regulations for Compressed Natural Gas, until its company representative has successfully completed the management examination administered by the commission. (2) The licensee shall notify the commission in writing upon termination of its company representative of record and shall at the same time designate a replacement by submitting a new CNG Form 1001. (3) The licensee shall cease operations if, at the termination of its company representative, there is no other certified company representative of the licensee acknowledged and recorded by the commission at its Austin office. The licensee shall not resume operation until such time as it has a qualified company representative. (n) In addition to complying with other licensing requirements set out in the Texas Natural Resources Code and the Regulations for Compressed Natural Gas, applicants for license or license renewal in the following categories shall comply with the specified additional requirements: (1) An applicant for a Category 1 license or renewal shall file with the commission for each of its outlets legible copies of: (A) its current DOT authorization. A licensee shall not continue to operate after the expiration date of the DOT authorization; and/or (B) its current ASME Code, Section VIII certificate of authorization or "R" certificate. If ASME is unable to issue a renewed certificate of authorization prior to the expiration date, the licensee may request in writing an extension of time not to exceed 60 calendar days past the expiration date. The licensee's request for extension shall be received by the commission prior to the expiration date of the ASME certificate of authorization referred to in this section, and shall include a letter or statement from ASME that the agency is unable to issue the renewal certificate of authorization prior to expiration and that a temporary extension will be granted for its purposes. A licensee shall not continue to operate after the expiration date of an ASME certificate of authorization until the licensee files a current ASME certificate of authorization with the commission, or the commission grants a temporary exception. (2) An applicant for a Category 4 license or renewal shall file a properly completed CNG Form 1505 with the commission, certifying that the applicant will follow the testing procedures indicated. CNG Form 1505 shall be signed by the appropriate CNG company representative designated on CNG Form 1001. sec.13.69. Registration of CNG Transports [Transport Units]. [(a)] A licensee or ultimate consumer
                                                                                                            who has purchased, leased, or obtained other rights in any vessel defined as a CNG transport by this subchapter shall register each such unit with the commission
                                                                                                              [division] in the name of the licensee or ultimate consumer
                                                                                                                [,] prior to the use of such unit for the transport or delivery of CNG in Texas. [(b) An ultimate consumer who has purchased, leased, or obtained other rights in any vessel defined as a CNG transport by this subchapter shall register each such unit with the division in the name of the consumer, prior to the use of such unit for the transport of CNG on public highways in Texas.] sec.13.72. Designation of Operations Supervisor (Branch Manager). (a) The commission shall designate whether a site is an outlet for the purpose of this chapter. Criteria used by the commission in determining the designation of an outlet includes, but is not limited to: (1) distance from other CNG activities operated by the licensee; (2) whether the operation is a duplicate of the home office operation; and (3) whether the operation is directly supervised on a routine basis. (b) A licensee maintaining more than one outlet shall file CNG Form 1001A with the commission designating an operations supervisor (branch manager) at each outlet. The operations supervisor shall pass the management examination as administered by the commission before commencing or continuing the licensee's operations at the outlet. (c) An operations supervisor (branch manager) may be a company representative of the licensee; however, unless specific approval is granted by the commission, an individual may be designated as an operations supervisor (branch manager) at each outlet. (d) The operations supervisor (branch manager) shall be directly responsible for actively supervising CNG operations of the licensee at the designated outlet. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503806 Mary Ross McDonald Assistant Director, Legal Division, Gas Utilities/LP Gas Railroad Commission of Texas Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 463-7562 TITLE 22. EXAMINING BOARDS Part XI. Board of Nurse Examiners Chapter 221. Advanced Nurse Practitioners 22 TAC sec.sec.221.1-221.10 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Board of Nurse Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Board of Nurse Examiners proposes the repeal of sec. s221.1-221.10, concerning Advanced Nurse Practitioners as extensive rewrite of the section was felt necessary. The repeal is proposed to allow the adoption of a new section, sec.sec.221.1-221.14, Advanced Practice Nurse. Louise Waddill, PhD, RN, executive director, has determined that there will be no fiscal implications as a result of enforcing or administering the repeals. There will be no effect on local government nor businesses to comply with the repeals. Ms. Waddill also has determined that for each year of the first five years the repeals as proposed will be in effect the public is not affected. Comments on the proposed repeals may be submitted to Kathy Thomas, Director of Practice, Board of Nurse Examiners, Box 140466; Austin, Texas 78714 and should be received on or before April 28, 1995, for consideration at the May meeting of the Board. The repeals are proposed under the Nursing Practice Act (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. No other code or article is affected by these repeals. sec.221.1. Definitions. sec.221.2. Education. sec.221.3. Categories. sec.221.4. Credentialing. sec.221.5. Recredentialing. sec.221.6. Reinstatement. sec.221.7. Identification. sec.221.8. Functions. sec.221.9. Scope of Practice. sec.221.10. Enforcement. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29,1995. TRD-9503817 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Proposed date of adoption: May 10, 1995 For further information, please call: (512) 835-8675 Chapter 221. Advanced Practice Nurse 22 TAC sec.sec.221.1-221.14 The Board of Nurse Examiners proposes new sec.sec.221.1-221.14, concerning Advanced Practice Nurse. The Board's Advanced Nurse Practitioner (ANP) Advisory Committee has been meeting since last summer to discuss recommendations for changes. The committee members have shared the information with their respective constituents, thus, the input to these proposed rules has been broad-based. The committee then submitted a draft for the Board's consideration. These proposed new sections will replace the former Advanced Nurse Practitioner rules. The change of the term Advanced Nurse Practitioner to Advanced Practice Nurse was needed to avoid confusion caused by the term "Practitioners" in the former title. The proposed new sections include mechanisms for initial and continued competency which are necessary in light of changes in the health care delivery system and current advanced practice nursing. Louise Waddill, PhD, RN, executive director, has determined that there will be fiscal implications for the applicant as a result of enforcing or administering the rules; however, no determination has been made at this time as to the cost of the recredentialing following initial approval. There will be no effect on local government nor businesses to comply with the rules. Ms. Waddill, also has determined that for each year of the first five years the rules as proposed will be in effect the public is not affected. Comments on the proposed new sections may be submitted to Kathy Thomas, Director of Practice, Board of Nurse Examiners, Box 140466; Austin, Texas 78714 and, if possible, should be sent on or before April 28 for consideration at the May meeting of the Board. The new sections are proposed under the Nursing Practice Act (Texas Civil Statutes, Article 4514), sec.1, which provides the Board of Nurse Examiners with the authority and power to make and enforce all rules and regulations necessary for the performance of its duties and conducting of proceedings before it. No other code or article is affected by these new sections. sec.221.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. Advanced educational program-A post-basic advanced practice nurse program at the certificate or master's degree level. Advanced Practice Nurse (APN)-A registered professional nurse, currently licensed in the State of Texas, who is prepared for advanced nursing practice by virtue of knowledge and skills obtained in an advanced educational program of study acceptable to the board. The advanced practice nurse is prepared to practice in an expanded role to provide health care to individuals, families, and/or groups in a variety of settings including but not limited to homes, hospitals, institutions, offices, industry, schools, community agencies, public and private clinics, and private practice. The advanced practice nurse acts independently and/or in collaboration with other health care professionals in the delivery of health care services. Authorization to practice-The process of reviewing the educational, licensing, certification and other credentials of the registered nurse to determine compliance with the board's requirements for approval as an advanced practice nurse. Board-The Board of Nurse Examiners for the State of Texas. Current certification -Initial certification and maintenance of certification by certifying bodies recognized by the board. Current practice -Maintaining competence as an advanced practice nurse by practicing as a clinician, educator, consultant or administrator. Protocols/policies/practice guidelines-Written authorization to initiate medical aspects of patient care which are agreed upon and signed by the advanced practice nurse and the physician, reviewed and signed at least biennially, and maintained in the practice setting of the advanced practice nurse. Shall and must -Mandatory requirements. Should-A recommendation. sec.221.2. Titles. (a) Registered professional nurses holding themselves out to be advanced practice nurses may include, but not be limited to, the following: (1) nurse anesthetist; (2) nurse midwife; (3) nurse practitioner; (4) clinical nurse specialist; (5) and other titles as approved by the board. (b) Titles with specialization as stated in subsection (a) of this section must be approved by the board. (c) "Advanced practice nurse" shall not be used as a title. Advanced practice nurses shall use titles for identification which reflect advanced educational preparation and are authorized by the board, i.e., certified nurse midwife, pediatric nurse practitioner. sec.221.3. Education. The registered professional nurse practicing as an advanced practice nurse shall have completed an advanced educational program of study appropriate to the practice area which meets the following criteria. (1) The program of study shall meet the requirements for advanced nurse practitioner programs according to sec. s219.1-219.14, Advanced Nurse Practitioner Program of this title (relating to Definitions, New Programs, Accreditation, Philosophy and Objectives, Administration and Organization, Faculty Qualification, Change of Director, Faculty Policies, Faculty Development and Evaluation, Program of Study, Curriculum, Curriculum Change, Students, and Educational Resources and Facilities). (2) Programs of study in the State of Texas shall be accredited by the board or a national accrediting body recognized by the board. (3) Programs of study in states other than Texas must meet the requirements of Chapter 219 of this title (relating to Advanced Nurse Practitioner Program) and shall be accredited by the appropriate licensing body in that state or be accredited by a national accrediting body recognized by the board. (4) The program of study shall be at least one academic year in length which may include a formal preceptorship. sec.221.4. Requirements for Initial Authorization to Practice. (a) The registered professional nurse who seeks authorization to practice as an advanced practice nurse must: (1) hold a current, valid license as a registered nurse in the State of Texas; (2) submit to the board such evidence as required by the board to insure compliance with sec.221.3 of this title (relating to Education); (3) attest, on forms provided by the board, to having the minimum of 400 hours of current practice within the preceding biennium unless the applicant has graduated from an advanced practice program within the preceding biennium; (This section is effective January 1, 1996.) (4) attest, on forms provided by the board, to having obtained 20 contact hours of continuing education in the advanced specialty area and role recognized by the board every two years. Continuing education in the advanced practice specialty and role must meet requirements of sec.217.15 of this title (relating to Continuing Education). The 20 contact hours required for RN licensure may be met by the 20 hours required by this subsection; (This section is effective January 1, 1996.) and (5) submit the required credentialing fee, which is not refundable. (b) The registered professional nurse who seeks authorization to practice as an advanced practice nurse who graduated from an advanced practice program on January 1, 1996, and thereafter, must also submit to the board such evidence as required by the board to insure the applicant holds current certification as an advanced practice nurse in an advanced nursing specialty and role recognized by the board. Such certification must be granted by a national certification body recognized by the board. If an appropriate certification examination is not available for the specific specialty and role or a related area of specialty practice within the role, the applicant may petition the board for waiver from the certification requirement according to s221.5(2) of this title (relating to Petitions for Waiver). New graduates refer to sec.221.7 of this title (relating to New Graduates). (This section is effective January 1, 1996.) (c) Registered professional nurses who wish to be approved by the board for more than one title shall complete additional education in the desired area(s) of approval in compliance with sec.221.3 of this title (relating to Education) or obtain certification in the additional area(s) by a national organization, whose certification examination has been recognized by the board. To apply for approval for more than one title, the registered professional nurse shall submit a separate application and fee for each desired title of approval. (d) After review by the board, notification of acceptability of credentials and a certificate verifying approval shall be sent to the advanced practice nurse. (e) Only those registered professional nurses whose credentials have been approved by the board may hold themselves out to be advanced practice nurses and/or use titles to imply that they are advanced practice nurses. sec.221.5. Petitions for Waiver. A registered professional nurse who submits a request for waiver from requirements of these rules as set forth in this section must submit documentation as required by the board to support his or her petition and assure the board that he or she possesses the knowledge, skills and abilities appropriate for the role and specialty desired. Those petitioners who are under investigation or current board order are not eligible for waiver. (1) Petitions for waiver from the program accreditation requirements of sec.221.3(2) and (3) of this title (relating to Education), may be granted by the board for individuals who completed their educational programs during or before 1978. Petitioners must meet the length of academic program requirements of sec.221.3(4) of this title (relating to Education). (2) Petitions for waiver from the current certification requirements of sec.221.4(b) of this title (relating to Requirements for Initial Authorization to Practice) and sec.221.8(a)(1) of this title (relating to Maintaining Authorization as an Advanced Practice Nurse) may be granted by the board. (A) Under this section, only those petitioners who have no national certification examination available within their role and specialty or a related advanced specialty will be considered for waiver by the board under this section. (B) The board may determine that available national examinations must be taken in lieu of an examination specifically related to the specialty. sec.221.6. Interim Approval.
                                                                                                                  Interim approval may be granted by the board pending completion of the application process for a period not to exceed 90 days. (1) The registered professional nurse seeking interim approval must complete an affidavit provided by the board verifying that he/she meets all requirements of this chapter and has completed and mailed the application to the appropriate educational program or organization for completion of the Evidence of Completion of an Advanced Nurse Practitioner Program. (2) A letter shall be issued by the board granting interim approval. (3) An applicant is eligible for interim approval one time only. sec.221.7. New Graduates.
                                                                                                                    A registered professional nurse who has completed advanced formal education as required by sec.221.3 of this title (relating to Education) and registered for the first available board approved national certification examination within two years of graduation from the program may be issued a temporary authorization to practice as a Graduate Advanced Practice Nurse pending notification of the results of the certification examination. (1) The applicant for advanced practice nurse recognition shall be given no more than three opportunities in the first two years after graduation to pass the certification examination. (2) Failure to pass the examination after three attempts or failure to pass the exam within two years of eligibility will render the applicant ineligible to practice in the advanced practice role. In this case, the applicant must immediately return the authorization to practice document to the board's office. (This section becomes effective January 1, 1996.) sec.221.8. Maintaining Authorization as an Advanced Practice Nurse. (a) The registered professional nurse seeking to maintain authorization as an advanced practice nurse shall, in conjunction with RN license renewal: (1) provide evidence of current national certification or certification maintenance by the appropriate certifying body recognized by the board, if graduated from an advanced practice nurse program on or after January 1, 1996. A copy of the certification or certification maintenance document shall be presented at the time of the renewal and with each subsequent renewal; (2) attest, on forms provided by the board, to having a minimum of 400 hours of current practice within the preceding biennium (effective January 1, 1996); (3) attest, on forms provided by the board, to having obtained 20 contact hours of continuing education in the specialty area and role every two years. Continuing education in the advanced practice specialty and role must meet requirements of sec.217.15 of this chapter (relating to Continuing Education). The 20 contact hours required for RN licensure may be met by the 20 hours required by this subsection (effective January 1, 1996); and (4) submit the required recredentialing fee, which is not refundable. (b) Failure to renew the registered nurse license or to provide the required documentation for maintaining authorization shall result in expiration of the board's approval as an advanced practice nurse. sec.221.9. Inactive Status. (a) The advanced practice nurse may choose to change advanced practice nurse status to inactive by providing a written request for such change. (b) Inactive advanced practice status means that the registered professional nurse may not practice in the advanced practice specialty and role and may not hold himself/herself out to be an advanced practice nurse by using titles defined by sec.221.2 of this title (relating to Titles). sec.221.10. Reinstatement or Reactivation of Advanced Practice Nurse Status. (a) To reinstate an approval which has expired due to non-payment of renewal fees for registered nurse licensure or to reactivate advanced practice nurse authorization to practice, the advanced practice nurse shall meet the requirements as stated in sec.221.8 of this title (relating to Maintaining Authorization as an Advanced Practice Nurse) and pay all required fees. (b) If more than four years have lapsed since completion of the advanced practice educational program and/or the applicant has not practiced in the advanced role during the previous four years, the applicant shall reapply and meet current requirements for authorization to practice under sec.221.4 of this title (relating to Requirements for Initial Authorization to Practice) and shall: (1) hold a current Texas registered nurse license; and (2) successfully complete a refresher course or extensive orientation in the appropriate advanced practice specialty and role which includes a supervised clinical component. The instructor/sponsor must provide written verification of satisfactory completion of the course/orientation on forms provided by the board. sec.221.11. Identification. The advanced practice nurse shall wear a name tag which identifies her or him as a registered nurse with the appropriate title approved by the board (i.e., nurse anesthetist, nurse midwife, nurse practitioner or clinical nurse specialist) as stated in sec.221. 2 of this title (relating to Titles). sec.221.12. Functions. (a) The advanced practice area of the advanced practice nurse shall be appropriate to his/her advanced educational preparation. (b) The advanced practice nurse acts independently and/or in collaboration with the health team in the observation, assessment, diagnosis, intervention, evaluation, rehabilitation, care and counsel, and health teachings of persons who are ill, injured or infirm or experiencing changes in normal health processes; and in the promotion and maintenance of health or prevention of illness. (c) Advanced practice nurses must utilize mechanisms which provide medical authority when such mechanisms are indicated. These mechanisms may include but are not limited to protocols/policies/practice guidelines or other orders. This shall not be construed as requiring authority for nursing aspects of care. (1) When protocols/policies/practice guidelines are used to provide such authorization they should be jointly developed by the advanced practice nurse and appropriate physician(s) and signed by both the nurse and the physician(s). These protocols/policies/practice guidelines shall be reviewed at least biennially. (2) The scope and detail of said protocols/policies/practice guidelines may vary in relation to the complexity of the situations covered and the area of practice and educational preparation of the individual advanced practice nurse. (d) The functions of the advanced practice nurse must be authorized by the Nursing Practice Act and other applicable state laws. sec.221.13. Scope of Practice. The advanced practice nurse provides a broad range of personal health services, the scope of which shall be based upon educational preparation, continued experience and the accepted scope of professional practice of the particular specialty area. sec.221.14. Enforcement. (a) The board may conduct an audit to determine compliance with sec.221. 4 of this title (relating to Requirements for Initial Authorization to Practice) and sec.221.8 of this title (relating to Maintaining Authorization as an Advanced Practice Nurse). (b) Any nurse who violates these rules shall be subject to disciplinary action and/or termination of the authorization by the board under Texas Civil Statutes, Article 4525. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29,1995. TRD-9503818 Louise Waddill, Ph.D., R.N. Executive Director Board of Nurse Examiners Proposed date of adoption: May 10, 1995 For further information, please call: (512) 835-8675 TITLE 25. HEALTH SERVICES Part VII. Texas Medical Disclosure Panel Chapter 601. Informed Consent The Texas Medical Disclosure Panel (panel) proposes the repeal of existing sec.sec.601.1-601.4 and proposes new sec. s601.1-601.6, concerning informed consent. Specifically, the new sections cover the purpose of the chapter; the panel's procedures requiring full disclosure (list A) and procedures requiring no disclosure (list B); the panel's disclosure and consent form; the panel's radiation therapy disclosure and consent form; and the history of the rules of the panel. The repeal of sec.sec.601.1-601.4 allow for the proposal of the new sections in Texas Register format. New sec.601.1 relates generally to the panel and sets out the purpose of the sections which are to implement the requirements of the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i, Subchapter F, relating to informed consent. This section also makes reference to list A in the new sec.601.2 and list B in the new s601.3. Section 601.2 and sec.601.3 have been put into proper Texas Register format so that the full text of the rules, including list A and list B, will be published in future volumes of the Texas Administrative Code. At this time the actual list A and list B are adopted by reference and are not published in the code. There are no changes to the procedures listed or to the risks and hazards assigned to the listed procedures. The only purpose of the new sections is to place the existing procedures and risks and hazards into Texas Register format. In some places it was necessary to add additional language stating that no other procedures or risks are assigned at this time. This language was added in order to create the proper outline form of having two items, such as subparagraphs (A) and (B) in each list. This change is found in new sec.601.2(a) (1)(B), (2)(B), (3)(B), (c)(2), (e)(2), (h)(2), and (q)(2). In sec.601.3 this change is found in subsection (b)(2) and (h)(2). In addition, since the disclosure and consent form has been moved to new s601.4, the reference to the form has been changed in new s601.2(a)(1)(A), (2)(A), and (3)(A). In addition, punctuation or capitalization has been corrected in ten places in new s601.2 and in one place in new sec.601.3. In new sec.601.3, subsection (n) under radiology has been changed to use lower case letters instead of capital letters in paragraphs (11), (16), (18), (20), (23), (24)-(27), and (31) and in paragraph (11) "gastrointestinal" is spelled out. In new sec.601.4 the disclosure and consent form is being proposed so that it will be published in the Texas Administrative Code. There have been no changes to the language of the disclosure and consent form. This is still the same form originally adopted by the panel in 1982. New sec.601.5 adopts the radiation therapy disclosure and consent form which was originally adopted by the panel in 1990. There have been no changes to the form. New sec.601.6 lists the history of the rules adopted by the panel. The history is listed in order to assist individuals in identifying the rules in effect on a certain date. This history was previously included in existing sec.601.1. Becky Beechinor, director, Health Facility Licensure Division, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Ms. Beechinor also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to insure that the rules of the panel are accessible to the public by inclusion of the full text of the rules in the Texas Administrative Code. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. The sections will have no effect on local employment. Comments on the proposal may be submitted to Becky Beechinor, Director, Health Facility Licensure Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, (512) 834-6648, within 30 days of publication of the proposed sections. Medical Treatments and Surgical Procedure Established by the Texas Medical Disclosure Panel 25 TAC sec.sec.601.1-601.4 (Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Medical Disclosure Panel or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The repeals are proposed under the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i, sec.6.04, which authorize the Texas Medical Disclosure Panel to prepare lists of medical treatments and surgical procedures that do and do not require disclosure by physicians and health care providers of the possible risks and hazards and to prepare the form for the treatments and procedures which do require disclosure. The repeals affect the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i. sec.601.1. Procedures Requiring Full Disclosure (List A). sec.601.2. Procedures Requiring No Disclosure (List B). sec.601.3. Disclosure and Consent Form. sec.601.4. Radiation Therapy Disclosure and Consent Form. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 31, 1995. TRD-9503921 John Yatsu, M.D. Chairman Texas Medical Disclosure Panel Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 458-7236 25 TAC sec.sec.601.1-601.6 The new sections are proposed under the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i, sec.6.04, which authorize the Texas Medical Disclosure Panel to prepare lists of medical treatments and surgical procedures that do and do not require disclosure by physicians and health care providers of the possible risks and hazards and to prepare the form for the treatments and procedures which do require disclosure. The new sections affect the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i. sec.601.1. General. (a) The purpose of this chapter is to implement the requirements of the Medical Liability and Insurance Improvement Act of Texas, Texas Civil Statutes, Article 4590i; Subchapter F, relating to informed consent. (b) The treatments and procedures requiring full disclosure by a physician or health care provider to a patient or person authorized to consent for the patient are found in sec.601.2 of this title (relating to Procedures Requiring Full Disclosure-List A). (c) The treatments and procedures requiring no disclosure by a physician or health care provider to a patient or person authorized to consent for the patient are found in sec.601.3 of this title (relating to Procedures Requiring No Disclosure-List B). sec.601.2. Procedures Requiring Full Disclosure-List A. (a) Anesthesia. (1) Epidural. (A) Risks are enumerated in the form in sec.601.4 of this title (relating to Disclosure and Consent Form). (B) No other risks are assigned at this time. (2) General. (A) Risks are enumerated in the form in sec.601.4 of this title. (B) No other risks are assigned at this time. (3) Spinal. (A) Risks are enumerated in the form in sec.601.4 of this title. (B) No other risks are assigned at this time. (b) Cardiovascular system. No procedures are assigned at this time. (c) Digestive system treatments and procedures. (1) Cholecystectomy with or without common bile duct exploration. (A) Pancreatitis. (B) Injury to the tube between the liver and the bowel. (C) Retained stones in the tube between the liver and the bowel. (D) Narrowing or obstruction of the tube between the liver and the bowel. (E) Injury to the bowel and/or intestinal obstruction. (2) Other procedures. No other procedures are assigned at this time. (d) Ear treatments and procedures. (1) Stapedectomy. (A) Diminished or bad taste. (B) Total or partial loss of hearing in the operated ear. (C) Brief or long-standing dizziness. (D) Eardrum hole requiring more surgery. (E) Ringing in the ear. (2) Reconstruction of auricle of ear for congenital deformity or trauma. (A) Less satisfactory appearance compared to possible alternative artificial ear. (B) Exposure of implanted material. (3) Tympanoplasty with mastoidectomy. (A) Facial nerve paralysis. (B) Altered or loss of taste. (C) Recurrence of original disease process. (D) Total loss of hearing in operated ear. (E) Dizziness. (F) Ringing in the ear. (e) Endocrine system treatments and procedures. (1) Thyroidectomy. (A) Injury to nerves resulting in hoarseness or impairment of speech. (B) Injury to parathyroid glands resulting in low blood calcium levels that require extensive medication to avoid serious degenerative conditions, such as cataracts, brittle bones, muscle weakness and muscle irritability. (C) Lifelong requirement of thyroid medication. (2) Other procedures. No other procedures are assigned at this time. (f) Eye treatments and procedures. (1) Eye muscle surgery. (A) Additional treatment and/or surgery. (B) Double vision. (C) Partial or total loss of vision. (2) Surgery for cataract with or without implantation of intraocular lens. (A) Complications requiring additional treatment and/or surgery. (B) Need for glasses or contact lenses. (C) Complications requiring the removal of implanted lens. (D) Partial or total loss of vision. (3) Retinal or vitreous surgery. (A) Complications requiring additional treatment and/or surgery. (B) Recurrence or spread of disease. (C) Partial or total loss of vision. (4) Reconstructive and/or plastic surgical procedures of the eye and eye region, such as blepharoplasty, tumor, fracture, lacrimal surgery, foreign body, abscess, or trauma. (A) Worsening or unsatisfactory appearance. (B) Creation of additional problems. (i) Poor healing or skin loss. (ii) Nerve damage. (iii) Painful or unattractive scarring. (iv) Impairment of regional organs, such as eye or lip function. (C) Recurrence of the original condition. (5) Photocoagulation and/or cryotherapy. (A) Complications requiring additional treatment and/or surgery. (B) Pain. (C) Partial or total loss of vision. (6) Corneal surgery, such as corneal transplant, refractive surgery and pterygium. (A) Complications requiring additional treatment and/or surgery. (B) Possible pain. (C) Need for glasses or contact lenses. (D) Partial or total loss of vision. (7) Glaucoma surgery by any method. (A) Complications requiring additional treatment and/or surgery. (B) Worsening of the glaucoma. (C) Pain. (D) Partial or total loss of vision. (8) Removal of the eye or its contents (enucleation or evisceration). (A) Complications requiring additional treatment and/or surgery. (B) Worsening or unsatisfactory appearance. (C) Recurrence or spread of disease. (9) Surgery for penetrating ocular injury, including intraocular foreign body. (A) Complications requiring additional treatment and/or surgery, including removal of the eye. (B) Chronic pain. (C) Partial or total loss of vision. (g) Female genital system treatments and procedures. (1) Abdominal hysterectomy (total). (A) Uncontrollable leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (2) Vaginal hysterectomy. (A) Uncontrollable leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (F) Completion of operation by abdominal incision. (3) All fallopian tube and ovarian surgery with or without hysterectomy, including removal and lysis of adhesions. (A) Injury to the bowel and/or bladder. (B) Sterility. (C) Failure to obtain fertility (if applicable). (D) Failure to obtain sterility (if applicable). (E) Loss of ovarian functions or hormone production from ovary(ies). (4) Abdominal endoscopy (peritoneoscopy, laparoscopy). (A) Puncture of the bowel or blood vessel. (B) Abdominal injection and complications of infection. (C) Abdominal incision and operation to correct injury. (5) Removing fibroids (uterine myomectomy). (A) Uncontrolled leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (6) Uterine suspension. (A) Uncontrollable leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (7) Removal of the nerves to the uterus (presacral neurectomy). (A) Uncontrolled leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (F) Hemorrhage, complications of hemorrhage, with additional operation. (8) Removal of the cervix. (A) Uncontrolled leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (F) Completion of operation by abdominal incision. (9) Repair of vaginal hernia (anterior and/or posterior colporrhaphy and/or enterocele repair). (A) Uncontrollable leakage of urine. (B) Injury to bladder. (C) Sterility. (D) Injury to the tube (ureter) between the kidney and the bladder. (E) Injury to the bowel and/or intestinal obstruction. (10) Abdominal suspension of the bladder (retropubic urethropexy). (A) Uncontrolled leakage of urine. (B) Injury to bladder. (C) Injury to the tube (ureter) between the kidney and the bladder. (D) Injury to the bowel and/or intestinal obstruction. (11) Conization of cervix. (A) Hemorrhage with possible hysterectomy to control. (B) Sterility. (C) Injury to bladder. (D) Injury to rectum. (E) Failure of procedure to remove all of cervical abnormality. (12) Dilation and curettage of uterus (diagnostic). (A) Hemorrhage with possible hysterectomy. (B) Perforation of the uterus. (C) Sterility. (D) Injury to bowel and/or bladder. (E) Abdominal incision and operation to correct injury. (13) Dilation and curettage of uterus (obstetrical). (A) Hemorrhage with possible hysterectomy to control. (B) Perforation of the uterus. (C) Sterility. (D) Injury to the bowel and/or bladder. (E) Abdominal incision and operation to correct injury. (F) Failure to remove all products of conception. (h) Hematic and lymphatic system. (1) Transfusion of blood and blood components. (A) Fever. (B) Transfusion reaction which may include kidney failure or anemia. (C) Heart failure. (D) Hepatitis. (E) A.I.D.S. (acquired immune deficiency syndrome). (F) Other infections. (2) Other procedures. No other procedures are assigned at this time. (i) Integumentary system treatments and procedures. (1) Radical or modified radical mastectomy. (Simple mastectomy excluded). (A) Limitation of movement of shoulder and arm. (B) Swelling of the arm. (C) Loss of the skin of the chest requiring skin graft. (D) Recurrence of malignancy, if present. (E) Decreased sensation or numbness of the inner aspect of the arm and chest wall. (2) Reconstruction and/or plastic surgical operations of the face and neck. (A) Worsening or unsatisfactory appearance. (B) Creation of several additional problems. (i) Poor healing or skin loss. (ii) Nerve damage. (iii) Painful or unattractive scarring. (iv) Impairment of regional organs, such as eye or lip function. (C) Recurrence of the original condition. (j) Male genital system. (1) Orchidopexy (reposition of testis(es)). (A) Removal of testicle. (B) Atrophy (shriveling) of the testicle with loss of function. (2) Orchiectomy (removal of the testis(es)). (A) Decreased sexual desire. (B) Difficulties with penile erection. (3) Vasectomy. (A) Loss of testicle. (B) Failure to produce permanent sterility. (k) Maternity and related cases. (1) Delivery (vaginal). (A) Injury to bladder and/or rectum, including a hole (fistula) between bladder and vagina and/or rectum and vagina. (B) Hemorrhage possibly requiring blood administration and/or hysterectomy and/or artery ligation to control. (C) Sterility. (D) Brain damage, injury or even death occurring to the fetus before or during labor and/or vaginal delivery whether or not the cause is known. (2) Delivery (cesarean section). (A) Injury to bowel and/or bladder. (B) Sterility. (C) Injury to tube (ureter) between kidney and bladder. (D) Brain damage, injury or even death occurring to the fetus before or during labor and/or cesarean delivery whether or not the cause is known. (E) Uterine disease or injury requiring hysterectomy. (l) Musculoskeletal system treatments and procedures. (1) Arthroplasty of all joints with mechanical device. (A) Impaired function such as shortening or deformity of an arm or leg, limp or foot drop. (B) Blood vessel or nerve injury. (C) Pain or discomfort. (D) Fat escaping from bone with possible damage to a vital organ. (E) Failure of bone to heal. (F) Bone infection. (G) Removal or replacement of any implanted device or material. (2) Mechanical internal prosthetic device. (A) Impaired function such as shortening or deformity of an arm or leg, limp or foot drop. (B) Blood vessel or nerve injury. (C) Pain or discomfort. (D) Fat escaping from bone with possible damage to a vital organ. (E) Failure of bone to heal. (F) Bone infection. (G) Removal or replacement of any implanted device or material. (3) Open reduction with internal fixation. (A) Impaired function such as shortening or deformity of an arm or leg, limp or foot drop. (B) Blood vessel or nerve injury. (C) Pain or discomfort. (D) Fat escaping from bone with possible damage to a vital organ. (E) Failure of bone to heal. (F) Bone infection. (G) Removal or replacement of any implanted device or material. (4) Osteotomy. (A) Impaired function such as shortening or deformity of an arm or leg, limp or foot drop. (B) Blood vessel or nerve injury. (C) Pain or discomfort. (D) Fat escaping from bone with possible damage to a vital organ. (E) Failure of bone to heal. (F) Bone infection. (G) Removal or replacement of any implanted device or material. (5) Ligamentous reconstruction of joints. (A) Failure of reconstruction to work. (B) Continued loosening of the joint. (C) Degenerative arthritis. (D) Continued pain. (E) Increased stiffening. (F) Blood vessel or nerve injury. (G) Cosmetic and/or functional deformity. (6) Children's orthopedics (bone, joint, ligament or muscle). (A) Growth deformity. (B) Additional surgery. (m) Nervous system treatments and procedures. (1) Craniotomy (craniectomy) for excision of brain tissue, tumor, vascular malformation and cerebral revascularization. (A) Additional loss of brain function including memory. (B) Recurrence or continuation of the condition that required this operation. (C) Stroke. (D) Blindness, deafness, inability to smell, double vision, coordination loss, seizures, pain, numbness and paralysis. (2) Craniotomy (craniectomy) for cranial nerve operation including neurectomy, avulsion, rhizotomy or neurolysis. (A) Numbness, impaired muscle function or paralysis. (B) Recurrence or continuation of the condition that required this operation. (C) Seizures. (3) Spine operation, including laminectomy, decompression, fusion, internal fixation or procedures for nerve root or spinal cord compression; diagnosis; pain; deformity; mechanical instability; injury; removal of tumor, abscess or hematoma (excluding coccygeal operations). (A) Pain, numbness or clumsiness. (B) Impaired muscle function. (C) Incontinence or impotence. (D) Unstable spine. (E) Recurrence or continuation of the condition that required the operation. (F) Injury to major blood vessels. (4) Peripheral nerve operation; nerve grafts, decompression, transposition or tumor removal; neurorrhaphy, neurectomy or neurolysis. (A) Numbness. (B) Impaired muscle function. (C) Recurrence or persistence of the condition that required the operation. (D) Continued, increased or different pain. (5) Correction of cranial deformity. (A) Loss of brain function. (B) Seizures. (C) Recurrence or continuation of the condition that required this operation. (6) Transphenoidal hypophysectomy or other pituitary gland operation. (A) Spinal fluid leak. (B) Necessity for hormone replacement. (C) Recurrence or continuation of the condition that required this operation. (D) Nasal septal deformity or perforation. (7) Cerebral spinal fluid shunting procedure or revision. (A) Shunt obstruction or infection. (B) Seizure disorder. (C) Recurrence or continuation of brain dysfunction. (n) Radiology. (1) Angiography, aortography, arteriography (arterial injection of contrast media-diagnostic). (A) Injury to artery. (B) Damage to parts of the body supplied by the artery with resulting loss of function or amputation. (C) Swelling, pain, tenderness or bleeding at the site of the blood vessel perforation. (D) Aggravation of the condition that necessitated the procedure. (E) Allergic sensitivity reaction to injected contrast media. (2) Myelography. (A) Chronic pain. (B) Transient headache, nausea, vomiting. (C) Numbness. (D) Impaired muscle function. (3) Angiography with occlusion techniques-therapeutic. (A) Injury to artery. (B) Loss or injury to body parts. (C) Swelling, pain, tenderness or bleeding at the site of the blood vessel perforation. (D) Aggravation of the condition that necessitated the procedure. (E) Allergic sensitivity reaction to injected contrast media. (4) Angioplasty (intravascular dilatation technique). (A) Swelling, pain tenderness, or bleeding at the site of vessel puncture. (B) Damage to parts of the body supplied by the artery with resulting loss of function or amputation. (C) Injury to the vessel that may require immediate surgical intervention. (D) Recurrence or continuation of the original condition. (E) Allergic sensitivity reaction to injected contrast media. (5) Splenoportography (needle injection of contrast media into the spleen). (A) Injury to the spleen requiring blood transfusion and/or removal of the spleen. (B) No other risks are assigned at this time. (o) Respiratory system treatments and procedures. (1) Excision of lesion of larynx, vocal cords, trachea. No risks or hazards assigned at this time. (2) Rhinoplasty or nasal reconstruction with or without septoplasty. (A) Deformity of skin, bone or cartilage. (B) Creation of new problems, such as septal perforation or breathing difficulty. (3) Submucous resection of nasal septum or nasal septoplasty. (A) Persistence, recurrence or worsening of the obstruction. (B) Perforation of nasal septum with dryness and crusting. (C) External deformity of the nose. (p) Urinary system. (1) Partial nephrectomy (removal of part of the kidney). (A) Incomplete removal of stone(s) or tumor, if present. (B) Obstruction of urinary flow. (C) Leakage of urine at surgical site. (D) Injury to or loss of the kidney. (E) Damage to adjacent organs. (2) Radical nephrectomy (removal of kidney and adrenal gland for cancer). (A) Loss of the adrenal gland. (B) Incomplete removal of tumor. (C) Damage to adjacent organs. (3) Nephrectomy (removal of kidney). (A) Incomplete removal of tumor if present. (B) Damage to adjacent organs. (C) Injury to or loss of the kidney. (4) Nephrolithotomy and pyelolithotomy (removal of kidney stone(s)). (A) Incomplete removal of stone(s). (B) Obstruction of urinary flow. (C) Leakage of urine at surgical site. (D) Injury or loss of the kidney. (E) Damage to adjacent organs. (5) Pyeloureteroplasty (pyeloplasty or reconstruction of the kidney drainage system). (A) Obstruction of urinary flow. (B) Leakage of urine at surgical site. (C) Injury to or loss of the kidney. (D) Damage to adjacent organs. (6) Exploration of kidney or perinephric mass. (A) Incomplete removal of stone(s) or tumor, if present. (B) Leakage of urine at surgical site. (C) Injury to or loss of the kidney. (D) Damage to adjacent organs. (7) Ureteroplasty (reconstruction of ureter (tube between kidney and bladder)). (A) Leakage of urine at surgical site. (B) Incomplete removal of the stone or tumor (when applicable). (C) Obstruction of urine flow. (D) Damage to other adjacent organs. (E) Damage to or loss of the ureter. (8) Ureterolithotomy (surgical removal of stone(s) from ureter (tube between kidney and bladder)). (A) Leakage of urine at surgical site. (B) Incomplete removal of stone. (C) Obstruction of urine flow. (D) Damage to other adjacent organs. (E) Damage to or loss of ureter. (9) Ureterectomy (partial/complete removal of ureter (tube between kidney and bladder)). (A) Leakage of urine at surgical site. (B) Incomplete removal of tumor (when applicable). (C) Obstruction of urine flow. (D) Damage to other adjacent organs. (10) Ureterolysis (partial/complete removal of ureter (tube between kidney and bladder from adjacent tissue)). (A) Leakage of urine at surgical site. (B) Obstruction to urine flow. (C) Damage to other adjacent organs. (D) Damage to or loss of ureter. (11) Ureteral reimplantation (reinserting ureter (tube between kidney and bladder) into the bladder). (A) Leakage of urine at surgical site. (B) Obstruction to urine flow. (C) Damage to or loss of ureter. (D) Backward flow of urine from bladder into ureter. (E) Damage to other adjacent organs. (12) Prostatectomy (partial or total removal of prostate). (A) Leakage of urine at surgical site. (B) Obstruction to urine flow. (C) Incontinence (difficulty with urinary control). (D) Semen passing backward into bladder. (E) Difficulty with penile erection (possible with partial and probable with total prostatectomy). (13) Total cystectomy (removal of urinary bladder). (A) Probable loss of penile erection and ejaculation in the male. (B) Damage to other adjacent organs. (C) This procedure will require an alternate method of urinary drainage. (14) Partial cystectomy (partial removal of urinary bladder) . (A) Leakage or urine at surgical site. (B) Incontinence (difficulty with urinary control). (C) Backward flow of urine from bladder into ureter (tube between kidney and bladder). (D) Obstruction of urine flow. (E) Damage to other adjacent organs. (15) Urinary diversion (ileal conduit, colon conduit). (A) Blood chemistry abnormalities requiring medication. (B) Development of stones, strictures or infection. (C) Routine lifelong medical evaluation. (D) Leakage of urine at surgical site. (E) Requires wearing a bag for urine collection. (16) Ureterosigmoidostomy (placement of kidney drainage tubes into the large bowel). (A) Blood chemistry abnormalities requiring medication. (B) Development of stones, strictures or infection. (C) Routine lifelong medical evaluation. (D) Leakage of urine at surgical site. (E) Difficulty in holding urine in the rectum. (17) Urethroplasty (construction/reconstruction of drainage tube from bladder). (A) Leakage of urine at surgical site. (B) Stricture formation. (C) Additional operation(s). (q) Psychiatric procedures. (1) Electroconvulsive therapy with modification by intravenous muscle relaxants and sedatives. (A) Memory changes of events prior to, during, and immediately following the treatment. (B) Fractures or dislocations of bones. (C) Significant temporary confusion requiring special care. (2) Other Procedures. No other procedures are assigned at this time. (r) Radiation therapy. A child is defined for the purpose of this subsection as an individual who is not physiologically mature as determined by the physician using the appropriate medical parameters. (1) Head and neck. (A) Early reactions. (i) Reduced and sticky saliva, loss of taste and appetite, altered sense of smell, nausea. (ii) Sore throat, difficulty swallowing, weight loss, fatigue. (iii) Skin changes: redness, irritation, scaliness, blistering or ulceration, color change, thickening, hair loss. (iv) Hoarseness, cough, loss of voice, and swelling of airway. (v) Blockage and crusting of nasal passages. (vi) Inflammation of ear canal, feeling of "stopped up" ear, hearing loss, dizziness. (vii) Dry and irritable eye(s). (viii) In children, these reactions are likely to be intensified by chemotherapy before, during or after radiation therapy. (ix) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Dry mouth and altered sense, or loss, of taste. (ii) Tooth decay and gum changes. (iii) Bone damage, especially in jaws. (iv) Stiffness and limitation of jaw movement. (v) Changes in skin texture and/or coloration, permanent hair loss, and scarring of skin. (vi) Swelling of tissues, particularly under the chin. (vii) Throat damage causing hoarseness, pain or difficulty breathing or swallowing. (viii) Eye damage causing dry eye(s), cataract, loss of vision, or loss of eye(s). (ix) Ear damage causing dryness of ear canal, fluid collection in middle ear, hearing loss. (x) Brain, spinal cord or nerve damage causing alteration of thinking ability or memory, and/or loss of strength, feeling or coordination in any part of the body. (xi) Pituitary or thyroid gland damage requiring long-term hormone replacement therapy. (xii) In children, there may be additional late reactions. (I) Disturbance of bone and tissue growth. (II) Bone damage to face causing abnormal development. (III) Brain damage causing a loss of intellectual ability, learning capacity, and reduced intelligence quotient (I. Q.). (IV) Second cancers developing in the irradiated area. (2) Central nervous system. (A) Early reactions. (i) Skin and scalp reaction with redness, irritation, scaliness, blistering, ulceration, change in color, thickening, hair loss. (ii) Nausea, vomiting, headaches. (iii) Fatigue, drowsiness. (iv) Altered sense of taste or smell. (v) Inflammation of ear canal, feeling of "stopped-up" ear, hearing loss, dizziness. (vi) Depression of blood count leading to increased risk of infection and/or bleeding. (vii) In children, these reactions are likely to be intensified by chemotherapy before, during or after radiation therapy. (viii) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Permanent hair loss of variable degrees, altered regrowth, texture and color of hair. (ii) Persistent drowsiness and tiredness. (iii) Brain damage causing a loss of some degree of thinking ability or memory, or personality changes. (iv) Scarring of skin. (v) Spinal cord or nerve damage causing loss of strength, feeling or coordination in any part of the body. (vi) Damage to eye(s), or optic nerve(s) causing loss of vision. (vii) Ear damage causing dryness of ear canal, fluid collection in middle ear, hearing loss. (viii) Pituitary gland damage requiring long-term hormone replacement therapy. (ix) In children, there may be additional late reactions. (I) Disturbances of bone and tissue growth. (II) Bone damage to spine, causing stunting of growth, curvature and/or reduction in height. (III) Bone damage to face, or pelvis causing stunting of bone growth and/or abnormal development. (IV) Brain damage causing a loss of intellectual ability, learning capacity, and reduced intelligence quotient (I.Q.). (V) Second cancers developing in the irradiated area. (3) Thorax. (A) Early reactions. (i) Skin changes: redness, irritation, scaliness, ulceration, change in color, thickening, hair loss. (ii) Inflammation of esophagus causing pain on swallowing, heartburn, or sense of obstruction. (iii) Loss of appetite, nausea, vomiting. (iv) Weight loss, weakness, vomiting. (v) Inflammation of the lung with pain, fever and cough. (vi) Inflammation of the heart sac with chest pain and palpitations. (vii) Bleeding or creation of a fistula resulting from tumor destruction. (viii) Depression of blood count leading to increased risk of infection and/or bleeding. (ix) Intermittent electric shock-like feelings in the lower spine or legs on bending the neck. (x) In children, these reactions are likely to be intensified by chemotherapy before, during or after radiation therapy. (xi) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Changes in skin texture and/or coloration, permanent hair loss and scarring of skin. (ii) Lung scarring or shrinkage causing shortness of breath. (iii) Narrowing of esophagus causing swallowing problems. (iv) Constriction of heart sac which may require surgical correction. (v) Damage to heart muscle or arteries leading to heart failure. (vi) Fracture of ribs. (vii) Nerve damage causing pain, loss of strength or feeling in arms. (viii) Spinal cord damage causing loss of strength or feeling in arms and legs, and/or loss of control of bladder and rectum. (ix) In children, there may be additional late reactions. (I) Disturbances of bone and tissue growth. (II) Bone damage to spine, causing stunting of growth, curvature and/or reduction in height. (III) Underdevelopment or absence of development of female breast. (IV) Second cancers developing in the irradiated area. (4) Breast. (A) Early reactions. (i) Skin changes: redness, irritation, scaliness, blistering, ulceration, coloration, thickening, and hair loss. (ii) Breast changes including swelling, tightness, or tenderness. (iii) Inflammation of the esophagus causing pain or swallowing, heartburn, or sense of obstruction. (iv) Lung inflammation with cough. (v) Inflammation of heart sac with chest pain and palpitations. (B) Late reactions. (i) Changes in skin texture and/or coloration, permanent hair loss, scarring of skin. (ii) Breast changes including thickening, firmness, tenderness, shrinkage. (iii) Swelling of arm. (iv) Stiffness and discomfort in shoulder joint. (v) Rib or lung damage causing pain, fracture, cough, shortness of breath. (vi) Nerve damage causing pain, loss of strength or feeling in arm. (vii) Damage to heart muscle or arteries or heart sac leading to heart failure. (5) Abdomen. (A) Early reactions. (i) Skin changes: redness, irritation, scaliness, ulceration, coloration, thickening, hair loss. (ii) Loss of appetite, nausea, vomiting. (iii) Weight loss, weakness, fatigue. (iv) Inflammation of stomach causing indigestion, heartburn, and ulcers. (v) Inflammation of bowel causing cramping and diarrhea. (vi) Depression of blood count leading to increased risk of infections and/or bleeding. (vii) In children, these reactions are likely to be intensified by chemotherapy before, during and after radiation therapy. (viii) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Changes in skin texture and/or coloration, permanent hair loss, scarring of skin. (ii) Stomach damage causing persistent indigestion, pain, and bleeding. (iii) Bowel damage causing narrowing or adhesions of bowel with obstruction, ulceration, or bleeding which may require surgical correction, chronic diarrhea, or poor absorption of food elements. (iv) Kidney damage leading to kidney failure and/or high blood pressure. (v) Liver damage leading to liver failure. (vi) Spinal cord or nerve damage causing loss of strength or feeling in legs and/or loss of control of bladder and/or rectum. (vii) In children, there may be additional late reactions. (I) Disturbances of bone and tissue growth. (II) Bone damage to spine causing stunting of growth, curvature and/or reduction in height. (III) Bone damage to pelvis causing stunting of bone growth and/or abnormal development. (IV) Second cancers developing in the irradiated area. (6) Female pelvis. (A) Early reactions. (i) Inflammation of bowel causing cramping and diarrhea. (ii) Inflammation of rectum and anus causing pain, spasm, discharge, bleeding. (iii) Bladder inflammation causing burning, frequency, spasm, pain, bleeding. (iv) Skin changes: redness, irritation, scaliness, blistering or ulceration, coloration, thickening, hair loss. (v) Disturbance of menstrual cycle. (vi) Vaginal discharge, pain, irritation, bleeding. (vii) Depression of blood count leading to increased risk of infection and/or bleeding. (viii) In children, these reactions are likely to be intensified by chemotherapy before, during, or after radiation therapy. (ix) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Bowel damage causing narrowing or adhesions of the bowel with obstruction, ulceration, bleeding, chronic diarrhea, or poor absorption of food elements and may require surgical correction or colostomy. (ii) Bladder damage with loss of capacity, frequency of urination, blood in urine, recurrent urinary infections, pain, or spasm which may require urinary diversion and/or removal of bladder. (iii) Changes in skin texture and/or coloration, permanent hair loss, scarring of skin. (iv) Bone damage leading to fractures. (v) Ovarian damage causing infertility, sterility, or premature menopause. (vi) Vaginal damage leading to dryness, shrinkage, pain, bleeding, or sexual dysfunction. (vii) Swelling of the genitalia or legs. (viii) Nerve damage causing pain, loss of strength or feeling in legs, and/or loss of control of bladder or rectum. (ix) Fistula between the bladder and/or bowel and/or vagina. (x) In children, there may be additional late reactions. (I) Disturbances of bone and tissue growth. (II) Bone damage to pelvis and hips causing stunting of bone growth and/or abnormal development. (III) Second cancers developing in the irradiated area. (7) Male pelvis. (A) Early reactions. (i) Inflammation of bowel causing cramping and diarrhea. (ii) Inflammation of rectum and anus causing pain, spasm, discharge, bleeding. (iii) Bladder inflammation causing burning, frequency, spasm, pain, and/or bleeding. (iv) Skin changes: redness, irritation, scaliness, blistering or ulceration, coloration, thickening, hair loss. (v) Depression of blood count leading to increased risk of infection and/or bleeding. (vi) In children, these reactions are likely to be intensified by chemotherapy before, during or after radiation therapy. (vii) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Bowel damage causing narrowing or adhesions of the bowel with obstruction, ulceration, bleeding, chronic diarrhea, or poor absorption of food elements and may require surgical correction or colostomy. (ii) Bladder damage with loss of capacity, frequency of urination, blood in urine, recurrent urinary infections, pain, or spasm which may require urinary diversion and/or removal of bladder. (iii) Changes in skin texture and/or coloration, permanent hair loss, scarring of skin. (iv) Bone damage leading to fractures. (v) Testicular damage causing reduced sperm counts, infertility, sterility, or risk of birth defects. (vi) Impotence (loss of erection) or sexual dysfunction. (vii) Swelling of the genitalia or legs. (viii) Nerve damage causing pain, loss of strength or feeling in legs, and/or loss of control of bladder or rectum. (ix) Fistula between the bowel and other organs. (x) In children, there may be additional late reactions. (I) Disturbances of bone and tissue growth. (II) Bone damage to pelvis and hips causing stunting of bone growth and/or abnormal development. (III) Second cancers developing in the irradiated area. (8) Skin. (A) Early reactions. (i) Redness, irritation, or soreness. (ii) Scaliness, ulceration, crusting, oozing, discharge. (iii) Hair loss. (iv) These reactions are likely to be intensified by chemotherapy. (B) Late reactions. (i) Changes in skin texture causing scaly or shinny smooth skin, thickening with contratrue, puckering, scarring of skin. (ii) Changes in skin color. (iii) Prominent dilated small blood vessels. (iv) Permanent hair loss. (v) Chronic or recurrent ulcerations. (vi) Damage to adjacent tissues including underlying bone or cartilage. (vii) In children, second cancers may develop in the irradiated area. (9) Extremities. (A) Early reactions. (i) Skin changes: redness, irritation, scaliness, ulceration, coloration, thickening, hair loss. (ii) Inflammation of soft tissues causing tenderness, swelling, and interference with movement. (iii) Inflammation of joints causing pain, swelling and limitation of joint motion. (iv) In children, these reactions are likely to be intensified by chemotherapy before, during or after radiation therapy. (v) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Changes in skin reaction and/or coloration, permanent hair loss and scarring of the skin. (ii) Scarring or shrinkage of soft tissues and muscle causing loss of flexibility and movement, swelling of the limb. (iii) Nerve damage causing loss of strength, feeling or coordination. (iv) Bone damage causing fracture. (v) Joint damage causing permanent stiffness, pains and arthritis. (vi) Swelling of limb below the area treated. (vii) In children, there may be additional late reactions. (I) Disturbances of bone and tissue growth. (II) Bone damage to limbs causing stunting of bone growth and/or abnormal development. (III) Second cancers developing in the irradiated area. (10) Total body irradiation. (A) Early reactions. (i) Loss of appetite, nausea, vomiting. (ii) Diarrhea. (iii) Reduced and sticky saliva, swelling of the salivary gland(s), loss of taste. (iv) Hair loss. (v) Sore mouth and throat, difficulty swallowing. (vi) Permanent destruction of bone marrow leading to infection, bleeding, and possible death. (vii) Inflammation of the lung with fever, dry cough and difficulty breathing with possible fatal lung failure. (viii) Damage to liver with possible fatal liver failure. (ix) In children, these reactions are likely to be intensified by chemotherapy before, during or after radiation therapy. (x) In children, depression of blood count leading to increased risk of infection and/or bleeding is more common. (B) Late reactions. (i) Lung scarring causing shortness of breath, infection, and fatal lung failure. (ii) Cataract formation in the eyes, possible loss of vision. (iii) Testicular damage in males causing sterility. (iv) Ovarian damage in females causing premature menopause and sterility. (v) Increased risk of second cancer. sec.601.3. Procedures Requiring No Disclosure-List B. (a) Anesthesia. (1) Local. (2) Other forms of regional anesthesia. (b) Cardiovascular system. (1) Excision and ligation of varicose veins of the leg. (2) No other procedures are assigned at this time. (c) Digestive system. (1) Appendectomy. (2) Hemorrhoidectomy with fistulectomy or fissurectomy. (3) Hemorrhoidectomy. (4) Incision or excision of perirectal tissue. (5) Local excision and destruction of lesion, anus and rectum. (6) Operations for correction of cleft palate. (7) Repair of inguinal hernia. (8) Repair and plastic operations on anus and rectum. (9) Resection of colon (segmental). (10) Tonsillectomy with adenoidectomy. (11) Tonsillectomy without adenoidectomy. (d) Ear. (1) Myringotomy. (2) Reconstruction of auricle of ear for skin cancer. (3) Tympanoplasty without mastoidectomy. (e) Endocrine system. No procedures assigned at this time. (f) Eye. (1) Administration of topical, parenteral (such as IV), or oral drugs or pharmaceuticals, including, but not limited to, fluorescein angiography, orbital injection or periocular injections. (2) Removal of extraocular foreign bodies. (3) Chalazion excision. (g) Female genital system. No procedures assigned at this time. (h) Hematic and lymphatic system. (1) Biopsy of lymph nodes. (2) Other procedures. No other procedures are assigned at this time. (i) Integumentary system. (1) Biopsy of breast. (2) Cutting and preparation of skin grafts or pedicle flaps. (3) Removal or treatment of local skin or subcutaneous lesion. (4) Excision of pilonidal sinus or cyst. (5) Suture of skin. (6) Wide or radical excision of skin lesion with or without graft. (7) Z plasty without excision. (8) Biopsy of skin or mucus membrane. (9) Incision and drainage of skin or mucus membrane lesion. (10) Debridement of ulceration of the skin. (j) Male genital system. (1) Biopsy of testicle. (2) Placement of testicular prosthesis. (3) Hydrocelectomy (removal/drainage of cyst in scrotum). (4) Circumcision. (5) Cystoscopy. (k) Maternity and related cases. No procedures assigned at this time. (l) Musculoskeletal system. (1) Arthrotomy. (2) Closed reduction without internal fixation. (3) Excision of lesion, muscle, tendon, fascia, bone. (4) Excision of semilunar cartilage of knee joint. (5) Needle biopsy or aspiration, bone marrow. (6) Partial excision of bone. (7) Removal of internal fixation device. (8) Traction or fixation without manipulation for reduction. (m) Nervous system. (1) Cranioplasty. (2) Lumbar puncture. (3) Closure of meningomyelocele. (4) Ventriculostomy with or without air ventriculogram. (5) Cisternal puncture (diagnostic). (6) Craniectomy or craniotomy for intracranial hematoma, abscess or penetrating injury. (7) Stereotaxic surgery for dystonia. (8) Insertion of skeletal tongs. (9) Intravenous cut-down. (10) Elevation of depressed skull fracture. (11) Cervical 1-2 puncture (diagnostic). (n) Radiology. (1) Injection of contrast media or imaging media into the spinal canal for diagnostic encephalography and/or cisternography. (2) Intravascular infusion technique-therapeutic. (3) Lymphangiography. (4) Percutaneous transhepatic (liver) catheter placement. (5) Discography. (6) Venography (Venogram) with contrast media. (7) Cholangiography with contrast media. (8) Urography (IVP) with contrast media. (9) Digital Subtraction Angiography with contrast media. (10) Radionuclide scans and/or blood flow studies. (11) Gastrointestinal (G.I.) tract radiography and fluoroscopy. (12) Oral cholecystography. (13) Fistula or sinus tract injection. (14) Sialography. (15) Dachrocystography. (16) Cystography, cystourethrography. (17) Retrograde and antegrade urography. (18) Larynogography, bronchography. (19) Hysterosalpingography. (20) E.R.C.P. (Endoscopic retrograde cholangio pancreatography). (21) Galactography. (22) T-tube cholangiography. (23) Skeletal radiography and/or fluoroscopy (skull, mastoids, sinuses and facial bones; spine, ribs, pelvis; extremities). (24) Foreign body radiography and/or fluoroscopy. (25) Chest and abdomen radiography and fluoroscopy. (26) Portable radiography/fluoroscopy. (27) Pelvimetry, fetogram. (28) Computer tomography scan with and without contrast media. (29) Ultrasound and Doppler studies. (30) Laminography, polytomography. (31) Soft-tissue radiography including xerography and zeromammography. (32) Kidney or bile duct stone manipulation through percutaneous tube or tube tract. (33) Pacemaker lead placement. (34) Arthrography. (35) Percutaneous nephrostogram and/or internal stint or external drainage of the kidney. (36) Percutaneous transhepatic cholangiogram and/or internal stint or external drainage of the liver. (37) Percutaneous abscess drainage. (o) Respiratory system. (1) Aspiration of bronchus. (2) Biopsy of lesion of larynx, trachea, bronchus, esophagus. (3) Lung biopsy. (4) Needle biopsy, lung. (5) Segmental resection of lung. (6) Thoracotomy. (7) Thoracotomy with drainage. (8) Reduction of nasal fracture. (9) Tracheostomy. (p) Urinary system. (1) Nephrotomy (placement of drainage tubes). (2) Biopsy of prostrate, bladder or urethra. (3) Cystolithotomy (surgical removal of stone(s) from the bladder). (4) Cystolitholopaxy (cystoscopic crushing and removal of bladder stone(s)). (5) Cystostomy (placement of tube into the bladder). (6) Urethrotomy (incision of the urethra). (7) Diverticulectomy of the bladder (removal of outpouching of the bladder). (8) Diverticulectomy or diverticulotomy of the urethra (repair or drainage of outpouching of the urethra). sec.601.4. Disclosure and Consent Form. The Texas Medical Disclosure Panel adopts the following form to be used by a physician or health care provider to inform a patient or person authorized to consent for the patient of the possible risks and hazards involved in the medical treatments and surgical procedures named in the form. This form is to be used for the medical treatments and surgical procedures described in sec.601.2 of this title (relating to Procedures Requiring Full Disclosure-List A) except for radiation therapy as stated in sec.601.5 of this title (relating to Radiation Therapy Disclosure and Consent Form).
                                                                                                                      Figure 1: 25 TAC sec.601.4 sec.601.5. Radiation Therapy Disclosure and Consent Form.
                                                                                                                        The Texas Medical Disclosure Panel adopts the following form to be used by a physician or health care provider to inform a patient or person authorized to consent for a patient of the possible risks and hazards involved in the radiation therapy named in the form. This form is to be used in lieu of the general disclosure and consent form adopted in sec.601.4 of this title (relating to Disclosure and Consent Form) for disclosure and consent relating to only radiation therapy procedures. If a surgical or anesthetic procedure is required in combination with a radiation therapy procedure, the general disclosure and consent form as adopted in sec.601.4 of this title and the form adopted in this section shall be used. The general disclosure and consent form shall be used for the surgical or anesthetic procedure and the radiation therapy disclosure and consent form shall be used for the radiation therapy procedure.
                                                                                                                          Figure 2: 25 TAC sec.601.5 sec.601.6. History. (a) The procedures requiring full disclosure-List A, the procedures requiring no disclosure-List B and the disclosure and consent form were first published in the December 15, 1981, issue of the Texas Register
                                                                                                                            as sec.601.1 of this title (relating to Procedures Requiring Full Disclosure (List A)), sec.601.2 of this title (relating to Procedures Requiring No Disclosure (List B)), and sec.601.3 of this title (relating to Disclosure and Consent Form) and initially became effective on June 1, 1982. (b) The first amendments to sec.601.1 of this title and sec.601.2 of this title were published in the December 3, 1982, issue of the Texas Register
                                                                                                                              and became effective on January 1, 1983. (c) The second amendments to sec.601.1 of this title and sec.601.2 of this title were published in the November 23, 1984, issue of the Texas Register
                                                                                                                                and became effective on January 1, 1985. (d) The third amendments to sec.601.1 of this title and sec.601.2 of this title were published in the April 19, 1988, issue of the Texas Register
                                                                                                                                  and became effective on May 2, 1988. (e) The fourth amendment to sec.601.1 of this title was published in the July 21, 1989, issue of the Texas Register
                                                                                                                                    and became effective on August 3, 1989. (f) Further amendments to sec.601.1 of this title and sec.602.2 of this title and new sec.601. 4 of this title (relating to Radiation Therapy Disclosure and Consent Form) were published in the February 2, 1990, issue of the Texas Register
                                                                                                                                      and became effective on May 3, 1990. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 31, 1995. TRD-9503922 John Yatsu, M.D. Chairman Texas Medical Disclosure Panel Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 458-7236 Part VIII. Interagency Council on Early Childhood Intervention Services Chapter 621. Early Childhood Intervention Program Early Childhood Intervention Service Delivery 25 TAC sec.621.24 The Interagency Council on Early Childhood Intervention Services proposes an amendment to sec.621.24, concerning program administration for comprehensive services, in its Early Childhood Intervention Program chapter. The purpose of the amendment is to establish a competency-based personnel standard for Early Intervention Specialist Professionals employed in Early Childhood Intervention Programs. Mary Elder, executive director, has determined that for the first five-year period the section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Ms. Elder also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be a consistent state-wide standard which will ensure a consistent quality of service for all eligible Early Childhood Intervention children and families. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed section. Questions about the content of this proposal may be directed to Carol Wegley Brown at (512) 502-4910. Written comments on the proposal may be submitted to Nancy Murphy, Media and Policy Services-252, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. The amendment is proposed under the Human Resources Code, sec.sec.73.003, which authorizes the Interagency Council on Early Childhood Intervention Services to establish rules regarding services provided for children with developmental delays. The amendment implements the Human Resources Code, sec. s73.001-73.021. sec.621.24. Program Administration for Comprehensive Services. (a) (No change.) (b) Program requirements. (1)-(4) (No change.) (5) Staff composition and qualifications. (A)-(B) (No change.) (C) For the occupational category Early Intervention Specialist Professionals (EIS Professionals), the Interagency Council on Early Childhood Intervention Services will establish the standards for education and experience and the nature and amount of required supervision.
                                                                                                                                        [categories for which state authority has not established professional standards (such as service coordinator and early intervention specialist), programs must employ staff who are qualified in terms of education and experience for their assigned scopes of responsibilities and provide the required degree of supervision.] (D) As of September 1, 1995, the following qualifications and responsibilities for EIS Professionals are effective. (i) Definitions of Early Intervention Specialist Professional levels. EIS Professional is an occupational title and occupational category specific to service providers employed by Early Childhood Intervention (ECI) programs. These service providers have demonstrated through their education and experience the knowledge and skills required in early intervention service delivery. There are two classes of EIS Professionals: (I) Entry level-Persons with bachelor's degrees in disciplines related to early intervention services or bachelor's degrees in unrelated fields which include a minimum of 18 hours of college credit related to the provision of early intervention services are eligible to apply for entry level status. An entry level EIS Professional will have a maximum of two years from the initial date of hiring to complete the requirements to be approved as a Fully Qualified EIS Professional. Failure to complete the required process within two years will result in the loss of professional status and privileges. Exceptions to this provision may be approved by the state ECI office on an individual basis for extreme circumstances. Requests for exceptions must be in writing. (II) Fully qualified-Persons meeting the conditions and requirements for Professional Recognition as Fully Qualified EIS Professionals. (ii) Scope of responsibilities. Early Intervention Specialist Professionals (Entry Level and Fully Qualified EIS Professionals) may represent the discipline of early intervention and may be one of the two required professionals on an Interdisciplinary Team (IDT). EIS Professionals may conduct developmental screenings and assessments, participate in the development and implementation of Individualized Family Service Plans, and provide service coordination, special instruction, and family education services. (iii) Supervision. The Entry Level EIS Professionals must receive a minimum of one hour per week of direct supervision from a fully qualified professional until they have successfully completed the requirements to be Fully Qualified EIS Professionals. The supervising professionals may be from any of the disciplines related to early intervention and must meet the highest state standards for their profession. (iv) Professional recognition for EIS Professionals employed on September 1, 1995. (I) Persons employed by ECI programs as Fully Qualified EIS Professionals on September 1, 1995, must: (-a-) meet entry level requirements as defined in clause (i)(I) of this subparagraph; (-b-) submit a written application for continued recognition as a Fully Qualified EIS Professional to the Texas Interagency Council on Early Childhood Intervention by September 1, 1996; and (-c-) have been employed a minimum of one calendar year as an EIS Professional with a satisfactory performance evaluation(s) in an ECI-funded program. (II) Persons employed by ECI programs as Provisional EIS Professionals on September 1, 1995, must either meet the qualifications as fully qualified EIS Professionals or apply in writing by September 1, 1995, to complete the required demonstrations of knowledge and skills in early intervention service provision by September 1, 1997. Provisional EIS Professional was a title restricted to those individuals who were employed by ECI-funded programs as EIS Professionals prior to September 1, 1993, but who did not meet the minimum educational requirements which were enacted on that date. (III) EIS Professionals and Provisional EIS Professionals who were hired before September 1, 1995, and are currently employed in ECI-funded programs, who fail to complete the required application process within the specified time frames will not be considered EIS Professionals. They will no longer be able to independently perform the scope of responsibilities of EIS Professionals as defined in clause (ii) of this subparagraph. To obtain status as Fully Qualified EIS Professionals, they must enter the system as Entry Level EIS Professionals and complete the conditions defined in clause (v) of this subparagraph. (v) Professional recognition for EIS Professionals hired after September 1, 1995. Persons hired as EIS Professionals after September 1, 1995, who are not Fully Qualified EIS Professionals are identified as Entry Level EIS Professionals and to be recognized as Fully Qualified EIS Professionals must: (I) meet the educational requirements of a bachelor's degree in a discipline related to early intervention or a bachelor's degree which includes a minimum of 18 hours of course credit relevant to early intervention service provision and submit a statement of intent to complete the required demonstrations of early intervention knowledge and skills and apply for full professional recognition; (II) within six months of their hiring date, complete a self assessment of early intervention knowledge and skills with their ECI program director or supervisor; (III) within two years of their hiring date, complete the required demonstrations of early intervention knowledge and skills and submit documentation for recognition as a Fully Qualified EIS Professional; and (IV) complete the required processes or lose professional status and privileges. They will no longer be able to independently perform the scope of responsibilities of EIS Professionals as defined in clause (ii) of this subparagraph. (vi) Other ECI employees. ECI employees employed in positions other than EIS Professionals who, by the completion of educational requirements and approval of the ECI program director, are eligible to enter the system as Entry Level EIS Professionals may complete the conditions defined in clause (v) of this subparagraph and be recognized as Fully Qualified EIS Professionals. (vii) Continuing professional education requirements. EIS Professionals must meet annual continuing professional education requirements to maintain their status. Continuing professional education consists of the planned individual learning experiences as described in the EIS Professional's annual Individual Professional Development Plan (IPDP) which shall include completion of a minimum of ten contact hours of approved continuing professional development education experiences. (viii) Registry. The Texas Interagency Council on Early Childhood Intervention shall issue certificates of recognition to and maintain a registry of individuals who successfully complete the requirements to be Fully Qualified EIS Professionals. (ix) Grievance process. Each local agency shall have a procedure for local resolution of personnel grievances. A party who has a disagreement with the local decision regarding his qualifications or status as an EIS Professional shall have an opportunity for dispute resolution at the local level. Agencies may use existing personnel grievance procedures to resolve disagreements and will inform their staff of their existence. (x) Complaints. Any individual or organization may file a complaint with the Council alleging that a requirement of the applicable federal and/or state regulations has been violated as provided in sec.621.43 of this title (relating to Confidentiality). (E)
                                                                                                                                          [(D)] The director of the local ECI program must provide and document the amounts of supervision appropriate for all ECI contract staff and program staff to ensure the philosophy and intent of these regulations are met as adopted by the Interagency Council on Early Childhood Intervention Services. (F)
                                                                                                                                            [(E)] Local programs must establish a procedure to ensure that employees have not been convicted of any felony or a misdemeanor related to child abuse or sexual abuse or any other offense against a person or family. (6)-(14) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 29, 1995. TRD-9503838 Nancy Murphy Section Manager, Media and Policy Services Interagency Council on Early Childhood Intervention Services Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 450-3765 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part XV. Texas Low-Level Radioactive Waste Disposal Authority Chapter 451. Disposal Site Management and Operation Subchapter B. Waste Acceptance 31 TAC sec.sec.451.21-451.29 The Texas Low-Level Radioactive Waste Disposal Authority proposes new sec.sec.451.21-451.29, concerning the acceptance of waste at a Texas disposal facility and excluding certain types of waste that is incompatible with disposal operations. Tim Schaffner, Director of Finance, has determined that there will be fiscal implications as a result of enforcing or administering the sections. There will be no estimated additional costs to state government until 1997; then the estimated additional costs will be $146,485 in 1997; and $146,445 in 1998. There will be no estimated increases in revenue to state government until 1997; then the estimated revenue to state government will be $146,485 in 1997; and $146,445 in 1998. There will be no estimated additional costs to local government between 1995 and 1998. There will be no estimated increases in revenue to local government between 1995 and 1998. Mr. Schaffner also has determined that for each year of the first five years the sections are in effect that the public benefit anticipated as a result of enforcing the sections as proposed will be that public safety will be enhanced by adopting strict packaging, shipping, and acceptance requirements for low- level radioactive waste. There will be no cost for compliance with the sections for small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Electric utility companies that produce electricity from nuclear power plants may infrequently incur additional disposal costs for power plant components that cannot be readily disposed of in canisters. Comments on the proposal may be submitted to Lee H. Mathews, Deputy General Manager and General Counsel, Texas Low-Level Radioactive Waste Disposal Authority, 7701 North Lamar Boulevard, Suite 300, Austin, Texas 78752. The new sections are proposed under the Health and Safety Code, sec.402.054 and sec.402.252, which provides the Texas Low-Level Radioactive Waste Disposal Authority with the authority to adopt rules, standards, and orders necessary to properly carry out the Texas Low-Level Radioactive Waste Disposal Authority Act. The following is the code that is affected by these rules: Texas Health and Safety Code. sec.451.21. Purpose. The purpose of this subchapter is to establish criteria and procedures for: (1) accepting waste at a Texas disposal facility; and (2) excluding certain types of waste that are incompatible with disposal operations. sec.451.22. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. BRC-Texas Department of Health, Bureau of Radiation Control. Board-The Board of Directors of the Authority. Broker-A licensee who receives or collects waste. Canister-A concrete enclosure in which waste containers are placed for disposal. DOT-United States Department of Transportation. EPA-United States Environmental Protection Agency. Generator-A licensee who produces waste. Licensee-A person who is licensed under the Texas Radiation Control Act (Health and Safety Code, Chapter 401) or other state or federal jurisdictions that regulate sources of radiation. NRC-United States Nuclear Regulatory Commission. Mixed Waste-A combination or mixture of waste that is either a listed hazardous waste in Subpart D of 40 Code of Federal Regulations, Part 261, or a waste that exhibits any of the hazardous waste characteristics identified in Subpart C of 40 Code of Federal Regulations, Part 261, and low-level radioactive waste. Processor-A licensee who receives waste for processing, treatment, and packaging. Resident Inspector -An employee of the Texas Natural Resource Conservation Commission who is assigned to the disposal facility to inspect arriving waste shipments. Shipper-A licensee who ships waste to the disposal facility. Transporter-A person who transports waste under an EPA hazardous waste identification number. Waste-Low-level radioactive waste as that term is defined in Health and Safety Code, sec.402.003(6). Waste container or container-A drum, liner, box, or other enclosure pre- approved by the Authority that contains the waste. sec.451.23. Waste Manifests. (a) Every shipment of waste to the disposal facility must be accompanied by a manifest completed, signed, and dated by the shipper or an authorized representative of the shipper. (b) The manifest shall be on a standard form approved by the Authority. (c) At a minimum, the manifest shall include the following information: (1) shipper's name, address, and telephone number. If the shipper is a broker or processor, the manifest must include the name, address, and telephone number of the generators contributing waste to the shipment; (2) shipper's certification that the transported materials are properly classified, described, packaged, marked and labeled in accordance with all applicable regulations, and are in proper condition for transportation; (3) transporter's name, address, and telephone number or the name and EPA hazardous waste identification number of the transporter; (4) a physical description of the waste; (5) the type of waste container used; (6) the total volume of waste in each container; (7) the outer dimensions and volume of each container; (8) the total weight of each container, including its contents; (9) identity and activity of radionuclides contained in each container. Delisting of radionuclides is permitted, except that the following radionuclides may not be delisted: I-129, H-3, C-14, CI-36, Ni-63, Sr-90, Cs-137, Ra-226, and Tc-99, and any other radionuclides exceeding a half-life greater than 35 years; (10) the total radioactivity content of each container, in curies (becquerels); (11) the principal chemical form of the waste; (12) if waste is of biological form, the type of specimens and packing medium used; (13) solidification media used, if applicable, and the stabilization method used for Class B and C waste; (14) the highest radiation level for each waste container measured at the surface of the container, and, if shipped by common carrier, the transportation index. If measurement of the highest radiation level on a container presents a concern for excessive personnel radiation exposure, or if the highest radiation level is impossible to measure, the waste manifest may contain a calculation of the highest radiation level. The manifest shall note that a calculation was used. (15) classification of the contained waste as Class A, B, or C as described in Appendix 21-E, Texas Regulations for the Control of Radiation, Part 21, as adopted in 30 Texas Administrative Code, sec.336.1; (16) applicable DOT labels or markings; (17) the presence of chelating agents; and (18) a BRC (or its designated agent) inspector's verification of the waste shipment and the manifest, as required by the Health and Safety Code, sec.402.221. If a shipment is delayed, the BRC may re-inspect and re-verify the waste shipment and manifest. sec.451.24. Approval and Receipt of Shipments. (a) The shipper shall by facsimile notify the disposal facility operator and the BRC not less than 72 hours prior to the proposed shipment of the intent to ship waste. The notification must include the manifest required by sec.451.23 of this title (relating to Waste Manifests). (b) The disposal facility operator shall promptly acknowledge by facsimile, receipt of the shipper's notification. The acknowledgment must include: (1) a tracking number assigned to the shipment; and (2) a statement that the acknowledgment does not constitute an approval to ship. (c) No shipment to the disposal facility shall be commenced without the disposal facility operator's prior approval conveyed by facsimile. (d) Upon notification that the waste shipment is authorized by the disposal facility operator, the shipper shall, prior to or at the time of actual shipment, convey by facsimile to the disposal facility operator: (1) a statement of the shipment's expected arrival date at the disposal facility; and (2) an updated manifest, if changes to the proposed shipment have occurred. (e) The disposal facility operator shall: (1) acknowledge receipt of the waste from the shipper within seven days of receipt by returning a signed copy of the manifest to the shipper; (2) retain the manifest in its files; and (3) notify the shipper when any shipment or part of a shipment has not arrived at the disposal facility within 48 hours after its expected arrival time. (f) Upon arrival at the disposal facility, the manifest will be inspected by the resident inspector and the disposal facility operator to determine compliance with this subchapter. sec.451.25. Waste Containers. (a) All labels and markings on waste containers received at the disposal facility shall be durable and clearly legible. (b) Waste containers shall be labeled and classified according to applicable regulations. The classification of the contained waste (A, B, or C) shall be marked on the container. (c) Only DOT 7A Type A or Type B containers, strong tight containers, high integrity containers (HIC's), or other containers which have been specifically approved by the Authority shall be accepted. (d) Waste containing more than 0.1% chelating agents by weight shall be placed in HIC's and identified by the shipper. If concentrations of chelating agents exceed 8.0% by weight, the waste container shall not be accepted at the disposal facility. (e) Biological waste shall be packed in a double container with the capacity of the outer container being at least 40% greater than that of the inner container. The void between the outer and inner containers shall be filled with vermiculite, diatomaceous earth, or other approved absorbent material. (f) The following requirements for waste containing radium apply. (1) Except as provided in paragraph (2) of this subsection, waste containing radium shall be in the form of sealed sources and packaged in a 2R container, or its equivalent. The 2R container must be immobilized with concrete in the center of a second container. The second container must be a DOT approved container. (2) Shipments containing radium other than in the form of sealed sources must be approved by the disposal facility operator prior to shipping. (g) Void spaces within the waste and between the waste and its container shall be minimized to the extent practicable. (h) The following containers shall not be accepted as disposal containers at the disposal facility: (1) cardboard or fiberboard boxes, corrugated paper drums, or wooden containers; (2) non-waterproof containers or containers improperly covered during transport; or (3) waste containers that show: (A) significant deformation; (B) loss or dispersal of contents; (C) loss of container integrity; or (D) broken security seals or tags, if required by the DOT. (i) Containers that show increases in radiation levels from those levels recorded on the manifest may be accepted at the discretion of the disposal facility operator. sec.451.26. Waste Form Requirements. (a) Class B and C waste must be delivered to the disposal site in a stable form. To be considered stabilized, the waste shall have been: (1) placed in a HIC or other container pre-approved by the Authority; or (2) processed with an approved stabilization process. (b) Solid waste containing free-standing and non-corrosive liquid shall not exceed 1.0% of the waste volume when the waste is in a container designed to ensure stability, or 0.5% of the waste volume for waste processed to a stable form. (c) Liquid waste shall be solidified, or, if absorbed, must be packaged using twice the necessary absorbent material. (d) Pyrophoric materials contained in waste shall be treated, prepared, and packaged to render it nonflammable. (e) Waste: (1) shall not be readily capable of detonation or explosive decomposition or chemical reaction at normal pressures and temperatures, or of explosive reaction with water; (2) shall not contain, or be capable of generating, quantities of gases, vapors, or fumes harmful to persons transporting, handling, or disposing of the waste, except that radioactive gaseous waste properly packaged in accordance with paragraph (4) of this subsection is not subject to this prohibition; (3) containing biological, pathogenic, or infectious material shall be treated to neutralize the potential hazard posed by the non-radiological materials; (4) containing incinerator ash or other dispersible powders classified as Class A waste shall be treated or packaged in such a manner as to render it non- dispersible in air; and (5) in a gaseous form shall: (A) be containerized in a DOT approved cylinder at an absolute pressure that does not exceed 1.5 atmospheres at 20iC; and (B) not contain in excess of 100 curies (3.7 terabecquerels) per cylinder. (f) Biological waste shall be layered with vermiculite, diatomaceous earth, or other approved absorbent and lime at a ratio of 30 parts biological material to at least one part slaked lime and ten parts absorbent to reduce gas generation. (g) Incidental or trace amounts of absorbed oil shall not exceed 1.0% of the waste volume. (h) Mixed waste shall not be accepted for disposal. sec.451.27. Disposal in Canisters. (a) Waste containers delivered to the disposal facility for disposal must be sized for placement in cylindrical concrete canisters having an internal height of 81 inches and an internal diameter of 80 inches. (b) Waste containers that do not readily fit into the canisters may be accepted if the container can be safely re-configured or engineered to fit. Specially engineered waste containers must be approved by the Authority prior to shipment to the disposal facility. If a waste container cannot be placed in the standard canister, a special, reinforced concrete containment system may be engineered on a case-by-case basis. sec.451.28. Removal of Waste. Waste accepted for disposal at the facility shall not be removed from the facility unless the removal is specifically authorized by the Authority. sec.451.29. Responsibility for Compliance; Penalties. (a) A shipper is responsible for its waste shipments and must comply with this subchapter. (b) If a person violates any provision of this subchapter, the board may, depending on the nature of the violation, refuse waste shipments from the violator. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on April 3, 1995. TRD-9503980 Lee H. Mathews Deputy General Manager and General Counsel Texas Low-Level Radioactive Waste Disposal Authority Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 451-5292 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Rehabilitation Commission Chapter 104. Informal and Formal Appeals by Applicants/Clients of Decisions by a Rehabilitation Counselor or Agency Official 40 TAC sec.sec.104.1-104.6 The Texas Rehabilitation Commission (TRC) proposes amendments to sec.sec.104. 1-104.6, concerning the informal and formal appeals by applicants/clients of decisions by a rehabilitation counselor or agency official. David McKay, Assistant Commissioner for Financial Services, has determined that for the first five-year period the sections are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the sections. Mr. McKay also has determined that for each year of the first five years the sections are in effect the public benefit anticipated as a result of enforcing the sections will be to increase awareness to members of the public and those who represent applicants and clients before the Commission of the substantive rules used by the Commission in applicant and client hearings. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the sections as proposed. Questions about the proposed amendments may be directed to Charles 27> 27>Schiesser, General Counsel at (512) 483-4051 in the Texas Rehabilitation Commission. Comments on the proposed amendments may be submitted to Charles Schiesser, General Counsel, Office of the General Counsel, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 7300, Austin, Texas 78751-2399, within 30 days of publication in the Texas Register. The amendments are proposed under the Texas Human Resources Code Annotated, Title 7, sec.111.018, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for rehabilitation and other services, procedures for hearings, and other regulations subject to this section as necessary to carry out the purpose of this chapter. sec.104.1. Purpose and Scope. (a) (No change.) (b) Statutory Authority. These rules are created under the authority delegated to the Commission by the Rehabilitation Act of 1973, as amended, 29 United States Code Annotated (USCA), sec.sec.701 et seq and Department of Education Regulations at 34 Code of Federal Regulation (CFR), sec.361.48. The Administrative Procedure [and Texas Register Act (APTRA), Texas Civil Statutes, Article 6252-13a,] Act, Texas Government Code Annotated, sec.sec.2001.001 et seq,
                                                                                                                                              does not apply to client administrative
                                                                                                                                                hearings which are conducted pursuant to federal law. (c) (No change.) sec.104.2. Definitions. The following words and terms, when used in this section, shall have the following meaning, unless the context clearly indicates otherwise. Discovery-The process of gathering all relevant information necessary to render a fair and unbiased decision. Formal Appeal-The timely filing of a Petition for Administrative Hearing due to a client's continued dissatisfaction with a decision of the Commission regarding the [provision] furnishing
                                                                                                                                                  or denial of services. Hearing-A due process formal appeal conducted under these rules by an Impartial Hearing Officer regarding [the nature and scope of the] allegations set forth in the client's Petition for Administrative Hearing regarding the furnishing or denial of services.
                                                                                                                                                    This term includes pre-hearing conferences. Impartial Hearing Officer (IHO)-Individual who is appointed to hear a formal appeal pursuant to [sec.104.5(b) of] these rules. Informal Appeal or Review-A communication or series of communications [of dispute resolution by or] between a client and a Commission official which seeks to resolve the client's dissatisfaction with any [decision] determination
                                                                                                                                                      made by a [Commission] vocational
                                                                                                                                                        rehabilitation counselor or [coordinating] commission
                                                                                                                                                          official concerning the [Commission's] furnishing or denial of services. [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings -[A unit] An office
                                                                                                                                                            of the Texas Rehabilitation Commission['s Office of Special Services] which provides, among other functions, administrative support to the Impartial Hearing Officer during the formal appeal process and is the point of contact for client's questions about the administrative hearings process. Record-The official record of a formal appeal includes all of the following: pleadings; motions; intermediate rulings; orders; evidence received or considered; statements of matters officially noticed; questions and offers of proof; objections and rulings on objections; the IHO decision; any other decision, opinion, or report by the IHO or Commissioner; and all Commission memoranda or data, including client files, submitted to or considered by the IHO or the Commissioner. The record is maintained by the Commissioner's Office for Administrative Hearings. Regional Program Director-Person who reviews applicant and client appeals at the TRC Regional Office level. The person holding this position in each region is also referred to as the operations director for programs. Standard of Review-The criteria for the Travis County District Court to remand or overturn a final decision of the Commissioner. The standard of review is by substantial evidence limited to the administrative record. sec.104.3. General Provisions. (a) Jurisdiction. (1) The Impartial Hearing Officer acquires jurisdiction over a case after a client files a Petition for Administrative Hearing and the IHO is appointed pursuant to [sec.104.5(b) of] these rules. (2) A Petition for Administrative Hearing shall be considered filed on the date the Petition is received and date-stamped by the [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings. (3) The IHO's authority is limited to a review of a client's dissatisfaction with the [provision] furnishing
                                                                                                                                                              or denial of services by a rehabilitation counselor or agency official. The IHO does not have authority to: (A) change or alter [the] TRC
                                                                                                                                                                rules, policies, or procedures of the Commission; (B)-(C) (No change.) (b) Conduct and Decorum. Appropriate conduct and decorum shall be maintained and enforced by the IHO. Every party, witness, attorney, or other representative shall participate in all proceedings with proper dignity, courtesy, and respect for the Commission, the IHO, and all other parties. Attorneys and other representatives [of] or
                                                                                                                                                                  parties shall observe and practice a high standard of ethical behavior. (c) Computation of Time. (1) Unless otherwise required by law in computing any period of time prescribed or allowed by these rules, the date of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless such day is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor legal holiday. Unless specifically stated otherwise, "days" as used in these policies refer to calendar days. (2) Unless otherwise provided by statute, the time for filing any pleading may be extended by order of the IHO at the request of any party upon written motion duly filed with the [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings
                                                                                                                                                                    prior to the expiration of the applicable period of time for the filing of same. Said motion shall include a showing that there is good cause for such extension of time and that the need therefor is not caused by neglect, indifference, or lack of diligence of the movant. A copy of any such motion shall be served upon all other parties of record to the proceeding contemporaneously with the filing thereof. Any party may file written pleadings contesting a motion to extend which shall be served upon all other parties contemporaneously with the filing thereof. (3) The date upon which a pleading or motion is filed is the date on which it is received and date-stamped by the [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings. (4) (No change.) (d)-(k) (No change.) (l) Mileage and Witness fees. (1) An individual who is not [a party] an employee of TRC
                                                                                                                                                                      and who is subpoenaed or otherwise compelled to attend any hearing or proceeding to give testimony or to produce documents is entitled to receive: (A) (No change.) (B) a fee of not less than $10 a day for each day or part of a day the individual is [necessarily present; provided, in lieu of such $10 fee, a witness will receive a fee equal to the perdiem travel allowance of a State employee if such amount exceeds $10.] required to be present or a fee equal to the per diem and travel allowances of a state employee, if an overnight stay is required. (2) (No change.) (m) (No change.) sec.104.4. Informal Appeal. (a) A client may seek a timely review of his/her dissatisfaction with a decision by the rehabilitation counselor, the area manager, and the regional program director, in that order. [An alternative dispute resolution process may be used upon agreement of the client and the Commission.] (b) (No change.) sec.104.5. Formal Appeal. (a) The formal appeal process commences with the filing of a Petition for Administrative Hearing with the [Commission's Inquiries and Hearings Unit.] Commissioner's Office for Administrative Hearings. (b) Role of [the Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings.
                                                                                                                                                                        Upon receipt of the Petition for Administrative Hearing, the [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings
                                                                                                                                                                          shall: (1) (No change.) (2) [file] date
                                                                                                                                                                            stamp the Petition and record a docket control number for the appeal. (3) (No change.) (4) forward a coy of the Petition for Administrative Hearing to the Office of the General Counsel, Deputy Commissioner for Rehabilitation Services and
                                                                                                                                                                              Commission Representative [and the Legal Services Division within two days of] immediately upon receipt. (5) provide administrative support to the IHO: (A) serve as the custodian of records for all documents, motions, and
                                                                                                                                                                                pleadings, [etc.,] directed to the IHO. (B) coordinate and schedule all dates, meetings, hearings[, etc]. (C) (No change.) (6) (No change.) (7) accompany IHO to pre-hearing conference, administrative hearing and provides necessary assistance during the proceedings. (8) send copies of witness lists to all parties to the hearing and to witnesses who are TRC employees. (c) Impartial hearing officer. (1) (No change.) (2) Powers and Duties. (A)-(B) (No change.) (C) An IHO shall disqualify him/herself [or shall recuse him/herself on the same grounds and under the same circumstances as specified in Tex. R. Civ. P. 18b.] if the IHO has directly or indirectly had prior involvement with any issues that are the basis for the hearing. (D) (No change.) (d) (No change.) (e) Pre-hearing Procedures. (1) Pre-hearing Conference(s). (A)-(C) (No change.) (D) [At the discretion of the IHO all] All or part of the pre-hearing conference [may] will
                                                                                                                                                                                  be recorded or transcribed. (E) (No change.) (2) (No change.) (3) Settlement Conferences. (A) Upon request of any party and approval by the IHO, or at the IHO's discretion, a conference may be held to address settlement. [possibilities through a dispute resolution methodology approved herein.] (B)-(C) (No change.) (4) (No change.) (f) Pleadings. (1) In a formal appeal all pleadings, including the Petition for Administrative Hearing[, for which no other form is prescribed,] shall contain: (A)-(C) (No change.) (D) a [prayer stating] statement of
                                                                                                                                                                                    the type of relief, action, or order desired; (E)-(G) (No change.) (2) (No change.) (3) Any pleading may adopt and incorporate, by specific reference thereto, any part of any document or entry in the official files and records of the Commission. All pleadings relating to any matter pending before the Commission shall be filed with the IHO through the [Inquiries and hearings Unit] Commissioner's Office for Administrative Hearings. (4)-(6) (No change.) (g) Discovery. (1) Forms and scope of discovery. (A)-(B) (No change.) (C) Scope of discovery. Parties may obtain discovery regarding any matter which is relevant to the subject matter of the hearing or which is reasonably calculated to lead to the discovery of evidence which would be admissible at the hearing. [Unless otherwise specifically stated in this section, discovery is to be conducted pursuant to Tex.R.Civ.P.] (D)-(F) (No change.) (2) Depositions. (A) After the filing of a Petition for Administrative Hearing (TRC-505) any party may take the testimony of any person, including a party, upon oral or written examination. [Leave of the IHO is required to take the deposition of a party prior to an appearance date.] (B)-(G) (No change.) (3) Requests for Admission. (A) (No change.) (B) Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Whenever a party is represented by an authorized representative, service of a request for admissions shall be made on the party's representative. A true copy of a request for admission or of a written answer or objection, together with proof of the service thereof, shall be filed promptly with the [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings. (C)-(E) (No change.) (4)-(5) (No change.) (6) Subpoenas. (A)-(E) (No change.) (F) The form of the subpoena and the service thereof shall be in conformance with the [Tex.R.Civ.P.] rules applicable to subpoenas in Texas Courts. (G) (No change.) (7) Compelling Discovery. (A)-(B) (No change.) (C) Sanctions. (i) (No change.) (ii) If a party, or an officer, director, or an authorized representative of a party, fails to comply with an order compelling discovery, the IHO may, after opportunity for hearing, make orders in response to such failure, including any of the following: (I)-(III) (No change.) (IV) striking pleadings or parts of pleadings, staying further action until the order is obeyed, or
                                                                                                                                                                                      dismissing the proceeding with or without prejudice[, or rendering a default judgment against the disobedient party]. (iii)-(vi) (No change.) (h)-(j) (No change.) (k) Impartial Hearing Officer Decision. (1) (No change.) (2) The [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings
                                                                                                                                                                                        shall submit the IHO decision to the Commissioner with a copy to each party. sec.104.6. Action by the Commissioner. (a) (No change.) (b) Within 20 days of the mailing of the IHO's decision, the Commissioner will decide whether or not to formally review the decision by studying the decision and the official case record. (1)-(2) (No change.) (3) The parties will then have 15 days from the date the notice that the Commissioner has decided to review the IHO's decision is mailed by the [Inquiries and Hearings Unit] Commissioner's Office for Administrative Hearings
                                                                                                                                                                                          to submit any additional relevant evidence. (4) (No change.) (c) (No change.) This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 31, 1995. TRD-9503946 Charles W. Schiesser General Counsel Texas Rehabilitation Commission Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 483-4051 Chapter 111. Medicaid Waiver Program for People with Deaf-Blindness and Multiples Disabilities 40 TAC sec.111.14 The Texas Rehabilitation Commission (TRC) proposes new s111.4, concerning Reimbursement Methodology for Community-based Services provided to People who are Deaf-blind with Multiple Disabilities. David McKay, Assistant Commissioner for Financial Services, has determined that for each of the first five years the proposed new rile will be in effect, the rule will increase the amount of federal financial participation for this program without any increase in state funds. Mr. McKay also has determined that for each year of the first five years the new rule is in effect, the public benefit will be that the new section will include a Medicaid waiver program. Questions about the proposed new rule may be directed to Steve Schoen, Programs Specialist, at (512) 483-4185 in the Texas Rehabilitation Commission. Comments on the proposed new rule may be submitted to Steve Schoen, Program Specialist, Program and Technical Assistance, Texas Rehabilitation Commission, 4900 North Lamar Boulevard, Suite 5444, Austin, Texas 78751-2399, within 30 days of publication in the Texas Register. The new rule is proposed under Texas Human Resources Code, Title 7, sec.111. 018, which provides the Texas Rehabilitation Commission with the authority to make regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, investigation, and determination for rehabilitation and other services, procedures for hearings, and other regulations subject to this section as necessary to carry out the purpose of this chapter. This proposed new rule implements Title 7, Chapter 113, of the Vernon's Texas Code Annotated, sec.113.001. sec.111.14. Reimbursement Methodology for Community-based Services Provided to People who are Deaf-Blind with Multiple Disabilities. (a) General. The Texas Rehabilitation Commission (TRC) will reimburse qualified providers for waiver services provided to Medicaid-eligible persons who are deaf-blind with multiple disabilities. (b) Initial rate analysis. For the initial rate period, providers will be reimbursed on a fee-for-service basis using a method based upon pro forma expenses developed for each separate delivered service by specifying a list of staff, supplies, and administrative overhead expenses required to provide services in compliance with state standards, and by costing out those requirements at estimated current year prices. Costs will be developed by using data from surveys; cost report data from other similar programs, providers, associations, and professionals experienced in delivering services to persons with deaf-blindness and related conditions; and other sources. (c) Reporting of cost. (1) Cost report. Each provider must submit financial and statistical information on a cost report or on facsimile which are formatted according to the Texas Rehabilitation Commission specifications and are pre-approved by TRC staff. The cost report must capture the expenses of the waiver services provider. Also, the cost report must capture pertinent information related to the initial assessment and care planning process for waiver program applicants. (A) Accounting requirements. All information submitted on the cost reports must be based upon the accrual method of accounting unless the provider is a governmental entity operating on a cash basis. The provider must complete the cost report according to the prescribed statement in subsection (e) of this section, concerning allowable and unallowable costs. Cost reporting should be consistent with generally accepted accounting principles (GAAP). In cases where cost reporting rules conflict with GAAP, IRS, or other authorities, the rules specified in this section take precedence for Medicaid provider cost reporting purposes. (B) Report period. The provider must prepare the cost report to reflect activities during the provider's fiscal year. The cost report is due 90 days after the receipt of the cost reports forms from TRC. The agency may require cost reports or other information for other periods. Failure to file an acceptable cost report or complete required additional information will result in a hold being placed on the vendor payments until the cost report information or additional information is provided. (C) Allowable and unallowable costs. Providers must complete the cost report according to TRC's statement of allowable and unallowable costs in subsection (e) of this section. (D) Cost report certification. Providers must certify the accuracy of cost reports submitted to the agency in the format specified by the agency. Providers may be liable for civil and/or criminal penalties if the cost report is not completed according to agency requirements. (E) Extension of due date. TRC may grant extensions of due dates for good cause. A good cause is defined as a cause that the provider could not reasonably be expected to control. Providers must submit requests for extensions in writing to TRC before the cost report due date. TRC staff will respond to requests within 10 working days of their receipt. (F) Cost report supplements. TRC may require additional financial and other statistical information to ensure the fiscal integrity of the program. (G) Failure to file an acceptable cost report. If a provider fails to file a cost report or files an unacceptable report and refuses to make necessary changes, TRC may withhold vendor payments to that provider until the deficiencies are corrected. (H) Record keeping requirements. Each provider must maintain records according to the requirements as specified in the contract with providers. The provider must ensure that the records are accurate and sufficiently detailed to support the financial and statistical information reported in the cost report. Workpaper used in the preparation of the cost report such as trial balances cost allocations, etc. must be retained with the contracted provider's copy of the cost report. If a provider does not maintain records which support the financial and statistical information submitted on the cost report, the provider will be given 90 days to correct his record keeping. A hold of the vendor payments to the provider will be made if the deficiency is not corrected within 90 days from the date the provider is notified. (I) Audit and review of cost reports. (i) Review of cost reports. TRC conducts desk reviews of all provider cost reports or surveys to ensure that all financial and statistical information submitted conforms to all applicable rules and instructions. Cost reports not completed according to instructions or rules are returned to the provider for proper completion. (ii) The basic objective of TRC desk reviews is to verify that each provider's cost reports: (I) display financial and statistical information in the format require by TRC. (II) report expenses in conformity with TRC's lists of allowable and unallowable costs; and (III) follow generally accepted accounting principles except as otherwise specified in TRC's lists of allowable and unallowable costs, or as otherwise permitted in the case of governmental entities operating on a cash basis. (iii) TRC verifies the information specified in subsection (b) of this section by: (I) comparing each provider's reported costs to: (-a-) past patterns of expenditures for similar services; (-b-) the results of previous on-site audits; (-c-) normal operating costs relationships; and (-d-) industry average costs; (II) reviewing each provider's reported costs to search for: (-a-) reported unallowable costs; (-b-) omitted allowable costs; and (-c-) overstated or understated allowable costs; (III) checking for completion of required information; (IV) checking the format for proper cost classification; (V) checking for mathematical accuracy; and (VI) adjusting improperly prepared reports. (iv) TRC may conduct on-site audits of cost reports that show unusual fluctuations or trends in costs or statistics. TRC may also conduct on-site audits when desk reviews are insufficient to verify the accuracy of reported costs. TRC staff perform a sufficient number of audits each year to ensure the fiscal integrity of the waiver services reimbursement rates. The number of on- site audits actually performed each year may vary, but will not be less than the number required by Federal regulations. On site audits are conducted in a manner consistent with Government Auditing Standards. Whenever possible, the records necessary to verify information submitted to TRC on cost reports, including related-party transactions and other business activities engaged in by the provider, must be accessible to TRC audit staff in the State of Texas. When records are not available to TRC audit staff within the state, the provider must pay the actual costs for TRC staff to travel and review the records out-of- state. If a provider fails to reimburse TRC for these costs within 60 days of the request for payment, TRC may place a hold on the vendor payments until the costs are paid in full. Adjustments consistent with the results of on-site audits are made to the rate base until closure before the final rate analysis. (v) During either desk audits or on-site audits, TRC notifies providers by regular mail of the exclusions and adjustments to reported expenses made during TRC's desk review of cost reports. (vi) Access to records. The provider must allow TRC or its designated agents access to all records necessary to verify information on the cost report. This requirement includes records pertaining to related-party transactions and other business activities engaged in by the provider. If a provider does not allow inspection of pertinent records within 30 days following written notice from TRC, a hold will be placed on the vendor payments until access to the records is allowed. If the provider continues to deny access to records, TRC may cancel the provider contract. (vii) Reviews of cost report disallowances. Providers may request an informal review and, if necessary, an administrative hearing to dispute any action taken by TRC according to Texas Rehabilitation Commission standards. (2) Other sources of cost information. In the absence of reliable cost report data from which to set waiver services unit rates of the administrative expense fee, both the rate and fee will be developed by using data from surveys; cost report data from other similar programs; consultation with other service providers, associations, and professionals experienced in delivering services to persons with deaf-blindness and related conditions; and other sources. (d) Waiver rate determination methodology. (1) Rates by unit of service. Reimbursement rates for Deaf-Blind Multiple Disabilities waiver services will be determined on a fee-for-service basis for each of the services provided under the Social Security Act, 1915(c), Medicaid waiver for persons with deaf-blindness and multiple disabilities. (2) Exclusion or adjustment of expenses. Providers must eliminate unallowable expenses from the cost report. TRC excludes from the data base any unallowable expenses included in the cost report and makes the appropriate adjustments to expenses and other information reported by providers; the purpose is to ensure that the data base reflects costs and other information reported by providers; the purpose is to ensure that the data base reflects costs and other information which are consistent with efficiency, economy, and quality of care; are necessary for the provision of waiver services; and are consistent with federal and state Medicaid regulations. If there is doubt as to the accuracy or allowableness of a significant part of the information reported, individual cost reports may be eliminated from the data base. (3) Rate determination process. TRC board determines, for each service, fee- for-service reimbursement rates which will reasonably reimburse the costs of an economic and efficient provider. Recommended rates are determined in the following manner. (A) Total allowable costs for each provider will be determined by analyzing the allowable historical costs reported on the cost report and other pertinent cost survey information. (B) An allowable cost per unit of service is calculated for each service. The allowable costs per unit of service are arrayed and weighted by the number of units of service and the median point is calculated. (C) The median cost component is multiplied by an appropriate percentage incentive factor, determined by TRC board, to calculate the recommended reimbursement rates which, in the board's opinion, will be: (i) within budgetary constraints; (ii) adequate to reimburse the cost of operations for an efficient and economic provider; and (iii) justifiable given current economic conditions. (D) TRC also adjusts rates accordingly, if new legislation, regulations, or economic factors affect costs. (e) Allowable and unallowable costs. (1) General. Allowable and unallowable costs are defined to identify expenses which are and are not reasonable and necessary to provide waiver services to clients by an economic and efficient provider. Only adequate documented, reasonable, necessary, incurred or accrued allowable costs are to be used to compile the rate base. Cost reporting by providers should be consistent with GAAP. In cases where TRC cost reporting rules conflict with GAAP, IRS, or other authorities, TRC rules take precedence for cost reporting purposes. (2) Definitions. The following words and terms, when used in this subsection, shall have the following meanings, unless the context clearly indicates otherwise. (A) Allowable costs-Those expenses that are reasonable and necessary in the normal conduct of operations relating to the provision of waiver services. (i) The term "reasonable" refers to the amount expended. The test of reasonableness is that the amount expended does not exceed the cost which would be incurred by a prudent business operator seeking to contain costs. (ii) The term "necessary" refers to the relationship of the cost to provision of waiver services. To qualify as a necessary expense, a cost must be one that is usual and customary in the operation of waiver services and must meet the following requirements: (I) The expenditure was not for personal or other activity not specifically related to the provision of waiver services. (II) The cost does not appear on the list of specific unallowable costs and is not unallowable under other federal, state, or local laws or regulations. (III) The cost bears a significant relationship to the provision of waiver services. The test of significance is whether elimination of the expenditure would adversely affect the delivery of waiver services. (IV) The expense was incurred in the purchase of materials, supplies, or services provided directly to the clients or staff of the program in the conduct of normal business operations. (V) Normal conduct of operations relating to waiver services and the initial assessment process includes, but is not limited to the following: (-a-) Allowable costs must result from arm-length transactions involving unrelated parties. (-b-) In related-party transactions, the allowable cost to the waiver services program is the cost to the related party. Allowable costs in this regard are limited to the lesser of the actual purchase price to the related party, or usual and customary charges for comparable goods or services. A related party is a natural person or organization related to the provider entity by blood/marriage, or common owner-ship, or any association which permits either entity to exert power or influence, either directly or indirectly, over the other. (B) Unallowable costs-Those expenses that are not reasonable or necessary for the provision of waiver services and the initial assessment. Unallowable costs are not included in the data base used to determine recommended rates and fees. (3) List of allowable costs. The following list of allowable costs is not comprehensive, but rather serves as a general guide and identifies certain key expenses areas. The absence of a particular cost does not necessarily mean that it is not an allowable cost: (A) compensation of waiver services staff. Compensation will be given only to those staff who provide waiver services directly to the clients or in support of staff of the waiver services in the normal conduct of operations relating to the provision of waiver services. This includes: (i) wages and salaries; (ii) payroll taxes and insurance. Federal Insurance Contributions Act (FICA or social security), unemployment compensation insurance, workman's compensation insurance; (iii) employee benefits. Employer-paid health, life, accident. liability, and disability insurance for employees; contributions to employee retirement fund; and deferred compensation limited to the dollar amount the employer contributes. The expense: (I) must represent a clearly enumerated liability of the employer to individual employees; (II) must not be incurred as a benefit to employees who do not provide services directly to the clients or staff of the waiver services program; and (III) must not represent any form of profit sharing; (B) compensation of staff outside of the waiver program who provide services directly to the clients or in support of staff of the program. Allowable compensation is limited to the pro-rata portion of the actual working time spent on behalf of the program. If an employee works for more than one program, it will be necessary to allocate that employee's salary between programs based on actual timesheets or time studies which establish the amount of time spent on each program area. (C) compensation of outside consultants providing services directly to the clients or in support of staff of the program; (D) materials and supplies. Includes office supplies, housekeeping supplies, medical, and other supplies; (E) utilities. Including electricity, natural gas, fuel oil, water, waste water, garbage collection, telephone, and telegraph; (F) buildings, equipment, and capital expenses. Buildings, equipment, and capital used by the waiver provider or in support of the waiver services staff, and not for personal business. If these costs are shared with other program operations, the portion of the costs relating directly to waiver services may be allowed on a pro-rata basis if the proportion of use for waiver services is documented; (G) depreciation and amortization expenses. Property owned by the provider entity and improvements to owned, leased, or rented property used by the waiver provider that are valued at more than $500 at the time of purchase must be depreciated or amortized using the straight line method. The minimum usable lives to be assigned to common classes of depreciable property are as follows: (i) buildings: 30 years, with a minimum salvage value of 10%; and (ii) transportation equipment used for the transport of clients, materials and supplies, or staff providing waiver services; a minimum of three years for passenger automobiles and five years for light trucks and vans, all with a minimum salvage value of 10%; (H) provider-owned property. Property owned by the provider entity and improvements to property owned, leased, or rented by the provider that are valued at less than $500 at the time of purchase may be treated as ordinary expenses; (I) rental and lease expense. This includes rental and lease expenses for buildings, building equipment, transportation equipment, and other equipment, and related materials, and supplies used by the waiver provider. Rental or lease expense paid to a related party is limited to the actual allowable cost incurred by the related party; (J) transportation expense. This includes the cost of public transportation or mileage claimed at the allowable reimbursement per mile set by the state legislature for state employees; (K) interest expense. Interest expense is allowable on loans for the acquisition of allowable items, subject to: (i) all of the requirements for allowable costs; (ii) written evidence of the loan; and (iii) the provider entity being named as maker or comaker of the note. Allowable interest is limited to the lesser of the cost to the related party or the prevailing national average prime interest rate for the year in which the loan contract was executed; (L) tax expense. This includes real and personal property taxes, motor vehicle registration fees, sales taxes, Texas corporate franchise taxes, and organization filing fees; (M) insurance expense. This includes facility fire and casualty, professional liability and malpractice, and transportation insurance. Insurance costs must be for the cost reporting period. If an insurance policy covers any period of time outside the costing reporting period, the premium cost must be prorated so that the amount reported on cost report reflects only costs associated with the provider's fiscal year; (N) contract waiver services provided by outside vendors to persons with deaf- blindness and multiple disabilities; (O) business and professional association dues limited to associations devoted primarily to the issues of deaf-blindness and related conditions. Proper documentation must show relationship to related condition issues and the calculation of dues must be available; (P) outside training costs. Limited to direct costs (transportation, meals, lodging, and registration fees) for training provided to personnel rendering services directly to the clients or staff of the waiver provider. The training must be directly related to issues concerning deaf-blindness and related conditions and located within the continental United States. (4) List of unallowable costs. Unallowable costs are those expenses that are not reasonable or necessary for the provision of waiver services. Unallowable costs are not included in the rate base used to determine recommended rates. The following list is not intended to be comprehensive, but rather to serve as a general guide and identify certain key expense areas that are not allowable. The absence of a particular cost does not necessarily mean that it is an allowable cost: (A) compensation in the form of salaries, benefits, or any form of compensation given to individuals who do not provide waiver services either directly to clients or in support of staff; (B) personal expenses not directly related to the provision of waiver services; (C) client room and board expenses, except for those related to respite care; (D) management fees paid to a related party that are not derived from the actual cost of materials, supplies, or services provided directly to the program; (E) advertising expenses other than those for yellow pages advertising, advertising for employee recruitment, and advertising to meet any statutory or regulatory requirement; (F) business expenses not directly related to the provision of waiver services. (G) political contributions; (H) depreciation and amortization of unallowable costs. This includes amounts in excess of those resulting from the straight line depreciation method, capitalized lease expenses in excess of the actual lease payment, and goodwill or any excess above the actual value of the physical assets at the time of purchase; (I) trade discounts of all types. Returns, allowances, and refunds; (J) donated facilities, materials, supplies, and services including the values assigned to the services of unpaid workers and volunteers; (K) dues to all types of political and social organizations, and to professional associations not directly and primarily concerned with the provision of waiver services. Chamber of Commerce and country clubs dues are not allowable; (L) entertainment expenses; (M) boards of director's fees; (N) fines and penalties for violations of regulations, statutes, and ordinances of all types; (O) fund raising and promotional expenses; (P) expenses incurred in the purchase of goods and services with revenues from gifts, donations, endowments, and trusts; (Q) interest expenses on loans pertaining to unallowable items and on that portion of interest paid which is reduced or offset by interest income; (R) insurance premiums pertaining to items of unallowable cost; (S) accrued expenses that are not a legal obligation of a provider or are not clearly enumerated as to dollar amount. This includes any form of profit sharing and the accrued liabilities of deferred compensation plans; (T) planning and evaluation expenses for the purchase of depreciable assets, except where purchases are actually made and the assets are put into service in providing waiver services; (U) mileage expense which exceeds the current reimbursement rate set by the Texas Legislature for state employee travel or expenses exceeding actual cost of public transportation; (V) costs of purchases from a related party which exceed the original cost to the related party; (W) out-of-state travel expenses, except for provision of waiver services that may include training and quality assurance functions; (X) legal and other costs associated with litigation between a provider and state or federal agencies, unless the litigation is decided in the provider's favor; (Y) contributions to self-insurance funds which do not represent payments based on current liabilities; (Z) any expenses incurred because of imprudent business practices; (i) expenses which cannot be adequately documented; (ii) expenses not reported according to the instructions on the cost report; (iii) expenses not allowable under other pertinent federal, state, or local laws and regulations; (iv) federal, state, and local income taxes and any expenses related to preparing and filing income tax forms. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's authority to adopt. Issued in Austin, Texas, on March 22, 1995. TRD-9503805 Simon Y. Rodriquez Assistant General Counsel Texas Rehabilitation Commission Earliest possible date of adoption: May 8, 1995 For further information, please call: (512) 483-4051