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 V. General Services Commission Chapter 111. Executive Administration Division Historically Underutilized Business Certification Program 1 TAC sec.111.24 The General Services Commission proposes new sec.111.24, concerning the Historically Underutilized Business (HUB) Certification Program. The new rule provides for program review at least once every five years, but no later than two years following release of the Federal census report. The rule is designed to ensure that goals for the utilization of women and minority-owned firms are "narrowly tailored" and are updated in accordance with more recent, relevant data. Darrell Pierce, director, Business Services, has determined that for each year of the first five years the section as proposed is in effect, there will be the following fiscal implications to state government as a result of administering the section: If there is new census data or other relevant data, then the state would incur the expense of hiring a consulting firm to update the data in the 1994 State of Texas Disparity Study (Disparity Study) at an estimated cost of $250,000 to $300,000 per updated study. If there is no new census data or other relevant data during the five-year period, there will be no fiscal implications to state government to reassess the program and goals. There will be no fiscal implications to local government. Mr. Pierce 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 is the increase in opportunities for historically underutilized businesses and small businesses to do business with the state. The reassessment of goals based on the census data would ensure that the state was properly reflecting the goals established for this program. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to David Brown, Assistant General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The new section is proposed under Chapter 684, sec.65(c), Acts, 73rd Legislature (1993), which provides the General Services Commission with the authority to promulgate rules necessary to implement the findings, conclusions, and recommendations of the Disparity Study mandated by that Act. Government Code, Title 10, Subtitle D, Chapters 2151-2176 (formerly Texas Civil Statutes, Article 601b) is affected by the new section. sec.111.24. Program Review.
    To the extent that federal census data or additional relevant data has been or will continue to be used as a baseline to determine HUB availability, the General Services Commission shall review and reassess goals and overall program at least once every five years or within two years following release of federal census reports, whichever is earlier. 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 October 31, 1995. TRD-9514070 David Ross Brown Assistant General Counsel General Services Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-3960 Chapter 113. Central Purchasing Division Purchasing 1 TAC sec.113.4 The General Services Commission proposes an amendment to s113.4, concerning the Centralized Master Bidders List. This change provides for properly naming the Centralized Master Bidders List (CMBL), specifies the number of bids a vendor must respond to in order to be an active bidder on the CMBL, and clarifies use of the CMBL by the commission and state agencies/universities in accordance with Government Code, Title 10, Subtitle D, Chapter 2155, (formerly known as Texas Civil Statutes, Article 601b, sec.3.101) . Rolando A. Fabrega, business manager, Business Services, 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. Mr. Fabrega 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 would be clarification that the CMBL replaces the Bidders List and an increased opportunity to do business with the state since inactive bidders would be removed from the CMBL. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to David Brown, Assistant General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendment is proposed under the Government Code, Title 10, Subtitle D, Chapter 2155, (formerly known as Texas Civil Statutes, Article 601b, sec.3.101), which provides the General Services Commission with the authority to adopt procedures necessary to develop and maintain the CMBL, including procedures for removing inactive vendors from the list. Government Code, Title 10, Subtitle D, Chapter 2155 is affected by this amendment. sec.113.4. Centralized Master Bidders List. (a) The commission maintains the Centralized Master Bidders List (CMBL)
      [centralized master bidders list] of the names and addresses of vendors which have applied and been accepted for inclusion on the CMBL
        [list]. The CMBL
          [bidders list] is maintained for the state's use
            [convenience] in obtaining competitive bids for purchases and for registering vendors who wish to be designated as qualified information systems vendors. No vendor will be placed on the CMBL
              [bidders list] to receive bid invitations for information purposes only. Bid invitations and requests for proposals are mailed to vendors on the CMBL
                [bidders list] for the solicited commodity and/or service
                  for open market, term contracts, [and] competitive sealed proposal acquisitions [made by the commission] and delegated purchases below and above
                    [in excess of] $15,000 made by the commission and state agencies/universities
                      . (b) To be considered for inclusion on the CMBL
                        [centralized master bidders list], a vendor must: (1) (No change.) (2) remit a check or money order in the amount of $100, which is the biennial maintenance fee assessed to cover the commission's costs for maintaining the bidders list and mailing bids or proposals. This fee, less $15 for handling, will be refunded if the applicant is not accepted for inclusion on the CMBL
                          [bidders list]. (c) The commission will review and evaluate the CMBL
                            [a bidders list] application, and may reject the application based on one or more of the following factors: (1)-(6) (No change.) (d) A vendor may be removed or temporarily suspended from the CMBL
                              [bidders list] for one or more of the following reasons: (1)-(7) (No change.) (8) failing to submit bids in response to bid invitations on either: (A) four
                                [eight] consecutive open market invitations concerning the affected class or item; or (B) (No change.) (9) failing to remit the biennial CMBL
                                  [bidders list] maintenance fee; (10) being or becoming unable to provide a commodity or service for which the vendor is enrolled on the CMBL
                                    [bidders list] , provided that removal will affect only the commodities or services which the vendor is unable to provide; or (11) (No change.) (e) A vendor which has been temporarily suspended from the CMBL
                                      [bidders list] may be reinstated by promptly correcting the reasons for suspension. A failure to make the necessary correction promptly may result in the vendor's removal from the CMBL
                                        [bidders list]. If removed, the vendor shall not be reinstated unless a written request for reinstatement is granted by the Director of Purchasing, General Services Commission
                                          [director]. (f) (No change.) (g) [By June 1, 1995, state agencies that maintain bidders lists must provide the General Services Commission with all records and information in their custody that relate to those lists for inclusion in the centralized master bidders list. This information must be transmitted to the commission in a format specified by the commission]. Effective
                                            [By] September 1, 1995, [affected] state agencies/universities
                                              [agencies] shall use the CMBL
                                                [centralized master bidders list] to select bidders for competitive
                                                  bids or proposals. (h) (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 October 31, 1995. TRD-9514069 David Ross Brown Assistant General Counsel General Services Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-3960 1 TAC sec.113.8 The General Services Commission proposes an amendment to s113.8, relating to bidder preferences in purchasing. The amendment changes the name of the Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons to the Texas Council on Purchasing from People with Disabilities (Council) as amended by House Bill 2658, sec.1, Acts, 74th Legislature (1995). Pat Martin, director, Purchasing Program, 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. Martin 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 is accurate identification of the Council. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to David Brown, Assistant General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78701-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendment is proposed under the Human Resources Code, Title 8, Chapter 122, as amended by House Bill 2658, sec.1, Acts, 74th Legislature (1995). Government Code, Title 10, Chapters 2155-2158 is affected by this amendment. sec.113.8. Preferences. (a) (No change.) (b) Preferences. (1)-(3) (No change.) (4) Products of persons with mental or physical disabilities. A preference shall be given to manufactured products of workshops, organizations, or corporations whose primary purpose is training and employing persons with mental or physical disabilities, if the products meet state specifications as to quantity, quality, and price. Competitive bids are not required for purchases of blind-made goods or services offered as a result of efforts by the Texas Council on Purchasing from People with Disabilities
                                                    [Texas Committee on Purchases of Products and Services of Blind and Severely Disabled Persons], if the goods or services meet state specifications as to quantity, quality, and price. (5)-(8) (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 October 31, 1995. TRD-9514071 David Ross Brown Assistant General Counsel General Services Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-3960 Travel and Trans Division Texas Alternative Fuels Program 1 TAC sec.sec.125.63, 125.65, 125.69 The General Services Commission proposes amendments to s125.63 and sec.125.65 and new sec.125.69, concerning the Texas Alternative Fuels Program. The proposed amendments change the name of the Texas Air Control Board to the Texas Natural Resource Conservation Commission. The proposed amendments will reduce confusion by deleting reference to a name that is no longer used. The new sec.125.69 will require all state agencies to use an alternative fuel exclusively in vehicles that are equipped from the manufacturer or modified by a conversion facility to be capable of operating on an alternative fuel. It also allows exceptions in certain cases such as the nonavailability of an alternative fuel or when the alternative fuel is more expensive than conventional gasoline or diesel. Diane Harker, program director, Administrative Services Programs, has determined that for the first five-year period the amendments and new section are in effect, there will be no administrative costs for state agencies. There are no fiscal implications for local governments. Ms. Harker 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 increased usage of alternative fuels. 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. Comments on the proposal may be submitted to David Brown, Assistant General Counsel, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendments and new section are proposed under Senate Bill 958, sec.1, Acts, 74th Legislature (1995) (to be codified as Government Code, sec.2171.103) which provides the General Services Commission with authority to promulgate rules consistent with the code. Government Code sec.2171.103 is affected by these amendments and new section. sec.125.63. Assistance to State Agencies and School Districts. (a)-(c) (No change.) (d) The Vehicle Fleet Section provides information to the Texas Natural Resource Conservation Commission
                                                      [Texas Air Control Board] for its determination of air quality benefits associated with the use of alternative fuels. sec.125.65. Reduction and/or Waiver of Required Fleet Percentages. (a) Any state agency operating a fleet of more than 15 motor vehicles, excluding law enforcement and emergency vehicles, shall have a fleet percentage of alternative fuel vehicles equal to or greater than 30% of the total number of such vehicles operated by September 1, 1994, and a percent equal to or greater than 50% by September 1, 1996. Contingent upon a determination by the Texas Natural Resource Conservation Commission
                                                        [Texas Air Control Board] by December 31, 1996, that the alternative fuel program reduced total annual emissions from vehicles, state agencies shall have a fleet percentage equal to or greater than 90% of alternative fuel vehicles by September 1, 1998, and thereafter. (b)-(g) (No change.) sec.125.69. Alternative Fuel Usage. Pursuant to Government Code, sec.2171.103, the Commission shall take all steps necessary to encourage the use of alternative fuels. (1) Each state vehicle equipped from the manufacturer or modified by a conversion facility to be capable of operating on an alternative fuel shall operate exclusively on the alternative fuel except in cases: (A) where and when the alternative fuel is not available; (B) the range of the alternative fuel is insufficient to complete a round trip, in which case the alternative fuel shall be used until exhausted, with conventional gasoline or diesel fuel used only as a last resort to complete the trip when the alternative fuel is unavailable; (C) when the alternative fuel cost more than conventional gasoline or diesel; (D) when the conversion equipment is not in working order or is deemed unsafe to operate, in which case timely repairs or inspections shall be made so that the vehicle may continue to operate on the alternative fuel; (2) Each state agency will be required to provide fuel usage data semi- annually on every vehicle capable of using alternative fuels through the Vehicle Reporting System. 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 October 31, 1995. TRD-9514072 David Ross Brown Assistant General Counsel General Services Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-3960 Part XVI. State Council on Competitive Government Chapter 401. Administration Subchapter F. Monitoring of Services 1 TAC sec.401.104 The Council on Competitive Government proposes amendments to sec.401.104 concerning Historically Underutilized Businesses (HUBs). The amendments provide for conformance with the legislative direction set forth in the General Appropriations Bill, (House Bill 1, Article IX, sec.111, Acts, 74th Legislature (1995)) by making a good faith effort to increase purchases and contract awards to historically underutilized businesses. Carl Mullen, Acting Clerk of the Council on Competitive Government, has determined that for each year of the first five years the section as proposed will be in effect there will be no fiscal implications for state or local government as a result of administering the proposed change. Mr. Mullen 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 benefit because of enhanced accountability in government and because a wider and more diverse pool of vendors, particularly small businesses, may be involved in competing to provide state services. Other than the public benefit noted there will be no effect on small businesses. There is no anticipated economic cost to persons required to comply with the proposed amendment. Comments on the proposal may be submitted to Charlie Bertero, Manager, Council on Competitive Government, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047. Comments must be received no later than 30 days from the date of publication of the proposed change in the Texas Register. The amendments are proposed under Government Code, Title 10, Subtitle D, sec.2162.101 (formerly Texas Civil Statutes, Article 601b, Article 15, subsection 15.06(1)), which invests the Council on Competitive Government with the authority to promulgate rules necessary to administer its functions. Government Code, Title 10, Subtitle D, Chapter 2162 is affected by these amendments. sec.401.104. Historically Underutilized Businesses. The Council is committed to assisting [historically underutilized businesses] Historically Underutilized Businesses (HUBs)
                                                          in their efforts to participate in contracts to be awarded by the council [, and to achieving an overall minimum of 30% participation in contract awarded by the council by historically underutilized businesses]. This includes assisting HUBs to meet or exceed the procurement utilization goals set forth in the form of Texas Administrative Code rules at 1 TAC Chapter 111. These rules, which became effective October 4, 1995, were promulgated by the General Services Commission and address the State's Historically Underutilized Business Certification Program.
                                                            The Council shall take positive steps to inform historically underutilized businesses of opportunities to provide identified state services that it determines may better be provided through a competitive process. 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 October 27, 1995. TRD-9513951 David Ross Brown Assistant General Counsel State Council on Competitive Government Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-3960 TITLE 4. AGRICULTURE Part I. Texas Department of Agriculture Chapter 5. Quarantines Imported Fire Ant Quarantine 4 TAC sec.5.400, sec.5.401 The Texas Department of Agriculture (the department) proposes amendments to sec.5.400 and sec.5.401, concerning quarantined areas and quarantined articles. The amendment to sec.5.400 is proposed to stop the movement of Red Imported Fire Ants out of currently infested areas of the state and adds all of Ector County as well as Hidalgo and Willacy counties to the list of quarantined areas. The proposed amendment will also remove subsection (c) from sec.5.400, as it currently includes only a portion of Ector County. The amendment to sec.5.401 is proposed to parallel the language found in 7 Code Federal Regulations, s301.81 and sec.301.82. The proposed amendment will remove hay and straw as a quarantined article except baled hay and baled straw stored in direct contact with the ground. David Kostroun, plant quality coordinator, has determined that for the first five-year period the sections are in effect there will be an estimated $1,655 annual increased cost to state government due to: the costs of inspecting materials suspected to be contaminated with fire ants moving from newly quarantined counties into nonquarantined areas; the costs of issuing fire ant compliance agreements; and the costs of conducting training for landowners regarding fire ant quarantine, biology, and habitat. There will be no fiscal implications for local government as a result of enforcing or administering the sections. Mr. Kostroun 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 slow the introduction of imported fire ants into areas of Texas that are currently not infested. The effect on small businesses and to persons who are required to comply with the rule as proposed in sec.5.400 will be an estimated cost of $16 per acre to chemically treat quarantined articles, except baled hay and baled straw for which there is no chemical treatment, shipped to nonquarantined areas. The effect on small businesses and to persons who are required to comply with the rule as proposed in sec.5.401 will be the additional cost to store, in a manner that prevents direct contact with the ground, baled hay and baled straw that is to be moved from a quarantined area to a nonquarantined area. Comments on the proposal may be submitted to David Kostroun, Coordinator, Plant Quality Programs, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register. The amendments are proposed under the Texas Agriculture Code, sec.71.002, which provides the Texas Department of Agriculture with the authority to establish quarantines against diseases and pests found within the state; and sec.71.007, which authorizes the department to adopt rules necessary for the protection of agricultural and horticultural interests. The Texas Agriculture Code, Chapter 71, is affected by the proposed amendments. sec.5.400. Quarantined Areas. (a) (No change.) (b) In addition to the areas described in subsection (a) of this section, Brooks, Brown, Cameron, Delta, Dimmit, Duval, Ector, Hidalgo,
                                                              Jack, Jones, Kenedy, Kimble, Kinney, Lamar, La Salle, Mason, Maverick, McCulloch, Midland, Montague, Palo Pinto, San Saba, Stephens, Val Verde, Webb, Willacy,
                                                                Young, and Zavala counties are quarantined areas. [(c) In addition to the areas described in subsections (a) and (b) of this section, the following parts of Ector County are quarantined areas: that part of the county beginning at the intersection of U.S. Interstate Highway 20 and State Highway 302 in the southwest corner, then northerly along State Highway 302 until the intersection of State Highway 302 and West Loop 338, then continuing north on West Loop 338 to East Loop 338, then continuing southeasterly and south along East Loop 338, to the intersection of U.S. Interstate Highway 20 on the southeast corner, then proceeding westerly along U.S. Interstate Highway 20 to the intersection of State Highway 302 and U.S. Interstate Highway 20.] sec.5.401. Quarantined Articles. (a) The following are designated as quarantined articles: (1)-(4) (No change.) (5) baled
                                                                  hay and baled
                                                                    straw stored in direct contact with the ground
                                                                      ; (6)-(7) (No change.) (b) (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 November 1, 1995. TRD-9514116 Dolores Alvarado Hibbs Chief Administrative Law Judge Texas Department of Agriculture Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-7583 TITLE 16. ECONOMIC REGULATION Part I. Railroad Commission of Texas Chapter 3. Oil and Gas Division Conservation Rules and Regulations 16 TAC sec.3.83 The Railroad Commission of Texas proposes an amendment to sec.3.83, concerning a tax exemption for three-year inactive wells. The section defines a three-year inactive well, provides that the commission may certify a well as a three-year inactive well, may revoke the certificate for cause, and may not certify a well as a three-year inactive well after February 29, 1996. Under the current rule, an operator must prove a well has productive capability before the commission may certify the well as inactive. The proposed amendment will require an operator to prove a well has productive capability before applying to the comptroller for the tax incentives but not before obtaining certification from the commission. Removed from the rule is reference to an operator's application, which is not allowed by statute after August 31, 1995, and any requirement of proof for active injection wells. Rita E. Percival, systems analyst for the Oil and Gas Division, has determined that for each year of the first five years the proposed section is in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the section. Meredith Kawaguchi, legal examiner in the Office of General Counsel, has determined that for each year of the first five years the section as proposed is in effect, the public benefits anticipated as a result of enacting the section as proposed will be a greater incentive for operators to bring inactive wells back on production, because a well's productive capability does not have to be established before February 29, 1996 (the last date the statute allows the commission to certify an inactive well). There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the amended section. Comments on the proposal may be submitted to Meredith Kawaguchi, legal examiner, Office of General Counsel-Oil and Gas Section, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967. The deadline for filing comments is 30 days after publication in the Texas Register. Comments should refer to the docket number of this rulemaking proceeding, 20-0209356. The amendment is proposed under Texas Tax Code, sec.202.056, which provides the Railroad Commission of Texas with the authority to certify a well as a three- year inactive well, to revoke the certificate for cause, and to adopt all necessary rules to administer Texas Tax Code sec.202.056. The following code sections are affected by this rule: Tax Code, sec.sec.201, 053, 202.052, and 202.056. sec.3.83. Tax Exemption For Three-Year Inactive Wells. (a) (No change.) (b) Definitions. (1) Three-year inactive well-A well that has not produced any hydrocarbons in more than one calendar month in the three years prior to the date of certification by
                                                                        [application to] the commission [or designation by the commission] under this section[, whichever is earlier]. Wells eligible under this section include those that: (A)-(C) (No change.) (2) (No change.) (c) Certification. The commission or its delegate may certify a well as a three-year inactive well. [(c) Certification. [(1) The commission or its delegate may designate a well as a candidate for certification as a three-year inactive well without application if the well qualifies during the period from September 1, 1993-August 31, 1995. [(2) An application for certification as a three-year inactive well may be made by the owner or operator of the well from September 1, 1993-August 31, 1995. Applications shall be submitted to the Oil and Gas Division on a form prescribed by the commission according to instructions on the form. The commission may require the applicant to provide any relevant information needed to certify the well. [(3) If the commission or its delegate declines to administratively certify a well, the applicant may request a hearing on the application. At such hearing, the applicant shall have the burden of proving that the well has not produced any hydrocarbons in more than one calendar month in the three years prior to application or designation, whichever is earlier. For administratively denied applications involving active injection wells, the applicant shall present evidence showing the period of time the well has been on injection and shall have the burden of showing that the conversion from injection to production will result in increased recovery over the current enhanced recovery plan.] (d) Revocation of Certification. Certification may be revoked by the commission for cause which includes, but is not limited to, receipt of information by the commission that a certified well produced hydrocarbons in more than one calendar month in the three years prior to certification
                                                                          [application or designation, whichever is earlier], or if production from other wells is credited to the three-year inactive well, or if a certified well is reported to the commission to be capable of production but is not capable of production. The Comptroller of Public Accounts will be notified of any revocation
                                                                            . [Upon notice from the commission that the certification for a three-year inactive well has been revoked, the tax exemption obtained as a result of such certification shall not apply to oil or gas production from that well sold after the date of notification.] (e) Certified Wells. The commission may not certify a well under this section after February 29, 1996. Prior to applying to the Office of Comptroller for the tax incentives listed in subsection (a), the operator of a certified well shall file with the commission
                                                                              [Certification will be issued upon the filing of] a test report showing [the well's] productive capability for the well
                                                                                . Production is presumed to begin on this
                                                                                  [the] well test date [as reported on a Form W-2, W-10, G-1, or G-10. The ten-year period for tax exemption begins with the date of certification and runs with the well]. The certification remains with the well in the event of a change of operator or ownership.
                                                                                    [A change in ownership or operator status does not renew the exemption period.] 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 October 31, 1995. TRD-9514094 Mary Ross McDonald Acting General Counsel, Office of General Counsel Railroad Commission of Texas Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-7008 Chapter 9. Liquefied Petroleum Gas Division Subchapter A. General Applicability and Requirements 16 TAC sec.9.19 The Railroad Commission of Texas proposes an amendment to sec.9.19, relating to insurance requirements. Section 9.19 describes the insurance requirements for licensees. The commission proposes this action to increase the motor vehicle insurance minimum from $500,000 to $1,000,000 for transports, bobtails, and any other vehicles required to be registered with the commission. The increase would bring Texas' intrastate requirements in line with interstate requirements. The increase was proposed by the Texas Department of Public Safety, the Texas Tank Truck Carriers Association, and the Texas Propane Gas Association. The only substantive change is in the last row of the table, where the amount of insurance for Category C, E, H, and J licensees, and ultimate consumers is proposed to be changed from $500,000 to $1,000,000. Thomas D. Petru, assistant director, LP-Gas Section, Gas Services Division, has determined that for each year of the first five years the section as proposed will be in effect there will be no fiscal implications for state and local governments as a result of enforcing or administering the section. Mr. Petru also has determined that the public benefit anticipated as a result of enforcing the section will be an increase in the protection of the health, safety, and welfare of the general public. There is an anticipated economic cost to small businesses or to persons required to comply. To increase motor vehicle insurance from the $500,000 minimum currently required to the proposed $1,000,00 amount would increase monthly premiums an estimated 10 to 15 percent, but the specific cost will depend on the insurance carrier and the claim history. Comments on the proposals may be submitted to Kellie Martinec, Rules Coordinator, Legal 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. The amendment 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. The Texas Natural Resources Code, sec.113.051 is affected by this proposed amendment. sec.9.19. Insurance Requirements. (a) Pursuant to the Texas Natural Resources Code, Chapter 113, the Railroad Commission of Texas has adopted the minimum amounts of insurance for LP-gas licensees licensed by the State of Texas specified in Table 1 of this section. Applicants shall file or cause to be filed a valid certificate of insurance with the commission before it grants or renews a license, and a valid certificate of insurance shall remain in effect during the entire period that the license is in effect.
                                                                                      Figure 1: 16 TAC sec.9.19(a) (b)-(j) (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 October 31, 1995. TRD-9514093 Mary Ross McDonald Acting General Counsel, Office of General Counsel Railroad Commission of Texas Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-7008 Racing Commission Chapter 305. Licenses for Pari-mutuel Racing Subchapter C. Racetrack Licenses General Provisions 16 TAC sec.305.70 The Texas Racing Commission proposes an amendment to sec.305.70, concerning officials' fees. The amendment increases the amount of compensation paid to the presiding steward and the commission veterinarian at pari-mutuel horse racetracks. The amount of the officials' fee paid by each racetrack is directly related to the amount of compensation paid to these officials. Paula Cochran Carter, General Counsel for the Texas Racing Commission, has determined that for the first five-year period the section is in effect there will be no fiscal implications for local government as a result of enforcing the section. There will be fiscal implications for state government, in that the amount the commission will receive in officials' fees will increase. However, because the amount of the officials' fee is calculated to directly offset the cost to the commission of compensating officials, the net fiscal impact to the state will be neutral. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the officials supervising pari-mutuel horse racing will be of the highest quality. There will be an effect on small businesses in that a pari-mutuel horse racetrack will be required to pay an increased officials' fee for each day of racing. The exact amount of the increase will depend on several factors, such as the number of live race days conducted by the racetrack and the post time for the first race. For a racetrack that conducts four days of live racing per week with an afternoon post time, the officials' fee will be $3,844 per week, compared to the current fee of $3,300 per week. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; and sec.3.07, which authorizes the commission to impose a fee to offset the costs of compensating officials and to set the amount of the compensation by rule. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.305.70. Officials' Fee. (a)-(b) (No change.) (c) The officials' fee at a horse racetrack is based on the actual cost to the commission of compensating the presiding steward and the commission veterinarians. The compensation for these officials is: (1) for the presiding steward, $26 per hour
                                                                                        [$225 per race day, $175 per non-race day, and $100 per day of pre-meet licensing]; and (2) for each
                                                                                          [the primary] commission veterinarian, $28 per hour
                                                                                            [$225 per race day and $175 per non-race day; and [(3) for the secondary commission veterinarian, $200 per race day and $175 per non-race day] . 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 October 24, 1995. TRD-9513979 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 Subchapter D. Suspension and Revocation of Licenses 16 TAC sec.305.241 The Texas Racing Commission proposes an amendment to sec.305.241, concerning the applicability of the commission's rules regarding suspending and revoking licenses. The amendment clarifies that if one occupational license held by a person is suspended, all other occupational licenses issued by the commission to that person are considered suspended. Paula Cochran Carter, General Counsel for the Texas Racing Commission, 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 the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel racing will be of the highest integrity. There will be no effect on small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to revoke and suspend racetrack licenses; and sec.7.04, which authorizes the commission to revoke and suspend occupational licenses. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.305.241. Applicability. (a)-(b) (No change.) (c) Unless specifically ordered otherwise, if the commission, stewards, or racing judges suspend one occupational license held by an individual, all occupational licenses held by that individual are considered suspended for the term of the suspension. 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 October 24, 1995. TRD-9513980 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 Chapter 307. Practice and Procedure Subchapter C. Proceedings by Stewards and Racing Judges Appeals to Commission 16 TAC sec.307.262 The Texas Racing Commission proposes an amendment to sec.307.262, concerning the hearing procedure for appeals from stewards' and judges' rulings. The amendment clarifies the burden of proof in such appeals. Paula Cochran Carter, General Counsel for the Texas Racing Commission, 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 the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that the commission's administrative procedures will be efficient and effective. There will be no effect on small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.3.08, which makes stewards' and judges' decisions appealable under the Administrative Procedure Act; and Texas Government Code, sec.2001.004, which requires the commission to adopt rules of practice for all available formal and informal procedures. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.307.262. Hearing Procedure. (a) (No change.) [(b) The burden of proof is on the person making the appeal to present evidence to sustain the appeal.] (b)
                                                                                              [(c)] In an appeal [regarding the running of a race], the appellant has the burden to prove that the stewards' or racing judges' decision was clearly in error. 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 October 24, 1995. TRD-9513981 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 Chapter 309. Operation of Racetracks Subchapter B. Horse Racetracks Operations 16 TAC sec.309.199 The Texas Racing Commission proposes an amendment to sec.309.199, concerning the horsemen's bookkeeper. The amendment clarifies the documentation that a pari-mutuel horse racetrack may use to evidence authorization to deduct a portion of a horse owner's winnings for payment to an organization of the horse owner's choice. Paula Cochran Carter, General Counsel for the Texas Racing Commission, 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 the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel racing is conducted in accordance with applicable law. There will be no effect on small businesses. There will be no economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to all matters relating to the planning, construction, and operation of racetracks; and sec.6.08, which prohibits a racetrack from deducting any portion from a horse owner's account for payment to an organization except to an organization of the owner's choice. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.309.199. Horsemen's Bookkeeper. (a)-(d) (No change.) (e) An association may not deduct or withhold any percentage of a purse from the account into which the purse paid to a horse owner is deposited for membership payments, dues, assessments, or any other payments to an organization
                                                                                                except an organization of the horse owner's choice. The horse owner's choice may be evidenced by: (1) a written instruction in a document on file with the horsemen's bookkeeper regarding the horse owner's account; or (2) such other indicia of agreement as may be approved by the executive secretary. (f)-(h) (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 October 24, 1995. TRD-9514151 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 Chapter 319. Veterinary Practices and Drug Testing Subchapter B. Treatment of Horses 16 TAC sec.319.111 The Texas Racing Commission proposes an amendment to sec.319.111, concerning the bleeders and furosemide (Lasix) program of the commission. The amendment eliminates the requirement that the commission verify the criteria under which a horse was certified as a bleeder in another state before the horse may be admitted to the Texas bleeder program. Paula Cochran Carter, General Counsel for the Texas Racing Commission, 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 the section. Ms. Carter also has determined that for each of the first five years the section is in effect the public benefit anticipated as a result of enforcing the section will be that pari-mutuel racing will be of the highest caliber, will be conducted with the utmost integrity, and will be safe and humane for the racing animals. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendment is proposed under Texas Civil Statutes, Article 179e, sec.3.02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to all aspects of the operation of pari- mutuel racetracks; and sec.14.03, which authorizes the commission to adopt rules prohibiting the illegal influencing of the outcome of a race. The proposed amendment implements Texas Civil Statutes, Article 179e. sec.319.111. Bleeders and Furosemide (Lasix) Program. (a)-(f) (No change.) (g) A horse that has been confirmed as a bleeder in another racing jurisdiction may be admitted to the furosemide (Lasix) program in this state provided: (1)-(2) (No change.) (3) the trainer requests that the commission veterinarian admit the horse to the furosemide (Lasix) program not later than one hour before post time for the first race on the day the horse is scheduled to race; and (4) the trainer provides written documentation satisfactory to the commission veterinarian that the horse was participating in the furosemide (Lasix) program in that jurisdiction.
                                                                                                  [; and [(5) the commission is able to verify that the criteria used to confirm the horse as a bleeder are substantially equivalent to the criteria in this section.] (h) (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 October 24, 1995. TRD-9513982 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 Chapter 321. Pari-mutuel Wagering Subchapter B. Distribution of Pari-mutuel Pools 16 TAC sec.sec.321.110, 321.111, 321.116, 321.117 The Texas Racing Commission proposes amendments to sec. s321.110, 321.111, 321.116, and 321.117, concerning the distribution of the trifecta, twin trifecta, superfecta, and tri-superfecta pools. The amendments modify the priority of distribution of the pools in the event no ticket is sold correctly selecting all the winning animals, clarify when coupled entries or mutuel fields may start in races with these wagers, and specify when the pool should be canceled because of a small running field. These amendments are proposed to make the rules of the commission regarding similar wagers consistent. Paula Cochran Carter, General Counsel for the Texas Racing Commission, 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. Carter 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 that pari-mutuel wagering will be of the highest caliber and will be conducted with the utmost integrity. 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. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendments are proposed under Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to all aspects of the operation of pari- mutuel racetracks; and sec.11.01, which authorizes the commission to adopt rules regulating pari-mutuel wagering. The proposed amendments implement Texas Civil Statutes, Article 179e. sec.321.110. Trifecta. (a)-(f) (No change.) (g) If no ticket is sold that requires distribution under subsections (e) or (f) of this section, the net pool shall be distributed equally among the holders of tickets selecting the animal finishing first
                                                                                                    [second and third animals with other animals]. (h) If no ticket is sold requiring distribution under subsections (e)-(g) of this section, the net pool shall be distributed equally among the holders of tickets selecting the animals finishing second and third
                                                                                                      [animal finishing first]. (i)-(m) (No change.) (n) If fewer than seven horses of different betting interests leave the paddock for a race on which there is trifecta wagering, the association shall cancel the trifecta wager for that race and refund the entire amount in the pool. sec.321.111. Twin Trifecta. (a)-(g) (No change.) (h) If no ticket is sold that requires distribution under subsections (f) or (g) of this section, the first race pool shall be distributed equally among the holders of tickets selecting the animal finishing first
                                                                                                        [animals finishing second and third]. (i) If no ticket is sold that requires distribution of the first race pool under subsections (f)-(h) of this section, the first race pool shall be distributed equally among the holders of tickets selecting the animals finishing second and third
                                                                                                          [animal finishing first]. (j)-(k) (No change.) (l) If no ticket is sold that requires distribution under subsections (f)-(k) of this section, the twin trifecta pool shall be carried forward to the next consecutive performance and shall be combined with that performance's twin trifecta pool
                                                                                                            . [association shall refund all twin trifecta tickets for that performance. The twin trifecta races shall end and the pool shall be closed for the day.] (m)-(q) (No change.) sec.321.116. Superfecta. (a)-(h) (No change.) (i) A coupled entry or mutuel field may not start in a horse race with superfecta wagering unless the race is a stakes race with a purse of at least $100,000 and there are seven or more wagering interests. (j) If fewer than eight betting interests leave the paddock for a race in which there is superfecta wagering, the association shall cancel the superfecta wager for that race and refund the entire amount in the pool. sec.321.117. Tri-Superfecta. (a)-(g) (No change.) (h) If an animal in the first tri-superfecta race is scratched, all tri- superfecta tickets that include the animal shall be refunded. If an animal in the second tri-superfecta race is scratched, the holders of tickets on the affected animal may exchange the tickets for another selection. The association shall make public announcements, the windows shall be reopened if necessary, and reasonable time shall be given for exchange of tickets. [If an animal in the second tri-superfecta race is prevented from starting, the holders of tickets on the affected animal shall receive a consolation in an amount equal to the payoff of the first tri-superfecta race. The money for the consolation shall be deducted from the pool for the second tri-superfecta race. ] (i) If the first race of the tri-superfecta ends in a dead heat in any of the first three positions, any ticket that selects the correct order of finish, counting an animal in a dead heat as finishing in any of the first three positions, may be exchanged for a second half ticket and the first half pool shall be paid as a place pool. If the second race of the tri-superfecta ends in a dead heat in any of the first four positions, all tickets selecting the correct order of finish, counting an animal in a dead heat as finishing in any of the first four positions, shall be paid one common price.
                                                                                                              [If either race of the tri-superfecta ends in a dead heat, all tri-superfecta tickets selecting an animal finishing in a position dead heated are winning tickets. The pool shall be calculated as a place pool, or if there are multiple dead heats, as a show pool.] (j)-(n) (No change.) [(o) A person may not disclose the number of tickets sold in the tri- superfecta or the number or amount of winning tickets eligible for exchange for the second tri-superfecta race until after the results of the second tri- superfecta race are official.] 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 October 30, 1995. TRD-9513983 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 Subchapter C. Simulcast Wagering General Provisions 16 TAC sec.sec.321.203-321.205 The Texas Racing Commission proposes amendments to sec. s321.203-321.205, concerning the procedure for approving applications for simulcasting. The amendments modify the procedure for applying for and approving simulcasting. Paula Cochran Carter, General Counsel for the Texas Racing Commission, 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. Carter 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 that pari-mutuel wagering on simulcast races will be conducted with the utmost integrity and in accordance with applicable law. 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. Comments on the proposal may be submitted on or before December 7, 1995, to Paula Cochran Carter, General Counsel for the Texas Racing Commission, P.O. Box 12080, Austin, Texas 78711. The amendments are proposed under Texas Civil Statutes, Article 179e, sec.3. 02, which authorize the commission to adopt rules for conducting racing with wagering and for administering the Texas Racing Act; sec.6.06, which authorizes the commission to adopt rules relating to all aspects of the operation of pari- mutuel racetracks; sec.11.01, which authorizes the commission to adopt rules regulating pari-mutuel wagering; and sec.11.011, which authorizes the commission to adopt rules regulating pari-mutuel wagering on simulcast races. The proposed amendments implement Texas Civil Statutes, Article 179e. sec.321.203. Approval of Simulcasts. An association that wishes to serve as a sending racetrack and
                                                                                                                simulcast races conducted by the association shall submit the form of its contract as a sending racetrack
                                                                                                                  [all contracts relating to the simulcast for] to the
                                                                                                                    commission for
                                                                                                                      approval. If the association changes the form of the contract, the association shall submit the changed version of the form to the commission for approval. If an association enters into a contract as a sending racetrack that differs from the form approved by the commission with respect to its responsibilities as a sending racetrack under these rules, the association shall immediately notify the commission in writing.
                                                                                                                        [The association may not simulcast a race until the commission has approved all contracts relating to the simulcasting.] sec.321.204. Approval of Wagering on Simulcast Races. (a) (No change.) (b) Except as otherwise authorized by the commission, a request for simulcasting must be filed not later than three days before the first simulcast race covered by the request. The executive secretary may approve a request for simulcasting [for a period not to exceed 90 days,] subject to rescission of the approval by the commission at its next regular meeting. (c) [The association shall serve a copy of the request on every association licensed to conduct racing for the same species of race animal as the association.] The executive secretary may require the association to submit additional information if the executive secretary determines the additional information is necessary to effectively evaluate the request. (d)-(g) (No change.) sec.321.205. Simulcast Contract.
                                                                                                                          All contracts executed by an association regarding simulcasting are subject to inspection by
                                                                                                                            [the approval of] the commission. An association shall maintain
                                                                                                                              [submit] each contract regarding simulcasting for at least one year after the end of the term of the contract. An association shall make the contract available to the commission on request.
                                                                                                                                [to the commission as soon as possible after the contract is finally executed, but not later than 5:00 p.m. of the third day preceding the simulcast.] 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 October 30, 1995. TRD-9513984 Paula Cochran Carter General Counsel Texas Racing Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 794-8461 TITLE 22. EXAMINING BOARDS Part VI. Texas State Board of Registration for Professional Engineers Chapter 131. Practice and Procedure Bylaws and Definitions 22 TAC sec.131.11 The Texas State Board of Registration for Professional Engineers proposes an amendment to sec.131.11, concerning rules of order. The section is being amended to update the current citation of parliamentary authority governing the meetings of the board. John R. Speed, P.E., Executive Director, 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. Speed 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 the correct reference to the parliamentary authority governing board meetings. There will be no effect on small businesses as a result of enforcing the rule. 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 John R. Speed, P.E., Executive Director, Texas State Board of Registration for Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760. The amendment is proposed under Texas Civil Statutes, Article 3271a, sec.8(a) , which provide the board with the authority to make and enforce all rules and regulations necessary for the performance of its duties. Texas Civil Statutes, Article 3271a, sec.7 is affected by this proposed amendment. sec.131.11. Rules of Order. In its deliberations, the board shall be governed by the current edition of
                                                                                                                                  Robert's Rules of Order Newly Revised
                                                                                                                                    [, revised]. 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 October 31, 1995. TRD-9514074 John R. Speed, P.E. Executive Director Texas State Board of Registration for Professional Engineers Proposed date of adoption: January 10, 1996 For further information, please call: (512) 440-7723 Part IX. Texas State Board of Medical Examiners Chapter 163. Licensure 22 TAC sec.163.1 The Texas State Board of Medical Examiners proposes an amendment to sec.163.1, concerning definitions. Changes made through Senate Bill 1301, 74th Legislature require amendment to this section. Tim Weitz, general counsel, 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. Mr. Weitz 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 clarification of rules so as to be in compliance with statute. There will be no effect on small businesses. There is be no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.sec.3.01(c), 3.03, 3.0305, 3.04, and 3.05 is affected by this amendment. sec.163.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the contents clearly indicate otherwise. [Ability to communicate in the English language-An applicant who has passed the Educational Council for Foreign Medical Graduates (ECFMG) English test within three attempts. The Executive Director will review on a case-by-case basis the application of any applicant who did not pass the ECFMG English test within three attempts and it will be at his discretion to evaluate the applicant's eligibility for licensure.] Eligible for licensure in country of graduation-An applicant must be eligible
                                                                                                                                      [who has completed all requirements] for licensure in the country in which the medical school is located except for any citizenship requirements. Examinations accepted by the board for licensure by endorsement- (A)-(D) (No change.) (E) National Board of Osteopathic Medical Examiners Examination (NBOME) or its successor
                                                                                                                                        ; (F) Medical Council of Canada Examination (LMCC) or its successor
                                                                                                                                          ; (G) state board examination (with the exception of Florida, Virgin Islands, Guam, Tennessee Osteopathic Board or Puerto Rico after June 30, 1963)[and Special Purpose Examination (SPEX)]; or (H) (No change.) Examinations administered by the board for licensure by examination-To be eligible for licensure by examination an applicant must sit for the required examination administered by the board and pass with a score of 75 or better on each part. All steps or components must be passed within seven years. The board shall administer Step 3 of the United States Medical Licensing Examination (USMLE) [after December 31, 1993; the Federation Licensing Examination (FLEX), before January 1, 1994;] and the Texas medical jurisprudence examination in writing at times and places as designated by the board. Substantially equivalent to a Texas medical school -A medical school or college located outside the United States or Canada must be an institution of higher learning designed to select and educate medical students; provide students with the opportunity to acquire a sound basic medical education through training in basic sciences and clinical sciences; to provide advancement of knowledge through research; to develop programs of graduate medical education to produce practitioners, teachers, and researchers; and to afford opportunity for postgraduate and continuing medical education. The school must provide resources, including faculty and facilities, sufficient to support a curriculum offered in an intellectual environment that enables the program to meet these standards. The faculty of the school shall actively contribute to the development and transmission of new knowledge. The medical school shall contribute to the advancement of knowledge and to the intellectual growth of its students and faculty through scholarly activity, including research. The medical school shall include, but not be limited to, the following characteristics: (A)-(E) (No change.) (F) All medical or osteopathic medical education received by the applicant in the United States must be accredited by an accrediting body officially recognized by the United States Department of Education as the accrediting body for medical education leading to the doctor of medicine degree or the doctor of osteopathy degree in the United States. This subsection does not apply to postgraduate medical education or training.
                                                                                                                                            [All allopathic or osteopathic medical education instruction taught in the United States must be accredited by an accrediting body officially recognized by the United States Department of Education and the council on Postsecondary Accreditation as the accrediting body for medical education leading to the doctor of medicine degree or the doctor of osteopathy degree in the United States.] (G) An applicant who is unable to comply with the requirements of subparagraph (F) of this definition is eligible for an unrestricted license if the applicant: (i) received such medical education in a hospital or teaching institution sponsoring or participating in a program of graduate medical education accredited by the Accrediting Council for Graduate Medical Education, the American Osteopathic Association, or the Texas State Board of Medical Examiners in the same subject as the medical or osteopathic medical education if the hospital or teaching institution has an agreement with the applicant's school; or (ii) is specialty board certified by a board approved by the American Osteopathic Association or the American Board of Medical Specialties. 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 November 1, 1995. TRD-9514127 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 22 TAC sec.163.15 The Texas State Board of Medical Examiners proposes new s163.15, concerning licensure. The proposed new section will assist in answering questions regarding those physicians who practice administrative medicine and those who have not had direct patient care in several years. Tim Weitz, general counsel, 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. Mr. Weitz 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 clarification of rules regarding physicians practicing administrative medicine. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The new section is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.3.03(g) is affected by this new section. sec.163.15. Active Practice of Medicine. (a) All applicants for licensure by endorsement shall provide sufficient documentation to the board that the applicant has, on a full-time basis, actively diagnosed or treated persons or has been on the active teaching faculty of an acceptable approved medical school, within each of the last two years preceding receipt of an application for licensure by endorsement. (b) The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year. (c) Applicants who do not meet the requirements of subsections (a) and (b) of this section may, in the discretion of the board, be eligible for an unrestricted license or a restricted license subject to one or more of the following conditions or restrictions: (1) current certification or recertification by the American Board of Medical Specialties or Advisory Board for Osteopathic Specialties; (2) passage of the SPEX examination; (3) completion of specified continuing medical education hours approved for Category I credits by the American Medical Association or the American Osteopathic Association; (4) limitation of the practice of the applicant to specified activities of medicine and/or exclusion of specified activities of medicine; (5) remedial education, including but not limited to a mini-residency, fellowship or other structured program; (6) such other remedial or restrictive conditions or requirements which, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice medicine. 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 November 1, 1995. TRD-9514128 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 Chapter 166. Physician Registration 22 TAC sec.166.3 The Texas State Board of Medical Examiners proposes an amendment to sec.166.3, concerning retired physicians returning to active practice. Tim Weitz, general counsel, 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. Mr. Weitz 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 to ensure that only qualified physicians return to the active practice of medicine. There will be no effect on small businesses. There is a possible cost to those persons required to comply with the section as proposed if passage of an examination is required. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.3.01, is affected by this amendment. sec.166.3. Retired Physician Exception. The annual registration fee shall apply to all physicians licensed by the board, whether or not they are practicing within the borders of this state, except retired physicians. (1)-(2) (No change.) (3) A physician whose license has been placed on official retired status must obtain the approval of the board before returning to active status by submitting a written request to the attention of the Permits Department of the board which indicates the following: (A) the physician's Texas medical license number; (B) current mailing address; (C) proposed practice location; (D) intended type of medical practice; (E) length of retired status; (F) any other medical licenses held; (G) any condition which adversely affects the physician's ability to practice medicine with reasonable skill and safety; (H) any current specialty board certifications; and, (I) any formal or informal continuing medical education obtained during the period of retired status. [(3) A physician whose license has been placed on official retired status must obtain the approval of the board before returning to active status. The physician shall then pay all previous exempt annual registration fees. Also, if the physician has been on a retired status five years or longer, he or she must: [(A) pass SPEX; or [(B) be specialty-certified or recertified within the last ten years by a specialty board approved by this board that is a member of the American Board of Medical Specialties or the Advisory Board of Osteopathic Specialists.] (4) The request of a physician seeking a return to active status whose license has been placed on official retired status for two years or longer shall be submitted to the Executive Committee of the board for consideration and a recommendation to the full board for approval or denial of the request. After consideration of the request and the recommendation of the Executive Committee, the board shall grant or deny the request subject to such conditions which the board determines are necessary to adequately protect the public including but not limited to passage of the Special Purpose Examination (SPEX), passage of the Medical Jurisprudence Examination, and/or passage of a specialty board certification examination. (5) The request of a physician seeking a return to active status whose license has been placed on official retired status for less than two years may be approved by the executive director of the board or submitted by the executive director to the Executive Committee for consideration and a recommendation to the full board for approval or denial of the request. In those instances in which the executive director submits the request to the Executive Committee of the board, the Executive Committee shall make a recommendation to the full board for approval or denial. After consideration of the request and the recommendation of the Executive Committee, the board shall grant or deny the request subject to such conditions which the board determines are necessary to adequately protect the public including but not limited to passage of the Special Purpose Examination (SPEX), passage of the Medical Jurisprudence Examination, and/or passage of a specialty board certification examination. (6) In evaluating a request to return to active status, the Executive Committee or the full board may require a personal appearance by the requesting physician at the offices of the board, and the full board may require a physical or mental examination by one or more physicians or other health care providers approved in advance in writing by the executive director, the secretary- treasurer, the executive committee, or other designee(s) determined by majority vote of the board. 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 November 1, 1995. TRD-9514129 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 Chapter 177. Certification of Nonprofit Health Corporations 22 TAC sec.177.1 (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 Texas State Board of Medical Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.) The Texas State Board of Medical Examiners proposes the repeal of sec.177. 1, concerning certification of non-profit health corporations. Extensive rewrite of the section was felt necessary; therefore, this repeal with simultaneous proposal of a new section is submitted. Tim Weitz, general counsel, has determined that for the first five-year period the repeal is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the repeal. Mr. Weitz also has determined that for each year of the first five years the repeal is in effect the public benefit anticipated as a result of enforcing the repeal will be clarification of the rules by omission of existing language. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the repeal as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The repeal is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.5.01 is affected by this repeal. sec.177.1. Certification of Non-Profit Corporations. 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 November 1, 1995. TRD-9514131 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 Chapter 177. Certification of Nonprofit Health Organizations 22 TAC sec.sec.177.1-177.15 The Texas State Board of Medical Examiners proposes new ssec.177.1-177.15, regarding the certification of non-profit health organizations. Extensive rewrite was felt necessary; therefore, this new section is proposed with simultaneous repeal of existing language. Tim Weitz, general counsel, has determined that for the first five-year period the sections are in effect the fiscal implications will not include an increase or decrease in revenue for the state, but certification and renewal fees are anticipated to offset the costs of regulating non-profit health organizations. Mr. Weitz also has determined that for each year of the first five years the sections as proposed are in effect the public benefits anticipated as a result of enforcing the section will be to more clearly define the certification procedures for non-profit health organizations and the mechanisms for regulation by the Texas State Board of Medical Examiners. The proposed rules also outline proper documentation to be submitted, as well as fee requirements and biennial recertification requirements. There will be some effect on small businesses. The effect on small businesses is expected to include fiscal impacts related to certification fees, renewal fees, and legal expenses which can be anticipated to be less than $10,000 per year for each business during the first five years that the proposed section is in effect. This effect is expected to be the same as the impact on large businesses based on the certification fees, renewal fees, and legal fees of approximately $200 per hour. There is a cost of $2,500 for initial certification and $500 for biennial recertification to persons who are required to comply with the sections as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The new sections are proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.5.01, is affected by these new sections. sec.177.1. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the contents clearly indicate otherwise. Act-The Texas Medical Practice Act. Actively engaged in the practice of medicine -The physician is engaged in diagnosing, treating or offering to treat any mental or physical disease or disorder or any physical deformity or injury or performing such actions with respect to individual patients for compensation and shall include clinical medical research, the practice of clinical investigative medicine, the supervision and training of medical students or residents in a teaching facility or program approved by the Liaison Committee on Medical Education of the American Medical Association, the American Osteopathic Association or the Accreditation Council for Graduate Medical Education, and professional managerial, administrative, or supervisory activities related to the practice of medicine or the delivery of health care services. Board of Directors -The board of the Health Organization whether referred to as the board of directors, the board of trustees or other title. Chief Executive Officer-The officer of the Health Organization authorized in the articles of incorporation, the bylaws, or otherwise, to perform the functions of the principal executive officer, irrespective of the name by which such officer may be designated by the Health Organization. Director-A member of the Board of Directors whether referred to as a director, trustee or other title. Member-A member of the Health Organization. Health Organization -An applicant for or holder of certification from the Texas State Board of Medical Examiners under the Act, sec.5.01(a). Rules-The rules promulgated by the Texas State Board of Medical Examiners pursuant to the Act. Supplier- (A) A physician retained to provide medical services to or on behalf of the Health Organization; and (B) any other person providing or anticipated to provide services or supplies to or on behalf of the Health Organization in excess of $10,000 during a 12- month period. sec.177.2. Initial Certification.
                                                                                                                                              Any Health Organization meeting the qualifications specified in sec.177.3 of this title (relating to Qualifications for Certification) may seek certification by the Texas State Board of Medical Examiners under the Act, sec.5.01(a), by the submission of an application as provided in sec.177.4 of this title (relating to Applications for Certification). sec.177.3. Qualifications for Certification. A Health Organization meeting the following qualifications shall be certified by the Texas State Board of Medical Examiners: (1) the Health Organization is formed solely by persons licensed by the Texas State Board of Medical Examiners; (2) the Health Organization is a non-profit corporation under the provisions of the Texas Non-profit Corporation Act; (3) the Board of Directors of the Health Organization consists solely of persons licensed by the Texas State Board of Medical Examiners and actively engaged in the practice of medicine; (4) the Health Organization is not established or organized or operated in contravention to or with the intent to circumvent any of the provisions of the Act; and (5) the Health Organization makes application, submits reports, pays fees and otherwise complies with the provisions of this chapter. sec.177.4. Applications for Certification. A Health Organization seeking certification shall submit an application to the Texas State Board of Medical Examiners, attention permits department, on a form approved by the Texas State Board of Medical Examiners, which application shall include: (1) Initial Identification Statement. A statement signed and verified by the chief executive officer: (A) indicating the name and mailing address of the Health Organization; (B) indicating the names and mailing addresses of all Member(s) or that there are no Member(s); (C) indicating the names and mailing addresses of all Officers; and (D) indicating the names and mailing addresses of all Directors. (2) Initial Document Statement. A statement signed and verified by the chief executive officer attaching a copy of the current certificate of incorporation of the Health Organization and attaching a copy of the current by-laws of the Health Organization including provision that: (A) the Health Organization is organized for any or all of the following purposes: (i) the carrying out of scientific research and research projects in the public interest in the fields of medical sciences, medical economics, public health, sociology, and related areas; (ii) the supporting of medical education in medical schools through grants and scholarships; (iii) the improving and developing of the abilities of individuals and institutions studying, teaching, and practicing medicine; (iv) the delivery of health care to the public; (v) the engaging in the instruction of the general public in the area of medical science, public health, and hygiene and related instruction useful to the individual and beneficial to the community; (B) the physician(s) organizing and incorporating the Health Organization shall select the initial Board of Directors consistent with the mission, goals, and purposes of the Health Organization; (C) the by-laws of the Health Organization shall be interpreted in a manner that reserves to the Health Organization through its retained physicians the sole authority to engage in the practice of medicine and reserves to the Health Organization through its Board of Directors the sole authority to direct the medical, professional, and ethical aspects of the practice of medicine; (D) each Director is required to immediately report to the Texas State Board of Medical Examiners any action or event which such Director reasonably and in good faith believes constitutes a violation or attempted violation of the Act or the Rules; (E) each Director is required to individually disclose to the Member(s) , if any, and to the Board of Directors (at the times of nomination and appointment) and to the Texas State Board of Medical Examiners (at the times of initial application and biennial reports) the identity of each financial relationship known to such Director, if any, which such Director has with any Member, any other Director, any Supplier of the Health Organization or any affiliate of any Member, other Director, or Supplier of the Health Organization, and to provide a concise explanation of the nature of each such financial relationship; (F) the termination of the retention of any physician to provide medical services on behalf of the Health Organization during such physician's term of retention may be accomplished only by the Board of Directors or its physician designee(s) and such termination shall be subject to due process procedures adopted by the Board of Directors or its physician designee(s) or provided by the retention agreement between the Health Organization and the subject physician. (3) Initial Director Statements. Statements signed and verified by each current Director indicating that: (A) such Director is licensed by the Texas State Board of Medical Examiners; (B) such Director is actively engaged in the practice of medicine; (C) such Director will, as a Director, exercise independent judgment in all matters and, specifically, matters relating to credentialing, quality assurance, utilization review, peer review, and the practice of medicine; (D) such Director will, as a Director, exercise best efforts to cause the Health Organization to comply with all relevant provisions of the Act and the Rules; (E) such Director will, as a Director, immediately report to the Texas State Board of Medical Examiners any action or event which such Director reasonably and in good faith believes constitutes a violation or attempted violation of the Act or the Rules; and (F) such Director has disclosed within such Director's statement the identity of all of such Director's financial relationships, if any, of the type described in paragraph (2)(E) of this section and provided a concise explanation of the nature of each such financial relationship within such Director's statement. (4) Initial Compliance Statement. A statement signed and verified by the chief executive officer indicating that the Health Organization is in compliance with the requirements for certification and continued certification as required by the provisions of the Act and the Rules. (5) Initial Fee Payment. A fee in the amount and form specified by the Rules. sec.177.5. Special Requirements.
                                                                                                                                                In addition to the general by-law requirements set forth herein for Health Organizations seeking certification, any Health Organization in which a Member is either a person who is not a physician actively engaged in the practice of medicine or an entity or organization that is not wholly owned and controlled by physicians actively engaged in the practice of medicine must comply with the following requirement: (1) All credentialing, quality assurance, utilization review and peer review policies shall be made exclusively by the Board of Directors; however, following consultation with the Board of Directors, the Member(s) may retain the right to approve, or in the case of a Health Organization seeking to obtain or maintain tax exempt status the right to make, any financial decision of the Health Organization including, but not limited to, decisions regarding capital and operating budgets, physician compensation and benefits, expenditures of monies, and managed care contracts in which the Health Organization is at financial risk, the substance of which requirements shall be provided for in the by-laws of the Health Organization. (2) Subsequent to the appointment of the initial Board of Directors, a Member may not appoint or elect any Director without the approval of at least a majority of the Board of Directors unless required by law including requirements to obtain or maintain tax exemption. (3) Without the approval of at least a majority of the Board of Directors, the Member may not unilaterally amend the bylaws of the Health Organization unless required by law including requirements to obtain or maintain tax exemption. sec.177.6. Biennial Report.
                                                                                                                                                  Each Health Organization certified under the Act, sec.5.01(a), shall file with the Texas State Board of Medical Examiners a Biennial Report in September of each odd numbered year if certified in an odd numbered year, and in September of each even numbered year if certified in an even numbered year, and the Biennial Report shall include: (1) Biennial Identification Statement. A statement signed and verified by the chief executive officer: (A) indicating the name and mailing address of the Health Organization; (B) indicating the names and mailing addresses of all Member(s) or that there are no Member(s); (C) indicating the names and mailing addresses of all Officers; (D) indicating the names and mailing addresses of all Directors; and (E) disclosing any changes in the composition of the Board of Directors since the last biennial report. (2) Biennial Document Statement. A statement signed and verified by the chief executive officer attaching a copy of the current certificate of incorporation and by-laws of the Health Organization if not already on file with the Texas State Board of Medical Examiners and indicating: (A) whether or not the by-laws or articles of incorporation of the Health Organization have been revised since the last biennial report; (B) whether or not such revisions, if any, were recommended or approved by the Board of Directors; and (C) a concise explanation of such revisions, if any. (3) Biennial Director Statements. Statements signed and verified by each current Director indicating that: (A) such Director is licensed by the Texas State Board of Medical Examiners; (B) such Director is actively engaged in the practice of medicine; (C) such Director will, as a Director, exercise independent judgment in all matters and, specifically, matters relating to credentialing, quality assurance, utilization review, peer review, and the practice of medicine; (D) such Director will, as a Director, exercise best efforts to cause the Health Organization to comply with all relevant provisions of the Act and the Rules; (E) such Director will, as a Director, immediately report to the Texas State Board of Medical Examiners any action or event which such Director reasonably and in good faith believes constitutes a violation or attempted violation of such Act or the Rules; and (F) such Director has disclosed within such Director's statement the identity of all of such Director's financial relationships, if any, of the type described in sec.177.4(a)(2)(E) of this title (relating to Applications for Certification) and provided a concise explanation of the nature of each such financial relationship within such Director's statement. (4) Biennial Compliance Statement. A statement signed and verified by the chief executive officer indicating that the Health Organization is in compliance with the requirements for certification and continued certification as required by the provisions of the Act and the Rules. (5) Biennial Fee Payment. A fee in the amount and form specified by the Rules. sec.177.7. Establishment of Fees. The fees established pursuant to the Act, sec.2.09(k) and the Rules for certification and continued certification shall be as follows. (1) Initial Fee. In addition to all other requirements for certification under the Act, sec.5.01(a), and the Rules, to obtain certification, the Health Organization shall submit a fee of $2,500 in the form of a check or money order payable to the Texas State Board of Medical Examiners. (2) Biennial Fee. In addition to all other requirements for continued certification under the Act, sec.5.01(a), and the Rules, to maintain certification, at the time of submission of the Biennial Report, the Health Organization shall submit a fee of $500 in the form of a check or money order payable to the Texas State Board of Medical Examiners. (3) Refunds. Fees shall not be refundable. sec.177.8. Failure to Submit Reports or Fees.
                                                                                                                                                    The failure of a Health Organization seeking certification under the Act, sec.5.01(a), and the Rules to submit any required fee shall be grounds for the Texas State Board of Medical Examiners to stop the processing of the application for certification and to deny the application. The failure of a Health Organization which is certified under the Act, sec.5.01(a), and the Rules to timely submit an accurate Biennial Report along with any required fee shall be grounds for decertification pursuant to section 177.12 of this title (relating to Review of Applications and Reports). sec.177.9. Migrant, Community or Homeless Health Centers. Migrant, community or homeless health centers who wish to employ physicians shall make application and present the required proof to the permits department of the Texas State Board of Medical Examiners for approval. (1) A written request by each health center's chief executive officer will suffice as the application. (2) The following documentation shall be submitted: (A) A copy of the certificate of incorporation under the Texas Non-Profit Corporation Act; and (B) written proof of a determination by the Internal Revenue Service that the Health Organization is tax exempt under the Internal Revenue Code pursuant to sec.501(c)(3). sec.177.10. Denial of Certification. Subject to due process procedures, the Texas State Board of Medical Examiners may, at its discretion, refuse to approve and certify any such Health Organization making application to the Board of Directors if in the board's determination the applying Health Organization is established or organized or operated in contravention to or with the intent to circumvent any of the provisions of the Act. sec.177.11. Revocation of Certification. Subject to due process procedures, the Texas State Board of Medical Examiners shall revoke an approval or certification if in the board's determination the Health Organization is established, organized, or operated in contravention of or with the intent to circumvent any of the provisions of the Act. sec.177.12. Review of Applications and Reports. Applications for certification and biennial reports under this section shall be initially reviewed by the permits and legal staffs of the Texas State Board of Medical Examiners or other designees of the Texas State Board of Medical Examiners to determine compliance with the requirements for certification. If upon review of the application or statement and any supporting documentation, the applying or reporting Health Organization appears to be in compliance for certification or continued certification, such certification shall be made upon approval of the Texas State Board of Medical Examiners or a committee of the Texas State Board of Medical Examiners. In the event that such compliance cannot be determined or is otherwise in question for any reason including complaints of actions by the Health Organization in contravention of this section or the Act, the application or statement and any supporting documentation shall be submitted to the Texas State Board of Medical Examiners or a committee of the Texas State Board of Medical Examiners for further review, investigation, and approval or denial. If an application for certification is denied or an insufficient biennial report results in decertification, the Health Organization shall be notified in writing of the basis for the denial or decertification, and the Health Organization may attempt to correct the deficiency, address any complaint, and resubmit the certification application or reporting statement without paying an additional fee if resubmitted within 60 days of the date of the mailing of the denial or decertification letter. If a biennial reporting statement is insufficient or there appears to be a basis for decertification, the Health Organization shall be notified in writing of the potential basis for decertification, and the Health Organization may attempt to correct the deficiency or potential basis for decertification without paying an additional fee if the corrective action is taken and the reporting statement is resubmitted within 60 days of the date of the mailing by the Texas State Board of Medical Examiners of the written explanation regarding the deficiency or apparent basis for decertification. If the deficiency or apparent basis for decertification is not remedied or adequately explained, and the corrected reporting statement submitted within the 60 day period, the Health Organization shall be decertified at the next meeting of the Texas State Board of Medical Examiners. sec.177.13. Procedure for Denial of Certification or Decertification. Denial of an application for certification or decertification of a Health Organization for failure to comply with the provisions of this section shall follow the procedures set forth in sec.177.8 of this title (relating to Failure to Submit Reports or Fees) and sec.177.12 of this title (relating to Review of Applications and Reports). sec.177.14. Approved Form.
                                                                                                                                                      A Health Organization seeking certification under the Act, sec.5.01(a), shall submit an application on a board-approved form. sec.177.15 Compliance Date.
                                                                                                                                                        Health Organizations certified prior to the effective date of this chapter shall be required to be in compliance with these provisions no later than September 1, 1996. Health Organizations applying for certification after the effective date of this chapter shall be required to meet the requirements of these provisions as a prerequisite for certification. 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 November 1, 1995. TRD-9514130 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 Chapter 183. Acupuncturists 22 TAC sec.183.2 The Texas State Board of Medical Examiners proposes an amendment to sec.183.2, related to the definition of acceptable approved acupuncture school. Tim Weitz, general counsel, 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. Mr. Weitz also has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result will be to create a higher standard for acceptable acupuncture schools. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The amendment is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. In addition, the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.6.05(a), authorizes the Texas State Board of Medical Examiners to approve rules recommended by the Texas State Board of Acupuncture Examiners. Article 4495b, sec.6.07, is affected by this amendment. sec.183.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the content clearly indicates otherwise. Acceptable approved acupuncture school-Effective January 1, 1996, (A) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was a candidate for accreditation by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine (NACSCAOM), offered no more than a certificate upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following: (i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications, and therapeutic combinations of herbs; (ii) herbal formulas including traditional herbal formulas and their modification/variations based on traditional methods of herbal therapy; (iii) patent herbs including the names of the more common patent herbal medications and their uses; and (iv) clinical training emphasizing herbal uses; or (B) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was accredited by NACSCAOM, offered a masters degree upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following: (i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications, and therapeutic combinations of herbs; (ii) herbal formulas including traditional herbal formulas and their modifications or variations based on traditional methods of herbal therapy; (iii) patent herbs including the names of the more common patent herbal medications and their uses; and (iv) clinical training emphasizing herbal uses; or (C) a school of acupuncture located outside the United States or Canada that is determined by the board to be substantially equivalent to a school defined in subparagraph (B) of this paragraph through an evaluation by a board- approved credential evaluation service; and (D) the requirements of this section shall be in addition to the requirements of the Medical Practice Act, sec.6.07, subsection (c), and shall be construed and applied so as to be consistent with the Act. [(A) Effective November 1, 1995, a school of acupuncture located in the United States or Canada which was a candidate for accreditation, at the time of the applicant's graduation, by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine (NACSCAOM) and offered no more than a certificate upon graduation; or [(B) a school of acupuncture located in the United States or Canada which was accredited by NACSCAOM, at the time of the applicant's graduation, and offered a masters degree upon graduation; or [(C) a school of acupuncture located outside the United States or Canada that is determined by the board to be substantially equivalent to a school defined in subparagraph (B) of this paragraph through an evaluation by a board-approved credential evaluation 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 November 1, 1995. TRD-9514132 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 22 TAC sec.183.20 The Texas State Board of Medical Examiners proposes new s183.20, concerning Texas acupuncture schools. The proposal will outline requirements for owners of acupuncture schools in Texas. Tim Weitz, general counsel, 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. Mr. Weitz 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 to more clearly define what is required of school owners and to make students more aware of the criteria for acceptable acupuncture schools in Texas. There will be minimal effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The new section is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provides the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. In addition, the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.6.05(a) authorizes the Texas State Board of Medical Examiners to approve rules recommended by the Texas State Board of Acupuncture Examiners. Article 4495b, sec.6.07, is affected by this new section. sec.183.20. Texas Acupuncture Schools. (a) A licensed Texas acupuncturist operating an acupuncture school in Texas which has not yet been accredited by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine (NACSCAOM) or reached candidate status for accreditation by NACSCAOM, a licensed Texas acupuncturist with any ownership interest in such a school, or a licensed Texas acupuncturist who teaches in or operates such a school, shall ensure that students of the school and applicants to the school are made aware of the provisions of the Medical Practice Act governing acupuncture practice, the rules and regulations adopted by the Texas State Board of Acupuncture Examiners, and the educational requirements for obtaining a Texas acupuncture license to include the rules and regulations establishing the criteria for an approved acupuncture school for purposes of licensure as an acupuncturist by the Texas State Board of Acupuncture Examiners as set forth in subsection (b) of this section. (b) Compliance with the provisions of subsection (a) of this section shall be accomplished by providing students and applicants with a copy of Subchapter F of the Medical Practice Act, a copy of Chapter 183 (Acupuncture) contained in the Rules of the Texas State Board of Medical Examiners, and the following typed statement:
                                                                                                                                                          Figure 1 22 TAC sec.183.20(b) (c) A licensed Texas acupuncturist who operates, teaches at, or owns, in whole or in part, a Texas acupuncture school which is not accredited by NACSCAOM or is not a candidate for NACSCAOM accreditation shall not state directly or indirectly, explicitly or by implication, orally or in writing, either personally or through an agent of the acupuncturist or the school, that the school is endorsed, accredited, registered with, affiliated with, or otherwise approved by the Texas State Board of Acupuncture Examiners for any purpose. (d) Failure to comply with the requirements or abide by the prohibitions of this section shall be grounds for disciplinary action against a licensed Texas acupuncturist who operates, teaches at, or owns, in whole or in part, a Texas acupuncture school which is not accredited by NACSCAOM or is not a candidate for NACSCAOM accreditation. Such disciplinary action shall be based on the violation of a rule of the Texas State Board of Acupuncture Examiners as provided for in the Medical Practice Act, sec.6.11(a)(5). 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 November 1, 1995. TRD-9514133 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 Chapter 187. Procedure Subchapter D. Posthearing 22 TAC sec.187.41 The Texas State Board of Medical Examiners proposes new s187.41, concerning recusal from participation or voting in matters brought before the board. Tim Weitz, general counsel, 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. Mr. Weitz 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 to clarify those instances when a board member may be recused from participating in business of the board. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed. Comments on the proposal may be submitted to Pat Wood, P.O. Box 149134, Austin, Texas 78714-9134. A public hearing will be held at a later date. The new section is proposed under the Medical Practice Act, Texas Civil Statutes, Article 4495b, sec.2.09(a), which provide the Texas State Board of Medical Examiners with the authority to make rules, regulations and bylaws not inconsistent with this Act as may be necessary for the governing of its own proceedings, the performance of its duties, the regulation of the practice of medicine in this state, and the enforcement of this Act. Article 4495b, sec.2.09, is affected by this new section. sec.187.41. Recusals. (a) Before or during any meeting or portion of a meeting of the board or board committee, a board member may choose to be recused from participating or voting in any contested or uncontested matter for any reason and shall not be required to state the basis for recusal, but may choose to state the basis in general terms if such a statement will not prejudice the rights of any party to a fair proceeding before the board or committee of the board. In the event a board member discloses a basis for recusal which could potentially prejudice the rights of any party to a fair proceeding, the presiding officer of the board or committee may cure any such prejudice by an instruction to board or committee members to not consider the statement during the course of the proceeding or during deliberations or discussions related to the proceeding. (b) A board member should exercise sound discretion in choosing to be recused from participation and voting in any contested matter in which the board member is predisposed either for or against a party based on matters which are not part of the administrative record, and should choose to be recused from any matter in which the board member cannot set aside the predisposition whether the predisposition be for or against a party to the contested matter. (c) A board member shall not be subject to a motion for recusal from any party and shall not be involuntarily recused from participation and voting in a contested matter, but may voluntarily choose to be recused if a potential ground for recusal is raised by any party to the proceeding, any member of the board, or any member of a board committee. (d) In any instance in which a ground for recusal is raised by any party to a proceeding, any member of the board, or any member of a board committee, the board member who may have a basis for recusal may generally explain the potential basis for recusal and obtain the oral or written consent of the parties to the proceeding to participate and vote in the pending matter. (e) Upon exercising the right to be recused and announcement of the recusal in open session, any board member so recused shall be allowed to remain in the room during any portion of the related proceeding, but shall not participate in any discussions, questioning, deliberations, or vote pertaining to the proceeding. 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 November 1, 1995. TRD-9514134 Bruce A. Levy, M.D., J.D. Executive Director Texas State Board of Medical Examiners Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 834-7728 TITLE 28. INSURANCE Part I. Texas Department of Insurance Chapter 1. General Administration Subchapter C. Maintenance Taxes and Fees 28 TAC sec.1.414 The Texas Department of Insurance proposes an amendment to sec.1.414, concerning assessment of maintenance taxes and fees for payment in 1996. The amendment is necessary to adjust the rates of assessment for maintenance taxes and fees for 1996 on the basis of gross premium receipts for calendar year 1995 or on some other designated basis. Section 1.414 set rates of assessment and applies those rates to life, accident, and health insurance; motor vehicle insurance; casualty insurance, and fidelity, guaranty and surety bonds; fire insurance and allied lines, including inland marine; workers' compensation insurance; title insurance; health maintenance organizations; third party administrators; and corporations issuing prepaid legal services contracts. Carroll Fuchs, director of accounting for the department, has determined that for the first five-year period the proposed section is in effect, there will be no fiscal implications for local government as a result of enforcing or administering the proposed amended section, and there will be no effect on local employment or local economy. The anticipated fiscal impact on state government is estimated income of $39,032,630 to the state's general revenue fund. Mr. Fuchs also has determined that for each year of the first five years the proposed amended section is in effect, the public benefit anticipated as a result of enforcing the section will be facilitation in the collection of maintenance tax and fee assessments. Based on a cost-per-hour of labor basis, the cost of compliance for small businesses affected by the proposed section should be the same as the cost of compliance for large businesses. Actual reasonable costs for processing and administration may vary among persons required to comply with this proposed section, but should not exceed 5.0% of the amount assessed. Comments on the proposal must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Alicia M. Fechtel, General Counsel and Chief Clerk, Mail Code #113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments should be submitted to Carroll Fuchs, Director of Accounting, Mail Code #108-3A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714- 9104. Request for a public hearing on this proposal should be submitted separately in writing to the Chief Clerk's Office. The amendment is proposed under the Insurance Code, Articles 4.17, 5.12, 5. 24, 5.49, 5.68, 9.46, 21.07-6 sec.21, 23.08A, 1.03A, and Article 20A.33 (the Texas Health Maintenance Organization Act), which provides authorization for the Texas Department of Insurance to assess maintenance taxes and fees for the lines of insurance and related activities specified in amended sec.1.414. Article 4.17 establishes a maintenance tax based on insurance premiums for life, accident, and health coverage and the gross considerations for annuity and endowment contracts. Article 5.12 establishes a maintenance tax based on insurance premiums for motor vehicle coverage. Article 5.24 establishes a maintenance tax based on insurance premiums for casualty insurance and fidelity, guaranty and surety bonds coverage. Article 5.49 establishes a maintenance tax based on insurance premiums for fire and allied lines coverage, including inland marine. Article 5.68 establishes a maintenance tax based on insurance premiums for workers' compensation coverage. Article 9.46 establishes a maintenance fee based on insurance premiums for title coverage. Article 21.07-6, sec.21 establishes a maintenance tax based on the gross amount of administrative or service fees for third party administrators. Article 23. 08A establishes a maintenance tax based on gross revenue of corporations issuing prepaid legal service contracts. The Texas Health Maintenance Organization Act, sec.33 (codified at the Insurance Code, Article 20A.33), establishes an annual tax based on the gross amounts of revenues collected for the issuance of health maintenance certificates or contracts. Article 1.03A authorizes the commissioner of insurance to adopt rules and regulations for the conduct and execution of the duties and functions of the department as authorized by statute. The following articles of the Insurance Code are affected by this rule: Articles 4.17, 5.12, 5.24, 5.49, 5.68, 9.46, 21.07-6, sec.sec.21, 21.46, 21.54, and 23.08A; and the Texas Health Maintenance Organization Act, sec.33, (codified at Article 20A.33). sec.1.414. Assessment of Maintenance Taxes and Fees, 1996 [1995]. (a) The following rates for maintenance taxes and fees are assessed on gross premiums of insurers for calendar year 1995
                                                                                                                                                            [1994] for the lines of insurance specified in paragraphs (1)-(5) of this subsection
                                                                                                                                                              [as follows]: (1) for motor vehicle insurance, pursuant to the Insurance Code, Article 5.12, the rate is .055
                                                                                                                                                                [.068] of 1.0%; (2) for casualty insurance, and fidelity, guaranty and surety bonds, pursuant to the Insurance Code, Article 5.24, the rate is . 209
                                                                                                                                                                  [.319] of 1.0%; (3) for fire insurance and allied lines, including inland marine, pursuant to the Insurance Code, Article 5.49, the rate is .436
                                                                                                                                                                    [.656] of 1.0%; (4) for workers' compensation insurance, pursuant to the Insurance Code, Article 5.68, the rate is . 093
                                                                                                                                                                      of [.120] 1.0%; (5) for title insurance, pursuant to the Insurance Code, Article 9.46, the rate is .110 [.171] of 1.0%. (b) The rate for the maintenance tax to be assessed on gross premiums for calendar year 1995
                                                                                                                                                                        [1994] for life, health, and accident insurance, pursuant to the Insurance Code, Article 4.17, is .040
                                                                                                                                                                          [.040] of 1.0%. (c) Rates for maintenance taxes are assessed for calendar year 1995
                                                                                                                                                                            [1994] for the following entities: (1) pursuant to the Texas Health Maintenance Organization Act, sec.33 (codified at the Insurance Code, Article 20A.33), the rate is $.22
                                                                                                                                                                              [$.38] per enrollee for single service health maintenance organizations and $.68
                                                                                                                                                                                [$1.27] per enrollee for multi-service health maintenance organizations; (2) pursuant to the Insurance Code, Article 21.07-6, sec.21, the rate is . 310
                                                                                                                                                                                  [.235] of 1.0% of the correctly reported gross amount of administrative or service fees for third party administrators; and (3) pursuant to the Insurance Code, Article 23.08, the rate is 1.0
                                                                                                                                                                                    [1. 0]% of correctly reported gross revenues for corporations issuing prepaid legal service contracts. (d) The taxes assessed under subsections (a), (b), and (c) of this section shall be payable and due to the Comptroller of Public Accounts, Austin, Texas 78774-0100 on March 1, 1996
                                                                                                                                                                                      [1995]. 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 November 1, 1995. TRD-9514097 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-6327 28 TAC sec.1.415 The Texas Department of Insurance proposes an amendment to sec.1.415, concerning assessment of a maintenance tax surcharge which will be used to service the bonded indebtedness of the Texas Workers' Compensation Insurance Fund. The amendment is proposed to change the rate of assessment for taxes due in 1996 on the basis of gross premium receipts for calendar year 1995. The Texas Workers' Compensation Commission annually establishes and certifies to the comptroller of public accounts the rate of assessment for the maintenance taxes which are authorized to pay the cost of administering the Texas Workers' Compensation Act. The commissioner of insurance may increase the Texas Workers' Compensation Commission tax rate to a rate sufficient to pay all debt service on the bonds issued on behalf of the Texas Workers' Compensation Insurance Fund, subject to the maximum rate established by Texas Civil Statutes, Article 8308- 2.22. The proposed section amends the rate of assessment which applies to workers' compensation insurance companies. Timely and accurate payment of maintenance taxes is necessary for support of regulatory functions. Carroll Fuchs, director of accounting for the department, has determined that for the first five-year period the proposed section is in effect, there will be no fiscal implications for local government as a result of enforcing or administering the section, and there will be no effect on local employment or the local economy. The anticipated fiscal impact on state government is estimated income of $17,632,753 generated from the maintenance tax surcharge which will be used to pay debt service for $300 million in bonds issued in 1991 by the Texas Public Finance Authority on behalf of the Texas Workers' Compensation Insurance Fund. Mr. Fuchs also has determined that for each year of the first five years the proposed amended section is in effect, the public benefit anticipated as a result of enforcing the section will be the facilitation in the collection of a maintenance tax surcharge assessment for the Texas Workers' Compensation Insurance Fund. Based on a cost-per-hour of labor basis, the cost of compliance for small businesses affected by the proposed section should be the same as the cost of compliance for large businesses. Actual reasonable costs for processing and administration may vary among persons required to comply with this proposed section, but should not exceed 5.0% of the amount assessed. Comments on the proposal must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Alicia M. Fechtel, General Counsel and Chief Clerk, Mail Code #113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments should be submitted to Carroll Fuchs, Director of Accounting, Mail Code #108-3A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714- 9104. Request for a public hearing on this proposal should be submitted separately in writing to the Chief Clerk's Office. The amendment is proposed under the Insurance Code, Articles 5.76-3, 5.76-5, 5.68, and 1.03A and Texas Civil Statutes, Articles 8308-2.22, 8308-2.23, and 8308-11.09. The Insurance Code, Article 5.76-3 establishes the Texas Workers' Compensation Insurance Fund. Article 5.76-5 establishes the maintenance tax surcharge. Article 5.68 establishes the maintenance tax based on premiums for workers' compensation coverage. Article 1.03A authorizes the Commissioner of Insurance to adopt rules and regulations for the conduct and execution of the duties and functions of the Department as authorized by statute. Texas Civil Statutes, Articles 8308-2.22, 8308-2.23, and 8308-11.09 establish the maintenance tax for workers' compensation insurance companies. The following Texas statutes are affected by this rule: Insurance Code, Articles 5.12, 5.55C, 5.68, 5.76-3, 5.76-5, 21.46, and 21.54 and Texas Civil Statutes, Articles 8308-2.22, 8308-2.23, and 8308-11.09. sec.1.415. Maintenance Tax Surcharge for the Texas Workers' Compensation Insurance Fund, 1996 [1995]. (a) The maintenance tax surcharge is levied against each insurance carrier writing workers' compensation insurance in this state at the rate of .59%
                                                                                                                                                                                        [. 54%] of the correctly reported gross workers' compensation insurance premiums for the calendar year 1995
                                                                                                                                                                                          [1994] to cover debt service for bonds issued on behalf of the Texas Workers' Compensation Insurance Fund. (b) The maintenance tax surcharge shall be payable and due to the Comptroller of Public Accounts, Austin, Texas 78774-0100 on March 1, 1996
                                                                                                                                                                                            [1995]. 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 November 1, 1995. TRD-9514098 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-6327 Chapter 7. Corporate and Financial Regulation Subchapter J. Examination Expenses and Assessments 28 TAC sec.7.1012 The Texas Department of Insurance proposes an amendment to sec.7.1012, concerning assessments to cover the expenses of examining insurance companies. Assessments will be levied against and collected from each domestic insurance company based on admitted assets and gross premium receipts for the 1995 calendar year, and from each foreign insurance company examined during the 1996 calendar year based on a percentage of the gross salary paid to an examiner for each month or part of a month during which the examination is made. The assessments made under authority of this proposed amended section will be in addition to, and not in lieu of, any other charge which may be made under law, including the Insurance Code, Article 1.16. Carroll Fuchs, director of accounting for the department, has determined that for the first five-year period the section is in effect, there will be no fiscal implications for local government as a result of enforcing or administering the section, and there will be no effect on local employment or the local economy. The anticipated fiscal impact on state government is estimated income of $8,112,008 to the state's general revenue fund. Mr. Fuchs also has determined that for each year of the first five years the rule as proposed is in effect the public benefit anticipated as a result of enforcing the section will be the adoption of assessment rates to defray the expenses of examinations and administration of the laws related to examinations during the 1996 calendar year. Mr. Fuchs has determined that the direct economic cost to individuals who are required to comply with the proposed section will vary, depending on the amount of assessment against each company. In the case of domestic companies, this is dependent on rates applied to 1995 admitted assets and gross premium receipts. In the case of foreign insurers, it will depend on whether the company is examined by Texas examiners, on the salary and expenses of the examiners, and on the time it takes for the examination. There will be no difference in rates of assessments between small and large businesses, except that a minimum charge of $25 is assessed domestic companies in sec.7.102(b)(3). Based on a cost-per-hour of labor basis, the cost of compliance for small businesses affected by the proposed section should be the same as the cost of compliance for large businesses. Actual reasonable costs for processing and administration may vary among persons required to comply with this proposed section, but should not exceed 5.0% of the amount assessed. Comments on the proposal must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Alicia M. Fechtel, General Counsel and Chief Clerk, Mail Code #113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comment should be submitted to Carroll Fuchs, Director of Accounting, Mail Code #108-3A, Texas Department of Insurance, P.O. Box 149014, Austin, Texas 78714- 9104. Request for a public hearing on this proposal should be submitted separately in writing to the Chief Clerk's Office. The amendment is proposed under the Insurance Code, Articles 1.16 and 1.03A. The Insurance Code, Article 1.16(a) and (b) authorizes the commissioner of insurance to make assessments necessary to cover the expenses of examining insurance companies and to comply with the provisions of the Insurance Code, Articles 1.16, 1.17, and 1.18, in such amounts as the commissioner certifies to be just and reasonable. In addition, Article 1.16(c) provides that expenses incurred in the examination of foreign insurers by Texas examiners shall be collected by the commissioner by assessment. Article 1.03A authorizes the commissioner of insurance to adopt rules and regulations for the conduct and execution of the duties and functions of the department as authorized by statute. The following articles of the Insurance Code are affected by this rule: Articles 1.16, 1.17, 1.17A, 1.18, 1.19, 1.28, 4.10, and 4.11. sec.7.1012. Domestic and Foreign Insurance Company Examination Assessments, 1996 [1995.] (a) Foreign insurance companies examined during the 1996
                                                                                                                                                                                              [1995] calendar year shall pay for examination expenses according to the overhead rate of assessment specified in this subsection in addition to all other payments required by law including, but not limited to, the Insurance Code, Article 1.16. Each foreign insurance company examined shall pay 33% [34%] of the gross salary paid to each examiner for each month or partial month of the examination in order to cover the examiner's longevity pay; state contributions to retirement, social security, and the state paid portion of insurance premiums; and vacation and sick leave accruals. The overhead assessment will be levied with each month's billing. (b) Domestic insurance companies shall pay according to this subsection and rates of assessment herein for examination expenses as provided in the Insurance Code, Article 1.16. (1) The actual salaries and expenses of the examiners allocable to such examination shall be paid. The annual salary of each examiner is to be divided by the total number of working days in a year, and the company is to be assessed the part of the annual salary attributable to each working day the examiner examines the company during 1996
                                                                                                                                                                                                [1995]. The expenses assessed shall be those actually incurred by the examiner to the extent permitted by law. (2) An overhead assessment to cover administrative departmental expenses attributable to examination of companies, which shall be paid and computed as follows: (A) .00485
                                                                                                                                                                                                  [0.00642] of 1.0% of the admitted assets of the company as of December 31, 1995
                                                                                                                                                                                                    [1994], upon the corporations or associations to be examined taking into consideration the annual admitted assets that are not attributable to 90% of pension plan contracts as defined in Section 818(a) of the Internal Revenue Code of 1986 (26 United States Code, sec.818(a)); and (B) .01179
                                                                                                                                                                                                      [0.01626] of 1.0% of the gross premium receipts of the company for the year 1995
                                                                                                                                                                                                        [1994], upon the corporations or associations to be examined taking into consideration the annual premium receipts that are not attributable to 90% of pension plan contracts as defined in Section 818(a) of the Internal Revenue Code of 1986 (26 United States Code, sec.181(a)). (3)-(5) (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 November 1, 1995. TRD-9514099 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-6327 Chapter 25. Insurance Premium Finance Subchapter E. Examinations and Annual Reports 28 TAC sec.25.88 The Texas Department of Insurance proposes an amendment to sec.25.88, concerning the general administrative expense assessment of insurance premium finance companies for calendar year 1995. The proposed amendment is necessary to adjust the rate of assessment which is sufficient to meet the expenses of performing the department's statutory responsibilities for examining, investigation, and regulating insurance premium finance companies. Under sec.25. 88, the department levies a rate of assessment to cover the 1996 fiscal year's general administrative expense and will collect from each insurance premium finance company on the basis of a percentage of total loan dollar volume for the 1995 calendar year. Carroll Fuchs, director of accounting for the department, has determined that for the first five-year period the proposed section is in effect, the fiscal impact equivalent on state government will be income estimated at $335, 172 to the state's general revenue fund. There is no fiscal implication for local government or employment or the local economy as a result of enforcing or administering the proposed amended section. Mr. Fuchs also has determined that for each year of the first five years the proposed amended section is in effect, the public benefit anticipated as a result of enforcing the section is the facilitation in the collection of an assessment to cover the general administrative expense connected to the regulation of insurance premium finance companies. The cost to persons required to comply with this section is equivalent between small businesses and large businesses on a basis of cost per dollar of loan volume. The minimum cost for compliance based on assessment under the section is $250. Cost of administration or processing of such assessments may vary from company to company, depending on individual procedures, but the reasonable cost of administration and processing should be no greater than 5.0% of the assessment. Comments on the proposal to be considered by the commissioner must be submitted in writing within 30 days after publication of the proposed section in the Texas Register to Alicia M. Fechtel, General Counsel and Chief Clerk, Mail Code #113- 2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. An additional copy of the comments should be submitted to Carroll Fuchs, Director of Accounting, Mail Code #108-3A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104. Request for a public hearing on this proposal should be submitted separately in writing to the Chief Clerk's Office. The amendment is proposed under the Insurance Code, Articles 24.06(c), 24. 09, and 1.03A. Article 24.06(c) provides that each insurance premium finance company licensed by the department shall pay an amount assessed by the department to cover the direct and indirect cost of examinations and investigations and a proportionate share of general administrative expense attributable to regulation of insurance premium finance companies. Article 24. 09 authorizes the department to adopt and enforce rules necessary to carry out provisions of the Insurance Code concerning the regulation of insurance premium finance companies. Article 1.03A authorizes the commissioner to adopt rules and regulations for the conduct and execution of the duties and functions of the department. The following articles of the Insurance Code are affected by this section: Articles 24.05, 24.06, 24.08, 24.09, and 24.10. sec.25.88. General Administrative Expense Assessment. On or before April 1, 1996
                                                                                                                                                                                                          [of each year], each insurance premium finance company holding a license issued by the department under the Insurance Code, Chapter 24, shall pay [to the department] an assessment to cover the general administrative expenses attributable to the regulation of insurance premium finance companies. Payment shall be [by check, payable to the department,] sent to the Texas Department of Insurance, Examinations Division,
                                                                                                                                                                                                            Mail Code #305-2E, 333 Guadalupe, P.O. Box 149104, Austin, Texas 78701-9104. The assessment to cover general administrative expenses shall be computed and paid as follows: (1) The amount of the assessment shall be computed as .01481
                                                                                                                                                                                                              [.0150] of 1.0% of the total loan dollar volume of the company for the calendar year 1995
                                                                                                                                                                                                                . (2) (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 November 1, 1995. TRD-9514100 Alicia M. Fechtel General Counsel and Chief Clerk Texas Department of Insurance Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-6327 TITLE 30. ENVIRONMENTAL QUALITY Part I. Texas Natural Resource Conservation Commission Chapter. 333 Voluntary Cleanup Programs Subchapter A. Voluntary Cleanup Program Section 30 TAC sec.sec.333.1-333.11 The Texas Natural Resource Conservation Commission (TNRCC or commission) proposes new sec.sec.333.1-333.11, concerning the Voluntary Cleanup Program (VCP). The VCP was primarily created to provide incentives to encourage the cleanup of thousands of contaminated sites in Texas which require remedial actions in order to complete real estate transactions. The statutory basis for the proposed rules is found in House Bill (HB) 2296, 74th Legislature, which establishes the existence of a Voluntary Cleanup Program in Subchapter S of the Solid Waste Disposal Act (SWDA), Chapter 361, Health and Safety Code. House Bill 2296 provides a detailed explanation of the procedures necessary to gain TNRCC approval of voluntary cleanups. For further information concerning the statute or to obtain a copy, contact Charles Epperson of the Pollution Cleanup Division at (512) 239-2498. Prior to House Bill 2296, no mechanism existed to fund timely review of the growing number of site remediations in Texas. Historically, the TNRCC waste programs typically have reviewed sites in a worst case first priority. As a result, TNRCC review of remedial actions for the many real estate transaction sites and other lower priority sites received required several months for the agency to initiate and complete. Since the VCP statute explicitly states that sites will be reviewed in the order in which they are received and that parties utilizing the program will pay for commission oversight costs, timely review of these lower priority sites will be achieved. The VCP is not a replacement for other program areas, however parties who wish to gain the advantages of a cleanup liability release for future lenders and owners, protection from enforcement actions, plus an expedited review of submittals must enter the VCP. Also, except as noted herein these rules and the statute do not replace existing rules, such as the Risk Reduction Rules, which provide remediation standards and requirements applicable to industrial solid wastes and municipal hazardous wastes. The most important advantage for parties who complete cleanups under the VCP is the provision to release otherwise responsible parties from cleanup liability to the state. Otherwise responsible parties may include future lenders and owners who may receive a certificate of completion for cleanup of their sites under the VCP. Existing environmental liability concerns across the United States have encouraged the development of previously undeveloped land (greenfields) outside of cities, while many properties with past commercial or industrial use (brownfields) within cities remain abandoned or underutilized. This practice has contributed to increasing urban unemployment rates which results in higher crime in these areas; erosion of the tax base of these areas; and a general lack of civic pride due to businesses not wanting to locate in these areas. Also, many pristine or environmentally sensitive rural environments in Texas have been destroyed by development outside of major metropolitan areas. The commission believes that by eliminating future environmental liability concerns in brownfields areas, economic redevelopment will be encouraged. Section 333.1 provides the requirements for the program. Section 333.2 and sec.333.3 provide definitions and the purpose of the program, respectively. The definitions for "exposure assessment model", "site subject to a commission permit or order", "initiate an enforcement action", "partial response action", "partial response action area", "pending enforcement action", "person", "response action objective", and "site" have been added as rules. The definitions related to enforcement actions, permits and orders are provided for the purpose of clarifying which sites may be allowed to participate in the VCP. The intention is to require sites which have an obligation to be remediated under an existing enforcement action or order to complete remedial actions under the review of those program areas. The term "partial response action area" has been defined for additional clarification. Section 333.4 provides information on the application which must be submitted to participate in the VCP. A clarification of the statutory language has been included to assure applicants that applications will be reviewed and accepted or rejected within 45 days of the date of receipt by the commission. Section 333.5 provides clarification of the commission's actions for cases in which an application is received for a site with pending enforcement actions. Involvement of the appropriate enforcement areas of the TNRCC is provided in sec.333.5 to ensure that sites which apply for entry into the VCP are not involved in an enforcement proceeding with another TNRCC program. Since the state superfund program typically expends state funds in scoring sites and in potentially responsible party searches and discovery, persons submitting applications for sites discovered through the state superfund program must pay all previous commission costs to the solid and hazardous waste remediation fee fund prior to entering into the VCP. The requirement in sec.333.6(a) that the VCP agreement be signed prior to the implementation of any response actions ensures that the response actions are clearly understood and agreed to by both the applicant and the commission. Site investigations may begin prior to completion of the application and agreement, although the commission encourages persons to coordinate these activities with the commission after completion of the application and agreement. The commission will not review work plans and reports until after the agreement has been signed by both the applicant and the executive director or his authorized representative. The time to review the application and complete the agreement will largely depend upon the detail of information provided by the applicant, but should not result in any long delays in site remediation. The commission will respond to all requests and submittals in a timely manner. Completion of the VCP agreement satisfies the notification requirement of 30 TAC sec.335.8(c)(1) of the Risk Reduction Rules. The interaction of the VCP and the enforcement process is further explained in sec.333.6(b). If a partial response action is conducted on a site, the portion of the site not addressed by this partial response action will not be included in the certificate of completion and the liability release will not extend to this portion of the site. The area of the site not addressed by the partial response action may not require investigation, depending on the nature and extent of contamination emanating from the partial response action area. Since there may be no investigation of this area and it is not subject to review under the voluntary cleanup agreement, the commission will retain its authority for future enforcement actions, if necessary, for areas of the site not addressed in the partial response action. The commission is proposing rules in sec.333.7 and sec.333.8 that will allow added flexibility in the use of site-specific information in directing investigations and response actions. The commission desires to provide this flexibility as an initial step in the ongoing process to revise current technical regulations for sites with petroleum wastes, industrial solid wastes, and municipal hazardous wastes. The TNRCC's goal is to have one set of technical requirements which will be proposed for all sites which currently operate under the Risk Reduction Rules, Petroleum Storage Tank Rules and Air Permits Rules. The VCP will operate with the current appropriate technical standards (e.g. Risk Reduction Rules, Petroleum Storage Tank Rules, Air Permits Rules) and the exceptions proposed herein until adoption of the new rules for the agency. Section 333.7 details investigation requirements and discusses where response actions must be conducted. The investigation of the site should determine the nature and extent of all contamination found at the site and any off-site migration of contamination unless site-specific conditions allow otherwise. Applicants may seek the commission's authorization to focus site investigation activities which would otherwise be required for a full investigation. Justification for focusing site assessments will be based upon the development of a conceptual exposure assessment model for the site. The exposure assessment model includes a determination of the current and reasonably anticipated use of the land and its resources, and an evaluation of human health and environmental exposure to the contaminated media of concern. TNRCC staff is drafting a guidance document which will provide examples of factors to be considered in defining the exposure assessment model for a site. Upon TNRCC approval of the exposure assessment model, focused investigations will be completed for media where there exists a pathway of current or reasonably anticipated future exposure. The guidance will also explain how the exposure assessment model may be used in conjunction with the petroleum storage tank and risk reduction remediation requirements. If a portion of a site is segregated for the purpose of conducting a partial response action, then it is only necessary to investigate the partial response action area and any contamination emanating from that area off-site. The certificate of completion extends only to the partial response action area. An accurate survey by a registered surveyor must be provided for the actual area for which approval is sought. If the executive director determines that the source of contamination emanates from off-site and the applicant has no association with the source of contamination, the applicant will not be required to address the off-site contamination under the VCP. In such cases, the applicant will have the option of only conducting a response action on-site or performing a partial response action on-site. The response action standards are discussed in sec.333.8. All contaminated media which exceed health-based cleanup levels must be addressed unless information provided in the exposure assessment model convinces the TNRCC that contamination within certain media does not present a threat to human health or the environment, based on current or reasonably anticipated future exposure scenarios. Applicants are responsible for selecting a response action capable of meeting all response action objectives. The requirement under existing rules (e.g,. the Risk Reduction Rules) to prepare reports examining the response action selection process will still be required; however, the criteria for response action selection will vary from existing requirements. The new selection criteria will allow a demonstration that the selected response action meets the approved response action objectives, rather than basing the selection on a comparison with other potential remedial alternatives. These criteria will be described in guidance currently under development. Persons may conduct voluntary cleanups without obtaining local or state permits. The person conducting the response action is required to comply with any federal or state standard, requirement, criterion, or limitation to which the remedial action would otherwise be subject if a permit were required. Requirements for deed certification under the existing Risk Reduction Rules are modified by sec.333.9. For approved response actions in the VCP, parties will not be required to deed certify when residential cleanup levels are successfully achieved without institutional or engineering controls. Section 333.10 provides clarification that sites which do not require remediation may receive a certificate of completion. Further explanation related to partial response actions is provided in subsection (b) to clarify that only the portion of the site being addressed will receive the liability release. Subsection (c) has been included to allow applicants to file the certificate of completion into the property deed record subsequent to its issuance by the VCP. Filing of certificates of completion by the applicant may facilitate more timely real estate transactions. The commission will routinely file the certificates unless the applicant requests to file on the behalf of the executive director. The commission is seeking comment on the issuance of certificates of completion prior to completion of the response action in instances where long-term actions or engineering controls (e.g., groundwater pump and treat, cap and monitoring) are necessary. The statute does not specifically address the issuance of a certificate of completion prior to attainment of final remediation goals when long-term response actions or control measures are implemented. However, the commission believes the purpose of the statute, to provide incentives to remediate property by removing liability of lenders and future landowners, would be advanced by issuing "conditional" certificates of completion in these instances. Under this approach, the commission would issue the "conditional" certificate of completion for response actions where engineering controls which require continued operation and maintenance are approved. For example, once all remediation or monitoring systems are properly installed and adequately meet the performance standards, a "conditional" certificate of completion would be issued. The commission would issue a final certificate of completion when the response actions have met the final remediation goals for the site. Since the response action would not be complete until those goals were met, it may become necessary for the VCP to refer the site for enforcement action if the applicant fails to complete the response actions as approved. The commission is seeking comments on the following approaches to achieving cleanup of contaminated areas while helping facilitate timely completion of real estate transactions. The commission is considering allowing parties to divide remediation of a contaminated area into separate phases with separate schedules under a single voluntary cleanup agreement. At the completion of each phase, a certificate of completion would be issued for the portion of the contaminated area that has been remediated. For example, if a contaminant plume has migrated off-site and the party desires to expedite remediation of the on-site contaminated area to sell the site, this approach would allow receipt of a certificate of completion after completion of on-site remediation. Subsequently, the party would receive a certificate of completion for the off-site portion of the contaminated area upon remediation of the off-site property. Each of these activities would be performed under one voluntary cleanup agreement, giving assurance to the party that no enforcement action would be initiated against them for on-site or off-site contamination being addressed, as long as the party remains in compliance with the terms of the agreement. This approach will allow parties the flexibility to prioritize cleanup activities for portions of contaminated areas but still be responsible for remediating the entire area. If a party fails to remediate the off-site contamination within the timeframes set forth in the agreement, the portion of the agreement relating to off-site contamination may be terminated and the matter referred for enforcement. An alternative incentive would be to include a provision in the certificate of completion for the on-site portion of the contaminated area which requires completion of remediation of the off-site portion of the contaminated area or the on-site certificate of completion will become void. The commission intends to allow phased remediation activities which result in more than one certificate of completion on a case-by-case basis in which conditions provide compelling reasons to accept this approach. The commission proposes rules for public participation in sec.333.11, as provided for in House Bill 2296. Due to the expectation that VCP response actions will take place mostly on private property, by private entities, the commission is not requiring public meetings or notification to the general public for all sites. The focus of public participation will be on notification to off-site landowners if off-site migration has occurred. House Bill 2296 requires the agency to recover all reasonable costs associated with oversight of the work plan and reports and any field activities associated with a site. Toward that end, the TNRCC is required to publish a notice annually in the Texas Register establishing its rates. The commission published rates in the Texas Register on September 1, 1995. The notice included a discussion of the method utilized to determine the rate. To assist those who wish to enter the VCP, the commission is developing a guidance document for investigative actions and for response actions at a contaminated site. The guidance documents will provide persons submitting voluntary cleanup plans and reports, the criteria needed to ensure expedited TNRCC review. Also, the commission has developed an application form, a voluntary cleanup agreement, and a certificate of completion. To obtain a copy of these documents, contact Charles Epperson of the Pollution Cleanup Division at (512) 239-2498. Stephen Minick, Strategic Planning and Appropriations Division, has determined that for the first five-year period there will be fiscal implications as a result of administration of the program. The effect on state government will be an increase in cost not to exceed $956,000 in fiscal year 1996 and $829,000 in each of the fiscal years 1997-2000. These increases in cost will be offset by a corresponding increase in revenue equivalent to the costs actually incurred. The actual costs to the state will depend on the number of applications received and the utilization of the VCP by eligible applicants and cannot be determined exactly at this time. It is anticipated, however, that the recovery of costs under the program will offset whatever costs are actually incurred. There are no significant costs anticipated for units of local government. The approval of applications for certification under this program is anticipated to return certain properties to productive use and potentially increase the net valuation of real property within affected local taxing jurisdictions. No estimate of the potential effects on property value can be made at this time. The program is voluntary; therefore there are no required costs or other fiscal implications anticipated for any person subject to or participating in the program. The costs to any one participant will vary on a case-by-case basis and cannot be determined. It is anticipated, however, that the majority of applicants under the voluntary cleanup program will have commission review and oversight expenses of between $1,000 and $5,000. These potential costs could be exceeded in specific circumstances, particularly for larger or more complex projects. The sections as proposed will have fiscal implications for small businesses. As for any applicant, the costs incurred are voluntary and will vary with each business. Costs to small businesses will depend more on the specific property affected, the nature of site contamination and the complexity of cleanup, and less on the size of the specific business concern. Mr. Minick also has determined that for the first five years the sections as proposed are in effect, the public benefit anticipated as a result of enforcement of and compliance with the sections will be increased incentives for the proper closure and remediation of property with environmental contamination, improved protection of human health and safety, improvements in the recovery of value and utilization of real property, and enhanced values of local property bases. There are no anticipated costs, other than those previously identified, for persons required to comply with these sections as proposed. A public hearing on this proposal will be held in Austin on December 5, 1995, at 10:00 a.m. in Building E, Room 254S, at the TNRCC, 12100 Park 35 Circle, Austin, Texas 78753. Written comments not presented at the hearing may be submitted to the TNRCC no later than 5:00 p.m., 30 days after the date of publication of this proposal in the Texas Register . Please mail written comment to Bettie Mabry Bell, Texas Natural Resource Conservation Commission, MC-201, Post Office Box 13087, Austin, Texas 78711-3087, and reference Rule Log Number 95145-333-WS. For further information regarding this proposal or the language contained in House Bill 2296, contact Clark Talkington, Waste Policy and Regulations Division, at 512) 239-6731 or Charles Epperson, Pollution Cleanup Division, at (512) 239-2498. Persons with disabilities who have special communication or other accommodation needs who are planning to attend the hearing should contact the agency at (512) 239-4900. Requests should be made as far in advance as possible. The new sections are proposed under the Texas Water Code, sec.5.103 and sec.26.011, which provides the commission with authority to adopt any rules necessary to carry out its powers, duties, and policies and to protect water quality in the state. The sections are also proposed under the Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec.361.017, and sec.361.024, which provides the commission the authority to regulate industrial solid waste and municipal hazardous wastes and all other powers necessary or convenient to carry out its responsibilities. Additional authority is provided in sec.382.017, Texas Health and Safety Code. The Texas Solid Waste Disposal Act, Texas Health and Safety Code, sec.sec.361.604, 361.611, and 361.612, provides specific authority to promulgate the sections for the Voluntary Cleanup Program. The proposed rules implement Chapter 361 of the Texas Solid Waste Disposal Act. sec.333.1. Requirements. The requirements of the Voluntary Cleanup Program are found in this Subchapter and in the Texas Solid Waste Disposal Act, Subchapter S, Texas Health and Safety Code, Chapter 361. sec.333.2. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise: Exposure assessment model-A conceptual model of the physical site conditions, contaminants of concern by media, release mechanisms, environmental fate and transport, and potential receptors, and the interaction of each as it relates to site risk. The model identifies the universe of on-site and off-site current and reasonably anticipated future human and environmental exposure pathways and receptors. The purpose of the model is to design and focus site investigations and to assist in the determination of site response action objectives. Initiate an enforcement action-The issuance of a notice of violation by the executive director or referral to the United States Environmental Protection Agency or Attorney General's Office for a possible enforcement action. Partial response action-A response action which is limited to an areal portion of the site and off-site areas contaminated due to releases which have migrated from the site onto property owned or controlled by others, inclusive of all media. Partial response action area-The area of the site and off-site within which the partial response action will be conducted in accordance with a plan approved by the executive director. Pending enforcement action-A notice of violation has been issued and further administrative, state, or federal enforcement action is under evaluation. Person-Includes but is not limited to any individual, group, company, corporation, organization, government or governmental subdivision, business trust, partnership, association, or any other legal entity, which desires to conduct a voluntary cleanup. Response action objectives-The goals of the response actions, which may include both qualitative and quantitative goals. Site-The property as described in the legal description provided in the voluntary cleanup agreement. Site subject to a commission permit or order- A site or portion of a site concerning which an order or permit has been issued by the Texas Natural Resource Conservation Commission (commission). These also include interim status hazardous waste facilities, at the time interim status is granted. sec.333.3. Purpose. The purpose of the Voluntary Cleanup Program is to provide incentives to remediate property by removing liability of future landowners and lenders. sec.333.4. Application to Participate in the Voluntary Cleanup Program (VCP). An application submitted to the Voluntary Cleanup Program must be accepted or rejected within 45 days of receipt by the commission. sec.333.5. Rejection of Application. The executive director may reject an application submitted to the Voluntary Cleanup Program when: (1) an enforcement action is pending relating to or regarding the site and the executive director objects to the site being accepted into the Voluntary Cleanup Program; or (2) all costs recoverable under the Texas Solid Waste Disposal Act, Subchapter F, Texas Health and Safety Code, Chapter 361 (State Superfund) for the site are not paid in full to the hazardous and solid waste remediation fee fund by the applicant. sec.333.6. Voluntary Cleanup Agreement. (a) The voluntary cleanup agreement must be signed by both parties prior to any response action being implemented, with the exception of emergency measures which should be coordinated with the appropriate emergency response authorities. (b) In the case of partial response actions, the commission retains the authority to issue an enforcement action regarding releases or contamination not addressed by the partial response action. sec.333.7. Voluntary Cleanup Work Plans and Reports. (a) Voluntary cleanup work plans and reports shall include an investigation of the full nature and extent of contamination in all media unless the person demonstrates to the satisfaction of the executive director that site conditions warrant a focused investigation. This may be demonstrated with an exposure assessment model. The exposure assessment model shall examine all currently discovered and reasonably anticipated future exposure pathways for all contaminants and media of concern. Contaminated media within the investigation area shall be addressed according to the appropriate established technical standards. (b) The requirements of subsection (a) of this section apply to a partial response action when a contaminant release originating from a partial response action area has migrated onto property owned or controlled by others. (c) The requirements of subsection (a) of this section apply to all voluntary cleanup response actions with the following exceptions: (1) when a person demonstrates to the satisfaction of the executive director that the source of contamination is from off-site and the person did not cause, suffer, or allow the release, the person may address only contamination on the site or the partial response action area within the site according to the appropriate established technical standards. (2) when a contaminant release is present outside the site or partial response action area, but on property owned or otherwise controlled by the applicant, addressing the areal extent of contamination outside the site or partial response action area is not required; however, the contaminant release within the partial response action area shall be addressed according to the appropriate established technical standards. sec.333.8. Response Action Standards. (a) Excepting areal limitations with partial response actions and limitations determined from an exposure assessment model, which proves that no current or reasonably anticipated future human or environmental exposure pathways exist; all media which exceed the health-based cleanup levels shall be addressed through the appropriate response action and in accordance with the appropriate technical standards based upon the site characteristics and site contaminants. (b) The applicant shall select a response action for the response action area which will achieve the response action objectives. (c) State or local permits are not required, however the person conducting the voluntary cleanup shall comply with any federal or state standard, requirement, criterion, or limitation to which the response action would otherwise be subject if a permit were required. sec.333.9. Deed Certification.
                                                                                                                                                                                                                  Deed certification is required for cleanups which do not achieve residential health-based levels in all media of concern and for cleanups that include institutional or engineering controls. sec.333.10. Certificate of Completion. (a) If reports submitted under this subchapter demonstrate that no further action is required to protect human health and the environment, the executive director shall certify such facts by issuing the person a certificate of completion. (b) For partial response actions, the certificate of completion shall pertain only to the partial response action area and shall include a legal description of that area. (c) The executive director may allow the applicant to file the copy of the certificate of completion into the site deed record on the executive director's behalf if the applicant -provides subsequent documentation of the filing. sec.333.11. Public Participation.
                                                                                                                                                                                                                    Persons conducting voluntary cleanups where contamination is located on property owned by others must provide notification to all such property owners. At the discretion of the executive director, this notice may include, but is not limited to, public notice in local newspapers, block advertisements, letters to individual households, or personal contacts. The executive director may require verification that such activity has been satisfactorily completed. 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 November 1, 1995. TRD-9514124 Kevin McCalla Director, Legal Division Texas Natural Resource Conservation Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 239-6087 TITLE 37. PUBLIC SAFETY AND CORRECTIONS Part III. Texas Youth Commission Chapter 83. Contracted Youth Services 37 TAC sec.83.7, sec.83.15 The Texas Youth Commission (TYC) proposes amendments to s83.7 and sec.83. 15, concerning contracting for residential and nonresidential services and quality assurance. The amendments in both sections provide for enhanced monitoring by TYC staff of TYC contracted programs which provide services to TYC youth. Monitoring will be conducted more frequently and will specifically evaluate compliance with contract requirements for performance and service delivery. Contract development and renewal will be based on assessments and evaluation of each contract program vendor. John Franks, Director of Finance, 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. Franks 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 enhanced quality assurance procedures to ensure best use of State resources. 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. Comments on the proposal may be submitted to Gail Graham, Policy and Manuals Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, Austin, Texas 78765. The amendments are proposed under the Human Resources Code, sec.61.034, which provides the Texas Youth Commission with the authority to make rules appropriate to the proper accomplishment of its functions. The proposed rules implement the Human Resource Code, sec.61.034. sec.83.7. Contracting for Residential [and Nonresidential] Services. (a) Policy. The Texas Youth Commission (TYC) contracts with private service agents
                                                                                                                                                                                                                      [agencies] for [nonresidential and] residential services appropriate for TYC youth. (b) Rules. (1) General. (A) TYC enters into contracts with private service agents
                                                                                                                                                                                                                        [agencies best] able to provide services to meet specific needs of TYC youth. Service agents are
                                                                                                                                                                                                                          identified through a process of initial assessments or
                                                                                                                                                                                                                            [needs assessments and] Requests for Proposal. (B) TYC contracts with providers which meet: (i) TYC's Basic Core Standards, licensing standards of the Department of Protective and Regulatory
                                                                                                                                                                                                                              [Human] Services, [accreditation requirements of the Joint Committee on Accreditation of Health Care Organization and/or the Council on Accreditation,] Texas Department of Mental Health and Mental Retardation Community Standards, Texas Commission on Drug and Alcohol Licensing Standards, [or] Texas [Health] Department of Health
                                                                                                                                                                                                                                Standards; [and] (ii) local juvenile board certification or Texas Juvenile Probation Commission certification, and
                                                                                                                                                                                                                                  [Texas Health and Human Services Commission Levels of Care; and/or] (iii) special requirements set forth by a [Request for Proposal or a] proposal for services. (C) Contracts may be for a term up to 24 months.
                                                                                                                                                                                                                                    [two years.] (D) Contract compliance and service delivery
                                                                                                                                                                                                                                      is ensured through a quality assurance program of monitoring by TYC staff.
                                                                                                                                                                                                                                        [contract specialists.] (E)-(F) (No change.) (2) Contracting
                                                                                                                                                                                                                                          [New Contract Procedure for Existing Programs]. (A) For new contracts,
                                                                                                                                                                                                                                            contract specialist or Request for Proposals review committee assesses
                                                                                                                                                                                                                                              [investigates and evaluates] a program for a contract based on specific requirements addressed in a proposal for services, agency needs, license or certification, cost per day, and levels of care, if applicable. All information is submitted in writing to the chief of community placement as required in the Residential Contract Monitoring System Manual.
                                                                                                                                                                                                                                                [service needs.] (B) For contract renewals, contract specialist evaluates a program's performance and service delivery in accordance with the criteria as outlined in the Residential Contract Monitoring System Manual. [(B) If a program meets the needs, qualifies as a service provider, and the region recommends a contract, then the contract specialist forwards appropriate paperwork to chief of community placement. [(C) The chief of community placement reviews and submits to legal department to initiate a contract. [(D) Chief of community placement forwards the contract to the contract specialist. [(E) The contract specialist reviews the contract and obtains signature of the service provider. [(F) The contract specialist forwards the signed contract to the chief of community placement for signature. [(G) The chief of community placement routes copies to the following: [(i) Finance-original; [(ii) Contract program; [(iii) Contract specialist; [(iv) Chief of community placement. [(H) The contract specialist ensures all appropriate personnel in the region have copy(ies) of the contract. ] (3) Contract Renewals. [Procedure. [(A) Contract specialist begins the contracting process three months prior to renewal. [(B)] Contract specialist completes an
                                                                                                                                                                                                                                                  evaluation and submits the evaluation to the chief of community placement in accordance with the Residential Contract Monitoring System Manual.
                                                                                                                                                                                                                                                    [with a recommendation to renew/not renew two months prior to expiration of contract. [(C) Chief of community placement reviews the recommendation and submits to legal department to initiate a new contract if there are no recommended changes. [(D) If a change in rate, guarantee or level of care is recommended, the chief of community placement submits to the contract care review committee to review and to make a recommendation to grant or deny the regional recommendation. The chief of community placement submits to the deputy executive director for final approval of all rate increases. [(i) If rate increase is denied, the chief of community placement informs the contract specialist and the service provider is informed of the results by the contract specialist and is advised of the appeal process. [(ii) If rate increase is approved, the chief of community placement submits paperwork to legal department to initiate a new contract. [(E) Chief of community placement forwards the contract to the contract specialist. [(F) The contract specialist reviews the contract for corrections and obtains signatures. [(G) The contract specialist forwards the signed contract to the chief of community placement for signature. [(H) The chief of community placement routes copies to the following: [(i) Finance-original; [(ii) Contract program; [(iii) Contract specialist; [(iv) Chief of community placement. [(I) The contract specialist ensures all appropriate personnel in the region have copy(ies) of the contract. [(4) New Contract Procedure for RFP Awarded Programs. [(A) Chief of community placement submits paperwork to legal department to initiate a new contract(s). [(B) Chief of community placement obtains all signatures and routes copies to the following: [(i) Finance-original; [(ii) Contract program; [(iii) Contract specialist; [(iv) Chief of community placement. [(C) The contract specialist ensures all appropriate personnel in the region have copy(ies) of the contract. ] sec.83.15. Quality Assurance. (a) Policy. The Texas Youth Commission (TYC) monitors and evaluates contract care programs to [encourage program development,] ensure contract compliance, and service delivery performance.
                                                                                                                                                                                                                                                      [identify program strengths and weaknesses and provide technical assistance.] TYC implements a quality assurance process that identifies exceptions to standards together with corrective action to bring the service agent into compliance with applicable standards. TYC imposes sanctions, if necessary, to enforce any corrective action(s) recommended through the monitoring and evaluation process. (b) Rules. (1) Explanation of Terms Used. (A) On-Site Visits-A visit [by a contract specialist] to a contract program [which may be at any time,] which may or may not be announced. [and is intended to offer technical assistance.] (B) Technical Assistance-The assistance, advice or training that TYC staff offer [offers] in areas of contract implementation, performance standards, clarification, problem analysis, staff training, and feedback on program implementation. (C) Monitoring-A formal review of the service agent's contract and service delivery.
                                                                                                                                                                                                                                                        [if applicable, compliance with TYC Core standards, if applicable, levels of care, and any other applicable requirements as stated in the contract.] (D) Sanctions-Actions that may be taken by TYC to facilitate service agent compliance with TYC stated requirements or deficient service delivery. (E) Evaluation-A process used to measure and evaluate
                                                                                                                                                                                                                                                          [assess] the quality and effectiveness of a service agency and/or a program. (F) Below Average Performance -Three or more TYC performance measures rated as below average in two of the most recent four reporting periods. (G) Risk Assessment-a process by which programs are identified by specific risk factors that present the greatest risk to agency resources and responsibility. [(2) On-Site Visits. A minimum of quarterly on-site visits are required. Additional site visits may be necessary determined by work loads, regional needs and service agency performance.] (2)
                                                                                                                                                                                                                                                            [(3)] Monitoring. (A) The central office contract administration
                                                                                                                                                                                                                                                              [contract specialist] develops an annual
                                                                                                                                                                                                                                                                [a] schedule to monitor all service agencies based on a risk assessment. The schedule may be revised quarterly. Monthly schedules are distributed to regions.
                                                                                                                                                                                                                                                                  [service agents performance and needs.] (B) All visits are documented using the form designated by central office contract administration as appropriate. (C) Scheduled visits are made by staff designated on the monthly schedule. [(B) The contract specialist prepares for the monitoring visit by talking with the casemanager, reviewing case information on youth placed in the program for relevant data, interviewing community and professional personnel as appropriate, reviewing appropriate licensing reports, and reviewing past monitoring data. [(C) The contract specialist schedules and conducts monitoring visit with the service agent. [(D) The contract specialist conducts an exit interview with the service agent to discuss the findings of the visit. [(E) If no deficiencies are found, the contract specialist sends a letter of documentation to the service agent. [(F) If a deficiency(ies) is found, the contract specialist completes a follow-up report with a corrective action plan within five days of the visit.] (3)
                                                                                                                                                                                                                                                                    [(4)] Monitoring Corrective Action.
                                                                                                                                                                                                                                                                      [Follow-Up] (A) The contract specialist follows up with the service agent in the time frame designated in the corrective action plan.
                                                                                                                                                                                                                                                                        [previous monitoring.] (B) The contract specialist documents completion of the corrective action. [(C) The contract specialist sends within five days of the follow-up visit, a corrective action taken by the service agent to those parties who received the monitoring report.] (4)
                                                                                                                                                                                                                                                                          [(5)] Imposing Sanctions. (A) If the service agent fails to complete the corrective action specified and no extenuating circumstances exist, non-compliance with the contract, or below average in the TYC performance measures,
                                                                                                                                                                                                                                                                            the contract specialist may initiate
                                                                                                                                                                                                                                                                              [initiates] the sanction appropriate for the performance deficiency. (B) The contract specialist documents each contact with the service agent by sending a follow-up letter. (C) The regional director will submit in writing to the chief of community placement a request for a major
                                                                                                                                                                                                                                                                                sanction with justification, proposed start date and the projected completion date. (D) The chief of community placement reviews all proposed major
                                                                                                                                                                                                                                                                                  sanctions and makes a final decision. (E) The chief of community placement will notify appropriate TYC staff. (F) The regional director will communicate in writing to the facility the imposed sanction. (5)
                                                                                                                                                                                                                                                                                    [(6)] Sanctions. (A) Minor sanctions: (i) Conference (ii) Letter documenting deficiencies, correction action needed, and timetable to program director/executive director (iii) Letter to program director/executive director with copies to the program's board president (B) Major sanctions: (i) Moratorium on placements (ii) Probation (iii) Removal of youth (iv) Contract termination (6)
                                                                                                                                                                                                                                                                                      [(7)] Evaluation. An overall evaluation is conducted annually according to the Residential Contract Monitoring manual.
                                                                                                                                                                                                                                                                                        [and prior to the end of each contract. The evaluation is based on all quality assurance components collected during the contract period which includes all monitoring reports during a contract period, compiled to assess a service agent's compliance with contract and service 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 November 1, 1995. TRD-9514112 Steve Robinson Executive Director Texas Youth Commission Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 483-5244 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 15. Medicaid Eligibility The Texas Department of Human Services (DHS) proposes amendments to sec.sec.15.100, 15.215, 15.450, 15.455, 15.502; and new sec.15.453, concerning long-term care insurance policies; Veterans Administration contracts; deeming of income from a spouse; Retirement, Survivors, and Disability Insurance (RSDI) and Supplemental Security Income (SSI) recoupments; and incurred medical expenses, in its Medicaid Eligibility rule chapter. The purpose of the amendments and new section is to provide policy clarifications regarding long-term care Medicaid eligibility rules. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed 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. Raiford 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 that eligibility policy will be applied consistently, statewide. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Judy Coker at (512) 438-3227 in DHS's Long Term Care Division. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy Services-051, Texas Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in the Texas Register. Subchapter A. General Information 40 TAC sec.15.100 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. s22.001-22.024 and sec.sec.32.001-32.042. sec.15.100. Definitions.
                                                                                                                                                                                                                                                                                          The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise. Ineligible child -for deeming purposes, the natural or adopted child of the client, of the client's spouse, or of the parent or parent's spouse, who lives with the client, is not eligible for SSI or Medical Assistance Only, and who is under age 18, or under age 21 and a student regularly attending a school, college, university, or course of vocational training in preparation for gainful employment. Medically necessary -The need for medical services in an amount and frequency sufficient, according to accepted standards of medical practice, to preserve health and life and to prevent future impairment. For dental services, prosthetic devices, and walking aids/shoes, the client must provide a statement of medical necessity from his physician. 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 November 1, 1995. TRD-9514101 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: February 1, 1996 For further information, please call: (512) 450-3765 Subchapter B. Medicare and Third-Party Resources 40 TAC sec.15.215 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. s22.001-22.024 and sec.sec.32.001-32.042. sec.15.215. Third-party Resources (TPRs). (a) (No change.) (b) TPRs include the following: (1)-(4) (No change.) (5) Long-term care insurance policies. (A) Long-term care insurance policies pay for nursing facility care. Benefits are specified in the policy purchased by the client. (B) Long-term care insurance policies do not affect Medicaid eligibility. If a client has such a policy, the eligibility specialist reports it as a third- party resource, using a Medical Insurance Input form. (c)-(e) (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 November 1, 1995. TRD-9514103 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: February 1, 1996 For further information, please call: (512) 450-3765 Subchapter E. Income 40 TAC sec.sec.15.450, 15.453, 15.455 The amendments and new section are proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provide the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendments and new section implement the Human Resources Code, sec.sec.22. 001-22.024 and sec.sec.32.001-32.042. sec.15.450. General Principles Concerning Income. (a)-(b) (No change.) (c) Third-party resource (TPR) reimbursements to the client (for example, from medical insurers) for a given medical service, which do not exceed the amount spent by the client for that same service, are not countable income. (d) Refunds to a client from the Third-Party Recovery Unit, Texas Department of Health, are made when TPR payments (for example, from medical insurers) for a given medical service exceed the amount Medicaid paid for that same service. These refunds are countable income to the client upon receipt. sec.15.453. Reduction of Pension and Benefit Checks for Recoupment of Overpayments.
                                                                                                                                                                                                                                                                                            When pension or benefit checks are reduced because of recovery of overpayments, the following guidelines apply: (1) For all overpayments except Retirement, Survivors, and Disability Insurance (RSDI). (A) If the client was receiving Supplemental Security Income (SSI) or Medical Assistance Only (MAO) at the time of overpayment, disregard as income the amount being recovered. Count the net amount of the benefit (for example, the gross benefit minus the amount being recouped) for eligibility and applied income purposes. (B) If the client was not receiving SSI or MAO at the time of overpayment, the recovered amount is still countable income. Count the gross amount of the benefit for eligibility and applied income purposes. (2) For RSDI overpayments. (A) If there was an overpayment of Social Security (RSDI or Title II) benefits, the recoupment is not voluntary. Count the net amount of the RSDI benefit (for example, the gross RSDI minus the amount being recouped) for eligibility and applied income purposes. (B) If there was an overpayment of Supplemental Security Income (SSI or Title XVI) benefits, the recoupment is voluntary. Determine if the client signed the voluntary agreement for recoupment. If there is a signed agreement, count the gross RSDI for eligibility and applied income purposes. (If there is no signed agreement, there should be no recoupment from RSDI benefits.) The eligibility specialist should explain to the client that he is responsible for paying the full applied income amount, the adverse effect of agreeing to the RSDI benefit reduction, and that he may elect to revoke such an agreement. sec.15.455. Unearned Income. (a)-(b) (No change.) (c) Fixed income. Sources of unearned, fixed income are as follows: (1) -(2) (No change.) (3) VA compensation, pension, and dependency and indemnity compensation (DIC) payments. (A) (No change.) (B) VA aid-and-attendance,
                                                                                                                                                                                                                                                                                              [and] housebound benefits, and reimbursements for unusual medical expenses are not income for eligibility, applied income, or deeming purposes. They are also not part of the community spouse's income (in spousal impoverishment cases) when calculating the spousal diversion in the applied income budget
                                                                                                                                                                                                                                                                                                [are excluded in the income- eligibility test and in determining the amount of applied income. These benefits are also excluded for deeming]. (C) (No change.) (D) A VA contract for payment of nursing facility services does not affect Medicaid eligibility. If an application is filed, the Texas Department of Human Services proceeds with the eligibility determination. If the case is certified while the contract is still in effect, the VA contract is reported as a third- party resource on the Medical Insurance Input form. (d)-(e) (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 November 1, 1995. TRD-9514104 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: February 1, 1996 For further information, please call: (512) 450-3765 Subchapter F. Budget and Payment Plans 40 TAC sec.15.502 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs; and under Texas Civil Statutes, Article 4413(502), sec.16, which provide the Health and Human Services Commission with the authority to administer federal medical assistance funds. The amendment implements the Human Resources Code, sec. s22.001-22.024 and sec.sec.32.001-32.042. sec.15.502. Deduction of Incurred Medical Expenses. (a) Public Law 100-360 requires the department to deduct, when determining a client's applied income, certain incurred medical expenses not covered by a third party. The department limits these expenses to Medicare and other general health insurance premiums, deductibles, and coinsurance and to medical care and services that are recognized by state law but not covered under the Medicaid state plan. Deductions are not allowed for medical services received before the client's certification date. In spousal impoverishment cases, if there is a diversion of income to the community-based spouse, incurred medical expenses paid by the community-based spouse for the nursing facility client are allowable deductions.
                                                                                                                                                                                                                                                                                                  Health insurance benefits must be assignable. This deduction applies only to MAO clients. (b) Allowable deductions include but are not limited to: [(1) parenteral fluids;] (1)
                                                                                                                                                                                                                                                                                                    [(2)] medically necessary
                                                                                                                                                                                                                                                                                                      routine dental services, including dentures, for NF clients, and emergency dental services not covered by the Emergency Dental Services System; (2)
                                                                                                                                                                                                                                                                                                        [(3)] medically necessary prosthetic devices; (3)
                                                                                                                                                                                                                                                                                                          [(4)] medically necessary walking aids and special shoes/support devices for feet; and (4)
                                                                                                                                                                                                                                                                                                            [(5)] physicals. (c)-(f) (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 November 1, 1995. TRD-9514105 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: February 1, 1996 For further information, please call: (512) 450-3765 Chapter 48. Community Care for Aged and Disabled In-Home and Family Support Program 40 TAC sec.48.2704 The Texas Department of Human Services (DHS) proposes an amendment to sec.48.2704, concerning functional eligibility, in its Community Care for Aged and Disabled chapter. The purpose of the amendment is to enable staff to request a physician's statement if other records alone cannot clearly establish disability. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed section is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the section. Mr. Raiford 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 to ensure the correct determination of disability so program eligibility determination can be made. 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 the proposal may be directed to Debbie Berliner at (512) 438-3199 in DHS's Client Eligibility section. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy Services-077, 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, Title 2, Chapters 22 and 35, which provides the department with the authority to administer public assistance and support services for persons with disabilities programs. The amendment implements the Human Resources Code, sec. s22.001-22.024 and sec.sec.35.001-35.012. sec.48.2704. Functional Eligibility. (a)-(b) (No change.) (c) The applicant must give permission to obtain verification of the diagnosis, limitations, and prognosis of
                                                                                                                                                                                                                                                                                                              his disability through either a signed physician's statement or clinical, educational, medical, diagnostic, and evaluation records . If clinical, educational, medical, diagnostic, or evaluation records are questionable or do not clearly establish the disability, a signed physician's statement must be provided.
                                                                                                                                                                                                                                                                                                                [that include the following: [(1) diagnosis; [(2) limitation; and [(3) prognosis.] (d)-(e) (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 October 31, 1995. TRD-9514018 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: February 1, 1996 For further information, please call: (512) 438-3765 Chapter 95. Medication Aides Program Requirements 40 TAC sec.sec.95.101, 95.103, 95.107, 95.109, 95.111, 95.115, 95. 119, 95.121, 95.123, 95.125 The Texas Department of Human Services (DHS) proposes amendments to sec.sec.95.101, 95.103, 95.107, 95.109, 95.111, 95.115, 95.119, 95.121, 95.123, and 95.125, concerning introduction; requirements for administering medications; training requirements; nursing graduates reciprocity; application procedures; examination; permit renewal; training program requirements; permitting of persons with criminal backgrounds; violations, complaints, and disciplinary actions; and requirements for correctional institutions, in its Medication Aides chapter. The purpose of the amendments is to conform to changes made in the nurse aide rules, which were necessary to bring those rules into compliance with federal regulations. Burton F. Raiford, commissioner, has determined that for the first five-year period the proposed 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. Raiford 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 strengthen the sections that stipulate the permitting of medication aides, as well as bring the sections into compliance with federal regulations. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the proposed sections. Questions about the content of the proposal may be directed to Wendy Francik at (512) 450-3167 in DHS's Institutional Policy Section. Written comments on the proposal may be submitted to Nancy Murphy, Agency Liaison, Media and Policy Services-550, 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 amendments are proposed under the Health and Safety Code, Chapter 242, which provides the department with the authority to regulate medication aides and under Texas Civil Statutes, Article 4413(502), historical note (Vernon Supplement 1993), 72nd Legislature, which transferred all functions, programs, and activities related to long-term care licensing, certification, and surveys from the Texas Department of Health to the Texas Department of Human Services. The amendments implement the Health and Safety Code, sec. s242.151-161. sec.95.101. Introduction. (a) (No change.) (b) Definitions. The following words and terms, when used in this Chapter, must have the following meanings, unless the context clearly indicates otherwise. (1) Abuse-The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.
                                                                                                                                                                                                                                                                                                                  [Any act, failure to act, or incitement to act done willfully, knowingly, or recklessly through words or physical action which causes or could cause mental or physical injury or harm or death to a resident. This includes verbal, sexual, mental and/or psychological, and physical abuse (including corporal punishment), involuntary seclusion, or any other actions within this definition.] (2) (No change.) (3) Facility-An institution licensed under the Health and Safety Code, Chapter 242; a state school as defined in the Texas Civil Statutes, Article 5547-201, sec.1.02(16); [and] a correctional institution as established under the jurisdiction of the Texas Department of Criminal Justice; a mental health and mental retardation program that is operated under the jurisdiction of the Texas Department of Mental Health and Mental Retardation (TDMHMR) and that meets the criteria in sec.95.103(b) of this title (relating to Requirements for Administering Medications); and a personal care facility licensed under the Health and Safety Code, Chapter 247, that meets the criteria in sec.95.103(b) of this title (relating to Requirements for Administering Medications). (4) Licensed nurse-An individual licensed as a licensed vocational nurse or a licensed registered nurse. (5) Licensed vocational nurse -A nurse who is currently licensed by the Board of Vocational Nurse Examiners for the State of Texas. (6)
                                                                                                                                                                                                                                                                                                                    [(4)] Medication aide -A person permitted by DHS to administer medications to facility residents. (7)
                                                                                                                                                                                                                                                                                                                      [(5)] Misappropriation of resident property-The deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent
                                                                                                                                                                                                                                                                                                                        [taking, secretion, misapplication, deprivation, transfer, or attempted transfer to any person not entitled to receive any property, real or personal, or anything of value belonging to or under the legal control of a resident without the effective consent of the resident or other appropriate legal authority, or the taking of any action contrary to any duty imposed by federal or state law prescribing conduct relating to the custody or disposition of property of a resident]. (8)
                                                                                                                                                                                                                                                                                                                          [(6)] Neglect- The failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.
                                                                                                                                                                                                                                                                                                                            [A deprivation of life's necessities of food, water, or shelter or a failure of an individual to provide services, treatment, or care to a resident which causes or could cause mental or physical injury or harm or death to the resident.] (9) Non-licensed direct care staff-Employees of facilities other than Medicare-skilled nursing facilities or Medicaid nursing facilities who are primarily involved in the delivery of services to assist with residents' activities of daily living and/or active treatment programs. (10) Nurse aide-An individual certified to provide nursing or nursing- related services to residents in a facility under the supervision of a licensed nurse. This individual has completed a nurse aide training and competency evaluation program (NATCEP) approved by the state as meeting the requirements of the Code of Federal Regulations (CFR), Chapter 42, sec.sec.483. 151-483.154, or has been determined competent as provided in 42 CFR, sec.483. 150(a) and (b), and is listed as certified on the nurse aide registry of DHS. This definition does not include an individual who is a licensed health professional, a registered dietitian, a non-licensed direct staff person, or who volunteers such services without monetary compensation. (11)
                                                                                                                                                                                                                                                                                                                              [(7)] Registered nurse (RN)-An individual currently licensed by the Texas Board of Nurse Examiners to practice professional nursing. (12)
                                                                                                                                                                                                                                                                                                                                [(8)] Registered pharmacist -An individual currently licensed by the Texas Board of Pharmacy to practice pharmacy. (13)
                                                                                                                                                                                                                                                                                                                                  [(9)] Training program-A program approved by DHS to instruct individuals to act as medication aides. sec.95.103. Requirements for Administering Medications. (a)-(b) (No change.) (c) Governmental employees. Governmental employees may receive a permit to administer medications under this chapter as authorized by Health and Safety Code, sec.242.154(f): (1) State school employees and employees of mental health and mental retardation programs operated under the jurisdiction of the Texas Department of Mental Health and Mental Retardation (TDMHMR)
                                                                                                                                                                                                                                                                                                                                    must comply with subsection (b) of this section and ssec.95.105, 95.107, 95.109, 95.111, 95.113, 95.115, 95.117, 95.119, 95.121, and 95.123 of this title (relating to Allowable and Prohibited Practices of a Permit Holder; Training Requirements, Nursing Graduates, Reciprocity; Application Procedures; Examination; Determination of Eligibility; Permit Renewal; Changes; Training Program Requirements; Permitting of Persons with Criminal Backgrounds; Violations, Complaints and Disciplinary Actions). (2) Correctional institution employees and employees of medical services contractors for a correctional institution
                                                                                                                                                                                                                                                                                                                                      must comply with sec.95. 125 of this title (relating to Requirements for Correctional Institutions). (d) Medication
                                                                                                                                                                                                                                                                                                                                        [Nurse] aides. Persons employed
                                                                                                                                                                                                                                                                                                                                          [used] as medication aides in a Medicare skilled nursing facility or a Medicaid nursing facility must comply with the requirements relating to nurse aides as set forth in the Omnibus Budget Reconciliation Act of 1987, Public Law 100-203, sec.4201- 4214, December 22, 1987, as amended, and Chapter 94 of this title (relating to Nurse Aides). (e) (No change.) sec.95.107. Training Requirements; Nursing Graduates; Reciprocity. (a) (No change.) (b) Prior to application for a permit under this chapter, all persons must: (1)-(4) (No change.) (5) be currently employed in a facility as a nurse aide or nonlicensed direct care staff person on the first official day of an applicant's medication aide training program
                                                                                                                                                                                                                                                                                                                                            ; and (6) have been employed in a facility for 90 days as a [nurse aide or] nonlicensed direct care staff person. This employment must have been completed within the 12-month period preceding the first official day of the applicant's medication aide training program. An applicant employed as a nurse aide in a Medicare-skilled nursing facility or a Medicaid nursing facility is exempt from the 90-day requirement. (c)-(e) (No change.) sec.95.109. Application Procedures. (a)-(d) (No change.) (e) DHS will send a notice listing the additional materials required to an applicant who does not complete the application in a timely manner. An application not completed by the day of the medication aide final exam
                                                                                                                                                                                                                                                                                                                                              [within 30 days after the date of the notice] must be voided. (f) (No change.) sec.95.111. Examination. (a) A written examination must be given by the Texas Department of Human Services (DHS) to each applicant at a site determined by DHS. (1) A
                                                                                                                                                                                                                                                                                                                                                [No] final examination may not
                                                                                                                                                                                                                                                                                                                                                  [must] be given to an applicant until the applicant has met the requirements of sec.95.107 of this title (relating to Training Requirements; Nursing Graduates; Reciprocity) and s95.109 of this title (relating to Application Procedures). (2)-(6) (No change.) (b)-(c) (No change.) sec.95.115. Permit Renewal. (a) (No change.) (b) Permit renewal procedures. [(1) At least 30 days prior to the expiration date of a permit, DHS must send to the permit holder, at the address listed in DHS's records, notice of the expiration date of the permit and the amount of the renewal fee due and a renewal form which the permit holder must complete and return with the required renewal fee.] (1)
                                                                                                                                                                                                                                                                                                                                                    [(2)] The renewal form must include the preferred mailing address of the permit holder and information on certain misdemeanor and felony convictions. It must be signed by the permit holder. (2)
                                                                                                                                                                                                                                                                                                                                                      [(3)] DHS must issue a renewal permit to a permit holder who has met all requirements for renewal. (3)
                                                                                                                                                                                                                                                                                                                                                        [(4)] A permit must not be renewed if the permit holder does not complete the required seven-clock-hour continuing education requirement. Successful completion must be determined by the student's instructor. An individual who does not meet the continuing education requirement must complete a new program, application, and examination in accordance with the requirements of this chapter. (c)-(d) (No change.) sec.95.119. Training Program Requirements. (a) (No change.) (b) Basic training program. (1)-(6) (No change.) (7) The coordinator must provide clearly defined and written policies regarding each student's clinical experience to the student, the administrator, and the director of nursing in the facility used for the clinical experience. (A) The clinical experience must be counted only when the student is performing
                                                                                                                                                                                                                                                                                                                                                          [observing or involved in] functions involving medication administration and under the direct, contact supervision of a licensed nurse. (B) (No change.) (8)-(9) (No change.) (c) (No change. ) sec.95.121. Permitting of Persons with Criminal Backgrounds. The Texas Department of Human Services (DHS) may suspend or revoke an existing permit, disqualify a person from receiving a permit, or deny to a person the opportunity to be examined for a permit because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a medication aide. (1) In considering whether a criminal conviction directly relates to the occupation of a medication aide, DHS must consider: (A) (No change.) (B) the relationship of the crime to the purposes for requiring a permit to be a medication aide. The following felonies and misdemeanors relate to the permit of a medication aide because these criminal offenses indicate an inability or a tendency to be unable to perform as a medication aide: (i) (No change.) (ii) any conviction for an offense listed in sec.250. 006
                                                                                                                                                                                                                                                                                                                                                            [ s250.005] of the Health and Safety Code; (iii)-(vi) (No change.) (C)-(D) (No change.) (2) (No change.) sec.95.123. Violations, Complaints, and Disciplinary Actions. (a) Filing of complaints. Any person may complain to the Texas Department of Human Services (DHS) alleging that a person or program has violated the code or this chapter. (1) Persons who want to file a complaint against a permit holder, program, or another person, must notify DHS in writing [, by telephone, or by personal visit to DHS]. The mailing address is Medication Aide Permit Program, Texas Department of Human Services, P.O. Box 149030, Mail Code Y-979,
                                                                                                                                                                                                                                                                                                                                                              Austin, Texas 78714-9030. (2)-(3) (No change.) (b) (No change.) (c) Disciplinary actions. DHS may deny an application or permit renewal, suspend or revoke a permit, or rescind program approval for any violation of the code or this chapter. [(1) If an alleged act of abuse, neglect, or misappropriation by a permitted medication aide, who also is a certified nurse aide under the provisions of Chapter 94 of this title (relating to Nurse Aides), violates the rules in this chapter and Chapter 94, the medication aide's request for an appeal of DHS's finding on abuse, neglect, and misappropriation must be conducted through DHS's formal hearing procedures under sec.sec.79.1601-79.1614 of this title (relating to Formal Appeals) and the Administrative Practices Act (APA), Title 10 of the Texas Government Code, ssec.2001.051 et seq. Through the formal hearing, determinations must be made on both the permit for medication aide practice and the certificate for nurse aide practice.] (1)
                                                                                                                                                                                                                                                                                                                                                                [(2)] Prior to institution of formal proceedings to revoke or suspend a permit or rescind program approval, DHS must give written notice to the permit holder or program of the facts or conduct alleged to warrant revocation, suspension, or rescission, and the permit holder or program must be given an opportunity, as described in the notice, to show compliance with all requirements of the Health and Safety Code, Chapter 242, and this chapter. When there is a finding of an alleged act of abuse, neglect, or misappropriation of resident property by a permit holder employed at a Medicaid- certified nursing facility or a Medicare-certified skilled nursing facility, DHS must comply with the hearings process as provided in 42 Code of Federal Regulations 488.335. (2)
                                                                                                                                                                                                                                                                                                                                                                  [(3)] If denial, revocation, or suspension of a permit or rescission of program approval is proposed, DHS must give written notice that the permit holder or program must request, in writing, a formal hearing within 30 days of receipt of the notice, or the right to a hearing must be waived and the permit must be denied, revoked, or suspended or the program approval must be rescinded. (3)
                                                                                                                                                                                                                                                                                                                                                                    [(4)] The formal hearing must be conducted according to DHS's formal hearing procedures under ssec.79.1601-1614 of this title (relating to Formal Hearings) and sec.sec.76.101-76.108 of this title (relating to Criminal History Check of Employees in Facilities for Care of the Aged and Persons with Disabilities), if applicable. (4) If an alleged act of abuse, neglect, or misappropriation by a medication aide who also is a certified nurse aide under the provisions of Chapter 94 of this title (relating to Nurse Aides) violates the rules in this chapter and Chapter 94, DHS must comply with the formal hearing process as required in paragraph (3) of this subsection. Through the formal hearing, determinations will be made on both the permit for medication aide practice and the certificate for nurse aide practice. (d) (No change.) sec.95.125. Requirements for Correctional Institutions. (a) Purpose. The purpose of this section is to provide the qualifications, conduct, and practice activities of a medication aide employed in a correctional institution or employed by a medical services contractor for a correctional institution
                                                                                                                                                                                                                                                                                                                                                                      . (b)-(c) (No change.) (d) Application. [(1)] An employee of a correctional institution or an employee of a medical services contractor for a correctional institution
                                                                                                                                                                                                                                                                                                                                                                        must submit an official application form to the Texas Department of Human Services (DHS). An application for a permit must be made in accordance with sec.95.109(b) and (c) of this title (relating to Application Procedures). [(2) The Texas Department of Criminal Justice (TDCJ) must certify to DHS the individuals who have completed a training program approved under sec.95.119 of this title (relating to Training Program Requirements). A previous training program taught by the predecessor agency of TDCJ using the then-approve curriculum is deemed to meet the training program requirements of this paragraph.] (e) Examination procedures. [Examination procedures must be as follows.] [(1)] A written examination must be given by DHS to each applicant at a site determined by DHS. Examination provisions for employees of correctional institutions must comply with sec.95.111
                                                                                                                                                                                                                                                                                                                                                                          [sec.95.111(a)(2), (5)-(6), and (b)] of this title (relating to Examination). [(2) The applicant must complete the examination no later than 90 days after certification is received by DHS from the Texas Department of Criminal Justice. If the applicant fails the exam, another examination must be given only if the applicant enrolls in and successfully completes another training program.] (f)-(j) (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 October 31, 1995. TRD-9514019 Nancy Murphy Section Manager, Media and Policy Services Texas Department of Human Services Proposed date of adoption: January 15, 1996 For further information, please call: (512) 438-3768 TITLE 43. TRANSPORTATION Part I. Texas Department of Transportation Chapter 21. Right of Way Control of Outdoor Advertising Signs 43 TAC sec.sec.21.142, 21.149, 21.150, 21.153, 21.160 The Texas Department of Transportation proposes amendments to sec.sec.21.142, 21.149, 21.150, 21.153, and 21.160, concerning the control of outdoor advertising signs. Senate Bill 971, 74th Legislature, 1995, re-codified the statutes relating to transportation into the Transportation Code. Transportation Code, Chapter 391, previously codified at Texas Civil Statutes, Article 4477-9a, provides the department with authority to control outdoor advertising. House Bill 467, 73rd Legislature, Regular Session, 1993, amended Texas Civil Statutes, Article 4477-9a, to provide for combined license and permit fees of $10 for outdoor advertising erected and maintained by a nonprofit organization in a municipality or a municipality's extraterritorial jurisdiction if the advertising relates to or promotes only the municipality or a political subdivision whose jurisdiction is wholly or partly concurrent with the municipality. House Bill 467, also removed the requirement for nonprofit organizations to file a bond. Prior to House Bill 467, all outdoor advertisers including nonprofit organizations were required to pay an original fee of $125 for an outdoor advertiser's license and an annual renewal fee of $60. In addition, they were required to obtain a surety bond in the amount of $2,500 for each county, up to a total amount of $10,000. They were also required to pay an original permit fee of $96 and an annual renewal fee of $40 for each sign that they erected and maintained. The amendments to sec.sec.21.142, 21.149, 21.150, 21.153, and 21.160 provide for a limitation on the combined license and permits fees for a sign erected and maintained by a nonprofit organization in a municipality or the extraterritorial jurisdiction of a municipality if the sign advertises or promotes only the municipality or another political subdivision whose jurisdiction is in whole or in part concurrent with the municipality, and exempts a nonprofit organization from the requirement that it file a bond. Gary Bernethy, director, Right of Way Division, has determined that for the first five years the sections are in effect there will be fiscal implications as result of enforcing or administering the sections. The effect on state government for the first five-year period the sections are in effect is an increase in cost of $5,000 for each year of the first five years. Mr. Bernethy also has determined that there will not be fiscal implications for local governments as a result of enforcing or administering the proposed sections. Mr. Bernethy has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed sections. Mr. Bernethy 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 allow nonprofit organizations to erect and maintain outdoor signs to promote the municipality or a political subdivision of the municipality for a lower fee. 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. Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed amendments. A public hearing will be held at 9:00 a.m. on Tuesday, November 28, 1995, in the First Hearing Room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas. The hearing will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 8:30 a.m. Any interested person may appear and offer comments, either orally or in writing; however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member where possible. Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc., for proper reference. Any suggestions or requests for alternative language or other revisions in the proposed text should be submitted in written form. Presentations must remain pertinent to the issues being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lundgren, Director of Public Information Office, at 125 East 11th Street, Austin, Texas 78701-2383, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed amendments may be submitted to Gary Bernethy, Director, Right of Way Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701. The deadline for receipt of written comments will be 5:00 p.m. on December 4, 1995. The amendments are proposed under the Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Texas Transportation Code, sec.391.065, which authorizes the commission to adopt rules to regulate the orderly and effective display of outdoor advertising signs on the Interstate or Primary System. The amendments do not affect any other statute, article, or code. sec.21.142. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Highway Beautification provisions of the Texas Litter Abatement Act, codified as Transportation Code, Chapter 391
                                                                                                                                                                                                                                                                                                                                                                            [Texas Civil Statutes, Article 4477-9a]. Commission-The Texas
                                                                                                                                                                                                                                                                                                                                                                              [State Highway and Public] Transportation Commission. Department-The Texas Department of
                                                                                                                                                                                                                                                                                                                                                                                [State Department of Highways and Public] Transportation. Federal-aid primary highway system-That portion of connected main highways located within the State of Texas which now or hereafter may be so designated officially by the Texas
                                                                                                                                                                                                                                                                                                                                                                                  [State Highway and Public] Transportation Commission and approved pursuant to 23 United States Code, sec.103. Interstate highway system-That portion of the national system of interstate and defense highways located within the State of Texas which now or hereafter may be so designated officially by the Texas
                                                                                                                                                                                                                                                                                                                                                                                    [State Highway and Public] Transportation Commission and approved pursuant to 23 United States Code, sec.103. License-An outdoor advertising license issued by the department pursuant to the provisions of the Transportation Code, Chapter 391, Subchapter C
                                                                                                                                                                                                                                                                                                                                                                                      [Act, sec.4.04]. Nonprofit sign -A sign erected and maintained by a nonprofit organization in a municipality or the extraterritorial jurisdiction of a municipality if the sign advertises or promotes only the municipality or another political subdivision whose jurisdiction is in whole or in part concurrent with the municipality. Permit-The authorization granted for either the erection or maintenance or both, of an outdoor advertising sign as provided in the Act, sec.391.068
                                                                                                                                                                                                                                                                                                                                                                                        [4.05]. sec.21.149. Licenses. (a) Application and issuance. (1) Except as provided in sec.21.147 of this title (relating to Exempt Signs) , and except as provided in subsection (f) of this section,
                                                                                                                                                                                                                                                                                                                                                                                          a sign owner or sign lessee may not erect or maintain a sign as governed by sec.21.146 of this title (relating to Signs Controlled) until the owner or lessee has obtained a license covering the county in which the sign is to be erected or maintained. Licenses are issued by the director of right of way. An applicant for a license must file an application in a form prescribed by the department, which shall include, but not be limited to: (A)-(C) (No change.) (2)-(3) (No change.) (b)-(c) (No change.) (d) Revocation or suspension. The director of right of way may suspend the issuance of additional permits or the transfer of existing permits or revoke a license if: (1) (No change.) (2) the licensee violates one or more applicable provisions of this undesignated head or Transportation Code, Chapter 391
                                                                                                                                                                                                                                                                                                                                                                                            [Texas Civil Statutes, Article 4477-9a]; or (3) (No change.) (e) (No change.) (f) Exception. A nonprofit organization may erect or maintain a nonprofit sign without obtaining an outdoor advertising license. A permit must be obtained for any sign erected or maintained pursuant to this exception, in accordance with sec.21.150 of this title (relating to Permits). sec.21.150. Permits. (a) Eligibility. Except as provided in subsection (k) of this section, a
                                                                                                                                                                                                                                                                                                                                                                                              [A] permit under this section may only be issued to a sign owner holding a valid license issued pursuant to sec.21.149 of this title (relating to Licenses). (b) Application and issuance. (1) Except as provided in sec.21.151 of this title (relating to Local Control) a sign owner who desires a permit to erect or maintain a sign as required in sec.21.146 of this title (relating to Signs Controlled) must file an application in a form prescribed by the department, which shall include, but not be limited to: (A)-(C) (No change.) (D) indication that the site owner has consented to the erection of the sign; [and] (E) verification of the applicant's nonprofit status if the sign is a nonprofit sign; and (F) such additional information as the department deems necessary. (2)-(4) (No change.) (c)-(d) (No change.) (e) Transfer. (1) A permit may only be assigned or transferred with the written approval of the district engineer. At the time of the transfer, both the transferor and the transferee must hold a valid outdoor advertising license issued pursuant to sec.21.149 of this title (relating to Licenses), except as provided in paragraphs (3) and (4) of this subsection. (2) (No change.) (3) A permit issued under subsection (k) of this section may be transferred to a nonprofit organization that does not hold a valid outdoor advertising license issued under sec.21.149 of this title (relating to Licenses) if the permit is transferred for the purpose of maintaining a nonprofit sign. (4) A permit issued under subsection (k) of this section may be transferred for a purpose other than maintaining a nonprofit sign if the transferee holds a valid outdoor advertising license at the time of the transfer. (f) (No change.) (g) Fees. (1) Except as provided in paragraph (2) of this subsection, for
                                                                                                                                                                                                                                                                                                                                                                                                [For] a permit issued pursuant to this section: (A)-(D) (No change.) (2) For a nonprofit sign: (A) the original fee is $10 for each sign; (B) the annual renewal fee is $10; and (C) the transfer fee is waived for the transfer of a permit issued under subsection (k) of this section if the permit is transferred under subsection (e)(3) of this section. Any other permit transfer is subject to the provisions of paragraph (1) of this subsection. (3)
                                                                                                                                                                                                                                                                                                                                                                                                  [(2)] A fee prescribed in this subsection is payable by check, cashier's check, or money order, and is nonrefundable. (h) Expiration or cancellation. The director of right of way may cancel a permit issued pursuant to this section if the sign subject to the permit is acquired by the state, is removed, or is not maintained in accordance with applicable sections under this undesignated head or Transportation Code, Chapter 391
                                                                                                                                                                                                                                                                                                                                                                                                    [Texas Civil Statutes, Article 4477-9a]. (i)-(j) (No change.) (k) Nonprofit signs. (1) A nonprofit organization may obtain a permit under this section to erect or maintain a nonprofit sign. (2) In order to qualify for a permit issued under this subsection, a sign must comply with all applicable requirements under this undesignated head from which it is not specifically exempted. (3) An application for a permit under this section must include, in detail, the content of the message to be displayed on the sign. Prior to changing the message on any sign permitted under this section, the permit holder must obtain the approval of the district engineer in whose district the sign is maintained. (4) If at any time the sign ceases to be a nonprofit sign, the permit will be subject to cancellation pursuant to subsection (h) of this section. (5) If the holder of a permit issued under this subsection loses its nonprofit status or wishes to advertise or promote something other than the municipality or political subdivision, an outdoor advertising license must be obtained pursuant to sec.21.149 of this title (relating to Licenses), the permit must be converted to a permit for a sign other than a nonprofit sign, and the holder must pay the original permit fee set forth in subsection (g)(1) and annual renewal fees set forth in subsection (g)(2) of this section. (6) A nonprofit organization that holds a valid permit for a nonconforming sign that would otherwise qualify for a permit under this subsection may convert its permit to one issued under this subsection. sec.21.153. Spacing of Signs. (a)-(h) (No change.) (i) The spacing rules in this section do not apply to on-premise or directional or other official signs, as provided in the Act, sec.391.031(b) (1)
                                                                                                                                                                                                                                                                                                                                                                                                      , [4.03(b)(1)] nor shall measurements be made from such signs. sec.21.160. Relocation. (a)-(c) (No change.) (d) Requirements. (1)-(9) (No change.) (10) The spacing requirements as provided in paragraph (7) of this subsection do not apply to: (A) (No change.) (B) on-premise or directional or official signs, as cited in the Texas Litter Abatement Act, Transportation Code, Chapter 391, sec.391.031(b)(1)
                                                                                                                                                                                                                                                                                                                                                                                                        [Texas Civil Statutes, Article 4477-9a, sec.4.03(b)(1),] nor shall measurements be made from such signs. (e)-(f) (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 October 31, 1995. TRD-9514121 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-8630 Chapter 27. Toll Projects Subchapter B. Texas Turnpike Authority 43 TAC sec.sec.27.20-27.26 The Texas Department of Transportation proposes new sec. s27.20-27.26, concerning the Texas Turnpike Authority. Transportation Code, Chapters 361 and 362, require that the Texas Transportation Commission authorize feasibility studies funded from the Texas Turnpike Authority Feasibility Study Fund and that the commission approve environmental reviews of authority projects, the location of authority projects, and any transfer of an authority project to another entity. Transportation Code, sec.362.051 prohibits the authority from initiating construction of a toll road, toll bridge, or turnpike without first obtaining commission approval if the project is to become part of the state highway system. Senate Bill 1360 enacted by the 74th Texas Legislature, 1995, amended the Transportation Code by creating sec.362.0041. The legislation allows the commission, upon approval of the Governor, to transfer an existing segment of a state highway to the authority for operation as a toll road when such a transfer is the most feasible and economic means to accomplish necessary enlargements, improvements or extensions of the state highway system. Section 27.20 explains that the purpose of the rules is to establish the criteria and procedures for the approval of certain phases of the development of turnpike projects constructed, maintained and operated by the authority; transfer existing free public highways to the authority to accomplish needed enlargements, improvements, or extensions; authorization of authority feasibility studies and approval of the authority's environmental reviews, project locations, projects, control of access, and transfer of projects. Section 27.21 defines words and terms used in the new subchapter. Section 27.22 requires that the authority submit a written request for authorization to conduct a project feasibility study, and provides that the commission shall consider the potential for environmental impact and the project's general compatibility with the state and regional transportation plans. Section 27.23 requires that the authority submit a written request for approval of an environmental review, requires that the authority's environmental review shall be conducted in accordance with the authority's rules, and provides that the commission will approve the authority's environmental review if it complies with this section and applicable laws. Section 27.24 authorizes the authority to designate the location, and establish, limit and control the points of ingress and egress from projects; provides that upon payment of all bonds and acceptance by the commission a turnpike project shall become part of the free state highway system; provides that certain governmental entities may not begin construction of a toll or turnpike project without commission approval if the project is to become part of the state highway system; requires that the authority submit a written request for project approval and provides a list of the required documentation; and provides the criteria for commission approval including effective integration into the state highway system, the department's ability to construct any connecting roads necessary for the project to generate sufficient revenue, and location of points of ingress and egress which ensure proper operation and maintenance. Section 27.25 provides that turnpike projects may be transferred to certain entities if the authority, the commission, and the Governor approve the transfer as being in the best interest of the state and the local government, requires that the authority submit a written request to lease, sell or otherwise convey a project from the authority to another entity and that such request must be accompanied by a written commitment from the accepting entity to maintain the facility in a safe and efficient manner, and an evaluation of the impact of such action on regional mobility and project financial viability; and establishes the criteria that the commission will consider before approving the lease, sale or conveyance of a project. Section 27.26 provides that if the commission finds that the conversion of an existing public highway (or segment of highway) to a toll facility is the most feasible and economic means to accomplish necessary enlargements, improvements or extensions to the state highway system, that segment may, on approval of the Governor, be transferred to the authority; requires the commission to conduct a public hearing prior to transferring an existing highway to the authority; requires publication of public hearing notices; requires the department to prepare a public hearing summary; requires the authority to reimburse the commission for the cost of a transferred highway unless the commission finds that the transfer will result in a substantial net benefit to the state; establishes the criteria that the commission will consider before agreeing to transfer an existing highway; authorizes the commission to request approval from the Governor to execute such a transfer; requires the commission to remove a transferred segment from the designated state highway system; and requires the authority to assume responsibility and liability for maintenance and operation of the transferred facility. Thomas A. Griebel, assistant executive director, Multimodal Transportation, has determined that for the first five years the new sections are in effect there will be fiscal implications for the state as a result of enforcing or administering the proposed sections. The anticipated estimated increase in cost to the state is a total of $19,000, which includes the cost to both agencies, for each year of the first five years the proposed sections are in effect. There are no anticipated fiscal implications to local governments as a result of administering or enforcing the sections. Mr. Griebel has certified that there will be no significant impact on local economies or overall employment as a result of enforcing or administering the proposed sections. Mr. Griebel 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 implementing the sections will be improved coordination between the Texas Department of Transportation and the Texas Turnpike Authority and more efficient and effective transportation planning for the people of Texas. There will be no effect on small businesses. The provisions of these sections are not applicable to individuals. Pursuant to the Administrative Procedure Act, Government Code, Chapter 2001, the Texas Department of Transportation will conduct a public hearing to receive comments concerning the proposed new sections. The public hearing will be held at 1:30 p.m. on Tuesday, December 5, 1995, in the First Floor Hearing room of the Dewitt C. Greer State Highway Building, 125 East 11th Street, Austin, Texas and will be conducted in accordance with the procedures specified in 43 TAC sec.1.5. Those desiring to make comments or presentations may register starting at 1:00 p.m. Any interested person may appear and offer comments, either orally or in writing, however, questioning of those making presentations will be reserved exclusively to the presiding officer as may be necessary to ensure a complete record. While any person with pertinent comments will be granted an opportunity to present them during the course of the hearing, the presiding officer reserves the right to restrict testimony in terms of time and repetitive content. Organizations, associations, or groups are encouraged to present their commonly held views and identical or similar comments through a representative member when possible. Comments on the proposed text should include appropriate citations to sections, subsections, paragraphs, etc. for proper reference. Any suggestions or requests for alternative language or other revisions to the proposed text should be submitted in written form. Presentations must remain pertinent to the issues being discussed. A person may not assign a portion of his or her time to another speaker. A person who disrupts a public hearing must leave the hearing room if ordered to do so by the presiding officer. Persons with disabilities who plan to attend this meeting and who may need auxiliary aids or services such as interpreters for persons who are deaf or hearing impaired, readers, large print or braille, are requested to contact Eloise Lundgren, Director of Public Information Office, at 125 East 11th Street, Austin, Texas 78701-2483, (512) 463-8588 at least two work days prior to the hearing so that appropriate arrangements can be made. Written comments on the proposed new sections may be submitted to Thomas A. Griebel, Assistant Executive Director, Multimodal Transportation, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483. The deadline for receipt of written comments will be 5:00 p.m. on December 8, 1995. The new sections are proposed under the Transportation Code, sec.201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the Texas Department of Transportation, and more specifically Transportation Code, Chapters 361 and 362, which provides that the commission must approve various aspects of turnpike project development and transfer of authority projects to other governmental entities; and may, upon approval of the Governor, transfer an existing public highway to the authority for conversion to a toll facility. The new sections do not affect any other statute, article, or code. sec.27.20. Purpose. Transportation Code, Chapter 361 and Transportation Code, Chapter 362, Subchapter B, require the approval of the Texas Transportation Commission and the Texas Department of Transportation for certain phases of the development of turnpike projects constructed, maintained, and operated by the Texas Turnpike Authority. Transportation Code, sec.362. 0041, also authorizes the commission to transfer existing free public highways to the authority to accomplish needed enlargements, improvements, or extensions. This subchapter governs authorization of authority feasibility studies funded through the authority's Feasibility Study Fund and approval of the authority's environmental reviews, project locations, projects, control of access, and transfer of projects. It also establishes the criteria and procedures by which the commission may transfer an existing public highway to the authority for conversion to a turnpike project. sec.27.21. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. Authority-The Texas Turnpike Authority. Commission-The Texas Transportation Commission. Department-The Texas Department of Transportation. Executive director -The chief administrative officer of the department. Feasibility study -Collectively, all evaluations and analyses necessary to ascertain the financial, technical, and environmental viability of a proposed project, including route location, environmental and financial investment studies. Metropolitan planning organization-An organization designated by the governor to carry out the transportation planning process in prescribed urbanized areas as required by 23 United States Code, sec.134. Turnpike project -A project of the Texas Turnpike Authority as defined by Transportation Code, Chapter 361. sec.27.22. Texas Turnpike Authority Feasibility Study Fund. Transportation Code, s361.182, provides that project feasibility studies funded from the Texas Turnpike Authority Feasibility Study Fund require approval of the commission. To secure approval the authority shall submit a written request to the executive director prior to initiating such a study. When acting on the authority's request, the commission shall consider the potential for environmental impact and the project's general compatibility with the adopted state transportation plan and, if pertinent, the regional transportation plan adopted by a metropolitan planning organization having jurisdiction in the project area. sec.27.23. Environmental Review. (a) Request. Transportation Code, sec.361.103, provides that the environmental review of a turnpike project must be approved by the commission before construction of that project begins. To secure that approval the authority must submit a written request to the executive director. (b) General Requirements. An environmental review submitted for approval under this section shall be conducted in accordance with the rules of the authority concerning environmental review of its projects. (c) Approval. The commission will approve the authority's environmental review if it finds that the review has complied with the requirements of this section. When acting on the authority's request for environmental review approval, the commission will consider applicable provisions of state and federal laws, rules and regulations. sec.27.24. Project Approval. (a) Requirements. Transportation Code, sec.361.101, authorizes the authority to construct, maintain, repair, and operate projects at such locations within the state as may be determined by the authority subject to approval as to location by the commission. Transportation Code, sec.361.043, authorizes the authority to designate the location, and establish, limit, and control such points of ingress to and egress from, each project as may be necessary and desirable in the judgment of the authority and the department to ensure the proper operation and maintenance of said project. Transportation Code, sec.361.238, provides that upon payment of all bonds and the acceptance by the commission as being in good condition and repair, a turnpike project shall become a part of the state highway system to be operated free of tolls. Transportation Code, sec.362.051 provides that certain governmental entities may not begin construction of a toll road, toll bridge, or turnpike without the approval of the commission if the project is to become part of the state highway system. (b) Request. To secure approval under this section the authority shall submit a written request for approval to the executive director. The request must be accompanied by: (1) documentation of the financial viability of the proposed project for purposes of seeking the approval described in subsection (c)(2) of this section; (2) a detailed schematic indicating the location of interchanges, mainlanes, and ingress and egress ramps; (3) a report identifying revisions or changes to state highway system facilities necessitated by the proposed project; and (4) an evaluation of the project integration with the state highway system. (c) Approval. The commission will approve a project if it finds that: (1) the project may be effectively integrated into the state highway system; (2) the department is able to construct any connecting roads necessary for the project to generate sufficient revenue to pay the debt incurred for its construction; and (3) points of ingress and egress are located in a manner that ensures the proper operation and maintenance of the project. sec.27.25. Transfer of Turnpike Projects. (a) Requirements. Transportation Code, sec.361.282, authorizes the transfer of a turnpike project to certain entities if the authority, the commission, and the governor approve the transfer of the project as being in the best interests of the state and the local government. (b) Request. To secure approval under this section to lease, sell, or otherwise convey a turnpike project to another entity the authority shall submit to the executive director a written request. Such request shall be accompanied by: (1) a written commitment to the commission from the accepting entity to maintain the facility in a safe and efficient manner; and (2) an evaluation of the impact of such action on regional mobility and project financial viability. (c) Approval. The commission will approve the lease, sale, or conveyance of a project if it finds that such transfer: (1) is in the best interests of the state; (2) is in the best interests of the county in which the project is located, or, if the project will be transferred to a municipality, is in the best interests of the municipality in which the project is located; and (3) will not adversely affect: (A) the financial viability of the project; or (B) regional mobility. sec.27.26. Transfer of Existing Public Highways. (a) Purpose. Transportation Code, sec.362.0041, provides that if the commission finds that the conversion of an existing segment of the free state highway system to a toll facility is the most feasible and economic means to accomplish necessary enlargements, improvements, or extensions to the state highway system, that segment may, on approval of the governor, be transferred by order of the commission to the authority. (b) Public involvement. Prior to transferring an existing segment of the state highway system to the authority, the commission will conduct a public hearing for the purpose of receiving comments from interested persons concerning the proposed transfer. Notice of the hearing will be published in the Texas Register, one or more newspapers of general circulation, and a newspaper, if any, published in the county or counties in which the involved segment of highway is located. The department will prepare a summary of the public hearing and all comments received in response to the hearing. (c) Reimbursement. The authority will reimburse the commission for the cost of the transferred highway, unless the commission finds that the transfer will result in substantial net benefits to the state, the department, and the traveling public that exceed that cost. The cost shall include the total dollar amount expended by the department for the original construction of the transferred highway (and all necessary appurtenant facilities), including all costs associated with the preliminary engineering and design engineering for plans, specifications and estimates, and acquisition of necessary right-of-way. (d) Criteria. The commission may transfer an existing highway to the authority, provided that: (1) the authority agrees, through binding written commitment, to accept the highway for maintenance and operation in a safe and efficient manner while protecting and preserving the state's investment in the facility; (2) the authority demonstrates that based on existing and/or forecasted traffic volumes the project is capable of generating revenue from the toll rates set by the authority sufficient to satisfy project-related debt (including, if applicable, commission reimbursement) and maintenance and operation expenses; (3) the transfer will not adversely affect regional mobility; (4) construction of the necessary enlargement, improvement or extension can be accomplished efficiently, expeditiously, and with a minimum public investment; and (5) if the transferred segment or a facility of which it will become a part is to be enlarged, improved, or extended by the authority, the requirements of sec.27.23 of this title (relating to Environmental Review) and sec.27.24 of this title (relating to Project Approval) are satisfied. (e) Transfer. Provided the commission finds that the conversion of a segment of the existing state highway system to a toll facility is the most feasible and economic means to accomplish necessary enlargements, improvements, or extensions to the state highway system and that such conversion is in the best interest of the State of Texas, the commission will request approval from the governor to execute such a transfer. Coincident with the transfer, the commission will remove the segment of highway from the designated state highway system, and the authority shall assume all responsibility and liability for maintenance and operation of the facility. 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 October 31, 1995. TRD-9514120 Robert E. Shaddock General Counsel Texas Department of Transportation Earliest possible date of adoption: December 8, 1995 For further information, please call: (512) 463-8630